The Reading Room

Law and its Development in the Talmud

If one were to reduce the numerous works of the three thousand year-long, still developing Jewish tradition to those books constitutive of that tradition, there would, by general agreement, be three. The first is the Hebrew Bible, designated by the acronym TANAKH: TA representing the Torah, the first five books; NA representing the prophetic books, for example, Isaiah, Jeremiah, and Ezekiel, but also Joshua through 2 Kings; and KH representing those writings such as Job, Esther, and Ecclesiastes but not 1 and 2 Maccabees or Judith, as the latter were not incorporated into the canon of the Hebrew Bible as it was finally determined probably after the destruction of the Second Temple by the Romans in 70 CE. 
Of course, the Hebrew Bible is known in Christianity, not only the Old Testament, part of the Christian canon, but also because, if all references to it were eliminated from the Gospels, little would left of them. The Hebrew Bible is also known in Islam, for sections of the Qur’an are drawn, with significant modifications, from it, for example, the accounts of Moses (Musa) and Joseph (Yusuf).
 The second and third great works of Judaism—the Mishnah and the Talmud—have been and continue to be unknown to Christians and Muslims, outside a small circle of scholars, even though sections of both had been translated into Latin beginning in the late Middle Ages. (The complete Latin translation of the Mishnah appeared at the end of the 17th century.) The interpretative difficulty of the Mishnah and especially the Talmud is not the only reason for this lack of familiarity. 
 The Talmud, an extensive commentary on the rabbinic code of law, the Mishnah, was, beginning in late antiquity and continuing throughout the 16th century, repeatedly banned and even burned. There were, however, those who opposed the ban, for example, Johann Reuchlin and the great English jurist John Selden (but not Erasmus). Those who opposed the banning of the Talmud did so for two reasons. First, they had concluded that to understand properly the New Testament, one had to be familiar with the thought and laws of the rabbis, available to us through the Mishnah and the Talmud. Secondly, they also opposed the ban out of a fidelity to liberty: to the freedom of impartial investigation, to the freedom of thought. Nevertheless, for those who knew Hebrew, access to the Mishnah and Talmud was possible through Maimonides’ Mishneh Torah, a typological reorganization and analysis of both. (For an overview of the history of Christian interest in the Mishnah and Talmud, Steven Grosby, Hebraism in Religion, History, and Politics: The Third Culture [Oxford, 2021].)
 The Mishnah, a lengthy collection of laws covering six areas (or “orders”) of conduct, is concerned with sanctification, that is, maintaining proper or righteous relations, as understood by the rabbis. Those six areas are: agriculture; appointed times, (for example, the Sabbath); women, (for example, the marriage contract); damages or civil law, including the Sanhedrin, that is, institutions of government; holy things, including sacrifices; and purity, (for example, the treatment of dead bodies.) The English translation of the Mishnah by Herbert Danby is almost eight hundred pages long. The examination of each of these six areas expands over 63 tractates which are, in turn, divided into chapters. It was codified around 200 CE, that is, more than a century after the destruction of the Second Temple.
 The existence of this legal system evidently addresses the dilemma of how Israel could maintain a social order in the absence of both Jewish sovereignty and its cult (the destruction of the Temple). It would, however, be an overstatement to conclude that this rabbinic emphasis on law as the means to maintain a righteous Jewish existence arose entirely as a result of the destruction of the Jewish polity and its Temple, when only the rabbinic “house of study,” that is, the synagogue, remained. After all, the Jews had six hundred years earlier suffered the loss of sovereignty, the destruction of the First Temple, and exile, yet they found ways to continue to survive as a corporate entity, with their religion, in Babylon.
 Characteristic of Judaism, both biblical and rabbinic, is a focus on this world, on establishing right relations among fellow Jews and non-Jews, and with God for furthering life in the here and now. Its attention has never been directed to the other world of heaven. In the TANAKH, the commandment to be fruitful and multiply underscores this continual this-worldly focus. When maintaining those right relations was frustrated, the primary response was not to flee from this world but to look towards a historical future when those relations would be re-established. There has, thus, always been a focus on law as the means for establishing right relations, of course, a law faithfully obeyed, with a “circumcised heart.” This constitutive emphasis on law can be seen in the earlier law codes of the TANAKH: Exodus 20:22-23:33; Leviticus 1-15; Leviticus 17-26; and Deuteronomy 12-26. A separation between faith and good deeds (“works”), as specified by the law, is alien to Judaism.
 But there can be no doubt that the Mishnah greatly expanded those earlier laws. A significant legal development had taken place. How did the rabbis justify this expansion and development? They did so by asserting a tradition of legal development, running parallel with the Torah, beginning with Moses and continuing through the second century CE—the so-called “oral law.” This tradition (now with Moses referred to as a rabbi) is laid out in the Mishnah in the Pirke Avot, the “sayings of the fathers.” There are relatively few citations from the Torah that serve to legitimate the laws of the Mishnah; instead, it is the tradition itself, somewhat similar to English common law, which provides the justification. 
 How this legal development was justified is where one sees one of the important differences between the Mishnah and the later, considerably longer, Talmud. (The English translation of the Talmud by Steinsaltz is over 6,000 pages long.) While the Mishnah only occasionally cites the Torah in support of its laws, the Talmud makes every effort to do so, so that those laws are analyzed in a way that they appear dependent upon, as reasonable interpretations of, scripture. When doing so, scripture itself was also subjected to extensive analysis. Thus, in the Talmud, one finds not only the examination of law but also extensive discussion, often including, importantly and arrestingly, divergent interpretations of the meaning of scripture itself. Because the Talmud encompasses, in its analysis of the legal development of the Mishnah, the meaning of the TANAKH and the relation to that development, it became the authoritative great work of Judaism. 
 There are, in fact, two Talmuds: one composed in the land of Israel, hence known as the Jerusalem Talmud; and the other, later one composed in Babylon by the sixth century CE. Both obviously deal with many, but not all, sections of the Mishnah, for example, the Babylonian Talmud, perhaps understandably, does not deal with the laws of agriculture that would be applicable to the land of Israel. What is important about the Talmuds is their commentary on the laws, and especially so for the Babylonian as its commentary is significantly more extensive which is one of the reasons for why it became more authoritative than the Jerusalem.
 The analytic structure of the Babylonian Talmud is intriguingly remarkable, for its commentary on the laws and their relation to the TANAKH is presented as a dialogue between the rabbis—a dialogue that is often contentious. It, thus, has the character of a conversation that invites the reader to participate, to take sides in the recorded disagreement over the meaning of the TANAKH and the development of the laws. This structure seems to imply that the law will never reach final consensus. In fact, the recording in the Talmud of multiple, conflicting opinions in legal disputes indicates that occasionally even the authority of the Torah and the Mishnah could be qualified through the introduction of lines of questioning that were not, indeed could not have been, initially apparent, if for no other reason than the new demands of living together arising out of always changing circumstances. Furthermore, during these recorded disagreements, reasons are given for the different positions taken. To be sure, sometimes the reasons given for a legal position and its relation to scripture may appear strained to us; nonetheless, the arguments never rest upon mere authority. Thus, it would be difficult, if not impossible, to sustain a contrast between reason and revelation in the Talmud.
 How did the rabbis understand this developing legal tradition, with its contentious debates, as presented in the Talmud? For the rabbis, the creation of the world was not a condition of stasis; rather, it was on-going, always developing, but in a way where tradition was not rejected but modified. One obvious example from the Talmud of this developing modification that includes a justifying interpretation of scripture (in this case, Genesis 9) is the rabbinic formulation of the seven Noahide laws (Babylonian Talmud Sanhedrin 56a-59b), postulating a minimum of righteous conduct, for example, prohibition of wanton murder, prohibition of theft (thereby according rights or private property), establishing courts, that were applicable to all of humanity. In that development of the tradition, of the law, the rabbis saw themselves as partners with God in the continuing creation of the world (as explicitly stated in Babylonian Talmud Shabbat 10a).

