The famous rabbinical maxim to “build a fence around the law” was originally published in the Talmudic tract, Pirque Avot (Ethics of the Fathers). The basic thinking is as follows: We do not want to violate the Torah. If we create extra laws to protect the Torah, and we obey those extra laws, then we will not come close to disobeying the Torah. Numerous Rabbinical requirements can be understood as attempts to protect the Torah in this way.
The most common example of protecting the Torah is the laws of Kashrut (Jewish dietary laws), especially the laws concerning milk and meat. The Torah exhorts us to not boil a kid (a baby goat) in its mother’s milk. This command is in the context of pagan Canaanite practice. It is also an obvious humanitarian deference to animal life. To protect this law, the rabbis decided that eating milk and meat together, even if not from the same animal, should be avoided. Once this was accepted, they determined that we needed to have hours of separation between meat meals and milk meals so that milk and meat will not be cooked together in our digestive system. Once this was accepted, we were required to have separate dishes for milk and meat since there is a possibility that particles of meat or milk may be left on the plate and get mixed and eaten. In the case of Kashrut, a new fence is made for each new rabbinic law!
Other Rabbinic Law Developments
This is one side of rabbinic legalism, the multiplying of laws to protect the Torah. However, the Rabbis are not without mercy. Sometimes when a Biblical law was seen as too harsh, rabbinic enactments were made to mitigate the strictness of the law. For example, monetary fines take the place of cutting off a hand or putting out an eye.
In Israel, there is a great ongoing controversy between Orthodox authorities. It concerns the Sabbatical year and the Bible commands that fields be left fallow. Some follow the rabbinic teaching that allows crops to be planted on the Sabbatical year by selling the land to a Gentile for one year. Other rabbis reject this way of getting around the law.
Rabbinic Jewish law has developed in three directions: First, are the creative applications of the law to new circumstances, which all legal systems in all societies must accomplish. Second, is the unnecessary multiplication of laws. And third, are ways to get around the law. Yeshua addressed these tendencies in the New Covenant when He accused the Pharisees of making void the Word of God by their traditions (Matthew 15:3).
Development in All Legal Systems
Lest we be overly critical of the rabbis, we should take note that all civil legal systems in all developed societies do the same thing as Rabbinic Judaism. We should remember that Rabbinic Judaism is both a civil legal system and a religious legal system in one. As laws multiply, we find ourselves in a situation where the intent of basic law has been undermined. Legislation is then required to bring reform and return the law to its more basic intent to serve true justice. This is perhaps best seen in the development of legislation to protect the rights of the accused. As legislatures and courts have applied the law, they have made it more and more difficult for the victim of crime to obtain justice. The intent is good; to avoid punishing an innocent person. At times this concern is over emphasized in the law. For example, there may be absolute certainty that a person committed a crime, but because the accused was not rightly read his legal rights, he will be allowed to go free. The victim will have no justice. This infuriates people. Sometimes the victim takes justice into his own hands. There are even situations where the victim has killed the criminal.
Instead of letting the criminal go free, the court should punish the official who violated the law, but not free the certainly guilty criminal. This results in guilty rapists, murderers, and thieves roaming among us. We also have guilty murderers going through an average 13 year appeal process before the death penalty is enacted. All through this time, those who lost loved ones must suffer through this agonizingly drawn out process and cannot experience closure.
Reapplications Are Needed
On the other hand, when circumstances change, additional laws are sometimes necessary to preserve the intent of the original law. At times laws need to be qualified so that unnecessary harshness and injustice do not result. Some development in law is necessary. Though in general, Western legislatures pass too many laws, some of these new laws are beneficial and important.
In religious life, we are also tempted to multiply laws to preclude violating holiness. The Bible commands us to not get drunk. The fence mentality enjoins us to not use wine at all. This way one will never get drunk. The Bible says that we are to avoid all appearance of evil. This same mentality prohibits playing pocket billiards because billiard halls are bad places. This is also applied as a prohibition against all movies – even good films because it associates the attendee with Hollywood, which is generally regarded as evil. Yet, persons who truly want to do the will of God are not constrained by such a legal system; instead they should allow their conscience to be guided by the Holy Spirit and in this dynamic way avoid evil behavior.
The Problem with Legalism
Legalism undercuts justice, spiritual life and joy. My own view is that Believers need to keep God’s commandments through the power of Yeshua. We should also honor worthy and beautiful traditions and applications, but not make them into law. In addition, we should always be seeking legal reform in our society to return our system of law to simpler justice. The Sermon on the Mount is very clear. Yeshua in all His divine authority restores Torah to its heart intent and sweeps away illegitimate and excessive accumulations of man-made laws. We now live in a New Covenant Order where the spirit of the Torah is paramount. This is not a means of circumventing the Torah, but is the way to fulfill its true meaning.
This article originally appeared on Tikkun International, May 26, 2019, and is reposted with permission.