Jewish Law: A Very Brief Account
(There is an enormous volume of surviving information on Jewish law—hundreds of thousand, perhaps millions, of pages of primary sources covering about twenty-five hundred years. This is a very brief summary account, based mainly on the first three volumes of Jewish Law: History, Sources, Principles, by Menachem Elon.)
The dynasty of kings of Israel of whom Solomon and David are the most famous was ended, and the first Temple destroyed, by the Babylonians in 586 B.C. After the end of the Bablonian captivity, Israel was under Persian and then Greek (Seleucid) rule, with local power in the hands of successive pairs of religious authorities. The Maccabean revolt against the Seleucids reestablished Israel as an independent kingdom with its own king.
As a result of the Roman conquest, the kingdom of Israel ceased to exist as an independent state in 63 B.C., becoming subject to first indirect and then direct Roman rule. The second Temple, which played an important role in legal and religious matters, was destroyed by the Romans in 70 A.D. The Bar Kochba revolt of 132-136 A.D. resulted in many Jews being killed, emigrating, or being sold into slavery, and so ended the role of Israel as the effective center of Judaism.
Thereafter, until the reestablishment of the State of Israel in the 20th century, the Jewish population consisted for the most part of dispersed communities living under the authority of non-Jewish rulers. Such communities were subject from time to time to persecution or even expulsion. But for the most part, they enjoyed judicial autonomy. Gentile rulers chose to subcontract the job of ruling—and taxing—their Jewish subjects to the local Jewish authorities. The ruler set the total tax burden to be imposed on the community, the local authorities were responsible for allocating it among the residents. Thus Jews in the diaspora lived largely under Jewish law.
This situation was ended by the emancipation—the freeing of European Jews from legal restrictions—that began in Europe in the late 18th century. Increasingly, Jewish inhabitants of european states were treated as ordinary citizens, subject to the same laws as everyone else.
Jewish law, as viewed by its practitioners, was initially based on two sources: The written Torah and the oral Torah. The written Torah, aka the Pentateuch, consists of the first five books of the Old Testament; it contains both a considerable number of legal rules and many accounts of events from which legal rules can, sometimes directly and sometimes only with the use of considerable ingenuity and imagination, be deduced.
The oral Torah consists of legal traditions of the Jewish people, believed to have been transmitted to Moses on Mount Sinai and from him through a chain of oral transmitters. It too contains legal rules, although the fact that it existed only in oral form made possible disagreements among the legal authorities as to what those rules were. Further disagreements occurred over the rules found in or deduced from the written Torah. This led to a problem that runs through the history of Jewish law and other legal systems as well—ambiguity as to what the law actually was. It is a particularly serious problem when there exists no authoritative legislature or legal code to resolve disagreements.
For part of the early history of the Jewish legal system, there was a solution to this problem: The Sanhedrin, established in 191 B.C. as a combined high court and legislature. Functioning as a court, it could and did resolve disagreements among legal authorities by majority vote. While a legal authority was permitted to continue to argue for the minority view, he was not permitted to apply it in his decisions as judge.
In addition to the written and oral Torah, there were at least two other sources from which Jewish law derived legal rules. One was legislation by the legal authorities themselves, authoritatively by the Sanhedrin while it existed but also by individual scholars adding rules that they viewed as consistent with but not directly implied by Torah. There was also much that might be viewed as legislation by legal authorities in the form of interpretation, sometimes inconsistent with the apparent meaning of the text being interpreted. The other source of legislation was the King and, later, communal authorities seen as substitutes for a king who no longer existed. Their authority to legislate was justified by interpretations of passages in the Torah.
The Roman conquest eliminated both the king and, eventually, the authority of the Sanhedrin; its last binding decision was in 358 A.D. The role of court of last resort, de facto if not de jure, passed to the Babylonian academies, where law was taught and debated; their rulings on disputed issues generally were accepted throughout the diaspora. For reasons not entirely clear, they eventually lost that authority. After about 1050 A.D. in the west (and 1250 in the east), different areas were able to develop different interpretations of the law, with conflicts resolved, if at all, through opinions given by scholars of the law seen as particularly learned.
While law existed in the written Torah and the teaching and writing of legal scholars, there was no written law code, or at least none that we know of, until the production of the Mishnah in about 200 A.D. It provided what was intended to be a complete collection of halakha, legal rules, along with associated materials. Unlike a modern law code, the Mishnah did not state what the law actually was. Instead, it offered arguments attributed to sages of the past for alternative interpretations of the law. Some later scholars believed that Rabbi Judah haNasi, the author of the Mishnah, signaled which of the interpretations he thought correct by the way in which he referred to them. Others disagreed.
