No, Rabbi Cardozo, the Torah is Not Flawed

This article first appeared in Times of Israel.

Rabbi Dr. Nathan Lopes Cardozo’s The deliberately flawed divine Torah is by far the most problematic article yet by this writer. Whereas Rabbi Cardozo has written that he did not fully observe Tisha B’Av this year, and has called for dispensing with the Codes of Jewish Law and the abolition of Halacha that strikes him as regressive (please also see here), Rabbi Cardozo has now accepted the approach of the Conservative movement, which postulates that Halacha is not objective divine truth, is not fixed, and that it must change in accordance with the values of the times and with various needs.

Rabbi Cardozo’s position is that this is all somehow part of God’s plan — yet it is difficult to distinguish this from the “Divinely Inspired/Ongoing Revelation” theology of Conservative Judaism. Rabbi Cardozo’s introductory verbiage underscores this notion (notwithstanding his invoking a Hasidic source which most certainly did not mean that the Jewish People were not present for the Giving of the Torah):

I believe that the Torah is min hashamayim (“from heaven”) and that its every word is divine and holy. But I do not believe that the Torah is (always) historically true (sometimes it seems like divine fiction), or that it is uninfluenced by external sources. On top of this, I am reminded of the observation by the famous Hasidic leader Rabbi Menachem Mendel of Rimanov, who suggested that the children of Israel heard only the alef of Anochi of the Ten Commandments, which means that they did not hear anything since one cannot pronounce the alef!

Rabbi Cardozo continues:

Nor do I believe that its laws, literally interpreted, are all morally acceptable. They are not. Rather, I believe that the Torah is often morally, deeply, and deliberately flawed, and that furthermore, God Himself intentionally made it flawed.

Rabbi Cardozo proceeds to argue that the Sages invented axioms to correct the Torah’s flaws — flaws that signal the Torah’s defective morality — as part of a divine scheme for humans to perfect the Torah on their own. In other words, maintains Rabbi Cardozo, the role of the rabbis is not to objectively interpret the Torah and draw forth its rules, rooted in Sinaitic principles; rather, the rabbis had a progressive agenda to correct the Torah and bring it up to date. Please see Rabbi Cardozo’s article for his full presentation of this hypothesis.

Early Conservative rabbis promoted this same exact idea by claiming that the Oral Law, Torah Shebe’al Peh, was a rabbinic invention, such that Oral Law/Talmudic interpretations of biblical precepts were really fabrications of the Sages, responding to contemporary values and needs. The Conservative argument was that since the Talmudic Sages of antiquity could “reinterpret” the law in accordance with their subjective goals, so too can modern rabbis, for there is no tradition of fixed law.

The mechanism of prozbul was especially cited by Conservative rabbis as “proof” that talmudic law represented progressive reinterpretation and even abolition of “problematic” Torah concepts, so as for these Conservative rabbis to thereby grant themselves similar license to modify Halacha in modern times. Hence did the Conservative movement in the mid-20th century permit driving to synagogue on Shabbos and permit Kohanim to marry women whom the Torah forbids to them. We see today how far the Conservative Movement has strayed from fidelity to Halacha, and it is largely based on the movement’s early stance toward the Oral/Talmudic Law.

Rabbi Cardozo likewise claims that the Sages of the Talmud fabricated exceptions and loopholes which are not permitted by the Torah itself. While it is interesting that Rabbi Cardozo does not cite prozbul as an example of such, the Talmud (Gittin 36) specifically addresses our point, bothered and refusing to accept the fact that the Sages (Hillel, in this case) could institute something that violates the Torah. The Talmud takes pains to explain that of course, Hillel’s enactment of prozbul did not violate anything in the Torah, and the talmudic discourse spans a full page elaborating why prozbul is not a violation of Torah Law and is not an inauthentic fabrication.

In his introduction to his Commentary on the Mishnah, the Rambam writes that every Talmudic interpretation of biblical law is Sinaitic. For example, the Written Torah does not specify how kosher slaughter, shechitah, must be done, but the Talmud explains that there are five basic rules of shechitah; these five rules — and all other Talmudic interpretations of the Written Torah — are Sinaitic, and one is not allowed to claim that they are mere fabrications of the Sages.

In this light, the Talmud presents the four example cases cited by Rabbi Cardozo (“an eye for an eye” being monetary punishment, ben sorer u’moreh/rebellious son, etc.) as part of the Sinaitic Oral Law; there is absolutely no basis in our tradition to claim otherwise, and to do so places one squarely into the camp of the Conservative movement.

Yet there is something even more fundamental going on.

We read in Tehillim 19:8: “The Torah of God is perfect, restorative to the soul.” The claim that the Torah is flawed, even as part of a divine scheme, contravenes our entire tradition and is certainly without source or basis from the perspective of Orthodox Judaism. One of the major themes expounded upon by Rav Joseph B. Soloveitchik, of blessed memory, is that of surrender to the values of the Torah, even when these values stand in conflict with contemporary morality. Rav Soloveitchik presents this concept with great detail in his discussions of the Akedah, the Binding of Isaac, and elsewhere. But it is not merely a belief of Rav Soloveitchik. The total perfection of the Torah as a moral code, in terms of both its regulations and values, and the Jew’s duty to yield, submit and lovingly accept the Torah’s regulations and values as perfect, are the basis for all that Torah tradition represents. For Rabbi Cardozo to deny this concept and assert that the Torah is flawed and partially immoral, even as part of a divine scheme that Rabbi Cardozo creatively hypothesizes, is a smack in the face of the Torah and our mesorah (religious tradition). It is not the Torah that is flawed, but it is rather Rabbi Cardozo’s critique of the Torah that is flawed.

I have friends who were profoundly impacted by Rabbi Cardozo in his early days as a master lecturer in hashkafah (Jewish philosophy) at a famous Jerusalem yeshiva. I think that all of us one way or another benefited from Rabbi Cardozo’s early writings, as an expositor par excellence of authentic Torah perspectives, using scholarly academic tools to reach the minds of those who otherwise would not appreciate the material. We are quite saddened by Rabbi Cardozo’s departure from this model and his embarkation on a path of subverting Torah teachings and Torah authority. We long for the previous Rabbi Cardozo to reemerge and again spread the light of genuine Torah wisdom.

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104 Responses

  1. Shmuel W. says:

    Yasher Koach R’ Gordimer, Cardozo’s rhetoric is disturbing and stands in contrast to Orthodox’s claim to objective truth. His subjective morality leads to the complete emasculation of Judaism’s beliefs and values in favor of current trends. I wonder if he thinks Yiddishkeit’s views on intermarriage is something we need to update, perhaps b/c he can selectively quote the Talmudic views on intermarriage and then view it as immoral and in need of updating.  We need ppl like R’ Gordimer who will stand up for the truths of Torah regardless of current popularity on FB or in the secular Jewish press.

    • Frank says:

      There are contradictions between the Torah and orthodoxy. ir nadachat for example. why does  the Torah give this Law if it cannot be implemented? if it is given as an example, then it is not practically true.

  2. Steve brizel says:

    Rabbi Gordimer once again has demonstrated how a provery profound and deep Baal Machshavah has moved well into the RDH and RYGode of thinking by denying the meaning of Kabalas ol Mitzvos,the effect of Matan Torah and by claiming that TSBP is RL a rabbinically created legal fiction. What a tragedy that such a profound thinker has evolved in this direction

  3. mb says:

    Just so that I understand R.Gordimer’s position.

    God dictated the eye for an eye narrative (identical to Hammurabi)to Moses to be written in the Torah and concurrently said this not what it means, it’s financial compensation, now teach that orally.

    Is that your understanding?

    • Avrohom Gordimer says:

      It is not “my” understanding. See Bava Kama 84a, Rashi, etc. Rav Weinberg zt”l of Ner Yisrael was of the opinion that Hammurabi demonstrates the truth of our Medrashim about the spread of Avraham’s teaching. How else do we explain these two unique documents in the context of a region controlled by authoritarian warlords? Clearly one is derived from the other, but the moral code of Hammurabi is lightyears removed from our own.

