Halakhah: The Rabbinic Idea of Law (forthcoming, Princeton U. Press)

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3 Saiman, Rabbinic idea of law (Draft Ch. 1) Halakhah: The Rabbinic Idea of Law (forthcoming, Princeton U. Press) Chaim N. Saiman Professor of Law Villanova Law School Introduction (to come) Part I: The Nature of Halakhah 1. The Idea of Halakhah 2. Non-Applied Law 3. Halakhah & Governance 4. Halakhah as Torah Part II: Talmudic Readings 5. Halakhah as a Method of Theology 6. Halakhah as a Method of Education 7. Halakhah as Aggadah 8. The Pros and Cons of Thinking Legally Part III: Between Talmud & Law Table of Contents 9. Transitioning to Law: The Rishonim ( ) 10. The Codification of Halakhah ( ) 11. A Short Note on Responsa 12. Halakhah s Empire: The Achronim and the Yeshiva Movement ( ) Part IV: Conclusion 13. The State of Halakhah and the Halakhah of the State Conclusion/Afterward (to come). 1

4 Saiman, Rabbinic idea of law (Draft Ch. 1) Introduction [To Come] 2

5 Saiman, Rabbinic idea of law (Draft Ch. 1) The Rabbinic Idea of Law Chapter 1 Woe to you.. The Academy of Heaven What happens in heaven? This question has been asked by ancient theologians and modern New Yorker cartoonists. It fascinates us because it touches on the timeless quest for truth. What is perfect? What are the secrets of the universe? What explains who we are and why we are here? In the Bible, images of heaven center on God s throne. The Book of Ezekiel describes the angels and heavenly creatures who sing God s praises amidst chariots, lightning and fire. The Christian Book of Revelations contains some twenty chapters that draw on these themes, and the Rabbis of the Mishna and Talmud also spoke describe heaven with images of God s throne and His sovereignty over creation. In one text, however, the Talmudic Rabbis present a view of heaven that is wholly unprecedented in the Bible. It is an image that is unthinkable, if not blasphemous, outside the rabbinic context. It goes as follows: 1 They were arguing in the Academy of Heaven. Sit with these words for a moment. Heaven consists not of angels, halos, lyres or pearly gates. Nor of chariots, smoke and thunder. Heaven consists of an academy a yeshiva a place of Torah study. What is studied in this Academy? The mysteries of the cosmos? The answers to life s true meaning? That place where theology meets physics (these days we call it string theory), where God s Ultimate Purpose is revealed from the Divine Throne itself? Not at all. The Talmud continues: If the blotch on the skin preceded the white hair He is impure. If the white hair preceded the blotch on the skin He is pure. 1 B. Baba Metzia 86a. 3

6 Saiman, Rabbinic idea of law (Draft Ch. 1) Not only does the Academy of Heaven forgo any discussion of the cosmos, but it studies halakhah the law. And not just any halakhah, but some of the most obscure and technical issues found within it. The Academy in Heaven studies the same material as on earth this text deals with the laws of tzaraat, the skin malady (commonly translated as leprosy) outlined in Lev. 13, and which is recorded in the fourth chapter of Mishna Nega im. The issue before this ultimate institution of higher learning is as follows: if the skin develops a white blotch and then the hairs inside that blotch turn white, the person is diagnosed with tzaraat. But if the hair turn white first and then the skin blotch appears, the infection is deemed benign. A complication then arises: If there was doubt as to which came first: So not only is there law in heaven, but there are doubts in heaven as well. Yet surely any about is temporary. The law after all is studied from the mouth of the Almighty Himself. What doubts could possibly arise? The Holy One, blessed is He, says he is pure; While the rest of the Academy of Heaven says he is impure. They asked: Who will adjudicate this issue? We might expect to find God and His angels in Heaven. But in a well functioning heavenly academy, God would be sitting on His throne teaching, as the angels sit in rapt attention. The Talmud s Academy of Heaven is different. God and his Angels engage as equals in debate of the finer points of halakhah! The Talmud then goes one step further. God is not even the adjudicator. That role is assigned to a new member, who must be called up to the Academy. None other than a Talmudic rabbi must adjudicate this dispute between God and his Angels. They asked: Who will adjudicate this issue? It was decided that Rabba b. Nachmani As Rabba. b. Nachmani said: I have singular knowledge in the laws of leprosy... They sent a messenger to get him. In a few short lines, this story encapsulates much of the Rabbinic idea of law. First, the law has meaning regardless of whether it is used to decide a case. After all, we can only presume there are no mortals (and certainly no lepers) in heaven. And, even if there are lepers, doesn t God know whether the white blotch or hair came first? In the Rabbis view, the law reflects something important, true and relevant beyond its application to any given case. The study of law is intrinsically valuable which is why God and the Angels who presumably have no 4

