Governmental and Judicial Ethics in the Bible & Rabbinic Literature
CHAPTER I – THE CONCEPT OF LAW IN THE BIBLE AND TALMUD
Subjects reviewed in Chapter I
Introduction: Election; Law, Covenant - The Bible and the Law of Government: The Sinai
Event, Function of the Law, Scope of the Law, Results of the Law, Guidelines, Law Often
Disregarded, Ezra"s Reform Work, Summary - Postbiblical and Talmudic Concepts of the Law of
Government: Evidence from Apocrypha, Evidence from Josephus, Torah Included Scripture and
Tradition, Continuity of Tradition, Rabbinic Channel of Tradition, Turbulent Times, Crucial Role of
the Sages, The Talmud, Summary - Law of Scholar and Community: Function of Legislation, "Good
Order", Changing Times, The "Will of the Majority", Summary, Conclusion
Introduction
According to rabbinic tradition, there was no time in the history of the Hebrew people when they did not have a special “law.” The biblical evidence quoted in support of this idea was that Abraham, with whom the Hebrew people began, was said by God to have obeyed his laws.1 Abram’s first recorded deed in history2 after the death of his father was his response to God’s instructions.3 Abram, according to the biblical account, continued to obey God all his life. As a result, God called him “My friend,”4 blessed him abundantly5 and established a covenant with him and his descendants.6 From the very beginning there was a direct connection between God’s instructions to Abram, e.g., “Go from your country . . .” (Gen. 12:1), and his promise as covenanter, “I will establish my covenant between me and you and your descendants . . .” (Gen. 17:7). Hence it follows that the divine covenant required Abram and his descendants to obey the divine law in all its ramifications.7
Election
The connection between God’s instructions to Abraham and his descendants and his promise to them is aptly described by the word “election.”8 God chose to give Abraham and his descendants specific instructions which He did not give to anyone else. He also chose to make specific promises to them which He did not make to anyone else. He chose the Hebrews to be His special people. This choice was neither predicated upon nor implemented by their inherent worth, as their early history subsequently showed.9 Neither was it determined by natural lineage once it had been made.10 Yet, by God’s determination, there was to be a reciprocal relationship between him and his people. As for God’s part, He had said to Jacob, “. . . I will not leave you until I have done what I have promised you.”11 He promised faithfulness to His covenant. As for their part, they were to give heed to God Almighty as He had spoken to Abram, “Walk before me, and be blameless.”12 They were to be faithful to God’s instructions and guidance. Thus, reciprocity was to come about as God’s chosen people faithfully responded to His election.13
Law
A highlight in the historical development of this process occurred at Sinai. The God of the Hebrews identified Himself as the “I AM WHO I AM” (Ex. 3:14). He had brought them to freedom by the hand of Moses. He had encouraged them with the promises of the covenant. He had tested them by statute and regulation.14 They had become organized and able to cope with judicial matters.15 Then, in a manner commensurate with their identity as a nation of God, they were given a national law by God at Sinai.16 “And Moses wrote down all the words of the Lord. . . Then he took the Book of the Covenant and read it in the hearing of the people; and they said, ‘All that the Lord has spoken we will do, and we will be obedient!’”17
These introductory remarks show that the concept of law in the Bible is basically and essentially a theological concept. To the Hebrews, the law is nothing more nor less than the expressed will of God for His people. “We will be obedient” is the ideal response to that law by which His people would consummate their election and receive the benefits of all the promises of the covenant.
Covenant
God chose Israel. “The relation between Israel and YHWH is a covenant relation. . . . YHWH’s relation to Israel could be conceived of only in terms of election and free choice.”18 Israel was to acknowledge him uniquely with the words, “The Lord is our God, the Lord is one!”19 The Torah possessed its validity within this theological framework. God expressed His claim of kingship over His people by means of the Torah; they were to acknowledge this sovereignty by willingly submitting to God’s will as expressed in the Torah. This background opens up the way for a consideration of the divine law of government for the Israelites.
