Thursday, March 29, 2007

What If Rabbis Were Supreme Court Justices?

From the Passover Haggadah:
Rabbi Elazar Ben Azaryah said: "I am like a man of 70 years, and yet I was never able to merit to prove that one is obligated to mention the Exodus at night, until Ben Zoma explained it thusly: It says in the Torah, 'In order that you shall remember the day when you came out of the land of Egypt, all the days of your life.' 'The days of your life' refers to the days; 'All the days of your life' refers to the nights." And the Sages [i.e all the other rabbis -JA] say: "'The days of your life' refers to this world; 'All the days of your life' indicates the time of the Messiah."

Many people, including many Orthodox Jews, ridicule the majority opinion in Roe v. Wade because of its reliance on a "penumbra" of rights in the Constitution that weren't spelled out. But how much more ridiculous are the bulk of Orthodox interpretations of the Torah?

I'd love to see what the Sages would have done with the Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Justice Ben Azaryah said: "I am like a man of 70 years, and yet I was never able to merit to prove that one has the right to a public trial in civil cases until Justice Ben Zoma explained it thusly: "It says in the Constitution, 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.' 'Criminal prosecutions' refers to criminal prosecutions. 'All criminal prosecutions' refers to civil suits." And the legal scholars say: "'Criminal prosecutions' refers to criminal prosecutions. 'All criminal prosecutions' refers to military tribunals."


Anonymous said...

Too clever an idea for such a small post. It needs more fleshing out to give it the bang it deserves.

Ezzie said...

Silly JA. Rabbis WERE Supreme Court Justices! :D (And damn good ones, I might add.)

Inksmudge said...

I dunno, when I read the mishna it sounds like he had already made the ruling that there was a mitzvah to tell the Passover story, but he just couldn't prove it from the scriptures. But don't let me keep you from mocking.

Jewish Atheist said...


What did you have in mind?


Come on, that's the best you can do?


it sounds like he had already made the ruling... but he just couldn't prove it from the scriptures.

That was kind of my point, actually.

AJ said...

If I was an Orthodox Apologist, I'd say that the Rabbis weren't making anything up -- they were just explaining what God told Moses on Sinai.

But I'm not, so I won't say that.

I personally find it interesting that everyone, throughout generations, feels the need to base legal opinions in textual tradition. (I mean, I feel that need too...) With the Rabbis, there was an idea that Passover should be remembered at night, and they felt a need to base it in the text. Either it was so ingrained in society that Rabbi Elazar felt 'obligated' to textually prove it, or he had once heard that there was a textual proof and was glad to find it. The US Supreme Court justices 'knew' that certain rights are protected, and found a sort of textual proof...I don't see anything problematic with either...

The Intuitor said...

aj, but the way rabbis treat a text is barbaric no respect for context, consistency, or common sense. The Rabbis' exegesis sounds like they're mimicking the proccess of literary interpretation. I don't think anyone willingly would come up with such a method of reading a text. It could only have been forced upon the Pharisees. Probably by a political figure with power, like Nehemiah, or the Macabees.

Jack's Shack said...

Interesting post. I like it.

suzy said...

found an interesting article where someone responds to Harris

Rich P. said...

The name of the sect slips my mind now, but they where the group of jews who took everything literally from the way it was written in the Torah.

Honestly, I have never gotten a good answer as to why that was so wrong to do that instead of the rabbis interpretation.

For this argument, let's assume that the torah is correct and infallable. The torah also states that you shouldn't add onto the laws in the Torah.

Yet, isn't that exactly what the rabbis are doing by "interpreting" the words?

Prescott said...

>Honestly, I have never gotten a good answer as to why that was so wrong to do that instead of the rabbis interpretation.

Well, if you took the Torah literally you would have a people that is historically inflexible, and would have been marginalized long ago. Imagine if the Jews were still taking every law literally! What made sense in the time of the Torah's giving doesn't necessarily make sense for the rest of history, and the Jews are supposed to be around for all of history. So an "Oral Tradition" was given, and given validity. It doesn't matter if this tradition developed on its own or if it was given at Sinai--all that matters is that tradition and legal rulings are binding. This is a fantastic way to keep a legal and spiritual system relatively flexible while still giving it the impression that it is ancient and absolutely rigid. This is exactly what has happened throughout history, and this is why it would be a bad thing to take the Torah literally, from a Jewish standpoint. This is what the Rabbi did, as documented in the Talmuds.

One of the ways in which they gave their rulings, which were revolutionary but necessary for they were setting the foundations for the next few millenia of Jewish history, was to give it basis in the Torah text, even when it doesn't fit in the context. This developed into an alternative way of reading the scriptures, one that ignores the simple meaning (and any context) and works using an internally consistent methodology.

