The Jurisprudence of the Talmud

The Wisdom of the Talmud, by Ben Zion Bokser, [1951], at sacred-texts.com

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The Jurisprudence of the Talmud

Talmudic law differs from other systems of jurisprudence in its all-inclusive character. It is not confined to the realm of social relations. It seeks to implement the entire range of values which are taught in Judaism, whether they derive from religion or morality. We may define its goal as the enforcement of those elements of doctrine and conduct that the rabbis deemed indispensable to the life of the individual or the community.

Talmudic law concerns itself with doctrine, but it does not establish dogmas that must be believed in as true. On the level of opinion great freedom existed in the Jewish community and individuals were allowed to follow their own inclination of heart and mind. There was ample literature expounding the basic conviction of Judaism and the very diversities of thought and interpretation were deemed a source of strength in Jewish tradition. Truth cannot be contained in one easy formula. Like the fire which breaks into many sparks, so does truth break into many fragmentary truths, which are caught by diverse human minds. Talmudic law centers on the discipline of action, but the actions which it prescribed were also a vehicle of doctrines that the rabbis deemed indispensable in their way of life.1

LAW, THEOLOGY AND RITUAL

Talmudic law recognizes two general categories of value. One is the duties which derive from man's relationship to God; the other is duties which derive from man's relationship to his neighbor. The laws dealing with man's relationship to God are, in a sense, the implementation of Jewish

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teachings in theology. They are intended to deepen man's consciousness of those doctrines through repeated actions in which they are enshrined. Thus Talmudic law ordains the recitation of the shema (Deuteronomy 6:4) affirming the unity of God, twice daily, morning and evening. It establishes a ritual of daily public and private prayer. It formulates the specific texts of the benedictions on partaking of various foods. Through these rituals man was to be made more keenly aware that he is living in God's world and that he must be ever grateful for the privilege of enjoying its manifold blessings. To accept what the world offers us without a thought of what we owe to God for it, marks a man an ingrate. As the rabbis put it: "It is forbidden a man to enjoy the things of this world without a prayer."2

The law governing man's relation to God often serves also as a precautionary measure to prevent the transgression of more fundamental principles or doctrines. The rabbis pictured the basic elements of religion and morality which they wanted their people to maintain as a kind of vineyard that must be fenced in against violators. This was one of the guiding rules of the men of the Great Assembly: "Build a fence to the Torah."3

The law as a "fence to the Torah" is clearly illustrated in the widely ramified rules bearing on idolatry. The cult of idol worship was widespread throughout the Roman empire, and its visible symbols, images of all kinds, dotted prominent sites in city and country. Surrounded by these manifestations of paganism on all sides, the Jews were in danger of contamination. The danger was met by Talmudic law which forged a mighty fence to protect the religious purity of Jewish life. It declared all idolatry, its symbols, the site where they were located and all activities associated with it, out of bounds for a Jew. Even the broken wood or metal that had ever been part of an idol was forbidden. A grove where an idol was situated was not to be entered, even

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for the innocent purpose of being shaded from the sun. The wine employed in idolatrous offerings was not to be used. Even a drop of it falling into another liquid would render it unfit for normal consumption.4

The rabbinic struggle against idolatry was not a novel phenomenon in Jewish tradition. It appears in the Bible where it was directed against earlier forms of this religious primitivism. It is a continuation of one of the permanent characteristics of Judaism, its battle against the artistic glorification of the blasphemous error which reduced God to finite form. The discouragement of painting and sculpture in classic Judaism derives from this struggle against error made more palatable through beautiful representation. The rabbis fought an important episode in this struggle, and they achieved their victory through law.

The law which governs man's relation to God possessed qualities of adaptability, as did law of human relations. And it responded to the pressures of the circumstances under which it was to be lived. This is well illustrated in the law which forbids travel on the Sabbath.

The Sabbath was instituted in Judaism for a dual purpose. It was to be a memorial to creation, to recall to us the divine source of all existence. It was likewise endowed with social significance, to rest the bodies and minds of men, a goal that was inspired by the remembrance of the emancipation from Egyptian bondage. The measures by which the Sabbath was to be commemorated were many, and among them was the rule against travel. An examination of this rule in all its wide ramifications reveals the profound religious and moral ends which the rabbis sought to accomplish by it, and the fine line of development through which its basic elements finally emerged.