7 Saiman, Rabbinic idea of law (Draft Ch. 1) doubtful cases to decide study the micro-details of halakhah. Second, the law is something worthy of study and debate. The study of law is so important that this is the central activity that takes place in Heaven. The state of perfection represented by heaven consists of delving into legal analytics/ learning the law. Finally, while the law may be in Heaven, the answer is not. The Heavenly Academy must call upon a mortal Talmudic rabbi to resolve its question. Halakhah is undeniably God s law, but is completed only when Man partners with God. Descending into Law: from the Bible to the Mishna To understand the Rabbis contributions to Jewish law, we start by contrasting it to the Biblical view of law. The Bible places great emphasis on recognizing that God is the creator of the universe, that He chose the Jewish people from amongst the nations, and that He commanded them to live a Godly life and worship Him. The Bible is concerned with the political consequences of God s choice of the Jewish people, and its commandments focus on the nation and its institutions. Conspicuously absent from the Bible however is any discussion about legal minutia. Instead, a few central themes are repeated again and again: worshipping one God, avoiding idolatry, honoring Shabbat, preserving sexual morality and taking care of the less fortunate. The Bible s religious consciousness meaning the categories it uses to understand God s message revolve around national/political institutions such as the Temple, priesthood, prophecy, and the monarchy. The Bible s ideal is for Jews to live as a nation that follows God s word: The Rabbis of the Talmud also held that God is the Creator and had chosen the Jewish people. For the Rabbis, however, living God s will requires considerably more detailed knowledge of what the law requires than a plain reading of the Bible lets on. To observe Shabbat one must know precisely when it begins, when it ends, and what observing entails. Refraining from idolatry requires a refined understanding of concepts such as what acts entail worship and which systems of belief are deemed idolatry. The Rabbis held the laws of the Bible cannot be practiced unless they are translated into more particular and detailed mandates. Broadly speaking, this is the project of the Mishna, a code-like document compiled in Israel in the 2 nd and 3 rd centuries C.E., which is the foundation of rabbinic halakhah. A critical difference between the worldview of the Bible and the Rabbis comes to light when examining the term mitzvah. In the Bible, both the singular and plural forms of the term (mitzvah) refer to the overall content of God s teachings and commandments. Throughout Deuteronomy, the people are implored to follow the mitzvah which God has commanded, which in this context means the whole of God s instructions. For the Rabbis however, the term obtains a more specific meaning: a mitzvah is a particular instance of a halakhic-legal obligation. The Rabbis held that the Torah is comprised of 613 individual mitzvot, where each is a foundational source of law that carries distinct legal parameters. The Mishna s goal is to 5

8 Saiman, Rabbinic idea of law (Draft Ch. 1) articulate the scope the mitzvot along with the rabbinic laws and enactments designed to fortify them. A second difference lies in the terms used to talk about mitzvot. The Bible presents mitzvot in the context of grand theological and national narratives: the exodus from Egypt, the revelation at Sinai, and the conquest of the Land of Israel, and so on. The Mishna, however, adopts a halakhic/legal consciousness that analyzes the mitzvot in terms of their legal parameters. The Bible asks whether the Jewish nation is living according to with God s commandments. The Mishna asks whether an individual is chayav (liable) or patur (exempt); whether certain foodstuffs are assur (prohibited) or mutar (permitted); and whether someone was yatzah or lo yatzah (discharged the obligation vs. failed to discharge the obligation). Developing a Halakhic Consciousness The Rabbis halakhic consciousness comes to light in their analysis of the Torah s first mitzvah. The opening chapter in Genesis records, God blessed [Adam and Eve] and said to them Be fruitful and multiply, fill the earth and subdue it. On its own terms, this phrase does not explain what (if any) specific action is called for. The verse has been reasonably interpreted as a poetic description of things to come, or a blessing to humankind generally. The Rabbis, however, understand it as a specific mitzvah that generates a legal duty on every individual (male) Jew. To satisfy the legal requirements, the Mishna rules that each male must sire at least two children. The Mishna then presents a debate: one view requires two male sons (the school of Shammai) while the other requires one male and one female (the school of Hillel). This short bit of Mishna highlights two foundations of the Rabbinic law echoed in the narration of the Academy of Heaven. First, it is specific: Compare the Bible s be fruitful and multiply with the Mishna s have two children. Second, law is an object of analysis and debate. While the general framework (two children) if offered without any reservation, the details occasion different views. By preserving this debate the Mishna suggests that something is at stake here that the rule is worth debating. Having assumed a legal framework, the Talmud an elaborate commentary on the Mishna complied in the 5 th or 6 th century investigates numerous derivative questions: What happens if the children cannot themselves reproduce do they count towards fulfilling the halakhic obligation? What if the children die must the father have more? If the deceased children lived long enough to have children of their own, do these grandchildren count in lieu of the deceased parents? 2 Following the Talmud s lead, generations of rabbinic scholars pushed these issues even further: What if the child is the product of an illicit relationship (e.g. incest, adultery)? What if the children develop reproductive deficiencies? 2 B. Yevamot 63b. 6

