Reflections on Jewish Law, the Jewish Nation, and a Database

So are the Jews a religious community or a nation? And if a religion, how can secular folks call themselves Jews? And if a nation, how come all members must profess a particular religion? And why can’t the Jews just be simple and clear about these matters, like everybody else?

Far be it from me to resolve these weighty questions. Yet a magnificent book I’ve just completed made me look at them from a new perspective. It’s a 1,600-page book in Hebrew, with hundreds of quotations in Mediaeval Hebrew or Talmudic Aramaic-with-Hebrew, and it was first published in 1973; the copy I own has been sitting patiently on a shelf for more than 30 years, waiting for me to find the opportune time; when I finally did one of my considerations was to pay respect to the author during the first year after his death: Menachem Elon, once the 2nd highest justice in our Supreme Court. The book is his magnum opus, Hamishpat Haivri, Jewish Law.

His thesis, presented in the first of the book’s three sections, is that between the end of Jewish sovereignty in the Roman era, and the end of Jewish cultural autonomy at the beginning of the 19th century, the Jews maintained a national legal system, and lived according to its rules and practice.

This was no mean feat. With Jewish communities spread from Persia in the east to Iberia and England in the west, and from Yemen in the south northwards all the way to the Baltic, throughout the entire 2,000-year period no travel or communications ever went faster than walking, or perhaps rarely horse-riding. Legal decisions routinely took a year to arrive. Then there was the matter of varying political jurisdictions: the Jews shared one among themselves, but were spread over many different external ones. Language was an issue, since for most of the period Jews didn’t share one spoken language, nor did they maintain one language over the entire period in single communities, so their legal system used Hebrew, a language all knew and few spoke. Finally, there was the matter of the form of writing: for most of the period the only ways to record an idea and transmit it was by memory or handwriting. The printing press wasn’t around yet, and an author had to write his treatise by hand, and have it laboriously copied by someone else’s hand. A student interested in reading two items deciphered two handwritings; a student interested in, say, 500 items, read 500 handwritings.

By the time the printing press did get invented, there were thousands of items, some of them very lengthy books, which a scholar needed to have read, in thousands of handwritings. Assuming he could get his hand on all of them, an unlikely assumption, and assuming a dramatic relevant new one hadn’t been written in the past decade but without having yet reached his town, a likely assumption.

There was also the matter of persecution. It’s admirable to see how Elon never puts the persecution up front, yet it keeps on intruding, when scholars had to flee to other countries, or centers of learning were disbanded or ancient communities destroyed. The low-key, matter of fact mention, usually in passing, of an intruding calamity, underlines the extent to which the Jews never allowed persecution to serve as an excuse for collapse or retreat into disorder or even to halt their creativity in its shadow.

So in the first section of the book the author, a law professor at the time, lays out his case that the Jews had their own commonly-held and communally-run legal system in which they lived their lives, and they did so for two millennia, growing the system and adapting it as needed along the way.

The second section deals with what law professors apparently call the legal sources of the system, the legal tools the system uses. Imagine, for a moment, that it’s the 45th century, or the 50th, and you’re living in a United States which still regards the 18th century’s Constitution as its founding legal document. The legal tools are the modes of operation which enabled your forefathers to take that ancient document seriously all along: interpretation, legislation, jurisprudence and so on.

As Elon tells it, the Torah is of course the founding document, the source of authority, and being divine, not a letter of it can be amended. Yet amended it had to be for the system to grow with history. And so there were early tools such as Midrash (hermeneutics) which enabled the early legal scholars to derive their legal needs from the immutable text. Elon gives a very fine description of the various forms of Midrash, of which there were quite a few. Interestingly, however, these tools were mostly used by the Tanaim, the scholars who created that tanaitic literature which was then, in the 2nd century CE edited into (or out of) the Mishna. These Tanaim lived mostly in Israel, indeed, mostly in the Galilee, and held their discussions mostly in Hebrew.

