by Rachel Scheinerman
Review of Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis by Aharon Shemesh (Berkeley: University of California Press, 2009) 234 pages.
Normative halakhah, Jewish law, received its first written expression in Tannaitic rabbinic texts—mishnah and midrash—and has enjoyed a nearly 2,000 year history of application and development. The question of the pre-history of halakhah, its origins and development prior to the rabbinic period, has fascinated scholars of classical Judaica for well over a century. The discovery of the Dead Sea Scrolls in the mid-20th century exposed a cache of pre-rabbinic Jewish legal material that brought a bounty of new evidence to the table. Since the discovery of the scrolls, numerous scholars of classical Jewish texts have reconsidered the pre-history of halakhah in light of the new evidence. Entering the thick conversation with an attractive, slender volume, Aharon Shemesh provides a fresh perspective and some significant conclusions.
Shemesh’s book reads like a collection of related insights, rather than a streamlined, thesis-driven work. In summarizing its contents, I focus on those elements that build toward his most important contribution: the insight that Sadducean legal thinking had a profound influence on the development of rabbinic halakhah. This is surprising because the classical rabbis are generally considered descendants of the Pharisees, a late Second Temple Jewish sect that feuded with the Sadducees over legal and meta-legal matters.
In his introduction, Shemesh defines the parameters of the project—to determine the relationship between Qumranic halakhah and Tannaitic halakhah. He lays out his methodological assumptions, namely: (1) In agreement with most scrolls scholars, Shemesh assumes the Essene hypothesis (that the Qumran community consisted of Essenes, another sect of late Second Temple Judaism), (2) he holds that the Essenes and Sadducees shared a common legal system, and (3) he assumes that the Qumranic legal materials form a coherent collection and can be viewed as essentially one legal system, albeit with variants.
Shemesh discusses the two prevailing models for how halakhah developed from Qumran to the Tannaim; he dubs them “evolutionary” and “reflective.” The evolutionary model holds that rabbinic halakhah is the result of a transformation of sectarian halakhah that took place over several generations, and therefore does not closely resemble its predecessors. The reflective model holds that rabbinic halakhah accurately reflects a specific segment of Second Temple sectarian halakhah. Shemesh proposes an alternative model to these two – one that he views as a “middle way” – in chapter 3 and also in his final conclusion.
Shemesh’s first chapter, “Writing Halakhah at Qumran,” discusses the genres of halakhic material at Qumran. He identifies two basic genres: rewritten bible, as exemplified by the Temple Scroll, and commentary, as exemplified by the Damascus Document. Shemesh notes that Tannaitic halakhah is likewise susceptible to division into two genres—midrash and mishnah—although these two categories are not analogous to the two found at Qumran. The primary argument of this chapter is that midrash is a descendant of both genres of Qumranic halakhic literature, but distinctly different in that (1) midrash is dialectical in nature (Qumranic halakhah is emphatically not) and (2) midrash is explicit about its own hermeneutical techniques. (Unfortunately, Shemesh does not offer a suggestion for the ancestry of mishnah.) The impetus for this change from Qumranic halakhah to midrash halakhah was a theological shift: Qumranites understood their halakhah as divine in origin; the rabbis understood theirs as human.
