Page 13 - Judaic Logic
P. 13


It should be noted that, although written laws would seem more reliable than oral
laws, nevertheless, some oral laws (for instance, the laws defining Sabbath observance) are
considered as equal in force to written laws. Such ‘as-if written’ oral laws are called
deoraita, in distinction from oral laws which are regarded as based on Rabbinic authority,
called derabbanan. This distinction plays an important role in Halakhic decision-making,
in the event of doubts concerning the tenor of a law or the facts of a case . A similar
distinction is made with reference to inferences from Scripture, those with mere Rabbinic
force being classed as asmakhta .

What concerns us, in the present study, are the thought-processes which have been used to
construct the Halakhah. This issue has several levels. The simplest is an uncritical description of the
ways Jewish law is derived from the first principles claimed by Jewish tradition as having been
given in the Sinai Revelation, in writing or orally. At a more advanced stage, we will want to
determine to what extent these thought-processes, or methods of ‘derivation’, have been truly
logical. And ultimately, we will have to scrutinize more carefully the bases of the ‘first principles’
themselves - which implies an investigation of hidden or unexplicited thought-processes, which in
turn must be assessed from a purely logical point of view.

Let us now look more closely at the course of events, as taught within Judaism. The
Torah, written and oral, is supreme, not open to doubt or review. Some aspects of the oral
Torah make their appearance in the Nakh, if only incidentally within stories. Next in
importance comes the Mishnah, which is the condensed essence of Jewish oral tradition, as
it stood at a specific point in time. The Mishnah faithfully reports, not only legal positions
generally agreed on by the Rabbis of the time and earlier, but also where they disagree,
their points of controversy. The authority of the Rabbis stemmed from the Torah itself; for
instance, Deuteronomy 17:8-13 (emphasis added):

If there arise a matter too hard for thee in judgment (...); then shalt thou
arise and get thee up, unto the place which the Lord thy God shall choose (...),
unto the Levitical priests, and unto the judge that shall be in those days; and
thou shalt inquire; and they shall declare unto thee the sentence of judgment
(...); and thou shalt observe to do according to all that they shall teach thee.

The religious authorities were, first of all, the trustees of the oral transmission
(many of these people, in the long line since Moses, are identified by name ). And
secondly, it was foreseen that there would be gaps in knowledge, or changing
circumstances, which would require wise and considered judgment by competent and
recognized spiritual leaders .
The decisions set down in the Mishnah, once it was closed, became binding for all
future generations, and thus acquired the status of first principles, like the Scriptures, not

See Lewittes, p. 91. But note well that it is the Rabbis themselves who tell us which oral
laws are deoraita and which are derabbanan; there is no way to independently audit their
pronouncements in this respect, since by definition they refer to oral and not to written laws.
See Lewittes pp. 33, 57. This presumably refers to non-deductive inferences, since purely
deductive inferences are logically bound to have Biblical force. But it does not follow that only
deductive inferences have been granted Biblical force.
15 See, for instance, the Pirkei Avot, ch. 1.
Philosophers will note that such innovation implies, to some extent, a delegation of creative
powers by God to the human authorities; for the power to make a legal ruling is nothing less than
the power to create an ethical fact which was previously non-existent.
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