Parashat Shoftim (5761)

With God’s help, on the eve of the holy Sabbath, Parashat Shoftim, 5761

The Source of Authority for Systems of Law

Our Torah portion deals, among other things, with the obligation to heed the sages: ‘Do not turn aside from anything they instruct you’ (Deuteronomy 17:11).

Maimonides, according to the accepted interpretation, maintains that our obligation to obey the enactments and decrees of

the sages is likewise derived from this verse. Nahmanides, by contrast, understands that this verse indicates only

the authority of the sages in interpreting the Torah; however, their power to institute enactments and decrees is not based on

this verse, for otherwise the sages’ enactments would have the force of Torah law, that is, the obligation to observe

them would stem from the Torah. In other words, Nahmanides argues against Maimonides that if indeed someone who

ate poultry cooked in milk (which is a rabbinic prohibition) would thereby violate the command ‘Do not turn aside’ (Deuteronomy 17:11),

then the prohibition against eating poultry cooked in milk would, in effect, be a Torah prohibition.

There are several legal implications to the status of a prohibition. For example, if it is of Torah status, we

must rule stringently even in a case of doubt; by contrast, if it is rabbinic, we may be lenient in a case

of doubt. In light of this, Nahmanides’ claim against Maimonides can be formulated as follows: according to him, we should

have to be stringent in a case of doubt concerning the prohibition of eating poultry cooked in milk, even though it is rabbinic, since according to

Maimonides, if we violate this prohibition, we are in fact also violating the Torah prohibition of ‘Do not turn aside’ (Deuteronomy 17:11).

Maimonides’ view is, at least on the face of it, more consistent and better grounded. The obligation to heed the sages is anchored

in a commandment of the Torah. The source from which the sages derive their authority is defined by the Torah itself, and therefore it is clear

why one is obligated to obey them. Whoever has accepted upon himself obedience to the command of the Holy One, blessed be He, as it appears

in the Torah, is bound, by virtue of verses that appear in the Torah itself, to heed the sages as well. By contrast,

according to Nahmanides’ approach, it is not at all clear why we should heed the sages in the first place. Even if we have accepted

upon ourselves the obligation to heed the voice of the Holy One, blessed be He, as expressed in the Torah given at Sinai, it is not clear why

we should heed the sages. Similar questions are raised by the commentators with respect to the obligations of a child younger than

thirteen, who is not obligated in the commandments by Torah law, yet according to certain views is rabbinically obligated in them. A similar situation

also exists with regard to a blind person. In these cases as well, the commentators ask what is the source from which

the sages derive the power, or authority, to obligate minors or blind people. If such persons are indeed exempt

from obeying the Torah’s commandments, from where does the obligation arise to heed the sages? How can one impose

a rabbinic obligation to observe commandments upon someone who is not obligated in them by Torah law?

Maimonides, on the face of it, is spared the need to answer this problem, since in his view the source of the obligation lies in the Torah

itself, and therefore his approach seems more consistent and better grounded (with respect to the blind and minors it is more problematic,

but this is not the place to discuss it). Yet one may also ask him: what is the source of the obligation to obey the commandments

of the Torah? The mere fact that the Holy One, blessed be He, commands me to do something is not sufficient to ground the obligation

to obey the command. God’s command is a fact, but from facts one cannot derive normative obligations.

If someone’s command were a sufficient reason to obligate me to obey him, then

the sages’ command would likewise be a sufficient reason to obligate us to obey them. The mere fact

that someone commands me to do something is not a sufficient reason to obligate me to obey him. There must

be some additional, normative reason from which I can derive the obligation to comply with the command in question.

There is a sense that a divine command is different, and that its very existence is enough to obligate us

to obey it. It seems to me that this feeling is based on the belief that the Holy One, blessed be He, seeks our good, and He also

knows how to achieve it. Perhaps it is also based on gratitude toward Him for having created us, and perhaps even

on fear of the punishment He might impose on us. In any case, an additional reason is required in order to arrive

at the conclusion that I ought to obey someone’s commands.

If so, with respect to the sages as well, we should not be surprised that there is no clear source of authority for the obligation

to obey them. As we have seen, the obligation to obey the Holy One, blessed be He, is grounded in us, in our own decision, and in reasons

that are ours, not in Him. If so, the obligation to obey the sages is likewise located in us, not

in the Torah, and certainly not in the mere fact that the sages have commanded us. The obligation to obey the sages is derived from

the fact that there are good reasons to do so, that is, that this is a rational way of acting. The grounding may

lie in the fact that they are wise, or in the need for social order, and the like. But in the final analysis, it is clear

that the grounding of every course of action of mine lies in myself, and only in myself.

This can be generalized to other systems of command as well. The obligation to obey the laws of the state cannot

itself be a law within that legal system, for if it were, who would command me to obey that very law

itself? The reason for obeying the laws of morality is itself not a moral law, for otherwise the question again arises

why obey that very law itself?

The reason that grounds any legal system will always be found outside the system in question. Incidentally,

this is true of any logical system whatsoever (including a mathematical system). Its fundamental grounding

lies outside it.

Today there is a feeling that if someone performs an act contrary to the law, it is enough to tell him that he is acting

against the law in order to prove that he is wrong. This is not so. We must try to persuade him

of the very obligation to obey the law (unless he accepts this principle, and only in this particular case erred in his conduct

itself). The law is not sufficient to ground the obligation to obey it, just as Jewish law

cannot serve as the basis for the obligation to obey it. Everything begins and ends with the person who is commanded (

that is, the commanded person). This also provides a basis for acts of conscientious objection to the law under special circumstances, but

this is not the place to discuss that.

A peaceful Sabbath

This may be placed in the repository for sacred writings at any synagogue or religious academy. Comments and responses are welcome.

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