The Bible and the Law of Government
The law of government has always been essential for the survival of the human race. Without law there can be no government. Without government there remains the self-destruction of anarchy.20 Therefore, one of the elements of an enduring civilization is the law of government. Throughout history there have been various forms of government among men, e.g., absolute or constitutional monarchy, dictatorship, oligarchy, and democracy. In antiquity, theocracy was very common. Awareness of this is important for this study since ancient Israel was a theocracy.21
In most cases, the form of government by which a particular nation is governed is a clue to its basic beliefs about humanity in particular and reality in general. Chapter I is concerned with the law of government as found in the Bible and is a study of a system which had as its basic premises the reality of a divine being, the great worth of each individual, and the possibility of harmony between that divine being and His chosen nation by means of its willing submission to His revealed, written law.22
The Sinai Event
For Israel, the will of God was the law of the land. They were His people, and He was their God. He had said to them, “Now therefore, if you will obey My voice and keep My covenant, you shall be My own possession among all peoples; for all the earth is Mine . . . ”23 The Israelites were convinced that by the historical unveiling of Himself 24 and of His law at Sinai, God had established an intimate communication with His nation. Therefore, the subsequent articulation of the law, with all its varying ramifications, received its ultimate meaning and its absolute authority from the Sinai event. They perceived the law as God’s gift to His people to govern them in a way and manner befitting a people of God. In other words, the sovereignty of God over
His people was made clear in the law, and their acknowledgment of His sovereignty over them was to be expressed in their submission to His law.25
Function of the Law
The function of the law needs to be examined. Its goal was to mold the Israelites into a law-abiding, morally superior nation, serving God by following a law designed to promote justice and loving-kindness among men. Thus, the order of government projected by the law was, in essence, a divine order. To the Israelites, the law was the dynamic expression of a sovereign God by which He creatively instructed, guided, warned, and rewarded His people. Their adherence to this law was a visible confirmation of a transcendent God acting in history; it confirmed His election of His people.
The function of the law can be understood more clearly when viewed against the background of other prominent legal systems of the ancient Near East. Finkelstein explains that the misharum institution in the Old Babylonian period and earlier applied to enactments by the kings aimed at economic reform or adjustment.26 In discussing a text of the Sippar material acquired by the British Museum in the latter part of the nineteenth century, he finds that this institution served, in many respects, the same function as the biblical “jubilee land release” laws (Lev. 25:28 ff.).27
This same attitude of concern for redemption of patrimonial land is seen in some of the Eshnunna laws, e.g., “If a man is hard up and sells his house, the owner of the house shall (be entitled to) redeem (it) whenever the purchaser (re)sells it.”28 This closely parallels the biblical provision for land redemption found in Leviticus 25:25-27.
The above examples point to the function of law in the ancient Near East in attempting to provide a measure of equity in real estate matters. Further parallels may be noted between biblical law and other Near Eastern laws with regard to person, e.g., “If a seignior has stolen the young son of a(nother) seignior, he shall be put to death.”29 This has parallels in Exodus 21:16 and Deuteronomy 24:7.
There are also interesting examples of legal consideration given to domestic matters.
For example: “If a man married a wife (and) she bore him children and those children are living, and a slave also bore children for her master (but) the father granted freedom to the slave and her children, the children of the slave shall not divide the estate with the children of their (former) master.”30 This law compares favorably with the episode recorded in Genesis 21.
The above examples from various Near Eastern law formulations show that those laws, paralleled in principle in biblical law, offered some measure of protection against injustice, recourse to judicial procedure, and deterrent to crime. In other words, the examples show the laws contributing to the functioning of an orderly society, whether considered as idealized models of behavior in some cases or as operative legislation.
Finally, when one refers to the “formative nature” of biblical law, more is involved than the common traits of the various law systems of the ancient Near East and their biblical parallels, as illustrated above. This is nowhere more apparent than in the formulation of the direct address of biblical apodictic law. According to Shalom M. Paul, formulation of biblical apodictic law has as its purpose “to shape and form a society, not to state cases and provide remedies....This direct address formulation, while found in several literary genres, is not present in any of the cuneiform juridical corpora, but is unique to biblical legal compilations.”31
Through this means, especially, the biblical law helped to shape Israelite society. As Paul states, “though these apodictic formulations deal primarily with moral and religious commandments, the question still remains as to why they are part and parcel of biblical jurisprudence and are noticeably absent from all Mesopotamian corpora. Once again a unique aspect of a society is explicable only in terms of its entire complex. The Israelite society was founded on a covenantal agreement based on the will of God, who expressed his demands in covenant law declared publicly to the entire community. By making his will personally and directly known to man, an I-Thou relationship is established which characterizes the unique feature of this newly founded nation. Moral and religious prescriptions are directed to each and every member of this nation in categorical imperatives. The constitution for this new polity (i.e., covenant law) incorporates and emphasizes both customary civil law (i.e., casuistic formulations) and moral-ethical admonitions together with religious-cultic obligations (i.e., apodictic formulations). However, whereas casuistic la\x deals with precedent and what is, apodictic commandments express what must and ought to be. It addresses man a priori as to what is right or wrong. It is prescriptive not descriptive, prospective not retrospective, absolute not relative, categorically imperative and obligatory not conditional, subjective and personal (‘Thou shalt [not],’ i.e., I-Thou) not objective and impersonal (‘If a man . . .’). – God’s will not man’s. Its purpose is to shape and form a society, not to state cases and provide remedies. No time limit is placed on its demands. Sanctions are absent; yet it appeals to the conscience of the individual for constant obedience and fidelity. It is preventive and precautionary, obliging the responsibility of every member of the community. Hence, to impersonal legislation is added feeling; to the intellect, the heart; and to the letter of the law is added the spirit and values of metajuristic principles – together they constitute the charter of the people of Israel. The apodictic commandment, the I-Thou relationship found only in biblical legal corpora, would seem to be Israel’s contribution to the ‘theology of jurisprudence.’”32
Scope of the Law
With the foregoing in mind, it is clear why one of the uniform characteristics of the law of government in the Bible is the close relationship of the legal, moral, and ethical norms.33 The ethics of government found in the Bible were essentially God-given principles for holy living, while the morals of the government became the actual expressions of those principles in everyday conduct, at least in theory. Thus, the legal, moral, and ethical demands laid on the people were closely related in that they were all backed by the authority of God and all came to the people by the same route of revelation. In Hebrew thinking, compliance with a legal, moral, or ethical principle was actually a response to the divine will.
