Legislating Judaism

The source of Rabbinic commandments is in Devarim chapter 17, when Moshe decreeds that the Sanhedrin, based at the place “G-d will have chosen,” will declare laws. “You must do as they tell you, carefully following their every decision,” Moshe said.

The Sanhedrin, comprised of top-notch scholars, each of whose knowledge is widely accepted as authoritative along all spectrum of Jewish identification and experience, existed in a time and place in which G-d’s presence was more noticeable. Technically the Sanhedrin lasted several centuries after the destruction of the Temple, with authority traced to the Temple Era.

Since its disbanding, there hasn’t been a universally accepted authority in halacha, beyond certain codes of Jewish law which do not always address modernity — such as the many questions that electricity poses in the observance of Shabbos through the use of refrigerators, crock pots, timers, apps that run the home, etc.

“[Besides this, in general,] you must keep the Torah as they interpret it for you, and follow the laws that they legislate for you. Do not stray to the right or left from the word that they declare to you. If there is any man who rebels and refuses to listen to the priest or other judge who is in charge of serving G-d your L-rd there [as leader of the supreme court], then that man must be put to death, thus ridding yourselves of evil in Israel. When all the people hear about it, they will fear and will not rebel again.” (Devarim 17:11-13, “Living Torah” translation)

This quote raises many questions, two of which I will address now. The first is, Do the “they” of the verse still exist and, if so, is their word always binding? The second is, Who is this rebellious man, and how does his death serve a purpose that isn’t simply an execution?

To the first question, the fact is that different groups of Jews, even within the Orthodox world, would never accept the authority of every rabbinic group that might legislate. While there are certainly many scholars and incredible poskim today, it is hard to argue that too many would fit the criteria of being on the Sanhedrin of yesteryear.

“According to R. Jose b. Ḥalafta, members of the Great Bet Din were required to possess the following qualifications: scholarship, modesty, and popularity among their fellow men (Tosef., Ḥag. ii. 9; Sanh. 88b). According to an interpretation in Sifre, Num. 92 (ed. Friedmann, p. 25b), they had also to be strong and courageous. Only such were eligible, moreover, as had filled three offices of gradually increasing dignity, namely, those of local judge, and member successively of two magistracies at Jerusalem (Jose b. Ḥalafta, l.c.). R. Johanan, a Palestinian amora of the third century, enumerates the qualifications of the members of the Sanhedrin as follows: they must be tall, of imposing appearance, and of advanced age; and they must be learned and must understand foreign languages as well as some of the arts of the necromancer (Sanh. 19a).”

As such, while people can voluntarily pick their own authorities, and while some communal institutions might rule with an air of authority that goes unchallenged (think “kashrut organizations”), no individual rabbi or group of rabbis speaks for all of Judaism.

This fact also makes us wonder what kind of arguments will transpire in the Messianic era over how the Beit Hamikdash will function, whose rule will be law, and which priests will be given full access, while others will be relegated to less prestigious or significant jobs. (Search for “Moshaich’s hat” on the internet to see a sad social commentary on this reality).

To the second question, the individual of which the verse speaks is called in Rabbinic parlance a “zaken mamre” — a rebellious elder who is a scholar, who purposely throws a monkey wrench into the teachings of other scholars, ruling against their rules, subverting their authority, and instructing people to go against their positions.

Haktav V’hakabbalah has a lengthy treatise of what criteria would need to be met in order to actually put this man to death. Suffice it to say, it is not as simple as the Torah seems to depict it. In fact, any kind of death penalty described in the Torah was never easy to actualize, and in contemporary times should be understood more as warning of us of the severity of a crime than of practical steps in how to deal with it.

It is easy to paint a person one disagrees with as “dangerous.” Whether such an appellation applies to one’s opponent is certainly in the eye of the beholder, and when applied to someone who is simply rendering a differing opinion, may be character-assassination.

What does executing the “zaken mamre” then accomplish? In ancient times, and with a Sanhedrin ruling on the case, maybe there is what to be said of a certain order to be followed when there is a central authority. I question the need for execution, however, as I’d like to think the greater society could simply ignore this individual when he is going against everyone else.

In the contemporary sense, however, perhaps one could argue that it demonstrates what a heartless and cruel society can do when it can’t articulate an opposing view in a convincing fashion. If the only way to stifle an opposing view is to shut it down through legislation or through character assassination or execution, perhaps it means that the view everyone would like to see go unchallenged doesn’t stand on its own merits!

In this light, perhaps calling the elderly scholar “rebellious” can be viewed as a cop-out, an easy fix to a problem the community should really have the ability to address in an open and honest fashion.

Some conversations are difficult, but maybe talking is better than simply sentencing a man to death because we can’t deal with what he has to say.