UPROOTING THE SCRIPTURES
Sometimes, the Rabbis were unable to read their teachings into
the Scriptures by any means. So they simply annulled the decrees
of Torah. The most well-known instance of this concerns the "prosbul."
"The prosbul was a deed whereby a creditor transferred his
debts to the Beth din, which were then regarded as though already
collected from the debtor, so that the seventh year did not cancel
them. This was done only if the debtor possessed land."1
The Torah says, "At the end of every seven years you must
cancel debts. This is how it is to be done: Every creditor shall
cancel the loan he has made to his fellow Israelite. He shall
not require payment from his fellow Israelite or brother, because
the LORD's time for canceling debts has been proclaimed....Be
careful not to harbor this wicked thought: 'The seventh year,
the year for canceling debts, is near,' so that you do not show
ill will toward your needy brother and give him nothing. He may
then appeal to the LORD against you, and you will be found guilty
of sin."2
"Hillel instituted the prosbul....A prosbul prevents the
remission of debts (in the Sabbatical year). This is one of the
regulations made by Hillel the Elder. For he saw that people were
unwilling to lend money to one another and disregarded the precept
laid down in the Torah. Beware that there be not a base thought
in thine heart saying, etc. He therefore decided to institute
the prosbul."3
Apparently, in the time of Hillel, poor Israelites were unable
to attain needed loans before the Sabbatical year, because their
better-off brothers were not obeying the Torah, not fearing that
the Lord would find them "guilty of sin." Hillel reasoned
that, because of the people's disobedience, annulling the Torah
would produce a greater good than following it.
Some would agree, others would not, but the critical issue is
the rabbinic claim of authority to annul the Law. Where did Hillel
get the authority to annul this part of Torah?
Hillel was not the only one. Annulling or "uprooting"
a Biblical law is an essential component of the rabbinic system.
Herbert Basser says, "The medieval Tosafists showed how radical
the Rabbis were. For social and political reasons they alleviated
many problems by subtly contravening Biblical law. They only resorted
to such methods if the prohibited act could be made to 'appear
legal'. The Gospels are not altogether wrong in claiming the Pharisees
breached Biblical law by appeal to certain 'traditions' of the
fathers. The Talmud also admits that halacha uprooted some Biblical
laws and the implication is certain that non-Biblical practices
were current in Pharisaic times."4
"In many instances where greater transgressions were to be
prevented, or for the sake of the glory of God, or the honor of
man, certain Mosaic laws were abrogated or temporarily dispensed
with by the Rabbis (Mishnah Ber. ix.5, 54a, 63a; Yoma 69a; compare
also Yeb. 90b)."5
There are numerous other cases recorded and discussed in the Talmud
where this rabbinic authority to "uproot" and overthrow
the Torah is asserted. Here are some examples:
"Cannot the Beth din lay down a condition which would cause
the abrogation of a law of the Torah?At all events it was here
stated, 'He is entitled to be her heir'; but, surely, by Pentateuchal
law it is her father who should here be her legal heir, and yet
it is the husband who is heir in accordance with a Rabbinical
ordinance!
"'He may defile himself for her'. But, surely, by Pentateuchal
law it is her father who may here defile himself for her, and
yet it is the husband who by a Rabbinical law was allowed to defile
himself for her!"6
These examples are followed by a discussion of other cases where
rabbinic law conflicted with that of Torah, so the Rabbis simply
annulled the Torah. "Now, according to Pentateuchal law,
it is here undoubtedly accepted...and yet the Rabbis ruled that
'it is not accepted'."7
"Come and hear: 'Where a man remarried his divorced wife
after she had been married, she and her rival are to perform halizah.'"8
The Torah explicitly forbids a man to remarry his wife after she
has remarried.9 The Rabbis permitted what the Torah forbid, and
then enacted conditions for it.
"When murderers multiplied, the ceremony of breaking a heifer's
neck was discontinued....When adulterers multiplied, the ceremony
of the bitter waters was discontinued..."10
Jonathan Sacks, Chief Rabbi of the British Commonwealth, summed
up some of the different categories that the Rabbis used for annulling
the laws of Scripture: "Another set of concepts, which include
horaat shaah (a temporary decision), le-migdar milta (to improve
a particular matter), laasot seyag la Torah (to create a protective
boundary for the Torah), and eit laasot la-Shem (a time to act
for God), concern the relationship of halakhah to time: specifically
to unusual circumstances. Here policy overrides principle. An
act or rule that could not normally be mandated is permitted on
consequentialist grounds. In exceptional circumstances, the consequences
of temporarily suspending a rule are overwhelmingly more beneficial
within the terms of the halakhic system than those of maintaining
it. In such cases, its temporary suspension may be justified.
These are the cases to which horaat shaah are directed."11
When they deemed it necessary, the Rabbis altered, suspended,
or overruled the Torah. In the principle of keivan, "'...the
sages have the power to uproot something from the Written Law
by reference to a similar category'."12 "[T]he principle
of 'lo plug' is a patent excuse for uprooting."13
The Jewish Encyclopedia defines "Rabbinical Authority"
as "The power or right of deciding the Law, in dubious cases,
or of interpreting, modifying, or amplifying, and occasionally
of abrogating it, as vested in the Rabbis as its teachers and
expounders."14
This power or right belonged to the Rabbis alone. As for anyone
else, even a prophet, who dared to uproot the written Law, "Our
Rabbis taught: If one prophesies so as to eradicate a law of the
Torah, he is liable (to death)...If one prophesies so as to uproot
a law of the Torah, all agree that he is strangled...If one prophesies
to uproot an injunction of the Torah, whether idolatry or any
other precept, he is liable..."15
What then is the source of rabbinic authority to annul the Torah?