      • mb says:

        I wasn’t trying to compare Torah morality to Hammurabi.It’s just those exact words appear some 500 years earlier than the Torah text. My question, which I’m not sure if you answered it or not concerns when Moses learned it was financial compensation. If it was on Sinai, how do you explain the repetition of the same phrase in Leviticus, and again some 40 years later in Deuteronomy?

      • Avrohom Gordimer says:

        As that phrase, whether appearing in Lev. or Deut., according to the Oral Torah, means monetary compensation. The reason it is phrased in the Written Torah (in both places) as corporal punishment is that such represents Midas Ha-Din – what indeed should occur, were the Torah not to have instead applied the punishment as monetary.

      • mb says:


        Not wishing to beat a dead horse, but your response evades the question. I repeat, in Ex. Moses learns of an eye for an eye but(according to the oral tradition) God tells him it’s financial compensation, now teach it as such. It’s repeated in Lev. as if nothing had refined the law, and then again in Deut., which is Moses’ own words, without a hint of a change in meaning. Surely it’s a leap of faith to accept that this particular oral law and every other one was given to Moses at, or around that time? If one doesn’t accept that premise, is one a heretic? I’d appreciate a yes or no answer, please

      • Avrohom Gordimer says:


        Yes. You either believe the Mesorah, or you don’t believe the Mesorah.

      • Frank says:

        I quote Rav Gordimer:

        “The reason it is phrased in the Written Torah (in both places) as corporal punishment is that such represents Midas Ha-Din – what indeed should occur, were the Torah not to have instead applied the punishment as monetary.”

        In other words, you are mimicking what Rav Cardozo says but in a more Hareidi accent. You are saying that the Written torah is saying one thing, which is not halacha l’maaseh, but only an intentional diversion from the Truth. yet you attack Nathan Cardozo because he speaks in a more secular accent and and is saying exactly the same thin as what you are saying!

      • Avrohom Gordimer says:

        Rabbi Cardozo maintains that Chazal fabricated their TSBP interpretations in order to restore morality to the Torah, and that is (somehow) what God wanted them to do.

        I wrote that the TSBP interpretations of Chazal were Sinaitic – not fabricated – and that the Torah is perfect and not immoral.

        There is a world of a difference.

      • Ben Bradley says:

        mb – not sure why the repetition in sefer Vayikra and Devarim of the lex talionis law disturbs you. The written Torah says one thing and the oral Torah told to Moshe adjusts it. That’s regardless of how many times the same law is repeated in the written Torah. God didn’t change his mind. The written Torah is as it is for a reason and the Oral Torah is also for a reason. The two of them together form a single entity known as Torah. That’s the position of Chazal throughout the writings and many midrashim are clear about this.

        Just to point out that the Oral Torah was given in its entirety in the first 40 days on Sinai before any of the written Torah, according to Chazal. So the lex talionis law in Exodus was also after Moshe was told the Oral Torah.

        This position is consistent throughout the writings of Chazal and Rishonim. There’s a lot to add about the subsequent process in the Oral Torah but the basics of the Oral Torah being given to Moshe on Sinai in addition to the receipt of written Torah is consistently accepted

      • Ben Bradley says:

        And your comment about a leap of faith is incongruous. There are no leaps here, only faithfulness to the body of information passed on to, and recorded by, Chazal. Without getting into the debate as to which midrashim are intended literally or otherwise, the writings of Chazal as to the process by which the Torah was received has been understood as historical record by every generation of Torah scholars. See Rambam’s shorashim for further information on this, the commentaries on the beginning of pirkei Avos, and Rambam’s hilchos mamrim for the status of one who holds otherwise about the status of the Oral torah

      • Frank says:

        But Rabbi Gordimer, you yourself are now saying that the Torah contains “flaws” i.e. the clear meaning of actual eye for an eye, with only the benefit of Chazal telling us otherwise.  If you only had the Torah as source, without learning chazal, would you reach the same conclusion as Chazal?

      • Tal Benschar says:

        Apart from what Ben Bradley said, which I agree with, the following statement of mb is not true:
        “[I]in Ex. Moses learns of an eye for an eye but(according to the oral tradition) God tells him it’s financial compensation, now teach it as such. It’s repeated in Lev. as if nothing had refined the law, and then again in Deut., which is Moses’ own words, without a hint of a change in meaning. “
        This is simply not true.  If you look at the psukim in Vayikra 24:18-20 they do clearly hint that the phrase means monetary compensation:
        יחוּמַכֵּה נֶפֶשׁ בְּהֵמָה יְשַׁלְּמֶנָּה נֶפֶשׁ תַּחַת נָפֶשׁ:
        יטוְאִישׁ כִּי יִתֵּן מוּם בַּעֲמִיתוֹ כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ:
        כשֶׁבֶר תַּחַת שֶׁבֶר עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ:
        :כאוּמַכֵּה בְהֵמָה יְשַׁלְּמֶנָּה וּמַכֵּה אָדָם יוּמָת
        Possuk 18 is clearly calling for monetary compensation for property damages – that is what the fourth word means.  And then it immediately uses the phrase nefesh tachas nefesh.  The next two psukim then discuss bodily injury and use the same phrase, and then it repeats compensation for property damage (damages to animals are treated by the Torah as property damage, that is very clear in both Torah she be al peh and she be ksav).   That certainly strongly hints that the middle two psukim are talking about monetary compensation, not wounding the person.  (The last phrase then returns to the one case we DO inflict physical punishment for, murder.)
        (I once saw this, or something close to it, in the name of the last Lubavitcher rebbe.)

      • Tal Benschar says:

        “But Rabbi Gordimer, you yourself are now saying that the Torah contains “flaws” i.e. the clear meaning of actual eye for an eye, with only the benefit of Chazal telling us otherwise.  If you only had the Torah as source, without learning chazal, would you reach the same conclusion as Chazal?”

        No he isn’t.  What you are missing is that the Torah has mutltiple layers of meaning. The pshat is there for a reason.  The person deserves to have that punishment inflicted.  It is a moral message.  At the same time, the Torah is also a book of laws for the judges, and they follow the TSBP that prescribes monetary payment.

        R. Aharon Soloveichik once pointed out a Rambam that expounds on the possuk <i>lo tikchu kofer le nefesh rotzeiach</I>, which forbids taking money to avoid capital punishment (or galus) for murder.  The Rambam contains an inference that one may accept money, specifically kofer, in a case of bodily injury.  So the payment is, acc. to the Rambam, a kind of kofer — a payment to avoid a harsher punishment.  That’s why the Torah expressed the person’s obligation in terms of wounding — because morally he should be, but the Torah allowed him to pay compensation instead.

        That is why comparing the Torah to any other law book can lead to problems.  Torah has multiple layers of meaning.  The same possuk can contain a moral and legal message.

        As for only having Torah without Chazal, that is exactly the point — you need Torah she be al Peh to understand Torah she be ksav.  The two are meant to complement each other, and clearly without one you may well be mislead.

      • mb says:

        Ben Bradley,

        The twice repeated law of lex talionis doesn’t disturb me at all. it’s the contortions of the fundamentalists that disturb me, including Tal Benschar’s below, as if I wasn’t aware of it. Think logically, and rationally, if you can. Why would Moses, in his last will and testament, so to speak, repeat something that is incorrect?(And worse. This document went “missing” for a certain period of time and surfaced unedited? And please don’t say I deny the authenticity or the authority of the Oral Law. But we are not permitted to accept nonsense. That’s in the written Law!

      • Ben Bradley says:

        mb – you’re now displaying some difficulties in reading comprehension. Your perplexity as to why Moshe wrote the same thing in Devarim, even though he knew the Oral Torah adjusts the law of the written Torah, has already been explicitly addressed. But I’ll repeat myself for further clarity. The Written Torah expresses the law in one way for specific reasons beyond what is possible to usefully discuss here and the Oral Torah tells us how the law is implemented. Moshe wrote ‘an eye for an eye’ even as he taught financial compensation, because they’re two sides of the same coin. If we only knew about financial compensation we would be lacking in our understanding of justice in Gods world. I hope that’s logical and rational enough for you because it was for the Rambam, who addresses this discrepancy himself in the Yad. Now go read the commentaries.