The prohibition to travel on the Sabbath is derived from the verse in Ex. 16:29: "Abide ye every man in his place; let no man go out of his place in the seventh day." Originally

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directed at the gatherers of manna in the wilderness, this verse was seen in a more general light, as an interdiction of all movement on the Sabbath beyond one's domicile.

Rabbinic sources offer us two general reasons for the objection to travel, both related to the goal of liberating man on the Sabbath day from labor as well as anxiety and distraction. The first consideration is expressed in the principle of tehumin, the need of fixing one's domicile in a particular place, and then limiting one's motions within a prescribed radius of that place. The Sabbath experience depended on keeping the family together within the atmosphere of the home, and the home had to be fixed in space, even as the Sabbath was fixed in time. On that day, man was therefore to confine his life to the home and its surroundings.

The original interpretation of the Biblical verse was literal, and the place of permissible movement was confined to the home plus an additional 2000 cubits. The tendency to socialize the Sabbath finally wrought a change in interpretation and the home was then taken in the widest possible sense, to include one's city, supplemented by the usual radius of 2000 cubits of additional movement. The terminus of allowed movement by an additional provision of the law, could, moreover, be pushed farther away when necessary through an erub, a conscious designation of the desired place outside the city as part of one's home, by depositing there some food as a token of home. A traveller who chanced to be away from a city at the advent of the Sabbath could, by an act of conscious designation known as kinyan shebitah, fix his home anywhere and then he was free to move within the 2000 cubit radius of that place.

Travel on the Sabbath by riding an animal was also forbidden for the additional reason of seeking to avoid involvement in incidental labor, such as possibly cutting down a twig in order to prod the animal on its way. There is also the suggestion that one who rides an animal might easily

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move beyond the confines of the tehum and cross the area around the home which is the zone of allowed movement on the Sabbath.

There are other elements in the law of the Sabbath which regulate movement, but they all testify to the same underlying goal. The rabbis did not seek arbitrarily to stifle the free movement of life. They sought to reject tension, undue exertion. They sought to mold the Sabbath into a day of serene, relaxed living. Thus they banned the pesia gasa, the hurried walk of the busy days of the week. The Tosefta generalized: "One may not run on the Sabbath to the point of exhaustion, but one may stroll leisurely throughout the day without hesitation." The Sabbath was to be a day of peace, and the halakah was engaged in fashioning the usual rabbinic fence that was to keep man from crossing over into the domain where the world and its cares stood ready to devour his serenity and his rest.

The Sabbath law was as flexible as every other branch of the halakah. Under some circumstances the prohibition against riding was waived, simply because other values at stake were deemed more pressing. Thus it eventually ceased to operate altogether in the case of ocean travel. The difficulty of pacing travel in such a way as to avoid being on the boat on the Sabbath was clearly the most significant factor. It would have paralyzed movements from Palestine to other parts of the world, which in many cases depended on schedules beyond the control of the individual passengers. In some instances the journey as a whole was of more than a week's duration, and it was clearly impossible to halt the ship for the Sabbath observing passenger.

That the rabbis originally looked upon ocean travel as included in the category of prohibited movement is manifestly clear from our sources. Thus the Talmud provides: "One must not undertake a boat voyage less than three days prior to the Sabbath. … On the other hand, the short distance

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from Tyre to Sidon one may undertake even the day preceding the Sabbath."

In time the law reckoned with life and the formula was eventually worked out, allowing even the boarding of the ship on the Sabbath itself, provided one had deposited there some of his belongings, thereby designating it as his home for the Sabbath through an act of kinyan shebitah.

Travel on land, too, was in some exceptional cases suspended in consonance with other considerations, deemed even more pressing than Sabbath rest. Thus a witness testifying as to the appearance of the new moon—a vital consideration in the then current system of calculating the calendar—was permitted to travel on the Sabbath. He was to come riding on an animal even on the Sabbath day.5

LAW AND A JUST SOCIETY

The underlying goals of the law which derives from the relationships between man and man are more apparent. They seek to create a just social order that shall liberate man from arbitrary impediments to his growth. But the law of the Talmud does not consider itself as an impartial umpire that is to keep individuals within their respective spheres, without encroaching upon one another. "One who asserts what is mine is mine, and what is yours is yours, is only of medium ethical stature," according to the Talmud. There is even an opinion that such a standard corresponds to the ethics of the wicked city of Sodom.6 The standard commended by the rabbis is the willingness to bend self-interest in acts of helpfulness toward others. And Talmudic law reflects this higher standard. It does not seek to balance self-interests. It seeks to bend the enterprises of society toward acts of welfare for the common man, especially for the underprivileged members of the community.

