“Pumbedita & Vilna in Silicon Valley” is the title of the opening session in a series of five public meetings at the National Library of Israel. The series aims to investigate the relevance of the Bavli in the 21st century. Baldly, the first session asks: “Is the Babylonian Talmud relevant to the secular-western society in which we live?” Continue reading
Category Archives: Guest Posts
Solidarity and Redemption at MetLife Stadium: Notes from the Siyum Ha-Shas- Guest Post by David J. Landes
The second post in our series on Daf Yomi comes from field notes taken by Dr. David J. Landes, an anthropologist who has worked on Orthodox Jewish study culture. David was present at the central Siyum held at MetLife stadium last Wednesday night.
The 12th Siyum haShas celebration at MetLife stadium in New Jersey on August 1, 2012. Photo courtesy of Menachem Butler.
Over the past several decades a new ritual has taken hold within the Orthodox community, the daily learning of a prescribed daf, or double sided page, of the Talmud Bavli. The nature of this ritual, though, has yet to be fully investigated. On the one hand, it would seem to be purely a matter of study, of acquiring knowledge of God’s Torah. However, the pace of the learning and the limited amount of time that participants in the program generally allot to it – as far as I know, no daf yomi shiur exceeds one hour in length, and 45 minutes seems to be the preferred “shiur” (measure) – makes it impossible to retain much of what is studied. Talal Asad has written that the original sense of “ritual,” before the adoption of the term by modern anthropologists, was “the apt performance of what is prescribed” which involves “abilities to be acquired according to rules that are sanctioned by those in authority.” According to Asad, ritual presupposed “no obscure meanings, but rather the formation of physical and linguistic skills.” Daf yomi would seem to fit Asad’s understanding of ritual quite well: for many it seems to be more a matter of performance akin to davening (daily Jewish prayer), than the acquisition and retention of knowledge. In any event, the performance of the ritual is particularly demanding of one’s time and intellect, and the day of the completion of the cycle was awaited with great anticipation and excitement.
“Achdus” (“unity”) was the major theme of Wednesday night’s spectacular siyum has-shas celebration at the MetLife Stadium thrown by the Agudath Israel of North America. At the beginning of the evening the Jumbotrons displayed the many locations throughout the world where other siyum celebrations were taking place, as well as videos of daf yomi classes from all different types of Orthodox communities. The refrain “ke-ish echad be-lev ached” (“like one person with one heart”) was repeated many times over the course of the long evening, especially by the representatives of the Agudah who addressed the crowd. The daf yomi program of study was declared to be the great unifier of ke’lal yisrael, with Yidden of every stripe studying the same page of the Talmud on the same day throughout the world. As one speaker put it, no matter what headgear the learners of daf yomi may wear – a black yarmulke, a kippah serugah, a streimel, or a baseball hat – they are united in the great project of learning through shas together, studying the very same text on a daily basis. The daf yomi program is built on an insight made famous by Benedict Anderson, that the reading by disparate individuals of the same text on a daily basis – for Anderson it was the daily newspaper – can be a key factor in generating the sense of an imagined community.
Emphasizing unity, the organizers were careful to avoid controversial, divisive issues. The evening’s master of ceremonies declared that we care for Jews everywhere, no matter where they may be, whether “in Postville, Bulgaria or North Carolina.” The many speakers did not stray from safe themes, such as love of learning and the miracle of Jewish continuity. The only speaker who touched on a political issue was Rabbi Malkiel Kotler who passionately reiterated that Jews who are committed to learning constitute the “tziv’os ha-shem” (“the army of God”) – an indirect comment on the efforts being made to draft yeshiva students into the Israeli army that probably went mostly unnoticed.
A genuine feeling of community was felt within the stadium. It was easy to strike up conversations with complete strangers, everyone seemed eager to share with one another where they lived and whether they were being me’sayem (completing the Talmud). The crowd was laid-back and comfortable. People mostly sat quietly and listened to the speeches, but there were many quiet conversations going on. On the playing field, where I was sitting, the aisles were filled with people milling about, chatting on their smartphones. Everyone seemed to be taking pictures. In front of the dais there was a constantly changing cluster of people jockeying for position in order to snap shots of the various gedolim.
With the vastness of the crowd and the captivating pageantry, which included live performances by popular chazanim, singers and bands, and slick videos on the huge screens, the feeling that one was part of something much larger than oneself, a collective that spans the globe and transcends time and earthly existence, was palpable. Through videos, speeches, and an el maleh, the martyrs of “churban europa” (the Jewish European holocaust) were repeatedly invoked. Those martyrs, we were told, were celebrating together with us, as were the neshamos (“souls”) of all of the past generations of Yidden. After Rabbi Kotler recited the hadran, and Jay Schottenstein, patron of the Artscroll edition of the Talmud, said the kaddish, a “collective effervescence” (to use Durkheim’s term) broke out. The band played, the chazzan sang, and for a good twenty minutes everyone who was lucky enough to have a seat on the playing field (which I did thanks to the generosity of my brother, a siyum-celebrant who flew in from Chicago) danced, and those who were sitting in the stands swayed together, arms around each other’s shoulders.
Everyone danced or swayed in their rows, except, of course, the women who were sitting very still in their seats high up in the third tier. The work of establishing solidarity is inevitably partial and obscures the work of exclusion that is its complement. It was a given that no women could participate in the learning of daf yomi – they were thanked, though, for making it possible for their men to learn — and there were no women in the program or in the videos, including the historical footage from pre-War Europe. While Modern Orthodox men were welcomed and the Agudah speakers marked their inclusion in the celebration and their participation in daf yomi learning, I have heard that Yeshiva University’s efforts to have one of their roshei yeshiva speak were rebuffed. The crowd was actually quite homogeneous, made up mostly of clean-shaven yeshivish ba’ale-battim (orthodox laymen). There were very few chasidim and a small contingent of Modern Orthodox. Jews of other denominations were not recognized in any way. The Noveminsker Rebbe stated in his speech that the continuity of the Jewish people was due solely to the merit of Yidden who learn Torah.
A sense of hierarchy was also subtly conveyed. Finishing shas by learning a daf a day was certainly celebrated as a great accomplishment, but at the same time some of the speakers hinted that real learning requires a good deal more than a quick run through a daf of gemara. Rabbi Shmuel Kaminetzky urged those who were being me’sayem now that they do it again, but this time with tosafos. Rabbi Yitzchak Steiner implored everyone to learn more deeply and with greater fervor, offering his recently-deceased rebbe, Rav Elyashiv, and Rav Elyashiv’s son-in-law, Rav Chaim Kanievsky, as persons to emulate. Another speaker suggested that people consider being regularly tested on their learning in the next cycle (which was met with audible shudders by many around me). It is noteworthy that none of the speakers gave a shiur or “spoke in learning,” which would seem to reflect an assumption that many in attendance either would not be interested or not be able to follow. While the daf yomi program was feted for being a great equalizer, unifying Jews of all types, the distinction between real talmidei chachamim and ba’ale-battim was maintained.
