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The Myth of the Cultural JewCulture and Law in Jewish Tradition$

Roberta Rosenthal Kwall

Print publication date: 2015

Print ISBN-13: 9780195373707

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780195373707.001.0001

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Origins and Development of Jewish Law

Origins and Development of Jewish Law

A Top-Down View

Chapter:
2 Origins and Development of Jewish Law
Source:
The Myth of the Cultural Jew
Author(s):

Roberta Rosenthal Kwall

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195373707.003.0003

Abstract and Keywords

Chapter 2 focuses on the development of Jewish law from the standpoint of both Divine Revelation and the actions of the post-Biblical sages during the Talmudic era. It explores Revelation in the Torah, the Written Law, and the development of halakhah in the biblical and post-biblical periods. The discussion focuses on rabbinic authority in the period following the destruction of the Second Temple in 70 ce and illustrates how during this period the Pharisee sect reformulated Judaism through the Oral Law by developing innovative measures with a basis in the tradition. Through this process, the Pharisees made Revelation a continuing reality in the lives of the Jews of the post-destruction era. The concluding section explores the influence of Hellenistic culture on the development of early Jewish law, illustrating that minority traditions not only borrow from, but also reinterpret, elements from the surrounding majority cultures.

Keywords:   Revelation, rabbinic Judaism, rabbinic authority, Torah, Talmud, Hellenism, post-Biblical era, Written Law, Oral Law, Pharisee sect, destruction of Second Temple

Revelation at Sinai—The Paramount Top-Down Paradigm

Chapter 1 suggests that one cannot make sense of the concept of halakhah (Jewish law) without understanding the relevance of the central narrative of the Written Torah—Revelation.1 In other words, the election of Israel as the community to receive God’s Revelation and laws comprises the narrative that gives Jewish law meaning, both in the biblical world and even to this day.2 Central to this narrative is the idea of the Jewish people being in a covenantal relationship with God. Within the boundaries of the Jewish tradition, different conceptions of the Sinai covenant exist.3 Nonetheless, as Rabbi Daniel Gordis has observed, “the centrality of law in the relationship between God and the people Israel” represents “the major message of Revelation at Sinai.”4 (p.30)

The core Jewish belief is that Revelation consists of “a contentful, commanding set of instructions and admonitions from God.”5 Significantly, however, the Jewish tradition disagrees as to exactly what was revealed by God to Moses on Sinai, and the Five Books of Moses are not specific on this point. The Talmud contains the following passage:

It has been taught: Rabbi Ishmael said, “Generalities were spoken at Sinai, details at the Tent of Meeting.” Rabbi Akiva said, “Generalities and details were spoken at Sinai, repeated at the Tent of Meeting, and trebled in the steppes of Moab.”6

According to Rabbi Abraham Joshua Heschel, “[t]‌he plain sense of these words is that Rabbi Ishmael held that only the general principles of the Torah were revealed at the Sinai theophany; only after the Tabernacle was built were the details communicated to Moses.”7 Heschel continues that “[i]n contrast, Rabbi Akiva held that all of the Torah, with its details and minutiae, was communicated three times, and nothing new was added at the Tent of Meeting or in the steppes of Moab.”8

This disagreement, perpetuated by two schools of thought represented by Rabbis Ishmael and Akiva, has continued down through the ages and extends even to matters of theology. Significantly, these divergent views relate not only to the content of what was revealed on Sinai, but also to the extent to which the subsequent law is the product of Divine, or human, enterprise (or both). According to Ishmael’s perspective, the Torah speaks “in human language.”9 In other words, Ishmael seemingly was inclined toward the view that God painted with broad brushstrokes and left to mankind the task of deriving the specific content of God’s will. Further, the Talmudic school of thought attributed to Ishmael maintained “that there are things in the Torah that Moses said on his own authority, and that in many of the instances in which Moses heard things from on high, he transmitted the general meaning and not necessarily the actual words.”10 In contrast, Akiva maintained that “human language (p.31) is insignificant compared to the language of Torah,” which he believed to be God’s language.11 According to Akiva’s approach, man can discover only the religious laws and truths already given.12 Akiva believed that everything that was necessary to interpret God’s will was inherent in the language of the text of the Torah and therefore already revealed. In sum, Ishmael can be understood as a minimalist in terms of Revelation, whereas Akiva is a maximalist.13

