The tension between authority and autonomy lies at the heart of Shoftim, a parasha which contains around 50 mitzvot, many of them dealing with forms of government — the power of the judge, prophet and king, and the extent of their authority. The Torah provides for the judicial development of its own law, including the statement that: “you must not deviate from the verdict that they announce to you either to the right or to the left.” (Dt. 17:11). This passage has served for the authority not just for the courts of the Sanhedrin during the Second Temple period, but also every Beit Din or judicial court of rabbis that has been formed in any community over the ages and places where Jews have lived from then to now.
Without judicial interpretation of the law, there would be no possibility for Judaism to development of Judaism or Jews to adapt within their unfolding contemporary contexts. Without judicial power or authority, chaos among society would unfold. However, there is a puzzling aspect in the above passage reinforcing the authority of the court, “you shall not deviate either to the right or to the left.” The meaning and intent of this passage itself has been subject to interpretation and application.
On one hand, early rabbinic explications, state you must follow the court only when it tells you that right is right and left is left: “One might imagine that if they tell you that the right is left and the left is right, that you should obey them. The Torah therefore states, “right and left” — one need obey them only when they tell you that the right is the right and the left is the left.” The early sages rule that when the court has clearly made an error in fact or law, the decision does not have to be followed.
Later commentators, following Rashi, understand the passage in an opposite way. For example, Nachmanides comments on Dt. 17:11: “even if you think in your heart that they are mistaken, and the matter is simple in your eyes just as you know the difference between your right hand and your left hand, you must still do as they command you.”
Over the centuries, the tradition has favoured the latter position, giving absolute authority to the Beit Din, even should their ruling be incorrect. The problem in contemporary times is that we live in societies where there is a balance between legislative and judicial authorities, and in most nations where Jews live there is a Constitution to which both the legislature and judiciary must adhere (Israel being a major exception to this.) Further, a Constitution has procedures for amendment when necessary. These “checks and balances” and opportunities for amendment allow for more fluid responses, all the more necessary in our ever-changing world. The system of absolute authority placed in a Beit Din has been rejected by most Jews of our time, as more and more gain knowledge and independence. While this adds to the dynamism of Judaism and life itself, it also carries the risk of destroying any sense of community.
The tension between communal authority and individual autonomy continues to grow; the more the rabbinate arrogates authority to itself, the more that authority is rejected. It seems that the early sages, living in the more fluid Talmudic period, had the correct insight — judicial decisions, the rabbinic development of the Torah tradition, should be followed when ruling that “the right is the right” and “the left is the left”. Perhaps they had in mind the essential and overriding teaching in Psalm 119:126: “there comes a time to do the will of God when they have made void your Torah.” We understand “the will of God” as honouring the life force, adhering to core principles of Torah such as the dignity of each human, justice for the oppressed and care for all life with love in any interpretation of Torah. A punctilious ruling without those values “makes void the Torah” and claims the right is left.
While the written Torah will never change, we the people must form an ad hoc legislature to balance the decisions of the rabbinate, and vice versa. Thus we have seen that as the community has become more concerned about the rights of women, the rabbinic tradition has moved toward their ordination and inclusion. Similarly, as the people became more outspoken about the need to embrace and include those of different sexual orientations, rabbinic ordination has been opened to the GLBT community and marriage equality advocated. In response to crucial environmental issues, traditions regarding energy and animal consumption must also be reviewed. For Jews to remain a community of communities, we must ensure greater learning of our sources, our values and our understanding of what it means to “do the will of God.”