In his discussion of Hillel called Hillel: If Not Now, When?, noted contemporary conservative Jewish rabbi and author Joseph Telushkin commented that given the Bible’s assumption of various matters being in existence outside of the written text, that the oral law of the Talmud and Mishnah is itself valid on the same level as biblical law. This particularly poor logic is, lamentably, several bridges too far of false assumptions, but it is likely a particularly common view among those who defend the so-called oral law as being on the same level as the written law of God. Given the poverty of this logic, it is reasonable to ask what sort of benefit the author seeks to draw from making this argument, and why is he willing to make an argument that is so bad? Does he think that no one will call him on it and speak with awareness about the origins of the oral law and about the question of legitimacy of rabbis like Teluskhin in interpreting the law and serving as authorities within Judaism? Clearly, the question of the oral law and of the legitimacy of himself and others like him as authorities must be great in order for him to make such a risk by going out on a limb and making such an outrageously false claim. And so it is.
In his essay “Midrash And Mishnah,” the late liberal Jewish rabbi and scholar Jacob Z. Lauterbach pointed out the origins of the mishnah as being a late phenomenon that happened a couple hundred years or more into the intertestimental period, long after the existence of the biblical writings and in a period where there was suddenly a conflict between two groups of people over leadership of the Jewish community during the Hellenistic period. Desiring to legitimize traditions that the ordinary people of Judea were keeping that were not biblical, and desiring to legitimize themselves as authorities on contrast to the biblically endorsed authority of the priests and Levites , the forerunners of rabbis like Telushkin usurped the authority of the priests and Levites and claimed for themselves the right to interpret scripture and to smuggle in nonbiblical traditions as legitimate practices according to their wishes, a process that continues to this day. It is fair to ask, though, why it is that Lauterbach himself was so willing to discuss this process? To a large extent, as a liberal rabbi, he wished to take for himself and others like him the same degree of freedom to loosen and permit that early rabbis of what would become the Pharisaical and then Orthodox school had done in opposing the priests and Levites of second temple Judaism. He did not expose their legerdemain to condemn it, but instead to copy it or to use it against the successors of those who had used it successfully two millennia before.
Yet one does not need to agree with the purposes of either author to see what is useful in what they have to say. Teluskhin is right that there were nonbiblical aspects of great importance–such as the calendar system–that were not detailed in scripture that are taken for granted by the authors of the Bible as being traditions that were passed along with the written text that were not for a long time committed to writing. This does not imply in the least that the oral torah is itself legitimate at all–it is not–but it does mean that in addition to scripture, there must be some other sort of authority that goes along with it to ensure some sort of continuity in worship practice as well as conformity to a common rule or standard. In the Hebrew scriptures, it is clear that the priests and Levites formed this legitimate authority, and that it was upheld through the midrashic approach by which insight was gained from scriptural interpretation that was constantly to be checked against either existing authorities or divinely inspired prophets who would rebuke corrupt civil and religious authorities to spur on repentance and an avoidance of divine judgment on a disobedient people.
Likewise, Lauterbach is correct that the oral law is itself illegitimate, being a late development opposed to the biblical authority and being designed to justify practices that were contrary to the admittedly harsh biblical standard. Lacking the ability to justify traditions and positions that were contrary to the Bible, the early Pharisees and their later successors, going down to this day, needed a way to separate the traditions that they upheld and endorsed from the woefully inadequate to absent scriptural justification that could be provided. Since the midrash would not serve their purposes, they turned to mishnah. Then, in order to cover their tracks, they acted as Telushkin does by pointing to the need for some sort of tradition to support and hold up proper scriptural interpretation and then using slight of hand to portray the late and unbiblical oral law as being that original tradition that went alongside the written scriptures. One does not need to accept Lauterbach’s desire to imitate the Pharisees by legitimizing liberalizing contemporary traditions in order to recognize his historical understanding of these same processes in second temple Judaism.
Nor, indeed, are these problems limited to Judaism. Within Christianity we have the same precise problem of the issue of what tradition is to supplement the written scripture that we have. Many Christian traditions, for example, claim a sort of apostolic succession that provides the continuity needed to justify their own religious belief system as having a magesterium that goes back to the earliest Christian period. After all, it is widely recognized that scriptures could be interpreted any number of ways, and organizations are always aware of the need to defend orthodoxy from those whose interpretive skills are contrary to received tradition, and to deny legitimacy to those interpretations that do not come from recognized or accepted authorities. To be sure, there is a great deal of disagreement between organizations as to which authorities are recognized or accepted, but every faith tradition has some sources of authority it considers legitimate and other sources of authority it rejects. No matter where the line is drawn, someone will draw the line in some way, to distinguish between that which is and which is not authoritative and legitimate. The same is true of other faith traditions outside of the biblical ones as well. In all faith traditions, there is some concern for recognizing authorities and beliefs as legitimate and in delegitimizing that which is across the border line.
The universality of this dual process of legitimizing and justifying some things and delegitimizing other things should provide us with a sense of humility and self-awareness when it comes to our own use of such processes ourselves. In many ways, this process is a natural result of mankind’s original sin in taking from the tree of the knowledge of good and evil. Knowing good and evil for oneself, experiencing good and evil, and choosing for oneself how one will live and what one will believe carries with it consequences. When we wish to be our own authorities, we are faced with the difficult task of justifying our authority over others who have just as much wish as we do to be authorities for themselves and to reject our authority over them. No attack of authority comes without a desire to replace that authority with another authority of more interest to them. Likewise, no one who desires to be seen as an authority will neglect to support and bolster that authority by any means possible, be it a rhetorical appeal, a desire to obtain some sort of institutional authority for themselves–whether by creating new institutions or taking over existing ones, or by appealing to some sort of supposed divine right that legitimizes their position. In recognizing the way that others engage in these processes, let us be humble enough to recognize ourselves as being involved in the same projects, given the difficulty that exists in both knowing what is right and even more so in doing what it is right and in respecting others as being created in the image and likeness of God like ourselves.
 See, for example, Deuteronomy 17:8-13:
“If a matter arises which is too hard for you to judge, between degrees of guilt for bloodshed, between one judgment or another, or between one punishment or another, matters of controversy within your gates, then you shall arise and go up to the place which the Lord your God chooses. And you shall come to the priests, the Levites, and to the judge there in those days, and inquire of them; they shall pronounce upon you the sentence of judgment. You shall do according to the sentence which they pronounce upon you in that place which the Lord chooses. And you shall be careful to do according to all that they order you. According to the sentence of the law in which they instruct you, according to the judgment which they tell you, you shall do; you shall not turn aside to the right hand or to the left from the sentence which they pronounce upon you. Now the man who acts presumptuously and will not heed the priest who stands to minister there before the Lord your God, or the judge, that man shall die. So you shall put away the evil from Israel. And all the people shall hear and fear, and no longer act presumptuously.”