Saturday, March 27, 2010

God, Law, and Loopholes

"The Perfect One Who made the Law also made the loopholes."

(A Usenet poster defending Jewish law; I do not know if the line was original with him)

I'm currently covering Jewish law in my seminar on Legal Systems Very Different from Ours. One of the puzzling things about it is the willingness of legal scholars who believed that the legal rules in the Torah were dictated by God to find ways around them, implausible interpretations of the text or excuses for additional rules inconsistent with the original ones. This raises the question of whether the legal scholars who made and interpreted the law actually believed in it.

The quote above provides one possible answer. Not even God could construct a system of rules that would work for all times and places. The best He could manage was a system of rules that would mostly work, provided with a few loopholes that would permit believers to alter those rules in response to circumstances under which they became clearly unworkable.

That still leaves the puzzle of why God would include in his system a rule, such as the one providing that a disobedient son was to be stoned to death, that was never to be enforced—a result the scholars managed by reading into it a set of conditions which could never be met. Somewhere, I think, Maimonides has an explanation for the existence of such rules, but at this point I have forgotten what it was.


Michael Anissimov said...

The most obvious and plausible explanation is that "it's all a bunch of bullshit". Some Stone Age tribesmen made up rules, and then intellectual Jews throughout history have used their powers to rationalize those rules, even if it requires bending and twisting them.

Anonymous said...

I have read somewhere -- I do not know if it was Maimonides -- that the law of the rebellious son was in fact never carried out, but it is there so that people can have the merit of torah study. (I'm not endorsing that reasoning, just reporting it.)

Anonymous said...

Justinian's lawyers said that even a perfectly just law, if enforced with perfect uniformity, would produce perfectly unjust results.

If I remember it right. Sounds pat, huh?


Joseph said...

Religious traditions are the accumulated experience of a community. Sometimes part of an early version of that experience didn't work out and a tradition is abandoned but still remains in the holy books. In that case, it makes sense for the community to ignore the tradition (e.g., the way the current Christians ignore the tradition of not eating shrimp or the way current Jews ignore the requirement of centralized worship). It still makes sense for the community to adhere to a "fundamentalist" attitude towards those traditions that did turn out to be important. (A century or two ago, part of the Jewish community decided to try ignoring the requirement to not eat shrimp etc. It looks like that isn't working very well. As far as Jews are concerned, God really does hate shrimp.)

In that case, why keep the laws on the books but reinterpret them instead of just dumping them? It's quite simple. Keeping the laws on the books enables rapid backtracking.

Sometimes the above-mentioned accumulated experience goes awry. For example, the story of the Exodus is obviously about the rescue of a people from the horribly unjust system of slavery. For centuries, it was reinterpreted in Judaism and Christianity to be about a special case with no lessons for any other situation. (After all, everybody knew that slavery was a necessary part of the economy.) A few centuries ago, a handful of evangelical Protestants (which is embarrassing to those of us in other religions) went for a more literal approach and declared that slavery could not be tolerated. This actually worked.

In a system with cafeteria religion, there will be occasional attempts to "turn back the clock." When backtracking is needed, those attempts can be used to fix the system. If we simply dump apparently-obsolete laws, it will be harder to fix.

Gary Chartier said...

Check out p. 83 of this source:

which seems to support Cellio's recollection.

Joseph, I think your arguments make sense sociologically and philosophically, but I understood David's question to be about the self-understanding of the interpreters who employed the interpretive devices he discusses. Might it be tough for someone taking an internal perspective on the process of the development of Jewish law to adopt the view you express here?

Anonymous said...

Law that is kept on the books but is applied irregularly or unequally is a tool for maintenance of power. It is a method whereby the law enforcers always have something such that anyone they choose can be found guilty and prosecuted/persecuted. It ensures that major parts of the population live in fear and others to feel righteous in ensuring compliance.

Karl said...

I suspect the existence of laws like the one providing that a disobedient son be stoned to death is evidence that Jewish law was based on the laws of earlier peoples. The code was borrowed more or less intact from an already existing code, and then declared divine. However, sensibilities have evolved, so those who interpret the laws had to come up with ways to change the effect of the laws without touching the divine text. Hence, the loopholes.