The result was several centuries of scholarship and debate, mostly in the Babylonian academies but also in centers of Jewish learning elsewhere, especially in Israel, over the meaning and implications of the Mishnah. The record of those debates, along with the Mishnah itself, made up the two Talmuds—the Babylonian Talmud, produced in the Babylonian academies, and the shorter, less complete, and less authoritative Jerusalem Talmud.
Once the Talmud was complete, Jewish legal scholarship was built on three layers. The first was the Torah. That was followed by commentary on the Torah, culminating in the Mishnah. That was followed by commentary on the Mishnah, culminating in the Talmud. Scholarship thereafter consisted largely of commentary on the Talmud—which had, in effect, the previous two layers embedded in it. Further layers were added as one or another work based on those sources—the Mishneh Torah of Maimonides is one example—itself became the subject of further commentary.
Throughout the history, there was tension between the restrictions imposed by the Torah, Mishnah, and Talmud and the perceived requirement of current circumstances. Some conflicts were resolved by creative interpretation of the original sources, others by the creation of legal fictions designed to evade constraints from the Torah or Talmud. For example É
The Torah prescribes death by stoning for a child who defies his parents. Some legal authorities chose to read into the detailed wording of the biblical verse requirements that could not in practice be satisfied—for instance, that the mother and father bringing the accusation must have identical voices and be identical in appearance.
The Torah provides that, every seven years, debts are cancelled. This meant that lenders were increasingly unwilling to make loans as the seventh year approached, a problem recognized and warned agaisnt in the original text. To solve that problem a legal form, Prosbul, was designed with the specific purpose of making it possible to create a form of debt that would survive past the cancellation of ordinary debts. Many other examples can be found of ways in which the legal authorities succeeded in working around legal rules that they did not, in theory, have the power to change.
The Torah forbids Jews from lending to other Jews at interest. A variety of contractual forms were designed to make it possible to evade that restriction in effect while obeying it in form, and rules about the sharing of profit between partners one of whom contributed capital and one labor were developed, in part in an attempt to prevent such evasions.
Another way around inconvenient restrictions of Torah was the holding that communal authorities were, to some degree, free to permit what the Torah forbade or forbid what it permitted. According to one view, such communal legislation was legitimate if there was no legal authority in the community to be consulted, it was legitimate if there was such an authority and he was consulted and approved of the legislation, but it was not legitimate if an authority was available and was not consulted or did not approve. Thus the legislation was ideally the joint product of communal authority and legal expertise—but communal authority alone was better than nothing if the legal expertise was not available.
According to another widely accepted view, communal authorities had a free hand to legislate with regard to mamon—secular matters such as most civil and criminal law—but were sharply restricted with regard to issur, religious law, including issues of family law such as marriage and divorce.
This raised a problem for communal authorities that wished to impose constraints on marriage beyond the very limited requirements of the religious law—for instance, to require ten witnesses to make a marriage valid. On the face of it, if a court ruled invalid a marriage that satisfied the requirements of religious law but not requirements imposed by the communal authorities, it was permitting a woman who was married to one man to marry another without having been first divorced, a clear violation of religious law.
One solution was to transform a decision in religious law into a decision in secular law. The court held that if a man married without satisfying the requirements of communal law it was entitled to punish him by confiscating—retroactively—the wedding ring or other object of value which was used in the ceremony. Since the groom did not own the ring which he used in the ceremony the wedding was invalid under religious law, hence the couple were not married. Perhaps because of the degree to which that stretched the distinction between mammon and issur, courts were often reluctant to enforce such rules, and chose instead to use their powers to force the groom to execute a legally valid divorce, thus making the bride unambiguously free to marry someone else.
Some legal authorities held that the communal authorities could forbid what religious law permitted, but could not permit what it forbade or forbid what it required. In practice, at least in matters of mammon, that restriction was frequently violated. Thus, for instance, courts enforcing secular rules were able to accept witnesses unacceptable under religious law, such as those related to a judge or one of the parties—arguably necessary in a small community where practically everyone was related to everyone else. Courts were permitted to impose the death penalty without satisfying the extremely restrictive conditions of religious law, such as the requirement that in order for the defendant to be liable to capital punishment he must be shown to have been told, independently by two different people, that what he was about to do was a capital offense. Courts were permitted to imprison debtors for failure to pay their debts, something explicitly forbidden under religious law.
