It is sometimes asserted that the need for change and adaptation in legal systems stems from the fallibility of their human authors and the inevitable imperfections of their handiwork.1 But even a system like the Jewish Halakha—which views itself as based on divine revelation—cannot remain forever unchanged. In principle, this should pose no theoretical problem: After all, such a system may well provide for the establishment of specific norms by nondivine authorities, functionally akin to positive lawmaking by legislatures. Hence, just as in the modern state specific laws can be changed or repealed without affecting the underlying constitution, so (arguably) can some details of Jewish law be altered without impinging upon the divine “constitution.” “Deeper” changes, however—the like of which would (in a system based on human authority) necessitate an amendment procedure—would appear to pose a serious problem. How can anyone purport to “amend” divine revelation?
In this essay I shall try to illustrate and explain how the sages of classical Judaism conceived and implemented a mode of effectively amending scriptural law. This mode, known as Midrash, involves an assertion of radical control over the meaning of the revealed text. I shall argue that halakhic Midrash is functionally equivalent to constitutional amendment, while noting important differences in their manners of operation and conceptual underpinnings. First, though, we need some clarification of the key distinction between mere legal change and constitutional amendment, and of how this distinction might apply to the halakhic system.
The notion of “constitutional amendment” involves two terms. The first sets it apart from legal change outside the ambit of the constitution, that is, truly extraconstitutional change. One must, therefore, identify what counts as a constitution, including, presumably, any provisions for amendment. The second distinguishes certain changes in the constitution from mere shifts in the way it is applied or interpreted.2 Thus, when looking for a similar phenomenon in a system of divinely revealed law, we must first consider what part of that system can properly be considered a “constitution”; and second, what, if anything, might come under the heading of “amendment.”
The first issue, isolating a “constitution,” arises simply because revealed law—unlike, say, a monarchic legal system constituted by divine right—involves not only God’s authority, but also the direct expression of that authority in a specific set of laws. Thus the basic premises and institutional arrangements—the stuff of a constitution—are promulgated simultaneously with detailed legislation based on those premises and enforceable by those institutions, seemingly ruling out any further legislation.3 God has spoken: All that remains is to obey.
This leads directly to the second problem: If the Law is invested with God’s authority, how can it ever be amended? It would appear that the only avenue for amendment must be some new revelation, wherein God Himself would announce laws supplanting His previous decrees.4 If such a possibility is granted, no complicated doctrine would be needed to account for it; all we should require would be an effective “principle of recognition,” whereby valid new revelations could be identified.
The Jewish tradition of religious law rules out, however, any divine intervention subsequent to the initial revelation. A classic talmudic story relates Rabbi Eliezer’s attempt to have his legal teachings prevail against the majority in the rabbis’ asssembly, by calling on various miraculous signs and, finally, on a voice from heaven:
Then Rabbi Eliezer appealed to heaven, and a heavenly voice said: “What have you against Rabbi Eliezer? The law is as he says.” Rabbi Joshua, however, replied: “It is written in Scripture, ‘it [i.e., the Torah] is not in heaven!’ (Deuteronomy 30:12).” What does this mean? Rabbi Yirmiya explained: “The Torah has been given on Mount Sinai, so we no longer pay attention to heavenly voices; for on Mount Sinai You have already written into the Torah to decide according to the majority.”
[Some years later] Rabbi Nathan met Elijah, the prophet,5 and asked him: “What did the Holy One, blessed be He, do at that moment?” Elijah replied: “God smiled and said: ‘My children have won against me, my children have won.’”6 (Baba Metzia, 59b)
Note that Rabbi Joshua raises no doubt as to the authenticity of the heavenly voice. Indeed, the very force of his retort lies in its being a protest against God’s illicit response to the request for divine intervention. And the Talmud, by adding that God smilingly accepted this rebuke from His “children,” suggests that God happily acquiesced in His exclusion from any determination of the law beyond the initial revelation.7 This would seem to preclude any amendments to scriptural law, leaving room only for interpretation. Whether this is done by judges deciding individual cases or by legal scholars seeking to formulate principles for existing or future decisions, such interpretation is by definition undertaken with fidelity to the given Law. Traditional interpretations might be questioned and sometimes overturned;8 with respect to the initially received Law, however, not only amendment but even the repeal of specific laws seems impossible.
