Rethinking Orthodoxy and Biblical Criticism VIII

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Kippah and Gown: Rethinking Orthodoxy and Biblical Criticism

Essay VIII: Legal Discrepancy in Torah Law as Common-Law Jurisprudence

by Joshua Berman

In this final essay of this series I suggest a new approach to the presence of contradictory law within the various legal passages of the Torah. My conclusions build upon the ideas presented about the history of law in general and within the ancient Near East in particular in the previous essays of this series. Because my conclusions may seem radical to some, I would like to create a theological space for my analysis by opening with remarks by a seminal rabbinic thinker, R. Zadok Ha-Cohen Rabinowitz of Lublin (1823-1900).

In this series
* Essay 1
* Essay 2
* Essay 3
* Essay 4
* Essay 5
* Essay 6
* Essay 7
* Essay 8

I. Legal Discrepancy in the Torah Within the Thought of R. Zadok of Lublin

In the following passage, R. Zadok takes up the age-old question of the discrepancies found between the version of the Decalogue found in Shemot 20 and that found in Devarim 5:

נאמר דברות אחרונות במשנה תורה שאמר משה מפי עצמו ומכל מקום הוא מכלל תורה שבכתב. מלבד שגופי המצות קיבל כבר בהר סיני מפי ה’ גם הדברים עצמם שיצאו מפי עצמו דלא נאמר בהם וידבר ה’ מקודם גם זה תורה שבכתב. שכל דבריו גם כן הם תורה שלימה כמו שיחתן של אבות וכדומה מה שנאמר בתורה שבכתב. אבל מה שכתוב אלה הדברים וגו’, שהם דברי עצמו מזה הוא השורש לתורה שבעל פה מה שחכמי ישראל אומרים מפי עצמם.

The latter version of the Decalogue, that in Sefer Devarim, was said by Moshe, on his own account. Nonetheless, it is part of the Written Law. In addition to the mitzvot themselves that Moshe had already received at Sinai, by the word of God, these words as well [in Sefer Devarim], which were said on his own account, which are not prefaced with the statement, “And God said…”, these, too, are part of the Written Law. For all of his (i.e. Moshe’s) are also a complete “torah”, just like the dialogues of the patriarchs and other similar passages are considered part of the Written Law. But the material that begins “And these are the things” (i.e. the first verse of Sefer Devarim and the rest of the book that follows), material that was said on his own account, represents the root of the Oral Law, the things that the sages of Israel say of their own account.[1. R. Zadok ha-Cohen of Lublin, Pri Tzadik, Kedushat ha-Shabbat, article 7]

For R. Zadok, the Torah contains material that is divine in origin, such as the mitzvot given to Moshe at Sinai. The Torah, however, also contains material that is human in origin. This is what he refers to as “the dialogues of the patriarchs.” That is, the words spoken by the avot (patriarchs) that are preserved in Sefer Bereshit are actual, human utterances that the Torah chose to preserve. Their origin is human, and nonetheless they have the same status as God’s utterances at Sinai and are on equal footing as part of the Written Law. R. Zadok’applies this same logic to everything found in Sefer Devarim. When Sefer Devarim opens with the statement, “these are the things that Moshe spoke…”, R. Zadok takes that quite literally: God may have given His imprimatur for this book, but its content originate with Moshe, not God. As I pointed out in the first essay of this series (Kippah and Gown V) numerous statements throughout Sefer Devarim, such as 4:44-45 and 5:1 support this understanding, and this is what led Abarbanel to the same conclusion. Nowhere in Sefer Devarim do we find the typical introduction to a mitzvah found in the earlier books of the Torah, “and God spoke to Moshe saying, ‘Command the Children of Israel…” R. Zadok’s position is unique because he employs this principle to explain the discrepancies between the version of the Ten Commandments found in Shemot 20 and the version found in Devarim 5. Nearly all rabbinic expositors had followed the explanation given in the Talmud (Shevu’ot 20a), that both versions were of divine origin. According to this explanation, however, divine speech could not be contained in a single version and thus the need for two complementary versions.

