Sunday, August 17, 2014

How to Defend and Attack One Law: A Quick Look at the Legal Analysis Involved in Precedential Arguments (WARNING: NERDIEST POST OF ALL TIME)


Some musings from earlier...


Doctrine of Judicial Precedent:  

When an authoritative judgment has been made in case with a specific set of material facts then all future cases involving those same material facts must be decided in the same manner as the precedent case.  What this means in a Messianic context is that if G-d says something even way back in the "Old" Testament then it must be considered to be binding law unless it is specifically overruled.

Justifications for the Doctrine of Judicial Precedent:  

(1) Logical Consistency:  to decide two cases differently when the material facts are the same would be logically inconsistent (i.e. illogical); 

(2) Societal Disintegration:  if prior authoritative judgments may be disregarded then the result is a lawless society.

Analysis for Precedential Argument:  

(1) AUTHORITY:  Is a judgment being offered as law?  If so, it will only be considered binding law if it was issued by a mandatory authority (as opposed to a merely persuasive authority) and it has not been overruled and does not consist of obiter dicta; 

(2) APPLICABILITY:  Does the binding judgment apply to the case at hand?  The precedent judgment must apply when the material facts of the present case are the same as the material facts of the precedent case.

The Precedential Argument for One Law:  

(1) AUTHORITY:  Scripture says that there is one law for both the native Israelite and the convert (Heb. "Ger").

NOTE 1:  In a One-Law Context Ger Means "Convert":  In Deuteronomy 14:21 in the LXX, paroikos is used to translate "ger" because the LXX translators wished to make explicit that there are two types of "gerim", the gerim who are covenanted (proselutos) and the gerim who are not covenanted (paroikos).  The "Ger" in the "One Law" passages is therefore interpreted as referring to a convert and translated accordingly in the LXX.  These terms literally give the sense of a non-covenant paroikos being outside of the "house" of Israel (par meaning beside and oikos meaning house), whereas the proselutos is one who "approaches" and thus enters the "house."  

NOTE 2:  Teshuvah is the Initiatory Step in the Process of Conversion:  In the Bible, conversion is a process that begins with teshuvah, a turning from idolatry to faith in the G-d of Israel.  However, the conversion process for males is ratified by circumcision and finally consummated by participation in the Passover.  Thus, one crucial exegetical issue is whether One Law passages may be interpreting as referring to an uncircumcised "Ger."  If these passages can be read as applying One Law to an uncircumcised male who has been initiated into the covenant by faith then these passages become directly applicable to Gentile converts in the New Covenant.  And, in fact, there is a very sound exegetical case to be made that the "ger" in One Law passages includes uncircumcised males who have been initiated into the covenant by faith much like the very first convert in Jewish history, Avraham himself.  A key piece of exegetical evidence in this regard is the Hebrew term "asah" used in Exodus 12:48.  This term connotes obedience to a Divine Command.  Since, in 12:48, the "ger" who wants to "obey" (asah) the Passover has, in this passage, not yet been circumcised, this passages conveys that a "Ger" could become covenantally obligated (i.e. covenantally initiated) even prior to circumcision.

NOTE 3:  Does the "one law" in a One Law passage refer to all the mitzvot or merely the mitzvot involved in the immediate context?  For example, Derek Leman (UMJC), says that these passages only refer to the mitzvot of the immediate context (see: http://www.derekleman.com/musings/were-not-all-the-same/).  However, Rashi, a greater authority than Leman, says:  
"49.  One Law:  Not only with respect to the eating of the paschal lamb is the stranger equal to the native Israelite, but also in the duty to observe all other commandments [Rashi]."  pg. 399 of Soncino Chumash (edited by A. Cohen).

(2) APPLICABILITY:  Do the One Law passages in the Tanak apply to converted Gentiles who belong to the New Covenant?  

The formula for the precedent of One Law is as follows:

If A (material fact) then X (judgment).
If a Gentile is a covenantal member of Israel (A) then he or she is obligated to keep all the same mitzvot as a native Israelite (X).

Rather, than restate the overview of evidence that shows that (A) is satisfied for Gentile Believers in the New Covenant, I'll just refer you to a previous post:  http://orthodoxmessianic.blogspot.com/2014/01/the-basis-for-one-law.html

And so this is how a One Law proponent should reach the conclusion that Gentile Believers are obligated to keep all the same mitzvot as a native member of Israel.

How to Attack the Precedential Argument for One Law:

There are 2 ways to attack a precedential argument:  (1) attack the authority of the judgment being offered as law; (2) attack the applicability of the judgment being offered as law.

  • An example of tactic #1 is Derek Leman saying that One Law passages do not refer to all the mitzvot.  
  • Another example of tactic #1 is the assertion that "ger" in a One Law passage such as Exodus 12 can only be interpreted as referring to a circumcised convert (and thus cannot be used as precedent for the conclusion that uncircumcised male Believers are obligated to all the same mitzvot as a native member of Israel)
  • An example of tactic #2 is to cite to Scriptural passages as evidence that Gentile Believers remain excluded from Israel.


Shalom,

Peter

No comments:

Post a Comment