All of this meant that the total lives of the people were subject to the law of government. This is another way of saying that the nation, as well as each individual in it, was “under God.” The phrase “under God” in this context is well illustrated by Shalom M. Paul in his description of several traits of biblical law. An abbreviated list of these traits follows:
1. Since law is an expression of the divine will, all crimes are considered sins.
2. The whole of one’s life is directly related to the will of God.
3. Since God is the sole legislator, Israel is held responsible to Him and not to any human ruler or legislative body.
4. God selects the entire corporate body of Israel to be the recipients of His law.
5. Publicity is the hallmark of the law. It is not restricted to any professional class of jurists, lawyers, or judges (Ex. 21:1).
6. Law becomes a body of teaching directed to the entire community.
7. Since man is conceived as being created in the divine image, the sacredness of a human being becomes a primary concern of the law.
8. Whereas biblical legislation demands a “life for a life,” brutal and multiple punishments are all but absent from Israelite law.
9. Since all men are created by God and thus stand equal before him, class distinction is rejected in the meting out of justice.
10. The sole exception to the principle of equal justice as exemplified in lex talionis is the slave (Ex. 21:2-6, 20, 26-27); yet all the laws pertaining to slaves are concerned with furthering their protection and preserving their human dignity.34
Paul reminds the reader that these features pertained primarily to the theory of biblical law rather than to its actual practice, “about which there is a paucity of information.”36 Thus, society as a whole was motivated, at least in theory, to remain loyal to God and to take the initiative in restraining lawlessness.
This merging of law, morality, and ethics in the everyday life of the individual and in the corporate life of the nation served to accomplish one of the main goals of the Torah – the maintaining of that unique tie between God and Israel. When the total person responded fully to God’s law, this meant that nothing was withheld, whether religious, social, legal, moral, or ethical.36 The Israelites saw the bond between God and them as complete and verified by the fact that God had revealed Himself in His law and His elected people had responded to that revelation in willing obedience. Thus, the prime motive for keeping the law was a responsive, loving obedience to the One who gave it – God.
Results of the Law
To keep the commandments of the Lord was to recognize that those commandments were absolute, given authoritatively by a divine sovereign. The positive commands required specific action; the negative commands required specific restraint.
Encouragement to obedience was provided by promises of blessings; warnings against disobedience took the form of threats and punishment. For example, blessings of life, well-being, longevity, and inheritance were promised for obedience.37 On the other hand, capital punishment was prescribed for many cases of law violation,38 and other kinds of disobedience brought on various forms of severe penalties.39 These examples highlight the underlying principle of the law of government in the Bible. It was of God.