Establishing a sense of identity as a people committed to the study of God’s Torah also requires differentiation from without. The sharp words of the hadran, “anachnu mashkim, ve-hem mashkimim … anachnu ratzim ve-hem ratzim,” (“we awake, and they awake… we run, and they run”) were invoked, and the holding of a siyum ha-shas in a sports stadium was pointed to more than once as a demonstration of this difference between Jews and non-Jews. The venue being a stadium and it being Olympics season, the siyum was depicted as “sweet revenge” for the Olympics held in Berlin in 1936, which Hitler used as a platform to spew his anti-semitic venom. It would not have been appropriate, apparently, to explicitly make reference to the games going on in London, but the contrast was understood: while the non-jews were competing over there, God’s Olympics were being held here in the MetLife Stadium.
Nevertheless, despite the differences being drawn between Yidden who devote their lives to the study of Torah and worship of God, and the non-jews who “waste their time” in idle endeavors, it obviously took a great deal of familiarity with the “goyishe velt” (non-Jewish world) to pull off this kind of event, including intimate knowledge of stadium economics. Corporate sponsorships were prominently advertised and I am told that luxury suites were sold for over a hundred thousand dollars each. And it was apparent that for many of those present it was not their first time in a football stadium: a few rows in front of us a boy sat on a souvenir seat cushion from a recent Superbowl – after a few hours on a very hard seat I was quite envious. The financial and technical resources required to make this event possible are considerable and one cannot help but be impressed by the material power and worldly sophistication of the American Agudah community (it is hard to imagine an event of such scale being undertaken by the Haredi community in Israel.)
One of the functions of daf yomi is to redeem this immersion in non-Jewish culture and society. Participants in the daf yomi program take their gemaras with them when they leave for work in the morning, learn during their commute or during lunch and other free moments, and they take their gemaras with them when they go on vacation and even to ballgames. The glossy commemorative booklet that was distributed to ticket-holders contains an article on the planning of this “historic simchas hatorah.” The article relates that “Thomas M. Steinberg, President of Tisch Family Interests (owners of the New York Giants), once remarked that he finally understood why it had been necessary for him to devote 12 long years to the planning, design and construction of this brand new billion dollar stadium. It was so that tens of thousands of Yidden would have a place to gather for an unprecedented demonstration of kovod haTorah.” With daf yomi, everything in this world exists for the study of torah. Going to work or on vacation enables one to learn; the true purpose of a football stadium as a giant beis medrash is revealed. And on this muggy night in August, with 90,000 people filling the MetLife stadium, the Agudah made it all very believable.
David J. Landes is an independant academic living in the New York area. His dissertation, which he wrote in Princeton University’s Department of Anthropology, is based on fieldwork that he conducted at Yeshiva University and in the Modern-Orthodox community.
Doing Daf Yomi- Guest Post by Yaakov Elman
This post, a first in what we hope will be a series on the Daf Yomi as its 12th cycle comes to a close, was written by Yeshiva University’s Prof. Yaakov Elman. A long time daf yomi learner, Prof. Elman was also Shai’s doktorvater, and his deep influence on this blog parallels the one that he has had on the field of academic Talmud.
The Babylonian Talmud (hereafter: the Bavli) is made up of approximately 1,863,000 words, spread out across 2,711 double folio-pages. Studying a double-page- known as a “daf“- a day, it takes seven years, five months, and approximately six days to complete a cycle of study of the Bavli, and the completion of the twelfth cycle (inaugurated in 1923) will be celebrated today, August 1st, by hundreds of thousands of people world-wide, with an expected 100,000 attendees at MetLife Stadium in the Meadowlands.
Such a regimen is definitely a daunting task, but tens of thousands of Jews rise early, stay up late, or somehow crowd an hour or so of study into their daily schedule, often in synagogue before or after services, on commuter trains, subways, and the like. Most of them do so in groups, with a leader taking them through the intricacies of an Aramaic-Hebrew text that has challenged the best minds the Jewish people have produced for the last millennium and a half. Of course, being part of a group allows for social interchange, and the feeling of participating in a shared goal. But my own experience suggests that while the text alone can be riveting at times and “merely” interesting at others;the Bavli hardly ever requires a stiff upper lip to see it through.
I have been asked to describe the experience of studying the Talmud in this way; let me begin by admitting at the outset that I am not a typical daf yomi person. In the forty-some-odd years that I have studied daf yomi, I have never taken part in a daf yomi group; my schedule is seven blatt on a Sabbath rather than a daf a day. Still, by not taking part in a group I was forced to rely on my own resources, and thus my view of the Bavli is my own and reflects my interests. These have changed over the years, but for the most part, my focus has been on the Bavli’s cognitive style and modes of argument, the individual contributions of its major voices, the society that produced it, and the interaction of that society with its general environment.
I began daf yomi when the thought that I would never complete even the most cursory review of the whole of the Bavli in my lifetime (at the rate I was progressing) became intolerable. I couldn’t stand the thought that I would never get a sense of the whole of the Talmud. One may ask: If the Bavli is more or less uniform in its style of language, thought and argumentation, what’s the difference, apart from the changing subject matter?
The short answer is that not only do the topics change, but the “research agenda” changes as well. Discussions of the Temple service are different from those on practical matters of civil law, for example. Some tractates concentrate on the biblical derivations of the Mishnah’s rules (Zevahim, Menahot); in some, most of talmudic law is based on custom rather than Scripture (Bava Batra, for example). While there are only 12 or 13 major figures, not all appear in the same proportion throughout the whole Bavli, and so one does not get a sense of their approaches without having kept track through a complete cycle (at least).
Daf Yomi takes its participants through the Bavli in a close-up view of the discussions carried on among the Babylonian rabbis of 220-530 CE, from prayers and blessings though the rules governing celebration of the Sabbath and festivals, through rules governing gender relations, civil law, to the Temple service and slaughter. But it is also a reflection of the society whose norms determined the shape of Jewish life for a millennium and a half, and continues to do so for hundreds of thousands of Jews today. It is also the cognitive underpinning of the Jewish mind as it has developed over the last two millennia, indeed, much more so than the Hebrew Bible.