      • Sarah Elias says:

        mb – your confusion is difficult to understand.  “An eye for an eye” is not a mistake which Chazal corrected to mean monetary compensation.  It was originally written with two levels of meaning, one on the moral level and one on the practical level.  Why shouldn’t Moshe repeat it later on?  Both levels were still valid 40 years later, as they are still valid today.

        I’m sorry to say this, but your question seems to show your miscomprehension of the material.

      • Frank says:

        “I wrote that the TSBP interpretations of Chazal were Sinaitic – not fabricated – and that the Torah is perfect and not immoral.”

        But, dear Rabbi – the Mishnah has the Sages saying that the Sanhedrin applying strict Torah justice is achzari – bloodthirsty. How can the Torah be both murderous (as per the Mishnah)  and at the same time perfect? If it was already perfect, how then can they improve on it?  The Mishnah itself is saying 3 different things – they are not all practical halacha.

        Btw, Rambam says that someone who interprets “that hand shall be cut off”  [woman grabbing the man by  private parts] as literal is a heretic.  But we have no evidence that this was ever practiced practically. We do have evidence that Moses and King David executed people for violations of the Torah, an in David’s case for violation of other agreements for examples.  So we cannot say that David was imperfect or achzari? That is the problem. I don’t think anyone has a perfect answer to this problem.

      • mb says:

        Ben Bradey,

        Receiving the oral at Sinai 40 days before the written, actually makes the proposition worse. According to that, Moses wrote down a lie, 3 times.I don’t believe Moses would have done such a thing. You are comfortable with it. And I’m the heretic? Hmmm.And did Moses receive all of Mishna Megilla in those 40 days? Yes or no answer please.



      • Ben Bradley says:

        mb – You don’t seem to have addressed my explanation at all. I can’t explain it any more clearly, so I won’t try.

        Also, this is the second time in this discussion that you’ve requested a one word answer to a question. That is neither a reasonable nor a sensible request since complex issues don’t have one word answers. Nonetheless I will answer your question with one word  – No. Mishna megilla was not given on Sinai. Because the mishna was written by in its current form by R. Yehuda HaNasi. The mishna and the Oral Torah are not synonymous. There was an original Oral Torah given on Sinai and a process by which it was transmitted culminating in the mishna and gemara as we know them. That process has been given book length treatment and is way beyond what is possible to discuss here. I’ll give you a reading list if you’d like.

  4. Yossi says:

    I couldn’t agree more. I’ve read some of his earlier works, which were amazing DEFENSES of Torah, and found an amazing article with tens of footnotes that was the best single article refuting so much of Bible criticism while giving me an understanding of something I didn’t know much about. He was a passionate defender. Now, to be honest, he sounds like he drank the Kool Aid and is what my father, Z”L would call an “איפכא מסתברא–ניק”. It just seems that whatever the traditional point is, he just wants to do away with it. And while he is certainly a scholar and can cite so many sources and footnotes, his arguments are completely single minded and formulaic.

    Dissent, rebellion, counterculture, do away with the Halacha, I can’t mourn for Tisha B’av, the Torah is flawed, I’m mad at Hashem, the Rabbis make stuff up- I mean come in, with all due respect, he’s like a (precocious and smart) high school kid. He still gets an audience because some people feel that if he says it, it must be ok, but he’s just not. As we used to say in Yeshiva, he went off. While I know labels aren’t helpful, I don’t really see how he can be considered a maamin.

    I would just tell him “Listen rabbi, it was a pleasure while it lasted, and we’re so sorry it’s over. We’re done”. There’s really not much else to say.

    • Steve Brizel says:

      Let me suggest the following-R Meir didn’t only accept that which was worthwhile from Elisha Ben Abuya ( “Acher”) but ran after Acher until Acher’s last day on earth to ask him to do Teshuvah-which Acher tragically viewed as beyond his pale because of his mistaken reading of a verse in Tanach-R Meir’s conduct illustrated why Chazal in Erachin 16 emphasize that even Tochacha can be given even from a talmid to a rebbe,

  5. Shmuel says:

    What happened to Cardozo? A personal tragedy of some kind? He wasn’t always like this. He was rational and thoughtful man 25 years ago when I first heard him.

  6. lacosta says:

    lekaf zechus, one could have a variety of dementias that could be manifested by krum thinking…

    otherwise one must recall that even a long-time kohen gadol can go OTD….


  7. DF says:

    The fact is that R. Cardozo –  conservatives, let us say –  are essentially correct in much of what they posit. I don’t know how any thinking person can disagree with his article on Tisha B’av, for example.  Their undoing is only the reality that the slope is slippery indeed. So what we have is a situation where the truth lies somewhere in the middle of a slide. The orthodox, for fear of that slope, remain permanently frozen at the top, unable to descend. The conservatives decided to take the plunge, but slid right past the goal without being able to stop. A few individuals have inched a little bit up or down the slide, but basically we are forever perched at the edges, each side beckoning the other to join them, and each side thinking the view is better from where they stand. Kind of sad, in a way, but really just a part of life.


    • Avrohom Gordimer says:

      I am astonished by your claim that Rabbi Cardozo is “right” about Tisha B’Av. There is no Beis HaMikdash. Instead it is a “holy site” where the only people who can pray there also stockpile rocks to throw at defenseless Jews. Our situation is precarious, and in this Rabbi Cardozo’s position seems extremely callous towards the thousands of Israelis personally affected by demonic hatred of Jews and attacks upon them, yes, in our Holy City itself.

      • DF says:

        You are rationalizing. Precariousness, which has been a fact of life all throughout Jewish history other than the time of Shlomo, is not a factor in Tisha B’av. It is about the destruction of Jerusalem, period. Eicha speaks of a desolate pile of rubble, where jackals prowl. Simple honesty compels one to admit that it is no longer true. Many well known rabbonim will not say the bracha of Nachem, again, because the words in it are simply false. R. Cardoza is simply going one step further. Now granted, this leads directly to the slippery slope problem I mentioned. So maybe R. Cardoza is wrong to do what he did, for that reason. But our orthodox way of doing it – frozen in time at the top of the slide – leads people into saying Kinnos and Tefilos that are simply and unequivocally false. (Notice, by contrast, how  ולירושלים עירך  in the amidah does not present these problems.) It is a problem capable of no resolution yet devised.

      • Avrohom Gordimer says:

        The Beis Ha-Mikdash is still not built, Har Ha-Bayis is in the hands of our enemies, and the religious glory of Yerushalayim has not been restored. That is Churban. Please read Rav Soloveitchik’s shiur on Tisha B’Av in Noraos Ha-Rav for the Rav’s dramatic and emphatic demand not to forsake Tisha B’Av.

      • Frank says:

        Prof urbach and rav hartom declared the fast was over, because Jerusalem is rebuilt. Cardozo is not saying the fast is cancelled, but that we must look at Jerusalem of today. we still have shibbud malchius, but not to the same degree.  rav Goren also made or suggested some changes, but only the haredi extremists say he was conservative.

    • Steve Brizel says:

      Temporal and/or political control over all of Jerusalem should not be confused Har HaBayis Bayadeinu with the full unfettered right and power to build Bayis Shlishi. That fact of life is why we read Kinnos on Tisha BAv

  8. dr. bill says:

    Though Rabbi Cardoza certainly has a tendency for edgy rhetoric, 1) he claimed those present at Sinai heard nothing not their absence and 2) is (perhaps overly) influenced by academic Talmudists, Prof. Christine Hayes in particular.  Her views are more sophisticated than those of Conservative scholars of old.  the key is that both rabbi cardoza and prof. hayes consider the Torah as divine although the impact of its divinity is very differently conceived.   in truth Rabbi Cordoza’s view require significantly more grounding than he provides.   he does himself no favors.