It has been mentioned that the Israelites saw the Sinai event as the historical occasion when they received the law from God.40 In addition to the Decalogue which Moses received for the people on that occasion, he was instructed by God, who said, “But you, stand here by me, and I will tell you all the commandments and the statutes and the ordinances which you shall teach them, that they may do them in the land which I give them to possess.”41
Eventually, these commandments, statutes and ordinances were, in written form, referred to by the Hebrews as “a copy of the Law of Moses.”42
Guidelines
The Law of Moses provided the guidelines for the Israelites in all the areas of their activities. This was the case whether the activity was religious, civil, moral, ethical, or social.43 This was also true regardless of the position of the particular person through whom the law was being articulated, providing, of course, that person was authorized to teach and interpret the law. It has already been pointed out that according to the Bible and rabbinic tradition, God directed the Hebrews beginning with the patriarchs. Then He gave them a law through Moses, whose authority was validated.44 Under the law the priesthood was assigned major responsibilities, and Aaron, as the first high priest, was declared, along with his posterity, as having the position of authority in the priesthood.45 However, all of their duties were prescribed by the Law of Moses, even in the details of the different offerings.46 Then, as has been pointed out, Joshua set the Law of Moses before the people, urging them to “fear the Lord, and serve him in sincerity and in faithfulness” (Josh. 24:14a).47
According to I Samuel, chapter 3, the Word of the Lord was revealed to Samuel,48 who, in his own person, marks the transition from the age of the Judges to that of the Prophets. It was Samuel who chose Israel’s first king. At that time Samuel solemnly charged the people and warned them that disobedience to the command of the Lord would cause both king and nation to be swept away.49
Law Often Disregarded
The emergence of kingship in Israel did not mean that the law of government would be altered. Indeed, the law had already provided for the eventual transition to the agency of kingship as a channel through which God’s law of government would continue to be effective. The law was very precise in stressing that when a king came to the throne in Israel he was to be subject to the law if he expected to be blessed and continue his dynasty.50 The king’s relationship to the law was expressed by de Vaux as follows: “. . . the king could add nothing to the authority of a law to which he himself was subject (I K. 8:58; II K. 23:3). There was no such thing as State law in Israel. . . . On the other hand, the king was a judge, and held judicial power.”51
In spite of this instruction, however, the ideal relationship of king to law often remained merely theoretical. During the time of kingship among the Israelites the Law of God was often lost sight of by king, prophet,52 and priest. This is illustrated by the fact that the law had been literally lost for a long period.53 But even when it was available, “the words of the Lord” were rejected and the scroll on which they were written were literally cut into shreds and burnt.54 In addition, the prophet Ezekiel spoke against the priests of his day, saying, “[The] priests have done violence to my law and have profaned my holy things . . .”55 At times, in fact, the very people who were supposed to be the channels through which God’s law was made known to the public were denounced by the prophet speaking in the name of God. Thus Jeremiah maintains: “The Priests did not say, ‘Where is the Lord?’ Those who handle the law did not know me; the rulers transgressed against me; the prophets prophesied by Baal, and went after things that do not profit.”56
This kind of rebellion against their law of government eventually led the Israelites to disaster. The kingdom of Israel fell to the Assyrians,57 and the kingdom of Judah was conquered by the Babylonians.58
Ezra’s Reform Work
Following the Jewish return to their homeland from Babylonia, God’s law of government was strongly emphasized.59 It was apparently at this time that the new profession of the Scribes flourished among the Jews, which had as its raison d’etre copying, studying, and teaching the law.60 It was said of the greatest of the Scribes, Ezra, that he “had set his heart to study the law of the Lord, and to do it, and to teach his statutes and ordinances in Israel,”61 and that “He was a scribe skilled in the law of Moses which the Lord the God of Israel had given . . .”62 The importance of Ezra’s place in the history of Judaism and in the structuring of the law is affirmed by Albright in the following words: “He [Ezra] seems to have played an important role in establishing the canonical Torah as the normative rule of Israel’s faith. . . . It seems highly probable that it was Ezra who introduced the complete Pentateuch into normative Jewish use. . . . In another direction we may credit Ezra with original literary compilation. . . . It is highly probable that Jewish tradition is in principle correct in identifying Ezra with the Chronicler.”63
Under his tutelage the Law of Moses became the governing force for the Jews in their homeland. It is likely that it was only from his time on that the Law of Moses was effectively imposed on the people, thanks to the authority granted to Ezra by King Artaxerxes I.
“And you, Ezra, according to the wisdom of your God which is in your hand, appoint magistrates and judges who may judge all the people in the province Beyond the River, all such as know the laws of your God; and those who do not know them, you shall teach. Whoever will not obey the law of your God and the law of the king, let judgment be strictly executed upon him, whether for death or for banishment or for confiscation of his goods or for imprisonment.”64
During Nehemiah’s tenure as governor, Ezra saw to it that the law was read publicly and explained so the common people could understand it.65 As a result, the people confessed their sins and rededicated themselves according to the law of the Torah, and the men pledged separation from their foreign wives.66 Thus, the Law of Moses became an effective force of government for the people.
Summary
The foregoing discussion has traced the law of government in the Bible from Abraham and the patriarchal period to Ezra and postexilic times. It is evident that a basic theological belief of the Hebrews was that Torah, as a revelation of God’s will, was not only expressed by God directly, as to Moses at Sinai, but was often transmitted to the people by way of prophet, priest, and judge. It is also apparent that the word Torah was used in a variety of ways. In some instances it was merely a specific regulation about a particular matter.67 Sometimes it was identified as the standard which had been violated.68 And it has certainly been stressed that Torah was a “book of the law” which one had to study and obey in order to be successful; e.g., the instructions to Joshua: “Only be strong and very courageous, being careful to do according to all the law which Moses my servant commanded you; turn not from it to the right hand or to the left, that you may have good success wherever you go. This book of the law shall not depart out of your mouth, but you shall meditate on it day and night, that you may be careful to do according to all that is written in it; for then you shall make our way prosperous; and then you shall have good success.”69
This, then, was God’s law of government for the Israelites as perceived by them. Its mode of expression varied from time to time throughout the long course of history, and was not its essential characteristic. Its unique feature was its revelatory character, and its supreme authority was due to the divine source from which it came – YHWH.