R. Zadok looks at those prescriptions as common law, not statutory law

R. Zadok addresses the discrepancies from an entirely different angle. For R. Zadok, God spoke only the version found in Shemot 20. The version found in Devarim 5 are Moshe’s words. But how could this be? After all, In Devarim 5:4, Moshe himself says that God spoke the words of the Decalogue that follow (5:6-18). Here we see R. Zadok’s revolutionary leap. For R. Zadok, the words that Moshe speaks throughout Sefer Devarim are an exercise in torah she-be’al peh – exegesis and reinterpretation of God’s law. In fact, says R. Zadok, Moshe’s own exercise in such reinterpretation constitutes the paradigm—the “root” to use his term—for all subsequent such activity by the sages of Israel across the ages. The version of the Decalogue in Sefer Devarim diverges from the version told in Shemot 20, because it is a torah she-be’al peh retelling of the earlier version. For R. Zadok, Moshe’s statement in Devarim 5:4, that God spoke “these words,” is not a statement that what follows is the ipsissima verba—a word-for-word transcript of divine speech. Rather it is a faithful interpretation and reapplication of those words. No mitzvah, then, in Sefer Devarim will be identical to its precursor in the other books. The entire purpose of Sefer Devarim is to present an updated version and application of God’s commands on the eve of the entry into the land.

II. Common-law Development within The Torah Itself

R. Zadok’s approach to law in the Torah dovetails well with the conceptual framework developed in the previous essays of this series. For R. Zadok, the mitzvot contained in Shemot-Bamidbar cannot be read as divine statutory law. Were that the case, there would be no room to stray from a strict and close reading of the formulations of those laws. There would be no license for Moshe to reinterpret those mitzvot; indeed, there would be no license for later rabbis to interpret the language of those mitzvot either. The entire enterprise of torah she-be’al peh would be invalidated. We would be bound to strictly follow the literal meaning of those prescriptions.

Instead R. Zadok advocates a way of looking at those legal statements as binding, yet as fluid in their application. Put differently, R. Zadok looks at those prescriptions as common law, not statutory law. For common-law thinking, determination of the law is situational: the law is not found in an immutable text, but adapts with an awareness of the changing historical situation.[2. This is a cardinal tenet in R. Zadok’s writings. See his arguments about the need for growth and change within halakhah in Tzidkat ha-Tzaddik 90 and in Resisei Laylah 56.] Sefer Devarim presents a record of Moshe’s common-law application of earlier teachings. God had spoken at Sinai to a people just released from bondage. With the people poised to enter the land, Moshe reinterprets God’s earlier words and applies the laws to an array of challenges posed by life in the Land of Israel.[3. My comments here are a summary of my larger academic argument contained in my forthcoming study, “The History of Legal Theory and the Study of Biblical Law,” in the Catholic Biblical Quarterly 76:1 (2014) 19-39.]

This well explains the case studies of legal divergence that we examined in the opening essay of this series. We noted that the institution of manumission (eved ivri), first stated in Shemot 21, is restated in Devarim 15 with the prominent addition of the mitzvah of severance pay for the released servant. This is a good example of how Sefer Devarim openly reworks the mitzvot of the Covenant Code (Shemot 21-23), yet without negating it. The laws of Sefer Devarim address Israel as she is poised to assume a new condition of a landed people with a central temple and a more developed government. This is why the law of manumission (eved ivri) in Devarim 15:12-18 addresses the master and his feelings and experiences as he derives benefit from the debt-servant. This focus is far less noticeable in the Covenant Code, which appears at the beginning of the trek in the wilderness. This way of viewing Sefer Devarim’s revision of the Covenant Code reflects a common-law approach to jurisprudence whereby changed historical circumstance leads to the evolution of the law, yet without the need of jettisoning earlier, revered texts. Revision of an earlier law did not entail a rejection of the text bearing that earlier law. We may invoke the words we cited earlier of John Joseph Park, the nineteenth century common-law theorist, who noted that texts within the common-law tradition always remain “a datum from which to reason.” Even as Sefer Devarim interprets and reapplies the teachings of the Covenant Code, the Covenant Code remains on the books for later consultation, “as a datum from which to reason.” Neither the Covenant Code nor Sefer Devarim are statutory codes. They are sets of teachings. Sefer Devarim borrows from the language of the Covenant Code because, in legal terms, it is a restatement and a new application of the older teaching.

