Development of the Halakha

5 12 2010

As it has come to my attention that some people who are interested in the development of Jewish law have been unable to find satisfactory resources online, I thought I might take a moment to delineate the basic process by which the principles expounded in the Torah are applied today. This is not intended to be at all exhaustive, but rather an overview of the development of the halakha, with attention paid to those texts that, historically, have proven to be most beneficial. A truly “bottom-up” approach might look at all manifestations of legal exegesis, rather than merely those that the tradition deems authoritative, and those who are interested in reading more can consult the recommended reading list below, in §7. Likewise, those who prefer only a summary of a summary can skip straight to the “Summary and Conclusions” in §6.

§1: The Need for an Halakhic System

Taking as read the fact that the Torah contains within its verses a number of laws by which individuals are meant to live their lives, and various rules that concern the operation of the state and of the priesthood, we can move on to note the fact that the application of these laws is beset with various difficulties. For a start, the laws are insufficient. While they might describe a variety of situations, they by no means describe every one. What is more, there are gaping lacunae in the text’s treatment of social reality. Any system of halakha must develop a means of extrapolating from those phenomena that are given treatment to those that are not. Secondly, there is a number of laws that might strike individuals as barbaric. Can one truly be expected to apply the laws of Deuteronomy 13:12-16, which mandates putting an entire Israelite town to the sword, confiscating all of their assets and converting it to a perpetual ruin, should it become apparant that the population is worshipping the wrong god? An halakhic system, in addition to determining the means by which the laws are applied must also provide a framework for nullifying those laws that cannot be put into practise. And finally, what is to be done about internal contradictions and inconsistencies within the Torah? For the halakha to be practical and consistent in itself, it needs to generate a system whereby such incongruities can be ironed out. Let us take these three concerns in order.

“The Torah is Insufficient”
The famous example of biblical insufficiency is Deuteronomy 12:20-21.

כי ירחיב יהוה אלהיך את גבלך כאשר דבר לך ואמרת אכלה בשר כי תאוה נפשך לאכל בשר בכל אות נפשך תאכל בשר כי ירחק ממך המקום אשר יבחר יהוה אלהיך לשום שמו שם וזבחת מבקרך ומצאנך אשר נתן יהוה לך כאשר צויתך ואכלת בשעריך בכל אות נפשך

When the LORD your God enlarges your territory, as he has promised you, and you say, “I am going to eat some meat,” because you wish to eat meat, you may eat whenever you have the desire. If the place where the LORD your God will choose to put his name is too far from you, and you slaughter as I have commanded you any of your herd or flock that the LORD has given you, then you may eat within your towns whatever you desire. (NRSV)

Given that the passage refers to Moses having previously been instructed as regards the correct method of slaughtering an animal (that which the rabbis termed shechitah), the Talmud derives from this verse the fact that Moses must have subsequently instructed the Israelites in the same (Yoma 75b, Hullin 28a and 85b. Cf: Yalkut Shimoni 1:583). What was it? You can read the Torah any number of times and never encounter the place where God, or Moses, or indeed anybody ever mentions the method of slaughtering an animal. It would therefore seem that there must have been some form of oral tradition that had not been written down. This is understandable: every society produces rules that get passed on through observation and mimicry. The predilection of placing the fork in the left hand and the knife in the right is one such example from our society today. That a correlative system of law must have accompanied whatever achieves expression in the Torah is undeniable; the rabbinic claim that the rabbis were in possession of that law is what might give us pause, but is what differentiates the rabbis from the other Jewish sects who were living at the time. Indeed, as Maimonides noted in the 12th century (Mishneh Torah, Hilkhot Shechitah 1:4):

זביחה זו האמורה בתורה סתם צריך לפרש אותה ולידע באיזה מקום מן הבהמה שוחטין וכמה שיעור השחיטה ובאיזה דבר שוחטין ומתי שוחטין והיכן שוחטין וכיצד שוחטין ומה הן הדברים המפסידין את השחיטה ומי הוא השוחט ועל כל הדברים האלו צונו בתורה ואמר וזבחת מבקרך ומצאנך כאשר צויתיך ואכלת בשעריך שכל הדברים האלו על פה צוה בהן כשאר תורה שבעל פה

The method of sacrifice mentioned in the Torah needs to be expounded in order to know which part of the animal’s body must be slaughtered, what the measurement of slaughter is, with what implement one slaughters, when one slaughters, where one slaughters, how one slaughters, which things invalidate the slaughter, and who is the slaughterer. Concerning all of these things the Torah commanded us when it said, “and you slaughter any of your herd or flock… as I have commanded you, then you may eat within your towns” (Deuteronomy 12:21), for all of these things were commanded orally like the rest of the oral law…

The system of halakha, in and of itself, testifies to the need for additional laws that are not found explicitly within the Torah, and it answers their omission with the claim to represent Sinaitic law as well. In other words, while the rabbis are consciously deriving laws from both biblical and mishnaic passages, they are also acutely aware of their results having been transmitted from Moses to the Israelites. We shall discuss this dichotomy in more detail below (§3).

“Some Laws are Barbaric”
In addition to its practical insufficiency, which is reflected generally and throughout the Torah, the laws of the Torah suffer the added problem in many instances of simply being abhorrent. Whether or not the application of any given law strikes revulsion into the hearts of those who seek to apply it is entirely subjective, and different generations have struggled with different rulings. Most famous in this regard would be the law of the rebellious child, which is detailed in Deuteronomy 21:18-21:

כי יהיה לאיש בן סורר ומורה איננו שמע בקול אביו ובקול אמו ויסרו אתו ולא ישמע אליהם ותפשו בו אביו ואמו והוציאו אתו אל זקני עירו ואל שער מקמו ואמרו אל זקני עירו בננו זה סורר ומרה איננו שמע בקלנו זולל וסבא ורגמהו כל אנשי עירו באבנים ומת ובערת הרע מקרבך וכל ישראל ישמעו ויראו

If someone has a stubborn and rebellious son who will not obey his father and mother, who does not heed them when they discipline him, then his father and his mother shall take hold of him and bring him out to the elders of his town at the gate of that place. They shall say to the elders of his town, “This son of ours is stubborn and rebellious. He will not obey us. He is a glutton and a drunkard.” Then all the men of the town shall stone him to death. So you shall purge the evil from your midst; and all Israel will hear, and be afraid. (NRSV)

The Mishna (Sanhedrin 8) devotes a chapter to detailing the principles that regulate the application of this particular law. Based on a close exegetical reading of the relevant verses, the rabbis concluded that this ruling only applied to boys, that it could not apply to anybody who had already developed a beard (as such a person would be deemed a “man”), nor to anybody who had not yet begun to grow pubic hair (as such a person is not obligated in the fulfillment of the Torah’s commandments). During the brief time available for this child to satisfy the rabbis’ conditions, he must have consumed both a certain quantity of meat and a certain quantity of wine, but in doing so cannot have broken any other commandments, nor fulfilled any commandments either.