Postbiblical and Talmudic Concepts of the Law of Government The concept of the law of government in the Talmud is more complex than the concept of the law of government in the Bible. In order to more effectively come to grips with the complexity of the law of government in the Talmud, it will be helpful to see the Torah from a rabbinic point of view.70 At the outset it is easy to conclude from an examination of some textual evidence that there continued to be a great emphasis on Scripture as law; and, in concomitant fashion, the necessity of obedience to the law remained prominent in Jewish writings.
Evidence from the Apocrypha
The postexilic period of Jewish history provides documentary evidence of these features in the apocryphal writings. For example, one finds a call to “even greater progress in living according to the law” in the following appeal: “Whereas many great teachings have been given to us through the law and the prophets and the others that followed them, on account of which we should praise Israel for instruction and wisdom . . . those who love learning should make even greater progress in living according to the law.”71
This encouragement “in living according to the law” in the postexilic period was more than mere suggestion. Obedience to the commandments of God was bluntly set down as the only way to live. With reference to Torah, it was said, “She is the book of the commandments of God, and the law that endures for ever. All who hold her fast will live, and those who forsake her will die.”72
In addition, the apocryphal-historical work of I Maccabees throws light on the emphasis which was being given to law with reference to religious ritual and life. When the Temple was being purified and renovated for worship under the direction of Judas Maccabeus, it is said that “He chose blameless priests devoted to the law, and they cleansed the sanctuary and removed the defiled stones to an unclean place. . . . Then they took unhewn stones, as the law directs, and built a new altar like the former one.”73
This careful attention that things be done according to the law by those who were devoted to the law indicates that the Jews, in spite of the disruption of society during their struggle for independence, still clung to the conviction that life must be lived according to Torah, and that worship rituals and religious institutions should reflect this commitment.74
Evidence from Josephus
It is true that the exigencies of Diaspora life motivated Samuel to rule in the third century that the Jews were to regard the civil law of the land as binding on themselves.75 However, as noted below, this was to be the case only if the civil law was consistent with the principles of Judaism. The basic commitment to Torah as God’s law of government for the Jewish people continued to be their supreme standard. The reason for this commitment and the extent to which it would go was stated by a Jewish historian who lived to see the destruction of the Second Temple. He said, “We have given practical proof of our reverence for our own Scriptures. For, although such long ages have now passed, no one has ventured either to add, or to remove, or to alter a syllable; and it is an instinct with every Jew, from the day of his birth, to regard them as the decrees of God, to abide by them, and if need be, cheerfully to die for them.”76
Thus, it is clear from documentary sources subsequent to the building of the Second Temple, and extending down in history until the time of the destruction of that Temple, that the Jews never lost sight of Torah as God’s law of government for them.
Torah Included Scripture and Tradition
It is now time to stress the fact that in postbiblical Judaism the concept of Torah was broad enough to include all the Hebrew Scriptures identified as Torah (Pentateuch), Prophets, and Hagiographa, as well as the Oral Tradition. Torah was viewed as the entire Mosaic Law, and from this basic meaning the view of Torah was extended to include the other biblical writings, primarily because they were in harmony with the pentateuchal scriptures. Their basis of authority was their agreement with them. In addition, “the ‘traditions of the elders’ – rules of Jewish life and religion which in the course of centuries had come to possess a validity and sanctity equal to that of the Written Law and which, as the ‘Oral Law,’ were deemed, equally with the Written Law, to be of divine origin and therefore consonant with and, for the most part, deducible from the Written Law.”77
According to the Tradition, this Oral Law was received by Moses at Mount Sinai and subsequently transmitted from him to Joshua.78 He committed it to the elders.79 The elders passed it on to the prophets.80 The prophets gave it to the men of the Great Synagogue.81
Continuity of Tradition
This continuity was important for the Jews because it assured them of the authoritative nature of the Oral Law. Unfortunately, the identity of the men of the Great Synagogue is shrouded in obscurity. Ezra, traditionally connected with this governmental body, was called the Scribe. The work of the Scribes and their relationship to this governing body and the governmental process in general are very vague until about the time of the Hasmoneans. Herford describes the situation which existed at that time as follows: “In the rabbinical tradition a council was founded by Ezra which lasted for many years. The scanty references to it indicate the assembly mentioned in Neh. iv, x. No such permanent council can be shown to have existed; but the tradition is not wholly worthless. The term ‘Great Synagogue’ may be taken to denote the early Scribes (Sopherim), who developed the religion of Torah on the lines and in the spirit of Ezra, for several generations after his time.”82
Furthermore, the continuity of the transmission of the Oral Law from the days of the Great Synagogue until the dawn of the common era is implied in the opening passages of tractate Aboth. In fact, the tradition has it that from about 160 B.C.E. until the common era the transmission of the Oral Law was through the “president” and “vice-president” of the Sanhedrin from generation to generation.83 On the basis of this “chain of Tradition,” the Rabbis stressed the “Mosaic” basis of their authority.