They were followed by the Amoraim, the creators of the Gemara between in the 2nd, 3rd, 4th and 5th centuries. They tended to be in Babylonia (present day Iraq) except when they were in the Galilee or elsewhere, and they tended to work in Aramaic, except when they used Hebrew. They used much less Midrash then the Tanaim, and indeed, they related much less directly to the Torah, focusing mostly on the Tanaitic literature, in the Mishna and beyond it. They were followed by Savoraim and then Gaonim, which takes us till about the 10th century. The later in time, the greater the likelihood not to use Midrash, but to prefer decrees (a type of legislation – did I mention that the Jews never had a legislature throughout this 2,000-year period), then local decrees, binding traditions, precedents, and some forms of deduction. As the 2nd millennium began, the center in Iraq lost its luster and its hegemonic power, never to be replaced (until the 20th century?) From then on there were a series of centers, sometime even more than one at once; they all seem to have known of them all at any given moment, and communicated to the extent it was practical. As time went on, the local decrees and traditions took on greater significance – but as the persecution went on, local practices became less likely to be helpful in new communities of Jews from diverse old ones. None of which ever threatened to destroy the system, astonishingly.

A significant reason for this startling cohesiveness can be found in the third section of the book, where Elon describes the documentary sources of the Jewish legal system: the texts.

He harks quickly back to the Torah, Bible and Talmud, but spends most of his time on what came next, from the 9th century on. The central theme of the story is the codifiers vs the interpreters. The interpreters came in a number of flavours, those who saw their task in explaining the earlier texts, and those who worked through all the earlier texts to provide a legal ruling on particular matters. (Rashi being the single most important interpreter, and the Tosafot providing rulings – though neither of those examples is clear-cut). Then there were the codifiers, the scholars who saw the immense (and growing) literature and its extreme complexity, and tried to force order and simplicity on it all in one fell swoop, so to say.

Actually, there was only one scholar who tried to impose complete order on the complete corpus and in one fell swoop so s to serve as the final word on the matter, and that was the Rambam, Maimonides, in the 12th century (who also happened to wander the entire length of the Mediterranean as he tried to sidestep his persecutors). He was so gigantic a figure, so totally a genius, so far ahead of everyone else, that he felt he could carry off the trick; and no sooner had he done it, in his 14-volume Mishneh Torah codex, than a choir of his contemporaries and their disciples for the next few generations all tore into him for his arrogance and presumption, recognizing his intellectual superiority over them as they did so.

Then, over the next four centuries the battle between interpreters and codifiers raged back and forth, eventually ending in the victory of the codifiers with Rabbi Yosef Caro in the 16 century, who wrote the Shulchan Aruch but not until he’d completed the Beit Yosef, a gigantic work of interpretation. (Caro, it should be noted, was back in the Galilee, for those who think there was no significant Jewish presence in Israel for 2,000 years.)

Or did the codifiers really win? I’m not so sure. One of the oddest parts of the story is that while the cutting edge of the system of Jewish law kept on moving forward, as cutting edges tend to do, the single most important layer was and remained the Talmud, until this very day. The Rambam’s presumption to have his work enable the complicated Talmud to be superseded may have happened on the level of legal ruling; but there are 100,000 students of Daf Yomi today, not of the Daily Rambam program (which does exist, but is a pale shadow of the main show).

Where does all this lead us? Beyond being a fascinating yarn and a crucial insight into what made Jews tick? Near the end I found myself with a number of reflections. First, there’s the miraculous mystery of Zionism. Just as the legal and social and cultural tools which maintained the Jews for 2,000 years were being broken down by the modern conception of the individual facing the State without an autonomic community in the middle, as well as by the tidal wave of secularism which detached a majority of Jews from the traditional ways and texts, along came Zionism and replaced the magnificent-but-worn old tools with a whole new set. Just as the intellectual ferment which lasted millennia was finally (largely) exhausting itself, along came Zionism with a whole new context in which to live full Jewish individual and communal lives. (I’m writing this on the evening of Yom Hazikaron, Memorial Day, so I’ll add that Zionism also gave, and demanded, a new set of reasons and contexts in which Jews lay down their lives for the nation).

Even on a less grand scale, Elon’s book itself demonstrates how the Jews have developed alternative ways of studying their rich cultural heritage: no one prior to the 19th century would ever have thought to write a history of the Jews through the history of their legal development.

Finally, the archivist and information-professional in me looks at technology. Just about the exact moment when Elon was publishing his book, a group of scholarly computer-scientist types were banding together to put the entire gigantic sprawling Jewish legal library into a database, now known as the Bar Ilan project – an invention the Rambam and his fellow codifiers would greatly have appreciated if had they ever been able to conceive of it, which they of course weren’t.