One justification for such results was the doctrine that courts enforcing communal regulations were not functioning as religious courts under religious law, hence not bound by its restrictions; they were the successors to the king who was, judging by descriptions in later books of the Old Testament, free to execute people without first convicting them in a religious court. A second, and perhaps more telling, justification was that the communal regulations being accepted were in practice necessary for the survival, or at least the functioning, of the Jewish community in an environment very different from that in which the religious law had originally come into existence.
The Form of the Law
Another issue faced by the Jewish legal authorities was the form in which the law was to be transmitted. Ideally, a judge ought to know everything—including all of the arguments made over the centuries for alternative interpretations of the legal rules that might apply to a particular case. In 200 A.D., when the law consisted, for practical purposes, of the Mishnah--a modern translation runs to about eight hundred pages--that might have been barely possible. By 500 A.D. the law consisted of the Talmud, a much longer and more elaborate document—the Mishnah, itself embedding arguments over the law, plus extended discussion of what the Mishah meant. By 1000 or 1500 A.D., the law consisted not only of the Talmud but of an extensive literature of treatises explaining and interpreting the Talmud, responsa—answers written by legal authorities to questions submitted to them on the law—and other documents.
One solution was to produce, for the use of judges, a law code, a simple statement of legal rules, giving only the interpretation that the author of the code considered correct and leaving out the arguments, biblical or otherwise, for and against the preferred interpretation. That was what Maimonides did in the twelfth century. His work, while widely accepted and used, was also widely criticized, on the grounds that a judge had to know not only what Maimonides thought the legal rule was but the entire background needed both to evaluate his view and to fully understand it. A later scholar, Rashba, writing about a century later, followed Maimonides in compiling a statement of the legal rules but supplemented it with another volume, organized in parallel, offering the sources for those rules. Over a period of many centiuries, Jewish legal scholarship shows an alternation between attempts to write law codes summing up the rules and attempts to describe the law in its full historical complexity.
The Problem of Disagreement
In any legal system, authorities will sometimes disagree about what the law is or how it applies to new circumstances. In a system which views law as the creation of some authority, such as a legislature, king or court of last resort, the same authority that made the law can settle any disagreement about it.
That does not work for a legal system, such as Jewish law or Shariah, viewed not as created but as discovered, deduced from divinely inspired sources, documentary or oral. No scientist believes that whether or not a scientific theory is true can be determined by majority vote—that if enough scientists had disagreed with Newton, stones would have fallen up instead of down. No more can a scholar of Sharia believe that whether a hadith, a tradition of the prophet, is true or spurious is determined by majority vote of the scholars of tradition, or a Jewish sage hold a corresponding belief with regard to an interpretation of the Torah. Yet, in order for a legal system to function, there must be some way of determining what the law is.
In the Jewish case, the problem became particularly clear with the extended disagreement between two groups of scholars that formed in the first century B.C., the school of Hillel and the school of Shammai. For several generations, scholars of each school accepted the other as legitimate, while disagreeing on particular points of the law, rather as the four schools of Sunni law later regarded each other.
This raised practical as well as theoretical problems. If an adherent of the school of Hillel ate at the house of an adherent of the school of Shammai, or vice versa, the guest might be eating food that, in his view, was for one reason or another not ritually pure, hence not permitted. Similarly with other actions that impinged on religious law.
The solution to the problem, as viewed in later tradition, is summed up in the story of the debate between Rabbi Eliezer and Rabbi Joshua over the oven of Akhnai, which the former held to be ritually pure, the latter ritually impure. After R. Eliezer had brought out every possible argument for his position without persuading his opponent, he finally put the question to God. "If the Halakhah is in accord with me, let this carob tree prove it." The carob tree promptly uprooted itself and was moved 100 cubits away—by some sources 400 cubits. R. Joshua's reply? "No proof can be brought from a carob tree."
The debate continued, and R. Eliezer produced two more miracles in support of his position; R. Joshua remained unconvinced. Finally, he called out for more direct support, and a heavenly voice responded: "Why do you debate with Rabbi Eliezer, seeing that in all matters the Halakhah is in accord with him." To which R. Joshua replied, "It is not in heaven."
A third Rabbi, wanting a view of the story from the other side, asked the prophet Elijah what God had been doing in heaven during the debate. "He smiled, saying, 'My children have bested me. My children have bested me.'" R. Joshua's view of the matter was summed up by another Rabbi as "The Torah has already been given at Mt Sinai. We pay no attention to a heavenly voice because You have already written in the Torah at Mt. Sinai, 'Follow the Majority.'"
