Monday, September 10, 2012

Rabbinic Abuses of Casuistry: How Rabbinic Halacha Negates Written Torah and its Spirit

Rabbinic Abuses of Casuistry:  How Rabbinic Halacha Negates Written Torah and its Spirit

"Howbeit in vain do they worship me, teaching for doctrines the commandments of men" (Mark 7:7).

"Then Jesus said to the crowds and to his disciples: 'The teachers of the law and the Pharisees sit in Moses’ seat. So you must be careful to do everything they tell you. But do not do what they do, for they do not practice what they preach. They tie up heavy, cumbersome loads and put them on other people’s shoulders, but they themselves are not willing to lift a finger to move them.Everything they do is done for people to see: They make their phylacteries wide and the tassels on their garments long'" (Matthew 23:1-5).

This is confusing, yes?  On the one hand, Yeshua criticizes the Rabbis for elevating man-made law to the level of Torah;  yet, on the other hand, He says "to the crowds and to his disciples" that they should obey these teachers of the law.  Is Yeshua contradicting Himself?

No.  Yeshua only has a problem with those man-made rules which would seek to overthrow the Written Torah (i.e the Constitution).

"Full well ye reject the commandment of God, that ye may keep your own tradition" (Mark 7:9)

How did the Rabbis go wrong methodologically to reach such bizarre conclusions, conclusions which run counter to the Written Torah or its spirit?  Perhaps one can only speculate.  But I do have a theory.  

There are several types of legal reasoning:  (1) principle-based; (2) casuistic; (3) and a hybrid of the two, a principle-based, casuistic approach.  In the Written Torah we see both principles and cases.

Why does the Written Torah employ a hybrid form for legal reasoning?  Because there are weaknesses inherent in casuistry.  But first allow me to explain the nature of casuistry.

Casuistry is case-based reasoning.  It occurs whenever there is a conflict of legal rules or a question of how to apply a legal rule(s) to a specific set of circumstances/people.  In other words, casuistry replaces ambiguity with clearly-defined practices/obligations.  So what could possibly be wrong with clarity and pragmatism?

The Written Torah saw some usefulness in ambiguity.  For example, the Written Torah could've said "There are 39 principle categories of prohibited work on Shabbat."  But instead it cited a few principles and a few specific examples.  It elected to leave things a little bit ambiguous. Why did G-d do this?  There must be advantages to flexibility and risks associated with rigidity.  The advantages had to do with practicality, efficiency, etc.  The risks of rigidity included impracticality, inefficiency, and endless taxonomies, limitless parades of particulars, and legal fictions that defy common sense and negate the Written Torah or its spirit.  In other words, an abuse of casuistry can lead to a host of evils.  But is there a correct way to employ casuistry?

If we were to elucidate a proper methodology for casuistry we might describe a process such as the following:

"Phronesis drives practical judgment in at least five distinct, discernible, and nuanced ways: (1) by bringing to bear ethical principles where appropriate; (2) by bringing to bear past experience on present situations; (3) by generalizing from analogous cases to present ones; (4) by working in tandem with special topics to guide inquiry by determining which issues are most relevant; and (5) by combining all four aspects above to bring together probabilities in their convergence in order to facilitate praxis. Enumerating these should clarify what Jonsen means when he writes, “above all, casuistic reasoning is prudential reasoning: appreciation of the relationship between paradigm and analogy, between maxim and circumstances, between the greater and less of circumstances as they bear on the claim and the rebuttals” (“Methodology,” p. 306)" (Sloane, Casuistry).

In short, proper casuistry has its uses.

This is why I'm advocating a collaborative effort in the Messianic movement to restore the oral tradition---to de-code the codifications of halacha and eliminate those provisions which conflict with either the Written Torah or its spirit.  

I believe that we'll have it up and running within a matter of years.  I'll keep everyone updated as we progress in this collaborative effort.



photo credit: ConanTheLibrarian via photo pin cc


  1. "This is why I'm advocating a collaborative effort in the Messianic movement to restore the oral tradition"

    Peter, do you realize how (I don't want to use hurtful words) it sounds? You condemn "rabbinic Judaism" and Talmud, but want to "restore" something that is oral from something that you think shouldn't have been written down in the first place and then you want to write it down yourself according to the tenets of the One Law movement!

    1. Gene,

      Thanks for being considerate of my feelings (although I assure you needn't be overly concerned).

      You should know though that the Talmud itself compares those who write down oral torah to those who burn the Scriptures. I wouldn't go that far. I'm not trying to judge them too harshly for how they adapted to a difficult situation and will readily concede the genius with which they attempted to preserve the oral nature of the tradition even as they committed it to writing.

      The methods I've proposed are not so different from the Rishonim in their quest to ascertain the principles of halacha. They didn't see the NT as Scripture--this is the difference. But we each saw the same need: recovering the principles of halacha.

      Re: " want to write [halachic rules] down yourself..."

      Not at all. Please read my post again to see that this is not my intent. I disagree with the codification of the halacha. And my opinion is supported by the Talmud itself.



    2. I like the idea of weeding out the conflicts. The Talmud does itself, but what would it look like with the Apostolic Writings. Like you mentioned, making sure every thing works within the resources we have. As there is value in many of the discussions in the Oral Traditions.

      It will be interesting to see where this goes.

    3. Zion,

      Re: "As there is value in many of the discussions in the Oral Traditions."


      Re: "It will be interesting to see where this goes."

      Agreed on both counts! We truly live in a fascinating time!