Wednesday, February 4, 2015

The 5 Elements of Oral Torah [UPDATED]

I'm going to try to define Oral Torah by explaining its role within a fully functioning legal system.  Then, lastly, I'll pose a question for consideration.

First, here's what a fully functioning legal system looks like:

  • Ursprungnorm:  the norms of the founding father (or founding fathers in the case of America).  These norms set the stage for everything that follows--the entire legal order;
  • Written (or unwritten) Constitution;
  • Constitutionally authorized legislative branch (because laws must be updated to changing times);
  • Constitutionally authorized judicial branch (because issues arise);
  • Body of Constitutional law;
  • Body of law created by the legislative branch;
  • Definitive explanations of the law from the Constitutionally authorized judicial branch.

So where does Oral Torah come into play?  Well, in Moses' era, since only the written law was the Written Torah itself (because there was a prohibition on committing secondary laws to writing), the Oral Torah would've had the following 4 elements:

(1) founding norms (i.e. everything inherited from Avraham, on up to the semitic tribal law, etc);

(2) necessary adjunct laws:  laws that were not found explicitly in the written Constitution (i.e. Torah) but which must've existed in order to explain ambiguities in the written Constitution (see a few posts back containing excerpt from Menachem Elon's "Jewish Law");

(3) legislation:  the body of law created by the Constitutionally authorized legislative branch;

(4) definitive explanations of the Law as explicated by the Constitutionally authorized judicial branch.

(5) textual tradition:  the tradition that transmits the text of the written Constitution along with its interpretation

In my opinion, rabbinic halachah does not satisfy these 4 elements and so it is not the Oral Torah (although it functions as an advisory authority as to what the Oral Torah might've contained).


Since my idea of the Oral Torah is the 4 elements listed above, I'm actually using this term in a completely different sense than the rabbis.  Zion pointed out that this is very confusing.  So going forward I will try to find another term to use to refer to the 4 elements.  Any ideas?

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