One comment, though, I've read about laws like the one regarding the disobedient son is that when it was devised, it represented a step up from what it replaced. Instead of the father killing the disobedient son outright, the case is taken before people in authority, who will hopefully be a little more disinterested.

Carl M. said...

Might it have been placed as a threat to impressionable kids, sort of like Santa Claus delivering ashes and switches instead of toys?

TGGP said...

Off-topic: Nick Szabo claims that your use of the Coase theorem is incorrect. He's too chicken apparently to come over here and say it to your e-face, so the task falls to me.

Anonymous said...

"Not even God could construct a system that would work for all times and all places." Is a vote-buying system likely to work for a long time in many places? Here we have a humorous look at our current system:

Roger said...

Humans have an amazing ability to live with internal contradictions or paradoxes. Just as an example because we ALL do it even academics... Evangelicals think that all their loved ones who have not been "saved" are going to spend eternity in hell, the literal hell of constant pain and misery, not just miss your cookies and milk. Most of them also simply ignore that belief most of the time - except in a theological discussion - and act like we're all going to heaven when we die, or there is no such thing as hell, or God really couldn't be that hard on MY loved ones, or such. Even though it is logically impossible to believe both positions at the same time, they do. They could never relax if we humans did not have this fascinating ability to firmly hold contradictions.
This human trait is both infuriating at times and glorious at others. I don't think we'd have love or poetry without it.

Anonymous said...

David wrote:

"Not even God could construct a system of rules that would work for all times and places."

This comment is to inform David and his readers that my treatise on Social Meta-Needs and its twin implementations via the Natural Social Contract and Social Preferencing (both also at seeks to accomplish (and I think *has* accomplished) what David is maintaining that even a *god* could not.

This is not arrogance. I very seriously welcome comments, questions and critiques of my system posted at any public venue where I can respond. Best for me would be my Yahoo group MoreLife.

Unknown said...

David quoted:-
"The Perfect One Who made the Law also made the loopholes."

The Perfect One is perfect and has no need of loopholes.

We, humans, are filled with contradictions and really go blindly on our way.

Guess the loopholes were written with this in mind.

Loopholes tend to keep our 'oneness' intact without having to look if we are right or wrong.

In this way there is an explanation and justification.

Therefore, since we have been born, the codes of ethics, we have developed within ourselves to keep our self-preservation instinct is not harmed.

I write on a blog on regarding instints that keeps us safe in our 'oneness'.

If you are interested check out

You can delete the above address as I believe that addresses are at times spammed.


A- said...

A couple of years late, but everyone missed the point - and I say this as someone who was made to work through the ben Sorer u'Moreh section of Sanhedrin as a kid (yes, it's wonderful to say 'it's all a bunch of bullshit'; it's another to do the work. And trust me, after tackling that chapter (B.T. Sanhedrin ch.8) it was kind of funny - and frustrating - that in the middle, towards the end of the whole thing, in the Talmud *itself,* quoting a Baraita (a non-canonical Mishnaic text, a tradition that would nominally be extant in the first centuries of the common era and predating the Talmud by hundreds of years), on B.T. San. 71a - *not* Maimonides as other said or suggested - quotes:

"The case of a stubborn and rebellious son never existed and will never occur, and it was written only for the purpose of studying and the reward for it."

(Or more literally, for its exposition and the earning) - because aside from the learning for learning's sake, a nafka minah (Talmudic lingo for "practical upshot") is that one hashes out the framework for when someone can be killed preemptively, without trial (consider the rodef, one who pursues another with murderous intent) and what standards apply to the conditions and requisite warnings prior to lethal intervention.

But not a single commentator here actually opened a book or engaged the text itself (and this text exists in English translation, and even online; lacking command of Aramaic and Hebrew is no excuse) - which is also the point, and speaks to a point very much of "Legal Systems our Very Much Ours" - that without the willingness or capacity to engage a text, one is relegated to anachronistic, "intuitive," facile, and *wrong* analysis.