9 Saiman, Rabbinic idea of law (Draft Ch. 1) Halakhic consciousness is encapsulated by precisely these sorts of questions. Since Man s goal is to live in accord with the Divine will, he must know with exacting precision what is required. Early halakhic texts establish the basic framework and subsequent layers then analyze, debate and expand its details and applications. The same process is at work in the laws of Shabbat. Though the Biblical text prohibits melekhet avoda a phrase typically translated as work or labor, it provides limited guidance as to what exactly this phrase means. s The Mishna however, presents 39 base-categories of prohibited work activities, including a prohibition on writing. 3 Here we learn that while a person who writes one letter is exempted, a person who writes two is liable. Ink, dye, or permanent liquids generate liability, but colored water or etchings in the dirt do not. Writing with the hand is a problem, but with the foot, mouth, or elbow joint is not. Even more unusual cases are then presented, such as the rule about writing one letter on the ceiling and another on the floor, or two letters on two separate pieces of paper that are later placed together. In the modern era, halakhists continue this process by discussing whether it is permitted to put together a puzzle on Shabbat (potentially problematic since it creates an intelligible picture) or to play Scrabble (generally yes; but using the Deluxe Edition is problematic, since the board contains grooves that hold the letters in place more permanently, and thus constitutes writing. 4 (sources?) This process of legalized specification is carried on throughout thousands of legal rules contained in the almost 4,000 compact paragraphs of the Mishna. Some are prosaic laws about the hiring of workers, the buying of foodstuffs and dealing with nosy neighbors. 5 (cites) Some are intensely personal, such as the intricacies of how women diagnose their menstrual cycles. 6 Some are obscure: an entire tractate details rules on how to proceed when birds designated for one Temple offering become commingled with birds for a different offering. 7 And some are positively bizarre: several paragraphs of Mishna discuss groups of men wandering around taking bets in the form of nazarite vows on the identity of different animals and persons that cross their paths. 8 Over the vast range of topics, the common thread is the centrality of the Mishna s legal forms and structured categories. Halakhitization For all its complexity, however, the Mishna is but the ground floor of the halakhic edifice. Over the period of the Talmud and then in latter rabbinic literature, the halakhic consciousness thickens, encompassing an increasingly larger range of the intellectual and spiritual field. There 3 M. Shabbat 12: See Y. Y. Neuwirth, Shemirat Shabbat Ke-hilkhatah (New York: Feldheim Publishing, 1965), 15:17. 5 Mishna Bava Metizia ; Bava Batra. 6 Mishna Nidda. 7 Tractate Kinnim. 8 Mishna Nazir. 7

10 Saiman, Rabbinic idea of law (Draft Ch. 1) are times when it seems that the Talmud knows nothing but law, as in its retelling of the Biblical narrative surrounding David and Saul. The relationship between these two figures was, to put it mildly, complicated. David was Saul s prophetic muse, war hero, a prominent officer in his army, his son s best friend, the object of his daughter s love, and eventually his son-in-law. David was also Saul s primary political threat, the focus of several failed assassination attempts by Saul, and eventually the successor to his throne (though Saul might have said usurper). David first came to Saul s attention when Goliath, the Philistines celebrated warrior taunted the Israelite camp as lacking courage to confront him. Lacking better options, Saul promised great wealth and his daughter in marriage to whoever slay Goliath. 9 David took up the challenge and killed Goliath--- an event that kicked off David s meteoric rise. David quickly eclipsed Saul as the nation s beloved but Saul knew how to hold a grudge. After initially offering his first daughter to David, Saul reneged on his promise. Later, when Saul learned that another daughter, Michal, was in love with David, he offered David Michal s hand in marriage for the price of one hundred Philistine foreskins on the not-so-subtle assumption that David would reach his demise in battle. To Saul s dismay, David returned with not one but twohundred foreskins in hand, forcing Saul to grant him Michal in marriage. Again, Saul did not go through with the wedding, instead marrying Michal off to anther man. 10 When David assumed the throne, he demanded of Saul s household to give me my wife Michal, whom I paid the bride-price of one hundred Philistine foreskins. 11 This is a story about political life: power plays and palace intrigue; family, passion, jealousy; alliances formed and allegiances broken. The role of this Biblical story is to explain why David, and not Saul, was worthy of establishing the Jewish royal dynasty. The Talmud re-reads this story in a thoroughly halakhic lens. 12 Gone are the drama, emotion, ego, and all the juicy details of human life that course through the Biblical verse. Instead, each character is held to meticulously observe halakhah, wherein the Biblical text poses a legal problem: If David was halakhically betrothed to Michal, how could Saul (who would never suborn adultery) marry her off to someone else? On the other hand, if they were not legally bound, how could David (who would never utter an extra-halakhic statement) demand his wife from Saul s household? 9 1 Samuel 17: Sam. 25: Sam. 3:14 (JPS Tanakh). 12 B. Sanhedrin 19b and T. Sotah 11:17. 8

11 Saiman, Rabbinic idea of law (Draft Ch. 1) As the Talmud reads it, David and Saul clashed not with swords, but with refined halakhic arguments what the Rabbis intentionally called the battle of Torah. (More on this in Chapter 5). According to Talmudic law, when a man gives a woman (or her father/agent) an item bearing at least nominal value, she becomes formally bethrothed (committed to marry) in a process known as kiddushin. The Talmud also rules that kiddushin cannot be created through a loan, which includes forgiving a debt the woman (or her father) may owe the prospective groom. A debate arises however, when someone seeks kiddushin through forgiveness of a debt and the provision of an item of (at least) nominal value. Is kiddushin formed because the item of value was received? Or does the offer to forgive the debt invalidate the entire process? The Talmud reasons that this was (obviously!) the point at issue between David and Saul. David proposed kiddushin by forgiving the great reward promised to Goliath s slayer (the debt), and in exchange for the Philistine foreskins (presumed to have at least nominal value). David believed that this was an effective kiddushin which makes Michal his wife. Saul argued that this was ineffective kiddushin and therefore, Michal was free to marry someone else. Throughout this text, the assumption is that David and Saul were fully committed to Talmudic law and conversant in its nuanced details. The sole issue between them was a legal subtlety that still divided the Rabbis thousands of years later. It s hard to know how seriously this should be taken. Did the Talmudic rabbis literally think David and Saul s issues revolved around the legal technicalities of kiddushin? Or, did the Bible s narrative simply offer a familiar reference point used to sharpen the student s skills in halakhic reasoning? Either way, the discussion offers a window into the Rabbis mindset: Since halakhah is the framework through which reality can be interpreted, no detail is too small, no distinction too fine, and no case too remote to escape its analysis and regulation. Jesus Critique of Halakhah It was a nascent version of this halakhic legalism that prompted Jesus to critique the Pharisees the forebears of the Mishna s authors. Throughout the Christian Gospels, Jesus claims that the exclusive focus on the precise details of religious practice led the Pharisees to lose the spiritual forest amongst the halakhic trees. Reacting to the Pharisees method of interpreting vows, Jesus says: You also say, If anyone swears by the altar, it means nothing; but anyone who swears by the gift on the altar is bound by that oath. You blind men! Which is greater: the gift, or the altar that makes 9