So far as the acquisition of the food is concerned, the rabbis determined that he needs to have stolen it from his father and to have consumed it on his father’s property. Given the necessity of his parents laying hold of him, taking him to the elders, declaring him rebellious, pointing him out to the elders, and testifying to his not having obeyed their verbal warnings, the rabbis of the Mishna determined that they could not have been maimed in the hand, in the foot, nor be mute, blind or deaf. Furthermore, the child must first be warned before three judges and can only be convicted if, after sinning again, he is then tried by a panel of twenty-three judges, which must include the original three as well. If he runs off before the sentence is passed and has grown a beard by the time they are able to arraign him: he is exempt.

While the rabbis of the Mishna went to great lengths to extrapolate stringencies from the deuteronomic passage, the rabbis of the Talmud went to even greater lengths to develop additional stringencies from the wording of the Mishna. For example, the suggestion that he cannot have grown a beard is interpreted by the rabbis of the Talmud as meaning that he cannot have yet grown pubic hair. Given that he must have already started growing public hair, this gives him at their estimate only three months in which he might be deemed suitably “rebellious”. Likewise, Rabbi Yochanan is quoted as declaring that the parents must resemble one another in voice, appearance and height, based entirely on the fact that they refer to the child as not having heeded “our voice”. It is therefore hardly surprising that Rabbi Shimon’s conclusion should be that there has never been a rebellious son and that there never will be, with the sole purpose of the Torah’s law being that we derive merit from its study – not its application (לא היה ולא עתיד להיות ולמה נכתב דרוש וקבל שכר; Sanhedrin 71a). Lest that seem too trivial, Rabbi Yonatan insists that there had once been a rebellious son, and that he has even sat on his grave. Be that as it may, the law is successfully nullified, via the halakhic principles that the rabbis developed, and which we shall discuss shortly (§2).

“The Torah is Contradictory”
As a final note, I would like to remark upon the necessity of an halakhic system, not only for extrapolating to situations that the text doesn’t describe, nor for dismissing those laws that the text shouldn’t describe, but for smoothing over the internal contradictions that are found within it. It is here in particular that we have the added benefit of witnessing the origin of the halakhic system within the biblical literature itself. Consider, for example, the following famous contradiction:

אל תאכלו ממנו נא ובשל מבשל במים כי אם צלי אש ראשו על כרעיו ועל קרבו

Do not eat any of it raw or boiled in water, but roasted over the fire with unleavened bread and bitter herbs.
Exodus 12:9 (NRSV)

ובשלת ואכלת במקום אשר יבחר יהוה אלהיך בו ופנית בבקר והלכת לאהליך

You shall boil it and eat it at the place that the LORD your God will choose; you may turn back in the morning and return to your dwellings.
Deuteronomy 16:7

The translation of the second verse, from Deuteronomy, is my own. I departed from the translation of the NRSV, for they have chosen to render the verb as “cook”, which removes the contradiction inherent in the juxtaposition of the two passages. While the text in Exodus stipulates that the Pesach offering specifically not be boiled, the text in Deuteronomy refers specifically to boiling it. The Hebrew word in question, of root בשל, is understood to refer to cooking specifically within a vessel that contains water. In later years, the word came to simply mean “cook”, which is why the NRSV is not being entirely unfaithful to their readership. Nonetheless, that the two verses are contradictory (and that the second specifically refers to boiling) can be demonstrated by means of a third verse, which attempts to reconcile the two:

ויבשלו הפסח באש כמשפט והקדשים בשלו בסירות ובדודים ובצלחות ויריצו לכל בני העם

They boiled the Pesach in fire, in accordance with the law, and they boiled the sacred offerings in pots, in kettles and in pans, and they rushed [them] to all of the people.
2 Chronicles 35:13

In this verse it is evident, firstly, that “boiling” (in the second half of the verse) is something that is done within a utensil of some description. This accords with our expectations of the Hebrew root בשל, which denotes cooking something in a vessel that contains water. Yet in the first half of the verse (which is sneakily, and highly incorrectly translated as “roasted” by the NRSV), the author is using the same word to denote boiling something in fire. Michael Fishbane, on p135 of his difficult though erudite magnum opus, Biblical Interpretation in Ancient Israel (Oxford University Press: Oxford, 2004), correctly notes that this is a form of “inner-biblical exegesis”. A passage, in other words, in which the Bible is commenting upon itself. Or, to be more precise, is commenting upon another text, which happens to also be included within the biblical canon.

The desire to smooth over contradictions and inconsistencies within the Torah is an underlying motivation of the halakhic system, and while we witness numerous instances of this within the biblical literature itself (chiefly within the late texts of Ezra, Nehemiah and Chronicles), it is the rabbinic methodology that assumes paramount importance. This methodology is known as Midrash, and it is to the Midrash that we turn next.

§2: The Development of the Midrash

As I once noted in another post, the majority of people who use the word “midrash” don’t know what it means. We have witnessed in recent years a proliferation of what authors refer to as “modern midrashim”, from the poetry of spiritually-minded Reform Jews in the United Stated, to the novels of Milton Steinberg and Anita Diamant. To those who use the word in such a fashion, Midrash represents the creative expansion of a text with the invention of information that might serve to expand upon a character’s motivation, the story’s development, or the author’s philosophical thrust. Rabbinic midrash did all of these things, so the definition is not without merit. But the ways in which the rabbis expanded the narratives of the Bible were by no means arbitrary, and they reflected moreso the application of a particular set of hermeneutical principles than they did the desire to simply tell a good story with a pleasing moral.

