The Right Coast

March 02, 2005
Jewish law
By Tom Smith

I received this interesting from a reader regarding my contrasting of the law made by the Supreme Court and the law followed by Orthodox Jews:

you might be interested in my article, International
Law, US Sovereignty, and the Death Penalty, 35 Geo. J.
of Int'l Law 547 (2004). It's available on Westlaw or
at the following website . . .

also, as an Orthodox Jew, I would disagree somewhat with your characterization of the nature of Jewish law. While we do accept that G-d is the ultimate
source of the law, we also recognize the role of
rabbis in making law. One of the most famous stories
in the Talmud is that of the Tanur shel Akhani (the
snake oven), in Tractate Baba Meztia 59b. In that
case, Rabbi Eliezer has a disagreement with the rest
of the academy regarding the purity of an oven. He
performs various miracles to prove that G-d in on his
side in the debate, and in the end a bat kol (voice
from heaven) declars, "Why do you [other rabbis]
content with Rabbi Eliezer. He is always right in
matters of halakha." Another rabbi stands up and says,
"Lo bshamayim hi!" "It is not in Heaven," a quote from
the Torah, meaning that even G-d's dicates cannot
overturn the decisions of the majority of rabbis
(another verse says, "Follow the majority.") Rabbi
Eliezer is then excommunicated. Then, the story
continues, the prophet Elijah asked G-d for His
reaction. G-d laughed and said, "My children have
bested me."

I recommend the book, Not in Heaven: the Nature and
Function of Halakhah, by Rabbi Eliezer Berkovitz, and
the article "In Pursuit of the Countertext: The Turn
to the Jewish Legal Model in Contemporary American
Legal Theory," by Suzanne Last Stone, 106 Harvard Law
Review 813(1993), which explains the story and gives a
very balanced view of the role of divine versus human
authority in Jewish law.