12 Saiman, Rabbinic idea of law (Draft Ch. 1) the gift sacred? Therefore, anyone who swears by the altar swears by it and by everything on it. 13 A few verses later, Jesus calls out the Pharisees hypocrisy for worrying about legal trifles such as tithing mint, dill and cumin while neglecting the weightier matters of the law justice, mercy and faith. 14 Similar themes dominate many of Jesus interactions with the Pharisees, where they argue about the laws of Shabbat, kosher, and ritual purity, amongst others. This trend becomes more extreme in the writings of Paul (initially a Pharisee himself), who encapsulates the difference between the Pharisees and the early Christians in his famous phrase for while the letter [of the law] kills, the Spirit gives life. 15 Similar themes are found in the writings of many of the early church fathers. 16 Jesus and Paul were by no means the first to level this charge. Centuries earlier, the Biblical prophets Isaiah and Jeremiah chastised the people for focusing on the Temple rituals rather than interpersonal conduct and social justice. 17 But whereas the Biblical prophets criticized the Temple rituals generally, Jesus focused on the technical distinctions that are rare in the Bible but typical of rabbinic thought. In time, Jesus would be joined by a long line of critics; medieval and modern; Jewish and non-jewish; polemical and apologetic; sympathetic and avowedly anti- Semitic. 18 The details would change, but the core criticism remained the same: by emphasizing the legal particular, halakhah inevitably blinds itself to the more relevant ethical, philosophical, and theological dimensions of God s revelation to Man. Was Jesus Right? While it might seem strange--- if not outright blasphemous to open a book on halakhah by citing Jesus, his critique has framed both Jewish and non-jewish understandings of halakhah for so long that its worth taking seriously. A quick glance at the Mishna reveals that Jesus was not wholly off base. Whereas Jesus chastised the Pharisees for fussing over questions like tithing of herbs, the Mishna does not think this question is trivial at all. 19 The Mishna queries whether savory, hyssop and thyme are deemed food, thereby requiring tithing, or whether they are mere plants, and therefore exempt. Jesus also ridiculed the Pharisees for focusing on the syntax rather than substance of an oath. But in the Talmud, even slight variations in the verbal formulation matter a great deal. Students of the Talmud know that the Rabbis debate whether an oath in the form of this apple is an altar 13 Matt. 23:18-20 (New International Version) 14 Cite Cor. 3:6 (New International Version). 16 Richard Hidary, One May Come to Repair Musical Instruments : Rabbinic Authority and the History of the Shevut Laws, [forthcoming]. IS THIS THE CORRECT CITE? 17 See, for example, Isaiah 1:10-17 and Jeremiah Some select cites. (early draft of halana paper?) 19 M. Ma aserot 3:9. 10

13 Saiman, Rabbinic idea of law (Draft Ch. 1) to me is the legal equivalent of an oath with the form this apple is like an altar to me precisely the distinction Jesus laments 20 The Mishna, and the rabbinic tradition that grew out of it, tends to refract the human experience through its legal-analytical prism. Like all disciplines however, the legal perspective illuminates some facets while crowding out others. Law is useful for establishing and regulating the standards of compliance. Thus when the Torah mandates that persons purify themselves via immersion in a pool of water (mikvah), the Mishna records ten chapters on what is meant by immerse, what qualifies as a pool, what defines in, and what halakhah deems water. But these discrete legal rules are less suited for thinking about what Jesus called the the weightier matters the law s broader goals and purposes. In emphasizing the legal elements, the Mishna tends to overlook the religious meaning of these intricate rules of halakhah. Thus, scarcely a word in the Mishna s discussion of mikvah devoted to the spiritual transformation immersion is held to accomplish. The halakhic consciousness first expressed in the Mishna becomes more developed and in latter sources. For example, the Mishna presents a case of one who immersed in a mikvah (collection of water) later found lacking the minimum amount of water required. 21 The Mishna s focus is local and case-specific it asks only whether the immersion must be repeated in a valid mikvah. The Talmud however uses this ruling to develop more general legal concepts, while continuing to shy away from its theological or philosophical dimensions. Hence the Talmud reads this Mishna as establishing a presumption used by the law when exact moment of a legally significant event is unknown 22 : Does the law assume that the shift in status took place at the earliest possible instance (here, requiring re-immersion in a valid mikvah), or does it presume that the change occurred at the latest possible moment (meaning, the initial immersion was valid)? The Talmud then broadens this discussion across a range of cases found in other Mishnaic texts: when exactly are barrels of wine deemed to have turned to vinegar (relevant to the law of tithing)? When does a young woman approaching the age of maturity formally cross the line from minor to adult (relevant if competing marriage proposals are accepted at or around the transition point)? If a terminally ill person recovers from his illness, at what exact moment does this transition occur (relevant if transactions were conducted in the interim)? The legal analysis is quite sophisticated. Yet the Talmud pays scant attention to the theological significance of mikvah and its detailed rules. It is true that, here and there, the Rabbis offer statements regarding a mitzvah s meaning or purpose. Both in and after the Talmud, Rabbis speak not only in law, but also in the evocative language of aggada, where rabbis function as inspirational preachers, social critics, moralizers, spiritual counselors, storytellers, and scriptural exegetes. Yet these discussions rarely coalesce into sustained analytical investigations of a topic, and were generally understood to lack the 20 B. Nedarim 10b-11a. 21 M. Mikvaot 2:2. 22 B. Kiddushin 79a. 11