It is my contention that we witness the origins of rabbinic midrash in the creative expansion of biblical narratives found within the books of Ezra, Nehemiah and Chronicles. But rather than cast our eyes upon prototypical forms of the genre, an analysis of rabbinic methodology and its contribution towards the halakhic process is far better served by considering the genre in its full-blown development. Consider the following narrative, found within the Palestinian Talmud (“Talmud Yerushalmi”, Pesachim 6:1; see below, §4). It relates to a query raised by the elders of Beteira, which they addressed to the Babylonian sage, Hillel:

פעם אחת חל ארבעה עשר להיות שבת ולא היו יודעין אם פסח דוחה את השבת אם לאו אמרו יש כאן בבלי אחד והלל שמו ששימש את שמעיה ואבטליון יודע אם פסח דוחה את השבת אם לאו איפשר שיש ממנו תוחלת שלחו וקראו לו אמרו לו שמעת מימיך כשחל י”ד להיות בשבת אם דוחה את השבת אם לאו… התחיל דרוש להן מהיקש ומקל וחומר ומגזירה שוה מהיקש הואיל ותמיד קרבן ציבור ופסח קרבן ציבור מה תמיד קרבן ציבור דוחה שבת אף פסח קרבן ציבור דוחה את השבת מקל וחומר מה אם תמיד שאין מחייבין על עשייתו כרת דוחה את השבת פסח שחייבין על עשייתו כרת אינו דין שידחה את השבת מגזירה שוה נאמר בתמיד במועדו ונאמר בפסח במועדו מה תמיד שנאמר בו במועדו דוחה את השבת אף פסח שנאמר בו במועדו דוחה את השבת… אע”פ שהיה יושב ודורש להן כל היום לא קיבלו ממנו עד שאמר להן יבוא עלי כך שמעתי משמעיה ואבטליון כיון ששמעו ממנו כן עמדו ומינו אותו נשיא עליהן

It once happened that the 14th [of Nissan, which was the day before Pesach, on which a lamb was to be slaughtered in the afternoon] occurred on a Shabbat, and nobody knew whether Pesach took precedence over Shabbat or not. They said, “We have a Babylonian here whose name is Hillel. He attended to Shemaiah and Abtalyon: perhaps he knows whether or not Pesach takes precedence Shabbat? Perhaps he can enlighten us?”

They sent for him and they asked him, “Have you ever heard whether or not the 14th of Nissan takes precedence over a Shabbat?”…

He began expounding (drosh) to them with a heqesh (“analogy”), a qal v’chomer (“light and weighty”), and a gezeirah shavah (“equal decree”).

His heqesh:
The regular Shabbat sacrifice is a communal offering and the Pesach sacrifice is a communal offering. Just as the regular Shabbat sacrifice, which is a communal offering, takes precedence over Shabbat, so too does the Pesach sacrifice, which is a communal offering, take precedence over Shabbat.

His qal v’chomer:
The regular Shabbat sacrifice, the non-observance of which does not merit [the biblically mandated punishment of] “excision”, takes precedence over Shabbat. How much moreso should the Pesach sacrifice, the non-observance of which does merit “excision”, take precedence over Shabbat!

His gezeirah shavah:
The Torah says, in relation to the regular Shabbat sacrifice, that it should be offered “in its time”. The Torah also says, in relation to the Pesach sacrifice, that it should be offered “in its time”. Just as the regular Shabbat sacrifice, which is offered “in its time”, takes precedence over Shabbat, so too does the Pesach sacrifice, which is offered “in its time”, take precedence over Shabbat…

Even though he sat and expounded (doresh) for them the whole day, they didn’t accept what he was saying. Eventually he said, “I have it on tradition from Shemaiah and Abtalyon”. Immediately they arose and appointed him as leader over them.

In this particular instance, Hillel’s attempts at providing an exegesis (a midrash) fall on deaf ears, and it is only his deference to tradition that has his opinion accepted by the elders of Beteira. Nonetheless, the principles that he utilised in his exposition were to serve as key hermeneutical principles for the rabbis, who recorded elsewhere (Tosefta, Sanhedrin 7:5) that they numbered seven in total. In another place (Torat Kohanim, Intro.), their number is given as thirteen, and their formulation is attributed to Rabbi Ishmael instead. Indeed, a comparison between the different ways in which different rabbis are recorded as having applied these principles is of interest; those who wish to do so might read an article that I wrote earlier, in which I very briefly (and superficially) compared the exegetical philosophies of Rabbis Ishmael and Akiva.

In the application of these principles, the rabbis developed a variety of different genres of midrash, traditionally divided into two distinct categories. Midrash Aggada, or “narrative midrash”, refers to those texts that seek to expand upon narrative portions of the Bible. Most famous of these collections is Midrash Rabba, which is a compilation of narrative midrashim relating to the five books of the Torah (Genesis, Exodus, Leviticus, Numbers and Deuteronomy) and the five scrolls (Song of Songs, Ruth, Lamentations, Ecclesiastes and Esther). Compilations of narrative midrash abound, and continued to be produced well into the late mediaeval period. But Midrash Halakha, or “legal midrash”, served a purpose only very early in Jewish history. Its modus operandi was to achieve the three things that we mentioned above (§1): to extrapolate from Torah law to those situations that the Torah does not describe, to nullify those Torah laws that were deemed inapplicable on subjective grounds, and to smooth over perceived inconsistencies and contradictions within the Torah’s many stipulations.

Halakhic midrash is, 100% of the time, a commentary upon the Torah. Unlike the narrative midrash, which is a commentary upon the biblical literature in general, Midrash Halakha serves to transform the Torah into a system of applicable contemporary jurisprudence. In doing so, and in distinction to the tremendous proliferation of narrative midrash, the rabbis produced five compendia of halakhic midrashim:

• Mekhilta of Rabbi Ishmael – a commentary on Exodus
• Mekhilta of Rabbi Shimon bar Yochai – a commentary on Exodus, recently rediscovered amongst the many treasures of the Cairo Geniza
• Torat Kohanim, or “Sifra” – a commentary on Leviticus
• Sifrei – a commentary on Numbers and Deuteronomy
• Midrash Tannaim – a commentary on Deuteronomy

Based on the belief that everything can be derived from a close exegetical reading of the Torah via the strict application of a particular hermeneutical philosophy (whether Hillel’s, Ishmael’s, or somebody else’s), the rabbis turned the laws of the Torah into a system of law that they could put into practise in their daily lives. And yet, as we are about to see, this system was rapidly superseded by an alternative, whose basis in the Torah was tenuous at best.

