The Torah teaches that only divine commandments are everlasting, and it forbids man to add to or take away from them:
Deuteronomy 4:2 - “Do not add to the things which I command you and do not take away from them. Keep the commandments of Yehowah your Elohim which I command you.”
According to the Torah, it is the Sanhedrin which is the "divine police", upholding the law given by God and punishing for its transgression. Somehow, through the historical development of Torah interpretation, the roles have been reversed and today it is God who is supposed to punish for transgression of the laws established by the Sanhedrin.
After listing all of the commandments, 613 of them, and before describing their division into fourteen books, the Rambam says that "there are commandments which were innovated (‘she’nit’had’shu’) after the Torah was given, legislated by the prophets and sages, which spread throughout all of Israel, such as reading Megillat Esther (the Book of Esther), lighting the Hanukkah candles, fasting on the Ninth of Av, guarding the purity of one’s hands (by ritually washing them) and eruv.” According to the Rambam, one must accept and keep all of these commandments because the Torah tells us, “Do not go astray from the thing they shall tell you, not to the right and not to the left” [Deuteronomy 17:9], and that accepting them does not constitute adding to the Torah.
The Rambam, known for his attempt to offer a systematic and harmonized corpus of Torah law, was certainly aware of the fact that this broad interpretation of the commandment, “Do not go astray from the thing they shall tell you, not to the right and not to the left,” empties of any content the commandment, “Do not add to the things which I command you and do not take away from them.” If the “Supreme Court” has the right to invent new commandments which are religiously binding because of the instruction not to go astray in any direction, then exactly what is prohibited by the divine commandment to not add to the Torah?
This is precisely why the Rambam adds the disclaimer that these new promulgations do not represent a transgression of the commandment to not add to the Torah: “And all of these commandments … are not an addition to the Torah.”
Well, at least unlike the others, the Rambam is systematic, honest and consistent enough to be aware of the problem. He also tries to offer an explanation which would make sense from a theoretical and legal point of view, and which would allow these two commandments to coexist:
“So, against what did the Torah warn us when it said, ‘Do not add to it nor reduce from it?’ Against a prophet, who is not entitled to innovate a law and say that the Holy One, blessed be He, commanded him to add this law to the laws of the Torah, or to reduce from one of the six hundred and thirteen laws; but if the [Supreme] court, [headed by] the prophet which was there at that time, added a commandment as a regulation (‘taqanah’), an instruction (‘hora’ah’) or a decree (‘gezerah’), then this does not constitute an addition, because he did not claim that the Holy One, blessed be He, has commanded to make an eruv, or to read the megillah at its appropriate time; and if he were to say such a thing, he would be transgressing the Torah.”
The Rambam defines the borders of the first commandment in such a way that there is some room left for the second commandment to apply: if the Supreme Court adds commandments using its God-given authority, but without ascribing those commandments to God, this is permitted. Only ascribing such man-made commandments to God would represent a transgression of the first commandment.
Rambam's legal theory is always consistent. The only problem is how to reconcile this consistency with the halakhot (laws) of the Rabbis. They did not appear to have any problem instituting a blessing which reads, “Blessed art Thou, Adonay, our God, King of the Universe, who has sanctified us with His commandments and commanded us to ...” make eruv, read megillah, ritually wash our hands, light the Hanukkah or Shabbath candles, etc. What is this, if not ascribing man-made commandments to God?
However, one should not think that there is a better answer that can be afforded from the Talmudic framework, and that the Rambam just could not remember or articulate it. To the best of my knowledge, other experts in halakhah were either unaware of the discrepancy between the broad interpretation of Rabbinical authority and the prohibition of adding to the commandments of Torah, not honest enough to pose the question, or even more manipulative and apologetic than the Rambam.
There are at least two ways to check the relationship between these two commandments in the Torah system:
A. The plain text of the scripture: God Almighty, who gave both these commandments, obviously did not wish for one to abolish the other. The written Torah — even if we are to believe that all its details cannot be understood without an oral tradition — should still make some sense.
B. The recorded traditions from pre-Pharisaic times.
So, let us check using both these methods.
Deuteronomy 17:8 - “If some unusual matter arises for you, in any judicial case (‘la-mishpat’): in capital punishment cases (‘ben dam la-dam’ - between blood and blood), in general civil cases (‘ben din li-din’ - between case and case) and in cases involving physical injury (‘ben neg'a le-neg'a’ - between stroke and stroke), and other matters of dispute within your gates, then you shall arise and go up to the place which YHWH your God shall choose.”