14 Saiman, Rabbinic idea of law (Draft Ch. 1) thoroughness and analytical acuity of the Talmud s legal project. The aggada plays an important role, yet the overall thrust of the Mishna and Talmud is undeniably legal. Though the differences between Jesus and the Rabbis are rooted in the New Testament texts, they continue to resonate. In the modern discourse, the motivation to do the right thing is expressed in terms such as values, morals, or ethical obligations. Contemporary Christians refer to their religious imperatives as stemming from moral theology, church doctrine, religious teachings, vocations or the Christian calling. For halakhic Jews, however, these commitments reside within a distinctly legal framework. Visiting the sick, honoring one s parents, giving tzedaka, and returning lost objects may also be matters of morality, but they are first halakhic-legal obligations that carry defined properties and rules. For all the change over the past two millennia, the heirs of Jesus and the Rabbis continue to argue over the proper role of legal thought in (religious) life. The Traditional Response Law is not Everything Jesus critique of halakhah did not go unanswered. One type of response is that Jesus wrongly equated halakhah and halakhism with Judaism. In other words, Jesus and his followers failed to appreciate the elements of the Jewish tradition that complement the law: the Bible, the mystical tradition, midrashic exegesis, rabbinic narratives and storytelling (aggada), to name but a few. When seen in its totality however Jewish religious thought is far more diverse than the legalism of the Talmud. A second response argues that, while rabbinic literature tells us much about the Rabbis aspirations for Judaism, it is much less informative about how Jews actually lived. This rejoinder emphasizes that both commoners and dissenting intellectuals maintained a far less legalistic conception of their religion than what is presented in Rabbinic texts, and at many historical junctures, awareness and adherence of halakhah were all but non-existent. In other words, Jews have understood Man s relationship to God in a variety of ways, and there are more Judaisms than what is offered in the Talmud. There is much truth to both of these responses. Halakhah has never subsumed the entirety of rabbinic much less Jewish life. Further, we should not confuse the views of a rabbinic elite with those of the masses, nor assume that the image of halakhah developed in the 800 s is true of the 1400 s, 800 s or 200 s. Yet at their core, these responses concede the central claim: that to the extent that we are talking about the corpus of halakhah, Jesus was correct. They differ only as to the relative importance of this corpus to Jewish life and the intellectual and cultural traditions of the Jews. A third type of response is to concede Jesus claim but to celebrate it as a point of pride All other religions and religious experiences are based on theological concepts that cannot be proven and fuzzy ideas of spirituality that are based wholly on the subjective feelings of the individual believer. It is only halakhah, with its precise and legally rigorous categories mandated from 12

15 Saiman, Rabbinic idea of law (Draft Ch. 1) above that affords a religious experience that if God given rather than man driven. 23 (See chapter 12). If Law is Everything, Everything is Law The thesis of this book is different. It begins from the premise that halakhah is central to the identity and ideology of the Rabbis, and plays a significant role in creating and transmitting Jewish identity. Further, it holds that Jesus was not wholly off-base in chastising the rabbis for focusing on legal categories to the apparent exclusion of other religious and ethical issues. And finally, that, prior to the modern period, rabbinic Judaism had not distinguished itself by its contributions to the humanities whether in philosophy or ethics, arts or sciences. Jesus, however, missed a crucial point. Precisely because halakhah loomed so large for the Rabbis, it became the medium through which they engaged what Jesus called the weightier matters of the law. This is true not only of halakhah law, in the narrowest sense of the term but of the way the Talmudic project merges halakhic dialogue with rabbinic storytelling, Biblical exegesis, and theological reflection. Halakhah is not only a body of regulation; it is a way of thinking, being, and knowing. The rabbinic idea of law is one were the regulatory framework does the work that other societies assign to philosophy, political theory, theology, and even art and literature. In this way, halakhah is both a body of regulation and the core of the Rabbis worldview and culture. The ability of halakhah to fulfill these multiple roles is enabled by two features that are distinctive, if not unique, to the Rabbis legal system. The first is what it means for halakhah to govern or to apply as law. Halakhah is not, and never has been, the law of any state. Jews have rarely lived in a political system ruled exclusively by halakhah, and the system of halakhic regulation has never been fully operationalized. Large swaths of halakhah exist in the realm of ideas or aspirations, not within political and legal structures that actually govern. The second aspect, talmud Torah literally, the study of Torah, is an activity the Rabbis saw as both spiritually significant and halakhically mandated. Though talmud Torah involves learning halakhah, it is about more than mastering the legal rules. By intellectually engaging in God s revealed word, the Rabbis held that a Jew comes to know God and the world He created. Significantly, the object of Talmud Torah is not halakhah but Torah a term that certainly includes, but is not limited to halakhah. The result is that the learning and writing of halakhah are set within a social and theological framework that inescapably blurs the lines between legal decision-making and the theoretical analysis of legal concepts; between rabbinic legislation and Biblical interpretation, between legislating operative legal rules and the storytelling, folklore, social criticism and everything else found within the Talmud s pages. 23 Bleich citation? 13

