The Off-the-Books Law

Is it possible to have both a Written and an Oral Law? The answer is yes!

While the concept is enigmatic, from a legal standpoint, it makes complete sense.

The events in the Torah Portion Yitro reveal that an Israelite legal system existed prior to the Ten Commandments. Beyond that, a body of Oral Law was developing.

Yitro

A Yitro passage describes Moses’ lawgiver duties. The tasks were laid out in a famous exchange between Moses and his father-in-law, Jethro.

[Note: Jethro’s insights from that exchange transformed the jurisprudence world to present day. See Exodus 18:18-23 for the particulars.]

Moses’ description of his duties reveal the nature and extent of the existing law.

“…[T]he people come to me and inquire of God.

When they have a matter, it comes to me, and I judge between each one and his companion, and I make known God’s laws and His instructions.”

Exodus 18:15.

This passage contains two significant implications.

A set of laws existed and “off the books” legal opinions were being formulated. Moses, in rendering judgments, was educating the parties as to both laws and instructions. Those words remained in the ether of jurisprudence. Further, with each and every judgment or opinion, Moses arguably expanded the body of the Oral Law.

Thus, before the Ten Commandments, the Torah indicates that Israelite law existed. It did so to the extent that it was capable of resolving disputes via adjudication.

[Note: this concept is not radical. Legal systems, i.e. the Code of Hammurabi, had long been in existence at that particular point in time.]

Additional support for the legal system’s existence is that some commandments, i.e. Manna collection rules and the Passover meal rules, had already been issued. See Exodus 12-13 and 16.

[Note: This evidence reveals that even a Sabbath prohibition pre-dated the Decalogue.]

Further, when individuals came to Moses, they also sought opinions on ritual matters or one’s not involving disputed parties. Arguably, he helped individuals with directions to comply with various laws.

Oral Law

Oral law is essentially created when matters are adjudicated. Likewise, oral law can be created upon inquiry. For instance, the Internal Revenue Service may provide an advisory letter in response to a Taxpayer Inquiry. Such correspondence can be collected and published. In doing so, they enter into the legal corpus.

Thus, with each and every dispute and inquiry, Moses contributed to an oral body of law. His actions constituted both legal interpretation and application. For ritual matters, he likely provided clarification and direction.

To better understand why two sets of laws are required, the nature of legal systems must be appreciated.

Legal Systems’ Nature

The Torah, as a body of law, is incomparable to present-day systems. Modern legal systems are well organized and have established methods of jurisprudence. In contrast, the Torah reports on a legal system just beginning. Moses, in this portion, is advised by Jethro to begin the establishment of a judiciary. The process would involve training the individuals who would eventually take to the bench.

Further, The Torah is not organized within a modern framework. Additionally, the Torah’s intent was not solely to be a book of laws. It is a multi-purpose composition which also includes stories, history, poetry, building plans, and genealogies.

Organization

Presently, governmental legal systems organize their laws. They are divided into code sections. Subject matter, i.e. civil, criminal, probate, and labor, generally is the basis for the arrangement.

The Torah, in contrast, has various laws interspersed throughout the text. Further, the commandments’ subject matters can vary at times. Further, some Pentateuch laws are matters outside the bounds of governmental legal systems; they pertain to cultic practices or ritual matters.

Case Law’s Role

Jurisprudence also impacts laws. Many laws require supplemental materials in order to properly apply them. This is the court’s role; interpretation and application of the law.

In essence, case law -prior decisions involving similar fact patterns- help judges make rulings. Likewise, precedent cases interpreting the law provide guidance.

Finally, there are times when laws conflict with each other. In those instances, judicial guidance is of import. In lay person’s terms, in those circumstances, one law must supersede the other. A determination is required on this issue. [Note: In the United States, where there are both Federal and State Laws, there is a Federal supremacy clause. Federal Law is to take precedent over State Law.]

With the modern legal reporting- books of published decisions- the ability for both legal research and analysis is quite easy.

The Torah Law’s Uniqueness

The Torah includes commandments which are non-adversarial; i.e. ritual laws. These items, at times, require a legal interpretation so that they can be properly performed. In the Yitro passage, Moses indicates that people came to him to inquire of the Lord. Presumably, this passage may reference such a queries.

One of these ritual practices provides an excellent example as to the necessity for the Oral Law. It is the commandments concerning the act of circumcision or Brit Milah.

This act of the covenant illustrates the Torah’s need for supplementation. In essence, the Torah- standing alone- is insufficient in directing the individual attempting to fulfill the particular commandment.

Circumcision: Brit Milah

One of the Torah’s earliest commandments- circumcision- is located in the Torah Portion in Lech Lecha. The commandment’s wording raises many questions.

In Lech Lecha, Abraham is commanded to practice of foreskin circumcision. Abraham is told “…at eight days old every male shall be circumcised among you through generations…” Genesis 17:12.

From the passage, many procedural questions arise:

Who performs the procedure?

What instrument is used to perform it?

What time of day is it to be performed?

Can a circumcision be performed on the Sabbath?

With an ill child, should the procedure be delayed?

Given the multitude of inquiries, it is abundantly clear that additional legal clarification is required to fulfill the commandment. Thus, the need for supplemental material logically flows out of the law’s ambiguity and lack of completeness.

Oral Law’s Application

The conflict between the Sabbath and Brit Milah is the most interesting dispute coming out of the circumcision commandment. Which law takes precedent over the other?

This issue was addressed with Oral Law- the Talmud. The Talmud is Judaism’s Oral Law.

The Rabbis, in the Talmud, addressed many issues concerning circumcision. See Talmud Tractate Shabbos 131b. Within the Tractate, it was determined that the act of circumcision took precedent over the Sabbath. A Brit Milah can take place on the Sabbath. Thus, the Oral Law answered a question not covered within the Written Law, the Torah.

Conclusion

While the Oral Law concept is mystifying, Yitro assists in understanding how it developed.

Further, the concept of Oral Law is documented within the Written Law- the Torah. It shows how a secondary legal corpus developed. Moses’ advice on ritual matters and his adjudicating cases created a body of legal interpretation. This body of law, however, was not recorded within the Torah.

Thus, it is possible that some body of law was orally preserved or recorded outside of the Torah. The term “Oral” is somewhat of a misnomer. Over time, oral traditions are often eventually reduced to writings. Eventually, the populace’s access to the Oral Law became in the form of published books.

In essence, Moses’ jurisprudence and answers to ritual practice inquiries represent the beginning of Israelite Oral Law. The Oral Law’s intent was in part to bring clarification concerning the Torah- the Written Law. Further, with adjudications, case law references could be established as well.

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