The Biblical instruction opens with the word “if”. It seems that we are not speaking here of the rule, but rather of the exception to the rule. In other words, in most cases, the local courts (‘b’sha'arekha’ - within your gates) will be able to reach a verdict and decide the case. But if they cannot, then the case is brought to the Supreme Court, in a manner similar to the solution offered by Yithro (Jethro) to Moshe in Exodus 18:22.1 Special attention should be paid to the fact that in both places — our passage and the passages containing Yithro’s advice — the Supreme Court decides only in criminal cases which are prosecuted by the government or in civil cases where two or more sides need the court to judge between them. Also, it should be mentioned that the elaboration (“capital punishment cases, general civil cases, cases involving physical injury and other matters of dispute”) is merely an illustration of the principal (“in any judicial case”), and not an exhaustive enumeration of its applications. The crux of the matter, however, is that no new legislation is mentioned here, and that the only authority given to the Supreme Court is to judge existing Torah law in any difficult or unusual case.
Let us continue with verse 9:
Deuteronomy 17:9 - “Go to the Levitical priests and to the judge who is in office in those days. Inquire of them and they will give you the verdict.”
In the modern Western world, there are two main juridical schools: the Continental school and the Anglo-Saxon school.
» The Continental school insists on strict separation of powers: the parliament legislates, but it does not judge; the courts judge, but they do not make laws. The decisions of any court (including the Supreme Court) are relevant only for the issue at hand. In each new case, the sides present their claims as if it were the first time that such a case is being heard. No previous decisions are quoted as proof of how the law should be interpreted. The judges, as well as the parties in the case, do not have any body of reference aside from the letter of the law and the material proofs of the case at hand. Any references to previous decisions ("precedents") of the same or another court are irrelevant.
» In the Anglo-Saxon school, while the laws legislated by the parliament have primacy, they are not the only source of law. The decisions of the courts also have standing as laws — secondary to that of the laws promulgated by the parliament, but binding nonetheless. In this school, decisions of the courts are relevant not just to the case at hand, but to future cases as well. Precedents shape the law.
The question for Torah lovers is, “To which of these two schools, if any, does the Torah belong?” Deuteronomy 17:9 says that litigants should go to the judge which will be in office in those days. In order to better understand the curious nature of this wording, let us consider the question which the Rabbis ask in Sifre, ad loc: “Would one have thought otherwise, that he should go to the judge which does not live in his days?” The Torah does not usually state the obvious; if it adds a few words, it is in order to clarify something that we could not have otherwise understood. The only satisfying answer, to my mind, is that the Torah is teaching us that one does not rely on any court besides the court of his own generation: decisions of the courts of previous generations might be interesting to historians, but as far as God is concerned, He is the God of the living, and the Torah is the Torah of life. Each generation returns to the foundation and has, as its guide, only the Law of God. Each new case is to be judged by this God-given perfect instrument without fossilizing it with some traditional, man-made, supposedly-binding interpretation.2
Deuteronomy 17:10-13 - “ You must act according to the decisions they give you at the place YHWH will choose. Be careful to do everything they instruct you to do.  Act according to whatever they teach you and whatever decisions they give you. Do not turn aside from what they tell you, to the right or to the left.  Anyone who shows contempt for the judge or for the priest who stands ministering there to YHWH your God is to be put to death. You must purge the evil from Israel.  All the people will hear and be afraid, and will not be contemptuous again.”
Careful contextual reading of these verses shows that the commandment to hearken to the verdict of the Supreme Court applies only to those for whom the case was adjudicated and has only to do with the decision for the specific case at hand. There is no implication here of new, general, binding legislation which applies to all of Israel.
Interestingly, in more than a thousand years of Biblical history, we witness practically no extra-pentateuchal legislation. All we see is an invitation to keep the good old Law of Moses. Here and there, some prophet offers a new interpretation of Biblical law. Few new popular customs are recorded, and when they are, it is without even dreaming to imply that they are of divine origin.
It took the Pharisees less than a quarter of the period of recorded Biblical history to make thousands of gezeroth, taqanoth and minhagim, completely fossilizing what was meant to be the living Torah.
What a contrast! In one thousand years, almost nothing; then, in few hundred years from the founding of the Pharisaic party, thousands of new religious laws.
Pharisaic legislative enthusiasm and activism are completely antithetical to the reality described in the Tanakh, whereby the courts judge according to the Torah and the kings make non-religious laws which are binding: not because of some divine commandment, but out of necessity and under the principle of distribution of power.
This section is under construction.
What do we do with Pharisaic statement that a “hakham (wise man, scholar) is preferable to a prophet”, in light of the Pharisaic tradition that in order to become a prophet one must be “hakham (wise), gibor (strong, perhaps in character) and 'ashir (rich, incorruptible, happy with his lot)?” How, then, can a mere hakham be preferable to a person who is hakham, gibor and 'ashir? What is this if not an impudent attempt to undermine the institution of prophecy and an insolent overestimation of one's own role?
