Part One: Verbal Wronging
(י) כְּשֵׁם שֶׁאוֹנָאָה בְמִקָּח וּמִמְכָּר, כָּךְ אוֹנָאָה בִדְבָרִים. לֹא יֹאמַר לוֹ בְּכַמָּה חֵפֶץ זֶה, וְהוּא אֵינוֹ רוֹצֶה לִקַּח. אִם הָיָה בַעַל תְּשׁוּבָה, לֹא יֹאמַר לוֹ זְכֹר מַעֲשֶׂיךָ הָרִאשׁוֹנִים. אִם הוּא בֶן גֵּרִים, לֹא יֹאמַר לוֹ זְכֹר מַעֲשֵׂה אֲבוֹתֶיךָ, שֶׁנֶּאֱמַר (שמות כב) וְגֵר לֹא תוֹנֶה וְלֹא תִלְחָצֶנּוּ:
(10) Just as there is wronging done by means of commerce, so, too, there is wronging done by means of words. One should not say to [a merchant], "How much is this object?" if he does not want to buy. If someone was a penitent, one should not say to him, "Remember your former actions." If someone is the child of converts, one should not say to him: "Remember the deeds of your ancestors." As is written (Exodus 22:20): "You shall neither deceive a stranger, nor oppress him."
Rabbi Elazar says: Since the day the Temple was destroyed the gates of prayer were locked, and prayer is not accepted as it once was, as it is stated in lament of the Temple’s destruction: “Though I plead and call out, He shuts out my prayer” (Lamentations 3:8). Yet, despite the fact that the gates of prayer were locked with the destruction of the Temple, the gates of tears were not locked, and one who cries before God may rest assured that his prayers will be answered, as it is stated: “Hear my prayer, Lord, and give ear to my pleading, keep not silence at my tears” (Psalms 39:13).
Rav Ḥisda says: All the gates of Heaven are apt to be locked, except for the gates of prayer for victims of verbal mistreatment, as it is stated: “And behold, the Lord stood upon a wall built with a plumb line, and a plumb line in His hand” (Amos 7:7). God stands with the scales of justice in His hand to determine if one has been subjected to injustice. Rabbi Elazar says: In response to all transgressions, God punishes the perpetrator by means of an agent, except for wronging by words [ona’ah], as it is stated: “And a plumb line [anakh] in His hand.” (The term for mistreatment and the term for plumb line are spelled in a similar manner, indicating that God Himself inflicts retribution in the case of verbal wronging.)
““Verbal wronging,” a rabbinic term lacking a precise English equivalent, comprises a broad prohibition against all types of harmful speech, including humiliation, shame and insults….While God may have locked the “gates of prayer” or even the “gates of tears,” meaning that he may ignore prayers and weeping due to the rupture caused by the destruction of the temple, he always responds to the pain of the victim of verbal wrongdoing.” Jeffrey L. Rubenstein, The Culture of the Babylonian Talmud, at 71.
Part Two: It is Not in the Heavens
(11) For this commandment which I command thee this day, it is not too hard for you, neither is it far off. (12) It is not in heaven, that thou should say: ‘Who shall go up for us to heaven, and bring it unto us, and make us to hear it, that we may do it?’ (13) Neither is it beyond the sea, that you should say: ‘Who shall go over the sea for us, and bring it unto us, and make us to hear it, that we may do it?’ (14) But the word is very close to you, in your mouth, and in your heart, that you may do it.
(2) You shall neither side with the multitude to do wrong—you shall not give perverse testimony in a dispute so as to pervert it in favor of the mighty— (3) nor shall you show deference to a poor man in his dispute.
Daniel Boyarin, Intertextuality and the Reading of Midrash at 34-5. "R. Yehoshua suits his speech act perfectly to the world of his interpretation. "It is not in heaven" is a citation, the use of which is radically different from its meaning in its "original context." R. Yehoshua is arguing with God from God's own text. You gave up your right as author and even as divine voice to interpret Your Torah, when You said, "it is not in heaven." R. Yehoshua is, then, not only describing or making a claim about interpretation, but instituting and creating the Oral Torah. I should make it clear that I am not making the ridiculous claim historical claim that before R. Yehoshua there was no midrash or Oral Torah...I wish rather to claim that in the form of narrative it represents the structural possibility which creates a space for Oral Torah. "It is not in heaven" is itself not in heaven."
Robert A. Burt, Precedent and Authority in Antonin Scalia's Jurisprudence at 1691 and n. 31. "The exegetical mode-what I have called the inclusive understanding of past precedent-is thus a self-consciously collaborative enterprise; and this collaboration works from an essentially egalitarian premise, both among present-day interpreters and between present-day and past interpreters. Because God no longer directly speaks to anyone, that is, there is no ideological basis for any single interpreter to claim special status as God's anointed prophet. The same texts are available to everyone and the claim for special erudition or agility in interpreting these texts must rest on persuasion, not on apodictic assertions of self-evidently authoritative Divine sanction31." (n. 31 "This is the lesson of one of the most famous passages in the Talmud, regarding the dispute in which a majority of the sages determined the oven of Akhnai to be subject to impurity according to Halakhah, the religious law. Rabbi Eliezer ben Hyrkanos disagreed with this conclusion, however; as the Talmud relates....")
Part Three: The Tyranny of the Majority
When she returned, she found him and saw that he had lowered his head in prayer. She said to him: Arise, you already killed my brother. Meanwhile, the sound of a shofar emerged from the house of Rabban Gamliel to announce that the Nasi had died. Rabbi Eliezer said to her: From where did you know that your brother would die? She said to him: This is the tradition that I received from the house of the father of my father: All the gates of Heaven are apt to be locked, except for the gates of prayer for victims of verbal mistreatment.
Jeffrey L. Rubenstein, Talmudic Stories at 47-8. "We see here the familiar tension between abstract principles and concrete, human reality. By their very nature abstractions tend to divert attention from the individual plane and to minimize the significance of particular human suffering. These dangers are particularly great when the majority--confident because of its numbers, self-righteous because it is in the majority--vents its power against an individual. The story warns that the human elements must not be overlooked. Feeling of pain and humiliation matter, and must not be ignored in the name of legal considerations. God certainly cares that his law be observed and respected, but he cares more for the feelings of the creatures to whom he gave that law. God accepts principles such as "It is not in heaven" and "Incline after the majority," yet he will not accept these principles as justification for verbal wronging and causing pain. The sages must negotiate this tension as as to preserve the integrity of the law while treating each other with respect and consideration. The story, then, is not only about the nature of the legal process but about how that process must be conducted."
Moshe Silberg, Talmudic Law and the Modern State (1973) at 64. Here in this legend (the `Oven of Achnai'),...is disclosed to us the singular characteristic of Jewish jurisprudence. We have here the rule of law in its absolute sense, the rule of law over the one who decrees the law, the introduction of the lawgiver into the hierarchy of relationships, juridical and administrative, which were created by the law which He himself ordained. He heeds "the commandments of the Torah," that is to say, He takes on himself the discipline of the law and He submits to the authentic interpretation of the authorized interpreters. In other words, He accepts the discipline of the judgment pronounced by an authoritative body—the majority—which was empowered by Him for deciding doubtful cases, even though in this instance the doubtful case is for Him not doubtful at all. If the law is to follow a majority, one must act in accordance with this law, even if the one involved in litigation is the giver of the Torah Himself.