Let me quote from a short description that I published a few years ago on which I would like to expand:
…The Babylonian Talmud is marked by a salient characteristic, its continuous and unending dialogue. The debates are not haphazard. Certain authorities who were contemporaries or near-contemporaries debate all sorts of issues related to the Mishnah, issues that are sometimes only remotely relevant to them personally. Some statistics will give us an idea of what is happening. The Babylonian Talmud is the creation of at least seven generations of Babylonian authorities, and contains several generations of Israeli authorities as well. However, of the hundreds of authorities mentioned by name, more than forty thousand times in toto, only a dozen or so dominate the discussion and are scattered in pairs… These debates are often arranged as structured discussions on a given topic, so that they appear to be stenographic records of actual debates. This appearance is literary only, however, as few of these authorities lived in close proximity. This is true even though the discussion, or sugya (a “walking through), sometimes seems to reflect a long debate over a point, a debate that gives the appearance of having lasted for generations.
The cognitive style of the Bavli is dialogic and dialectical, as manifested not only by its predominant voice, that of its anonymous redactors, who contributed over half of its text (the stama di-gemara), but by its named authorities, who both query and question and investigate incessantly. They take very little for granted; everything must have an authoritative source—and sound logic counts as such a source. As my first Talmud teacher told us ten-year olds: “A gemoro daf men farshtein, nit nur gloiben” (“We must understand the talmudic text, it us not enough to believe it”).
The predominant mode of inquiry is binary: Is A to be construed as X or perhaps (o dilma’) as Y? But while the query may seem simple, the answers seldom are, and alternate possibilities are brought into consideration. At times the query leads to another, in a dizzying array of cantilevered logic. If A, then X or Y or Z. But if A leads to X or Y or Z, then other binary possibilities open up… and so on. This is one of the ways in which the Bavli comprehends the complexities of human experience.
One consequence of the predominance of about a dozen figures over seven generations is that a few sages have a outsize influence on the whole. Furthermore, the contribution of some sages outside this dozen is quite distinctive and can easily be traced. Thus, R. Yirmiyah (a Babylonian who went on aliyah) and Rammi bar Hamma (a Babylonian who stayed home) both tend to propound theoretical problems, often involving boundary conditions for whose solution no authoritative text exists; an inordinate number of their problems defy solution. One result is that after one such query R. Yirmiyah was ejected from the study hall (Bava Batra 23a); on a later occasion, however, he was brought back by dint of another such question (Bava Batra 165a). Another reaction, that of the highly-influential fourth-generation sage Rava to two of Rammi bar Hamma’s questions was “His sharp-wittedness has brought him to error!” It is perhaps no surprise that R. Yirmiyah praised Rammi bar Hamma to his own teacher R. Zeira (Pesahim 48a). It is also not surprising that on at least one occasion R. Yirmiyah’s suggestion was so astounding that the Bavli interprets it as an attempt to make his master, R. Zeira, smile—but, as the Bavli notes: “R. Zeira did not smile” (Niddah 23a).
There are two other aspects of the Bavli’s thought that I think are essential to its understanding: its sense of proportion, and its requirement of reasonableness (as opposed to adherence to pure logic), that is, that statements conform to reality. One might think that with its continuous arguments the Bavli would be bound to strict logic, but then logic is not always reasonable. Thus, in Shabbat 5a, a particular analysis of the text at hand (quoted, as it happens, in the name of a western scholar for which there is no parallel in the Talmud of the Land of Israel) results in an interpretation in which a midget (or an normal-sized person bent over or standing in a pit) is holding a basket within three handbreadths of the ground. Rava reacts as to this proposal as follows: “Did the authority of the mishnah then trouble himself to teach us these [highly unusual] cases?” Though this retort appears only five times in the Bavli, this may be because such interpretations are rare.
The other response is far more common, and appears more than a hundred times in the Bavli. Thus, in Shabbat 151b, the redactors’ reaction to R. Yosef’s assertion that rabbinic students are never reduced to begging is: “But we see that they are!” Formally, the Bavli is a commentary on the Mishnah, a collection of laws and rules governing almost every area of life promulgated about 220 CE, but one which does not—in common with law collections of the time—decide issues at contention. But at times the Bavli will set aside the mishnaic view on matters that are not disputed as a minority opinion, or it reinterprets it so as to change it substantively, or even marginalize it in some other way.
Nevertheless, though the Bavli is often hard-headed and self-critical, and at times questioning (to the point that it embodies some of the characteristics of the later proverbial Yiddish skepticism and bemusement at human failings), these are only some of its moods. The Bavli reflects all the varied moods of a wise and discerning mentor who bemusement at human folly never stoops to cynicism, and will even at times allow itself a certain measured naivité. Its infinite variety, like that of the human mind and heart, keeps it ever fresh, and that may be the secret of why tens of thousands of people are ready to turn the page and experience the lessons of the next day.
Yaakov Elman is Professor of Judaic Studies at Yeshiva University and an associate of Harvard’s Center for Jewish Studies. He has published or edited eight books and dozens of articles on rabbinic intellectual history, Jewish biblical exegesis, and hasidic thought.
Babylonian Talmud, Yoma 18b and Yevamot 37b: is this temporary marriage?- Guest Post by Zvi Septimus and Lena Salaymeh
Zvi Septimus and Lena Salaymeh are currently (at the time of publication) giving a lecture entitled “Marriage for Sex in Medieval Jewish and Islamic Legal Debates” at The Jewish Law Association’s 17th International Conference, going on now at Yale University. This post is a summary of their talk and an opportunity to participate in the discussion.
Two well-known and seemingly anomalous lines in the Babylonian Talmud have troubled many Talmud commentators for the last thousand years—yet these lines were notably ignored by the Gaonim: “When Rav came to Ardashir, he announced, ‘Who will have me for a day?’ When Rav Nahman came to Shkentziv, he announced, ‘Who will have me for a day?’” What do these proclamations mean? The subsequent give and take of the Talmud implies that both Rav and Rav Nahman were the equivalent of modern-day rock stars. They would send their entourage to the next stop on their tour in order to scout out groupies willing to engage in casual sex—or a temporary marital relationship—during their stay in various cities. After their encounter they would be on their way, off to the next city to be coupled with the next willing set of groupies. Had these rabbis actually been modern-day rock stars, these stories would probably not trouble us or the medieval commentators, many of whom felt forced to sanitize them. But these stories are about rabbis.
The trouble with the rock star metaphor is that it implies that sexual relationships, or any relationship for that matter, between men and woman in the ancient world were anything like the way they are today, or even the medieval Christian and Muslim worlds in which medieval Talmud commentators lived. The story we will now tell is about the evolution of the contexts in which these two Bavli lines were positioned from the time of their first appearance as historical anecdotes of the near past to the time when, as part of a Talmudic sugya, they needed to be incorporated into the complex web of rabbinic legislation.
