II. Sources of Law
There are 4 major sources of law in the Jewish religion
- Torah - This is the original writing of the law, and from which all
laws are based.
- Oral Law - Tradition states that at the time of the Torah, an Oral
Law was delivered at the same time - but not written down. Tradition
also states that each Oral Law can find a base in the written law.
The term Torah actually refers to both the written and oral portions
of the law, and Orthodox and Conservative Jews considered both oral
and written law as one. Oral Law was later written down by the Rabbis
and forms the
Mishna
portion of the
Talmud.
- Rabbinic Law - The
Pirkot Avot
says one should "build a fence" around the law. One of the many
interpretations of this statement is that we should formulate rules
which help us avoid violating the law. The early Rabbi's did this,
formulating laws to prevent violation of core law. Much of the law
we practice today is of rabbinic origin.
Rabbinic Law begins with the
Gamara
portions of the
Talmud,
and continues past the closing of the
Talmud.
The active tradition of rabbinic courts formulating law died out
soon after the
Talmud
. Later Rabbi's created Rabbinic Law through
responsa
and letters on particular issues, legal codas (like
Rambam
's Mishneh Torah and Karo's
Shulchan Aruch)
and herems (like R. Gershom's prohibition of polygamy and divorce
against the woman's will around 1000 C.E.)
- Tradition - The Torah defines the Jewish people as a holy corpus.
As such our practices and traditions themselves become holy. Long
standing practices can then take on the power of law. Traditional
practices may or may not be based on a law.
A good measure of how these affect practice is seen in the eating
of milk and meat. The Torah prohibits cooking of a kid in its
mother's milk. The Oral Law expands this to mean any mammal meat
can not be mixed with milk. Rabbinic Law widens this loop still
further, forbidding milk with bird meat in order to avoid confusion.
Tradition dictates how long one must wait before one can have milk
after eating meat.
The Orthodox believe that all four of the levels are strongly
binding. They believe that Torah and Oral Law are divinely given
and are immutable. Rabbinic Law is a gift of the sages, and that
we neither have the wisdom or knowledge (or in many cases a greater
court) to add or change it. Similarly, traditional law can not be
changed without a competent rabbinic court. They do recognize a
hierarchy in the law. For example when given a choice to violate
a rabbinic or an oral injunction, it is better to violate the
rabbinic one.
The Conservatives also believe that Torah and Oral Law is divine,
and thus binding. Rabbinic Law and tradition are not considered as
binding, but must be considered and understood before being amended.
To perform this function the Conservative organization has set up the
Committee on Jewish Law and Standards (CJLS)
which defines and revises Rabbinic Law and tradition.
The Reform believe that none of these laws are binding. However
since these practices are part of Judaism, they options for
observance by the modern Jew.
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