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There are many events or practices in the Old Testament which might seem brutal to a modern Western person; for example, I remember reading a passage about a man who was stoned to death for collecting firewood on the Sabbath (Numbers 15:32).

I have read elsewhere that only 369 mitzvahs of the 613 are operative or applicable in a practical sense.

Of course, compliance with a governmental law in a political sense is a wise and sensible approach, and stoning any man to death in this age would be condemned by many.

But what is the theological or spiritual basis for this?

Is there some rule or law about "political laws override Biblical laws"?

Or is there some system of adjustment whereby Biblical laws are modified by the age or community in which Jews are living?

How does this get decided?

(I apologise if my question displays my ignorance. I am not Jewish, but I have read large sections of the Old Testament.)

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    The main rule is learned from Deuteronomy 22 about rape, that when one is forced to break the law against their will there is no punishment. Similarly if I can't bring a sacrifice on the day before Passover this year at the Temple in Jerusalem because building a Temple there would spark World War 3 and Jews would die, then it sucks but there's nothing I can do and God won't punish me. Or alternatively if I can't do certain things because I'm impure but can't purify myself without the procedure in Numbers 19 which I can't manage to do, it sucks but God won't punish me. – Double AA Mar 31 at 1:11
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  • @DoubleAA If you have sources to back up what you say in your comment, I should be thankful if you could convert your comment into an answer. I'm interested in the direction your comment is taking. – Stewart Apr 8 at 5:41
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The main (theological) principle of the change is the switch from prophet-guided Judaism in the era of receiving the Torah to the destruction of the First Temple to Sages-guided Judaism in the times of the Second Temple.

In short, during the Second-Temple era, it became widely accepted (for the Pharisee's lineage of course) that the Sages (aka Rabbis) have the free authority to interpret the Torah and not only to institute new laws but override the existing, Torah based laws.

That was based mainly on their [own] interpretation of the Torah verse "לא בשמים היא" - "the Torah is not in Heaven", metaphorically "the Torah is to be decided [by us] on the Earth". (please read the wiki in full). Additional strengthening of their point was their interpretation of another verse (Deut 17):

וְעָשִׂיתָ עַל־פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ ... וְשָׁמַרְתָּ לַעֲשׂוֹת כְּכֹל אֲשֶׁר יוֹרוּךָ׃

you shall carry out the verdict that is announced to you from that place that the LORD chose, observing scrupulously all their instructions to you.

While the verse is speaking of submitting to the decisions of the Supreme court only (the Sanhedrin), the commandment was expanded to following the orders of all the [accepted] Rabbis.

So from about 300BC, the Sages took the exclusive authority to decide on the active Torah laws - canceling some (like corporal punishment is dependent on the Temple) and adding many others.

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    I don't think this is true at all. The death penalty didn't stop because the rabbis overrode the existing laws. On the contrary, the death penalty is codified as law by the Mishnah and its successors. I don't think there is any source (certainly not from 300 BCE, or even for a thousand years afterwards!) that the death penalty was simply abolished. What you write might be correct for you philosophically, but historically this wasn't ever a reason given for ending the death penalty or corporal punishment (and there was even corporal punishment in the Gemara, it wasn't dependent on the Temple..) – b a Mar 30 at 19:01
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    @ba I didn't say they overrode - they interpreted them in such a way that corp. punishment depends on Sanhedrin by the Mizbeah etc. Would you wonder if the Sages claimed that the Torah is eternal and we should continue to kill the offenders? I see it possible, I don't see a reason in the Torah that clearly prohibits it. Now, I actually deleted that part not to embarrass us by saying that the Sages allowed the punishments even in cases that the Torah prohibited to (רוכב על סוס בשבת וסקלוהו באבנים). The Q was about the theological basis for that change and my answer addresses that point. – Al Berko Mar 30 at 20:16
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    You did say the overrode (I used your own language). You give the theological basis, but you present it as something from the Second Temple period or about 300 BCE, not as your own opinion – b a Mar 30 at 21:46
  • Alex's answer also says, Many other commandments that are no longer "operative or applicable in a practical sense" can also be traced to the lack of a Temple and associated services. Your answer seems similar, however, you have given "Not in heaven" as a theological basis, whereas Alex quoted Talmudic passages. I do not know how to weigh the divine authority of Talmudic passages, but your question has been downvoted and disputed by @ba. So I will need to study a bit more before knowing which answer to accept. – Stewart Apr 8 at 5:46
  • I have accepted this answer despite down-votes because "the Torah is not in Heaven" makes sense to me theologically speaking. I don't really understand why there were some down-votes. – Stewart Apr 23 at 5:22
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We can account for the abolition of the death penalty based on the following Talmudic passage:

Sanhedrin 41a

ותניא ארבעים שנה קודם חורבן הבית גלתה סנהדרי וישבה לה בחנות ואמר ר' יצחק בר אבודימי לומר שלא דנו דיני קנסות דיני קנסות ס"ד אלא שלא דנו דיני נפשות

And it has also been taught: Forty years before the destruction of the Temple, the Sanhedrin were exiled and took up residence in Hanuth. Whereon R. Isaac b. Abudimi said: This is to teach that they did not try cases of Kenas. 'Cases of Kenas!' Can you really think so! Say rather, They did not try capitol charges. (Soncino translation)

Rashi in his commentary there explains this:

שאין דיני נפשות בכל מקום אלא בעוד שסנהדרי נוהגת בלשכת הגזית שנאמר וקמת ועלית אל המקום מלמד שהמקום גורם וכיון דחזו דנפישי רוצחים ולא היו מספיקין לדון עמדו וגלו משם

For death-penalty cases are not [tried] in any place; only while the Sanhedrin is operating in the Chamber of Hewn Stone, as it says "and you shall arise and you shall go up to the place" [which] teaches that the place causes [the ability to try death-penalty cases]. And since they saw that murderers abounded and they wouldn't be able to judge them, they got up and exiled from there.

This rule is codified by Maimonides (Hilchot Sanhedrin 14:11 and 14:13) as follows:

אין דנין דני נפשות אלא בפני הבית והוא שיהיה בית דין הגדול שם בלשכה שבמקדש שנאמר בזקן ממרא לבלתי שמוע אל הכהן וגו' ומפי השמועה למדו שבזמן שיש כהן מקריב על גבי המזבח יש דיני נפשות והוא שיהיה בית דין הגדול במקומו

Cases involving capital punishment are adjudicated only when the Temple is standing. It is also necessary that the High Court hold its sessions in the Chamber of Hewn Stone in the Temple. This is derived from the statements of Deuteronomy 17:12 with regard to a rebellious elder: "who refuses to heed the priest." According to the Oral Tradition, it was taught: "At a time when there is a priest offering sacrifices on the altar, cases involving capital punishment are adjudicated." This applies provided the court is holding sessions in its place. (Touger translation)

ארבעים שנה קודם חרבן בית שני בטלו דיני נפשות מישראל אע"פ שהיה המקדש קיים מפני שגלו הסנהדרין ולא היו שם במקומן במקדש

40 years before the destruction of the Temple, capital punishment was nullified among the Jewish people. Although the Temple was still standing, since the Sanhedrin went into exile and were not in their place in the Temple, these laws could not be enforced. (Touger translation)

Thus, the abolition of the death penalty can be justified on theological/spiritual grounds, not merely as a concession to changing times but as mandated by the Biblical law itself.

Many other commandments that are no longer "operative or applicable in a practical sense" can also be traced to the lack of a Temple and associated services.

  • Aren't you simply answering judaism.stackexchange.com/questions/91681/…? I understand "theological grounds" when G-d says something. BC everything you wrote is disputable and does not provide the theological grounds, not something that G-d said I think. I still hold that the change is not traced to the lack of the Temple but to the change in approach. – Al Berko Mar 31 at 21:19
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    @AlBerko According to my answer God did say it: אל המקום – Alex Mar 31 at 21:23
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    I think the original text says בין נגע לנגע or בין דם לדם meaning civil law and Issurim only. – Al Berko Mar 31 at 21:24
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    @AlBerko But it was justified within the system of rabbinic interpretation. It's not just a "we don't feel like killing people anymore". Whether the system of rabbinic interpretation actually reflects God's original intent is a much more fundamental question than this. – Alex Mar 31 at 21:28
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    I think that this is the question - what theological (G-d based) permission is here to change the basic rules as described in the writings. – Al Berko Mar 31 at 21:53
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Great question.

