From the Disproofs of the Oral Law series.
9. The sections of Exodus [ch. 21] and Deuteronomy [ch. 21-25] that deal with monetary and physical crimes do not seem to contain enough information to formulate a working legal system. How can a court legislate with so few guidelines? Certainly, for courts to function based on biblical law there must have been more information given in the form of an oral law [Kuzari, ibid; Rashbatz, ibid.].10. The laws of inheritance as stated in Numbers [27:8-11] cannot begin to address all of the many complicated situations that can and have arisen throughout the generations. Without an oral law, how does a society apply the biblical inheritance laws [Kuzari, ibid; Rashbatz, ibid.]?
The Torah itself never says that it has to "contain enough information to formulate a working legal system". Torah laws are the requirements made by God. On everything else, we, humans, can decide for ourselves. As far as the Divine Law is concerned, everything that is not forbidden by it, is allowed; and everything that is not commanded by it, is optional. If there is any area that is not covered by God's Law, then, in that area, we can do as we like.
Courts can function based on Biblical law and additional human law. Courts are a part of the government of some state, autonomy, or semi-autonomous community. If such a state exists, and if there are areas on which the courts judge but which are not covered by God's Law, then the state can pass additional human laws to facilitate judgment. But these laws: (1) are fully human, and not Divine or Divinely sanctioned; and (2) are in force only in that particular state or autonomy. If an autonomy does not exist, then there are no courts; and if there are no courts, there is no need for additional human laws.
I am not, in principle, against human laws. But note that the Oral Law is very different from additional human laws that facilitate the function of courts. For one, in practical terms, under Oral Law, there is no way to repeal or modify existing laws. Orthodox Jews hold that laws that became a part of the Oral Law over a thousand years ago cannot be changed or repealed by anyone today. With ordinary laws, on the other hand, the government that passed them, can change them; and if that government no longer exists, the laws do not apply.
Another major difference between Oral Law and ordinary human laws is that Orthodox Jews put Oral Law on virtually the same level as Divine Law. They claim that since the legislation contained within the Oral Torah was sanctioned by God (which it was not), it is a requirement to follow it, just the same as it is a requirement to follow God's Law. Sure, the Orthodox make a theoretical distinction between God's Law (d'oraita) and Oral Law (d'rabanan). But this distinction is only applied if a person, for whatever reason, is unable to follow two laws and instead has to choose one; in this situation, he chooses d'oraita over d'rabanan. But under all normal circumstances, he has to follow both equally.
Further, there are some Rabbinical laws which are classified as d'oraita. For example, the commandment to put on tefillin, a Rabbinical commandment, is classified thus. With these laws, human legislation pretends to be God's Law, even in theory.
Finally, Orthodox Jews often refer to Oral Law as Divine. Notice what Student says: "there must have been more information given in the form of an oral law", meaning that the Oral Law was given by God. Some Orthodox say that God told Moses about all the laws that future Rabbis would enact. Though other Orthodox, when asked, would say that the overwhelming majority of Oral Law is, in fact, man-made.
This elevation of human law, which we do not have to follow, since there is no government to support it, to the status of Divine Law, is very dangerous. Today, when many people think of "traditional" Judaism, they think of man-made Orthodox practices, such as tefillin, separation of meat and dairy, Shabbat candles, eruv, kippah, Rosh ha-Shanah* ("the Jewish New Year"), and "Jewish mysticism" / Kabbalah. This basically amounts to misinformation as in many people's minds, these human practices have become Judaism.
* The holiday itself is Biblical; its designation as "New Year" is not.
Posted by Ami at January 23, 2004 01:21 PM | TrackBack*Ramban*: erm, ok, where? Ramban says that we will merit to cleave to God by being holy. How does this imply that the Torah gives a full legal system?
*Judaism's not like that*: not sure how to respond here. What specifically am I doing wrong? I cannot rely on the Oral Torah if I am trying to ascertain its veracity.
In practical terms, in today's world, it is extremely difficult to change the laws within the Orthodox framework. You say as much. But this is not a fundamental problem actually. If these are God's laws, there is no problem. My position is that the laws were created by people, and that the laws either never had God's authority, or that authority does not apply to us today. In that case, the Orthodox laws should be easily changeable by us today.
*you are making some general statements*: which specific statements are incorrect? If you don't tell me, I won't be able to correct them.