16 Saiman, Rabbinic idea of law (Draft Ch. 1) The fluidity between halakhah that regulates and halakhah that speculates, between talmud Torah trained on the precise details of the law and talmud Torah that communes with God, enables halakhah to assume its many diverse roles. These themes are developed in the next three chapters For Further reading. Halbertal M. Novack Shaye Cohen form bible to Mishna Saiman JC legal theory People of the book Seth Schwatrz 14

17 Saiman, Rabbinic idea of law (Draft Ch. 2) Chapter 2 Non-Applied Law Just because its legal does not make it law In English, halakhah is almost always translated as Jewish law. This is surely the most straightforward translation, as virtually every mitzvah takes the form of an exacting legal command. When halakhah mandates one to eat matzah on Passover, it legislates exactly when it should be eaten (after nightfall but before midnight) how much matzah must be eaten (one, or maybe two olives worth), in what position it should be eaten (reclining) and the length of time in which the request amount should be consumed (about ten minutes). The same is true for virtually every mitzvah, as reflected in the thousands of laws that govern Shabbat, kosher, and scores of other categories of halakhic practice and observance. Living in the present however, we naturally associate the term law with the form through which we encounter it most directly-- the law of a nation state. Yet, the more we associate law with the governing apparatus of a state, the more difficult it is to understand halakhah as Jewish law. Before getting down to the question of whether or really how halakhah is Jewish law, we need a working definition of what law is. The debate about how to define law has been going on for millennia, but the common understanding is that law is a system that governs social behavior within a given political community. Today we call this the state, and that political entity of the state is the source of the law. This is the central insight of what is known as legal positivism. This thumbnail sketch holds that the state issues laws that both set the boundaries between the state and the individual, and the rules for how citizens interact with each other. Law determines how Congress passes a bill, how to set up a corporation, and the scope of its powers and liabilities. Law also decides whether the boundary lines between two neighbors is the fence on the property or the deed tucked away in the county clerk s office, or whether an absentee father will be forced to pay child support. To administer the law, the state appoints officers, judges and bureaucrats authorized to interpret and apply these laws. Law determines who owns what, who has rights to what, and how conflicts over these things are resolved. In short, law tells us how to live together. This state-centric account is not the only way to think about law. Some argue that the ultimate source of the law is human nature itself, which is then simply reflected in the laws of the state. This is known as natural law and is the chief competitor to the legal positivism described above. The best argument for natural law comes from the laws against murder. Murder is not against the law because the state s law says so, rather the state s law punishes murder because it 1

18 Saiman, Rabbinic idea of law (Draft Ch. 2) is evil. Others hold that law emerges from the accumulated social practices of the underlying community. Thus, when enough people start talking about online contracts, the law then catches up and formally recognizes them. Regardless of whether law is the command of the state, an expression of values and ideas engrained in human nature, or an expression of social convention, all agree that the central case of law is more or less the same. Law is a system of governance residing in a political community with the power to enforce it. It is this practical element of law: who is entitled to healthcare, who owns the oil reserves under the ocean floor, and whether the CEO is personally liable when her corporation s plant pollutes the drinking water, that makes law worth studying and knowing. Law is important because it governs; it gets things done. Halakhah, however, is not the law of any state. Classically understood, halakhah is part of the oral Torah that God revealed to down to Moses at Sinai alongside the written Torah. Whereas the written Torah became the cornerstone of the Bible, the oral Torah was transmitted, from teacher to student, down through the ages. What the oral law/halakhah constituted in the biblical era is forever obscured and largely a matter of conjecture. The halakhah as we know it, first becomes visible in the early centuries of the common era when rabbinic Sages (known as tannaim) developed the teachings that eventually took form in the Mishna, and the midrash halakhah a verse-by verse- reading of the Torah that teases out its legal rules. These Sages, however, did not function within a politically autonomous society. Nor was their law developed to respond to the challenges of governance. For the most part, halakhah is a product of a theological condition known as galut, (also golus). Literally translated as exile, galut means that on account of their sins Jews understand themselves to inhabit a compromised political, legal and spiritual reality. Politically, galut means Jews are subjugated to foreign rulers and lack the central institutions of the Biblical system: the monarchy, priesthood, prophecy, and the Temple. Legally, galut means that halakhah must function without the supreme legislative/judicial body known as the Sanhedrin and without competence to adjudicate or enforce significant areas of halakhah. Finally, from the spiritual dimension, galut means that the Temple lay in ruins, and the people are unworthy of the spiritual and political stature enjoyed by their forbearers. In many ways, galut begins already in the biblical period, and was certainly in full-force when the Babylonians destroyed the First Temple in 586 BCE. The current galut is typically associated with the destruction of the Second Temple in 70 CE by the Romans. From that time onward, as one noted scholar framed it, Jewish religious and political life is in a holding pattern, suspended between the ideal of the biblical past and the anticipated salvation of the messianic future. 1 It is in this context of galut, that halakhah as we know it developed. 1 Yosef Hayim Yerushalmi, Zakhor: Jewish History and Jewish Memory (Seattle, University of Washington Press, 1982),

