Rabbi Elliot N. Dorff writes:
Where does Jewish law come from? Does it allow any changes? If you were to answer these questions on the basis of what the Bible says, you would probably say that God gave the law, and no changes are allowed. That certainly is the explicit meaning of the two passages in Deuteronomy (4:2 and 13:1) which we cited above, in which Jews are told “not to add anything to what I command you or take anything away from it, but keep the commandments of the Lord your God which I enjoin upon you.”
It is also the general impression that the Bible gives in that the laws are given at Sinai in an overpowering event, with thunder, lightening, and other features to make one think, “Hands off! This is the Law, and don’t you dare tamper with it!” The understanding of the origins and functioning of Jewish law that most Jews have is usually based on these biblical stories alone.
Judaism, however, is NOT identical with the religion of the Bible. Judaism is based upon the way in which the Rabbis of the Talmud and Midrash interpreted the Bible (in contrast to non-religious, Christian, Moslem, and other Jewish interpretations of it).
Consequently, it is crucial to see how the Rabbis would have answered the questions with which this section began.
[By this we mean look at the works of classical rabbinical Judaism: The Mishnah, Tosefta, classic Midrash collections, Talmud Yerushalmi, and Talmud Bavli.]
When we consult the rabbinic sources, we discover some important and surprising things. First of all, the Bible claims that God spoke to Moses and the Prophets directly, and it leaves open the possibility of future prophets. The Rabbis, however, claimed that revelation (that is, an act in which God makes His will known) ceased shortly after the destruction of the First Temple:
#1) When the latter prophets, Haggai, Zechariah, and Malachi died, the Holy Spirit departed from Israel. (Talmud Sanhedrin 11a)
#2) The Holy One, blessed be He, said: “Twenty-four books [the Hebrew Bible] have I written for you; beware and make no addition to them.” For what reason? “Of milking many hooks there is no end ” (Eccles.12 : 12). He who reads a single verse which is not from the twenty-four is as though he read in “the outside books.” Beware of making many books [to add to the Scriptures], for whoever does so will have no portion in the World to Come, (Numbers Rabbah 14:4)
Furthermore, the Rabbis introduced distinctions in the authority of the prophets who had prophesied before the destruction of the First Temple, claiming that Moses’ prophesies were most authoritative because his vision was clearest and most inclusive:
#3) What was the distinction between Moses and the other prophets? The latter looked through nine lenses, whereas Moses looked only through one. They looked through a cloudy lens, nut Moses through one that was clear. (Leviticus Rabbah 1: 14)
#4) What the prophets were destined to prophesy in subsequent generations they received from Mount Sinai… Moses gave utterance to all the words of the other prophets as well as his own, and whoever prophesied only gave expression to the essence of Moses’ prophecy.
(Exodus Rabbah 28:6,42:8)
#5) Forty-eight prophets and seven prophetesses spoke prophecies for Israel, and they neither deducted from, nor added to, what was written in the Torah, with the exception of the law to read the Book of Esther on the Feast of Purim.
(Talmud Megillah 14a)
In place of prophecy, they greatly expanded the judicial powers that the Torah had created in Chapter 17 of Deuteronomy, and they claimed that their interpretations were the new and only way in which God spoke to mankind:
#6) R. Andimi from Haifa said: Since the day when the Temple was destroyed, the prophetic gift was taken away from the prophets and given to the Sages.- Is then a Sage not also a prophet? – What he meant was this: although it has been taken from the prophets, it has not been taken from the Sages. Amemar said: A Sage is even superior to a prophet, as it says, “And a prophet has a heart of wisdom” (Ps. 90: 12). Who is (usually) compared with whom? Is not the smaller compared with the greater?
(Talmud Bava Batra 12a)
They even denied authority to revelations claimed by members of their own sect, as in this remarkable story from the Babylonian Talmud:
We learned elsewhere: If he cut it (the material for an oven) into separate tiles, placing sand between each tile, Rabbi Eliezer declared it pure but the Sages declared it impure…
On that day Rabbi Eliezer brought forward every imaginable argument, but they did not accept them.
Said he to them: “If the halachah agrees with me then let this carob tree prove it!” Thereupon the carob tree was torn a hundred cubits out of its place – others affirm, four hundred cubits.
“No proof can be brought from a carob tree,” they retorted.
Again he said to them: “If the halachah agrees with me, let the stream of water prove it.” Whereupon the stream of water flowed backwards.
“No proof can be brought from a stream of water, ” they rejoined.
Again he urged: “If the halachah agrees with me, let the walls of the schoolhouse prove it,” whereupon the walls inclined to fall.
But Rabbi Joshua rebuked them saying: “When scholars are engaged in halachic dispute, what right have you to interfere?” Hence they did not fall in honor of Rabbi Joshua, nor did they resume the upright position in honor of Rabbi Eliezer, and they are still standing thus inclined.
