Oren Gross (U. of Minn. Law School) has posted Violating Divine Law: Emergency Measures in Jewish Law. The abstract follows.
Judaism is a thoroughly legal culture. Structured around the concept of mitzvot (commandments), Jewish law regulates both the public sphere of social and political interactions and the private sphere of human conduct. Jewish law is founded on a single source of legal authority, i.e., divine will as it is expressed in the Torah that was revealed to Moses at Sinai and transmitted down the generations. Yet, applying the Torah’s principles and rules to everyday life requires further decision-making in the processes of interpretation, application and administration of the law. Jewish law embraces the principle of human decision-making responsibility by recognizing the exclusive competence of halakhic authorities to determine the meaning of the Torah by way of interpretation and exegesis.While laws and regulations that are put in place by halakhic authorities without having a direct basis in the biblical text are binding they cannot contradict or overturn primary (divine) legislation. To the extent that they purport to do so, they would be “unconstitutional” and invalid.
Yet, the paper argues that this has not always been the case. The first argument is that dealing with such questions as could rules promulgated by the halakhic authorities go so far as to practically “overrule” the divinely ordained law of the Torah and could the sages permit or even command that which the Torah forbids, or prohibit that which under the Torah had been allowed, Jewish law has always given these questions a qualified affirmative answer despite the divine source of the Torah law. The second claim is that the legal basis for the sages’ ability to make emergency decisions and adopt emergency measures is not entirely clear. In fact, the paper argues that the ambiguity about the legal foundation of such radical authority or power is purposeful. While some halakhic authorities identify the source of their authority as present within the framework of the law, others seem to recognize that their actions had been lacking legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah they accept, albeit tacitly, the need to act in contravention of the Torah.