  9. BenSaul says:

    While I am not defending Rabbi Cardoza, my reading of his essay was different than Rabbi Gordimer. It seemed to me that he clearly does believe in torah min hashamayim, and that Hashem mandated the Oral Law. If I understood him correctly, his position is that the Torah -given by G-d- was given by Him with a less than perfect structure to allow the sages to add the perfection necessary, and that certain mitzvos were given in a less than ideal state due to the current state of the Jews. This was the position of the Rambam on sacrifices, and seems to be a fair proof to his theory. While that particular viewpoint is troubling for other reasons,  it cannot be compared to the conservative position, which doesn’t believe in Torah min hashomayim at all.

    I do not want to defend his positions and kudos to Rabbi Gordimer for the article, and the links. But I believe the comparison to the conservative position in this specific issue is not valid.

    I was actually quite surprised at some of the “proofs” that Rabbi Cardoza used. Some of them were quite weak, but I am not getting into that on this forum.

  10. Frank says:

    Rabbi Cardozo is being very honest, so that’s is why  you don’t understand him. I heard in a shout once that if we didn’t have the oral Law, we would count the omer starting on the Sunday. ie we need the oral Law to teach us that we count from 2nd night of yom tov. he is explaining the difference between orthodox and karaites. Karaoke’s read literally, so eye for an eye is literal. orthodoxy reads it different from the plain meaning.

    ORTHODOXY sees the Torah as being fictional in many instances, eg anyone who says David sinned is mistaken. despite the Tanakh and navi saying he did sin. so we consider that he did not sin , and did not have adulterous relations.

    • tzippi says:

      I don’t see the Torah as being fictional in the case of King David. I see the sages’ line of “All who say David sinned are mistaken” as meaning that one needs to read the text carefully and with a full awareness of the halachic background to his actions, and then one realizes that the simple text cannot be true.

      Just as G-d wrote, “Let us make man,” knowing that there would be those who would misconstrue “us”, so too there is seeming ambiguity, to teach us a greater lesson. I don’t consider this fiction.

    • Tal Benschar says:

      “ORTHODOXY sees the Torah as being fictional in many instances, eg anyone who says David sinned is mistaken. despite the Tanakh and navi saying he did sin. so we consider that he did not sin , and did not have adulterous relations.”

      This is a distorted view of what Chazal said.  Chazal were experts in Tanach and knew very well that David ha Melech himself said, “I have sinned against Hashem.”  (2 Shmuel 12:13).  Indeed, David wrote a whole chapter of Tehillim (51) about doing teshuvah for that very event.

      Rashi in the gemara explains that Chazal never meant to say that David was free from sin entirely.  They merely meant he did not commit adultery, but he did do an immoral act by taking a woman whose husband expected to return to her after he returned from war.  That was what Nathan ha Navi rebuked him for.

      • Frank says:

        Why was the child of this union punished with death if it was a kosher union? and why does David tell Bathsheba to go back to her husband. of course, I cannot argue with rashi though 😁

    • dr. bill says:

      your use of the term “fictional” in many respects reminds me of the rhetoric of rabbi cordoza and his habit for the use of words that will clearly incite opposition.  the torah’s laws promote values that the rabbis on occasion saw as in conflict and decided how to rule in practice.

  11. Bruce says:

    In three stories in the Torah itself — Pesach sheni and the two daughters of Tzelophechad stories — God Himself explicitly changed halacha in response to people noting their particular problems with the halacha.  The halacha the day before these stories was different that the halacha the day after these stories.  Doesn’t this reflect at least to some degree an evolutionary or common law approach to halacha, and one explicit in the Torah itself?

    • Tal Benschar says:

      “God Himself explicitly changed halacha in response to people noting their particular problems with the halacha.”

      No such thing.  All it says it that people had a question, Moshe did not know the answer, so he asked God.  Either Moshe forgot, or God waited to give that parsha in the merit of those people who asked.

      • Bruce says:

        Really?  The daughters of Zelophechad (and later the men of Menashe) did not ask a question.  They made an argument about the injustice of the law as it then existed.

  12. Frank says:

    Eye for an eye taken literally is not what chazal teach, but the Torah, read that way might appear too strict.  Cardozo is not denying chazal authority, but is pointing out how they differ from the tzedukim.  the tzedukim also wrote these articles against chazal saying that their views we’re flawed. Cardozo is not supporting the tzedukim but showing chazals moral greatness. the text is given meaning by chazals interpretation. this is the opposite of the tzeduki and karaite views.

  13. a says:

    ״לא תקחו כופר לנפש הרוצח

    Implies one should or could take a payment to prevent עין תחת עין clearly this is found in the Torah itself

  14. Frank says:

    Another critique of Rabbi Cardozo is “, and has called for dispensing with the Codes of Jewish Law and the abolition of Halacha that strikes him as regressive”

    This is radical, but he is bringing reasoning which might justify repealing certain gezeiros.  It is not something he can do on his own, it would require senior poskim or a sanhedrin to do.  But he brings sources for those who also made this proposal.  Also Meiri stated that certain gezeiros will no longer apply when the reason for them is no longer valid.   You have to look at specific arguments, without generalising that he wants to abolish halacha.

    His thinking is too radical and forward to be accepted by mainstream halacha, but historically these things can happen.It might taken another 200 years but may be possible then.

  15. Frank says:

    Dear Mr benschar, if you agree that the Torah alone can mislead  us, you are agreeing with Cardozo. you can either take Torah at face value and be a mikra-ist, or consider the pshat as being misleading(as Cardozo writes) and be a drush-ist.


    • Frank says:

      Thank you, good Chodesh to you.

      Not an exchange, but if “You write that The Tanna’im reject the view of Moses and of God Himself.”, we also have the Tannur of Aknai, when G-d says  “My children have defeated me”.

      So nothing wrong with the above interpretation (which I am not sure is what i claimed).


  16. Frank says:

    Cardozo is not saying chazal fabricated Tsbp. can  you quote him rather than put words in his mouth?

    He us saying the plain meaning of the text is fictional in that we don’t execute lex talionis.  he says chazal are divinely ordained to interpret and amend biblical Law.  are you saying chazal never interpret anything? what are the 13 rules of rabbi Ishmael for if we can’t use them and chazal didn’t use them?



    • Avrohom Gordimer says:

      “Many of these loopholes are legal fictions the Rabbis employed to deliberately ignore straightforward biblical pesukim (verses) or halachic standards. In doing so, they often made use of far-fetched arguments and twists that violated the very intent of these verses or halachic norms…”

      “The Sages didn’t see any of these interventions as trickery, but as a way of achieving the higher objective of the Torah. They believed that the Torah was completely divine but also flawed and that it was their task to refine it and to bring it to the level that God had intended.”

      The Rambam writes that TSBP, including that which is homiletically exposited via the 13 Rules, is Sinaitic. The interpretations were given to Moshe at Sinai. Rabbi Cardozo denies this fundamental axiom.

      • Frank says:

        ” it was their task to refine it and to bring it to the level that God had intended.”

        He doesn’t enter into the mechanism by which they achieve this.  since he says it is the level that G-d intended, he is talking about the Divine nature of TSBP. If it was chas v’shalom the level that Hillary Clinton intended, then it is apikorsus.

        So you cannot infer from the section you quote that he denies TSBP.

        Let us look at what R Akiva says about the death penalty.

        Mishna (Makkot 1:10)

        A Sanhedrin that executed [more than] one person in a week is called a “murderous” [court]. Rabbi Elazar ben Azarya states: “[More than] one person in 70 years [would be denoted a murderous court].” Rabbi Tarfon and Rabbi Akiva state: “If we had been members of the Sanhedrin, no defendant would ever have been executed.”

        You see- Chazal are calling the Torah law murderous!  It has nothing to do with the case, nature of the crime, or Torah mandate. This is teleological halacha.  Just as Cardozo is suggesting.  How can you say that God on the one hand commanded Moses to  execute people, and on the other commanded R Akiva not to!    The Torah speaks of many cases where the court executes people – Moses does it, King David does it  etc.

        In the case of the Mishna, you can say Moses knew all the interpretations, but he still executed people, eg the man who gathered sticks on Shabbat.   So the strict Law of Moses might be deemed “murderous” by Rav Elazar b Azarya.  So we need to understand the reason why R Tarfon and r Akiva were trying to abolish it altogether.  This again is described by Cardozo.  You are simply saying that they found principles and methods to abolish the death penalty – that were given on Sinai –  so you ahve a logical problem here. I do not have the answer to this problem – but you cannot say that Moses or King David ran murderous courts of law.