The standard of welfare which the Talmud recognized as

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ideal is total self-identification with the needs and aspirations of one's fellow-man. The Talmud calls it the standard of saintliness. The Mishnah defines it thus: "What is mine is thine and what is thine is thine is a hasid, a saintly man."7 The standard of saintliness was not a practical standard by which men could order their lives in society. It projects an ideal which most men could not attain. The law crystallized at a moral level below this, but the ideal of saintliness played a tremendously vital role in rabbinic law. It proclaimed that the law in itself does not exhaust the moral ideal. It enabled men to judge their conduct by an ideal which, precisely because it was unattainable, could ever serve as a source of vital self-criticism and as a spur to new moral endeavor.

The recognition that the law did not realize the highest moral ideal led to a demand that men go beyond the limits of the law in their dealings with each other. This is clearly conveyed in the rabbinic interpretation of the verse in Exodus 18:30, "And thou shalt make them know the path they are to walk in and the work they are to do." "The path they are to walk in" according to Rabbi Elazar of Modein, refers to the law, while "the work they are to do," he continues, refers to acts of saintliness "beyond the measure of the law."8 The rabbis cite various cases in which people of moral sensitivity acted on a higher standard than the one called for by the law, and their conduct is hailed as exemplary.9

Those actions "beyond the line of the law," as the Talmud calls it, constituted a free zone in which individuals expressed their generosity and love for their fellow-men, without compulsion from outside sources. The Talmud hailed this free zone of moral action as the very foundation of a good society. A community in which men are content to hew to the strict letter of the law was devoid of the moral cement that gives a social order stability and enables it to

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survive. "Jerusalem was destroyed," according to Rabbi Jananan, "because her people hewed strictly to the letter of the Torah."10 It is actions beyond the law that give evidence of a vibrant morality and save the law itself from becoming a soulless formalism devoid of feeling and vitality.

MORAL PRESSURES ON THE LAW

The standard of saintliness was important not only for the individual in keeping alive for him the underlying moral impulses which the law in itself could not fulfill. It acted as a pressure on the law, forcing it to move forward to new frontiers of human service. The Talmud gives evidence of a continuously growing program of welfare legislation, in which ever wider sectors of social life were brought under the control of a law, whose motivating impulse was the welfare of the common man. Thus the law empowered the community to assume responsibility for elementary education and poor relief. It authorized the supervision of weights and measures, and of fair wages and prices to prevent unethical business practices.11 The law compelled children to provide for the maintenance of parents, even as parents were compelled to provide for the maintenance of children.12

The law forced a person to help his neighbor where it was clear that he himself would not lose by it. Thus, heirs dividing land that had come to them by inheritance were expected to consider that one among them owned land contiguous to the parcel to be divided and to give him his share near his own land. The Talmud generalized: "We coerce against the standard of Sodom." A person did not have the absolute right to be mean.13

The pressure of a higher moral standard inspired the Talmudic liberalization of the Jewish criminal code. Capital punishment is provided in the Bible for a variety of crimes. But the rabbis, as we have already noted, found

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capital punishment reprehensible, and they rendered it almost inoperative by hedging it with conditions that made of the old law a dead letter. Thus they insisted that the commission of the culpable act must be preceded by a warning and by an expression of defiance on the part of the criminal in the face of that warning.14 And the Mishnah declares explicitly, "A Sanhedrin which decides a verdict of death once in seven years is called murderous. Rabbi Elazar ben Azariah said, even if only once in seven years. Rabbi Tarphon and Rabbi Akiba said: 'If we were members of the Sanhedrin, there would never be a verdict of death.'"15

The growth of Talmudic law, in all its aspects, was for the most part, we have already noted, the work of judicial interpretation rather than of formal legislation. The rabbis who were called upon to administer the old law reckoned with the conditions under which it was to be applied. And if they thought the mechanical application of precedent in conflict with the demands of equity, they resorted to reinterpretations which withdrew the new case from the old category into which it seemed, by the rules of formal logic, to fall. The case so decided then became precedent for parallel situations.

The judge served in effect as a creator of law and not only as its interpreter—a phenomenon which has been duplicated in every system of jurisprudence. Thus the limitation of capital punishment to instances which satisfied the qualifying circumstances was an act of judicial interpretation. But it set a precedent which broke new ground in the entire range of Jewish criminal law.