The two statements of these rabbis appear in succession at two very different locales in the Talmud. The first, in the order of tractates, and, as we argue, the development of the sugya, is at Yoma 18b and the second is at Yevamot 37b. The Yevamot context is far more expansive and has therefore generally received more attention from traditional jurists seeking to contextualize the statements legally—to make laws for their contemporaries based on the way the Talmud discusses them. At stake, for jurists like Alfasi, Maimonides, the Ravad, Nahmanides, the Rosh, and the Tur, is the legislative approach they would take toward casual or time-bound sexual relationships in their own eras in light of both the Talmud’s attitude toward such relationships and their own social and religious realities. While traditional marriage may receive the most attention, there are many types of sexual relationships between men and women discussed in the Talmud. Indeed, considerable effort is expended fleshing out sexual relationships between men and women outside of the standard permanent marriage arrangement, including conditional marriage and divorce, levirate marriage, servant marriage, slave marriage, concubines, casual sex, prostitution, and incest. The Bavli’s discussion of these varieties of sexual relationships is reflective of late antique Near Eastern customary practices. The question we would like to pose today is: To which of these categories did the Bavli’s redactors and the rabbinic commentators assign the relationships expressed by the stories of Rav and Rav Nahman?
Even within the Bavli itself, the statements of Rav and Rav Nahman—”who will have me for a day?”—can be seen in multiple contexts. The first is to look at the statements themselves as actual stories recorded at or slightly after the times of their occurrence. The second is to view them in the context of the extended sugya at Yoma 18b. And the third is to understand them within the framework of Yevamot 37b. When looked at this way, the stories can have three separate meanings. To compound matters, there are numerous manuscripts containing alternate versions and textual variants. Each of these, in addition, portrays different attitudes toward the story itself. Of primary concern is the question of what type of relationship is meant by the words “who will have me for a day?” Is it casual sex, a form of pilegesh relationship, or a temporary marriage? If it were a pilegesh relationship, then was qiddushin performed? Was nissuin performed? Was there a ketubbah? Is it realistic to think that the rabbis would be willing to pay the 100 or 200 zuz marriage settlement for a day’s worth of enjoyment, or, from a different perspective, a day’s worth of abating sexual urges in a legitimized manner? Secondly, was the marriage for a day or “days”? The manuscripts contain both readings. If “days,” then was the marriage for a specific amount of time or just designated as temporary in some non-specific way? If for a pre-determined amount of time, was this marriage naturally dissolved or was a get required? If for a non-specific amount of time, could either party leave at will or was the husband the sole authority in determining the marriage’s end? Further does the term yiḥud in these Bavli passages refer to non-sexual seclusion or is it a term referring to designating the woman as a partner, perhaps a pilegesh, where there would be neither qiddushin nor a ketubbah? These questions are not only of interest to modern academic analysis of the positions of the authors of each sugya, or versions of the sugya preserved in a manuscript tradition, they also drive the medieval commentatorial tradition of those sugyot and the efforts of the codifiers and jurists in trying to incorporate these sugyot into their legal systems.
The inconclusiveness of these narratives and the widespread Near Eastern practices of temporary marriage suggest that at the time of the Bavli’s redaction, some form of temporary marriage was being practiced. Indeed, Yaakov Elman argues that these “two prominent rabbis contracted temporary marriages in accord with the Sassanian institution.” So, if rabbinic Jews practiced temporary marriages in late antiquity, then did these Jewish temporary wives receive a ketubbah? Moreover, how did these temporary marriages end? Did the rabbis in Yoma 18b or Yevamot 37b deliver divorce decrees or was a divorce effected at the moment of their departure or the conclusion of the day(s)? This is of course probably depends on whether these temporary arrangements were actual marriages or merely pilagshut. The Bavli does not provide a clear answer on any of these technical details.
This leads us to wonder, how did the Gaonim understand this rabbinic practice of temporary marriage considering their context of Islamic debates about it? It was not until the late 8th or early 9th century that a majority of Muslim scholars prohibited temporary marriages; prior to that time, temporary marriages were widely practiced and debated. There is a notable geographic distribution, with Muslim jurists from Mecca generally permitting temporary marriage and jurists from Iraq and Medina opposing it. Since the Gaonic academies were located in Iraq, it is quite likely that the Gaonim were exposed to these debates about temporary marriage among Muslim jurists. There are three different forms of temporary marriage in the late antique Near Eastern world. First: the Shīʿī version, in which the temporary marriage contract specifies the duration of the marriage, which ends automatically without a divorce declaration. Second: the Sunnī version, in which the temporary marriage contract does not specify the duration, but the husband and wife or one of them intend to divorce and this type only ends with a divorce declaration. The Sunnī version is a legal fiction because the husband and wife may have agreed upon the specific duration of the marriage, but simply did not specify it in the contract; in addition, in the Sunnī version, either the husband or the wife may intend to divorce the other without this affecting the validity of the marriage. The third version may be understood as one component of the second version: the uninformed temporary marriage mentioned by Rabbi Eliezer Ben Yaaqov, in which the husband intends to divorce the wife with a get, but has not informed her. Yet, somewhat surprisingly, there is little Gaonic discussion of the Yoma 18b or the Yevamot 37b sugyot. Why is it that the “Who will have me for a day?” statements in the Talmud did not generate Gaonic commentary?
We want to end with this question and encourage those of you who are able, to attend our panel at the Jewish Law Association meeting or continue this conversation in the comments section of The Talmud Blog.
Lena Salaymeh is Robbins Post-Doctoral Fellow at UC Berkeley School of Law and recently earned her PhD in the History department at UC Berkeley; and Zvi Septimus is Anne Tanenbaum Post-Doctoral fellow at the University of Toronto. He was previously Alan M. Stroock Fellow for Advanced Research in Judaica at Harvard University and received his PhD in Jewish Studies from UC Berekely.
Daniel Sperber’s Greek in Talmudic Palestine- Review by Yair Furstenberg
Daniel Sperber, Greek in Talmudic Palestine, Ramat Gan: Bar Ilan University, 2012
How much Greek in Jewish Palestine? Were Samuel Krauss to address the question titling Saul Lieberman’s seminal essay of half a century ago, we could expect in reply a most precise datum: 2370. Krauss compiled the dictionary for Greek and Latin loanwords in rabbinic literature (Griechische und Lateinische Lehnwörter im Talmud, Midrasch und Targum) published during the last years of the 19th century, and this is the number of Greek entries in this work (if we are to believe those who counted). However, this enormous number, which supposedly signifies the scope of Greek knowledge in rabbinic circles, would certainly not satisfy Lieberman.