Comments:

Gary McGath

A very interesting piece, which I've pointed out where some of my Jewish friends will see the link.


Monica Cellio

Thanks for this interesting article. (I'm here via Gary.)

If I understood you correctly, you said that the talmud presents conflicting opinions and that implies that the law can't reach final consensus. There are places in the talmud where the question is left open and unresolved -- the usual phrasing is that it is left for Eliyahu (Elijah), meaning that when Eliyahu heralds the arrival of the messiah, these questions can finally be answered but until then it's a dispute. That does happen, but *most* of the time, from what I've seen, the discussion in the talmud is eventually resolved. The talmud presents all of the conflicting opinions not to say "here, choose among these", but, rather, because we preserve the arguments and the discussion that led to the answer, not just the answer. Think of it as an audit trail of sorts, but also, every sage who contributed to the discussion, even if ultimately overruled, helped build the tradition and that should be noted. Or that's how it was explained to me, anyway. (Obviously lots of *other* people also helped build the tradition too, whose voices aren't recorded there.)

But in another sense, you're right that there can't always be a "final" answer, because there will always be new developments. The rabbinic tradition (the talmud is part of it but not all of it) is a critical foundation for settling new questions. The talmud obviously doesn't have anything to say about using computers on Shabbat, but modern rabbis can use the precedents and principles we have to answer those questions. And just as in the discussions in the talmud, sometimes they disagree with each other. We haven't had a Sanhedrin, a high court, since the destruction of the temple, so there are different, competing, community-specific interpretations out there, all based on the same foundations.