Rabbinic Channel of Tradition
During these centuries the Midrash process was going on. The exegesis and interpretation of the law was accompanied by a growing body of kabbalah (tradition) which was also authoritative in nature. The channel through which this comprehensive process continued to have its expression was rabbinical. The halākhāh which was produced by the Rabbis in the earlier periods was relatively uniform. This was because the Great Sanhedrin of Jerusalem rendered decisions by majority rule in cases where there was some doubt as to the design of a particular law. However, as times became more tumultuous for the Jews, and especially from the period of the Hellenization of the East onward, Jewish life faced challenges from outside influences it had never faced before. There also developed within Judaism a vigorous debating process with respect to the law which showed itself vividly in the different sects which emerged, such as the Pharisees and Sadducees. Thus, the Pharisees upheld the binding validity of the Oral Tradition; the Sadducees denied it.
“Better educated generally, and more strict than the average Pharisee, the Sadducees accepted the Written Law as binding under all circumstances. New laws and new institutions had, to them, no true authority. Thus they rejected legislation enacted to deal with the existing situations of a changed world. Every action, statement or belief must have the direct authority of the Scriptures or they would have none of it.”84
After Palestine fell to the Romans in 63 B.C.E., and the authority of the Great Sanhedrin was greatly reduced, the diverse activity of the rabbinical scholars was manifested in opposing schools like those of Beth Shammai and Beth Hillel.85
Turbulent Times
After the destruction of Jerusalem by the Roman general Titus in 70 C.E., the Great Sanhedrin no longer existed. After considering the evidence and admitting the existence of alternative views, Hoenig speaks of the exact date of the dissolution of this important body in the following words: “All proof . . . leads to the conclusion that the Great Sanhedrin functioned in Jerusalem until the beginning of hostilities in the Revolt against Rome. The exact date when the Great Sanhedrin was dissolved may be set as 66 C.E. – four years before the destruction of the Temple.”86
Rabbis and rabbinical schools were scattered. The features of the early halākhāh under a powerful Great Sanhedrin, anonymity and uniformity, were no longer possible to maintain. The threat to the survival of Jewish law as it had come to be was very real. The destruction of much of the framework within which Jewish law had developed was decisive in determining its future evolving process.
Crucial Role of the Sages
The Sages continued to play a crucial role in these and subsequent times. The rationale for their role was grounded in the written Torah itself. 87 Rabbinical comment on Deuteronomy 17:9 indicates they saw it as a mandate to the Sages for preservation, expansion, and implementation of the law in every age, “Can we then imagine that a man should go to a judge who is not in his days? This shows that you must be content to go to the judge who is in your days. It also says, ‘Say not, How was it that the former days were better than these.’ (n. I.e., had better judges than these. Eccl. 7:10).”88
Thus, the Rabbis worked under a strong feeling of commitment to divine directive. However, they did not assume beyond their human powers. They were opposed to direct aid in their task, such as visions, heavenly voices, or prophetic utterances inspired by God.89 They saw the written Torah as the foundation for the entire Jewish legal system, having its binding authority by virtue of its divine source at Sinai. Therefore, the extensive work of all the halakhic scholars in their continuing development of Jewish law was theoretically in agreement with the principles enunciated in the written Torah. If, on occasion, laws were created without pentateuchal authority, they were nevertheless valid if the motive for their enactment was “to make a fence for the Torah.”90
The Talmud
At about the beginning of the sixth century C.E.91 the enormous quantity of rabbinical material found in the Mishnah and Gemara was brought together in redacted form into a comprehensive corpus known as the Talmud. One theory holds “that such material had been edited early, each part arranged around its particular mishnah in a precise and finished manner and phraseology. . . . This continual process of Talmudic redaction, begun in the second Amoraic generation, after Rav and Samuel, was carried on till the time of R. Ashi.”92
Summary
In this section the evolution of Jewish law has been stressed, and the historical path by which the Babylonian Talmud came to be virtually the infallible source for the law of government in Judaism has been outlined.93 It has also been shown that the end result of this historical process, the formation of the Talmud, was the direct consequence of the work of the Rabbis from the age of the construction of the Second Temple to the end of the age of the Savoraim.94
Throughout this long process, the Rabbis understood that the force and authority of the halākhāh was its continuity. Thus, as the halākhāh grew, they were concerned that every rule or regulation added to the body of legal literature sprang, either directly or indirectly, out of its divine origin, the written Torah, or from other halakhot which had in turn originated from the Torah. Therefore, it was outside the perspective of the Rabbis to view their work at any stage as a revision of previous work. Rather, they saw their effort in each successive age as a work of continuity. Thus, when the Talmud was finally assembled in its redacted form, it was, by virtue of the philosophy of the scholars who produced it, a compilation. This helps to account for the presence of the contradictory opinions rendered by Rabbis.95 It also helps one to understand why the enactment of additional laws after the “closing” of the Talmud was in no way contrary to the basic perspective of the Talmud itself.96
Law of Scholar and Community
The foregoing has dealt with that sequence of historical events which eventually led to the establishment of the Talmud as the law of government in Judaism. It also traced the philosophic concepts of the Rabbis, such as the conviction concerning the divine origin of Torah and the principle of continuity of halākhāh in each succeeding age as it grew out of and expanded upon the written Torah. Attention is now turned to one aspect of this dynamic process to illustrate the rationale behind specific laws relating to governmental or judicial ethics and the methodology by which these laws were enacted.