The tradition empowers Chaza”l to develop the Torah and derive biblical (de-oraita) obligations, limitations and conditions

This also explains the explicit contradiction between the law of the first-born found in Bamidbar 18 and the version of the law found in Devarim 15. When the laws of the priestly gifts are first presented (Vayikra 2) first-born animals are not listed. The law in Bamidbar 18 itself is an ad hoc exigency. The Korach rebellion necessitated legislation that would buttress the standing of the priesthood of Aharon and his descendants. One measure that God orders is that the first-born now be consecrated for the benefit of the priests alone. The law in Devarim 15:19-23 restores the status of the first-born animal to that it had before the Korach crisis – as the property of the owner. As with many laws in Sefer Devarim, the law of the first-born seeks to ensure that cultic activity only occur at the place that Hashem chooses (eventually, Jerusalem and the Temple), and thus he must bring it to the central sanctuary where he may consume it.

To be sure, this is not the halakhah as we have it today, based on the harmonization of the passages in the Sifre, as we noted in the first essay of this series. However, this should not provide any theological concern. As we saw in the previous essay, Megillat Rut exhibits forms of levirate marriage and land redemption that are at variance both with the provisions in the Torah and with the halakhah as later determined by the rabbis. The comments of the Netzi”v that we saw in the previous essay and the approach of R. Zadok of Lublin discussed above provide us a theological basis with which to comprehend the fluidity of practice during the biblical period. These luminaries did not state their opinions apologetically as some sort of concession to the findings of critical study. They stated their opinions as a celebration of the evolving human process of torah she-be’al peh, a process which for both of them began with Moshe Rabbeinu himself. As we saw in the previous essay, the tradition empowers Chaza”l to develop the Torah and derive biblical (de-oraita) obligations, limitations and conditions. The writings of R. Zadok of Lublin and the Netzi”v suggest that Moshe, too, was invested with these powers.

III. Three Misunderstood Terms: hok ‘olam, mishpat, and lo tosif

Proponents of the statutory approach to law in the Torah often point to three terms as evidence that the Torah’s laws are immutable, and must be kept precisely as stated. I review these terms and demonstrate that they are routinely misunderstood and do not suggest a statutory understanding of biblical law.

Some mitzvot are termed hok olam. This is often translated as “an everlasting statute.” Clearly, if a mitzvah is, indeed, termed “an everlasting statute,” then its form is immutable, and it must be performed precisely as stated. The translation of hok olam as “everlasting statute” is a fine one, except for two problems: “everlasting” and “statute.” Let us begin with the first term, “hok.” The root of this word is h.k.k. which means inscribed. Something, then, that is called a “hok” is simply something that must be been inscribed as a matter of importance. “‘Olam” is mistakenly translated as “everlasting” and therefore immutable. However, the biblical term for “forever” or everlasting” is not olam. Rather, “eternal” or “forever” are expressed through more emphatic terms such as olam va-ed, or me-olam ve-ad olam, or olamim.[4. Maimonides notes this distinction. See Moreh Nevukhim II:28.] The term olam, on its own means “open-ended,” or “without fixed termination point.” This is clearly the meaning in Shemot 21:6, where the freed debt-servant reneges on his freedom, and is told that he will therefore serve le-olam. The servant is mortal, and thus obviously cannot serve eternally. Instead of having the automatic release after six years, his servitude will continue; it will be “open-ended.” This is also evident from the censure of Eli the high priest, in Shmuel Aleph 2:30-31: “Therefore the LORD, the God of Israel, declares: ‘I promised that your house and the house of your father should go in and out before me le-olam,’ but now the LORD declares: ‘Far be it from me, for those who honor me I will honor, and those who despise me shall be lightly esteemed.” If we assume that le-olam means something eternal, then God undermines Himself by reneging on his promise. Rather, God had promised that these priests would rule indefinitely. Indefinitely, however, does not guarantee eternity, and when their behavior warrants their removal, there is no barrier to doing so. Note that no commandment in the Torah is referred to using the formulae referred to above to connote eternal or everlasting. Were the meaning of the phrase hok olam in fact “eternal statute”, we would do well to ask why only a handful of commandments have that designation. What would that say about the rest?[5. See also Sefer ha-Ikkarim III:16.]