Besides the fact that the Lehnwörter was most fervently criticized early on by linguists and classicists, who rejected a substantial share of its etymologies (between 30-50%) and valued it only as a comprehensive collection of the relevant passages, Lieberman’s major concern in identifying these foreign words laid elsewhere, beyond the realm of lexicography. In the above-mentioned essay, as in his earlier books Greek in Jewish Palestine and Hellenism in Jewish Palestine, he sought not only to identify within rabbinic literature traces of Greek presence, but to map out the types of rabbinic encounters with this culture and the intensity of the exposure. Thus he claims, for example, that whereas philosophical terminology is completely absent from Talmudic literature, which befits the rabbis’ complete disinterest in foreign wisdom, issues such as law, government, and rhetoric are well represented in rabbinic vocabulary.
In the last few decades, contemporary scholarship moved even farther away from the lexicographic endeavor, as it shifted from a philological paradigm in which related words serve as signifiers of sporadic cultural interaction to a broader cultural paradigm that seeks to identify shared structures of thought within the common Greco-Roman environment. From this perspective, even if spoken in the most Rabbinic Hebrew, Talmudic laws, narratives and anecdotes may sound to some like Greek. However, paradoxically, the evolution of new broader scholarly approaches has only reinforced the need for a clearer exposition of the actual contexts and agents (including people, words and institutions) through which such cultural exchange took place. Due to the incompleteness of earlier projects, some fundamental questions have yet to be systematically addressed: How “Greek” is each of the rabbinic compilations? Can we identify different trends or stages in the exposure to Greek language and culture? How should we account for the broader use of Greek in later sources? Did Christianity play a role in the distribution of Greek language and ideas in Palestine? How does the rabbinic exposure to Greek compare with that of other Aramaic and Syriac speaking groups in the eastern Mediterranean?
In his latest book, Daniel Sperber contributes to this endeavor by laying out some of the main findings of his two esteemed masters, Krauss and Lieberman, and by commenting on the challenges which, in his eyes, their works hold for future scholarship. Thus, in the first part, “Greek and Latin Words in Rabbinic Literature: Prolegomena to a New Dictionary of Classical Words in Rabbinic Literaute” (a reprint of two of his articles from the seventies), Sperber surveys the problems and methodological concerns which await the compilation of an improved dictionary, more than a century after Krauss. In the second part, “Rabbinic Knowledge of Greek in Talmudic Palestine”, he readdresses the fundamental question posed by Liebermen: “How much knowledge (and we may add, and of what nature) of the world which surrounded them did the builders of Rabbinic Judaism possess?”. To that end, he adds to Lieberman’s exposition some further examples of his own, relating to regional differences, knowledge of pagan ritual, rabbinic acquaintance with Roman legal and military terminology, and the use of Greek in magical texts.
Those who follow Sperber’s work will identify his examples from the many publications he contributed on the issue of Greek in rabbinic literature during the last three decades. Most prominent of these are his books, in which he not only offered solutions to textual cruxes by deciphering the Greek or Latin etymologies, but in which he sought to classify all foreign terms according to subject matters: A Dictionary of Greek and Latin in the Mishna, Talmud and Midrashic Literature (1984); Nautica Talmudica (1986); Material Culture in Eretz Israel (1993, 2006); Magic and Folklore in Rabbinic Literature (1996). In a way this is the most conspicuous of Sperber’s contributions, in which he dismantled the over-whelming question of Greek in Rabbinic literature into manageable, specific contexts and fields of practice.
The current book is of a different nature, and its purpose is more modest. It advances Sperbers general scholarly approach, which incidentally is largely based on that of Liebermen. However, in the margins, the unique and extremely important aspect of Sperber’s contribution does emerge in this latest book as well. Thus for example, to the list of more than 280 new words which he adds to Krauss’s dictionary (thanks to his elaborate use of critical editions and sophisticated assessment of manuscripts variants) he appended a subject index, which “highlights to us that in certain socio-cultural areas there was a greater penetration of Greek terms… administration, army and weaponry… employment, occupations and professions… building, tools or utensils” (p. 81).
But as the examples in the book demonstrate, the issue at hand is not only in what fields were the rabbis exposed to Greek, but the nature of their proficiency. Thus, the most enjoyable examples are those which not only incorporate Greek terminology but cunningly manipulate the languages through wordplays and puns. It takes an expert to identify those, today as well as back then. Therefore, although we are not surprised to find R. Abbahu in third century Caesarea proving his competence in Greek with a clever wordplay, it is no less than astonishing to find it in other, unexpected contexts. Such is the following case, my personal favorite, (discussed on p. 136) taking us back to the presumably ancient mishnah, which records the halahkhic dispute between the Pharisees and Saduccees (m. Yad. 4:6):
The Sadducees say we cry out against you, O ye Pharisees, for ye say ‘The Holy Scriptures render the hands unclean and the writings of Homer do not’. Rabban Yochanan ben Zakkai said “Have we naught against the Pharisees save this? For lo, they say ‘The bones of an ass (עצמות חמור) are clean and the bones of Yochanan the High Priest are unclean?
As Sperber points out, quoting Chaim Rosen, there is much more to the comparison of texts (Scripture/Homer) to bones (High Priest/ass) than the halakhic issue of impurity: behind the word “עצמות חמור” [“the bones of an ass”] there lies a Greek expression referring to Homeric poetry itself – an expression which has been doctored in a “cacophonistic” manner for the sake of derision and disparagement – “aismat homerou” – viz. “the songs of Homer”. And we can only thank the Pharisees for purifying these bones and songs, reluctantly admitting the enduring influence of Greek language and culture.
Yair Furstenberg is a Mandel scholar at the Scholion Interdisciplinary Research Center in Jewish Studies at the Hebrew University. He lectures in the university’s department of Talmud and Halakha.
Revolution or an Evolution? A Review of Bar Ilan Responsa Project 20- Guest Post by Josh Yuter
At the end of tractate Horayot (14a), Rabbi Yohanan recounts a Tannaitic dispute between R. Shimon Ben Gamliel and his colleagues over which type of intelligence is superior: being knowledable in the sources or being “able to move mountains” through analytic reasoning. Generations later, this question was answered in favor of the well-read scholar on the grounds that, “all depend on the master of the wheat.” After all, even the greatest legal mind needs to process the correct material.
Perhaps the greatest contribution to the production of “wheat-farmer” Talmudists has been the Bar Ilan Responsa Project. While the project officially began in 1963, the first version in its most identifiable commercial form was released 20 years ago in 1992 as a CD that not only compiled major Jewish works, but also included a powerful search engine ideal for most classical Jewish text research. Subsequent upgrades have primarily consisted of additional texts – to the point where the Responsa Project has spun off cheaper versions for those who do not need as much material – and either adding new features or improving earlier ones such as increased hyperlinking within texts that allow users to quickly look up most biblical or rabbinic citations from other sources. As such, although the project itself was revolutionary, each upgrate is more often than not evolutionary.