19 Saiman, Rabbinic idea of law (Draft Ch. 2) Despite the sub-optimal conditions, halakhah thrived in galut. Virtually every work of halakhah from the Mishna, to the Jerusalem and Babylonian Talmuds, the medieval commentaries of Rashi Tosafot and Rambam s code, the 16 th century Shulkhan Aruch, and the great works of scholarship from the yeshivas of the 19 th century--- are all products of galut. Notwithstanding these monumental achievements however, the ideology of galut casts a long shadow over the entire halakhic enterprise. In its self-image, halakhah stands as an inherently compromised legal regime that is unable to realize its regulatory ideal. The Law of the as if While galut rendered halakhah s central institutions inoperable, one of its most astonishing features is that at least some of the time halakhah speaks as if it governs a broad array of public institutions. Perhaps the most famous example is the Talmudic discussion the law of capital punishment. Few legal fields are more symbolic of the law s power to govern than its ability to end the life of those who violate its rules. For this reason, the mismatch between the idealized halakhah of capital punishment and the facts on the ground create one of the most famous cases of the halakhah of the as if. On the surface, little in the Talmud reveals the non-regulatory status of its capital punishment regime. Five of tractate Sanhedrin s eleven chapters are devoted to these laws three to the underlying offenses, and two describe the procedures themselves. The historical record is shaky however as to whether this was ever carried out per the Mishna and Talmud s legal proscriptions. In fact, in the Talmud s recounting, the Sanhedrin the High Court that sat in Jerusalem ceded capital jurisdiction 40 years prior to the destruction of the Temple. Further, as we will see below, the Mishnah itself describes considerable hesitancy over administering capital punishment. 2 And finally, by all accounts, no such institution functioned after the fall of Jerusalem in 70 CE and the assumption of Roman rule. Despite the practical irrelevance of capital punishment, the Talmud developed an elaborate procedure detailing how it would be, or should be, administered. I do not just mean that people got off on technicalities, or that the law was routinely under-enforced--- these issues come up in many legal systems. Rather, the halakhic discussion is entirely theoretical because the legal and political structures they assume were not (or were no longer) in place. Even so, the Mishna does not speak of an idealized past, but in declarative tones of the governing present. For example, a Mishna in the first chapter of Sanhedrin unproblematically states that: capital cases are adjudicated in a court of twenty-three. 3 Later on it describes the procedure as follows: When the convict was four ells away form the place of stoning he would be undressed The male is covered one part in front, and the woman, two parts in front and one in the rear 2 B. Sanhedrin 41a, B. Shabbat15a, B. Avoda Zara 8b. 3 M. Sanhedrin 1:4. 3

20 Saiman, Rabbinic idea of law (Draft Ch. 2) These are the words off Rabbi Yehuda. But the Sages say: A male is stoned naked, but a woman is not stoned naked. 4 The Mishna does not think in terms of past or present. It simply declares what the halakhah is. 5 Locating when or where this halakhah applies in time or space is not part of the Mishna s agenda. The same holds true of the Mishnaic halakhah relating to almost every public institution: the practices of the Temple, and the agricultural and purity laws pertaining to it; the political system of Kings, tribal leaders, prophets and the procedures of the Sanhedrin itself all told more than one-third of the Mishnaic corpus. By the time the Mishna is compiled many of these institutions were distant memories a fact freely noted in rabbinic literature itself. Yet, the Mishna adopts a jurisprudence of the as if; detailing regulations as if the Temple in Jerusalem stood in its all its splendor; as if the Jewish people live are sovereign in their land, as if the Sanhedrin exercised its powers, and as if Jewish law was routinely enforced through the criminal law articulated therein. To this point we examined the relationship between the statements in the Mishna and the consensus of historical scholarship regarding the relevant period. But the mismatch between the Mishna s rules and the realities of governance is equally evident from the Mishna s internal account. Since the procedural requirements enumerated are so incredibly restrictive, even if we were to assume that the Sanhedrin enjoyed the full panoply of its powers, executing a criminal under Talmudic law would be all but impossible. Though many specifics contribute to this nullification, the most striking is the process known as hatra ah (lit. warning), which requires the criminal to verbally consent to his judicial execution. Writing in the 12 th century, Maimonides summarized Talmud s thinking on this matter as follows: How would the witnesses warn the criminal? They instruct him to cease [the criminal act] or tell him do not commit the crime, since it is a transgression and you are liable the death penalty or lashes for it. If he ceased, he is exempt. Similarly if he was silent or he nodded his head he is exempt. Even if he said: I know, he is exempt until he submits himself to be executed and says: I am acting on the understanding [that I will be put to death]. In this case he is executed. Further, he needs to commit the crime within a momentary instant of the warning כדי בתוך).(דיבור However, if he waited more than one instant, another warning is required. 6 A system requiring verbal consent is unlikely to be very effective in punishing or deter crime. Not surprisingly, the entire corpus of rabbinic literature records only a handful of 4 M. Sanhedrin 6:3. 5 Halivni on Apodictic Law in Midrash Mishna Gemara? 6 Maimonides, Yad, Hilkhot Sanhedrin 12:2. 4