"Rab maintains that...the Sages have imparted to their
enactments the same force as that of Pentateuchal laws."16
The Rabbis are the source of their own authority to annul the
Torah. They gave this power to themselves. They gave to their
own laws the same binding power as the laws of Torah. Actually,
they ascribed greater authority to their own laws than to the
laws of Torah, for they claimed that their laws took precedence
over what is written in Torah.17
Baumgarten sums up the Talmudic position: "'Wherever a man
makes a condition which is contrary to what is written in the
Torah, his condition is null and void,' [Kid.19b] but not wherever
a Rabbinic scholar makes such a condition."18 The Rabbis
could establish conditions and practices that contradicted and
even nullified the Torah.
According to the Rabbis, God Himself would obey whatever the Rabbis
decided.
Related to the issue of the inaccurate announcement of the new
moon is the claim that, "Heaven itself yields to the authority
of the earthly court of justice as to the fixing of the calendar
and the festival days."19
In every area of life, one had to be more careful to obey rabbinic
law than to obey Torah. As the Talmud says, "The sages have
applied to their enactments higher restrictions than to those
of the Torah."21 "In truth, it is Rabbinical, but the
Sages made their law even stricter than Scripture."22
"There is greater stringency in respect to the teachings
of the scribes than in respect to the Torah. (Thus,) if one (a
rebellious elder) says, there is no precept of tefillin, so that
a Biblical law may be transgressed, he is exempt. (But if he rules
that the tefillin must contain) five compartments, thus adding
to the words of the Scribes, he is liable [to death]."23
The Rabbis claimed the sanction of Torah for whatever they decreed,
even if it was the uprooting of Torah. "R. Yohanan and R.
Yudan b. R. Simeon [had a dispute over the proper interpretation
of Exod. 34:27]: One of them said, 'If you observe [laws that
are transmitted] orally and if you observe [laws that are transmitted]
in writing, I shall establish a covenant with you. But if not,
I shall not establish a covenant with you.' [According to this
view, the two types of laws are of equal weight.] The other said,
'[My covenant is established with you because of these orally
transmitted words.] [But] if you not only observe that which is
transmitted orally, but also uphold that which is transmitted
in writing, [then in addition to the covenant,] you will receive
a reward. But if not, you will receive no reward.' [According
to this view, the laws transmitted orally are more weighty, because
their observance leads to the establishment of God's covenant.]"24
This was more than the assertion of a markedly different "religious"
system. The Torah governs every aspect of the life of Israel.
By governing the Torah, the Rabbis would govern Israel.
This applied to the most intimate of relationships and to the
most indispensable of activities. "In matrimonial matters
the principle adopted is that, since marriages are, as a rule,
contracted in accordance with the rabbinical statutes, the Rabbis
have the right to annul any marriage which is not in conformity
with their ruling (Yeb.90b). In money matters the Rabbis claimed
the same right of confiscation in cases when their ruling was
disregarded as was exercised by Ezra (see Ezra x.8; Git.36b)."26
The objective was to bring Israel under the rule of the Rabbis.
If the Scriptures stood in the way, the Scriptures had to be uprooted.
"R. Hanina once sat in the presence of R. Jannai when he
stated: The halachah is in agreement with R. Eleazar b. Azariah.
[The Master] said to him, 'Go out, read your Biblical verses outside;
the halachah is not in agreement with R. Eleazar b. Azariah'."27
R. Jannai was being threatened with excommunication. He was being
told, 'If you and your Scriptures are unwilling to submit to the
decision of the Rabbis, then take them and be cut off from Israel.'
Footnotes
1. Kid. 26b, p.126, n.12
2. Dt.15:1-2,9
3. Git. 36a, cf. Shevi'ith X,3; Pe'ah III,6; Git.36b
4. Basser, Herbert, "The Development of the Pharisaic Idea
of Law as a Sacred
Cosmos," JSJ, Vol.XVI, 6/85, no.1, Pp.111-112
5. "Authority, Rabbinical," The Jewish Encyclopedia,
Vol.2, ed. Isidore
Singer, Funk & Wagnalls Co., NY, 1909, P.337
6. Yeb.89b
7. Yeb.90a
8. Yeb.12a
9. Dt.24:1-5
10. Sot.47a
11. Jonathan Sacks, "Creativity and Innovation in Halakhah,"
in Rabbinic
Authority and Personal Autonomy, ed. Moshe Sokol, Jason Aronson
Inc.,
Northvale, NJ, 1992, P.135
12. Tos. to Yev. 89b cited in Basser, P.111, n.23
13. Ibid., cf.Tos. to Babba Mezia 20a shover
14."Authority," P.337
15. Sanh.90a
16. Emphasis added, Ket.84a
17. To a limited degree there are parallels to this in Marbury
v. Madison and
the issue of judicial liberty v. original intent.
18. Baumgarten, J.M., "The Unwritten Law in the Pre-Rabbinic
Period," JSJ,
Vol.III, no.1, 10/72, P22 n5, "on the authority of the sages
to nullify biblical
laws see Tchernowits, I, Pp. 118-123"
19. "Authority," P.337, (Yer. R. H. i. 57b; compare
also Mak.22b)
21. Eruv 77a; Ket 56a
22. Zeb.100b-101a
23. Sanh.88b, Mishnah
24. Talmud of the Land of Israel, Pp.127-128
26. "Authority," P.337
27. Yev. 40a
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(go back)
What Is A Rabbi
Tanakh And Oral Law
The Oral Law As Interpretation
The Historical Development Of Oral Law
A Fence Around The Torah
Talmudic Revisionism
Confronting The Scriptures
Uprooting the Scriptures