§3: The Mishna

The first thing that needs to be said about the Mishna is that nobody knows where it came from. The second thing that needs to be said about the Mishna is that that’s not actually true. Lots of people know where the Mishna came from, so long as they subscribe to the traditional explanation of the Mishna’s origins. God dictated an oral law to Moses on Mt Sinai, who then imparted it to Joshua, from whom it was imparted to the elders and to the prophets and, after successive generations, to the rabbis themselves. Edited at the beginning of the third century into the books of the Mishna (with those sections left over being dubbed the Tosefta, or “additional material”), the laws that are given expression are, if not actually divine, based upon the best available sources at the time as to what that divine law was. As for those of us who, like myself, do not subscribe to this particular rabbinic tradition, we don’t know where the Mishna came from, and while various theories abound, it is impossible to prove any of them with any reasonable degree of certainty.

Originally comprising some sixty tractates of Hebrew law (although presently, due to two of them being split, comprising sixty-three), the Mishna was ostensibly edited into six volumes (sedarim, “orders”) by a rabbi named Yehuda. Rabbi Yehuda was the head of the Sanhedrin, which was a judicial and legislative body that was based at the time in the Galilee. Tradition has it that the Sanhedrin significantly predated the destruction of the Temple in Jerusalem, and that it had served as a judicial and legislative body since the time of Moses. Based on an exegetical interpretation of Numbers 11:16-17, the seventy elders whom Moses convened were the seventy sages of the first Sanhedrin, with Moses (the seventy-first) as the Nasi, or “patriarch”. Whatever the Sanhedrin’s genuine historical origins may have been, Rabbi Yehuda “haNasi” is the man to whom the credit goes for compiling the traditions that today receive expression in these sixty-three tractates of law.

The six volumes of the Mishna are named as follows:
• Seeds (Zeraim) – agricultural law
• Season (Moed) – Shabbat and festival law
• Women (Nashim) – marriage and divorce law
• Damages (Nezikin) – torts and legislative law
• Sacred Things (Kodshim) – temple law
• Purities (Taharot) – laws pertaining to ritual cleanliness

For the most part, the tractates that are found within these sections correspond thematically to the overriding material that gave the sections their names. Exceptions to the rule include Berakhot (“Benedictions”), which is the first tractate in the first order, yet which has nothing to do with agricultural law, and Avot (“Fathers”, or possibly “Categories”), which is the final tractate in Nezikin, but which has nothing to do with torts and legislative law. More curious, however, than their placement is the nature of their style. Alone of all of Jewish literature, the laws within the Mishna (and the correlative Tosefta) are apodictic. This means that they provide no justification for themselves, save the fact that they are the law.

Consider biblical law. We might not necessarily appreciate the reasons that are given in the text, but it is worth noting that the text takes the time to give us reasons. Whether it is the promise that we will live a long life in the land that God is giving us so long as we honour our parents, or whether it is the injunction to observe various sexual laws in order that we be holy in the way that God is holy, the law and the reason for it are almost inseparable. Not so with the Mishna, whose pronouncements receive either little or no justification, and whose authority rests solely upon the various traditions that accompanied its reception.

What is more, the laws within the Mishna – while they are certainly predicated on Torah law – are not found anywhere within the Torah itself. To provide an example, the Mishna declares that one may commence reciting the evening Shema at the time that impure priests can again eat sanctified food (which is when the stars come out). This ruling is predicated upon an interpretation of Deuteronomy 6:6-7, which states that “these words” should be upon your heart, that you should teach them to your children, and that you should recite them both when you lie down and when you rise up. Understanding “these words” to be the words of that particular biblical passage (known as the Shema), and interpreting the injunction to recite them “when you lie down” as an imperative to recite the Shema in the evening, the Mishna’s ruling is not without biblical basis. And yet, the actual ruling of the Mishna, that one may recite the Shema from the time that the stars come out (the time, that is, at which impure priests may partake again of their consecrated foods) lacks biblical mandate altogether.

What, then, was the Mishna’s mandate? Consider the opening mishna (the word “mishna” refers both to the entire corpus and to the individual units of law within it) from tractate Avot:

משה קבל תורה מסיני ומסרה ליהושע ויהושע לזקנים וזקנים לנביאים ונביאים מסרוה לאנשי כנסת הגדולה הם אמרו שלשה דברים הוו מתונים בדין והעמידו תלמידים הרבה ועשו סיג לתורה

Moses received instruction (torah) from Sinai and passed it on to Joshua, Joshua to the elders, the elders to the prophets, and the prophets passed it on to the men of the great assembly. They said three things: be patient (perhaps, “considerate) in judgement, establish many disciples, and erect a fence around the law (torah).

Here it is clear that the rabbis, rather than deferring to their own intellectual judgement (as in the case of midrash), believed themselves to be acting on the basis of traditions that had been given to Moses at Sinai, alongside the written Torah. Not only that, but we here see an injunction to expand the Torah’s laws (the erection of a “fence”) in order the better to protect it. Examples of such fences abound throughout the rabbinic literature, and enable us to now separate halakha into two categories:

Mid’orayta (מדאורייתא): “that which is from the Torah” denotes those commandments that are either explicitly mentioned within the Torah, or whose derivation is of the Torah. An example would be the prohibition of idolatry, as would be the prohibition of carrying from one domain to another on Shabbat – despite the fact that the latter is only derived from the Torah by midrashic exegesis;
Miderabbanan (מדרבנן): “that which is from the rabbis” denotes those commandments that were instituted by the rabbis in order to protect laws of the Torah. An example of this would be the prohibition of blowing the shofar on Shabbat, as one who does so might be led to then carry the shofar from one domain to another (a “biblical” prohibition).