Function of Legislation
Legislation has the function of inaugurating a legal standard where none existed before. Or, where laws already exist which bear on a particular matter, legislation may be designed to repeal or alter existing laws. In the continuing halakhic system of Judaism, legislative objectives were accomplished by a takkanah (enactment) or a gezerah (decree). The takkanah was a legal source of Jewish law, and, when enacted by Sages, carried the force of law.97 It was positive in emphasis, encouraging positive action. The legislative action of the gezerah, on the other hand, was preventive in nature, and usually thought of as “making a fence around the Torah.”98 A brief overview of the historical process of takkanah follows, showing the continuous dynamic aspect of the law of government in Judaism. This kind of development was done by Sages who were convinced that the highest source of Jewish law, the Torah, delegated this authority to them.99
Takkanoth
The principle of takkanah was seen by the talmudic scholars as going back to pre-Sinaitic times. For example, the Rabbis saw their practice of prayers as originating with Abraham, Isaac, and Jacob.100 They also took note that after the law was received at Sinai, takkanoth continued to be enacted by prominent leaders of Israel. Joshua's action at Shechem, when he “wrote these words in the book of the law of God,”101 was an example of takkanah which the Rabbis taught as one of the many coming from this great leader, who, upon his entry into the land of Israel, “laid down ten stipulations.”102 The takkanah tradition continued into the time of kingship, as illustrated by the ruling of King David concerning the sharing of booty by the soldiers during a time of war.103 The tradition of the Sages shows that the role of takkanoth continued to have a vital place in legislation after the period of the exile.
A large number of these takkanoth are found in the public, criminal, and civil areas of Jewish law. Those prescribed before the destruction of the Temple and Jerusalem were usually anonymous because they were rulings of the Great Sanhedrin. Occasionally, however, the leading Rabbi of that court is associated with a particular takkanah. For example, “In former times a man was allowed to bring together a Beth Din wherever he was and cancel the Get. Rabban Gamaliel the Elder, however, laid down a rule that this should not be done, so as to prevent abuses.”104
Rulings by a Nasi and the Beth Din after the destruction of the Temple and throughout the entire tannaitic period (ca. 1-220 C.E.) set a pattern for the type and direction of the halākhāh for hundreds of years.105
Amoraim
In matters of law, the later Amoraim worked out of this framework, but did add a greater legislative dimension to the work of the tannaitic Sages, as the following examples show. They bolstered the Torah injunction “you shall do what is right and good”106 with decrees which supplemented the existing laws for greater justice, especially in social and economic matters.107 By deduction from Ezra 10:8, which speaks of the forfeiture of possessions under certain conditions, the Amoraim evolved the principle of “arise and do,” which meant that they could enact takkanoth with positive action which circumvented Torah law if it appeared necessary to insure justice and equity. Thus, Hillel the Elder decreed a prosbul to circumvent Deuteronomy 15:1-2, “which declares that the Sabbatical year cancels all debts. This institution was introduced by Hillel because he observed that the effect of the biblical law was to deter people from loaning to the needy, a practice which violates the higher moral command of the Torah (Deut. 15:9) which enjoins upon us not to refrain from lending to the poor.”108
Takkanoth for “Good Order”
Also, in the criminal area this principle of enactments was utilized for the purpose of maintaining good order during troublesome times.109 There could also be the setting aside of a positive command of Torah by a takkanah under certain conditions, if the Rabbis believed that by such enactment they were in fact carrying out the spirit of Torah, as in the prohibition of blowing the shofar on a Rosh Hashanah that fell on Saturday. Raba said, “According to the Written Law it is allowed, and it is the Rabbis who prohibited it.”110
Takkanoth for Changing Times
The final example of how the Sages utilized takkanoth to broaden the legislative dimension is seen in their dealing with certain situations in which application of existing laws was neither satisfactory nor appropriate. These conditions were usually brought about by changing times and conditions. For example, the Torah made it necessary for a person to have at least two witnesses for a testimony to be valid.111 However, a takkanah was decreed and taught by both Beth Hillel and Beth Shammai that “A woman who came from the region of the sea and said: ‘My husband Died’ – she may be married again; ‘my husband died’ [without issue] – she must be married by her husband’s brother (Deut. 25:5).”112
Thus, if circumstances indicated that a takkanah was needed for matters to be resolved in a just manner, it was often enacted even though it circumvented a teaching of the Torah.
