The Torah doesn’t expect people to obey its laws
By Israel Drazin
I encourage everyone to read Professor Berman’s very informative, thought-provoking article “What is This Thing Called Law? The Jewish legal tradition and discontents.” It is found at http://mosaicmagazine.com/essay/2013/12/what-is-this-thing-called-law/
Professor Berman offers readers a well-documented discussion on the origin of law and how jurists used it in ancient times. His review of the ancient development of laws informs us how Torah laws should be understood and used, for Torah laws were instituted during this ancient time and composed in a similar fashion. Among much else, he states that although people today think that only what is written in a code book is law, this was not always the case. The 1750 BCE Code of Hammurabi, for example, was not intended to be the way jurists should adjudicate cases and was never used as such. The Code was merely an anthology of ancient decisions, a kind of history book. The “laws” were “not legislation,” not binding. “A judge would render a decision by drawing on an extensive reservoir of custom and accepted norms. Such decisions would vary from locale to locale.”
Divine Torah laws are no different. Berman gives us examples where when confronted with the need for a judicial decision, none of the biblical figures, tribal leaders, kings, and prophets, decided cases and events as mandated in the Five Books of Moses. While Torah law does not mandate death for theft, for example, Berman shows that King David sentenced a thief to death because of the circumstances of the case he was adjudicating. Boaz, in the biblical book Ruth performed a Levirate Marriage contrary to the procedure in the Pentateuch. While many people think of the Mishnah of 220 CE and the two Talmuds of about 300 and 600 as law codes, they were actually records of deliberations. The first Jewish law code was not composed until Maimonides did so in 1180.
I read Professor Berman saying that Torah laws were brief outlines of good behavior when the laws were written, but they were purposely composed without much detail because the Torah expected Jews to adapt the laws to the conditions of their era. Berman points out, for example, that the Torah does not detail how the Sabbath should be observed or how to honor parents. Even Moses changed many laws contained in the first four books of the Five Books of Moses just prior to the Israelite entry into Canaan. These are recorded in Deuteronomy. He did so because the Israelites were now leaving a rural life in a single community and were entering urban tribal conditions where they would no longer be living close together. Berman reminds us that life changes, conditions change, and so too the application of laws must change.
Besides showing us how Torah laws were altered to meet the needs of later times and that these modifications were not codified, Berman explains why beginning in the twelfth century some Jews such as Maimonides and Joseph Caro felt there was a need for a code book and why other scholars felt that they made a terrible mistake because they were ossifying Judaism inappropriately. Berman also discusses some conservative views that readers will find interesting and enlightening.
His idea about Torah law has obvious consequences. What is the role, for instance, of tradition? How should people deal with the dictates of their clergy? In discussing the outdated medical treatments of the ancients, Maimonides wrote that people are created with eyes in front of their faces, not in the back, teaching them to look forward and not rely on past traditions, medical or religious. Berman discusses some positive implications and effects his view should have on Judaism today. Whether you agree with him or not, this is a subject that is worth thinking about.