The most recent 20th version has some new features which regular users may appreciate, though much of this depends on taste. Since I spend most of my time with Talmud searches, I’m partial to the embedded references. For example, double clicking on a Tanna or Amora will display a brief but useful biography of that sage. There are also tooltips for expanding abbreviations and translating Aramaic to Hebrew, including names which at times conflicts with the aformentioned biographies [Note: screenshots of these and other features are displayed in the slide-show below].
In a feature introduced for this new version, Bar Ilan 20 includes the tzurat hadaf, which allows the user to view a page of Talmud as it appears in the de facto standardized Vilna edition of the Talmud. You will notice that the editors did not select the clearest or sharpest typesetting, but I would suspect that this would be irrelevant to the average user who insists on the tzurat hadaf – after all the plain Hebrew text is just a few clicks away. What is important is that the tzurat hadaf is not merely a static image like a PDF, but the text operates as if one were viewing the plain text. Most notably, hyperlinks are maintained as are their dictionary tooltips. Speaking of layouts, Bar Ilan 20 also includes a “Recommended Layout” option for all text windows which increases the margins and line spacing, which some users may find clearer.
In terms of functionality, one new feature which stands out is the new default “Natural Language Search.” Admittedly, I am more used to searching by idioms and grammatical variants such that I have not learned how to take advantage of this feature as it was intended. Furthermore, I noticed the inclusion of a “Mishna and Bavli Chapters” reference which alphabetically lists all the chapter names in the Talmud. Since it is not unusual for commentaries to reference Talmud based on page number – especially for those who lived before the tzurat hadaf was formalized – having the index would be useful for tracking down the citation in the original. However, since most of these commentaries cite at least a few words from the Talmud in the process, it is a simple exercise to simply run the regular Bar Ilan search for those words. (Speaking of which, here is a pro tip for users: highlight the words for which you wish to search, press Control-R and the highlighted phrase will automatically be placed in the search box.)
Are these upgrades worth the cost? Based on the upgrade pricing scheme, it is always cheaper to postpone upgrading since the improvements are cumulative. Personally I try to skip no more than two versions since some changes are “under the hood,” like the option (available since at least 17) to install and run searches off of the hard drive instead of the disc itself. However, if there is a new feature or new sources which are of immediate use, then quicker upgrades could be worthwhile.
Since its initial release, the Bar Ilan CD has been one of the most powerful and versatile tools for Jewish research. But like any tool, its real value of utility is determined by the needs and skills of the end-user, not to mention the ability to read and comprehend the material. For what good is it to be a master of the wheat if we do not know how to harvest.
Rabbi Josh Yuter is the rabbi of the historical Stanton Street Shul in New York’s Lower East Side. He blogs at YUTOPIA (www.JoshYuter.com), and tweets @JYuter.
A Monumental Loss for Jewish Learning- Guest Post by Moriah Be’er Chriki, Yedidah Koren and Davida Klein Velleman
This post, crossposted from The Times of Israel, is the first in a series on the state of advanced Talmud study for women.
In a world just opening its eyes to the possibility of women’s advanced and committed Torah study, the closing of the Advanced Talmudic Institute at MATAN, an institution which pioneered women’s study of Talmud, is a tragedy.
In the past few decades, the gates of Torah study have been opened to women, tapping into a previously underutilized sector of our community. Our generation has been privileged to witness and experience tremendous progress in the religious education of women, as, one by one, institutes, seminaries, and houses of study for women were established and thrived as centers for learning and teaching Torah.
In accordance with these developments, today’s women have soared to new heights, becoming active participants in realms previously closed to them – as halakhic advisers, as advocates in rabbinical courts, and even as heads of batei midrash (houses of study).
As women who have devoted their time to Torah study, how fortunate have we felt to actively take a part in this world, one which was largely inaccessible to our mothers and grandmothers.
Unfortunately, these advancements are undermined with the closing of our beit midrash, the Advanced Talmudic Institute at MATAN, at the end of this year.
MATAN, the Sadie Rennert Women’s Institute for Torah Studies, was established in 1988. The Advanced Talmudic Institute began its first cohort in 1999, and is a leading program in advanced study for women. The Talmudic Institute offers its students the unique opportunity to delve deep into the world of the Talmud, using both traditional and modern methods to understand this literary and spiritual gem of Jewish tradition. Over the course of the three-year program, students hone their skills and broaden their knowledge, as they strive to impact the world of learning in particular, and society and culture in general. To help build these future scholars, educators, and religious leaders, MATAN offers students a living stipend.
The Talmudic Institute has proven itself over the years, as its graduates have filled a variety of roles in secondary school and higher education, both in Israel and in the United States, and brought sensitivity and knowledge to the religious leadership. This year, 12 fellows comprise the sixth cohort of the Institute.
But, at the end of this year, the Advanced Talmudic Institute at MATAN will be shut down prematurely. Despite the personal obstacles this has created for us, our greater concern is the implication this has for the wider Jewish community.
The Advanced Talmudic Institute at MATAN is one of the only programs for women in Israel that focuses on high-level Talmud study. Closure of the Talmudic Institute will be a huge step back in the world of Torah study for women. Not only will those seeking to learn suffer, but there will be a community-wide impact as well. This powerhouse for training women to be educators in institutions of Torah study will no longer be able to provide the Jewish community with talented and able female leaders. The institutions that have begun to open their doors to women will no longer be able to turn to MATAN to instruct and support aspiring students of Talmud.
Most of the current students at MATAN have studied Talmud in university and will continue to do so. Although we appreciate the important tools that world offers us, do we want to send the message to Jewish women that the only place they can study this most central text is in academia? A university setting cannot replace the beit midrash, which facilitates careful, intensive Talmud study in an environment that allows one to immerse oneself in its reality.
We are in the middle of a unique historical process that is changing the face of religious Zionist society. The women’s Torah-study revolution is not over; it has barely begun. We must not let it fade into the paleness of a face behind a curtain.
Moriah Be’er Chriki, Yedidah Koren and Davida Klein Velleman are fellows in the sixth cohort of the Advanced Talmudic Institute at MATAN.
The Bible in the Bavli: Some First Numbers- Guest Post by Michael Satlow
Over the past few months, as noted earlier, with the help of research assistants I have been compiling a spreadsheet that records each occurrence of a biblical verse cited in the Bavli. The purpose of this data is not so much to ask qualitative questions (e.g., where and how does the Bavli cite a particular verse?) but to allow for quantitative analysis that might lead to new questions and avenues of investigation.
