A viable legal system is of necessity composed of two parts. One is the law itself, the rules that govern society and are enforced by the proper designated legal authorities. The other part of the legal system is the moral, transcendental value system that governs human and societal behavior generally. If the legalities and rules are the body – the corpus of the legal system, then the value system and moral imperatives that accompany those rules are the soul and spirit of that legal system.
In a general sense, we can say that the Written Law represents the body of the legal system while the accompanying Oral Law represents the soul and spirit of Jewish jurisprudence and Jewish societal life and its mores and behavior. The Written Law is interpreted and tempered by the Oral Law that accompanies it, and both of these systems are Divine in origin.
And, it is perfectly understandable how, for instance, “an eye for an eye” in Jewish law means the monetary value of the injury must be paid to the victim of that injury but not that the perpetrator’s eye should also be put out as punishment for his behavior.
In the Talmud we have many examples of the overriding moral influence of the Oral Law when applied to the seemingly strict literal words of the Written Law. The rabbis of the Talmud taught us that there is even a third layer to Jewish law that governs those that wish to be considered righteous in the eyes of man and God and that is the concept of going beyond what the law – even the Oral Law – requires of us.
So, when studying this week’s parsha of laws, rules and commandments we must always bear in mind the whole picture of Jewish jurisprudence in its many layers and not be blinded by adopting a purely literal stance on the subject matter being discussed by the Torah in the parsha.
Throughout the ages, the process of halachic decision-making has been subject to this ability to see the forest and not just the trees, to deal with the actual people involved and not only with the books and precedents available concerning the issue at hand. Every issue is thus debated, argued over, buttressed and sometimes refuted by opposing or supporting sources. Independence of thought and creativity of solutions are the hallmarks of the history of rabbinic responsa on all halachic issues.
There are issues that are seemingly decided on the preponderance of soul and spirit over the pure letter of the law. There is the famous responsa of the great Rabbi Chaim Rabinowitz of Volozhin who allowed a woman, whose husband had disappeared, to remarry though the proof of her husband’s death was not literally conclusive. He stated there that he made “an arrangement with my God” that permitted her to remarry.
This is but one example of many similar instances strewn throughout rabbinic responsa of the necessary components of spirit and soul that combine with literal precedents that always exist in order to arrive at correct interpretations of the holy and Divine books of law that govern Jewish life.
Rabi Berel Wein
Rabbi Berel Wein- Jewish historian, author and international lecturer offers a complete selection of CDs, audio tapes, video tapes, DVDs, and books on Jewish history at www.rabbiwein.com