Admittedly, the Sages did hold that they were permitted—and sometimes even required—to override biblical law in the light of various exigencies, in order to meet “the needs of the hour.”9 The measures legitimized in such terms might be truly temporary, but might equally be proclaimed for a long duration—perhaps indefinitely. But even then, the rationale is more like that of emergency executive powers than like that of constitutional amendment. The authoritative law itself is never changed but merely suspended, implying continued discomfort—at least on the cognitive level.
In terms of the mandated behavior, changes justified in this manner are very like amendments, and their examination is surely relevant to our present pursuit.10 The actual incidence of such cases is, however, naturally not very high; and they do not constitute the main bulk of rabbinic amendments of biblical law, most of which are achieved by means of halakhic Midrash.
Understanding of this entire issue in Jewish law is confounded by the fact that Midrash usually has the external trappings of interpretation; we are faced with myriad legal pronouncements, which—by their formal appearances, at least—claim the authority of Scripture. Moreover, numerous rulings and renditions found in the midrashic collections are indeed nothing more than straightforward legal interpretation. However, many rabbinic implementations of scriptural law severely stretch the notion of “interpretation,” to the point that it becomes implausible to view them as mere applications of existing law. Without a conceptual framework for distinguishing among the various types of rabbinic legal commentary on Scripture, progress cannot be made toward defining some segment of the Halakha as a “constitution,” nor toward an examination of its mode of amendment.
Assuming that midrashic literature is for many readers unfamiliar, I shall begin with two brief examples. These have been chosen as samples of the more radical sort of halakhic Midrash, that which involves redefinition rather than plausible interpretation. Having thus illustrated the nature of the phenomenon, I shall proceed to describe two rival accounts of it in medieval teaching. A Maimonidean perspective will then serve to define that part of the Halakha that is akin to a constitution. However, parting company with Maimonides, I will analyze the manner in which this part itself can undergo fundamental changes amounting to amendments, as illustrated in our two examples. Drawing directly on some reflections of the Sages regarding the nature of the midrashic enterprise, I shall finally offer a rationale for halakhic amendment in terms of human control of scriptural meaning.
Biblical law places severe limitations on the economic and military power of the state. It enjoins the king not to accumulate many horses or much gold and silver—two main elements of military power:
Only he shall not multiply horses to himself
- - - neither shall he greatly multiply to himself
silver and gold. (Deuteronomy 17:16–17)11
The point of these prohibitions is to preserve reliance on God, preventing what is perceived as the hubris of self-sufficiency.12 This is clearly revealed in the prophetic denunciation of acquiring horses:
Ha!
Those who go down to Egypt for help
and rely on upon horses!
They have put their trust in abundance of chariots,
In vast numbers of riders,
And they have not turned to the Holy One of Israel,
They have not sought the Lord. (Isaiah 31:1)
Similarly, when Gideon has an army of thirty-two thousand, God demands that their number be greatly reduced before they may go to battle with divine blessing: “The Lord said to Gideon: ‘You have too many troops with you for me to deliver Midian into their hands; Israel might claim for themselves the glory due to me, thinking, “Our own hand has brought us victory’” (Judges 7:2). Most of the army is encouraged to leave, but ten thousand remain; God declares this number also to be too great, and is satisfied only when Gideon remains with a mere three hundred soldiers (7:3–8). In the military lore of modern Israel, this story is told as a model of guerrilla tactics: Against a numerically superior army, a small mobile force—capable of surprise attack—is to be preferred. But this secular Midrash is contrary both to the original sense of the story and to the humbling purpose of the law in Deuteronomy.
