Response: 1. "Interpretation": This is a very important point to understand. The Oral Torah is often misrepresented as merely Rabbinic "interpretation". It is not! "Interpretation" implies that the Rabbis derive their rulings from the Written Torah. But this is not what they do. The Oral Torah is a separate code of law, which is not derived, and which cannot be derived using any logical means, from the Written Torah. The use of the term "interpretation" is very misleading.
Consider, for instance, the Rabbinic prohibition on eating meat and dairy together. This is often presented as an "interpretation" of the verse "You shall not boil a kid in its mother's milk." Yet, there is no way that the Rabbinic prohibition can be derived from this verse. In fact, according to Rabbinic theory, the verse serves simply as a "mnemonic" for remembering the Rabbinical law. Yet, this fact is often not mentioned, which results in many people being misled into thinking that the Rabbinic law actually derives from the verse.
2. Here is the verse that Ben-Chaim quotes, in its context:
If a case is too baffling for you to decide, be it a controversy over homicide, civil law, or assault -- matters of dispute in your courts -- you shall promptly repair to the place that YHWH your God will have chosen, and appear before the levitical priests, or the magistrate in charge at the time, and present your problem. When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that YHWH chose, observing scrupulously all their instructions to you. You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. Should a man act presumptuously and disregard the priest charged with serving there YHWH your God, or the magistrate, that man shall die. Thus you will sweep out evil from Israel: all the people will hear and be afraid and will not act presumptuously again. (Deut. 17:8-13)I have discussed this passage before. Here is another take:
a. The passsage establishes a Supreme Court as the court of last resort for all legal cases, whose rulings on these cases cannot be appealed.
b. The physical location of the court is in Jerusalem ("the place that YHWH your God will have chosen").
c. The court is composed of the priests or the Judge.
d. These priests or this Judge are alive at the time of the case. How else are the parties in the case to present themselves to them? Also, "in charge at the time".
None of these things give the Rabbis the authority over Torah "interpretation". The passage gives the Supreme Court the authority to rule on cases that are brought before it. Certainly, if it so wishes, a Supreme Court may rely on precedent set by a previous Supreme Court. But nowhere does it say that it has to. Any Supreme Court can therefore decide differently than a previous Supreme Court did in a similar case. Thus, the Supreme Court is not setting any laws. Even if a previous Supreme Court set a precedent, it is not law. A new Supreme Court is free to decide a similar case differently.
The Rabbis, on the other hand, set laws, not simply precedents in legal cases. These laws are permanent, or almost permanent, as the Rabbis say that the contemporary Rabbis cannot overrule previous ones, such as the Rabbis who lived in Talmudic times.
Point b: the Supreme Court is to be located in Jerusalem. Yet, how many Rabbinic laws are set by Rabbis actually located in Jerusalem? Possibly the most important work of the Oral Torah, the Babylonian Talmud, was written nowhere near Jerusalem. Maimonides, who codified Talmudic law, did not live in Jerusalem either.
Point c:
I. The court can be composed of either the priests or the Judge. Certainly, the Priesthood is not the same thing as the Rabbis. No amount of Oral Torah can change that. The Priesthood is hereditary and does not depend on ideology. Being a rabbi is not hereditary and depends on believing in the authority of the Oral Torah.
II. What is the definition of the word shofet ("judge")? A shofet is not just someone who writes abstract responsa involving the Law; it is someone who has the ability to and actually does implement their decisions in this world. We know this from the text. Firstly, someone who does not obey the Judge is to be executed. That is, the Judge must be able to enforce his ruling on pain of death. Second, the Book of Judges describes many Shoftim of the pre-Monarchy period. All of these people were rulers with real physical power, not scholars devoid of the ability to enforce their decisions. As the JPS translation notes, the word shoftim is better rendered as "chieftains"; "the corresponding verb shaphat is usually rendered not 'judged' but 'ruled' or 'led'."
The Rabbis, in their capacity as Rabbis, do not have such powers. In other words, a rabbi might happen to have these powers, but they do not derive from him being a rabbi. Certainly, none of today's Rabbis have any such powers.
Point d: The Supreme Court must be alive at the time of the trial. This means that if we have a dispute today that we cannot resolve, we must go to someone alive today, not to ancient books. Rashi on this verse says as much:
Even if he is not comparable to the other judges who preceded him, you must obey him --- you have no one but the judge in your day. {Otherwise, "during those days" is redundant --- is it possible to approach a judge from another day? (Rosh Hashanah, 25:b)} (Rashi Yomi)If the Supreme Court is "interpreted" to mean the Rabbis, it must be today's Rabbis. Yet, they do not have nearly enough power to qualify them as Shoftim, as pointed out above.
If this passage refers to any entity in existence today, that entity is the Government of Israel (or a part thereof), not the Rabbis. The Government of Israel decides legal cases (through its court system) and, for Israelis, it is the court of last resort. The Government of Israel rules from Jerusalem. The Government of Israel has the power to enforce its decisions (again, only on Israelis, not on all Jews). And, finally, the Government of Israel exists today.
3. One of the ancient Shoftim was Deborah (Judges 4:4), a woman. Yet, Rabbinical law forbids women to become rabbis. (Although, if we assume that the Oral Torah is true, it is theoretically changeable, and it is possible that at the time no prohibition against women rabbis existed. In that case, however, I'd like to know the circumstances under which this law changed. Also, if Deborah was such a great rabbi, why do the Orthodox powers that be of today refuse to allow women to become rabbis?
4. Oral Torah states that Shoftim means Rabbis: This is yet another case of circular reasoning:
a. The passage gives certain powers to the Shoftim.
b. The Oral Torah states that Shoftim means Rabbis.
c. Thus, Rabbis have these powers.
d. Rabbis having these powers means that the Oral Torah is true.
First, as already discussed, the passage does not grant the powers claimed by the Rabbis to anyone. Second, the purpose here is to prove the veracity of the Oral Torah. Yet, Ben-Chaim has to assume the Oral Torah in step (b) in order to "prove" it in (d).
5. There is no dispute as to the truth of the transmission of the Oral Law among those who do not dispute this. And there is no dispute that the Earth is flat among those who believe that the Earth is flat.
6. All of this raises another interesting question. Who are the Rabbis? If I get the appropriate degree from Yeshiva University, will I become a rabbi? Smicha has been lost, remember? How then can the rabbis of today claim to have the tradition of the former Rabbis, who did have smicha?
Posted by Ami at August 20, 2004 02:36 AM
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