Again he said to them, “If the halachah agrees with me, let it be proved in Heaven.” Whereupon a Heavenly Voice cried out: “Why do you dispute with Rabbi Eliezer, seeing that in all matters the halachah agrees with him. “
But Rabbi Joshua arose and exclaimed: “It is not in Heaven” (Deut. 30: 12).
What did he mean by this? Rabbi Yermiah said: “That the Torah had already been given at Mt. Sinai; therefore we pay no attention to a Heavenly Voice, because You have long since written in the Torah at Mount Sinai, ‘One must follow the majority’ ” (Ex. 23:2).
Rabbi Nathan met Elijah (the Prophet) and asked him: “What did the Holy One, Blessed be He, do in that hour?”
“He laughed with joy,” he replied, “and said, ‘My children have defeated Me, My children have defeated Me.’ “
Source: Talmud Bavli, Bava Metzia 59a-59b
If that does not make it clear that the rabbinic methodology is significantly different from the biblical one, nothing will! The Rabbis clearly and consciously shifted the operation of the law from the Prophets to the judges, from revelation to interpretation. Why did they do that? Undoubtedly part of the reason has to do with problems in using revelation.
Author: Martin, David, 1639-1721
Image Title: Ezra Reads the Book of the Law
Scripture Reference: Nehemiah 8
Description: This engraving depicts the Jews standing for the reading of the Law of Moses by Ezra at the Water Gate in Jerusalem.
(1) The Bible itself struggles to create a way of distinguishing true prophets from false ones (Deuteronomy 13: 2-6; 18: 9-22), but that was a continuing problem for the Rabbis- especially in the light of the many people roaming the hills of Judea claiming to be prophets in their time (Jesus included). Thus they said:
#8) To what are a prophet and a Sage to be compared? To a king who sent his two ambassadors to a state. For one of them he wrote, “If he does not show you my seal, do not believe him”; for the other he wrote, “Even if he does not show you my seal, believe him.” Similarly, in regard to a prophet, it is written, “If he gives you a sign or a portent” (Deut. 13: 2), but here (in Deut. 17: 11, concerning judges) it is written, “You shall act in accordance with the instruction which they shall give you” (even without a sign). (Talmud Yerushalmi discussion on Berachot 1:4)
(Note: This is especially forceful because Deuteronomy 13, which is quoted here, says that even if the prophet gives you a sign or portent and it comes true, nevertheless you should not believe in the prophet if he tells you to follow another god or disobey God’s laws “for the Lord your God is testing you” (Deut. 13: 4). In contrast compare the following: )
#9) “According to the sentence. . .of the judges shalt thou act, thou shalt not incline. . .to the right or to the left” (Deut. 17: 11). Even if they demonstrate that that which seems to you right is left, and that that which seems to you left is right, hearken to them. (Sifre Deut., Shofetim, #154)
On the other hand, this was not to be taken too far:
#10) “You must not deviate from the verdict that they announce to you either to the right or to the left” (Deut. 17 : 11). You might think that this means that if they tell you that right is left and left is right, you are to obey them; therefore the Torah tells you, “to the right or to the left,” (to indicate that) when they tell you that right is right and left is left (you are to obey them, but not otherwise).
Talmud Yerushalmi discussion on Horayot 1:1
(2) Besides the problem of distinguishing between true prophets and false ones, there is yet another problem with prophecy. If you accept it, then the law is always subject to changes or complete cancellation at a moment’s notice because God could conceivably announce completely new rules through a prophet – or at least a prophet could claim that He had. In other words, accepting prophecy spells legal chaos. Consequently the Rabbis in the above story were well advised to reject divine intrusions into the lawmaking process and claim that God had had His say once and for all. So part of the reason for substituting interpretation for prophecy is because of the problems inherent in using prophecy.
(3) Another part of the reason is because the Rabbis were convinced that the Torah needs interpretation, that even the accepted revelation in the Torah could not stand alone. There are sects of Christians who are “fundamentalists.” They try to make their decisions in life solely on the basis of the Bible.
