Yes, the Source of the Law Matters

by Gedalyah Reback

For anyone reading this note, you are about to get a quick crash course in Jewish law.

There are three main types of laws practices in Judaism – those taken or derived from the Torah, those legislated by the Rabbis over the last 2,000 or so years, or customs which are maintained by families & communities and are so authoritative they become law.

Unfortunately, those who practice all these laws actually have problems remembering from where these laws derive. It is not an error on their part. Being a religious Jew is a lot like going to law school, and it is not easy to remember the direct source for everything.

Understanding how to practice and maintain Judaism is done through understanding the details of every law that Judaism and its legal structure mandate you maintain.

So naturally, for anyone who is entering into Orthodox practice, he or she will have to become quickly learned in the ins and outs of the legal system. Consequently, you are going to have to delve into where we are getting all these laws and their exact sources.

Over the last few years, there has been an effort to delegitimize Rabbinical laws and popular customs, in an effort to make Judaism less restrictive – or, to put it simply, easier. This effort has not been taken kindly by those who maintain all these laws without prejudice to where they come from.

In Judaism, all laws, no matter their source (Torah/God, the Rabbis, or long-maintained custom) have to be kept. Rabbinical laws are actually mandated by the Torah itself, in that it commands we have to listen to our leaders and judges (for the sake of maintaining societal stability).

Asking whether something is ‘of the Torah,’ ‘of the Rabbis,’ or ‘custom’ will not always get you an easy answer. There is now a reactionary portion of Orthodoxy which will see the question as ‘irrelevant’ because in the end, “you have to follow it anyway.”

This is totally wrong, and detrimental for anyone who is trying to understand all the intricacies of Jewish law. It ALWAYS matters what the source of a specific law is (firstly, its status as Biblical, Rabbinical or Customary), and then on top of that more specific details (secondarily, where in the Bible it is written and what context it is in, which Rabbis enacted the law and why did they enact it, or from which people did this custom start?).

Why does it matter? Well to be a devout Jew, you inherently have to be following the actual law as you know it, devoutly. You cannot truly do this unless you make the concerted effort to determine every single relevant detail of a law, and from that you will be able to analyze the accuracy of any aspect of any law.

Now consider you are not sure if a law comes from a divine mandate – from the Torah, or a human mandate – from the Rabbis. It makes a major difference now. This is because there is:

1) more leniency in regards to keeping Rabbinical laws because these laws are fallible. There is, inherently and always, circumstances in which Rabbis would find it acceptable to break a Rabbinical law.

The best example is when one has to choose between breaking a Torah law and breaking a Rabbinical law. If this choice were to come up, which may or may not come up that much, you have to keep the Torah law. Why? – because it is infallible, and a Rabbi’s authority is *almost* ALWAYS superceded by that of God.

2) a degree of fallibility for Rabbinical laws. Laws from God cannot be overturned. Unless God decreed we can break it in certain cases, there is no way to tear up a law straight from the Torah.

(for example, in the case of emergency you can and should break Jewish laws that would otherwise interfere with you attempting to save someone’s life).

Rabbinical laws however are man-made, and are enacted for a reason. Firstly, Rabbinical laws cannot break Torah laws, otherwise they are invalid. If a piece of Congressional legislation violates the cornerstone concepts of the Constitution, it is thrown out – the same with Rabbinical laws to the religion’s cornerstone laws from the Torah.

If the reason for enacting it no longer applies, then that specific law itself can come into question, as to whether or not we still need it. There are more details to consider, but this would be a major detail in these cases.

Plus, a Rabbinical law can be enacted to benefit the community. If the enactment is no longer beneficial, then the law can be brought into question.

So, if the law is Rabbinical, we need to be able to know this innate characteristic about the law’s source in order for us to determine if it has a degree of leniency, if it contains any errors, its continued relevance, necessity and benefits.

Then, there is custom. Customs have to be strongly adhered to in order to become binding. They are not legislated, and they do not have to have reasons for being initiated though many do: for symbolic value, respect, not being sure about something, etc.

When dealing with a custom, it is important to remember customs are carried on through family traditions and the traditions of the community in which a person is living. If someone moves from one community to another, it is – well – customary to take on the traditions of the people making up that particular community.

And just like Rabbinical laws, if they are against Torah law, they are illegal. If a custom is detrimental to a community, there is a strong argument in order for it to be nixed.

So there: it is always important to know where the law is coming from. Understanding whether or not you can do this or that thing, in this or that way, comes directly form your knowledge of which laws are made obligatory by God or by man. If you ever want to argue the validity of a law, you will not be able to argue something from God, but certainly you will be able to scrutinize something from the Rabbis or their interpretation of laws God may have phrased ambiguously in the Torah.

None of this means you will be able to overturn any major Rabbinical enactments, but trying to will get you a better understanding of the laws and principles they are built on then never exerting the effort for yourself. It is not that “it does not matter” where the law comes from because one would have to follow it anyway, it ALWAYS matters.

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