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Extra-Legal Juridical Prerogatives by Wallace

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Extra-Legal Juridical Prerogatives by Wallace EXTRA-LEGAL JURIDICAL PREROGATIVES BY WALLACE GREENE Queens College,New York, U.S.A. Many cases of Special Temporary Emergency Legislation (hence- forth to be referred to as Hora'at Sha'ah) are Talmudically linked to Psalms l19 : 126. Taken in its context, this verse is translated as : "It is time for thee, Lord, to work: for they have made void thy law". "It is time to act for the Lord: they have broken thy law". (Isaac LEESER) "It is time for the Lord to work: They have made void Thy law". UPS, Soncino) "Time to act, 0 Yahweh! they have broken your law". (Anchor) A special application was given to this sentence by the Rabbis who read into the words the meaning-"At a time of working for the Lord, they violated Thy Torah". This justified the temporary abrogation of a commandment in an emergency when the purpose was to maintain the integrity of the Torah. RaSHI summarizes the Rabbinic sentiment when he writes: "If the times require an enact- ment for the sake of Heaven-one may abrogate the commandments of the Torah for such a temporary emergency". (Gittin 60a, s.v. ait la'asot lashem.) The basis for this comment is the discussion in the Talmud where the Rabbis gave permission to write special Haftarah books even though one should only copy an entire pro- phetic book. In Temurah 14a, R. Yohanan and Resh Lakish quote this verse (Ps. 119:126) and apply it not only to writing Haftarah books but to write down halakhot in general. (It was traditionally accepted not to write down the Oral Law (Temurah 14b) 1)). An early source for the standard Rabbinic interpretation of Ps. 119:126 is the Mishna in Berahot 9 : 5 (54a) which ascribes the original 1) Concerning the prohibition of reducing to writing the Oral Law and its traditions, see J. KAPLAN, The Redaction of the Talmud, pp. 261 ff. for a full discussion. 153 allusion to R. Nathan. "It is time for the Lord to work; They have made void Thy Law.", is restructured to read "Because they have made void Thy Law, therefore it is time to work for the Lord". R. Nathan feels that this verse indicates that the Sages might vary the Law if they do so for the sake of Heaven. The Gemara (Berahot 63a) verifies this interpretation of R. Nathan by explaining the reversal of the sentence, i.e. "One may void the Law to work for the Lord". The same statement along with its explanation is found in P. T. Berahot 9:5. The remark of R. Nathan is in response to a question of how Boaz could initiate the custom of including God's name in greeting people 2). Another example of the assignation of this verse and the con- comitant status of Hora'at Sha'ah to an event of the past is found in Yoma 69a. When Simon the Just went to confront Alexander the Great and the Samaritans (i.e. the events leading to Yom Har Gerizim) he wore his priestly vestments 3). This contravened the law which prohibited a priest from leaving the Temple while wearing his priestly garments, since only in the Temple would his wool and flax not be considered "diverse kinds" (P. T. Kilayim 9:1, Tos. end of Kilayim). The answer given is that since he was engaged in the 2) Concerning the innovation of Boaz cf. H. TCHERNOWITZ,Toledot HaHalakha (NY 1934) I, p. 119, and Simon FEDERBUSHHiqre Yahadut, (Jerusalem 1965), p. 74. The Mishna in Berahot 9:5 gives R. Nathan credit for the innovative interpretation of Psalms 119:126. However, the Tosefta at the end of Chap. 6 gives this explanation in the name of R. Meir. (M.S. ZUCKERMANDEL,Tosephta, (1963), p. 17 1, 19-20; Saul LIEBERMAN,The Tosefta (NY 1955), Zeraim, p. 40; Saul LIEBERMAN,Tosefta Ki-fshutah, (NY 1955), p. 124-125) One possible explana- tion for this mix-up is that R. Meir and R. Nathan served as Hakham and Av Beit Din respectively, and their views often coincided. (W.G.) According to Y. N. EPSTEIN(Mavo LeNusach HaMishna II, p. 952 and p. 975) R. Nathan does not appear anywhere else in the Mishna except in the end of the second chapter of Shekalim 2:5, and even there it is an addition from a b'raita. The Yerushalmi of Berahot 9: 5 also has R. Nathan changing the order of the verse to learn this new provision. Y. N. Epstein feels that this statement was not originally part of the Mishna. If it were, the Talmud (Rava, Berahot 63a) would not have discussed it in such a repetitious manner. R. Nathan is mentioned as the author of this interpretation in Midrash Samuel 1:1; Sifre Zuta, Pinhas 27 :1 ; and Sifre 134, end; but Midrash Mishle 5:16 cites R. Meir. 3) Concerning this incident cf. Josephus' Antiquities 13:2:5 and 12:2:4; S. ZEITLIN,"Shimon Ha-Zaddik UKnesset HaGedolah", Ner Maaravi, (NY 1924) pp. 137-142; R. MARCUS,"The Date of the High Priest Simon the Just" Loeb Series, Josephus, Appendix B, p. 732; G. F. MOORE,Judaism in the First Cen- turies of the Christian Era, (Cambridge, 1927-30), III, pp. 8-11, note 4; G. F. MOORE,"Simon the Righteous", Israel Abrahams Memorial Volumes, (1927) pp. 348-364; S. KRAUSS,"The Great Synod" JQR, OS (1898) X:359. .
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