Shemesh’s second chapter, “Divine Revelation and Human Exegesis,” examines the theological shift outlined in the previous chapter. Shemesh argues that the root cause of the shift is the rabbinic view that prophecy had ceased. At Qumran, where belief in prophecy was alive and vital to the sect’s theology, the sectarians learned halakhah through revelation, both the revelation already made known in Scripture (a written revelation available to all) and that made known through the leader of the sect’s explanation of the “hidden things” not made explicit in the Torah. Among the rabbis, for whom prophecy had ceased and immediate access to the divine was more difficult, legal decisions were made by consensus. As Shemesh rightly points out: “The mechanism of reaching a decision by voting is unacceptable in a society that believes in an ongoing revelation. This is because the underlying assumption behind the voting system is that there is no definite truth and that the process doesn’t pretend to determine it. Voting is in general considered a procedure to arrive at an agreed norm, not as a way to reach the truth.” (57)
Chapter three, “Scripture versus Tradition,” is Shemesh’s longest and most valuable; it can be read independently of the other chapters. Here, Shemesh examines Pharisaic/Sadducean disputes. He spends much of this chapter discussing the Qumranic prohibition of uncle-niece marriage, a union that is not prohibited by Torah and which the rabbis vigorously defended. Shemesh proposes the following historical process: According to their own rhetoric, the Pharisees followed legal norms that were, if not directly scriptural, traditional, while the Sadducees followed legal norms derived from Scripture. So much Josephus tells us. In practice, however, the Sadducees followed norms that were not closely derived from Scripture (for example, they prohibited uncles and nieces from marrying). To justify these extra-biblical practices, the Sadducees developed creative strategies for reading that made their norms appear to be derived directly from Scripture. Here, Shemesh avoids stating whether what the Sadducees were doing could be characterized as midrash. Once the Sadducees had found a way to justify extra-biblical practices through creative reading of Scripture, they began to use these new techniques to innovate new halakhic rulings – to create new laws. Meanwhile, the Pharisees deplored the Sadducean use of Scripture and continued to describe their own legal practices as ancestral customs whose antiquity was their only justification. Flash forward, now, to the rabbinic period. In Shemesh’s reading, the tension between the Sadducean and Pharisaic approaches found its way into rabbinic legal thought. The rabbis are commonly understood to be the ideological heirs to the Pharisees; they inherited Pharisaic customs and the Pharisaic preference for lenient legal rulings, but they were also sensitive to the Sadducean critique and increasingly sought to justify these customs through creative scriptural exegesis. (Why these latter-day Pharisees suddenly defended themselves vigorously against the Sadducean critique when before they had not, Shemesh does not explain.) Over time, they became even more creative and fanciful in their scriptural exegesis than the Sadducees had been and developed the genre of midrash to a high art.
Shemesh’s fourth chapter, “‘The Foundation of Creation’ and the ‘Laws Written on the Heavenly Tablets’” supports a claim made by Daniel Schwartz in 1992 that while Qumran law is largely realist (a view which holds that God’s law forbids things that are really wrong and impure), rabbinic law is largely nominalist (holding that God’s legal prohibitions are the reason something is wrong or impure). It largely comes down to a question of cause and effect. In the realist view, something is wrong intrinsically and God’s law reflects that intrinsic wrongness. In the nominalist view, things are wrong because God forbids them.
Shemesh demonstrates the strength of Schwartz’s claim by pointing to statements in the Dead Sea Scrolls that he argues explicitly reflect the sectarians’ realist posture. In addition, he shows that a realist view of marriage (namely, that sex is the single necessary and sufficient condition to enact a marriage, and death likewise the single necessary and sufficient condition to dissolve it) explains an otherwise obscure set of sectarian regulations: the stoning of a woman who is proven not to be a virgin on her wedding night and the prohibition against remarriage while one’s former spouse still lives.
Shemesh claims to have added a measure of refinement to Schwartz’s view of Qumranic realism as follows: “It is not just that the law supposedly is based on reality and nature, but rather, that reality ought to reflect the law because God, by his will, created the world according to the law.” (109) In other words, God made a world that matched the laws God planned to promulgate. This claim seems, to my mind, to be a motion to reverse the arrow of cause and effect. Shemesh’s refinement of Schwartz’s definition of realism sounds, well, almost nominalist.
Shemesh considers objections to Schwartz’s thesis that rabbinic law, too, contains realist elements (albeit alongside a heavy dose of nominalist elements) and argues that this only suggests a gradual, perhaps messy, process of evolution. Students of legal theory may be interested to note his generalized claim: “Evolution from a realistic view of the law toward a nominalistic approach is a normal and predictable development in any legal system, from its relatively early, primitive stages, which depict the law as a reflection of reality, to an approach that dissociates the law from nature and assigns it an independent existence.” (128)
In his conclusion, Shemesh returns to his major innovation, which is to propose a new model for the development of halakhah from Qumran to the rabbis. Drawing largely on arguments from chapter 3, the real heart of this book, Shemesh suggests that although the Tannaim were undeniably heirs to the Pharisees in many respects, they also adopted basic concepts from the Sadducean legal system and these were the seeds of a quintessentially rabbinic approach to law: midrash.
Shemesh does not offer his musings on the larger implications of his thesis, so I will blithely do so now. I believe that Shemesh’s insight opens a new set of questions about the changeover from Second Temple to rabbinic Judaism. The standard narrative of the Tannaitic period is that in the wake of the destruction of the Second Temple, Jewish sects disappeared and eventually (how eventually is a matter of debate) rabbinic Judaism, a descendant of Pharisaism, survived as the dominant form of Judaism. In light of Shemesh’s thesis, however, this statement may require qualification. If the rabbis were responding to Sadducean-like challenges and adapting Sadducean methods, we must take seriously the idea that Jews who were heirs to the Sadducees flourished in the post-destruction period. Shemesh makes a tentative move in this direction by citing arguments that connect the Sadducees with the School of Shammai, although he does not speculate about the final, possibly post-destruction years of Sadduceeism. Here, his work would benefit from engagement with the work of Azzan Yadin who claims that the older priestly textual traditions were continued in the School of Rabbi Ishmael. Shemesh rejects this claim (p. 98, fn. 36) but does not tender a different vision for the location of Sadducean thinking in early rabbinic Judaism.