      • Avrohom Gordimer says:

        The Conservative movement also believes in continuing revelation – but traditional, Orthodox belief is that TSBP was given to Moshe; merely being intended by God is not enough.

        Chazal are not calling Torah law murderous. There is a procedural requirement on batei din to deliberate l’kaf zechus, as per an axiom in the Torah itself. That is the issue under discussion in the Gemara you cited.

        Moshe ruled for the executions with the sanction of God. And R Akiva and R Tarfon of course agreed to those executions and to the rule of the Torah to execute. But they felt that the Torah’s mandate to judge l’kaf zechus, as explained later in Masechas Sanhedrin, would lead them to exempt in most cases. This is not a denial of Torah law, but an attempt to fulfill it.

      • Frank says:

        “This is not a denial of Torah law, but an attempt to fulfill it.”  That is precisely what Yashke said in the NT.

        Conservative an their revelation is through the insights of Freud , Solomon Shechter etc.  Cardozo is talking about Oral Law which he accepts as being from sinai – until proof to the contrary. he is talking about the Higher objectives of the Torah, which he will find in the Talmud, in the Baraita of R’ Ishmale etc.

        The Torah records at least 2 executions in the Midbar, in a period of 40 years. There may well have been more.  So when the R’ Elazar is saying more than 1 person in 70 years he is contradicting Moses.  You cannot zigzag your way out of this.  Moses knew the opinions of all the Sages, but ruled, with Divine assistance according to strict Torah law.  I am not offering a solution, but pointing out the problem.  Cardozo tackles this problem by use of western European language, and you are speaking in Eastern European language.   You do not see the problem, but you bring a Christian sounding adage.   As i have said, there is the choice to be a literalist, in which case one becomes a Tzeduki, or to integrate the Oral and Written Torahs , in which case you are orthodox.  The difference between your formulation and cardozo’s is the flowery language he uses, as he is a philospher.  Have you ever heard a sports frantic speak about ordinary matters using sports terminology, eg the last yard, ball park etc? So the philosopher uses philosophical language in the same way.

      • Avrohom Gordimer says:

        Conservative theology maintains that the changes brought about by contemporary scholars represent the ongoing will of God. This is not so different than the point you are trying to distinguish from CJ. It in fact fact very close and perhaps identical.

        You write that The Tanna’im reject the view of Moses and of God Himself. Such a view, even as an unresolved supposition, is untenable and unacceptable. And I have nothing out of which to zigzag, as your challenge is not a valid one, unless you reject the legitimacy of the Tanna’im.

        You and I obviously disagree on some fundamental issues, so let’s leave it at that. This is the final exchange on this matter.

        Good chodesh,
        Avrohom Gordimer

      • dr. bill says:

        just to tighten the points of view, i sit squarely in the middle.  the torah is a combination of case law and principles.  conflicts will arise where it is the job of the rabbis to transcend the dilemma and reach a path forward.  sometimes they cannot without violating halakhic principles and they desist.  sometimes they can (and ought then feel obligated to) find a way forward.  that “innovation” is not a “new revelation” or an illustration of “continuous revelation;” it is an instance of “lo bashamayim he”  and the power given by the torah to “judges.”   unfortunately, precisely what motivated a particular action/decision may not be adequately understood and can often lead to conflicting views.

        just for example, read avi sagi’s book on the canon, and you will find dozens of views held by various gedolim of the last 1000 years on what “eilu ve’eilu” mean; some disagreements are rather fundamental.

      • Yehoshua says:

        “The Rambam writes that TSBP, including that which is homiletically exposited via the 13 Rules, is Sinaitic. The interpretations were given to Moshe at Sinai.”

        That is imprecise. The Rambam differentiates between halachos concerning which there is no dispute, e.g., that a פרי עץ הדר is an esrog, and halochos concerning which there is a dispute. The Rambam states that it is axiomatic that there are no disputes at all concerning any halacha that was taught to Moshe at Sinai, and that the disputes are all with regard to halachos derived from the 13 principles. The principles were given at Sinai, but the halachos that Chazal later derived using them were not. See the Brisker Rav Al HaTorah, where he explains the issue of Moavi velo Moavis based on this principle. Whether or not a Moavis was allowed to marry a male Jew   would change back and forth during the generations based on the understanding of the Sanhedrin at the time, until someone revealed that he had a kabbala that it was muttar, thereby eliminating the possibilty of dispute.

      • Avrohom Gordimer says:

        The Rambam writes that the halachos relating to the 13 Middos and other derashos were given at Sinai, and the 13 Middos are mere “remazim”.

      • Yehoshua says:

        That is wrong. What you are referring to is what he describes in “החלק הראשון” but that does not cover many de’oraysa halachos derived using the 13 middos, not merely alluded to in the verses (החלק השלישי). That is his entire distinction between matters that there cannot be any machlokes (the former) and matters that are subject to machlokes (the latter). See also Hilchos Mamrim 1:2:

        אחד דברים שלמדו אותן מפי השמועה והם תורה שבעל פה ואחד דברים שלמדום מפי דעתם באחת מן המדות שהתורה נדרשת בהן ונראה בעיניהם שדבר זה כך הוא

        where he makes the same distinction.

      • Zac says:

        Not so fast. Please distinguish between TSBP/Gezeros/Rules extracted by the 13 Middos/Halacha Lemoshe Misinai. See Meshech Cochma on Deut 17:11 (Lo Sasur).

    • Steve Brizel says:

      I think that R Cardozo’s thesis ignores a very important point which any serious student of Chumash  must confront-The  Medrash states in two places that HaShem creates and destroys worlds-that statement can be understood as a theme that can be found in many Parshiyos by a serious study of Chumash-Ramban quotes Rambam in the MN states that the recreation of the world by HaShem after the flood was a Chiddush. Prior to the episode of the Golden Calf, Klal Yisrael was on the moral level of Adam HaRishon prior to the sin of the Tree of Knowledge, and both Torah Shebicsav and TSBP were incorporated in the Luchos Hashinyos. The episode of the Golden Calf as emphasized by Beis HaLevi and Meshech Chachmah caused a drastic change in the relationship between HaShem Yisborach and Klal Yisrael which both Rashi and Ramban write was bordering on excommunication R”L which was only reversed  by Moshe Rabbeinu’s intervention after the episode of the Golden Calf, which Ramban writes necessitated the establishment of a new covenant ( “Bris Chadasha”, based on a verse in Yirmiyahu) between HaShem and Klal Yisrael, which the Talmud in Gittin 60 emphatically states was and is rooted in TSBP. Beis HaLevi in Drasha 18 generally at and Meshech Chachmah at the beginning of Parshas Vayakhel provides a superb explanation of this critical development. Meshech Chachmah, by comparing the fact that the Parsha of Shabbos folllows the Parshiyos of Terumah and Tzaveh, which really set forth Binyan HaMishkan and Klei HaMishkan and Bigdei Kehunah in all of their details with many of the reasons for the same stated in the Psukim ( what we would call “bells and whistles”)  and then precedes Vayakhel/Pkudei , which again describes the Meleches HaMishkan but solely in the context of Kaasher Tzivah HaShem Es Moshe  with no bells and whistles ,posits based on a Yerushalmi that before the sin of the Golden Calf building the Mishkan superceded the Issur melacha on Shabbos. Thus,  any such suspension of Hilcos Shabbos ended because of the  gravity of the sin of the golden calf. This game changing event explains why the Torah spends four parshiyos on the subject of the Mishkan-the Mishkan after the episode of the Golden Calf differed than the Mishkan before the episode of the Golden Calf, with  the Issur Melacha on Shabbos now applicable to building the Mishkan. Due to the the episode of the spies, the generation that left Egypt was not the generation that entered the Land of Israel.The taking of the census also  can be understand as emphasizing that those who are part of the census represent a new generation who will carry on the Divine Mission in the wake of a personal and communal disaster ( Korach Baal Peor, etc). Pronouncing  the text as presenting a fiction ignores the fact that Torah Shebicsav without TSBP is worthless in determining how we fulfill mitzvos in any generation and that even the so-called “narratives” of Torah Shebicav demand to be explored on many levels beyond that of Pshuto Shel Mikra or what one thinks he or she learned in elementary school.