What is perhaps especially fascinating is the fact that the rabbis were aware of their originating these injunctions themselves, and were also of the opinion that they were transmitting ancient traditions at the same time. As Rabbi Yehoshua ben Levi states in the Midrash (Leviticus Rabba 25:1):

מקרא משנה הלכות תלמוד תוספתות אגדות ואפלו מה שתלמיד ותיק עתיד לומר לפני רבו כלן נאמרו למשה בסיני

Scripture, mishna, halakhot, talmud, “additional texts”, narratives, and even that which a diligent student in the future will declare before his teacher: all of these were said to Moses at Sinai.

We should not be too precise about the identification of each of the different things that Rabbi Yehoshua is said to have listed here. While some items might be immediately comprehended, the identification of others is less certain. “Scripture” refers either to the Torah or to the entire corpus of biblical literature (the “Tanakh”). Mishna refers to the sixty-three tractates of Hebrew law under discussion, and “additional texts” (toseftot) undoubtedly refers to the Tosefta: a corpus of law rather similar to the Mishna in style and scope, arranged in the same sequence of tractates, and said to have constituted the remainder of the written “oral law” after the Mishna’s 3rd century redaction. “Halakhot” and “narratives” are harder to identify with precision, and may be a generic reference to the legal and the narrative midrashim; “talmud” (to which we turn in the following section) is most likely a reference to the two Talmuds, but may just as easily be a generic reference to Jewish commentaries on jurisprudence. In each of those examples, however, it is not difficult to understand how the author of the sentiment might have viewed the traditions underlying the various types of literature to be of antiquity. And yet, the inclusion of the final example is what must give us pause.

That a diligent student, by which we might mean somebody who has demonstrated acumen within the other areas of Jewish thought outlined by Rabbi Yehoshua, can actually originate something that derives from Moses at Sinai is a novel idea, and the backbone of rabbinic self-perception in this regard. It is only by embracing the nature of this dichotomy that the Mishna – a rabbinic composition – came to be accepted as Sinaitic law. In so doing, the Mishna not only ended up supplanting the Midrash Halakha, but even came to be viewed as an authoritative legal document on a level with the Torah. While the Torah was seen to be imbued with greater sanctity, the laws within the Mishna (or, indeed, the essence of those laws) were understood to be in their own way divine. And yet, despite this belief, the Mishna found itself subject to some of the same concerns that had plagued its predecessor. The Mishna is insufficient, and a system is required to extrapolate from its principles to the world in which we live. And the Mishna is contradictory. Certainly, that is, if we wish to align its principles with the laws found within the Tosefta and the halakhic midrashim. And so, while Midrash Halakha had saved the Torah from these problems, a new system was required to save the Mishna, and to make it consistent it with the midrash, with the Tosefta, and with itself.

§4: The Talmudic Academies

It is at this point that I must reiterate the fact that this article is intended only as an overview. Readers who are interested in examining this topic in more depth are advised to consult the recommended reading list in §7. In the interests of providing a synopsis of the period, the following is a brief overview of the material.

For the few hundred years that followed the Mishna’s completion, the chief task of the rabbis was providing the system that would make of it a comprehensive and consistent body of legislation. Our tradition states that there were three academies at which these discussions and arguments took place: Tiberius, Sura and Pumbedita. The former location, which is in the Galilee, had the advantage of becoming the location of the Sanhedrin. With a concentration of distinguished rabbis, and relative isolation from the Roman forces, the Palestinian rabbis (“those in the West”, as the Babylonian texts have it) were able to develop a legislative system of commentary, which they composed in (what linguists call) Palestinian Jewish Aramaic. Comprising a commentary to thirty-nine of the Mishna’s sixty-three tractates, the work of the Palestinian sages has come to be known as the Talmud Yerushalmi, or “Jerusalem Talmud”. Also known as Talmud Eretz Yisrael and Talmud haMaarav (“Talmud of the West”), the Palestinian Talmud (as it is conventionally known in English) is a large and complicated corpus, whose pronouncements are difficult to decipher and whose final rulings are hard to determine.

It is not known what the precise reasons were for the labour of the Palestinian rabbis being brought to an end, although it is beyond doubt that an extra century of diligent scholarship would have made their creation easier to navigate and considerably more comprehensive. It was the execution of the final Nasi of the Sanhedrin (c. 425 CE) that is traditionally understood to mark the demise of Tiberian scholarship on the Mishna altogether. Today, due to its complex and abstruse nature, the Palestinian Talmud has a reputation for being particularly esoteric, and is traditionally only studied by scholars who have already devoted sufficient time to its larger and more comprehensive Babylonian counterpart.

It was in the academies of Sura and Pumbedita that the Babylonian Talmud grew. A commentary on thirty-seven of the Mishna’s tractates, this work of scholarship continued until the 6th century, when a generation of rabbis redacted it into the form in which it exists today. Written in (what linguists call) Babylonian Talmudic Aramaic, the Babylonian Talmud is a work of breathtaking depth and subtlety. It has had its fierce detractors throughout history (both Jews and non-Jews alike), as well as those who were prepared quite literally to die for it. Divided, thematically, into narrative (aggadah) and law (halakha), the Talmud presents the Mishna, together with reams of commentary upon it. In order to make the Mishna as comprehensive as possible, the rabbis employed the techniques of Midrash Halakha in their analysis of it, and built a system that must surely rival any other for its complexity, its recursive self-referentialism, and its utter opacity.

Were only ever Jew a learned Talmudic scholar, we might use this corpus for the direct application of the law. Instead, while the Talmud constituted the final say in legal matters, the ability to ascertain what the final say within the Talmud was is one that few possess. Should an individual, experienced with the reams of rabbinic literature, devote his or her life to a close analysis of the Talmudic literature, they would no doubt arrive at clear conclusions as regards the rabbinic law in every instance under discussion. Despite the fact that topics are frequently revisited in different tractates, and despite the fact that different conclusions appear to have been drawn in different places – not to mention the fact that an application of Talmudic law to external circumstances might require one to arbitrate between more than one methodology, an intelligent and experienced scholar should have no difficulty (assuming that time is not a factor) in drawing defensible conclusions. And yet, it goes without saying that any two scholars who pursue this career are most certainly going to disagree with one another in their methodology, their interpretation and their application of the law.

