A number of short verses in Parashat Shoftim deal with basic, foundational issues in the development of the Oral Torah and halakhic rulings:
“If a case is too difficult for you to decide, be it a controversy over homicide, civil law, or assault—matters of dispute in your courts—you shall promptly repair to the place that the LORD your God will have chosen, and appear before the levitical priests, or the magistrate in charge at the time, and present your problem. When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that the LORD chose, observing scrupulously all their instructions to you.” (Devarim 17:8-10)
The picture presented here is of a central place of authority where legal decisions are made, located in Jerusalem (“the place that the LORD your God will have chosen”). Whenever a situation arises where the local judges cannot agree, the Torah obligates them to turn to “the levitical priests, or the magistrate in charge at the time” in order to receive clear, unequivocal instructions that will clarify the matter. This decision will be final with no possibility of appeal (so it appears from the language of the verse and from the laws of the “rebellious elder” that follow).
The Sanhedrin was exiled and ultimately disbanded, but this principle is preserved in various forms. Every rabbinic court rules according to the opinion of the majority, based on the principle that in disagreements between a single opinion and a majority, the ruling follows the majority. Other principles were also developed, e.g., in areas of uncertainty, we will be stringent in matters of Torah law and lenient in matter of rabbinic traditions, or that a court cannot void the statements of another court, unless it is greater than it in wisdom and in number. Other principles established models for decision-making, like the Divine Voice that emerged and proclaimed: “Both these and those are the words of the living God. However, the halakha is in accordance with the opinion of Beit Hillel.” The famous story of the oven of akhnai, (a snake – see Berakhot 19a) proved that in matters of halakha we follow the majority, even if it does not represent the Divine truth. Rabban Gamaliel instructed his sons to recite the Shema after midnight when they returned home late from a party – not because he changed his mind, but because that is the opinion of the sages, which should be followed.
At the same time, an opposing collection of principles also developed. This value system emphasized, for example, the importance of following the rulings taught by the local rabbi or one’s own family traditions. These principles teach that despite the need for uniformity and binding law, there exist different approaches to halakhah, with each community establishing its own traditions over the generations. This reality has existed at least since the time of the tanna’im, where we find recorded that Rabbi Yossi haGalilee’s community would eat chicken with milk because he did not believe that the prohibition against milk and meat included fowl. Similarly, we find that on occasion the law was determined to follow the opinion of an individual against the majority, leaving open the possibility that individual opinions retained validity, that they should be recorded and could even be accepted. Beit Shammai and Beit Hillel argued about serious matters, such as the definition of certain forbidden sexual unions, and that each one kept their own version of the law inasmuch as those disagreements were never deciding in a final manner – yet this was not seen as particularly problematic.
Anyone who looks around knows immediately that we do not live within a rigid set of rules. There is almost no issue in halakha that is not in dispute; almost nothing is clearly agreed upon. At first glance it would appear that the fact that Jewish law has branched out in different directions and has become so multifaceted is a process that goes against what is described in Parashat Shoftim. In truth, however, that would be a superficial perspective – halakha remains as it was.
Take, for example, the issue of electricity on Shabbat. With the invention and widespread use of electricity, differences of opinion emerged with how it should be understood leading to a variety of different rulings regarding its permissibility on Shabbat. Over a period of time, the prohibition against active use of electricity became widely accepted, even as new questions arose. Some rabbis permit use of electricity on Yom Tov under specific circumstances, and Rabbi Nahhum Rabinowitz of Ma’aleh Adumim and his students have put forward permissive responsa relating to certain applications of modern electrical usage. The movement is towards multifaceted rulings, followed by a culture of pruning and diluting. In particular, the dynamic is one of coming together towards a commonly accepted decision, followed by new points of contention, as questions and challenges arise anew in every generation.
It is possible to argue that this is exactly what is being described in the above-quoted verses in Parashat Shoftim. The attempt to hear and to know the precise commandments of God comes hand-in-hand with the requirement to accept the ruling of “the magistrate in charge at the time.” All of this comes together with the requirement to examine and study. The decision may not be immediate. It may involve a long-term, inter-generational process of decision-making followed by acceptance, followed by renewed controversy and then recurrence of the entire process. The various tools in the hands of the rabbinic decisors allow them to balance the different needs and demands that are always standing in the background.
A close reading of the language that appears in Parashat Shoftim presents us with two concepts that apply to rendering Jewish law – davar and mishpat. In his Arvei Nahal, Rabbi David Shlomo Eibeshutz (18th century Poland) notes the difference between these two words and writes that the Oral Torah is considered “the attribute of night” and that night was created from it (Drush 2, Parashat Shoftim). The Midrash Tanhuma writes that when Moshe was on Mount Sinai receiving the Torah, he knew when it was day and when it was night because God taught him the Written Torah during the day and the Oral Torah at night. This represents the difference between a reality that remains static and one that is in constant situation of change and renewal – between “mishpat” and “davar.” In the evening prayer we say asher be-devaro ma’ariv aravim – “who by His word brings on evenings.” A “word” is neither written nor inscribed in stone. It remains undefined, like nighttime, which cannot be determined with certainty. It cannot be seen clearly; it is enveloped with questions. “Mishpat,” on the other hand, is clearly written and defined. Davar can become mishpat and mishpat can become davar. The secret, argues the Arvei Nahal, is for those who rule on matters of halakha to announce the d’var ha-mishpat – to connect between the Oral law and the Written Torah – to find in it the correct interpretation that anchors the ruling that is appropriate for changing times within its definitive certainty.