The “Will of the Majority”
The analysis above has dealt with specific laws and the takkanah and gezerah methodologies by which the Sages implemented these laws. This approach to the Talmud as the law of government in Judaism implies that the immediate source of talmudic law was always the Sages. However, this was not the case. The Sages themselves recognized that the “will of the majority” was to be taken into account in matters where basic religious principles were not involved, and that earlier halakhoth contained takkanoth based upon this principle. For example, in matters concerning charity and the feeding of the poor, the elected or appointed leaders of a town determined many of the rules by which this was to be done, as well as the penalties for violation of the rules, i.e., “The townspeople . . . are at liberty to use the soup kitchen like the charity fund and vice versa, and to apply them to whatever purposes they choose. The townspeople are also at liberty to fix weights and measures, prices, and wages, and to inflict penalties for the infringement of their rules.”113
The principle of following the majority was derived from the rabbinic interpretation of Exodus 23:2, viz., “Whence is derived the principle which the Rabbis have adopted, viz.: Follow the majority? ‘Whence’ [you ask]: is it not expressly written, ‘Follow the majority’? In regard to those cases where the majority is defined, as in the case of the Nine Shops or the Sanhedrin, we do not ask the question.”114
Thus it is clear that the general rule was to have the majority opinion prevail via the majority ruling of the courts.115 Or, in situations where the ruling of the community majority was obviously the most equitable and ethical position to espouse, there would eventually arise a takkanah which would incorporate that ruling into the continuing halakhic legal system.
Summary
The analysis in this chapter makes it possible to see the halakhic legislation of the Rabbis in two vital dimensions. First, when the conditions of the times had changed so drastically from earlier generations that the existing laws did not provide solutions to current problems, the Sages ruled by takkanah and gezerah in enacting laws to meet those problems through the legal process. Second, in matters of the moment which were partially covered by existing halākhāh, it was often possible for the scholars to legislate amendments to existing laws in order to make them appropriate to the new circumstances of the hour.
The continuing legal activity of the Sages was carried on with the full realization that the Torah contained the prohibition, “You shall not add to the word which I command you, nor take from it; that you may keep the commandments of the Lord your God which I command you” (Deut. 4:2). They did not, however, see the evolutionary character of law in the continuing halakhic traditions of the Talmud as contradictory to that prohibition. They saw themselves. unanimously, as recipients of a sacred trust to interpret, expand, create, and continue the halākhāh.116
In this framework, the prohibition of Deuteronomy 4:2 applied to those who would try to legislate outside the bounds of rabbinic authority. However, this view was not unanimously held by all Rabbis. Some maintained that it applied to everybody, as well as the courts, and the prohibition applied to any attempt to maintain that an enacted law was actually on a par with the Torah. If, however, the Sages were willing to admit that any enacted law was valid because it was according to the Torah and had been enacted by them as rabbinic law by virtue of the authority entrusted to them by the Torah, this was not to be construed as a violation of the deuteronomic prohibition. This view did not perceive the scholars as engaged in primary legislation. The primary legislation rested in Torah, while their work was that of “fence building” within the scope of authority vested in them by Torah as a channel for the continuing, dynamic development of the law.
Conclusion
In this chapter on the concept of law in the Bible and Talmud, an historical approach to the subject has been adopted. This approach made it possible to analyze the concept of law in both the Bible and the Talmud without distorting the analysis with subjectivism with regard to the law or psychological speculation with regard to the people for whom the law was intended. Or, in other words, the record was allowed to “speak for itself.”
This approach established that the concept of law was, from the very beginning of the Hebrew people, a theological concept. The people were chosen by God. The Torah was given to them by God.117 After the close of the Hebrew Scriptures, the Oral Law and the rabbinical traditions were eventually recorded in the Talmud. The concept of the Sages was that this development was an authoritative process by which the principles and spirit of Torah were perpetuated into succeeding generations.
Both the introduction and this chapter have touched on the ethics of government in the Bible and the Talmud. More germane to the purpose of the present study, however, is the fact that the concept of law in this literature has been set down as an essential groundwork for the specific analysis of the ethics of government in the Bible and Talmud which follows in subsequent chapters.