Rabbinic Midrash radically changes this law, by introducing a distinction between the military and financial power of the state on the one hand, and the king’s personal holdings on the other hand:
Only he shall not multiply horses to himself: One might think that he also may not multiply horses for his chariots and for his horsemen; therefore the verse says, to himself—to himself he may not multiply them, but he may multiply them for his chariots and his horsemen.
neither shall he greatly multiply to himself silver and gold: One might think that he may not multiply them even for the purpose of maintaining an army; therefore the verse says, to himself—for himself he may not multiply them, but he may multiply them to maintain the army. (Sifre Deuteronomy 158–59)13
The biblical concern over amassing power is first explicitly spelled out, then rejected; it is only personal aggrandizement that remains prohibited.
Is this an instance of legal interpretation? The rabbinic comment has the logical form of a qualification: Yes, horses and gold and silver are prohibited, but only in certain circumstances—or rather, only when they are accumulated for particular purposes. Moreover, the qualification is grounded in a specific word, the Hebrew lo (“to himself”) tagged onto the verb denoting the prohibited accumulation. Yet even disregarding the unequivocal evidence from the wider biblical context, the midrashic “interpretation” here is patently forced.
The language of the Hebrew original is totally unremarkable, warranting no restrictive application whatsoever. In terms of semantics, the extra word lo could hardly have been omitted, since (unlike the English accumulate) the Hebrew verb standing apart has a primary transitive sense, that is, causing others to have (or to be) many (the old translation, quoted above, conveys this with its literal multiply). And in terms of usage, the identification of state resources as the king’s own was entirely natural in the Sages’ day no less than in the biblical setting.
Because there is some subjective element in any judgment of meaning, I suppose that someone might nevertheless insist that the Midrash here constitutes a plausible interpretation. Anyone who studies the midrashic corpus,14 however, will become quickly convinced that forced or arbitrary renditions are extremely common—a fact acknowledged not only by modern critical scholarship, but also by medieval commentators as well as by the Sages themselves (see below, “Rabbinic Amendment: The Molding of Meaning”). For the sake of the present discussion, let us illustrate this by citing one more example.
Biblical law expressly prohibits garnering any crops in the sanctified Seventh Year: Its yield is to be consumed directly from the field, sharing with the landless, with domestic animals, and with wild beasts alike:
Six years you may sow your field and six years may you prune your vineyard and gather in the yield. But in the seventh year the land shall have a sabbath of complete rest, a sabbath of the Lord: you shall not sow your field or prune your vineyard. You shall not reap the aftergrowth of your harvest or gather the grapes of your untrimmed vines; it shall be a year of complete rest for the land. But you may eat whatever the land during its sabbath will produce—you, your male and female slaves, the hired and bound laborers who live with you, and the cattle and the beasts in your land may eat all its yield. (Leviticus 25:3–7)
The midrashic rendition of this law dismantles the verses’ syntax in a striking (though not uncharacteristic) manner:
The cattle and the beasts—What does this come to teach us? If the beast which is not kept by you may eat, surely the cattle, which is kept by you, may eat!—If it had read so [mentioning the beasts alone], I would have thought that one may gather in for the cattle to eat without a [time] limit. The verse thus mentions cattle and beast together: as long as the beast [can] eat in the field, the cattle [may] eat at home; once it has become unavailable to the beast in the field, one must make it unavailable to the beast at home. (Sifra B’har Perek 1:8)15
Scripture’s unambiguous demand for a year of classless sharing is canceled: One may gather the crop into storage, effectively barring access to the landless and the beasts alike. The initial prohibition is replaced by a much milder demand. An identical midrashic move is applied to the verse that expresses (concerning the parallel law of the jubilee year [Leviticus 1:12]) the explicit demand of eating “direct from the field”: “You may only eat the growth direct from the field—As long as you [can] eat from the field, you [may] eat at home; once it has become unavailable in the field, make it unavailable at home” (Sifra B’har Perek 3:3).