*I question the nature of some statements in the Talmud about certain obscure laws being "Halacha L'Moshe M'Sinai"*: ok. If the Talmud is wrong in those instances, how can you know that it is not wrong in other instances?
*Parsha Yisro*: Not sure if this is what you mean, but I already wrote something on that:
http://www.amhaaretz.org/2004/02/disproofs_13_parsha_yitro.html
*removes you from the historical community of Israel*: Several points:
- we can argue about the Oral Law, whether specific things were indeed commanded, etc. But still, my world-view is very close to the Orthodox world-view.
- are the majority of Jews really removing themselves from the historical community of Israel?
- historically, not all Jews believed in the Oral Torah. Thus, what am I removing myself from?
- is this even a valid argument? If someone made a mistake in the past, why should I make it again today?
*spewing forth so much hate*: Once again, I don't hate Orthodox Jews. I like talking to Orthodox and listening to what they say. I don't think that my writings are hateful. If you think they are, how are they hateful? I understand that you might strongly disagree with what I write, and that this might cause distress. My intent is not to cause distress. I disagree with some Orthodox points, yet I enjoy reading Orthodox essays all the time.
It's important for me to get this topic out of the way. So the future, when someone comes here and says, "Didn't you read parsha Shoftim? It proves the Oral Law", I will not have to restart the debate over again, but will simply point them to the relevant article.
And I do write about other things. :-)
Posted by: Ami at February 14, 2004 11:36 PMA few points:
"The Torah itself never says that it has to "contain enough information to formulate a working legal system". Torah laws are the requirements made by God. On everything else, we, humans, can decide for ourselves. As far as the Divine Law is concerned, everything that is not forbidden by it, is allowed; and everything that is not commanded by it, is optional. If there is any area that is not covered by God's Law, then, in that area, we can do as we like."
Not true. Cf. Ramban beginning of Parshas Kedoshim. No appeals to the Oral Law needed, just simple exegisis.
Also, in general it seems you are ignoring the traditional understanding of Jewish law, and trying to equate it's working to secular law. I'm not sure why this proves or disproves anything. The answer in all cases is that Judaism's not like that.
Anyways, there are ways for "Oral" Laws to be changed or repealed. Most are unavailable to Orthodox Jews these days due to the lack of a Temple/Sanhedrin. Others are still available (eit L'assot L'Shem, for example).
Also, you are making some general statements about the character of laws decreed by courts; I don't think they are correct.
While I question the nature of some statements in the Talmud about certain obscure laws being "Halacha L'Moshe M'Sinai", I don't think you can deny the existence of the historical interaction with the revealed will of God which makes up the Oral Law (cf. Parshas Yisro for the beginning of this). It's there, and to sever yourself from it removes you from the historical community of Israel.
I agree that Tanakh is beautiful and has insights in terms of philosophy etc. Instead of spewing forth so much hate and invective at others, why not share some of your thoughts on the beauty of the Torah? We can agree to disagree on the other stuff, if you like.
Posted by: Greg at February 13, 2004 05:56 PMI must commend you on such a good job. I believe there is a notion that says that the written law is unchangeable whereas the oral law is flexible. I guess the problem only comes when we exalt the oral law, or the words of men, as equal to the written, or make it seem as though it descended from Moshe. The only proof of the oral law is literally the oral law. Quite circular.
Thanks Ami.
Posted by: David at January 26, 2004 12:14 PMThere is a pretty detailed essay by rabbi Feld,
http://www.britam.org/law.html
supporting more arguments for the Oral Law.
Another essay cites Zechariah, Ch 7 & 8 as proof of the Oral Law, ie the 4 fasts were observed at that time.
In fact, when one does read Zech, the latter prophet seems to attack the insititution of non Biblical fasts:
7:5 Speak unto all the people of the land, and to the priests, saying, When you fasted and mourned in the fifth and seventh month, even those seventy years, did you at all fast unto me, even to me?
Zec. 7:6 And when you did eat, and when you did drink, did not you eat for yourselves, and drink for yourselves? 7:7 Should you not hear the words which the LORD has cried by the former prophets, when Jerusalem was inhabited and in prosperity, and the cities thereof round about her, when men inhabited the south and the plain?
in other words, G-d did not command us to fast other than for Yom Kippur, the rest is synthetic, and self-serving.
Posted by: eddie at January 24, 2004 09:44 PM