From the Disproofs of the Oral Law series.
14. R. Duran also notes the following biblical passage.Deut. 17:8-11 If a matter of judgment is hidden from you, between blood and blood, between verdict and verdict, between plague and plague, matters of dispute in your cities -- you shall rise up and ascend to the place that the L-rd, your G-d, shall choose. You shall come to the priests, the Levites, and to the judge who will be in those days; you shall inquire and they will tell you the word of judgement. You shall do according to the word that they will tell you, from the place that G-d will choose, and you shall be careful to do according to everything that they will teach you. According to the teaching that they will teach you and according to the judgment that they will say to you, shall you do; you shall not deviate from the word that they will tell you, right or left.What possible knowledge is there that can be hidden? If there is no oral law, then the only basis for judgment is in the Torah which is open for anyone to study. Clearly, the entire need for the above process of going to the central court and following their ruling implies that there is an oral tradition which also serves as the basis for judgment [Rashbatz, ibid.; Rashbash, ibid.].
1. This passage establishes a central court as the final authority in all disputes. The need for such a court is obvious. There are times when a lower court cannot resolve a dispute. In this case, the dispute goes to a higher court. If there is a hierarchy of courts, then there is also a highest court.
All countries in the world have central courts. Yet most modern societies do not have an oral law. It is true that a court decision can become a legal precedent. But a precedent is only a law by default, and can be easily overturned by the legislature. Thus, we see that the existence of a central court does not in any way imply an oral law.
2. While Orthodox Jews believe that some portions of the Oral Torah are esoteric, they believe that the legal portion of the Oral Torah is open for to all to study. Student says that the only reason to go to a central court is that the lower courts might not know the Oral Law very well. He says that if there was only the Written Law, everyone would know it. Well, if they can know the Written Law, why can't they also know the Oral Law, which, according to Orthodox belief, is not esoteric. Yet, Student says that some of the Oral Law might be "hidden", which is contrary to the Orthodox belief.
3. The passage says that if it is difficult to make a decision in a legal case, the parties should go to a central court. Student's argument is based on the assumption that the only reason why it might be difficult to make a decision is that the court does not know the appropriate law. But there are several reasons why a lower court might not be able to make a decision. For example, the judges of the lower court might not be able to investigate the case properly. This could be because they lack experience, expertise, intelligence, or resources. Or it might be that the case is just too unusual. Right before this passage, another passage mentions the death penalty. A lower court might simply not want to take on the responsibility of administering the death penalty.
4. Nowhere does this passage allow the central court to create new laws and claim that they are God's laws or laws sanctioned by God. Yet, in the eyes of Orthodox Jews, the Oral Torah is equivalent to God's law, or at least is sanctioned by God.
5. The passage says: "you shall carry out the verdict that is announced to you from that place that YHWH chose". The place is, of course, Jerusalem. Yet, many of those who decided the Oral Law lived in Babylon, not Jerusalem. Therefore, they could not have acted as a central court, even in court cases.
6. Let us pretend for a moment that parsha Shoftim does establish that a central authority has knowledge of a God-given Oral Law. If we have a dispute today, to which Oral Law authority should we go: present-day rabbis? or the Talmudic Rabbis of 1500 years ago?
The passage says that the people who have a dispute should go to an authority that is alive at the time: "appear before the levitical priests, or the magistrate in charge at the time, and present your problem". Thus, the Talmudic Rabbis cannot be today's Oral Torah authority, as established here.
The central court established by the passage has tangible physical power, which is needed to enforce its decisions. The court is made of "levitical priests" or "the magistrate in charge". Judaism has only one Temple, located in Jerusalem; the priests in charge of that Temple clearly have a lot of power. Likewise, the "magistrate" is any ruler or governor with power. The verses immediately following those quoted say that the court has the power to administer the death penalty. Today's rabbis do not have anywhere near that amount of power.
From this we see that, today, a central court does not exist. If the Oral Law is only known by the central court, as Student says, then it is not known today.
Posted by Ami at February 8, 2004 11:19 AM | TrackBack.
Posted by: at May 12, 2004 03:28 AM