Jurisprudence 2006

Syllabus

The Textbook

Day 1--August 22

Babylonian Laws I

Babylonian Laws II

Hammurabi--review

Aug. 29--Bib/Plato

Euthyphro and Crito

Paper Guidelines

Nicomachean Eth. I

Nico. Ethics II

Nico. Ethics III

Nico. Ethics IV

Cicero

Justinian's Institutes

Institutes II

Babylonian Talmud

Talmud II

Talmud III

Hugo Grotius

Grotius II

Early Rousseau

Early Rousseau II

Early Rous III

Rousseau's Walks I

Rousseau's Walks II

Rousseau's Walks III

Lisbon Earthquake I

Earthquake II

Bentham's Spirit

Bentham's Words

Benth's "Conversion"

JS Mill I

Mill and Emotions II

Mill and Emotions III

C.C. Langdell

Burying Langdell

Legal Realism I

Legal Realism II

Legal Process

Brown v. Board


The Babylonian Talmud

Prof. Bill Long 9/12/06

Understanding the "Flow" of Shabbat 88a-b

One of the last texts I ever thought I would teach in a law school was the Babylonian Talmud. Compiled by Jewish Rabbis in the 6th-7th centuries CE, this 20 or so volume work describes rabbinic debates and discussions on every conceivable topic. Minute attention is given to the language of Scripture as a starting point for discussions that often seem to have no relevance at all to the living of life in the "real" world. By studying Talmud we understand how the Jewish tradition appreciated, and still appreciates, the sheer joy of intellectual encounter with a sacred text. The purpose of this essay is to quote some of the passages on either side of the very helpfully presented Shabbat 88a in our textbook (p. 92). First, however, a word on the Talmud in general.

A Word on Judaism in Late Antiquity

In the wake of the destruction of the 2nd Temple in 70CE and the putting down by the Romans of the Bar Kochba revolt in 135 CE, the Jewish people lost their independence and homeland in the Middle East (they would not regain independence until 1948). Most scholars describe their social and political reality in the second and subssequent centuries as a "turning inward," with a focus on the inner life of the mind and ritual practice. The product of this new world was not long in coming. About 200 CE the Mishnah was published. Divided into 6 Orders and containing 63 individual tractates (about 1400 pages of English text), the Mishnah dealt with categories such as the Agricultural Rules, Festivals, Women, Damages, Holy Things and Purity. Over the next few centuries these subjects were debated in rabbinic circles, and the resultant product is the massive Bablyonian Talmud. There are few complete English language translations of the Talmud; the only one done in our lifetime was done by a former Professor of mine in graduate school. The Talmud is structured following the order of the Mishnaic tractates; however, the Babylonian Talmud only comments on 37 of the 63 Mishnaic tractates. About 20 of the ones it doesn't mention are in two of the six orders of the Mishnah--agricultural rituals and purity. One of the major focuses of the Bablyonian Talmud is on what an early 20th century English translator calls "jurisprudence." One excerpt from our reading for today from Baby Metsia is in the middle of the jurisprudential sections of Talmud. Another is from Sanhedrin, also a jurisprudential text. But the first reading is from one of the tractates from "Festivals" (Shabbat). The remainder of this essay will focus on language from Shabbat.

On Giving the Law

Just before the text excerpted in our book (about the giving of the law), is a long discussion on when the Torah was given. Though there seemed to be consensus that it was on the 6th day of the week (Friday), which was also the third day of the month, some rabbis disagreed. Then the text provides:

"A certain Galilean lectured before R. Hisda: Blessed be the Merciful One who gave a three-fold Torah to a three-fold people  through a third-born  on the third day in the third month. With whom does this agree? With the Rabbis."

The rabbis are delighted when they could find number symbolism in the various activities predicated of God. The more threes that can be combined, for example, the more that God can be shown working according to perfection in what He does.

There follows the section on the giving of the law:

"And they stood under the mount: R. Abdimi b. Hama b. Hasa said: This teaches that the Holy One, blessed be He, overturned the mountain upon them like an [inverted] cask, and said to them,'If ye accept the Torah, 'tis well; if not, there shall be your burial.' R. Aha b. Jacob observed: This furnishes a strong protest against the Torah.  Said Raba, Yet even so, they re-accepted it in the days of Ahasuerus, for it is written, [the Jews] confirmed, and took upon them [etc.]:  [i.e.,] they confirmed what they had accepted long before."

Our text does a fine job of interpreting this passage. Rabbi Abdimi's perspective on law is that it was forced upon the Hebrew people. This seems to be in tension, however, with the text of Ex. 19 which we read in class, in which the law was willingly taken on by the people, even if the idea of sacred power was all around the people urging them to take on their covenantal responsibilities. R. Aha thus suggests that this would mean that the people were protesting against the law. Raba then seems to suggest a different reading of the covenantal ceremony from Abdimi by citing a text from Esther (mis-cited in our text--Esther 9:27) to the effect that the Jews (willingly) confirmed what they had previously accepted.

Concluding the Paragraph

After this point is discussed, another Scripture is introduced that appears to have no relationship with the giving of the law, but the rabbis will eventually tie it to the majesty of the law. It runs.

"Hezekiah said: What is meant by, Thou didst cause sentence to be heard from Heaven; The earth feared, and was tranquil if it feared, why was it tranquil, and if it was tranquil, why did it fear? But at first it feared, yet subsequently it was tranquil,  And why did it fear? — Even in accordance with Resh Lakish. For Resh Lakish said: Why is it written, And there was evening and there was morning, the sixth day;  What is the purpose of the additional 'the'?  This teaches that the Holy One, blessed be He, stipulated with the Works of Creation and said thereto. 'If Israel accepts the Torah, ye shall exist; but if not, I will turn you back into emptiness and formlessness.'"

Notice how the rabbis argue with each other. They find another verse in Scripture that seems at first to have nothing to do with the giving of the law. Indeed, Ps. 71, from which it is taken, talks about the earth fearing and being tranquil. But then they connect the twofold emotion of fear and being tranquil with the activities of the earth on the sixth day of creation. They notice that the Hebrew text of Gen. 1 speaks of "one day" or "a second day" but then it says "the sixth day." Why use a special word "the" on the sixth day? Well, because the sixth day is so special. It is the day of Torah-giving. Thus all the ideas are connected back to the giving of Torah, which Israel has a choice to accept. If it accepts the Torah, they shall live; if not, all will return to chaos.

Thus the centrality of Torah is emphasized, from many angles, for the life of the people.

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Copyright © 2004-2007 William R. Long