Put in less mythic terms, the argument was that the law had been entrusted to the care of man, hence it was no longer God's view that mattered but the view of the human sages, not objective truth but a human decision rule. God's view might determine what was true, but the view of men, halakhic authorities, determined what was law. The point was made from a different angle in one story of how the conflict between the two schools was finally ended—by a heavenly voice that said "the words of both are the words of the living God, but the law is in accordance with the school of Hillel." A sage as scholar might argue for a position rejected by the majority. But as judge, he was forbidden to treat that position as the law.
While the Sanhedrin functioned, it provided a mechanism for determining what the view of the majority—not the majority of men but the majority of sages, of halakhic authorities, of men learned in the law—was. For some centuries thereafter, the prestige of the Babylonian academies was sufficient to provide a substitute. As that declined, the problem reappeared.
One form it took was an argument that could be offered by the defendant in a case. In order for the court to punish him—to, for instance, transfer his property to the plaintiff—it had to be certain that he was guilty. One source of uncertainty concerned the facts of the case. But even if the facts were clear, there remained legal uncertainty. So long as at least one of the recognized authorities, living or dead, supported a reading of the law under which the defendant was innocent, there was reasonable doubt, hence he could not be convicted. The need to resolve that problem was one argument in favor of recording and teaching the law in the form of a legal code, an unambiguous account of what the rules were, rather than in the form of a history of arguments for and against alternative interpretations.
Explanations of What May Not Be Obvious
There are a number of features of the legal system that show up in multiple contexts and may seem puzzling to a modern reader. They include:
The Burden of Proof and the role of Oaths
Burden of proof is a familiar issue in our legal system, but Jewish law adds an additional complication in the form of oaths. The pattern appears many places; the following is an example.
John says "I am missing a cow, and I suspect that William stole it." William denies stealing it, and there are no witnesses or other evidence. John's case is dismissed by the court.
John says "I am missing a cow, and I saw William steal it." William denies stealing; again there are no witnesses. It is still a "he said/he said" case, but John is now making a claim certain rather than a claim uncertain; if John is an honest man, William is a thief, not true in the previous case. The rule this time is that William may "swear and be quit." If he is willing to swear to his innocence in the prescribed form, John's case is dismissed. If, however, William is unwilling to swear, John prevails; William is found guilty and owes damages.
Shift the facts to make John's case a little stronger, and now it is John who swears and takes. If he is willing to swear that what he says is true, he wins the case. If he is unwilling to swear, he loses. Shift the facts even further, perhaps by adding two witnesses to the act, and John prevails even without swearing. A further complication, in some but not all cases, is for the party who is obligated to swear to be given the option of shifting the oath. Instead of swearing to the truth of his claims, he requires the other party to swear to the truth of his. If the other party does swear, he prevails. A suspect party, one who is known to have sworn falsely in the past or to have violated any of various rules of religious law, is not permitted to swear, and so loses in a case where his oath is required for him to prevail.
The treatment of these cases in Maimonides suggests two things. First, parties are reluctant, although not always unwilling, to swear falsely, so the willingness to swear provides some evidence of the truth of what they swear to. Second, parties may be reluctant to swear even to what they believe is true, perhaps because they are afraid that if they have made a mistake they will be subject to supernatural punishment—or that, if the court mistakenly concludes that they were lying, they will not have the option of swearing in some later and more important case.
Legal Inertia: Letting the Money Lie Where it Falls
There are a variety of legal situations where the outcome is unclear--where a tortfeasor owes damages to his victim, but it is not certain whether the case falls into a category that implies half damages or quarter damages, or where the document describing the amount of a loan is worded ambiguously.The court awards the smaller sum, on the theory that it is not entitled to force someone to give something up unless it has clear proof that he is obliged to, hence it can force the defendant to pay a quarter but not a half, the creditor to pay only the smaller amount consistent with the document. If, however, the plaintiff has seized property of the defendant worth half damages, or the lender has seized property corresponding the reading of the document more favorable to him, the court will not force him to give any of it up.
That seems odd to a modern reader, but it makes logical sense. The court is not sure the defendant owes more than a quarter, so will not force him to pay more than a quarter. The court is not sure the plaintiff is entitled to less than a half, so if he has taken half the court will not make him give any of it back. It is no more illogical than a modern court that is confident that one or the other of two suspects is guilty of a crime but acquits both, on the grounds that neither one can be shown guilty beyond a reasonable doubt.