  17. Frank says:

    Tal ben’schar, the more  I read your comments, the more I realise this debate is much ado about nothing, but semantics.  the plain pshat meaning of the Torah was the root if the dispute 2000 years ago between the tzedukim and chazal.  the tzedukim did have a leg to stand on. but chazal took exception to their nature, and opposed them. the words you use to describe pshat vs d rush are semantics. as far as the plain meaning of ayin tachat ayin, you do not consider it to be legally true, so u come up with a zigzag to explain it. you do not like Cardozo s zigzag, which is also semantics. this shows that on a fundamental level you are not understanding the Torah, but only politics. you want to turn Cardozo into the new tzeduki, even though he is purely a perushi.  rav Gordimer is working hard at being the hareidi bulldog of modern orthodoxy and has to misrepresent what Cardozo says.  to do this

    • Steve Brizel says:

      One should always realize that “pshat” or “pshuto shel mikra” are terms in Parshanut which in many instances are the exact opposite of  how Chazal tell us how to obey many halachos . Take a look at Ritva on Eruvin 13b who clearly states that the Chachamim in every generation, not just the Beis Din HaGadol have the power of interpretation and psak halacha , which was transmitted to each generation by Moshe Rabbeinu who received it as part of his studying TSBP during the 40 days prior to receiving the Luchos Shniyos.

      • Frank says:

        Yes, so later generations can – according to the way you put it – bring a pshat that goes against a particular Chazal and may read more like pshat.  But this Ritva , and many others who say this, go against the view of R Gordimer, and support Cardozo – that in each generation the interpretation is somewhat variable, hence they are nto simply stating what they have revived from Sinai.

      • Steve Brizel says:

        I think that if you look at the words of the Ritva and the Drashos HaRaN in Drasha Shvii and in the Chiddushei HaRan on Sanhredrin, you will see that the aforementioned Rishonim fully support R Gordimer’s POV.

      • Steve Brizel says:

        Take a look at how Chazal understand the Avodas YK-not just differently than Pshuto Shel Mikrah but 100% to the opposite-as a means of demonstrating the supremacy of TSBP. To paraphrase the Beis HaLevi in Drasha 18, we have no idea without TSBP how to blow a shofar, fast on YK , build a sukkah or identify the Arbah Minim.


      • Frank says:

        Steve, all very important points. in the case of the mishnah, it seems rabbi Akiva was proposing to go against the previously normal practice, perhaps in the times of 1st temple. it seems he is using wholly tsbp principles to alter the course of practical halacha from a few hundred years earlier. I’m trying to be accurate in describing the phenomenon. so in king David’s day things may have been stricter. in chazals day there was no King to use the King’s power, and after churban bait sheini, the Sanhedrin powers were diminished.  the Ran talks about the power of a king to bring new laws, but the power is invested in him from  the Torah. so later leaders , even without a melech could also introduce laws. I don’t think you are far apart from  Cardozo, perhaps he should provide clarification of his article, as I did not write it!

  18. Frank says:

    Cardozo says that the Torah laws – literally – are often morally flawed.  This is greeted with disgust by the author of this blog. however, Rabbi Akiva  said that if he were head of the sanhedrin, he would see to it that there were no executions for murder!  So Cardozo is merely showing that Rabbi Akiva was taking a superior moral position to the torah. if youa re disgusted by Cardozo, then you are disgusted by Chazal.  So I am wondering who is the hammer and who the anvil? Is Cardozo doing the witchhunting to bring out the closet Tzedukim, such as yourselves who are now disgusted by R’ Akiva?

    • Mark says:

      R’ Akiva was saying he would utilize the universally accepted, built-in, Sinai-given principles of probing testimony to make it so the Sanhedrin would not kill murderers. There is no deviation at all from those principles. Cardozo is proposing that Chazal deviated from accepted principles or invented new ones out of sense of moral superiority. That is not acceptable.

      • Frank says:

        Is he saying that? he is saying that they worked according to G-d given principles to attain a higher goal.  R’ Akiva was the most lenient in this case, whereas others mentioned are stricter, saying there would be only one execution every year or 7 etc.  The other sages were saying they would work within the parameters of halacha to be more lenient in dinei nefashot.  The Old Testament is stricter, of course, that is why Xtianity saw the need to innovate and create an alleged religion of “love”.

        But you are talking about built in principles, which is what Cardozo is also talking about. Cardozo is alluding to a principle (although he doesnt mention this case) of higher ethical norms. But R Akiva is presumably working on the principle and legal methodology to achieve a more merciful outcome (for the murderer).   If you are saying the oral law has built in technology to change the nature of the Biblical decree, then you are essentially saying what Cardozo is saying.

        Again, you have to look at the position of the different historical figures. Chazal had the power to veer from the strict interpretation of the Torah, as in R’ Akiva’s case.  The Sadducees did not accept TSh’BP so they would only go by the strict ruling of the Written Law- in every application, eg counting the Omer etc.   Cardozo is not disputing TSbP or its Divine source,  he is explaining how he sees the mechanism working.  He is on the opposite side of the Sadducees.   Chazal mock the Tzedukim because they made Shabbat miserable by sitting in the dark and eating cold food.

        So both R Gordimer and R Cardozo accept the authority of Chazal to interpret and rule differently from the plain reading of the Torah.  He uses words like “trickery” from the perspective of the modern reader or the skeptic.  Unless you can show me where he explicitly says that Chazal were not given Authority to make changes, i have to stand by his position.   Sinc he does not go into detail about concepts of 13 middot and halcha l’Moshe m’Sinai, we cannto infer if he rejects them or not. Rambam is very interesting on this issue, and says there are only a few of teh halachos L’moshe, and those derived by 13 middot are d’rabbanan unless there is a specific L’Moshe M’Sinai for them (please correct me if i am wrong).

      • Mark says:

        “Higher ethical norms” is not a principle of legal analysis; it is a principle of philosophy. It is like saying that the scientists who worked on the Manhattan Project (A-bomb) and those who thought Hiroshima should be bombed are both capable of building an A-bomb. That’s not how the system works. The Gemara in Makos, which asks, “How would R’ Tarfon and R’ Akiva have acted?” (i.e., which questions would they have asked the witnesses that was likely to stump them)  makes no sense according to Cardozo. The answer according to Cardozo is – they thought it unethical; applied the principle of, say, דרכיה דרכי נועם; and presto! they overrode Biblical law.

      • Steve Brizel says:

        Look at the Encyclopedia Talmudis entry on Halacha LMoshe MiSinai-there are far more such Halachos than those as defined by Rambam’s definition in the Sefer HaMitzvos.

  19. Frank says:

    Rav Soloveitchik in Halachic Man tells of how Chazal learn on where to do shechita, ie which part of the neck. they say what does it matter where the cut is made, expound and be rewarded (this is a quote from memory so please correct me if inaccurate). if so – if this is what Chazal say, then it is clear they did not have the complete Divine shulchan aruch , but they expounded on laws in many instances.  So the final halacha of where to shechita the neck was determined by Chazal, and therefore was not necessarily given in black and white int he divine shulchan aruch that Moses was given.

    I am arguing from the side of “developmental halacha”.  Of course, the other side would be that they did indeed have the answers in oral format, and their drush was just an exercise to sharpen the minds of the talmidim and future talmidei hachamim.  In any case, there were questions in halacha that were asked hundreds of years after sinai. Perhaps Moses knew the answers, bt in some cases he also had to ask.

    This leads to another question – if a sanhedrin had to answer or to judge a case, did they have the answer before sitting in judgement, or was it a process they went through?   We know that Bet Hillel would fight Bet Shammai, so they may have had different traditions and methods.  So there was no final halacha. If there was, they would need only a shulchan aruch and no sanhedrin.