One must merely remove from storage those reserves remaining after the expiration of a certain phase, defined as “as long as it [some of the crop] is still available in the field.” Examination of cognate passages reveals the full scope of this extension; it refers not to the yield of one’s individual field, but to that of an entire region: As long as any specimen of some kind of crop is yet ripening and becoming available to the beasts somewhere, the stores everywhere may be maintained.16
Some of the clearest Rabbinic accounts of such radical reinterpretations were formulated in response to the early medieval challenge of the Kara’ite movement. The Kara’ites, not unlike latter-day Protestants, denied the validity of rabbinic Midrash and demanded faithfulness to the ostensibly plain meaning of the biblical text.
A classic statement of the rabbinic account is found in the Epistle of R. Sherira Ga’on.17 According to him, the primary authority for the rabbinic version of the Law lies not in its scriptural derivation, but rather directly in revelation—to which he ascribes an enormously expanded scope. R. Sherira’s redescription of revelation draws on the traditional notion of a “double Torah”: the “written Torah,” which is canonized Scripture, and the “oral Torah,” which refers to the body of rabbinic teachings.18 This traditional concept of “double Torah” is taken to signify a two-pronged revelation: Along with the core text, a vast complementary body of (oral) instruction was also revealed, equally invested with God’s authority.
R. Sherira’s approach makes it possible to see the midrashic commentaries as a pious endeavor aimed at harmonization, rather than as an attempt to ground legal conclusions in dubious “interpretations” of the biblical text. Having received two bodies of revealed law, the Sages strove to bring them into line with each other. Once one is prepared to accept the “oral Torah” as revealed divine Law in its own right, the motivation for such an effort at harmonization seems quite understandable; though the purpose of the often contrary wording of the “written Torah” then remains something of a (divine) mystery.
Needless to say, this view offers us little help in our quest for a segment of Halakha that could be deemed a constitution, much less for any possibility of amending the divine Law. Indeed, R. Sherira’s system appears to rule out not only constitutional amendment, but even routine legal change: All details of (talmudic) Halakha are embedded in the “double revelation,” frozen in holy stasis.
Whatever the value of R. Sherira’s view in terms of Jewish dogmatics, however, it is patently unhistorical; in fact, rabbinic law shows much evidence of development and adaptation. And as a hermeneutic approach, it involves a rather strained reading of the midrashic literature, which is occupied through and through with relating laws to the biblical text. It is not enough to posit an (understandable) motive to harmonize; the method of producing the desired harmony—the very substance of Midrash—must itself be understood. But instead of explaining what the Sages had thought they were doing with Scripture, R. Sherira argues, in effect, that their enterprise of relating legal teachings (and legal arguments) to the text is nothing but a chimera: The entire body of detailed laws was revealed independently.
As we will presently see, this image is not consistent with several statements made by the Sages themselves regarding their activity. An alternative position, closer at once to the Sages’ own approach19 and to the conceptual aims in this essay, was developed in Maimonides’ polemic against R. Sherira’s teachings.
Maimonides readily concedes that important parts of Jewish law are indeed fashioned by human hands. He emphasizes, however, that this by no means detracts from the authority of the laws involved, for the Sages’ mandate to determine continually the details of Torah law was itself established by God. Maimonides distinguishes between a (rather minimal) core revelation that can never be disputed or changed and the remainder of the law, which is rightly traced to rabbinic implementation, and is subject to constant reevaluation.
Because nothing in the received revelation may ever be disputed, Maimonides offers a striking retrospective criterion for determining its scope: Any law about which we find record of (legitimate) disagreement is proven not to have been part of the core revelation! It is worth noting that the criterion is meant to work one way only: Unanimous acceptance is no proof of divine origin.
This Maimonidean view facilitates a plausible answer to the first of our conceptual questions. The core revelation functions like a constitution, setting the parameters for rabbinic legislation. Legal change is easily accounted for with respect to most of the halakhic corpus. The authority of the core “constitution” is, however, held to be absolute: Any change or amendment of the revealed Torah is expressly ruled out—even if authored by God Himself.