Maybe. Or maybe they had a tradition to read the Torah this way. Anyway, these people were not stupid. They managed to take the values of their Torah and reorganize them in a way that has lasted for a very very long time, with excellent results. It's not fair to beat on the Rabbis of old.

Rich P. said...

prescott, I am not arguin whether the literal torah would make sense or not. for example, there are chukot for which we do not know the reason for the commandment.

One of the big arguments against Christian missionaries is that the Torah states not to add or subtract from the law and that is what the new testament does.

So is the argument used against christians, but not against rabbis "modifying" the meaning of the words in the torah.

Prescott said...

Rabbinic laws have a different status in terms of obligation in Jewish law. The Rabbis add Rabbinic laws, but do not claim that there are more laws in the Torah.

Christians claim that the laws of the Torah are no longer obligatory.

The difference is whether you're working around the law or through it. The major difference between these two is the attitude one takes towards the law. For example, even though the Rabbis avoided sacrifices after the destruction, effectively ending their practice, Jews still look towards sacrifices looking at them as an ideal and learn things from them. This is the true meaning behind rabbinic statements that now that the temple is destroyed we fulfill our obligation by learning about the sacrifices. Maybe.

Intuitor said...

Flexibility might be an ideal for a man made system because man is fallible and can't predict future situations. But for God who supposedly knows everything and is giving a perfect, ideal, and Godly Law, the standards of quality are higher. We would expect a non changing system that anticipates and covers all future situations. "Flexibility" of interpretation is a cover up for the shortcoming of "God" (if he exists) and for the claim that Torah is perfect and Godly. Having to interpret Toah in a Rabbinic concoluted fashion is to admit God's inaptitude and impotence.

Rich P. said...

i apologize if this is posted twice, but for my comments aren't showing up . . .


I don't deny that rabbinic law and torah law are on two levels.

However, you have rabbinic laws like muktzah on shabbat. that helps us keep the shabbat and is in place as an extra layer to keep the sanctity of the shabbat.

However, the laws of kosher that we keep are a far cry from the "don't cook a goat in its mother's milk" that is stated in the torah.

And were is the torah does it tell me when, where, what time etc. I have to pray? The idea of praying to G-d during hard times is clear in the torah. As is the general idea of being thankful, but why do we have all of these laws that govern the specifics of prayer.

Seems like the torah leaves it up to the individual to reach out to G-d in a way he sees fit.

Intuitor said...
Good point about G-d being perfect and who are the Rabbis to change the meaning.

Prescott said...


I'm not sure how you could have a "non changing system" that could possibly "anticipate and cover all future situations." I mean, unless God (if he exists) would have provided every single situation for every single society and every nuance of history. Besides for not being very practical, there is theological beauty in the concept that there is a partnership between man and God in developing the law (I reference Eliezer Berkovits and Jonathan Sacks for such theological explanations).

rich p.

I understand your question about kashrut much more than your question about prayer. My understanding is that specific times for prayer are in fact rabbinic, much like muktzeh. Though current academic scholarship debates whether the rabbis composed the entire liturgy ex nihlo (the evidence seems to be strongly NOT in favor of this view) or not, the choice of the rabbbis to institutionalize prayer was a way to protect the values that prayer in the Torah present much like muktzeh protects the values of Shabbat.

Your question about milk and meat makes more sense to me. I don't happen to know much about this issue, but I would love to look into it. Do you know the sources? I would love to know how the Rabbis viewed Torah's laws of kashrut.

What I anticipate finding is that the rabbis will have had a certain motivation for the laws that they ruled. Can you point me where to look?

David said...

JA, I pretty much agree with you. Somebody coming from a traditional Orthodox perspective should be sympatheic to expansionist readings of the Constitution.

Classmate-Wearing-Yarmulka said...

Sorry, JA, but this whole thing doesn't fly. The whole point of a textualist/originalist interpretation of the Constitution is that it is self-limiting. It constrains judicial power, which of course, is a good thing, as we live in a democracy.

But Judaism isn't a democracy, and we hold the Rabbis to a higher level than we hold Supreme Court justices. Also, no one believes that the Constitution was written by God, with the power of interpretation granted to the Rabbis.

JA, I pretty much agree with you. Somebody coming from a traditional Orthodox perspective should be sympatheic to expansionist readings of the Constitution.

Not a chance, as one has nothing to do with the other.

Ezzie said...

Come on, that's the best you can do?

Actually, I kind of thought this post was a joke.