There also have been sects of Jews who have tried that, including the Karaites (who were strongest in the ninth and tenth centuries but who still exist today) and, to a lesser degree, the Sadducees. (Even though those sects tried to rely solely on the Bible, they themselves found it necessary to develop their own tradition of interpretation.) The Rabbis, however, claimed that that was impossible since the Torah is open to many different interpretations:
#11) “Is not My word like a hammer that breaks a rock in many pieces?” (Jer. 23:29). As the hammer causes numerous sparks to flash forth, so is a Scriptural verse capable of many interpretations. (Talmud Sanhedrin 34a)
#12) It happened that a heathen came before Shammai and asked him, “How many Torahs do you have?” He answered, “Two – the written and the oral.” He said, “With respect to the written Torah I will believe you, but not with respect to the Oral Torah. Accept me as a convert on condition that you teach me the former only.” Shammai rebuked him and drove him out with contempt. He came before Hillel with the same request, and he accepted him. The first day he taught him the alphabet in the correct order, but the next day he reversed it. The heathen said to him, “Yesterday you taught it to me differently!” Hillel replied, “Do you not have to depend upon me for the letters of the alphabet? So must you likewise depend upon me for the interpretation of the Torah.” (Talmud Shabbat 31a)
#13) “The words of the wise are as goads. . .They are given from one shepherd” (Eccles. 12: 11), that is the words of the Torah and the words of the Sages have been given from the same shepherd (Moses).
“And furthermore, my son, be careful: of making many books there is no end” (Eccles. 12: 12) means: More than to the words of the Torah pay attention to the words of the Scribes.
In the same strain it says, “For thy beloved ones are better than wine” (Song of Songs 1:2) which means: The words of the beloved ones (the Sages) are better than the wine of the Torah.
Why? Because one cannot give a proper decision from the words of the Torah, since the Torah is shut up (ambiguous) and consists entirely of headings. . .From the words of the Sages, however, one can derive the proper law because they explain the Torah. And the reason why the words of the Sages are compared to goads (darbanot) is because they cause understanding to dwell (medayerin binah) in men. (Midrash, Numbers Rabbah 14:4)”
(4) Moreover, interpretation is necessary not only because the Torah on its own is ambiguous; it is also necessary if Jewish law is to retain sufficient flexibility:
#14) If the Torah had been given in a fixed form, the situation would have been intolerable. What is the meaning of the oft-recurring phrase, “The Lord spoke to Moses?” Moses said before Him, “Sovereign of the Universe! Cause me to know what the final decision is on each matter of law.” He replied, “The majority must be followed: when the majority declares a thing permitted, it is permissible; when the majority declares it forbidden, it is not allowed; so that the Torah may be capable of interpretation with forty-nine points for and forty-nine points against.” (Talmud Yerushalmi Sanhedrin 22a)
In fact, the Rabbis considered new interpretations and expansions of the law not only necessary, but also desirable:
#15) A king had two slaves whom he loved intensely. He gave each one a measure of wheat and a bundle of flax. The intelligent one wove the flax into a cloth and made flour from the wheat, sifted it, ground it, kneaded it, baked it, and set it (the bread) on the table on the cloth he had made before the king returned. The stupid one did not do a thing (with the gifts the king had given him). After some time the king returned to his house and said to them: “My sons, bring me what I gave you.” One brought out the table set with the bread on the tablecloth; the other brought out the wheat in a basket and the bundle of flax with it. What an embarrassment that was! Which do you think was the more beloved? . . (Similarly) when the Holy One, Blessed be He, gave the Torah to Israel, He gave it as wheat from which to make flour and flax from which to make clothing through the rules of interpretation. (Seder Eliyahu Zuta, Chapter2)
(5) Finally, human interpretation and application of the law is necessary because God Himself required it in Chapter 17 of Deuteronomy! Not to interpret the law anew in each generation would be to disobey God’s Law!
#16) No man should say, “I will not observe the precepts of the elders” (i.e., the Oral Law), since they are not of Mosaic authority (lit., contained in the Torah). For God has said, “Nay, my son, but whatsoever they decree for thee, do thou perform,” as it says, “According to the Torah which they (i.e., the elders in days to come) shall teach you, shall you do” (Deut.17: 11): for even for Me do they make decrees, as it says, “when you (i.e., the elders) decree a command, it shall be fulfilled for you” (i.e., by Me, God) [a playful interpretation of Job 22: 28].
– Pesikta Rabbati, ed. Friedmann, 7b
#17) It is written, “For this commandment is not in heaven” (Deut. 30: 11, 12). Moses said to the Israelites, “Lest you should say, ‘Another Moses is to arise, and to bring us another Law from heaven,’ therefore I make it known to you now that it is not in heaven: nothing is left of it in heaven.” R. Hanina said: “The Law and all the implements by which it is carried out have been given, namely, modesty, beneficence, uprightness and reward.”
– Midrash, Deut Rabbah, Nitzavim, 8:6
That is all well and good, but with all of these interpretations, how is there to he any coherence in the law – any sense that, despite the many different understandings and applications of the law, this is still one, reasonably consistent, system? And how are the various interpretations of the word of God in any sense such that they continue to have divine authority?