In depicting this revealed core (“constitution”), no part of which may be expressly repealed or changed, Maimonides here deemphasizes the manner in which this core itself can be altered.20 But when describing the Sages’ mode of deriving law from Scripture, he does not employ a verb denoting “interpretation” (if indeed there is any verb that means this unambiguously in premodern Hebrew). He merely refers explicitly to the midrashic mode of exposition—which frequently involves the phenomenon illustrated in our examples: namely, the very free license that rabbinic explication takes with respect to the plain meaning of biblical law. Elsewhere, Maimonides himself candidly points to discrepancies between some laws’ plain meaning in the biblical text (which reflects God’s initial legislative intent) on the one hand, and those laws’ halakhic rendition, on the other hand.21
In fact, many of the Sages themselves were quite conscious of these discrepancies, talking of them with a sense of achievement rather than discomfort. In an oft-quoted legend, R. Yehudah (in the name of Rav) tells of a visit paid by Moses to the academy of Rabbi ’Akiva, the great hero of bold midrashic innovations:
When Moses climbed the mountain he found the Holy One, blessed be He, sitting there and fashioning little crowns for the letters. Then he said to Him: Lord of the world, for whose sake are you doing that? He replied: there is a man who will come to be after many generations, called ’Akiva ben Joseph; he will one day derive heaps and heaps of doctrines concerning every little hook. Then he said before Him: Lord of the world, show him to me. He replied: turn around. Then he turned around and sat behind the eighth row, but he did not understand their conversation and was dismayed. When ’Akiva came to a point about which his students asked him how he knew, he replied to them that this was a doctrine given to Moses on Sinai. Then Moses was calmed— (T.B., Menahot 29b)22
The very sanctification of the text became a fountainhead for great creativity. Not one word of the divine Torah could be changed, but the meaning of its words was radically subject to rabbinic determination. Should such radical reinterpretation be classified as “amendment”? Before attempting to answer, let us see one further reflection of the way the Sages viewed the nature of their enterprise; the text is presented as an answer to a person denying the authority of the Mishnah:
Both Scripture and Mishnah are the words of God. What, then, is the difference between Scripture and Mishnah? This can be learned from the parable of a king who had two dear servants. He gave to each a measure of wheat and a bundle of flax. So what did the clever one do? He took the flax and wove it into a cloth, and he took the wheat and made it into flower; he sieved and milled it, kneaded it and baked it. Then he arranged it on the table, spread the cloth over it and put it aside to await the king’s arrival. As for the foolish one, he did nothing at all. Eventually the king came into his house and said to them, “My sons, bring me what I gave you.” The one brought out the bread upon the table, with the cloth spread over it; and the other brought out the wheat in a basket, with the bundle of flax on top of it. Oh, the shame of it! Oh, the disgrace! Now, you must admit which of them would be the more favored—he who brought out the table with the bread upon it!
Thus when the Holy One, blessed be He, gave the Torah to Israel, what he gave them was wheat to be made into flower, and flax to be made into cloth. (Seder Eliyyahu Zuta, chap. 2)23
The metaphor is quite striking: That which was received from God was given as raw material, to be worked and made into something useful. The opposite attitude, that of slavishly preserving the divine gift of Torah in its original form, is explicitly caricatured.
This framework facilitates an intelligible account of the working of Midrash, such as depicted above in our two examples. Rendering the word lo (“to himself”) as embodying a far-reaching qualification, subverting in effect the plain intent of the biblical law, is not meant to pose as a plausible “interpretation.” Rather, by infusing this word with an artificial significance, the Sages are recasting the entire passage, making wheat into bread and flax into cloth: transforming utopian vision into realistic law.
