Thursday, July 11, 2013

What Law School Taught Me About Rabbinic Authority

In a post yesterday, I quoted Hagner's exegesis of Matthew 23, in which Hagner explained that Yeshua seemed to fluctuate between attacking rabbinic teachings and honoring the teaching authority of the rabbis.  Hagner reconciled the apparent discrepancy by concluding:

"[Jesus taught that the rabbis] are to be obeyed...to the extent that what they teach is not inconsistent with the true meaning of righteousness...[and]...to the extent that their teaching is in accord with the true intention of the Mosaic Law," [from the Jewish Reclamation of Jesus by Hagner]

When a teacher's teachings are challengeable then it is correct to identify the teacher's level of authority as "epistemic" or "expert":

"Epistemic authority [i.e. expert authority], however, involves the constant possibility of revision of conclusions, which does not accord well with the [idea] of Rabbinic authority as essentially unchallengeable," pg. 81 of Rabbinic Authority by Berger.

So what else may we deduce from Yeshua's assertion that the rabbis possessed expert authority?  Well, as it happens, I took Evidence, Basic Trial Advocacy, and Advanced Trial Advocacy in Law School.  So I'd like to now talk about what Law School has taught me regarding the expert authority of the rabbis.  While a lot of this deals specifically with American law, it's all based in logic and so it's easily applicable to an examination of rabbinic authority.

WHO IS AN EXPERT?

Under American law, we tend to define "expert" liberally (for the most part):

"Under Rule 702, the expert can acquire the [expert] knowledge or skill by education, experience, or a combination...The expert's background usually includes theoretical education and practical experience.
In the past, the courts have been fairly liberal in assessing the qualifications of proposed experts.  That liberality is understandable, since the test stated in Rule 702 is whether the witness possesses more knowledge or skill than the trier of fact, not whether the witness is a full-fledged specialist on the issue before the court," pg. 383 of Evidentiary Foundations by Imwinkelried.

WHEN MAY AN EXPERT TESTIFY?

The federal rules of evidence answer this question as follows:

"[The expert may testify if] (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case," (FRE 702).

HOW DOES ONE DETERMINE THE RELIABILITY OF THE EXPERT'S METHODS AND PRINCIPLES?

"...[Experts] must do more than simply tell the jury, in essence, 'trust me,'" pg. 375 of The Art & Science of Trial Advocacy by Perrin, Caldwell, and Chase.

Thus, we must use the following factors to determine whether the principles and methods are reliable:

(1) Can it be reliably tested?

(2) Has it been subjected to peer review and/or publication?

(3) Does it have a reasonably low error rate?

(4) Is it subject to professional standards?

(5) Is it generally accepted in the field?

HOW MAY ONE UNDERMINE THE AUTHORITY OF THE EXPERT TESTIMONY?

There are three primary ways:  (1) attacking the expert's qualifications; (2) attacking his motivation (i.e. uncovering biases or prejudices); (3) attacking the expert's basis (The Art & Science of Trial Advocacy).

I'd like to focus on the third aspect:  the basis of the expert's opinion:

"Once advocates demonstrate that experts have inadequate or unreliable bases for their opinions, the jurors are almost certain to discount the opinions as well.  Potential attacks on the basis include unsupported assumptions, inadequate or faulty preparation or investigation, lack of personal knowledge, and errors made by the expert in preparing his opinions," (ibid).

Of these potential weaknesses, I'd like to focus your attention on "unsupported assumptions":

"All experts make assumptions when they form opinions....But they are assumptions nonetheless, unproven facts, and they are critical to the validity of the opinions of most experts...In preparing to cross-examine an expert, the advocate should identify the assumptions that the expert has relied on in forming her opinion....Retain a consultant with a similar expertise who can help identify the assumptions relied upon by the opposing expert.  Then test the assumptions....Do they make unsupported leaps of logic?" (ibid).

APPLICATIONS

I think Yeshua wants us to both (1) challenge and (2) respect the teachings of the rabbis.

How do we challenge?  One such way is to examine the basis for the rabbinic opinion.  Does it conflict with the intention of Scripture?  Does it make any unwarranted assumptions?

How do we respect?  We treat the rabbis as presumptive authorities within their area of expertise;  We do not give them final authority--we do not say their decisions are unchallengeable.





