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189 C H A P T E R F I V E Continuity and Change in Jewish Law No legal system can exist very long without change. New issues emerge. Old assumptions no longer hold. Whether technological, scientific , economic, social, political, moral, or simply a matter of style, changes occur in life, and any legal system that does not adjust is doomed to become obsolete. This is especially true in our time, when changes occur much more rapidly than in the past. On the other hand, a legal system that changes too rapidly or too extensively loses its ability to function as law. In his story “The Trial,” Franz Kafka depicts a man on trial who does not know the charges against him, the consequences of being found guilty, the methods available to him to prove his innocence, or even the rules, if any, that bind the judges.1 We feel the sheer terror of not knowing what we can expect of others and what others can expect of us or do to us. Avoiding such insecurity is one of the primary reasons for establishing a legal system in the first place, and it is the factor that distinguishes government by law from government with power unlimited by law. If the law changes too often, however, it loses its ability to tell us what we can expect of others and what others can expect of us. Furthermore, in losing its continuity and the security it brings, the law also loses an important source of its authority. Every legal system, then, needs to balance continuity and change. This is a hard task to accomplish for any legal system, but it is espe- cially hard for Jewish law. One reason is that, with the exception of the era of the Sanhedrin, Jews have lived throughout the world without a central legal body to determine the law. Maintaining enough continuity to keep Jewish law clear in its demands and yet flexible enough to accommodate vastly different social and commercial circumstances , then, has been quite a challenge. Furthermore, Jewish law bases its primary claims for authority on the belief that God gave us the law and continues to want us to abide by it. How, then, can human beings have the authority to make any changes in it? THE ROLES OF GOD AND HUMAN BEINGS IN INTERPRETING AND APPLYING JEWISH LAW To begin with the theological issue, some sections of the Torah declare that God gave the law, and no human tinkering—let alone a conscious change of the law—is or should be allowed.2 This is how the Rabbis interpreted two passages in Deuteronomy (4:2 and 13:1) in which Moses tells the Israelites “not to add anything to what I command you or take anything away from it, but keep the commandments of the Lord your God that I enjoin upon you.” Even though the context of both verses in the Torah is idolatry, the Rabbis understood this ban to apply to all of Jewish law. Furthermore, the Decalogue and the rules in Exodus 21–23 are given at Mount Sinai in an overpowering event, with thunder, lightening, and earthquakes to make one think, “Hands off! This is God’s law, and don’t you dare tamper with it!” The understanding of the origins and functioning of Jewish law that many Jews have is based on these biblical passages alone. Other passages of the Torah, however, indicate that even in its earliest times Jewish law was subject to change. In three instances (Lev. 24:10–23; Num. 15:32–36, 27:1–11), Moses does not know what to do and seeks a new oracle from God. The Torah, though, does not rely on new divine revelations alone; indeed, shortly after the First Temple period, Zechariah (13:2–4) declares that people who claim revelations shall be made to feel ashamed for making such claims and their own parents will call them liars and will put them to death. Why so? Jeremiah complains bitterly about the people’s inability to distinguish true prophets from false ones, and indeed it is hard to judge who has heard God at all, let alone whether that person has FOR THE LOVE OF GOD AND PEOPLE 190 interpreted God’s words or vision correctly. Furthermore, prophecy has the potential to change the law radically at any moment: The prophet can simply announce that even though God has told us until now to do x...

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