The Torah mentions only four judicial cases which occurred during Moshe's leadership:
- The case of the blasphemer [Leviticus 24:10-23]
- The case of the wood gatherer [Numbers 15:32-36]
- The case of Korach [Numbers 16]
- The case of the daughters of Zalafhad [Numbers 27:1-10, Numbers 36]
If there ever was an authority figure who was entitled to judge based on his own understanding of the Law, it was Moshe. However, in all four cases, instead of judging on his own, Moshe asks for divine guidance. In fact, there is not a single case, in the entire Torah, of judging without asking for divine instruction. Why? Because this is the way things are done in a theocracy. In a theocracy, God is the boss. By contrast, the Pharisees used the phrase “lo ba’shamayim he” (it [Torah] is not in Heaven [Deuteronomy 30:12]) as a pretext to stifle the mouth of the Almighty. The verse really says that the Torah is intuitively understandable and doable; it does not say that God "does not have the right" to interfere. (It sounds funny, but this is exactly what the Pharisees are teaching.) We need not wait for divine intervention before following a commandment, but if God does show up and tell us something, then we should hearken to His voice. More than that: when judging, a judge should actively seek out divine instruction. At least, this is the way Moshe understood his function as a judge. Moshe, the very giver of the Torah, still goes and asks his “boss”. In the Talmud (Babylonian Talmud, Bava Metzia 59b), however, even when the “boss” tries to interfere, uninvited, He is told that the Torah is no longer in heaven. What is this, if not usurpation of God? The Talmud says (ad loc), "Ein anu mashgihin be’vat qol." ("We do not pay attention to a divine message.”)
It seems that the Torah is now Pharisaic and no longer divine.
Is it not interesting that the Pharisees constantly neglect and make others neglect the achievements of the Hasmonean dynasty? On Hanukkah, why do they make us concentrate on some strange oil miracle, when it is more than obvious that we should be concentrating on the military efforts and successes of the Hasmoneans? Were the Pharisees afraid of losing their primacy? Were they trying to consolidate power by attempting to obscure the achievements of the righteous Hasmonean kings?
In Biblical Hebrew, the term 'am ha-aretz (“people of the land”) describes notables, aristocrats and landlords. Is it possible that the Pharisees have, on purpose, divorced this phrase from its original meaning, using it as a reference to the uneducated masses, much in the same way that many other revolutionary groups mock the notables of the previous order?
Is it possible that most of the "asher qid’shanu b’mitzwotaw" blessings constitute the cynical use of the liturgy in order to promote the positions of one party: the Pharisaic party? In these blessings, perhaps God's name is used to shock and make a point, somewhat similar to the way that Shabbetai Tzevi pronounced the ineffable name.
It seems that all religious revolutionaries tend to use a similar approach: first they exercise, for a period of time, an exaggerated ascetic morality. (Most people are incapable of doing this themselves and therefore look up to those who are able to do so.) Then, after becoming "holy" in the eyes of the people, they make various revolutionary gestures: they uproot old laws and traditions, institute new ones, and thereby establish their authority in the eyes of the public. This was the way of Jesus, Paul, the Kabbalists, etc.
Could this have been the way of the Pharisees as well?
Are we not taught that any "commandment" which is of pure Rabbinical origin must always be accompanied by the blessing "asher qid’shanu b’mitzwotaw" (“[He] who has sanctified us with his commandments”)?
Netilath yadayim (ritual washing of the hands) was originally commanded to the Kohanim. [Exodus 30:19, Psalms 134:2, Mishne Torah positive commandment #24] Was the claim that we are all commanded to wash our hands a kind of populist democratization of the commandment, or dethronization of the Kohanic aristocracy which was mostly Sadducean?
Le’hadliq ner shel Shabbath (lighting of the Shabbath candles): As is known by all, the Sadducees taught that it is forbidden to use fire on the Shabbath, even if the fire was lit before the Shabbath came in. By instituting the ruling that not only can we use such fire, but that we are commanded to do so and that we should bless over it using the name of God, were not the Pharisees doing battle against the opposition party through this revolutionary regulation?
Tevilath kelim (Ritually washing new dishes): When instituting that one has to immerse all gentile-made utensils in water before using them, were the Pharisees actually trying to make the more aristocratic, learned and worldly Sadducees the object of the segregationist ideas of the Pharisees? Were they not at least trying to paint the Sadducees, in the eyes of the common people, as Hellenist and anti-nationalist cosmopolitans who are not religious enough to partake in the popular segregationist religious mood?
2Thus, the author's answer to the original question is that the Torah belongs to the Continental school.
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