As I slowly gain more familiarity with the many extraordinary but poorly documented powers of Excel, I’ve just begun to analyze this data. Here are a couple of preliminary observations:
1. The Bavli cites somewhere in the neighborhood of 5900 discrete verses of the Hebrew Bible. The Hebrew Bible contains approximately 23,700 discrete verses. That equates to about 25% of the Bible; meaning, of course, that 75% of the Bible is never cited. It is worth noting that 3,295 verses are cited only a single time in the Bavli. I am not yet sure what to make of this – one next step is to analyze the density of citations by biblical book. Does the Bavli prefer citing from certain books, especially when the size of the book is also taken into account.
2. The seven most-cited verses (with NRSV translations, and some surrounding material added for context) are:
- Deuteronomy 24:1 (37 times): Suppose a man enters into marriage with a woman, but she does not please him because he finds something objectionable about her, and so he writes her a certificate of divorce, puts it in her hand, and sends her out of his house; she then leaves his house and goes off to become another man’s wife.
- Numbers 5:13 (29 times): If any man’s wife goes astray and is unfaithful to him, if a man has had intercourse with her but it is hidden from her husband, so that she is undetected though she has defiled herself, and there is no witness against her since she was not caught in the act; if a spirit of jealousy comes on him, and he is jealous of his wife who has defiled herself; or if a spirit of jealousy comes on him, and he is jealous of his wife, though she has not defiled herself…
- Leviticus 25:5 (24 times): You shall not reap the aftergrowth of your harvest or gather the grapes of your unpruned vine: it shall be a year of complete rest for the land.
- Numbers 30:3 (24 times): When a woman makes a vow to the Lord, or binds herself by a pledge, while within her father’s house, in her youth, and her father hears of her vow or her pledge by which she has bound herself, and says nothing to her; then all her vows shall stand, and any pledge by which she has bound herself shall stand. But if her father expresses disapproval to her at the time that he hears of it, no vow of hers, and no pledge by which she has bound herself, shall stand; and the Lord will forgive her, because her father had expressed to her his disapproval.
- Leviticus 2:2 (21 times): After taking from it a handful of the choice flour and oil, with all its frankincense, the priest shall turn this token portion into smoke on the altar, an offering by fire of pleasing odour to the Lord
- Numbers 6:5 (21 times): All the days of their nazirite vow no razor shall come upon the head; until the time is completed for which they separate themselves to the Lord, they shall be holy; they shall let the locks of the head grow long.
- Leviticus 6:3 (20 times): When any of you sin and commit a trespass against the Lord by deceiving a neighbour in a matter of a deposit or a pledge, or by robbery, or if you have defrauded a neighbour, or have found something lost and lied about it—if you swear falsely regarding any of the various things that one may do and sin thereby— when you have sinned and realize your guilt, and would restore what you took by robbery or by fraud or the deposit that was committed to you, or the lost thing that you found…
Five of these verses deal with matters of civil law; three deal with women. Why these verses in particular, though? Verses dealing with some expected topics, such as Shabbat or circumcision, are absent.
I have some ideas for at least some of the verses. Deuteronomy 24:1-4 are the basis for almost the entire legal institution of divorce – the rabbis need to keep appealing to them for authority, perhaps at a time when most Jews would have respected the Bible far more than rabbinic say-so. Similarly, the sotah (“suspected wife,” in Numbers 5), issues dealing with female vows (Numbers 30:3), and the nazirite vow (Numbers 6:5) are dealt with only in these places and all generate a large body of laws. I am not yet entirely satisfied with these explanations, and would welcome yours as well!
Michael Satlow is a professor of religious studies and Judaic studies at Brown Universityand has been a mentor and sounding-board for the New Talmud Blog from the beginning. This post was crossposted from his own blog, Then and Now.
Simcha Emanuel’s “Responsa of Rabbi Meir of Rothenburg and his Colleagues”- Review by Pinchas Roth
Simcha Emanuel, Responsa of Rabbi Meir of Rothenburg and his Colleagues: Critical Edition, Introduction and Notes (Jerusalem: World Union of Jewish Studies, 2012)
Review by Pinchas Roth
The thirteenth century has a reputation for being a little boring. Coming after the roaring twelfth century – the era of Maimonides, Rabenu Tam and Ra’abad of Posquières – it may not have been a period of intensely creative Talmudic interpretation. But the second half of the 13th century was certainly a heyday for responsa (she’elot u-teshuvot). Two major rabbinic figures emerged during this period, and between the two of them, they wrote perhaps 4,000 teshuvot. Rabbi Solomon ibn Adret (Rashba) of Barcelona was the preeminent decisor for the Jewish communities of Iberia and Southern France, and he fielded questions from as far afield as Austria and even the Crusader stronghold of Acre. Rabbi Meir ben Baruch, better known as Maharam of Rothenburg, was also a prolific respondent who became the ultimate rabbinic authority throughout Germany. He continued to respond to Halakhic questions even after his imprisonment in Ensisheim (Alsace) in 1286.
Simcha Emanuel’s MA thesis from 1987 was devoted to a bibliographic analysis of the four printed collections of Rabbi Meir’s responsa (Cremona 1558; Prague 1608; Lemberg 1860; Berlin 1891, and also Teshuvot Maimoniyot). Of his many publications since then, it is worth mentioning two particularly significant ones. In the index of responsa from France, Germany and Italy, published by the Institute for Jewish Law at the Hebrew University in 1997, Emanuel included a series of lists providing parallels to every published responsum of Maharam. That is, for each of the responsa published in the four aforementioned collections, the list provides parallels throughout the printed literature of medieval Halakhah. In 2000, Emanuel published an article titled ‘Teshuvot of Maharam that are not by Maharam’ – passages in the Prague edition of Teshuvot Maharam that have no real connection to Maharam and were arbitrarily included by the editor.
This is the backdrop against which to appreciate Simcha Emanuel’s new book. First, by the numbers: two volumes, 1251 pages. 501 responsa, published from thirteen manuscripts. As the title implies, not all of the responsa can be attributed to Maharam, and they include new responsa by a number of authors both well-known and otherwise (many responsa are unidentified). In light of Emanuel’s study from 2000, this should come as no surprise, since all the medieval collections of Maharam’s responsa include work by others. For example, number 134 was apparently written by the unfortunate R Yaakov Savra, the first known rabbi in Krakow.