8 comments:

  1. Agreed, there are those who state they believe the Torah cannot be understood outside of tradition or halacha or the authority of the Pharisees and thus later on the rabbis. However that idea is proven not correct in the fact that Yeshua challenged the Pharisees and he pitted the Halacha against the Scriptures as if they were completely separate, not to say all the Halacha is wrong, however scripture stood on its own. We see this in Yeshua making the distinction between the tradition and the commandment. Some teachers argue that there is no distinction between the tradition and the commandment, as "one cannot understand the commandment without the tradition", as they claim. Clearly this proves this claim false.

    ReplyDelete
  2. On Matt. 23:1-3 read this:

    http://www.torahresource.com/EnglishArticles/Oral-Torah_Background.pdf

    Go to page 15.

    ReplyDelete
    Replies
    1. Thanks, Dan! I'll check it out now.

      Delete
  3. I don't think that when Yeshua challenged some teachings of the Pharisees, that he intended to give individual believers of later times permission to do the same. The position of Yeshua as Messiah is unique. He gave halachic authority to the Apostles, but not to individual believers. Although we read of the Bereans in Acts 17:11 that they searched the Scriptures "whether those things — i.e. the messianic message — were so, they did this as a community.

    Halachah can only be established in the context of a proper chain of tradition and by the authorities who are the legitimate bearers of that tradition. The Protestant principle: "My Bible and I" — oftentimes rather "I and my Bible" — only leads to individual interpretations, which are always disastruous for developing community rules. This Protestant principle never functioned in the history of Israel. In ancient Israel, for example, the proper authorities were the levitical priesthood, and individuals were bound by their decisions, whether they were right or wrong.

    Messianics have to study two interrelated problems here. First, there is the problem of the Pharisaic Revolution. How do we deal with the fact of the historical appearance of the Pharisees as an authoritative class of which nothing is said in the Torah? Second, there is the problem that at present no one can claim proper authority in the Body of Messiah. All so-called messianic "Rabbis" and teachers are self-proclaimed.

    The Pharisaic Revolution probably occurred when the chain of the Aaronic High Priesthood was broken under Antiochus IV. From then on, there was no longer a legitimate High Priest in Israel according to the standards of the Written Torah, a situation which caused a very fundamental problem. The problem was solved by introducing new and non-biblical authoritative concepts, such as the Synagoge Megale or Great Synagogue, and by transferring the Priesthood to the Hasmoneans. Essentially, these changes implied the introduction of a new concept of Torah, later called "Oral Torah".

    Yeshua and the Apostles seem to have accepted the non-Aaronic High Priesthood of their days as legitimate, although this institution obviously contradicted the teachings of the Written Torah. This implies that they accepted the idea that in some cases the Oral Torah is above the Written Torah. In any case, it is impossible to reduce the Oral Torah to the authority of Scripture, or to deduce its rules from Scripture.

    We thus face two problems here: The problem of the authority of the Oral Torah and its historical origins; and the problem of how to establish proper seats of authority in the Assembly of Messiah.

    ReplyDelete
    Replies
    1. I don't think that when Yeshua challenged some teachings of the Pharisees, that he intended to give individual believers of later times permission to do the same. The position of Yeshua as Messiah is unique.

      This is an illogical equation, you cannot have Yeshua usurping the authority of God, and still being the Messiah. Also, Yeshua was not the only one to challenge the Pharisees, the Apostles did this as well.

      Although we read of the Bereans in Acts 17:11 that they searched the Scriptures "whether those things — i.e. the messianic message — were so, they did this as a community.

      Does not matter if it was done communally or individually, they searched the scriptures, as if they could understand the bible outside of tradition or halacha, that in itself is a problem for those who make the claim that it cannot be done.

      If your logic were to actually be applied today, not Christian should exist outside of Catholicism.


      Delete
    2. Messianic 613,

      While I don't agree with all of the assumptions you're making, I think it's great that you brought up so many different issues. I look forward to responding to all of your points fully after Shabbat.

      Delete
    3. I look forward to a conversation on this, after Tisha b'Av. What Messianics who practice Torah are oftentimes unaware of is how much of their observance is formed by the Oral Torah and by Jewish minhag. It is important to be conscious of this, and to recognize the interwovenness of all the factors that contribute to our practical observance.

      Delete
  4. There is a saying that I think fits nicely here:

    "There is a difference between honoring tradition and being bound by it."

    ReplyDelete