In addition to disagreement regarding the content of God’s Revelation, the tradition also has acknowledged the possibility of variation as a result of individual reception at Sinai. Some believe that the presence and acceptance of the Torah by the individuals witnessing the Revelation at Sinai “shaped the very content of the Torah at the critical historical moment it took effect.”14 Some of the rabbinic literature produced during the early centuries of the Common Era reflects this idea. For example, one source states that God’s voice came “to each Israelite with a force proportioned to his individual strength.”15 According to Rabbi Michael Rosensweig, this mystical-historical perspective “dramatizes the spiritual significance that halakhah ascribes to human singularity by revealing that the subjective inclinations of individuals invested their perspective of Torah with intrinsic worth.”16 Rosensweig’s discussion of this point draws from the work of Rabbi Solomon Luria, more widely referred to as Maharshal, one of the great teachers of Jewish law in the sixteenth century ce. Significantly, modern theologians have taken the Maharshal’s focus on “the role of the recipients of the Torah”17 in formulating a pluralistic conception of Torah that has been embraced by more liberal Jewish theologians.18 (p.32) These conceptions of Revelation move the model from a strictly vertical one to a paradigm with varying levels of horizontal elements.

Despite the divergent views contained in the Talmud on this issue, the tradition attests to the reality that Akiva’s views prevailed over those of Ishmael.19 Throughout much of Jewish history, a large number of Jews believed that the words in the Written Torah, which appear in the Five Books of Moses, were communicated directly from God to Moses. As Chapter 4 explores, however, in the nineteenth century a distinct approach to authorship of the Written Torah emerged. This perspective, which is characterized by an historical methodology, maintains that the Written Torah should not be understood as emanating from God directly but rather as the written product of human beings produced in specific times and places.20

For purposes of applying cultural analysis to Jewish law, it is important to recognize that from the beginning, the rabbinic tradition always has recognized a human component to Jewish lawmaking, even while espousing a vertical model of Divine authority for the source of the subsequent laws. Thus, the cultural analysis paradigm becomes an even more compelling model to the extent the Jewish tradition itself explicitly incorporates a significant human dimension to the lawmaking process.

The Oral Law as a Supplement to Revelation and the Introduction of Rabbinic Lawmaking Authority

The parameters of lawmaking authority following Sinai become significantly more blurred according to the Talmudic tradition. Although many rabbis of the Talmudic era would have described their work as mining the contours of Divine Revelation rather than creating independently a system of Jewish law and thought,21 the reality is that the tradition itself contains evidence of a difference of opinion on this score. Rabbi Byron Sherwin, one of Heschel’s protégées, has recognized explicitly that the tradition contains divergent views concerning the level of human involvement in Jewish lawmaking.22 Pursuant to what (p.33) Sherwin denominates as the “monolithic” view, “the Torah and its commandments are the dictates of God.”23 According to this view, “just as revelation is monolithic, devoid of any human (subjective) element, so must Jewish law—which expresses the concreting of revelation—have this quality.”24 The second view, which Sherwin calls the “dialogic” approach, sees Revelation generally as a dialogue between God and human beings with respect to both the specific revelatory event and the law that is the product of Revelation.25 Further, regarding the binding nature of the law, Professor Seymour Siegel maintained that the dialogic, or minimalist, view “considerably limit[s]‌ the scope of the dogma, and…allows for more leeway in interpretation.”26

The classical Jewish tradition assumed that, in addition to the Written Law, God directly transmitted to Moses the Oral Law, which can be thought of, in part, as a type of guidebook to interpreting the text of the Written Law.27 One of the first explicit references to the Oral Law appears in the story contained in the Babylonian Talmud about the proselyte who asked the great sage, Shammai, “How many Torahs do you Jews have?” Shammai replied, “We have two: The Written Torah and the Oral Torah.”28

As is the case with the question of authorship of the Written Torah, a similar debate exists between those who maintain a more fundamentalist perspective and those who adhere to an historical approach with respect to the authorship of the Oral Law. Specifically, the historical approach does not see the Oral Law as a series of direct commands that were also dictated by God but rather as the embodiment of the best judgment of inspired and learned humans addressing situations in their particular times. With respect to the authorship of both the Written Law and Oral Law, these distinct approaches have profound theological and legal process ramifications. That said, however, even the most fundamentalist view of authorship of the Oral Law would acknowledge that the documents codifying the Oral Law produced in the early centuries of the Common Era were redacted and written by humans. (p.34) Nevertheless, in contrast to the historical approach, a more fundamentalist perspective tends to perceive the content of these documents as being the product of a direct Revelation of God’s will more so than the product of human judgment about God’s will. As Chapter 4 explores more fully, this is an area of dispute today between Orthodox Judaism and the more liberal movements.