THE BASIS OF LEGAL CONTROVERSY

It goes without saying that these far-reaching judicial interpretations did not proceed with universal concurrence. Considerations of equity are ultimately subjective in character and they will reflect the diverse hearts and minds in

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which they occur. This is the principal reason for the marked presence of controversy in the Talmud. The rabbis were not contentious for contention's sake. They disagreed as do the judges on any judicial tribunal. They were simply offering diverse reactions to the problems of life, born of diverse backgrounds and of those intangible diversities of temperament, character and outlook, which naturally divide men from one another. Thus, the decision against capital punishment was challenged by Rabbi Simeon ben Gamaliel who defended the old law as an indispensable deterrent to crime. The reform proposed, he argued, would "cause an increase of bloodshed in Israel."

The differences of opinion among the Talmudists are rot always indications of genuine disagreement. They are rather, in many cases, the varying customs and usages which derive from their respective backgrounds. Thus Rabbi Eliezer, who was an aristocrat, exempted arms from the prohibition of carrying unnecessary objects on the Sabbath. He regarded them as ornaments and they were to be worn as a normal part of a person's apparel. His colleagues, representing the point of view of the common people, forbade it. Citing the prophetic contempt for war and its implements, they branded the wearing of arms as a "disgrace".16

A similar difference, deriving from the diverse backgrounds of the rabbis, is offered us in the definition of the time when the Shema is to be recited, evening and morning. The Bible defined the time as "when thou liest down" and "when thou risest up." Rabbi Eliezer ben Hyrcanus, reflecting his rural background where it is customary for people to retire early and rise early, sets the time in the evening from sunset to the end of the first watch of the night, or nine o'clock. In the morning he sets the time from the appearance of the first streaks of light till sunrise. His colleagues, reflecting an urban practice, permit the Shema in the evening until midnight and in the morning until nine o'clock.17

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TALMUDIC LAW AND THE STATE

The rabbis who created Talmudic law were the religious representatives of the Jewish community; they were not functionaries of the state. Prior to the destruction of the Temple in 70 C.E. the state was intermittently under the influence of the Pharisees, the forerunners of the rabbis who were the great builders of Talmudic law. The most influential molders of policy, however, were Sadducees. Pharisaic interpretation had a great moral force among the people, and to that extent exerted pressure with which the state had to reckon. We have a record of Alexander Jannai, king and high priest, proceeding to perform the succot ritual in the Temple according to Sadducean ritual, whereupon the assembled worshippers demonstrated in protest.

Talmudic law came into its own after the destruction of the Temple. In the limited autonomy enjoyed by the Jewish community in Palestine and in Babylonia, Jewish law was given far-reaching scope; and that law was the law as interpreted and administered by the rabbis. Yet in many cases the state asserted its own sovereignty to supersede the internal law of the Jewish community. The rabbis advised conformity. The Babylonian teacher Samuel ruled explicitly: "The law of the state is law."18 This became the basic rule governing the Jewish attitude toward his obligations as a citizen. His own law retreated to make room for the law decreed by the state of which he deemed himself a part.

The Talmud drew a line, however, as to how far the accommodation of Jewish law to the state was to proceed. Where the state sought to violate basic principles of morality and faith, its law was to be resisted. As the Midrash declared, commenting on the verse: "I counsel thee, keep the king's command and that in regard of the oath of God" (Eccles. 8:2): "The Holy One, blessed be He, said to Israel, 'I adjure you that if the government decrees harsh decrees,

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rebel not against it in any matter which it imposes upon you, but keep the king's command; if, however, it decrees that you annul the Torah and the precepts, do not obey.'"19

The dilemma here posed became a real issue during the reign of the Emperor Hadrian. As part of the Roman empire, Palestine and her Jewish community became subject to imperial law. The edict of Rome proscribed all the practices of Judaism on pain of death. The rabbis met the challenge by calling for conformity, with the exception of the three fundamentals, the laws against idolatry, immorality and murder. A person was to suffer martyrdom rather than violate these in conformity to the unjust will of the state. As the rabbis put it: "Nothing must stand in the way of self-preservation, except idolatry, immorality and bloodshed." Rabbi Ishmael limited the demand for martyrdom in the case of idolatry, to its public profession. In privacy he called for compromise even in this instance, rather than suffering martyrdom.20