I do not mean to imply that this was the only theological model by which the authors of Midrash understood their own enterprise. There is no reason to assume that one uniform understanding was shared by all of the Sages; other sources can support a view like that of R. Sherira. Indeed, the first of the two texts cited here (the story of Moses on the mountain) might suggest an alternative model, that of deciphering a code: R. ’Akiva’s midrashic expositions astonished Moses, but had they not been foreseen by God?
Yet the image of treating the text as raw material seems best suited for making sense of the numerous instances of Midrash represented by our second example, which involves not mere alteration in the meaning of words but outright violence to syntactic strings. “You may eat from the field” is rendered, in effect, “You may eat [from stores at home, as long as some produce is available] from the field.” The phrase “from the field” is commandeered into a sort of symbolic service, made to stand for a time span. In the previous example, the Sages redefined a crucial word, and were thus able to elegantly alter the meaning of the passage and the scope of the law. Here their work is textually less elegant; this emphasizes more clearly the drastic legal shift achieved.
If the term interpretation is reserved for renditions constrained by the text’s plain meaning, then Midrash is surely not interpretation; however, even amendment seems too mild a term for describing the midrashic freedom celebrated by the Sages. In (modern) constitutional amendment, alteration of a legal norm involves changing the constitution’s text; in order to override the text’s authority, a formal procedure is required for an appeal to the sovereign people.24 In rabbinic Judaism, however, there is no authority that can override the absolute commitment to the initial revelation. The text is eternally fixed; but its meaning is ultimately fluid. Paradoxically, the very supreme authority carried by the revealed “constitution” seems to make the control of its (legally binding) meaning into a vehicle for radical change.25
1 Thus the title of this volume and the emphasis of Sanford Levinson’s introductory discussion.
2 This distinction between interpretation and amendment is, of course, the core of Sanford Levinson’s contribution to this volume (See Chapter 2).
3 This indeed seems to be a consistent assumption in biblical Israel. In sharp contrast to other monarchs in the ancient Near East, the Israelite king was not a promulgator of laws. See M. Noth, The Laws in the Pentateuch (London: SCM Press, 1984), p. 14.
4 Regarding divine amendments reported expressly in the Bible, see David Daube, “Jehovah the Good,” S’vara 1, no. 1 (1990): 17–23. Many more changes, however, are, as it were, “unadmitted.” See M. Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Clarendon Press, 1985), and Michael Walzer, “The Legal Codes of Ancient Israel,” Yale Journal of Law and the Humanities 4 (1992): 335–49.
5 Elijah, who, according to the Bible, ascended to heaven alive, is portrayed in Jewish legend as a perennial contact between heaven and earth.
6 Translation adapted from that offered in Walter Kaufmann, Critique of Religion and Philosophy (New York: Harper, 1958), p. 239.
7 This doctrine has further talmudic support (see, e.g., T.B. Temura 16a), but, as is evident even from the story mentioned in the text, it was not universally shared among the Sages. For a historical analysis, see Ephriam E. Urbach, “Matay Paska ha-Nevu’a” (“When did Prophecy Cease?”), in The World of the Sages (Hebrew)(Jerusalem: Magnes Press, 1988), pp. 9–49. In medieval writing, the doctrine was most consistently emphasized by Maimonides; see Maimonides’ Introduction to the Talmud, trans. Z. Lampel (New York: Judaica Press, 1987), pp. 58–63. (This translation should not, however, be heavily relied on, because it was made from an obsolete Hebrew version instead of from the original Arabic, which is extant in Maimonides’ own handwriting.)
8 On this kind of legal innovation, see Joel Roth, The Halackhic Process: A Systematic Analysis. (New York: Jewish Theological Seminary, 1986), pp. 352ff.
9 See T.B. Sanhedrin, and the systematic exposition by Hanina Ben Manahem, Judicial Deviation in Talmudic Law: Governed by Men, not by Rules (New York: Harwood, 1991).
10 See, for a very preliminary discussion of such suspensions, Sanford Levinson, “On the Notion of Amendment,” S’vara 1, no. 1 (1990): 25–31.