As a result, the Talmud needed a saviour. Many people in the Jewish diaspora were without rabbis who could instruct them, and were unable to rely on continued correspondence from individuals like the Babylonian patriarchate (the Geonim), who held de facto authority from the closing of the Talmud until c. 1040 CE. These people, in addition to the literature of the Talmud, needed printed matter that could resolve their disputes and provide a framework for understanding the Talmud’s difficult texts. During the mediaeval period, several rabbis came to fill this role, and produced literature that is as formative in the development of the halakha as was the Talmud itself.

§5: The Halakhic Compendia

Broadly speaking, and focusing only on those individuals who have come to be viewed as especially authoritative, there are three major mediaeval scholars, and a mediaeval school of Talmudic analysis. To tackle them in chronological order:

The Rif
Rabbi Yitzhak al-Fasi was an 11th century Moroccan scholar who composed a compendium of Talmudic law that is named Sefer haHalakhot. Written in Talmudic Aramaic, the Rif’s compendium follows the order of topics as they are mentioned in the Babylonian Talmud, providing what he deemed to be the final conclusion in every given instance. Those who wish to utilise his work without recourse to the Talmud might be frustrated by an inability to find the topic at hand.

The Rambam
Rabbi Moshe ben Maimon (also, “Maimonides”) was a 12th century Iberian (“Sephardi”) scholar, who spent much of his life in Egypt. His most important work for the development of the halakha is his fourteen volume magnum opus, the Mishne Torah. Dividing all of Talmudic halakha into fourteen categories (and eighty-three sub-categories), the Rambam made an investigation of the halakha much more achievable for the layman. His intention of bringing Talmudic law to the people was indicated in his choice of language as well: while the Rif wrote in Talmudic Aramaic, the Rambam wrote his work in rabbinic Hebrew. Detractors, who feared that he was attempting to replace the Talmud, were most distressed at his failure to include any of his sources.

The Rosh
Rabbi Asher ben Yehiel was a 13th century Rhineland (“Ashkenazi”) scholar who wrote a commentary on Talmudic law that was later summarised by his son, Ya’akov, and called Pisqei haRosh. The extended version, which is traditionally included in editions of the Babylonian Talmud together with the Rif’s Sefer haHalakhot is written in Talmudic Aramaic and, like the work of the Rif, follows closely the order of the discussions found within the Talmud itself. His inclusion of the Rif’s opinions in every instance has prompted some to suppose that his commentary is more properly a super-commentary on the writings of the Rif.

The Baalei haTosafot
From the 12th to the 13th century, several schools of Talmudic scholars operated along the Rhineland, in both modern-day France and Germany. The commentaries that they wrote and compiled are known as the Tosafot, which – like the Tosefta that accompanied the Mishna – means “additional texts”. Two of the earliest scholars in these schools were Rabbi Shmuel ben Meir (the Rashbam) and Rabbi Ya’akov ben Meir (Rabbeinu Tam): both of them brothers, and grandsons to the exegetical Talmudic scholar, Rabbi Shlomo Yitzhaki (Rashi). The commentaries of the Baalei haTosafot in general are of particular interest, as they shed much light on the development of Ashkenazi halakha during this period – that is, the ways in which Ashkenzai scholars were interpreting the Talmudic literature. When Daniel Bomberg, a 16th century Italian printer, designed the first modern edition of the Talmud, his decision to include the commentary of Rashi and a selection of the Tosafot has meant that anybody who learns the Talmud today is familiar with some of their writings. Those whose commentaries are included on the page of printed Talmuds are known as Tosafot Shelanu, “Our Tosafot”, although additional compendia of their writings are extant.

*

As I noted at the beginning of this article, the approach that I am taking is informed by a “top down” methodology. While there were many more scholars who penned important and illuminating commentaries on the Talmud, I have limited myself deliberately to those whose work led inexorably towards the most important halakhic compendium ever produced, against which all subsequent delineations of halakha were to be compared. To appreciate its origin, it is first necessary to mention one more scholar:

The Tur
Rabbi Ya’akov ben Asher, son of the Rosh, was a 12th-13th century Rhineland scholar, whose halakhic methodology was to have a profound impact upon future representations of the law. Dividing Jewish law into four categories, Rabbi Ya’akov produced a code of jurisprudence that he named Arba’ah Turim, the “four rows”. A reference to the four rows of jewels on the high priest’s breastplate (cf: Exodus 28:17), the categories that he determined were the following:

Orach Chayim (אורח חיים): “Path of Life” deals with Shabbat, festival and liturgical law;
Yoreh De’ah (יורה דעה): “Teach Knowledge” deals with various ritual laws, such as the laws of kashrut, of idolatry, and of menstrual impurity;
Even haEzer (אבן העזר): “Rock of the Helpmate” deals with marriage and divorce law;
Choshen Mishpat (חושן משפט): “Breastplate of Judgement” deals with judicial and business law.

Methodologically, the Tur arbitrated between the opinions of his father (the Rosh), the Rambam and the Rif. From the perspective of halakhic philosophy, this in itself marks something of a turning-point, for while he did have recourse to the Talmudic literature, the Tur was derivings his rulings from an arbitration between the writings of mediaeval scholars. From this perspective, he is the link between the scholars who derived law from the early rabbinic literature, and those who derived law from the later rabbinic literature.

Yosef Caro
Rabbi Yosef Caro was a 16th century Iberian scholar who, exiled from Spain and subsequently from Portugal at an early age, ended up settling in Safed, in the north of Palestine. Perhaps moreso than any other scholar in our illustrious tradition of textual exegesis and halakhic arbitration, Rabbi Yosef Caro had a truly terrifying intellect. He wrote a commentary on the Rambam’s Mishne Torah, which he called Kesef Mishna, and in which he provided the Talmudic sources for every one of the Rambam’s pronouncements. More importantly, however, he also wrote a commentary on the Arba’ah Turim, which he called the Beit Yosef, “House of Joseph”.