Those are hard questions, but the Rabbis faced them squarely. They answered the question of coherence in three ways. First of all, the tradition would remain coherent despite the many variations of opinion because they all derive from God:
#18) Lest a man should say, “Since some scholars declare a thing impure and others declare it pure, some pronounce a thing to be forbidden and others pronounce it to be permitted, some disqualify an object while others uphold its fitness, how can I study Torah under such circumstances?”
Scripture states, “They are given from one shepherd” (Eccles. 12: 11): One God has given them, one leader (Moses) has uttered them at the command of the Lord of all creation, blessed be He, as it says, “And God spoke all these words” (Ex. 20: 1).
Do you then on your part make your ear like a grain receiver and acquire a heart that can understand the words of the scholars who declare a thing impure as well as those who declare it pure, the words of those who declare a thing forbidden as well as those who pronounce it permitted, and the words of those who disqualify an object as well as those who uphold its fitness. . Although one scholar offers his view and another offers his, the words of both are all derived from what Moses, the shepherd, received from the One Lord of the Universe.
– Midrash, Num. Rabbah 14:4
In other words, however much the interpretations of various rabbis may vary, they are all interpretations of one document, the Torah, and they will all be cohesive because God, the Author of that document, can be presumed to be consistent. In somewhat the same way, American law is consistent because it all derives from the framework and powers that were established in the Constitution – however much it has changed since then.
Second, the tradition will be cohesive because there is a sense of continuity within the tradition itself. There is a famous story in the Talmud which illustrates that. When Moses visits the academy of Rabbi Akiba, who lived some 1400 years after him, he does not even understand what Rabbi Akiba is saying (let alone agree with it). Nevertheless Moses is comforted when Rabbi Akiba cites one of the new laws in Moses’ name because that indicates that there is a sense of continuity in the tradition, however much it has changed in form:
#19) Rav Judah said in the name of Rav: When Moses ascended on high, he found the Holy One, blessed be He, engaged in affixing crowns to the letters (of the Torah). Said Moses: “Lord of the Universe, who stays Your hand?” (i.e., is there anything lacking in the Torah so that additions are necessary?)
He answered, “There will arise a man at the end of many generations, Akiba ben Joseph by name, who will expand upon each decorative marking heaps and heaps of laws.”
“Lord of the Universe,” said Moses, “permit me to see him.” He replied, “Turn around.” Moses went and sat down behind eight rows (of R. Akiba’s disciples and listened to the discourses on the law).
Not being able to follow their arguments, he was ill at ease, but when they came to a certain subject and the disciple said to the master, “From where do you know it?” and the latter replied, “It is a law given to Moses at Sinai, ” he [Moses] was comforted. Thereupon he returned to the Holy One, blessed be He, and said, “Lord of the Universe, You have such a man and You give the Torah by me?!” (Talmud Menahot 29b)
(Incidentally, this story also clearly indicates that the Rabbis realized that there had been changes in the law.) This sense of continuity is dependent, of course, on having people who have studied it sufficiently to carry on its spirit and substance in new settings, and the Rabbis were keenly aware of what happens to the law’s coherence when those to whom it is entrusted do not know it thoroughly:
#20) When the disciples of Shammai and Hillel increased who had not served (studied with) their teachers sufficiently, dissensions increased in Israel and the Torah became like two Torahs. (Talmud Sotah 47a)
But they also were convinced that the continuity and consistency that they sensed was real, that the law in its present form, however different from the Torah, is the direct extension of it:
#21) Moses received the Torah from Sinai and handed it down to Joshua, and Joshua to the elders, and the elders to the prophets, and the prophets handed it down to the men of the Great Assembly. (Avot 1: 1)
#22) At the same time when the Holy One, blessed be He, revealed Himself on Sinai to give the Torah to Israel, He delivered it to Moses in order – Scripture, Mishnah, Talmud, and Aggadah. (Mishnah, Ex. Rabbah 47: 1)
(Again, the comparison to American law is instructive. Judges can make really revolutionary decisions but they correctly feel the need to tie those decisions to already existing laws and precedents in order to preserve a sense of continuity within the American legal system. The Supreme Court’s decision in 1954 requiring integration of the public schools is a good example. Segregated schools clearly continued to exist in the United States after the First and Fourteenth Amendments to the Constitution became law, and the framers of those Amendments certainly did not intend to outlaw such schools in passing them. Moreover, the Supreme Court itself specifically upheld the constitutionality of segregated facilities in 1896. Nevertheless, in 1954 the Supreme Court declared segregated schools unconstitutional and based their decision on the First and Fourteenth Amendments in order to preserve a sense of continuity and consistency in the law. Shades of Rabbi Akiba!)
Third, Jewish law would retain its coherence because it includes a way of making decisions.
This has been excerpted from: Conservative Judaism: Our Ancestors to Our Descendants, By Rabbi Elliott N. Dorff.
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