The Written Law implicitly establishes the authority of the Oral Law in Deuteronomy, in which the text authorizes the practical application of the law by judges in future generations.29 Moreover, the Babylonian Talmud explains that every generation requires a rabbinical court to apply Jewish law to the particular circumstances at hand.30 The precise chain of the Oral Law’s transmission is delineated in the Mishnah, one of the earliest written texts of the Oral Law.31 This chain asserts that Moses received the Oral Law from God at Sinai, and it was transmitted from Moses to Joshua, and then throughout the generations to specified categories of learned men.32 Some scholars understand this tractate as an attempt by the rabbis of this period to legitimize their own authority and understanding of the Oral Law rather than as a “truth” about how it was transmitted.33 Regardless of how this chain of transmission is understood, it cannot be denied that historically, Jewish law largely has functioned based on a top-down rabbinic model in which the rabbis, rather than the lay people, have been the legal decision-makers.34 (p.35)

According to the tradition, the Oral Law functions in a variety of capacities. One such capacity is that the Oral Law provides supplementation and clarification of commands found in the Written Law. For example, the Written Law prohibits labor on the Sabbath, saying that anyone who does work on this day shall be “cut off from among his kin.”35 The Written Law explicitly designates certain prohibited activities such as, but not limited to, cooking, baking,36 kindling of fire,37 and wood gathering.38 A more nuanced definition of prohibited labor is supplied by the Oral Law, specifically in the Mishnah, where the text states that the prohibited labors are “forty less one,” and then enumerates the proscribed labors.39 In formulating these additional rules, the sages were guided by the proximity in the Torah of the prohibition of work on the Sabbath and the instructions for building the Tabernacle.40 They concluded that the tasks that were deemed essential in constructing the Tabernacle are principal categories of forbidden work.41

The sages sought to safeguard the Torah’s commands by erecting fences around the law so as to prevent inadvertent violation.42 This ideology of erecting fences furnishes many other areas of supplementation to the Written Law. One interesting fence concerns the length of holy days such as the Sabbath and Yom Kippur. In contrast to the secular calendar, Jewish days always begin at sundown and end at sundown.43 Even so, the Talmud explains that because it is necessary to add “from the non-holy to the holy,”44 the sacred holy days are inaugurated with the act of candle lighting that occurs earlier than the time of sundown, and they conclude after sundown. For those who (p.36) have always wondered, this fence explains why Yom Kippur traditionally consists of a twenty-five hour fast!

The notion of devotion to and love for the Torah is manifested by another interesting principle developed in the Oral Law: the concept of hiddur mitzvah. This concept is concerned with the physical beautification or embellishment of the commandments and embraces the idea of compliance with the law in a manner that extends beyond that which is required by the letter of the law. The basis in the Written Torah for hiddur mitzvah is the verse in Exodus stating, “He is my God and I will beautify him.”45 Specifically, the sages of the Talmud understand this verse in the Written Torah as implying that one should beautify oneself with the precepts of the Torah. The Talmud illustrates this point by encouraging beautiful objects to be used in various ritual observances.46 The Talmud even speaks of beautiful Torah scrolls “wrapped in the purest silk” and made with the best ink and pen by “an expert scribe.”47 Interestingly, to guard against people going overboard in their endeavor of beautifying the commandments, the Talmud also provides that hiddur mitzvah may extend only to “a third of the sum spent on the mitzvah [commandment] itself.”48

In addition to supplementing the Written Law, the Oral Law provides resolution of seeming inconsistencies on the face of the written text.49 For example, in referring to the Passover holiday, Deuteronomy 16:3–4 states that unleavened bread should be eaten for seven days,50 but in Deuteronomy 16:8, the text speaks of eating unleavened bread for only six days. According to the Oral Law, the reference to “the six days” is to the period in which eating unleavened bread is purely voluntary; it is only mandatory on the first day of Passover.51

Yet another significant function of the Oral Law is to provide instruction as to when a particular verse of the Written Law is to be understood according to a deeper, hidden meaning, rather than in a literal manner according (p.37) to the terms of the text. One of the most famous examples of a written verse being interpreted differently from its plain language concerns the “eye for an eye” discussion in Chapter 21 of Exodus.52 Despite the plain language of the biblical text, the Talmud clarifies that monetary restitution is the intended meaning of these verses.53 In discussing this interpretation, Professor Barry Holtz observed that the rabbis’ interpretation of these verses is the most famous example of their inclination to “reread texts in the light of their own contemporary values and beliefs.”54 In contrast, a more fundamentalist explanation is that the Oral Law accompanied the Written Law from the outset and indicated how the biblical text should be understood.