Mishpat is sometimes translated as “law.” That is certainly the case in modern Hebrew. However, from many sources in the Tanakh we see that the proper translation is “justice”. Abraham’s descendants will perform tzedakah u-mishpat—”righteousness and justice.” Mishlei uses the word mishpat solely in this sense of justice (cf. 12:5, 21:7, 28:5). This is also its meaning at the beginning of parashatMishpatim” (Shemot 21:1): “These are the mishpatim that you shall place before them…” The prescriptions contained there are not given to judges. They are examples of justice given to the Children of Israel as examples of just living. This is why David could reapply what was said about the penalty for stealing a sheep, in light of the circumstances at hand, as we explained in the previous essay.

The finds from the ancient world lie before us as but several random and scattered pieces of what we can see was a huge and intricate puzzle

Finally, many will point to a pair of verses in Sefer Devarim that seem to insist that the law is precisely what is written and nothing else: 13:1: את כל-הדבר אשר אנכי מצוה אתכם אתו תשמרו לעשות לא תסף עליו ולא תגרע ממנו. “The entire word that I command you, shall you take to perform. Do not add to it, and do not subtract from it.” (cf. Devarim 4:4). However, the phrase “do not add to it and do not subtract from it” must be seen for what it is: a common idiom in the writings of the ancient Near East. When kings commissioned diplomatic correspondences they were concerned that the text of the letter reach the recipient exactly as dictated. Typically, such correspondences would include a curse upon anyone who tampered with the text of the correspondence. When someone said with regard to a text of any kind, “do not add to it and do not subtract from it” the exclusive meaning of that phrase was to ensure textual integrity. The text could not be changed.

IV. The Advantages of the Common-Law Approach to Biblical Law

To summarize and conclude this series I list the advantages of viewing the discrepancies within Torah law as common-law development as opposed to statutory contradiction, from an academic perspective.

  1. When viewed as statutory law, the law collections of the Torah are taken to be mutually exclusive. This led scholars to adduce a hypothesis to explain how these collections came to be incorporated in a single work. That gave rise to the notion of the Torah as a compromise document. As we saw in Essay V, however, the law collections are too contradictory to be deemed a compromise. Moreover there is no extra-biblical example of a legal document that works this way; indeed, there are no examples of statutory systems of law anywhere before 5th c. BCE Greece. When viewed as common-law examples of justice, the Torah’s laws emerge as reapplications of one another. All formulations are preserved because they have value as “data from which to reason” in the future.
  2. Sefer Devarim refers back to previous law collections, “as I have commanded you” (e.g. 12:21; 18:2; 24:8). If the law collection of Sefer Devarim was composed to displace earlier formulations of these laws, it is unclear why Sefer Devarim would give credence to those collections at all. If law in the Torah is common-law, however, Sefer Devarim does not stand in competition with the earlier laws.
  3. If the laws of Sefer Devarim were written to compete with earlier formulations of the laws, it is unclear why the author of this book would choose to make Moshe the authority of the laws rather than God, as is the case in the laws contained in the other books of the Torah. If Torah law, however, is common-law, the switch in authority is well understood. In Sefer Devarim, Moshe reinterprets and reapplies the principles and examples that God had given earlier, in light of the impending entry into the land.
  4. Were the law collections of the Torah mutually exclusive and in competition with one another, we would expect to find evidence of this elsewhere in the Tanakh, because it is widely held that authors and editors adopting the worldview of one collection or another are responsible for composing or editing many of the other books of the Tanakh. In fact, we find no book that aligns with a single collection of law. Rather all the other books resonate with more than one of the law collections, and sometimes all of them. No king, priest, prophet or biblical narrator ever argues for the validity of one version of the law over another. Because the law collections of the Torah are common-law reiterations of one another, other biblical writers freely sought inspiration from any or all of them. Even when discussing point of actual law, we find “legal blends” of phrases from several different law collections.
  5. The early critics of the Pentateuch focused on narrative and scarcely ever noticed discrepancy in the laws of the Torah. This is because in the history of ideas, the idea of statutory law rises to the ascendancy only in the middle of the nineteenth century, and it is only from this period on that scholars began to read the Torah’s law collections as standing in contradiction with one another.

