Matot 5775 – Necessity of Continuing Legal Interpretation

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Necessity of Continuing Legal Interpretation

Matot 5775 – Combined Service

Rabbi Steven Morgen, Congregation Beth Yeshurun, July 18, 2015

  1. Introduction: A&M Produce v. FMC 135 Cal. App. 3d, 473 (1982)

Tomato farmer buys tomato packing equipment from sales rep who visits his farm and determines the types of equipment he will need to adequately prepare his crops to be sold to the market. The equipment fails to perform. But contract had disclaimers of warranty complying with the requirements under UCC, including any implied warranties of merchantability or fitness for a particular purpose – in bold face and in type size complying with UCC code. Should the farmer be able to sue the manufacturer for his losses? Unconscionability doctrine – but can it apply in this case with two businesses (not individual vs. business), etc.?

  1. Authority of Judges to do interpretation – necessary for the vitality and fairness of any legal system. But it is potentially dangerous – everybody (let alone every lawyer or judge) has different opinions about how a law should be interpreted.Who should be making these momentous decisions? That’s why Supreme Court nominees have traditionally faced close scrutiny by President as well as by the Senate. A Supreme Court nominee might be a highly skilled lawyer and judge, unquestionably a fine legal mind. But people still want to know “does he have the wisdom to interpret the law fairly, to weave between the conflicting rights and values that exist in our society today, and to know when to forge new interpretations and when to accept existing interpretations of our Constitution and laws.” It is a very awesome responsibility.
  2. Jewish law is very similar:
  3. Matot begins on Numbers 30:2 – not 30:1 – why? [sources from Rabbi Michael Graetzdavar Torah]
  4. Num. 28:1-2 – tell all Israelites (Jewish calendar). Num. 30:1 “toldall Israelites” again, concludes this section – bracket construction indicating the end of this section.
  5. Num. 30:2 “told the heads of the Israelite tribes” – begins new section about vows. But why only the “heads of the tribes”? Because this is a very complicated area of law and need to leave it to experts to interpret it. (SifreiBamidbar152 – R. Ishmael, SifraEmor 17:12 – Ben Azzai, RambanNumbers 30:1)
  6. Mishnah Haggigah 1:8 “the [laws of] annulling vows ‘float in the air’ and have nothing [in the Torah] on which they are based.” – The Torah allows for annulling vows only in specific cases (a minor or a married woman). Rabbis found ways for people to annul vows in other situations when they were no longer able (or willing) to fulfill them. Finding a loophole usually involved establishing that the person who made the vow was unaware at that time of certain facts and circumstances that – had he known them – he never would have made the vow in the first place.
  7. Talmud of course backtracks and tries mightily to establish a Torah basis for the laws of annulling vows. (Haggigah 10a ff, Nedarim 78a) Shmuel says it is based on “he shall not break his pledge.” – He can’t, but a judge can break it for him. Too dangerous to let people know how to break vows because then they will never keep their promises.
  8. Do we care what the Founding Fathers thought when wrote Constitution and Bill of Rights? Yes, but only to an extent. Consider famous story of Moses in Rabbi Akiba’s bet Midrash. Society and laws had changed over the 1400 years since time of Moses. Similarly, think of all the cultural changes our society has gone through in past 200 years: cars, planes, phones, email, space flight, suicide bombers,religious diversity of the country. These change in our society have profound impact on how we understand ideas of “free speech” and “freedom of religion.”The Founding Fathers would be just as bewildered as Moses in Akiba’s schoolhouse if they sat and listened to arguments before the Supreme Court today.
  9. The Talmud teaches us that “if Torah had been fixed, it would not have leg to stand on. [It would have been unstable and would soon topple over.] That’s why Torah says ‘God spoke to Moses” [God didn’t carve it all into stone. He left much of it oral so it is more flexible]. Moses asked to know what final outcome of law would be in each case, but God only answered “follow the majority. When majority says it is permitted, it is permitted. When they say it is forbidden it is forbidden. The law can be interpreted with 49 points in favor of one interpretation, and 49 points in favor of another interpretation.”(Cohen, Everyman’s Talmud, p.148, citing Sanhedrin 22a) (Cf. “Go to the judges of your day” Deut. 17:9. Don’t ask how come we don’t have a Moses today. The judges of your day are the arbiters of the law. (Cohen, p.148.)Needed this flexibility to face a Judaism without a Temple. The Sadduccees, who denied the Oral Torah’s existence, and whose power base rested on the Temple service, disappeared. It was only because of flexibility of Oral Torah that we are around today.
  10. Conclusion: Any legal system needs to have a mechanism to allow for change and development or it will soon become irrelevant for the people it tries to serve. The mechanism must rely on judges who are skilled in understanding and interpreting the law – would you want your mailman to pull your teeth or fill a cavity? Would you want an airplane pilot to file your income taxes? Obviously you need qualified judges to interpret the law, and qualified scholars of Jewish law – rabbis – to interpret Halakhah.) But the mechanism is nevertheless potentially dangerous. One who interprets too liberally, who changes the law too much, will cause uncertainty, unpredictability, and upheaval in the system; one who interprets too conservatively, will end up ossifying the law into a brittle and unhelpful mechanical process that will not address the real needs of the society. The rabbis were able to thread the needle and preserve Jewish identity, culture, and allegiance to our Creator and Redeemer, the Kadosh Barukh Hu.See Cohen p.158.