Another example of the sages’ decision to ignore the plain language of the text of the Torah concerns appropriate priestly conduct in connection with burying relatives. Leviticus 21:2–3 provide a specific listing of the closest relatives for whom a priest, known as a kohen, may defile himself for their burial. This list includes the kohen’s mother, father, son, daughter, brother, and a virgin sister.55 The text continues that “he shall not defile himself as a kinsman by marriage,”56 therefore arguably prohibiting a priest from burying his wife. Interestingly, the sages interpreted the Hebrew word translated as “relative” in Leviticus 21:2 to mean “his flesh,” indicating they considered the kohen’s wife to be his “flesh.” Therefore, the sages interpreted this verse to mean that a kohen contaminates himself for his “unblemished wife” and therefore, a kohen is required to bury his wife, notwithstanding the seemingly inconsistent language to the contrary in the text.57

In addition to providing basic explanations of and elaborations upon the laws in the Written Law, the Oral Law is believed to contain specific hermeneutic rules as to how the early sages could derive Torah laws. The earliest collection of hermeneutic rules was associated with Hillel the Elder,58 but most (p.38) authorities today refer to the thirteen principles attributed by the tradition to Rabbi Ishmael.59 These rules are recited every day by observant Jews during the morning service.

In developing the Oral Law, the sages sometimes strained to make it consistent with, or even based upon, the Written Law.60 This observation is an interesting one that bears upon the general question of the origin of the Oral Law. A fundamentalist perspective on this issue would conclude that both the substantive content of the Oral Law, as well as the hermeneutic rules, were revealed by God to Moses and passed down throughout the ages.61 Modern scholarship, however, understands the relationship between the orality of post-biblical rabbinic texts and their reduction to writing as the result of a complex, orally based social process through which the oral and the written intersected with one another in an ongoing manner. Professor Elizabeth Shanks Alexander has written that the sages highly valued orality given their attempts “to craft religious ethic and mold men of wisdom and virtue in the wake of great societal upheaval.”62

As the discussion in the following section illustrates, even if the sages were operating within a framework that assumed Revelation by God of the Oral Law in conjunction with the Written Law, the human imprint upon the Oral Law’s development and redaction is palpable. In theory, the sages might have been attempting to discover Revealed truths; in practice, however, they were laying the groundwork for a new understanding of the Jewish religion that, through a “slow and gradual process,”63 ultimately shaped the content of the mesorah (Jewish tradition) in the centuries to come. (p.39)

The Reforms of the Sages in the Rabbinic Period: Forging a New Religion

The nature of Judaism as it is practiced today in traditional circles is markedly characterized by the reforms of the sages in the rabbinic period following the destruction of the Second Temple in 70 ce. Jewish studies historian Shaye Cohen reminds us that even before the destruction of the Second Temple, “the regimen of daily prayer, Torah study, participation in synagogue services, and observance of the commandments sanctified life outside the Temple and, in effect, competed with the Temple cult, just as the new lay scholar class, the scribes and others, in effect competed with the priests.”64 Still, after the Temple’s destruction, the rabbis of this period needed to resolve how the Torah could be applied in a completely new environment. This process continued on well into the early sixth century when the Babylonian Talmud is believed to have been produced.65 Professor Daniel Boyarin has observed that the Talmud “and its major discursive peculiarities” are “the very traits that make rabbinic Judaism what it is.”66

