The Jurisprudential Truth of Torah
As a lawyer by training and an educator by trade, I’ll take the word Torah here in the way it was understood by the ancient Greek Jews, who translated “Torah” as nomos, “law.”
In what sense is a law true? From a jurisprudential point of view, one could argue that a law is valid if it reflects the values based on which a people hopes to create a society. But that is not enough to make Torah true. For truth in Torah law we need it not only to reflect a society long ago, but also to incorporate values that still speak to us several thousand years later. This can apply even if the particular Torah laws are no longer practiced.
The Law of the Wayward Son
I’d like to illustrate this with a law that is famously said, in one view in the Talmud, to have never been practiced, the law of the rebellious son, the בן סורר ומורה (b. Sanhedrin 71a).Two values seem to be encoded in the law here. On one hand, the law can be seen as a reaction to norms prevalent in ancient Near Eastern society where the male head of the household had nearly limitless authority over his household, and if he wished to punish a child for perceived insubordination, he had every right to do so.
By requiring that both parents together bring the child to the elders, and that any disciplinary action be taken by the elders, not by the parents, let alone by the father himself, biblical law has stripped the pater familias of his authoritarian – and potentially abusive – role, and vested the power to punish in the hands of a judicial body, thus providing a check on the parents’ power.
On the other hand, the law does enshrine a certain hierarchy within the family. There need to be people in greater and lesser positions of authority and when individuals flout accepted norms, threatening basic structures, the elders will act. Parental authority is strengthened by deterring filial insubordination, which undermines stability in a society.
So is this law “true”?
I would say yes. It not only reflects principles of a society from over two thousand years ago, but it also encodes values that are relevant for us today. In modern society, progress has been made getting the law into people’s homes, putting protections in place against authoritarian and vindictive parents. Yet at the same time, society still needs structures and respect for hierarchies. In this case, some ancient readers understood that the law was not meant to be literally true; and certainly today we do not approach the biblical law as binding legislation, but we are concerned with the values of the law. Those values are still very relevant.
There is of course much to think about in terms of how to apply these values that stand behind particular laws to our modern society. What are the power structures that need be taken apart, like the authoritarian father of the ancient Near East, and which ones need to be preserved, like the respect due to the parents in the biblical family? Which should be built up and fortified, and which need to be dismantled for the future of a more just and moral society?
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September 7, 2015
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Shira Hecht-Koller is Director of Education for 929 English, a platform for the daily global study of Tanakh. She is also a faculty member at Drisha, where she teaches Talmud and designs immersive text study experiences, and was a fellow in the Paradigm Program of the Paideia Institute of Jewish Studies in Sweden. Shira holds a J.D. from the Benjamin N. Cardozo School of Law, where she was a Golding Scholar, and she is a graduate of the Beruria Scholars Program in Advanced Talmud Studies at Midreshet Lindenbaum. Before embarking on her Jewish studies career, she was an associate in the Intellectual Property department at Debevoise & Plimpton, LLP.
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