Shemesh’s connection between Sadducean legalism and midrash has much to commend it. I would like to see him extend this thinking to the other great body of Tannaitic legal thinking: the mishnah. One cannot ignore that the mishnah, which contains little midrash, is the premier legal text of the Tannaim, the one that was enshrined in the Talmuds. Indeed, in contrast to the mishnah, midrash was largely ignored until the last few decades. If Shemesh wishes to make a generalized claim about Tannaitic legal thinking, he should not ignore the evidence of the mishnah. If there is no evidence for Sadducean legal thinking in the mishnah, what does this mean for his conclusion that the Tannaim were shaped by Sadducean influence? Was it only some Tannaim? Was the realm of influence limited? Why?
In addition, students of legal theory might wish that Shemesh had engaged more directly with contemporary theories of jurisprudence. The categories of “realism” and “nominalism” as here defined are not part of secular legal theory, and looking them up in, say, the Stanford Encyclopedia of Philosophy will not be helpful. Indeed, the reader will only find that they have one set of meanings in the context of ontology, another in the context of theory of jurisprudence, and that neither of these reflect their idiosyncratic use in the cluster of articles that debate the issue of Qumran and the rabbis. (This is by no means Shemesh’s fault since he is using the terms as other scholars in his field have used them.) As Jeffrey Rubenstein has pointed out, these concepts are more closely connected to models that will be familiar to students of legal theory: natural law theory and legal positivism. Shemesh claims that societies tend to evolve from a realist (read: natural law) view to a nominalist (read: legal positivism) view and that this was the case for Judaism in Late Antiquity. Shemesh’s model for the development of halakhah, as a hybrid of two very distinct approaches to law, has the potential to serve as a useful test case for contemporary theories of legal development.
There is no doubt that Shemesh has written a provocative piece of scholarship that contributes to the discussion of the pre-history of halakhah and raises important new questions. His work is compelling both because it is based on a sophisticated reading of the historical texts and because his ideas are straightforward yet not simplistic. This book is highly recommended to those who study Judaism in the ancient world and those who are interested in the development of Jewish legal thought.
Rachel Scheinerman is a Ph.D. student of Ancient Judaism at Yale University and a graduate fellow at the Center for Jewish Law and Contemporary Civilization at Cardozo Law School.
 Yaakov Sussman, Vered Noam, Yigael Yadin, Joseph Baumgarten, Lawrence Schiffman, to name a few.
 While this point is not universally accepted, many well-known scholars have put forth this argument, including: Y. Sussman, J.M. Baumgarten, and B.Z. Wacholder.
 Like most models, this is an oversimplification. As Shemesh notes, certain Qumranic texts are “hybrids” of the two genres (e.g. 4Q251).
 To compare what scholars have said about whether midrash was practiced at Qumran, the interested reader might consider articles by Fraade and Schremer, for two opposing viewpoints. Fraade (“Looking for Legal Midrash at Qumran,” Biblical Perspectives: Early Use and Interpretation of the Bible in Light of the Dead Sea Scrolls, Brill, 1998) argues that midrash was not found at Qumran, but rather a rabbinic innovation; Schremer (“‘The[y] did not read in the Sealed Book’: Qumranic Halakhic Revolution and the Emergence of Torah Study in Second Temple Judaism,” Historical Perspectives: From the Hasmoneans to Bar Kokhba in Light of the Dead Sea Scrolls, Brill, 1999) argues that the Qumranites invented midrash.
 See the last chapter of Yadin’s Scripture as Logos, (University of Pennsylvania Press, 2004).
 Scholars who have used these terms in a very particular way to talk about Qumranic and rabbinic legal thinking include: Y. Silman, D. Schwartz, J. Rubenstein, C. Hayes.
 Jeffrey Rubenstein, “Nominalism and Realism in Qumranic and Rabbinic Law: A Reassessment,” Dead Sea Discoveries 6 (1999): 157-83, p. 158-9, fn. 5.
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