21 Saiman, Rabbinic idea of law (Draft Ch. 2) incidents of capital punishment, and exactly none of them conform to the strict procedural requirements developed in the (later) halakhic sources. 7 The requirement of hatra ah, however, is not limited to cases of capital punishment, which is hopefully rare in any legal system. According to many commentators, the same rules apply, to the (theoretically) more ubiquitous punishment of floggings or lashes, which represent the standard sanction for mid-grade infractions of Jewish law. 8 As with capital punishment, there is nothing in the Talmud s presentation that indicates these punishments are anything but routine. The Mishna list over sixty categories of offenses subject to lashes, and discusses the finer points of the procedure, such as: the size and thickness of the whip; the positioning of the flogger, the flogged and the court crier; the verbal declarations assigned to each party; as well as the rather obscure requirement that the total number of lashes be divisible by three. 9 Yet, applying hatra ah to lashes means that this lesser punishment is no more practicable than the death penalty. Here too, we should not be surprised to find little evidence (either in or out of rabbinic literature) suggesting that someone was flogged per the procedures detailed in the Talmud. Moreover, because, flogging and capital punishment represent the only judicially imposed criminal sanction recognized by the formal halakhah, on its own account, much of halakhah is effectively unenforceable. While there are many historical and practical uncertainties regarding the application of these halakhot, perhaps the most confusing aspect is this: neither the remoteness nor even the non-possibility of application does anything to dampen the rabbis ardor for legislating and debating these rules and procedures. The Mishna details the exact procedure for how the convict is to approaches the place of stoning, and how the criminal should be pushed off a two-story ledge (counter-intuitively, the first stage of execution by stoning ). Building off this rule, the Talmud quotes the 3 rd century Amora (rabbi of the Talmudic era) named Shmuel who maintains that prosecution s witnesses must take an active role in the execution, because the hands that witnessed the crime should be the ones that shove the criminal to his death. 10 Not satisfied with this level of detail, the Talmud further elaborates that if one of the witnesses hands was cut off in the period between having witnessed the crime and the time of the execution in court, the convict cannot be executed. This position is later adopted as governing halakhah. Leaving aside the substantive bizarreness of this rule, it is worth retracing the gap between the Talmudic discussion and what can be imagined as a governing reality. Standing 7 Aharon Shemesh, Onashim Ve Chataim: Min Ha-Mikra, Le-Sifrot Chazal (Jerusalem: Hebrew University Press, 2003), ; Saiman, The Halakhah of Jesus Trial, FIRST THINGS, August/September See Reuben Margoliot, Margaliot Hayam (Jeruslaem: Mossad Ha-Rav Kook, 1957), 81a:14 s.v. Bekipa Tzircha Hatra Kemifligi, Solomon ben Aderet, Shut Rashba (St.Petersburg, 1883), 4:109, and Chaim Hezekiah Medini, Sdei Hemed (New York 1962), Mem:31. 9 Cites? 10 B. Sanhedrin 45b. 5

22 Saiman, Rabbinic idea of law (Draft Ch. 2) alone, the requirement of hatra ah makes capital punishment all but impossible. But even granting the assumption that we could find a criminal who verbally submitted himself to execution, the Talmud finds it necessary to state a caveat, based on the teachings of a sage born more than a century after the Sanhedrin could even theoretically execute anyone, as to how the law would apply in the unlikely scenario that a witness hand was cut of between having witnessed the crime and the time of execution. (Note that rule is different if the witness lost his hand prior to witnessing the act!). And this rule, and many similar to it, would continue to occupy later scholars in subsequent generations. The Talmud contains hundreds, likely thousands, of detailed that relate to the intricacies of legal institutions far removed from Babylonia of period the Talmud came together. 11 Nor is this tendency limited to areas of criminal or to Temple-based ritual law. It is equally present in more commonplace examples such as civil fines, which were beyond the jurisdictional authority of the Babylonian rabbis. More prevalent still, are Talmudic discussions of thousands of legal specifics whose likelihood of occurrence is so infinitesimally small that it is hard to see why anyone would worry about them. Examples include the ritual status of a basket eaten and the excreted (whole) by an elephant, whether a farmer who attempts to plough his field with a goat and a fish violates the commandment against putting animals of different species under a yoke, and, the perennial favorite, the man who fell of a roof and inseminated a woman. 12 Throughout Jewish history, rabbis continued to study, debate and produce halakhah on topics far removed from governance with the same rigor given to issues of halakhah that form the backbone of daily practice. Yet through all this, the most basic questions of legal and political theory remain unarticulated. Even the tradition s greatest scholars and are rarely discuss when, how, and to what effect, this system can actually govern. Historical Accident or Essential Feature? Most of what we have said thus far is familiar to students of the Mishna and Talmud. The common reaction however, proceeds as follows: True, the Talmudic rabbis continued to promulgate rules after they ceased to function, but initially when these rules were formed they reflected law in the more conventional sense. On this view, the core halakhic ideas were formulated in an era when the Temple stood and the Sanhedrin functioned. It was only later, when the circumstances of galut relegated these institutions to historical memory, that the rabbis continued to study them as a way of memorializing past. Further, because the Rabbis believed these institutions would be reconstituted in the messianic future, their goal was to preserve and develop the law in prayerful anticipation of its re-application. This claim can be strengthened by noting that the Mishna and Talmud are clearly aware of their galut-based status, and the Mishna 11 (Scholars differ on this dating. The traditional account is the 3-5 th centuries, though modern scholars assume that much of the work was done in the 6-8 th centuries.) s 12 See respectively, B. Baba Batra 22a, B. Baba Kamma 55a, B. Baba Kamma 27a. 6