  20. Tal Benschar says:

    Since the issue of ayin tachas ayin was raised here, I thought I would add an example from (relatively) recent legal field that illuminates the points about TSBP complementing TSBK.  The U.S. Constitution, lehavdil, forbids both the states and the federal government (in separate places) to pass an “ex post facto law.”  What does that mean?
    Literally, ex post facto is Latin for after the fact, or retroactive.  Read literally, it would bar any retroactive law.
    However, the Supreme Court in Calder v. Bull (1798) that this only applies to criminal laws – neither the states nor the federal governments may retroactively declare an action criminal.  The reason is that the phrase “ex post facto,” at the time of the US Constitution was written, was a recognized legal term that applied to criminal enactments (and it had been used in the Constitutions of several states).
    Point is, the term was a legal phrase – what today we call a “term of art.”  Although it had a literal meaning in Latin, the legal community understood it to have a specific, and narrower meaning.  And so it has been construed since 1798.   (There are other such phrases in the Constitution – habeas corpus, Bill of Attainder).   The lawyers of the time had an oral tradition or understanding of what the phrase meant.
    The same applies to ayin tachas ayin.  It is a legal phrase that has a particular meaning – equal compensation for the loss.

    • Steve Brizel says:

      One can also look in vain in the Constitution for any direct language that provides the Supreme Court the explicit power to review acts of Congress as to their constitutionality-read Marbury v Madison -that is where CJ J Marshall developed that power.

      • mycroft says:

        The power grab of Marshall was a. Very sophisticated one . Decide on the facts against ones political party but grab power that clearly was not intended by the original framers. Note in 1790s  resignation of SCCJ to run for  governor of NY before Marshalls creativity. Since then, and certainly in the past 50 years or so the SC has been used by both the right and left to say subvert  the will of the people as represented by its elected representatives

      • Steve Brizel says:

        Yet, no statute has ever been proposed that would altogether abolish such review.  The SC has acted as you pointed out in a way that legal scholars describe as “substantive due process”, IOW, when the SC creates substantive case law that has no constitutional basis whatsoever.

      • Steve Brizel says:

        There is nothing in the Constitution that even remotely implies that the  SC is supposed to ratify “the will of the people.” The lesson of Marbury is that the SC as Professor Bickle quoting Judge Learned Hand is that the SC is the most dangerous branch of the government when it dispenses with procedural safeguards such as standing, etc and views itself as the address for developing new “rights” that cannot be found or implied either in a statute or a Constitutional provision.

      • Steve Brizel says:

        We have also seen presidents based upon their “mandate” try to nominate SC nominees who subscribe to their ideologies , some of whom are eminently qualified and others are not. The recent struggles over confirmation have become far more politicized recently, but one can find antecedents of the same in FDR’s court packing scheme that went south. OTOH, many nominees were hardly political puppets and became some of the SC’s most prestigious members.

      • Steve Brizel says:

        We have also seen presidents based upon their “mandate” try to nominate SC nominees who subscribe to their ideologies , some of whom are eminently qualified and others are not. The recent struggles over confirmation have become far more politicized recently, but one can find antecedents of the same in FDR’s court packing scheme that went south.

    • Bruce says:

      It is not used as a legal term of art in Lev. 24:17-21:

      Anyone who takes the life of a human being is to be put to death. Anyone who takes the life of someone’s animal must make restitution—life for life. Anyone who injures their neighbor is to be injured in the same manner: fracture for fracture, eye for eye, tooth for tooth. The one who has inflicted the injury must suffer the same injury. Whoever kills an animal must make restitution, but whoever kills a human being is to be put to death.

      In these verses, the Torah distinguishes between monetary compensation (required when someone kills an animal) and retributive injury (required when someone kills or injures another).

      Also, the rebellious son and his subsequent death penalty cannot be legal terms of art.  In fact, the Torah provides a reason for literally killing him.  “Then all the men of his town are to stone him to death. You must purge the evil from among you. All Israel will hear of it and be afraid.”  (Deut 21:21.)  Explicitly providing the public policy for his death implies that the plain meaning was meant to be taken literally.

      I am unpersuaded by the attempts to explain these examples (and the daughters of Zelophechad stories, and Pesach sheni) as anything other than a common law approach to halacha.

      • Tal Benschar says:

        Bruce, I don’t think you understand what term of art means.  It means those who are knowledgeable in that body of learning understand a phrase to have a particular meaning that is not exactly the literal meaning of the words.  That is the case for ex post facto, as I have shown.  (Same for habeas corpus, another Constitutional phrase.  It means literally “show the body.”  Which is NOT what such a writ is supposed to do.)

        In fact, the passage from Vayikra proves the point.  The Torah says <em>makeh beheima yeshalmena nefesh tachas nefeash.</em>  Literally, the last phrase would mean if I kill your cow, you kill mine.  Which is utter nonsense, contradicts  the word  yeshalmena, which means pay, as well as other psukim.  The possuk clearly calls for monetary compensation — which is EQUAL to what the damage is.  That is what the phrase means.

        The next set of phrases for bodily injury likewise calls for equal financial compensation. That is what the legal meaning of those phrases.

        (You are correct that Ben Sorer is a death penalty, but not sure what that has to do with this discussion.)


    • mycroft says:

      Agreed it is fundamental that there is nothing unconstitutional about changing civil impacts retroactively see eg tax laws do it all the time.Rate changed after beginning of tax years frequent occurrence

      • Tal Benschar says:

        That is because of the holding in Calder v. Bull (1798).  Interestingly, Justice Thomas has hinted he thinks this should be overturned.

  21. Ben Bradley says:

    There’s a lot of confusion here. Perhaps that’s due to the difference between falsehood and distortion. Where there’s a kernel of truth distorted by falsehood it becomes more difficult to be separate out what’s what. R Cardozo cuts closer to the bone than some would like to admit. For a start, contra what I think some here are saying, not all drashos are from Sinai. Some are, but many or most are not, rather they are original rules derived by Chazal, previously unknown.  That’s explicit in the Rambam’s shorashim and is clear in various places in Chazal, notably the midrash of Moshe failing to understand what was going on in the beis midrash of R Akiva until they said it’s all from Sinai. (Though all drashos have the status of d’eoraisa since they’re derived from the Sinaitic rules of drash.)

    That does mean that Chazal created many of the rules we know as integral to TSBP and which were unknown beforehand. That does NOT include an eye for an eye, which the gemara says was an original TSBP rule from Sinai.  Along the same lines, chazal can and do uproot mitzvos de’oraisa where they deem necessary, eg shofar on Rosh Hashana and Shabbos, lulav on Shabbos. Also the gemara in kesuvos that the chachamim can uproot a kiddushin even though it involved a deoraisa. To quote Rav Hutner, the Torah was given al daas Chachamim. It’s in their hands to alter where necessary.

    Which all sounds quite radical and so the whole train of thought of left wing orthodox\R Cardozo with its talk of halachic creativity and finding creative halachic solutions has a kernel of truth. Just that it’s distorted. The fatal problem is is failing to separate between who is and isn’t licensed to innovate and, vitally, the motivation for so doing. The dor rev’ii, a descendant of the Chasam Sofer goes further than most in understanding Chazal’s license to innovate but still draws a line at the closing of the gemara.

  22. Frank says:

    This article is about saying nachem on Tisha b’Av

    It mentions the views of Rav Goren, Rav Soloveitchik, Rav Ovadiah Yosef and Rav Chaim David HAlevy

    R’ Halevy, who was a recognized Gadol, made a change in the wording, whilst rav Yosef said to reflect on the spiritual situation (both negative and somewhat positive).

    So what exactly is heretical about Cardozo saying reflect on the positive as well as the negative? It is less radical than Halevy, who was a recognized giant in Torah.

  23. mb says:

    Oh, Ben Bradley,

    So the Oral Law found in Mishnayot Megilla was NOT given at Sinai. I agree. Your argument isn’t with me it’s with Rabbi Gordimer who says if one claims such a thing , then one is a heretic.


    • Avrohom Gordimer says:

      I obviously did not claim such a thing about a mitzvah de’Rabbbanan.

