A Refutation of the Divine Command Theory of Rabbinic Authority

There is a view gaining ground in the Messianic movement that credits Rabbinic Judaism with Divine authority--we'll call the Divine Command Theory [DCT].  The proponents are not even aware of the danger of this position--that it leads inexorably to the view that Halachic Codes have greater authority for practice than the New Testament!

Sounds crazy?  How could a Messianic ever allow a non-inspired text to have authority even over the New Testament?  I will now explain to you how it is not only possible but that it is already happening and may in fact be too late for some of the largest Messianic organizations.

First, I shall explain the implicit Rabbinic rationales for DCT, respond to those rationales, and then I shall explain the particular Messianic rationale for DCT which attempts to use Matthew 23 as a grant of Divine Authority to Rabbinic writings and respond to it.

The Rabbinic rationales for DCT are as follows:

(1) Power to Interpret Jewish Law.  Deuteronomy 17:9 refers to the "judge who is in office in those days" which is taken to mean that the institutional heads of Judaism have absolute authority to interpret Jewish Law.  Since the writings of the Sages were composed by the institutional heads of Judaism, the Rabbinic writings represent the official interpretation of Jewish Law;

(2) Power to legislate Jewish Law.  Numbers 11:16-17 refers to the establishment of the proto-Sanhedrin, a collection of leaders who are given "the spirit which is upon [Moses]".  The Sages of Rabbinic Judaism, while not having sat on the Sanhedrin, are a substitute for this institution and fulfill its role;

(3) Power to legislate/interpret Jewish Law (alternative theory based on Rabbinic writings carrying the authority of accepted practice).  Even if the Rabbis are not a substitute for the Sanhedrin or other judges, their writings have nevertheless undergone a transmutation of authority from personal to institutional by the process of their writings being endowed with the authority of accepted practice.  In Judaism, de facto authority is de jure authority.  Therefore, the Rabbinic Writings in partnership with contemporary communities, have collectively fulfilled the office of Moses.

Response to the Rabbinic rationales for DCT:

Of these rationales, the strongest by far is the third.  The other two don't work because Rabbinic Authority could never meet the criteria for the institutions referred to in Deuteronomy 17 and Numbers 11 and even if it did those institutions had very narrow jurisdiction and were not responsible for the legislation of halacha.  But the third rationale attempts to overcome these weaknesses by proposing that the real authority behind the Rabbinic writings is the authority granted from the contemporary institutions of Judaism--the authority of accepted practice.  If the end-product of Rabbinic Judaism--the Codes--have been accepted by a consensus of contemporary Jewish communities then that would make the Codes the de facto authority for halacha.

It's important to understand that Moses himself was bound by the Written Torah.  He was prohibited from making unConstitutional legislation, legislation that violated the letter or spirit of the Written Torah.  In other words, Moses was prohibited from going against the Divine will.  This means that he had to put into place measures to ensure that subsequent holders of the Mosaic office (i.e. various institutions) would not overstep their Constitutional authority.

One of these Constitutional safeguards was the prohibition of writing down the oral tradition (Gittin 60b).  Presumably, the fear was that a written oral tradition would finalize that which was intended to be continually evolving and, in the process of finalization, render unConstitutional errors permanent.

The Written Torah specifies that the oral tradition was a verbal dialogue:

"Every word [davar] which I am instructing you, you shall do it," (Deut. 12:32).

and:

 "..in each generation, the head of the court or the prophet of that generation would take notes of the teachings which he received from his masters for himself, and teach them verbally in public," (Rambam, Intro to Mishneh Torah).

There was deemed to be an ongoing dialogue between the halachist of each generation and G-d Himself:

  "A Talmudic expression of the dialogic view of revelation is the interpretation of the verse in Proverbs (1:8): 'Hear, my son, the instruction of they father, and forsake not the teaching (torat) of they mother,' where 'father' is said to refer to God, and 'mother' is said to refer to the community of Israel (Knesset Yisrael).  In this view, the Torah is revealed directly by God as well as through the community of Israel.  Torah is the product of an ongoing dialogue between God and Israel.  Accordingly, the dialogic view perceives the prophet as a 'partner in the work of revelation.'  An example of this perspective is the text, 'Rabbi Judah says: ...the Holy One, blessed be He, said to Moses:  Behold, I shall speak to you and you shall answer Me,'" pg. 25, In Partnership with God by Byron Sherwin.

The vertical dialogue took place between the halachists of each generation and G-d;  The horizontal dialogue took place between the teachers and their students.

Rambam describes the initial links in the chain of horizontal, oral transmission:

"Even though the Oral Law was not transcribed, Moses, our teacher, taught it in its entirety in his court to the seventy elders. Elazar, Pinchas, and Joshua received the tradition from Moses. [In particular, Moses] transmitted the Oral Law to Joshua, who was his [primary] disciple, and instructed him regarding it.

Similarly, throughout his life Joshua taught the Oral Law. Many elders received the tradition from him. Eli received the tradition from the elders and from Pinchas. Samuel received the tradition from Eli and his court. David received the tradition from Samuel and his court," (Intro to Mishneh Torah).

And Rambam goes on to describe the continuation of the transmission through the prophets, etc.

If it had been possible to effectively finalize the halacha in a code, would not these great men have codified the halacha?

It was because codification of halacha was impossible that they continued to transmit the oral tradition through the oral, dialogic process.

It's also important to understand that the dialogic process involved machloket (debate).  This active, critical process (as opposed to passive reception) ensured that any errors that came up could be resolved.  Debate was also seen as a necessary check to despotic tendencies which might eventually erode the supremacy of the Written Torah.  Nahmanides was a firm supporter of debating the supposed unquestionable authority of the Sages:

"...in thirteenth-century Spain, Nahmanides (Moses ben Nahman) expressed this view in his glosses to Maimonides's Sefer Ha-Mitzvot, 'Notwithstanding my ardent desire to be a disciple of the earlier authorities, to establish and maintain their views, to [adorn myself] by making their [views] a gold chain about my neck and a bracelet upon my hand, I shall not serve them as a 'donkey carrying books.'  I shall explain their methods and appreciate their value, but when their views cannot be comprehended by me, I shall debate before them in all modesty, I shall judge according to what appears best in my eyes...for God gives wisdom in all times and in all ages,'" (In Partnership with God by Byron Sherwin).

The Messianic Rationale for DCT:

The Messianic rationale for DCT is based on Matthew 23:1-4 which says:

"Then spake Jesus to the multitude, and to his disciples, Saying 'The scribes and the Pharisees sit in Moses' seat:  All therefore whatsoever they bid you observe, that observe and do; but do not ye after their works: for they say, and do not.  For they bind heavy burdens and grievous to be borne, and lay them on men's shoulders; but they themselves will not move them with one of their fingers."

Messianic proponents of DCT view this as a carte blanche authority for "normative" Judaism (i.e. the de facto authority of Judaism).

Response to the Messianic Rationale for DCT:

The response to this is twofold:

(1) Yeshua endorsed the pre 70 C.E. halachic system in which oral transmission was still employed.  For the reasons stated above, it is unlikely He could've endorsed the end-product of Rabbinic Judaism--codified halacha;

(2) The other problem with this view for Messianics is that Rabbinic halacha preempts all matters in which Messianics might like to someday establish their own halacha.  But if Messianics accept the divine command theory of rabbinic authority then they forfeit the right to establishing halacha that contradicts codified halacha--in effect, they grant the Codes a higher authority than the New Testament!

I've gotta run but I'll talk more about this later.  Hope everyone had a lovely Rosh Hashanah!