V. A Final Thought: Our Engagement with Biblical Criticism

At the end of my first installment (link), where I discussed contradictions in narrative between Devarim and the other books of the Torah, I underscored the limits of our grasp of the ancient world in which the Torah was written and first read. I drew attention to how our knowledge of that world is often a function of the luck of the spade. We get lucky and find the remnants of documents that shed great light on our Scripture. Those inscriptions, representing a tiny and random fraction of the full literary output of the ancient world suggest to us the enormity of just how much we don’t know. The finds from the ancient world lie before us as but several random and scattered pieces of what we can see was a huge and intricate puzzle.

This series of essays on the seeming contradictions of law also highlights the limitation of our perspective, but from a different angle. We discovered that ideas and concepts that today give us no pause at all—what is “law”?—turn out to be notions that are culturally dependent. We come to realize that our perspective is rooted in place and time and that the situated nature of our own perspective of necessity blinds us to those held by earlier generations. Here, too, we had the good fortune of comparative material—the multiple copies of the Code of Hammurabi—that enabled us to propose an alternative theory of law.

Yet, even without those texts, we were able to see that the theory of the Torah as a compromise document was hardly fool-proof from an academic perspective. While it could account for some problematic aspects of the text, the theory itself raised other problems of its own. Some biblicists see their mandate as offering the most plausible explanation of an issue that they can. Thus, if a theory explains some of the data, but is problematic on other accounts, the theory should be propagated if it is the best one available. Others—and I cast my lot with them—define our academic mandate differently. Our job is to explain only that which can be satisfactorily explained. If the best theory available is a problematic one, then those problems should be frankly acknowledged. The best that we can do under such circumstances, then, is not to propagate the best theory we have available. The best that we can do is to adopt a posture of methodological modesty and confess that the gap between our perspective and the data before us is great indeed. In such situations there is no sin—intellectual or spiritual—in admitting, “We don’t have an answer.”

About Joshua Berman

Joshua Berman is a professor of Tanakh at Bar-Ilan University. He learned at Yeshivat Har-Etzion and has semikhah from the Israeli Chief Rabbinate. Among his books are The Temple: Its Symbolism and Meaning Then and Now (repr. Wipf & Stock, 2010) and Created Equal: How the Bible Broke with Ancient Political Thought (Oxford, 2008), a National Jewish Book Award Finalist in Scholarship.


  1. Fascinating series. Thank you Prof. Berman – as a previous commenter said our community owes you a great debt.
    The devil is in the details – you’ve mentioned a few contradictions that this concept can resolve. Do you feel that this idea is able to resolve most (all?) of the contradictions between Devarim and the rest of the Torah? As you mention, there is some change in circumstance and time between the sefarim but its only 40 years.

  2. That’s an important question. I’ll say this: If you look carefully at the mitzvot contained in Sefer Devarim, you will find that they tend to revolve around four cardinal issues, all of which pertain to the impending and new reality of life in Eretz Yisrael:
    1) cultural assimilation (relationhsips with foreigners, idol worship – not such a threat in the desert)
    2) Various issues pertaining to welath and poverty (unlike in the desert, where there was no opportunity for social stratification)
    3)Centalization of the avodah (again, irrelevant in the desert when everyone was close to the Mishkan)
    4) Moving from an identity as twleve tribes to an identity of a national republic (see ch.2 of my Created Equal).
    Using this rubric, I can account easily for 80% of the mitzvot in Devarim, 10% I can “teich” and 10% I have absolutely no idea. But as I wrote saying “I don’t know” isn’t a sin :-). I’m sure if you go through Devarim you’ll be able to see much of this for yourself.
    What’s not in Devarim? Basically, tort laws, as we find in parashat Mishpatim, and laws pertaining to the avodah, because, largely what went on inside the Mishkan was meant to continue unchanged, and is largely unaffected by rootedness in the Land.

  3. Laws in Shemot: Good question. I can only conjecture: We know that the mitzvot in the Torah are not all given at once. There seems to be an educational aspect to the timing of the giving and teaching of certain mitzvot. Perhaps we are to read those first laws in Mishpatim as addressing basic life for newly freed slaves. Perhaps, after digesting these, the intent was to move on to laws that would govern the next stage of national life, but the plan got derailed.
    Rambam writes, and we maintain, just what you say – that the interpretation of Toarh by Chaza”l in the Talmud is binding. All subsequent discussion begins from there.
    As for Sefer Devarim, the point that I made was already noted by Ramban and Abarbanel–it is difficult to find a verse in which Moshe explictly says that the new laws that he is teaching were given to him by God. 6:1 seems to be refering back to the mitzvot referred to in ch. 5, that is the earlier mitzvot, not the new ones that he raises in Devarim.

