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Bible, Rabbis, and the Creation of Jewish Law

February 22nd, 2011

by Marc Herman

Review of Law and Truth in Biblical and Rabbinic Literature by Chaya T. Halberstam (Bloomington, IN: Indiana University Press, 2010) 225 pages

Chaya Halberstam’s Law and Truth in Biblical and Rabbinic Literature, an erudite and well-argued book, contributes to fields both old and new, posing well-asked questions that integrate methodology from a range of disciplines including legal theory, literary analysis, and critical history. Halberstam offers an unsettling yet substantiated theory to distinguish biblical and rabbinic legal systems. The Hebrew Bible, she writes, “deploys an authoritative discourse of knowledge, certainty, and divine truth,” while “tannaitic literature […] assumes a stance of perpetual uncertainty […] and demands the authoritative construction of legal truth.” Despite biblical confidence of accessible and upright judgment, for Halberstam, the rabbis evince “anxiety […] over the consistent possibility of factually wrong and morally wrongful judgment” (3).

Halberstam’s study is divided into two sections. In the first, she presents three disparate case studies to prove her thesis. In the second, she examines the theological implications and underpinnings of this rabbinic uncertainty.  In both sections, she makes use of secondary literature and a wide range of critical theory – targeting this book largely to a scholarly audience. Thankfully, Halberstam is not hindered by her use of theoretical literature, but assimilates it appropriately into original readings of a vast array of primary sources.

Halberstam’s first section covers three areas of law: determinations of menstrual impurity, establishing ownership for lost objects, and the death penalty. In each section, Halberstam contrasts the biblical conviction in accessible and clear divine truth with rabbinic problematizing and distance from that position. In her chapter on menstrual impurity, Halberstam interprets R. Aqiba’s creation of legal doubt as to the source of blood a woman finds (mNid 8:3) as creating a legal fiction that “creates a space for rabbinic creativity and authority”(39). In her second chapter on lost objects (expanding its sources to include the amoraic period), she argues that while for the bible possession never needs to be proven but is simply assumed, for the rabbis, legal prescriptions assert norms that create a legal connection to an object, one that is not necessarily factual, only legally operative (48-57). In her third chapter, she contrasts the “absolute certainty” (84) of the bible talion with the paucity of rabbinic claims to “truth” in rendering capital punishment (90). While this reader has quibbles with some of the arguments presented herein, the overall argument is stimulating and a noteworthy contribution to our understanding of rabbinic law and rabbinic self-awareness in their legal thinking.

The second section of this book attempts to account for and measure the impact of the aforementioned conclusions. In the fourth chapter, Halberstam does not simply locate certain divine justice in the hereafter in rabbinic theology in order to compensate for the frailty of the human justice system. Rather, she claims that the array of rabbinic answers are themselves uncertain, indicating not an affirmation of divine justice but a “Jobean inscrutability” that cannot be fully known, only explored through the unending phrase “another interpretation” (devar aher). The final chapter utilizes the methodology of Robert Cover to analyze biblical narratives for their legal import in both biblical texts and their rabbinic interpretations. This chapter is part of a growing body of scholarship applying Cover’s theories of the interplay of “nomos and narrative.”  Halberstam focuses on the biblical stories of Judah and Tamar, Joseph and his brothers, and David and Batsheba. As in earlier sections of the monograph, this discussion masterfully combines the themes of the book.

I would like to tentatively offer one critique which will hopefully elucidate Halberstam’s theory of law. In her discussion of the Palestinian Talmud’s reaction to mishnaic laws of lost property, Halberstam writes that the strict legal boundaries of property are accepted, yet challenged, by aggadot that demand extra-legal “appeals to the conscience” (58-65). In a footnote, she acknowledges that “the distinction between the legal requirement and the extra-legal ‘requirement’ become harder to discern here” (190). This very blurriness challenges Halberstam’s neat delineation of ethical imperatives from legal norms, one which she accepts as active in the biblical system (47, 64) – and one wonders what the consequences of this are. For example, have the rabbis, in Halberstam’s view, moved from a biblical system we cannot quite term “legal,” and in its place created “law,” with all of its requisite juridical edifices?

Halberstam writes, in her analysis of menstrual impurity, that rabbinic law brings biblical rules “‘within the juridical order’ by emphasizing […] the depths of uncertainty that attach to any observation” (40). If so, perhaps the central thesis of this book needs to be taken one step further, that by creating an elaborate and well-developed legal system, the rabbis were as much innovating the system itself as developing and modifying it. By displacing the role of the divine in day-to-day justice – I would emphasize as a more of a consequence of the concomitant end of prophecy than Halberstam does (see 5n18) – the rabbis may have been forced to build the very idea of recognizable law beyond biblical precedent. This suggestion is only that – but it may be one outcome of Halberstam’s edifying project.

Finally, one would be remiss not to point out that this book contains many insightful close readings of even well-known rabbinic passages. For example, Halberstam writes that R. Tarfon and R. Aqiba’s statement (mMak 1:10) that “had we been in the Sanhedrin, no one would ever have been executed,” must be understood as their “committing to inaction in the face of anything less than certain, [choosing] to resolve one side of the tension between admitting to perpetual uncertainty and acting decisively. […] At this moment, when law is tested in the most extreme circumstances, R. Aqiba’s and R. Tarfon’s commitment to human jurisprudence falters. The truth that the law constructs is revealed to be no truth at all” (104). By calling our attention to these broader rabbinic hesitancies, Halberstam is able to offer a compelling and original read of this famous mishnaic passage.

This book will be of consequence far beyond the field the field of Jewish studies. The work of Aron Zysow, who has shown the centrality of doubt to the field of Islamic legal theory (usul al-fiqh), is one area of conceptual contact for this book, one that will prove beneficial to scholars across disciplines.

Marc Herman is a graduate student in Religious Studies at the University of Pennsylvania focusing on medieval Jewish intellectual and cultural history.  He is a Wexner Graduate Fellow and a first year Graduate Fellow at the CJL.

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