No constitution can cover ever exigency. Survival must preempt fidelity to text. A Torah is not a death warrant. The sovereign is he who decides the state of exception, notes Carl Schmitt. In Orthodox Judaism, the leading rabbis of the day wish to be the sovereign.
Adam Kirsch writes: In general, one might say that the Talmud exists because of the shortcomings of the Torah; to put it in traditional terms, the Oral Law was given to explain and supplement the Written Law. Biblical laws tend to be terse and generalized, and they seldom cover all the contingencies that might arise in life. The Torah prohibits labor on Shabbat; but what exactly constitutes labor? The Torah prohibits Jews from exploiting one another in commercial transactions; but how do you measure exploitation? The Mishna, the digest of the Oral Law, is needed to fill these gaps. In turn, the Gemara is needed to resolve ambiguities in the Mishna.
At the same time, however, the rabbis are always at pains to show that what might seem like new laws, which go beyond and sometimes even contradict the laws of the Bible, are in fact in harmony with the Bible. To do this, they are compelled to read against the grain of the biblical text, in ways that strike the uninitiated reader as highly counterintuitive. They will, for instance, make important deductions based on the presence of a prefix or suffix of a single letter; or they will look for other uses of a given word elsewhere in the Bible, and draw conclusions based on the context of those seemingly unrelated usages. The rabbis’ hermeneutics are far from lawless—they have a rigorous method for making deductions from the text—but they often give the impression of doing whatever needs to be done to make the Bible mean what they want it to mean.