LAW AND INWARDNESS

Law is a discipline which governs action. But the rabbis were keenly aware that the inner man is more important than the deed through which he expresses himself. "The Holy One, blessed be He, is concerned above all with what is in man's heart."21 For a person may conform to the demands of the law, and remain inwardly corrupt. And similarly a person may in the midst of a life of wrongdoing go through an intense experience of inner change that leaves him a noble character. "One man earns his place in the world," Rabbi Judah the Prince, once reflected, "through the efforts of many years, and another earns it in one hour."22 Indeed, Rabbi Abahu ranked the penitent even above the man who had never sinned.23

The decisive hour of repentance may transform a sinner into a saint. But the rabbis distinguished as to its sufficiency

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between the relations of man to God and the relations of man to man. Repentance will wholly clear a person for transgressing laws expressive of our relations to God. More is, however, required in the case of transgressions of the law of human relations. The aggrieved person must be appeased. Thus the Mishnah declares: "Transgressions between man and God may be atoned on the Day of Atonement, but transgressions between man and man will not be atoned on the Day of Atonement until one has appeased his fellow-man."24

It is significant, however, that the rabbis limited the scope of this required appeasement, in order not to place a discouraging burden on the would-be penitent. Thus one who had robbed a beam and built it into his house, was not required to damage his building by tearing out the beam to return it. It was deemed sufficient if he returned the value of it.25

The recognition of inwardness as a factor in law led to far-reaching consequences in the jurisprudence of the Talmud. It led to the demand that in the application of law we reckon not only with the letter of the law, but also with the manifest intention of those responsible for its enactment. This is well illustrated in the Talmudic interpretation of the Sabbath law. Thus, according to the Bible, violators of the Sabbath law by performing forbidden labor, whether in error or ignorance, were required to bring a sin-offering as a sacrifice. But what if a person committed, in one span of forgetfulness, a number of Sabbath violations, either on the same Sabbath or spread over a number of Sabbaths? How many sin-offerings was he to bring? The Talmudists ruled that the sin-offering was obviously intended to atone for negligence, and not for the labor as such. Since only one span of forgetfulness was involved, only one sin-offering was to be brought.

The Talmudists demanded also that the law reckon with the intention behind the deed, and not merely with the deed itself. Thus they absolved a person from all guilt if a stone

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thrown by him accidentally fell upon some one and injured him. They also absolved a person from the charge of murder if, intending to kill an animal, he missed his target and killed a human being. Where a person intended to kill a human being and missed his target, killing instead another human being, there was a difference of opinion among the Talmudists. Rabbi Eliezer regarded the act as murder; Rabbi Simeon did not.

The Talmudists allowed certain fulfillments of the law to the free play of spontaneous decision. No fixed measure was given for the area on the corner of each field which was to be left as a beneficence to the poor. Nor was there a fixed measure for the offering of the first fruits of the harvest that was to be a gift for the priest, or for the offerings brought on appearing at the Temple during the pilgrimages on the three major festivals, or for the practice of charity and the study of Torah.

The most significant expression of spontaneity in Talmudic law was the recognition of a wide range of authority for local custom, or minhag, as it was called. Local communities, trades, and even family groups often adopted measures to govern their religious or social life, or commercial transactions. These arose spontaneously, in areas which were not covered by the law. The rabbis invested these customs or minhagim with authority, and demanded compliance with them. Indeed, where a law clashed with a deeply rooted custom, they often gave precedence to custom.26

THE LAW IN MESSIANIC TIMES

The rabbis envisioned an even wider scope for religious and moral inwardness to be attained as history reaches its final unfolding. They anticipated that inwardness would eventually vanquish law altogether. In Messianic times when men will have learned the true lessons of the love of God and the love of man and feel that love deep within themselves, the law will no longer be necessary. The cult of worship

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by which we now express our relation to God and the apparatus of justice by which we now administer the law of human relations, will then become obsolete. For it will then be possible to depend on human spontaneity, expressing ennobled human characters, to suggest the right action in every situation without the discipline of law to channel it. "The laws," the Talmud declared, "will become obsolete in the hereafter."27

In the present stage of human immaturity, however, the law is an indispensable guide to action. It is, moreover, a preparation for the next stage of civilization, when the law which has come "to ennoble the lives of men"28 will have done its work. A new human race will then arise to live on the level of true inwardness, in free gestures of adoration of God and in an all-embracing love for their fellow-men. The rabbis expressed this vision in their conception of the three stages of human history. The first is the stage of "chaos", before the leaven of a divine law has begun to work in the world; the second is the stage of "Torah"; and the last is the stage of Messianic liberation and enlightenment which will finally bring man to his pre-ordained destiny.29