Letter of the law

A letter to the editor in last week’s Jewish Standard raises some interesting points. I thank its author, Rabbi Gary Karlin, for that letter because it provides an opportunity to expand on the discussion begun two weeks ago.

In my last post, “Scalia would have stewed over a Shabbat staple,” I equated the U.S. Constitution to the “constitution of the Jewish people,” meaning the Torah, and suggested that had Scalia been a rabbi, and had his view prevailed, “Judaism probably would have disappeared by now, dead under the heavy weight of its own words.”

That is because the late Supreme Court justice believed the “only good Constitution is a dead Constitution,” meaning it is not open to subjective reinterpretation, whereas Judaism’s ability to survive is directly related to the Torah being open to just such subjective re-interpretation. Torah law has been able to evolve because it was not stuck in time and place, and because individual rabbis and groups of rabbis recognized that and acted upon it.

Karlin, it seems, actually agreed with me on this point. “In the halachic system,” he wrote, “rabbis have and continue to formulate, write, disseminate, challenge, and change Jewish law.”

In his letter, Karlin argued that the Torah and the U.S. Constitution have little in common. (So did several people who responded to the Times of Israel blog posting, although not with the kind of reasoned arguments Karlin proffered.)

The “Jewish legal tradition that got us to [this] point is very different from the American jurisprudence,” he wrote. “Where does the comparison between American and Jewish law break down? In Jewish law, unlike in American law, there is no separation of powers….”

To be fair, what Karlin wrote is correct in fact; Judaism operates the way he outlined.

“Rabbis are both judges (dayanim) and halachic authorities (posekim) who issue rulings,” he wrote. “A rabbi is the final voice of legal authority in his or her community … and may join others to augment their authority….

“For millennia, there has been no formal, authoritative Jewish congress legislating laws. No Jewish chief executive. No supreme Jewish court. Just individual rabbis, working to keep Jewish law relevant and real….”

That is the system we have, but it is not the system we were given. If not for the system we were given, the system we have probably never would have come to be.

That is a head-spinning statement, to be sure, but perhaps it will make sense as we address some of the rabbi’s specific points.

It is true; there is no separation of powers in the current Jewish legal system. That, however, is the consequence of history. Originally, Israel was to be ruled by three “branches”: king, priest, and prophet. Each had his role to play. That is why a prophet, Nathan, could stand before the mighty King David and proclaim him guilty of horrendous crimes. In any eastern court then and for many centuries after, the man who so accused the king would quickly have his head separated from his shoulders. In Israel, it was the king who had to bow to the prophet’s judgment. (See 2 Samuel 12.)

Eventually, Israel was exiled, prophecy ceased, the Temple was destroyed (twice), and there no longer were kings, priests, or prophets to govern. There was a power vacuum, and the rabbis filled it.

How did they get the authority to do so? Aside from creating a direct line from Moses to themselves (see Pirkei Avot, Chapter 1), they took several verses from the Torah and reinterpreted them in their own favor. (See Deuteronomy 17:9-14.) They could do so because the Torah is subject to reinterpretation when the need arises.

Karlin did allow that “[p]erhaps one can claim that Jewish communities, and in a broader sense, k’lal Yisrael, the Jewish people as a whole, balance rabbinic authority,” but in practical terms, that is not the case.

But it is supposed to be.

To begin with, according to black letter Jewish law, rabbis, by acting in concert, can even stand the Torah on its head, if by doing so they would bring people closer to the Torah and to God.

Maimonides, the Rambam, states this concept clearly. In his Mishneh Torah volume Rebels [Mamrim] (2:4), he says of the rabbis: “If they should conclude that it is necessary to suspend a positive [Torah] commandment or nullify a negative one in order to restore the people to the faith or to save many Jews from otherwise becoming lax in matters [of observance], they may act as the needs of the time require.”

By this, the Rambam means that if a clear majority of the People Israel have abandoned observance of a particular God-given commandment, the rabbis have the power (perhaps even the duty) to suspend that commandment temporarily, rather than see the entire halachic system plummet down a slippery slope. (Does putting a string around Route 4 really create a “private domain” allowing people to carry on Shabbat? The eruv’s purpose is to provide a way for people to do what they would do in any case — carry on Shabbat — without thinking they are violating Shabbat by doing so. Otherwise, they might start to ignore other Shabbat rules.)

Finally, if the rabbis refuse to act, the people can.

Halachah actually gives the public the ability to annul laws it considers obnoxious. (See, for example, the Babylonian Talmud, Tractate Bava Batra 60b, BT Avodah Zara 36a, and the Jerusalem Talmud, Tractate Avodah Zarah 2:8.)

Rambam brings it all together (see MT Mamrim 2:5-7): A rabbinic decree, he says, is invalid if “the people resist it and a majority in fact refuses to adhere to it…; it is not permitted to force the people to follow it.”

In American terms, we the Jewish people have the right to “amend” our “constitution,” and even to overturn laws that derive from it. We can do so only because the Torah is a living document, not a dead one.

About the Author
Shammai Engelmayer is rabbi emeritus of Congregation Beth Israel of the Palisades. He hosts adult Jewish education classes twice each week on Zoom, and his weekly “Keep the Faith” podcast may be heard on Apple Podcasts, iHeart Radio, and Stitcher, among other sites. Information on his classes and podcast is available at www.shammai.org.
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