The Oral Law and the Jurisprudence of a Textless Text
S’vara: A Journal of Philosophy, Law, and Judaism, Vol. 2, No. 2, p. 11, Winter 1991
16 Pages Posted: 4 Dec 2010
Date Written: December 1, 2010
The central, defining, image of Jewish legal culture is the Dual Torah, the pairing of the Written Law and the Oral Law. The Written Law is the legal part of the Pentateuch, which traditional Jewish thought believes God revealed to Moses word for word. The Oral Law is the body of (largely, in fact, now written) legal materials that interprets, expands, supplements, and sometimes contradicts the biblical text.
This article tries to make jurisprudential sense of the image of the Dual Torah and its role in the Jewish account of law and legal interpretation.
I argue that that one key to understanding the Oral Law is its (in principle) orality. The model for transmission of the Oral Law is not the mimetic transmission of an exact text but pedagogy – the relationship of teacher and student. The teacher speaks the law. The student asks a question. The teacher explains. Is the explanation also a “law from Moses at Sinai,” or is it “only” an interpretation? At some point, that distinction must be lost, or at least put in grave doubt.
This interpenetration of legal strata is, in the Jewish legal imagination, not just a defect or even a necessary evil in the system of transmission. It is its defining mythos.
The principle of the Dual Torah thus imposes a pair of constraints on the Jewish legal decisor. The first bars him from digging beneath the layers of legal authority to a purified, pre-interpreted text. The second forbids her from escaping beyond the layers of authority to a sovereign reader, or a purified teleology, or a post-textual concept of the Right. Left between these constraints is the law itself, constantly interpreting and interpretable, reading and speaking, changing and staying constant, without end.
Keywords: Interpretation, Jurisprudence, Dual Torah, Orality, Jewish Law, Halakhah, Bible, Talmud
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