The pattern described also suggests that the law we see is constructed on the ruins of an older feud system, in which parties took action for themselves to vindicate their rights rather than relying on courts to do it for them.
Guaranteeing Debts and Uncertain Ownership
A debt can be guaranteed with a pledge--the modern practice of pawning property. It can be "hypothecated," guaranteed with the equivalent of a mortgage against a specific piece of property. But the default rule is that a debt is guaranteed by all of the owner's property—initially only his real property but in later law movable property as well.
The effect of that rule runs through substantial parts of the law. John borrows a hundred zuz from William. John subsequently sells a field he owns to Henry. When the debt comes due, John tells William that he doesn't have the money to pay it. William goes to court to claim property of John's worth a hundred zuz, only to discover that John's remaining property is worth only fifty. He claims that, and in addition claims from Henry the field that John sold him, or at least fifty zuz worth of it. The field was encumbered, hence John could not give clear title to it. Henry, having lost the field he paid John for, now has the right to demand his money back. But he won't get it if, as the sequence implies, John at this point has neither money nor property.
One implication is that it matters when money was borrowed and when land was sold. Land that was sold before the debt was incurred is not encumbered; land sold afterwards is. Another implication is the opportunity for putative creditor and putative debtor to collude in order to swindle a third party purchaser.
John sells his field to Henry, and then conceals his assets. William claims that John previously owed him money. William has no documentary evidence of the debt—but John does not contest it. If the court believes the claim, William now can seize the field that John sold Henry, leaving William and John together in possession of both the field and the money paid for it.
Because of such possibilities, the court may be reluctant to believe the claim of an undocumented debt, even if both putative creditor and putative debtor support it.
Tithes and Heave Offerings
Under religious law, producers of agricultural produce are supposed to pay a "heave offering"--from 1/40th to 1/60th of the crop, to be given to the priests. The heave offering can only be consumed by priests or their families. They are also supposed to give a tithe, ten percent of the crop, to the Levites--a tribe of hereditary semi-priests. The Levites in turn are required to give the priests a heave offering from that tithe. The producer is then supposed to give a second tenth either (depending on what the year is in the seven year sequence) to the poor or to himself. In the latter case he is required to consume it in Jerusalem, with the alternative of selling the produce and using the money to buy something else to be consumed in Jerusalem.
This set of rules shows up indirectly in at least two contexts. One is the discussion of under what circumstances the daughter of a priest is permitted to eat heave offering. This is a marker of her status, whether she counts as a member of her father's family, her husband's--he may not be a priest--or her son's, after her husband has died or divorced her. One also gets discussions of the obligations of someone who buys or is given produce without knowing whether or not the obligatory transfers have been made from it.
Momsers and Bastards
The Hebrew "momser" is sometimes translated as "bastard," and has that meaning in some modern contexts. In Jewish law, however, it meant someone whose parents not only were not married but could not be because their marriage would be in violation of Jewish law. One example would be the child of an incestuous union. Another would be a child produced by his mother's adultery; his father could not have married his mother because she was already married, and Jewish law permitted multiple wives but not multiple husbands. A third would be the child of a man by his wife's sister; the law did not permit a man to be married to two sisters. A bastard who was not a momser, the child of a couple who were not married but could have been, had the same legal rights as the child of a married couple.
 I am using "legal authorities" for what Elon refers to as "halakhic authorities," individuals considered to be expert in Jewish law. The term is not limited to those with some sort of official position, although many, perhaps most, halakhic authorities were judges, members of the Sanhedrin, high priests, or rabbis. As will become clear, a good deal of the definition of Jewish law, especially after the destruction of the Temple and the Kingdom of Israel, came out of a reputational system rather than a system of formal authority.
 The authority of the sages to legislate was justified by, among others, Deuteronomy 17:8-11. "You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left." Here "they" are taken to be the sages, the halakhic authorities. The authority of the king or the Sanhedrin to make binding legislation was justified by, among other sources, Leviticus 27:29, and was later held to justify the authority of communal legislation as well, with the majority of the community seen as corresponding to the (no longer existing) Sanhedrin or king. It was also justified by the passage in Torah warning the Israelites about all the terrible things that a king would do if they had one—taken, oddly to the modern reader, as implying that all of those things were things the king was entitled to do.
And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. And he will take your daughters to be confectionaries, and to be cooks, and to be bakers. And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep: and ye shall be his servants. And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hear you in that day. [I Samuel 8]