The book consists of three sections. First, each of the thirteen manuscripts is described in loving detail. Every attempt is made to explicate the date and location in which the manuscript was produced, and a great deal of information about the travails that each manuscript experienced is provided. For one poignant example – Emanuel identifies Solomon Hirschell as one of the previous owners of Sefer Sinai, a manuscript now in the Berlin Jewish Museum. He also points to the glosses from this same manuscript copied by Hirschell’s father, Rabbi Zvi Hirsch Berlin, into his copy of the Cremona edition.
The second part of the book is the main section, containing the responsa themselves. Emanuel added only minimal footnotes, most of which provide textual information without delving into the Halakhic or historical significance of the new texts. By doing so, he has left ample room for historians and other scholars to pick the fruits of his labour. Historians are already plowing through the edition, finding richly suggestive material.
The third section of the book may seem, to the reader, somewhat redundant. It contains a survey of the complete contents of each of the manuscripts utilized for the edition. The edition includes only new responsa that have not been previously published, but the final section provides details about every responsum in these manuscripts – where else it is found, in print and in manuscripts, and additional information it contains (usually, the poetic beginning or ending of the responsum that was often cropped in printed editions). The significance of this section is in the data it provides for scholars searching for all the textual witnesses of any given responsum. Generations of editors have neglected this kind of labour-intensive cataloguing, preferring to focus their efforts on the new and unfamiliar.
The absence of lists like this is sorely felt by anyone doing textual work on medieval responsa, especially collections that are found in multiple manuscripts like those of Rashba. Rashba’s responsa were recently republished in two separate editions, with dozens of newly published texts. But much of the manuscript work that went into these editions was wasted, since the new editions contain no information about which manuscripts contain the hundreds of responsa that have already been published. For someone interested in textual variants, or in the additional information found in manuscripts such as the addressees of the responsa, these new editions are frustrating and tantalizing rather than helpful. Hopefully, Simcha Emanuel’s work will set a new standard, and editors will begin to provide full documentation about the sources they used. Not only identifying the manuscripts accurately (a point on which editors are beginning to improve), but also providing full information about those manuscripts, and about all the details they contain, even when those details seem trivial.
The scholarly community should be grateful to Simcha Emanuel for providing a flood of new primary sources for the study of medieval Ashkenazic Halakhah, and for placing a high bar for future editors to aspire to.
Pinchas Roth is a graduate student in the Talmud Department at Hebrew University, Jerusalem.
A Moving Target- Guest Post by Chaim Saiman
The View from There
As part of the Talmud Blog’s efforts to foster dialogue between and beyond the various academic fields in which rabbinic literature is studied, we present to you “The View from There” a series by scholars from beyond classic academic talmud study. The following explanation of the legal-theoretical approach to halakha (and the legal nature of rabbinic literature) grew out of a recent conversation between Shai and Chaim Saiman.
The old saw is that in the academy they tell you what Abayye wore while in yeshiva they tell you what he said. There is no doubt that what he wore and what he said are related and influence each other—they must. Indeed, to a large extent you can’t really understand what he said without understanding the world in which he said it, especially if what Abayye “wore” includes the entire social and intellectual world that he lived in.
Here is the issue: Most people are not interested in what Abayye the man said. The more sophisticated you are about the composition of the Bavli, the harder it is to sustain that notion anyway. My academic Talmudist friends tell me that we know very little about the chain of events from Abayye the man and his words to the text that made its way into the Bavli. As a lawyer and legal scholar interested in halakha and the cultural/intellectual world it reflects and produces, I tend to study what he said (if there was a “he”) as filtered through a tradition of interpretation, mediated through the stam/savoraim/rishonim/aharonim, as well as academic Talmudists. Each of these abstractions in turn simply masks thousands of other personalities with specific localized histories, influences and agendas. Thus to make any sense of halakha and its protracted development we would have to understand not only what Abayye wore, but what Rashi, Tosafot etc., “wore” as well. Such a project is not only nearly impossible, I am not even sure it is desirable. Besides, at some point don’t all these influences and counter-influences, histories, and counter-histories, agendas and counter agendas regress towards some kind of mean?
In the end, most of us study something like “the moving average” of the interpretation of particular statements. Now it is true that some scholars (generally historians) are more interested in examining the inflection points of that trend, and others (traditional conceptual readers, i.e. lamdanim, and legal theorists) are more interested in analyzing the broad sweep, each with their own set of conceptual categories. Further, while legal theorists acknowledge that taking note of and recovering past inflection points can be influential in shaping present ones—this is true precisely because we assign normative weight to materials of the past. But it is a long step from here to the claim that one can recover the true social meaning of any of these texts in their “native” context—especially since this is invariably done with an eye to the present.
The process of law involves making normative arguments about the present by appeal to sources of authority from the past. While we allow rules of the past to make normative claims on the present, the price they pay for this honor is that they are filtered though the present interpretive assumptions. True, present assumptions can and often do contain contain a healthy dose of historicism, but since law incurs normative demands, the history will always be infused by the normative needs of the now. Hence a standard legal argument for position “X” would be that X is superior to Y because (i) its normatively superior; (ii) is produces better results; (iii) it represents a more coherent understanding of the governing legal materials; and (iv) X was classically understood to be the correct answer in the period A before the Z’s (influenced by B) shifted the understanding to Y. A lawyer has no qualms making the historicist argument of number (iv), but in conjunction with other forms of argument, and always with an eye to the present normative question. “History” is simply another form of normative legal argument, and its salience is in part determined by how well it fits into the tradition of interpretation.
Perhaps another way to think about this is to bracket the “history” part of this question entirely. Take the very clear and important shift in interpretive assumptions that has taken place in US law before our very eyes: from the liberal purposivist method of statutory interpretation of the 60’s and 70’s, to the conservative textualism that now reigns supreme.
Even living in this culture, and being well-positioned to understand its legal and political dynamics, we can tell at least 10 different stories about why this took place, from the reductively materialist, to the wildly idealist; from returning to the Founder’s view of separation of powers, to the takeover of the judiciary by conservative ideologues determined to entrench the interests of the propertied elite. And each of these narratives will be shaped in part by whether we think the shift from purposivism to textualism is a good or bad thing, and as part of an overall argument of whether we should continue or abandon the current interpretive modality. The question of what motivates legal and political decision-making is hotly contested even when all the “facts” are known: why then, do we think that we can find a few lines from the Bavli, a few from the Digest, and tell a story about what is “really” happening underneath?
I am writing this in stronger terms than I actually believe, but I think it’s worth putting front and center when we consider the interrelationship between legal theory, traditional conceptual and source critical approaches to the Talmud. Thoughts?
Chaim Saiman teaches contracts, statutory interpretation and Jewish law at Villanova Law School. He is currently at work on a book tentatively titled Halakhah: The Rabbinic Idea of Law.
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