Arbitrating between more than thirty different scholars of the halakha (most of whom were either Sephardi or Mizrachi – the latter denoting Jews “of the East”), Rabbi Yosef Caro produced the relevant passages from the biblical and early rabbinic literature in addition to his own views on the subject. He more than tripled the size of the text that he was writing his commentary on, and produced what might have been the first work in all of Jewish history to win immediate acclaim. This, despite the fact that it achieved what the Rambam’s detractors had feared that the Mishne Torah was trying to do: it replaced the Talmud as a source text of Jewish law. Indeed, so popular was the Beit Yosef that Rabbi Yosef Caro decided to write it a second time.

Maintaining the structure of the Arba’ah Turim, on which his original commentary was written, and the order of each of its laws, Rabbi Yosef Caro produced an abridged version of the Beit Yosef, which he named the Shulchan Arukh. Meaning the “Set Table”, this text was to serve as the chief representation of rabbinic law for over four centuries since its composition. Yet, as the halakha within its pages was chiefly Sephardi and Mizrachi, a 16th century Polish scholar named Rabbi Moshe Isserles (the Rema) added glosses to the text, known as haMappa, or “The Tablecloth”. These serve the purpose of demonstrating Ashkenazi custom where it differs from Sephardi, although those who are interested in the development of Ashkenazi halakha would do well to focus upon the Baalei haTosafot, the Rosh and the Arba’ah Turim.

§6: Summary and Conclusions

As we have seen, the primary work of halakha is the Torah itself, and yet the Torah is not a work of halakha. The laws that it contains provide the mandate for the halakhic system, which is born of a desire to make those laws applicable. Faced with three problems (the insufficiency of the laws, the undesirability of the laws, and the internal contradictions within the laws), the rabbis developed a system of exegesis that enabled them to extrapolate, nullify and contextualise. This system is known as “midrash”, and the genre of midrash that deals with these phenomena is termed Midrash Halakha.

There is only a handful of collections of Midrash Halakha, all of which testify to very early traditions from the first few centuries of the Common Era, and each of which comprises a commentary on one (or two) of the books of the Torah specifically. And yet, despite the success of the midrashic methodology, the corpora of midrash are supplanted by the Mishna, which is a six-volume collection of sixty-three tractates of Hebrew law, predicated on the Torah but not based within it. The relationship between the Mishna and the Midrash Halakha is complex, with some scholars postulating primacy of the midrash (the suggestion exists that the Mishna represents conclusions to a lengthy midrashic process), and some ascribing primacy to the Mishna (in which case, depending on how aligned the two corpora can be demonstrated to be, the midrash may represent either a reaction against the Mishna or an attempt to bolster its reception).

The Mishna, being subject to two of the three problems that beset the Torah (insufficiency and both internal and external contradictions) generates a system of exegesis that aims to improve upon the Mishna in the same way that Midrash Halakha sought to “improve upon” the Torah. This system is called Gemara, and together with the Mishna is known as the Talmud. The Gemara that was composed in Tiberius constitutes the Palestinian Talmud, while the Gemara that was composed in Sura and Pumbedita constitutes the Babylonian Talmud, which is the larger and more authoritative of the two.

To aid in the extrapolation of Talmudic law, various mediaeval scholars composed compendia. Rabbi Yitzhak al-Fasi (the Rif) wrote Sefer haHalakhot in the 11th century, Rabbi Moshe ben Maimon (the Rambam) wrote the Mishne Torah in the 12th century, and Rabbi Asher ben Yehiel (the Rosh) wrote a compendium in the 13th century, the conclusions of which were later summarised by his son and named Pisqei haRosh. In addition to various other scholars who composed halakhic commentaries, the work of the Ashkenazi Baalei haTosafot is of interest, some of whose glosses to the Talmud are printed in the outer margin of versions published today.

In some respects, the most drastic change in halakhic philosophy occurs under the aegis of the Rosh’s son, Rabbi Ya’akov ben Asher, who compiles an halakhic compendium based upon the writings of the mediaeval scholars, rather than upon the Talmud directly. Dividing his work into four areas of jurisprudence, he calls his compendium the Arba’ah Turim. The most important commentary on the Arba’ah Turim is the Beit Yosef, which was composed by Rabbi Yosef Caro in the 16th century, and which provides the relevant Talmudic source material, in addition to the author’s considered arbitration between over thirty different halakhic scholars. Republishing his text in an abridged version that he called the Shulchan Arukh, this exhaustive work constituted so great a work of halakha that it was widely perceived that an era had ended.

The eras of post-biblical Jewish history, as they are traditionally formulated, are as follows:
Zuggot (זוגות): “Pairs” denotes the period during which the Sanhedrin ostensibly operated prior to the destruction. The pairs in question are the Nasi (“patriarch”) and the Av Beit Din (“chief judge”) of the Sanhedrin, and included scholars like the famous Hillel and Shammai;
Tannaim (תנאים): “Those who repeat” refers to the sages of the Mishna, who are believed to have repeated the teachings that they had received over several successive generations;
Amoraim (אמוראים): “Those who speak” is a reference to the sages of the Gemara, whose discussions formed the commentary on the Mishna that is referred to as the Talmud;
Savoraim (סבוראים): “Those who understand” refers to the generation that was responsible for the redaction of the Babylonian Talmud. Some refer to this generation as the Stammaim (סתמאים), or “those who compose the anonymous portions”;
Geonim (גאונים): “The majestic ones” were the scholars who served as the exilarchs in Babylonia, between the completion of the Babylonian Talmud and the execution of Rav Hezekiah Gaon (c. 500-1040 CE). Their literature included the first siddurim (prayer books), various delineations of Jewish philosophy and ethics, and voluminous responsa;
Rishonim (ראשונים): “The former scholars” were the individuals who lived between the end of the Geonic period and the composition of the Shulchan Arukh;
Acharonim (אחרונים): “The latter scholars” include everybody after the Shulchan Arukh, including ourselves. Some people suggest that we are now living in a new era, although there is no consensus on precisely when the period of the Acharonim would have come to an end, nor on what we would call our own period of Jewish history if it did.

