Peshat commentary in Midrash.

Not all midrash is midrashic. Tannaitic midrash in particular contains long stretches of straightforward commentary. As we noted before, these comments are the oldest substratum of Oral Law, representing the original verbal commentary that was taught and transmitted along with the Written text. We know that this is true because of the similarity, or even identity, of many such passages to various literal targumim, such as Onkelos and whatever little we posses of the Greek translation of Aquilas, a student of R. Akiva [1].

If such a running commentary on the entire Torah was widely taught and known, why would fragments of it need to be included in tannaitic collections? It appears that this was done for specific reasons. Let us discuss one such passage. First, here is the quote from A. Kaplan's translation.

The Supreme Court
17:8	If you are unable to reach a decision in a case involving capital punishment , litigation, leprous marks , [or any other case] where there is a dispute in your territorial courts , then you must set out and go up to the place that God your Lord shall choose.
17:9	You must approach the Levitical priests [and other members of] the supreme court that exists at the time. When you make inquiry, they will declare to you a legal decision.
17:10	Since this decision comes from the place that God shall choose, you must do as they tell you, carefully following their every decision.
17:11	[Besides this, in general,] you must keep the Torah as they interpret it for you, and follow the laws that they legislate for you . Do not stray to the right or left from the word that they declare to you.
17:12	If there is any man who rebels and refuses to listen to the priest or other judge who is in charge of serving God your Lord there [ as leader of the supreme court ], then that man must be put to death, thus ridding yourselves of evil in Israel.
17:13	When all the people hear about it, they will fear and will not rebel again.

Compare it now to the Jewish Publication Society translation.

If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, even matters of controversy within thy gates; then shalt thou arise, and get thee up unto the place which HaShem thy G-d shall choose.

9 And thou shall come unto the priests the Levites, and unto the judge that shall be in those days; and thou shalt inquire; and they shall declare unto thee the sentence of judgment.

10 And thou shalt do according to the tenor of the sentence, which they shall declare unto thee from that place which HaShem shall choose; and thou shalt observe to do according to all that they shall teach thee.

11 According to the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do; thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left.

12 And the man that doeth presumptuously, in not hearkening unto the priest that standeth to minister there before HaShem thy G-d, or unto the judge, even that man shall die; and thou shalt exterminate the evil from Israel .

13 And all the people shall hear, and fear, and do no more presumptuously.

The comparison of the two translations makes the interpretative problems clearer. This verses seems to require that we consult someone when we have halachic questions but whom? The Levites? Only the Court in Jerusalem ? Any court? And about what? Any matter or only those specified in the verse? Does this apply only to Priests and Judges who serve as temporal authority or to any defined rabbininc body/ To individual great Rabbis? To their informal consensus? Are the details mentioned in the verses examples of broad classes or are they restrictive and limitning?

To make our inquiry more focused let me paraphrase the first two verses in two different ways – the traditional Jewish interpretation as presented by R. Kaplan and the alternative interpretation of JPS.

When there arises a matter that you cannot decide, for example, in the areas of criminal law, civil law, or ritual law, any matter of dispute among lower courts, you shall go to Jerusalem, the a court composed of the most qualified persons, either Levites or non-Levites…
In summary, all Torah Law is subject to the final authority of the High Court.
When there arises a question that that you find too difficult, specifically only in the areas of menstrual blood, decisions between opposing pleas, distinctions between one type of leprosy and another or when populace is divided on matters of public policy, you shall go up to Jerusalem to a court of Levites to decide ritual law or to the Judge/ King to favor one plea over another or to judge between different petitions of different groups of citizens…

In this interpretation, there is no such thing as the High Cour and, therefore, no Rabbinic authority.

Rabbinic authority to interpret and legislate depends on the first interpretation and is negated by the second. We should not be surprised to find that both Karaites and Christians championed the latter interpretation [2].

One might expect that the Sifri will quote the traditional running commentary on a passage of such importance, even if it usually doesn't. That is, in fact, what we find in the Sifri Devarim ad loc.

If there arise a matter – this is halakha

too hard (ipale) - this deals with the chief justice (muphle)

for thee – this is one who provides counsel (about calculation of years and months)

a judgment – this is civil law

between blood and blood –between blood of niddah and blood of zava and blood of a woman who gave birth

between plea and plea –between laws of civil suits and laws of corporal punishment and capital punishment

and between stroke and stroke – between leprosy of houses and leprosy of people

even matters – these are erachim dedication, charamim dedication and sacrifice dedications

of controversy within thy gates – this is giving drink to sotah and breaking the neck of egla arufah and purification of the leper (which takes place in public)

then shalt thou arise – your court (that doesn't know, all members together)…

and get thee up unto the place which HaShem thy G-d shall choose – from here they derived that there were three courts on the Temple Mount (each one serving above the other)…

. 9 And thou shall come – to include the court in Yavne

unto the priests the Levites – you may think that it is commanded to include Levites in this court, therefore it says, “ and unto the judge that shall be in those days”…

etc

It should be apparent that this interpretation places all areas of Torah Law under Rabbinic authority. Each term includes several wide areas of Torah Law. What's more, the rabbis are the ones who decide which law falls under what rubric; they decide if it is a civil, criminal, sacramental, or Temple matter. Thus their authority is absolute and not in any way restricted to a narrow area of expertise; neither are Priests vested with any legislative or interpretative authority aside of such authority as they may obtain as Rabbis.

Methodology point: When we find long stretches of what appears to be straightforward explication of the meaning of text inside a midrashic collection, they often identify a seminal passage with profound theological implications.