  4. Rabbi Berman,

    Thank you very much for this essay. I find your writing refreshing as never before have I read someone so knowledgable in Torah and Biblical Criticism write about these issues in anything but a hopelessly defensive tone.

    That said, I am still unsure what your possition is (despite having also read your essay on Mosaic). I have always known that Chazal used their authority to respond to the issues of their day via tikkunim, etc., and I understand the argument that they should do so today as well.

    However, except for one reference in the writings of Eliezer Berkowtz, I have never read anyone before suggesting that the Jewish people’s leaders (or a particular leader or judge) can change a Torah law. Is that what you are in fact suggesting?

    Can the ban on homosexuality, then be lifted? (Again, pick another Torah [not rabbinic] law if homosexuality is too much of a hot button issue.)

    I also find your apparent position theologically problematic. Society changes but human nature doesn’t. Couldn’t G-d have presented a moral system that is eternal and immutable?

    In fact, now that I’m thinking about it, can one possibly suggest that moral laws in the Torah are in fact eternal while more technical or ritual ones (about the bechor korban, for example) are not?

    Again, I thank you Rabbi Berman for these essays and for your non-apologetic writings in general. But I do find your position somewhat disturbing. You seem to be saying that we, the Jewish people, took a wrong turn somewhere and that the Conservatives really do have it right and that ideally, all the Jewish people should be united in taking their approach to halacha.

    The implications of this are vast. Unless I’m reading you wrong, it would seem like there are basically no absolutes, then, in the Torah. It would seem that, like in American society, homosexuality can go from being terribly immoral to perfectly wonderful within the course of 50 years (unless again you are exempting moral laws from your thesis).

    If that is so, I don’t see the point in studying the Torah. I know common law changes slowly, but at a certain point, so many years pass and one is so removed from the origin that the origin, it seems to me, should become largely irrelevant.

    If you could clarify a tiny bit, I would be very grateful.

  5. Thanks R. Berman.

    Two quick follow-ups:
    1. But would you define the shabbat as rooted in common law?

    2. I wonder what you would say re Lev. 20:13. If anything looks like it is written as common law, the term ‘toeva’ certainly does (given how it is used in Breishit and Shmot). On the other hand, Rabbinic statutory law does not equivocate on the issur of homosexuality. So does that close off any possibility of halachic accommodation down the road? I.e., is the “consensus” you describe as being achievable in the case of conversion and delayed in the case of women’s ordination, ever achievable in the case of homosexuality?

    • Hi,
      Continuing my comments from essay VII – Josh, you show clearly in tanakh and in chazal that the Torah’s laws are not meant to be comprehensive, but rather are basic cases which need to be fluidly expanded and applied. I wholeheartedly agree with this. However, there is a huge difference between this and saying that they are mere recommendations (as you interpreted Hammurabi), that they are not immutable. So there’s still a big difference between the Torah’s laws, which are commandments, and Common Law as you describe it. I think the whole comparison to your discussion of Common vs. Statutory law is misleading, since those are different models of judicial practice, i.e. how to judge in a court of law, while in the case of the Torah we’re talking about commandments governing personal, ritual, and social behavior (judicial practice is only one incident of this much wider category). The common-law model is, I think, a valuable model for comparison to help in understanding certain aspects of Halakhic development (and for that I thank you), but that doesn’t necessitate or justify applying all of common-law’s characteristics to Halakha, which is founded on the concept of tzivui. What would have happend if Avraham, upon hearing the commandment of the Akeda, would have said, ‘hmm, that’s an interesting datum from which to reason, now let’s see how I can re-interpret it to avoid sacrificing my son’? As MeirD aptly pointed out above, there’s a huge difference between fluid application according to given principles (which is what the Netziv is talking about) and outright contradiction – such as in the case of Bechor.
      In your response to MeirD, you made a distinction (if I understand you correctly) which I think is the essence of the matter – that change in practice must be rooted in formal justification in the mechanisms of halakha. This is not a mere formal condition, meant to keep us from straying to far; it is the difference between the stance of a metzuve v’ose, harking to God’s commandments (even while being sensitive to the needs and concerns of society), and seeing halakha as a mere social construction (like common-law). And the question is, is this framework then enough to explain contradictions such as bekhor.