      • Frank says:

        On a slightly different tangent – Rambam says (I think in mamrim) that we are obliged d’oraita to listen to teh Sages for their Gezeirot, takkanot and minhagim,  (Lo Tasur), yet the status of the minhagim and Gezeirot etc are d’rabbanan.  So if one violates a d’rabbanan, is this  only a d’rabbanan, or also a violation of Lo tasur (d’oraita0?

        Furthermore, he says that if we call a D’Rabbanan  = a D’Oraita, we are guilty of Lo Tosif!  how do these statements reconcile with each other?

      • Steve Brizel says:

        First of all,  the Talmud itself tells us that there is a mitzvah to adhere and listen to the words of the Sages which in and of itself is of Biblical origin. Lo Sasur is understood as referring to the power of Chazal and the Chachmei HaTorah to tell us how to observe any Mitzvah of Torah and Rabbinic origin, There is a fundamental Machlokes Rishonim between Rambam and Ramban in Sefer HaMitzvos as to what is included in Lo Sasur-power of Chazal as opposed to the specifcic rabbinic enactment-which is commented on by many Rishonim and Acharonim. R Yonasan Sacks in many of his seforim comments on this issue.

    • Steve Brizel says:

      You seem to have a problem with the transmission of TSBP from HaShem Yisborach to Moshe Rabbeinu for 40 days which Chazal tell us that Moshe Rabbeinu grasped on the 40th day. We also know that which a Talmid Vasik Asid Lchadesh was given to Moshe Rabbeinu, which means that any true Chiddush which means a better understanding in any halacha, as opposed to a revolutionary change, was also given to Moshe Rabbeinu and waiting to be discovered by one of the Chachmei HaTorah of any generation , Clearly, Moshe  Rabbeinu was given via Divine Transmission, the right to interpret and establish the boundaries of Halacha, including Halacha on a Rabbinic level.  We also know that Kol Tikun Drabanan Kein DOraisa Tikun-that rabbinic mitzvos and gzeros and takanos are all patterned after and/or related to a Halacha of a Torah origin.

      • Frank says:

        Steve, the question is in what format it was given to Moshe, and how literally we take Kol Chiddush- somewhere below someone reminds us of Rabbi Akiva’s Academy and Moshe’s visit there – and him not understanding everything going on.  I’ve heard one explanation that this was before Moshe was taught everything on Sinai – but I’m sure there are other explanations too.

        Between Beis Shammai and Beis Hillel there were disputes (as between other Chazal figures) on precise halachot and principles.   The complete picture is beyond the scope of these talkbacks – perhaps Rabbi Gordimer might be able to write on the subject or give pointers to some exisitng works on this fascinating subject.

      • David Ohsie says:

        The plain implication of the Midrash is pretty straightforward: there is Chiddush post-Sinai.  This should not be unexpected given that every legal system in the world has Chiddush.

      • Steve Brizel says:

        There are numerous sources in Shas , Midrashim and Zohar that state that TSBP was not given ala SA with everything decided but in a manner whereby the Talmidim Muvhakim in every generation would have the tools and means of proper interpretation and psak, whether Lchumra or lkula, etc.

      • dr. bill says:

        Actually there are numerous sources in the talmud on terms like, HLMMS, TSBP, methods by wish the torah is NIDRESHET, EILU ve’EILU, etc. that are subject to (at times radically) different interpretation.  your assumption about TSBP, is just that an assumption, and IMHO, a rather non-constructive and farfetched one at that.  if you can illustrate concretely by a real set of examples, we might be able to discuss rationally.  as written, i cannot fathom in what form TSBP could have been given.  In any case, it does not correspond to my interpretation of what may have been meant.

      • Frank says:

        That is correct – and halacha psuka was not the same in King David’s time as it is today.  Some people give the impression that the entire SA and poskim were given on Sinai and practiced liek that for every generation – clearly not.

  24. Frank says:

    My view us that every level of Torah is true. so pshat, drush, remez and sod are all true. but the plain pshat is not always accepted, eg  eye for an eye. if it is “not true” that is like saying it is false, so you are in a difficult position. Cardozo is trying to handle this difficult position.

  25. Frank says:

    Cardozo is preparing a response to the criticisms of his article – so it says on his webpage

  26. Tal Benschar says:

    Let me add one more thought.  It has been claimed that the TSBK is “flawed” because it can mislead one who does not have the TSBP.  But the point is that the two were given as complementary works, and one cannot reach the truth with only one of them.

    Suppose someone buys a textbook on open-heart surgery, such as is used in medical schools.  Such a book no doubt contains much important information on the topic.  But if someone were to attempt open-heart surgery after only reading the textbook he would be considered a dangerous fool.  The flaw, in such a case, is not in the book but in the person who attempts to perform open-heart surgery without the significant training and apprenticeship with an expert in that type of surgery needed to become a competent surgeon.

    V’hamivin yavin.

    • Frank says:

      Yes but by that example you are admitting the written Torah is Chas vshalom “flawed”. the problem is that the Torah is perfect,  and when it was written on Har eval on the tablets it was written in perfect style.   your example is one that states the Torah on it’s own is flawed.  but a medical text book will not tell  you to operate on one artery but in practice you do another.

      • R.B. says:

        No, its not flawed. It was designed to only be understood in conjuction with TSBP. That is not a flaw at all, but rather a specific design feature. If I may ask, in reading all of your comments – are you a Karaite?

      • Frank says:

        Well, more Hochmat Israel than Karaite.  In other words, look at Ibn Ezra’s commentary, where he takes issue with the Karaites, who were a major force in his day.  He says that the torah must be understood rationally.  he is not always in strict agreement with the today’s view of TSBP or even TSBK. He is arguing with the Karaites on their own terms. This – I think is the same approach that Cardozo is taking.

        If my statement about all four of PaRDeS being true  is correct, then there has to be an explanation about where they seem to contradict. Cardozo is grappling with this problem. But the way you state it it is not a problem at all 🙂  The Torah read in the way Ibn Ezra reads it is “invalid”  according to the above comments.

    • dr. bill says:

      the torah contains conflicting values, not “flawed”  values.  if you apply the wrong value, you will get a flawed result.  this was brilliantly illustrated by christine hayes in her observation that even ben-sorer umoreh may apply in a far-fetched case, something almost all opinions in the talmud dismiss.

      your basic point clearly applies to HLMS; a surgeon told to excise the object that looks like a pri etz hadoor, better know what to look for.  how one performs shechiah, what parshiot are in a mezuzah, etc.  are a part of ancient traditions not written texts.

      • Frank says:

        Pri etz Hadar is not defined in the Torah itself, although in sefer Nehemiah they apparently used olives.

        The Sanhedrin can interpret in each generation. also, meseches Sofrim tells us that Ezra had 3 girsaot of the Torah, and used the rule of majority to reach the most authentic scroll. we have no idea whether information in the minority versions was lost, preserved or transferred to oral tradition.

      • Frank says:

        This is a fascinating discussion, and it is really about walking through PARDES. Although this traditionally refers to Sod, where 4 entered and only 1 returned safely, even on the Pshat level we have these risks.  Pshat was explored by many Rishonim, and they did not always agree. In fact Ibn Ezra  said that he will explain the Psukim in pshat but in halacha he would always go by the Talmudic halacha. On one occasion, Ramban atatcks Ibn Ezra for doing worse than the Karaites, and Ibn Ezra attacks Rashbam on another occasion for being like the Tzedukim (Karaites).  In Halacha too, Rambam attacks the Geonim (Issurei Biah 11) for learning a tradition from tzedukim.

        So the cries of Tzeduki (or heretic) are common in these discussions,  so it should come as no surprise that Cardozo is also accused of heresy.

  27. Hamevakesh says:

    The beginning of the end of Torah Judaism occurred when various people and various movements decided to analize every word that a person says for the purpose of proving that they are apikorsim or otherwise unacceptable. You have to look at a person for what he is before you analyze what he says. Or else we are all going to chumraize ourselves into oblivion.  Yiddishkeit is not about Shitos. It is about how well meaning people who are really yirei shomayim understand the Halacha. In the days before the invention of daas Torah and other such ideas, people once understood that

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