11 Generally, I have quoted the new Jewish Publication Society (JPS) translation (Philadelphia, 1978). The present quotation, however, is from the older 1916 JPS translation, which by virtue of its literal rendition makes it possible to follow the Midrash.
12 The third prohibition in the same paragraph, forbidding the king from taking many wives, is equally designed to limit his political options, since diplomatic marriages were a major tool of forging alliances. The nature of such marriages, and of the inroads they entailed against the purist cultural isolationism preached by the prophets, is reflected in the critical stories about Solomon (1 Kings 3–11, especially 10:14–11:4); indeed, these stories and the set of prohibitions in Deuteronomy share a common perspective. See generally M. Weinfield, Deuteronomy and the Deuteronomic School (Oxford: Clarendon Press, 1972), especially p. 281, n. 3.
13 From the translation by R. Hammer, Sifre: A Tannaitic Commentary on the Book of Deuteronomy (New Haven: Yale University Press, 1986), pp. 192–93.
14 Two central works have been translated into English. There is a good Hebrew-English edition of the Mekhilta—The Midrash on Exodus (Mekilta de-Rabbi Ishmael), trans. J. Z. Lauterbach (Philadelphia: Jewish Publication Society, 1961)—and a more recent, superb English edition of the Sifre on Deuteronomy (see n. 13, above).
15 This section, as well as the following citation from Sifra, is my own translation.
16 See Sifra B’har Perek 3:5, and Mishnah Shevi’it 9:2–5, where the definition of “the same crop” is also extended to include, minimally, different varieties of the same plant—if not whole classes of produce lumped together. On other rabbinic innovations in the laws pertaining to the Seventh Year, see Zvi M. Zohar, “The Consumption of Sabbatical Year Produce in Biblical and Rabbinic Literature,” in Harvey E. Goldberg, ed., Judaism Viewed from Within and from Without: Anthropological Studies (Albany: State University of New York Press, 1987), pp. 75–103.
17 Rav Sherira’s Epistle was published in English as The Iggeres of Rav Sherira Gaon, trans. and ann. N. D. Ravinowich (Jerusalem, 1988); cf. in particular pp. 20, 40.
18 The notion of “oral Torah” should not be confused with the Greek idea of an “unwritten law.” The Greek term denotes a natural or divine Law that is independent of, and superior to, the “written law”—i.e., the positive law enacted by human legislators—and can serve to criticize it. The rabbinic “oral Torah,” in contrast, is complementary to Scripture; it is said to have been conveyed orally at first, but even when put into writing, it did not become “written” in the canonical sense reserved for Scripture.
19 For a critical discussion of this approach, and of the relation of Midrash to the laws it argues for, see David Weiss Halivni, Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law (Cambridge, Mass.: Harvard University Press, 1986).
20 In fact, Maimonides’ application of this criterion is somewhat doctrinaire; several laws that he lists as harking back to Sinai can be shown to have been the subject of early disputes.
21 See Moses Maimonides, Guide of the Perplexed, trans. S. Pines (Chicago: University of Chicago Press, 1963), pt. 3, sec. 41, pp. 558, 567.
22 The translation here mostly follows Walter Kaufmann, who quotes this passage in a discussion of “Judaism and Truth” in Critique of Religion and Philosophy (New York: Harper, 1958), pp. 193–94. The word I give here as derive was rendered by Kaufmann “present”; the original is a verb constructed from “d.r.sh.,” the same root as for Midrash.
23 Translation adapted from that offered by Zohar, “The Consumption of Sabbatical Year Produce,” p. 103, n. 2.
24 Such an alteration is thus formally recognized as more fundamental than ordinary legal change, which, leaving the constitution intact, remains bound to its authority.
25 That rabbinic “interpretation” is unconstrained by the language of Scripture does not necessarily imply that there were no other constraints. These could be substantial, such as notions about God’s character, entailing constraints on what might be attributed to Him (I owe this point to Jeff Stout), or social, that is, the limits of what the community will accept; see Mishna Horayot 1:3, 5.