The rationale for the changes in the laws of Torah in Reform Judaism can be found by consulting 'REFORM JUDAISM FROM THE POINT OF VIEW OF THE REFORM JEW' in Jewish Encyclopedia (online), where it is stated: 'The Law, often of non-Jewish origin, is the product of time, and is subject to growth and change in the course of time. . . . The laws regulating marriage and divorce, as developed more especially in Talmudic casuistry, often operate unjustly (see Get) and are, in view of the better provisions in the civil codes of modern nations, amended and in many respects superseded by the law of the land (see Monogamy). Woman is no longer deemed to be a minor, but is admitted to full participation in the religious life of the congregation.' This is essentially the thought expressed in the Chumash of Reform Judaism The Torah: A Modern Commentary (2005) edited by Rabbi Gunther Plaut.

For the changes in Conservative Judaism, see Etz Hayim: Torah and Commentary (2004).

For Orthodox Judaism, Rabbi Jonathan Sacks, former Chief Rabbi of England, in Crisis and Covenant: Jewish Thought After the Holocaust, states:

God’s Law is Unchanging, but Its Application Does Change

Torah does not change. But in one sense, halakhah does change. For halakhah is the application of Torah to specific circumstance, and circumstances change. What then are the parameters within which the law is given to adjustment? This is Maimonides’ classic formulation:

"God knew that the judgements of the Law will always require an extension in some cases and curtailment in others, according to place, event and circumstance. He therefore forbade adding to or subtracting from the Law … but at the same time gave permission to the sages–the Great Sanhedrin–of every generation to make fences around the judgements of the Law for their protection … and similarly they have the power temporarily to dispense with some religious act prescribed in the Law or to allow that which is forbidden if exceptional events and circumstances require it … By this method the Law will remain permanently the same but yet will admit at all times and under all circumstances of such temporary modifications as are indispensable."

So halakhah can and does change, but always to preserve the essential integrity of biblical law. We should note however that Maimonides makes a distinction that substantially tilts the balance of halakhah in the direction of conservatism. A protective decree or enactment created by the sages–a "fence around the law"–is permanent, whereas a suspension of the law is always only temporary." Rabbinic law, that is to say, has an inbuilt bias toward greater stringency over time.

Who May Authorize Changes in the Application of Halakhah?

This is compounded by the issue of juridical authority, hinted at in Maimonides’ reference to the Great Sanhedrin. This supreme court had considerable powers to create new law. But as its jurisdiction grew more circumscribed under Roman rule and as the center of Jewish life shifted to Babylon, Jewry was left without a central authority.

According to Maimonides, after the closure of the Babylonian Talmud no one had the power to legislate for all Israel. At most, a court was able to issue rulings for its own immediate locality, although some post-talmudic rulings gained widespread acceptance. The power to create new law had lapsed. The rebirth of the state of Israel led some thinkers, most notably Rabbi Judah Leib Maimon, to advocate the reconstitution of the Sanhedrin. But this would have required broad support among Israel’s religious leaders, and it was not forthcoming.

We would be wrong to conclude that there is no scope for development in Jewish law. For what cannot be achieved through legislation can sometimes be achieved through interpretation. A new problem is rarely so exactly like others in the past that precedent dictates an unequivocal answer to a halakhic query. Since there are differences in the details and circumstances, it can be argued that the extant rules do not apply to the present case. Halakhic authorities are constantly called upon to adjudicate new questions and, as we will see in due course, there have been areas in which significant changes have occurred in Jewish law in the twentieth century.

Change in Jewish Law is a Reality, Not a Value

But it would certainly be wrong to see change as a value in Jewish law. To the contrary, the central underlying proposition of the halakhah is that it articulates, within the limits of human understanding, the will of God as set forth in the Torah. Rabbinic tradition sees all valid Jewish law as inherent in the original revelation at Sinai. It is uncovered rather than made. Neither a prophet nor a sage has the authority to alter the terms of the covenant.

The rabbis were emphatic in seeing their interpretations and decisions as strictly continuous with biblical precedent. As the third-century teacher Rabbi Joshua ben Levi put it, "Bible, Mishnah, Talmud and [Aggadah], even what a senior disciple is due to teach in the presence of his master, were already stated to Moses at Sinai." Procedurally, therefore, any new ruling must be rendered consistent with the antecedent sources. Any departure from precedent must be temporary, justified by emergency conditions and undertaken with the express purpose of safeguarding Jewish law as a whole.

Developments within the halakhic system are thus homeostatic rather than evolutionary. They are undertaken to restore equilibrium rather than to transform. Halakhah is the application of an unchanging Torah to a changing world. Halakhah changes so that the Torah should not change. (See 'Orthodox Judaism and Halakhah' - My Jewish Learning.com

  • And in Rabbinical Judaism please... – Al Berko Mar 31 at 0:15

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