      • I would simply add that there is really no way to know which of multiple explanations is “true”, at least once one says they received no clear Mesorah on the issue. One can only say this explanation best fits the data as I see it. (or as a business associate once said, “excellent example of the best guess based on the data at hand, unfortunately for you, the answer is also incorrect”)

  6. i wouldn’t say that Moshe undoes any mitzvah. There is a mitzvah of kadesh ku kol bechor, that then receives different expressions in Bamidbar and then finally in Devarim. Surely, when Yisael totally does away with a mitzvah she is chastised, as with Shemittah in the last chapter of Divrei Hayamim. Indeed nothing Moshe does in Sefer Devarim comes close to what chaza”l do – cancelling shofar blowing–biblically mandated–when RH falls on shabbat. Now, we of course, maintain that they didn’t just “do awaY” with shofar blowing, they were working within certain intrepretive frameworks, which, of course, must always be respected, and clearly ours today are different, and more restrictive than were theirs then.

  7. i wouldn’t say that Moshe undoes any mitzvah. There is a mitzvah of kadesh li kol bechor, that then receives different expressions in Bamidbar and then finally in Devarim. Surely, when Yisael totally does away with a mitzvah she is chastised, as with Shemittah in the last chapter of Divrei Hayamim. Indeed nothing Moshe does in Sefer Devarim comes close to what chaza”l do – cancelling shofar blowing–biblically mandated–when RH falls on shabbat. Now, we of course, maintain that they didn’t just “do awaY” with shofar blowing, they were working within certain intrepretive frameworks, which, of course, must always be respected, and clearly ours today are different, and more restrictive than were theirs then.

  8. Shmot 13 is not the problem (God’s commandment there is indeed very general (‘kadesh li’, and even Moshe’s subsequent application only a bit more specific (lahashem, i.e. a sacrifice) ). The issue (as you yourself so clearly presented it in essay v) is Bmidbar vs. Devarim: In Bemidbar God explicitly grants bekhorot to Aharon and his sons, and then in Devarim Moshe says for the original owners to eat them in the mikdash. This is a clear contradiction.
    Regarding chazal – chazal indeed have some authority to abrogate deoraitot (the limits of this authority are discussed in yevamot 89a – 90b). However, they clearly differentiate between cases when they do so (thus still leaving a clear picture of what the deoraita is) and cases where they are representing the deoraita.

  9. Thank you Dr. Berman for a thought provoking and original series of essays.

    On the first born you focused on the difference between devarim and bamidbar on who eats the sacrifice. Then you offered why – historical event of korach – is that pshat, derash (semichut parshiot), literary analysis or something else? why first born to buttress the priesthood? is that the only item? can you show from the text that prior to bamidbar the first born was eaten by the owner?

    I would suggest a closer literary reading – literary critical analysis of Laws of the First Born would include the following texts: Shemot 13 :12-13; 34:19-20; 22:28; and Devarim 15:19-23 as well as Vayikra 27:26-27 and Bamidbar 18:16-18. i would not exclude shemot 13:2 and bamidbar 3:12-13. There seems to be many literary connections and non between the different segments. It may yield interesting fruit – see recently published S.G. – Three Times a Year.

    In the end, in the last few decades we have seem an re-emergence of DH. But its not the only aspect of biblical criticism. While there are defenders and detractors of DH, no consensus around one methodology has been formed. The literary critical approach has gained some momentum with support gained from the study of ancient Near Eastern texts. While you make valid points on a source critical approach does it also work with the supplemental and/or literary critical approach – which would also conclude multiple authors/redactors or whatnot?

  10. Rabbi Berman,

    I would appreciate a response to my questions. Earlier, you had responded that my questions were too early in the series and that I should continue on reading. Well, I have, but my questions remain. If you prefer to email me, my email is holyhyrax at gmail dot com.

  11. Thank you for a fantastic and very interesting collection of essays. I really hope that you continue with it.

    I have one question about the latest set. Wouldn’t a common law approach also work to the benefit of the theory of an editor? It would make sense to avoid ‘compromise’ if it is more a collection of precedents of closely related people with slightly different common law traditions.

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