Major halakhic writings of the Acharonim include various revisions of the Shulchan Arukh or its sections, as well as collections of responsa. Chief amongst the former, in my opinion, are the Shulchan Arukh haRav (Rabbi Schneur Zalman, 18th c.), the Nefesh Adam and the Chayei Adam (Rabbi Avraham Danzig, 18th-19th c.), the Kitzur Shulchan Arukh (Rabbi Shlomo Ganzfried, 19th c.), and the Mishna Berura (Rabbi Yisrael Meir Kagan, 19th-20th c.). Amongst the latter, notable scholars include the Chazon Ish (Rav Avraham Yeshaya Karelitz), the Steipler (Rav Yaakov Yisrael Kanievsky), Rav Yosef Dov Soloveitchik, Rav Moshe Feinstein, Rav Shlomo Zalman Auerbach, Rav Aharon Kotler, Rav Yosef Shalom Elyashiv, and Rav Ovadiah Yosef. Their halakhic rulings, and the halakhic rulings of many other poskim (halakhic decisors) of the modern day, grapple with two fundamental problems of contemporary halakha:

1) Queries that relate to issues which received expression in the classic literature, but in relation to circumstances that did not. An example of this might be live organ transplant: despite the fact that there are texts that treat of removing parts of corpses for the benefit of the recipient, there is nothing that explicitly relates to removing body parts in order to sustain the very life of the recipient, nor to the removal of organs from a live donor, whose life is not subsequently being placed in jeopardy;

2) Queries that relate to issues which received no expression in the classic literature. Examples of these abound, and are as varied as questions pertaining to the use of electricity on Shabbat, the halakhot of stem cell research, and the ethics of human cloning.

In many respects, the chief difference between Orthodox and non-Orthodox communities today relates to conceptions of the halakhic system. While Progressive communities view the halakha as the product of a human endeavour, many Orthodox communities understand the halakha as reflecting divine law. Rather than describing it as that which moves (holekh) along a path, they stress that the halakha is the path, and while the path may twist and turn with the changing of the scenery, its end is always inherent in its beginning.

§7: Further Reading

What follows is merely a very small selection of texts and resources that interested readers might find enjoyable. If anybody has any further reading suggestions, not to mention any objections to or clarifications of anything that I have written above, please submit them to me in the comments thread.

The Biblical Literature

Joseph Blenkinsopp, Judaism: The First Phase: The Place of Ezra and Nehemiah in the Origins of Judaism (Grand Rapids: William B. Eerdmans Publishing Company, 2009)

Norman K. Gottwald, The Hebrew Bible: A Socio-Literary Introduction (Philadelphia: Fortress Press, 1985)

Sara Japhet, “The Israelite Legal and Social Reality as Reflected in Chronicles: A Case Study”, in S. Japhet, From the Rivers of Babylon to the Highlands of Judah: Collected Studies on the Restoration Period (Indiana: Eisenbrauns, 2006), 233-244

Sara Japhet, “Law and “The Law” in Ezra-Nehemiah”, in S. Japhet, From the Rivers of Babylon to the Highlands of Judah: Collected Studies on the Restoration Period (Indiana: Eisenbrauns, 2006), 137-151

Gary N. Knoppers and Bernard M. Levinson (eds.), The Pentateuch as Torah: New Models for Understanding Its Promulgation and Acceptance (Indiana: Eisenbrauns, 2007)

The Early Rabbinic Literature

Gedaliah Alon, The Jews in Their Land in the Talmudic Age (trans. and ed. Gershon Levi; 3rd ed; Cambridge: Harvard University Press, 1996)

Charlotte E. Fonrobert and Martin S. Jaffee (eds.), The Cambridge Companion to the Talmud and Rabbinic Literature (Cambridge: Cambridge University Press, 2007)

Louis Jacobs, Structure and Form in the Babylonian Talmud (Cambridge: Cambridge University Press, 1991)

Alfred J. Kolatch, Masters of the Talmud: Their Lives and Views (New York: Jonathan David Publishers, 2003)

Jeffrey L. Rubinstein, The Culture of the Babylonian Talmud (Baltimore: The Johns Hopkins University Press, 2003)

H.L. Strack and Günter Stermberger, Introduction to the Talmud and Midrash (trans. and ed. Markus Bockmuehl; 2nd ed; Minneapolis: Fortress Press, 1996)

The Rambam

Joel L. Kraemer, Maimonides: The Life and World of One of Civilization’s Greatest Minds (New York: Doubleday, 2008)

Marc B. Shapiro, Studies in Maimonides and His Interpreters (Scranton: The University of Scranton Press, 2008)

Contemporary Jewish Law

Yosef G. Bechhofer, The Contemporary Eruv: Eruvin in Modern Metropolitan Areas (2nd ed; Jerusalem: Feldheim Publishers, 1998)

Immanuel Jakobovits, Jewish Medical Ethics: A Comparative and Historical Study of the Jewish Religious Attitude to Medicine and its Practice (New York: Bloch Publishing Company, 1959)

Fred Rosner, Biomedical Ethics and Jewish Law (Hoboken: Ktav Publishing House, 2001)

Daniel Schiff, Abortion in Judaism (Cambridge: Cambridge University Press, 2002)

Jewish Law: Examining Halacha, Jewish Issues and Secular Law


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3 responses

6 12 2010
James Pate

Thank you for this summary. I especially appreciated your discussion about that Deuteronomy 12 passages as the basis for the view that there was an oral Torah. I remember reading in Tigay’s Deuteronomy commentary about a Scriptural justification for oral Torah, but I could not find it.

1 01 2011
The Biblical Studies Carnival LVIII « כל־האדם

[...] Simon Holloway (Davar Akher) provides an excellent “overview of the development of the halakha, with attention paid to those texts that, historically, h…“ [...]

13 12 2011
The Great Tribunal, Fence Around the Torah, Onias, Antiochus’ Regret « James’ Ramblings

[...] I wonder myself how rabbis interpreted the ban in Deuteronomy 12:32 on adding to God’s commands.  According to Finkelstein, there were rabbis who believed that adding prohibitions violated the command not to add to the Torah, and Finkelstein cites Mishnah Zevachim 8:10 and Mishnah Yadaim 4:3.  What does that do to the oral Torah, however?  I suppose that one could say that the oral Torah was an interpretation of the written Torah, not an addition, but, within the Mishnah itself, several rules are not tied to Scripture.  But there is support in Deuteronomy for some sort of oral Torah, for God in Deuteronomy 12:20-21 refers to laws on slaughter that he gave to Moses, but the written Torah does not explicitly tell us what those laws were (see here). [...]

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