Rabbinic Judaism of this period, predicated on the model of the Pharisee sect, emphasized the construction of a system of norms of holiness rather than public institutions, such as the Temple and the priesthood, that were integral to the biblical period. In contrast to the Pharisees, the rival sect known as the Sadducees responded to the destruction of the Second Temple by continuing the norms of the biblical period. The Sadducees emphasized public institutions, whereas the Pharisees stressed “the personalization of Judaism, the construction of a system of norms of holiness—and a promise of salvation—addressed not only to the collective, but to the individual as well.”67 In other words, the Judaism characteristic of the Pharisaic model “centered not around the Temple, but around the table, where all could eat like priests, and (p.40) the school, where their dual Torah—the written and the oral—was taught.”68 As a consequence, the Pharisees taught that “even outside of the Temple—in one’s own home—one had to follow the laws of cultic purity in the only circumstance in which they might effectively apply, namely, at the table.”69 Everyday meals, therefore, had to be eaten by ordinary people as if they were Temple priests.70 From a cultural analysis standpoint, it is worth noting that the Pharisaic model was a very democratic one in that it called for participation by everyone, not just the priests.71 Further, knowledge of Torah was the determining factor in qualifying for membership in the rabbinic profession, as opposed to wealth or social status.

The philosophy of the Pharisees revealed their view that the laws of the Scripture “should be expanded to cover all of life, [and] not limited to their own originally intended contexts.”72 Political science professors Bernard Susser and Charles Liebman have observed that “rabbinic Judaism…determined the basic form that Judaism would take over the course of the following two millennia of Exile.”73 Although “an impressive body of halakhah was already in existence long before the rabbis turned to jurisprudence,” the importance of the rabbis’ work during this time was in following “principles which protected legislation from inflexibility and society from fundamentalism.”74 Professor Isaiah Gafni has observed that the sages engaged in a “rabbinization of the past” through which they represented “earlier figures or institutions of Jewish history…in the image of the rabbinic world.”75 By resorting to this process, they were able to create a sense of continuity with an “untarnished past”76 and were masters of creating new, discontinuous (p.41) approaches that nonetheless arguably maintained an authentic connection to the past. Rabbi Eugene Borowitz captured the essence of rabbinic Judaism with the following observation:

The rabbis’s theological creativity operates mainly in their reshaping of the multitudinous ideas and images of biblical belief. In this process they continue the millennial Jewish experience of reinterpreting the covenant as times change and as their own intellectuality and religious sensitivity demand.77

Despite the innovative tendencies of the rabbis during this period, Rabbi Max Kadushin has noted the strong degree of coherence characterizing the rabbinic literature produced following the destruction of the Second Temple. Kadushin claimed that this coherence “must have been such as made for unity of thought over great stretches of time and still gave room for differences due to changed circumstances and to the divergent proclivities of individuals.”78 A famous narrative in the Talmud illustrates the same idea. According to this story, Moses visits the academy of Rabbi Akiva, who lived around 1400 years after him, and fails to understand anything that Akiva is saying. Still, Moses is comforted when Akiva cites as the source for the law being discussed the “halakhah transmitted orally to Moses at Sinai” because this statement indicates that Akiva and his contemporaries believed themselves to be part of the ongoing tradition dating back to Moses.79 The implication of this narrative is “that a gap exists between the revelation Moses received and the later teachings of the rabbis.”80

Theologically, the rabbis of this period developed the Oral Law to make Revelation a continuing reality in the lives of Jews living in the post-destruction era. Rabbi Gerson Cohen observed that “the only way that the revelation could be kept relevant to new problems was to interpret the written word so as to make it apply to the activities of the peasant and the businessman, the housewife and the servant, the schoolboy and the scholar.”81 (p.42) Searching the written text for meanings relevant to the present—a process known as midrash—provides a way for Jews to engage even today. Grounding change in Scripture facilitated the rabbis’ goal of consistency, even if that process was sometimes somewhat attenuated.82 In other words, “to achieve a serious hearing and to attain a measure of validity an idea had to be attached to a verse…[or] ‘derived’ from Scripture.”83 As discussed in Chapter 1, the rabbinic lawmaking process calls to mind the notion of a chain novel that depends upon change being rooted in the past so that innovations can maintain the integrity of the enterprise.84

A foundational example of this process concerns the rabbinic focus on prayer as a substitute for animal sacrifice, which prevailed during the biblical and Temple periods. In the Mishnaic tract Pirkei Avot (popularly known as Ethics of the Fathers or Sayings of the Fathers), the text quotes Simeon the Just, who lived prior to the destruction of the Second Temple, as saying, “By three things the world exists: by the Torah, by the service, and by the deeds of loving kindness.”85 The original context of the word for service as it appears in the text—avodah—was animal sacrifice in the Temple. After the Temple’s destruction, however, the rabbis extended its meaning to include any form of worship.86 In fact, the Talmud refers to prayer as “the service of God performed in the heart.”87 The rabbis looked to the power of personal and community prayer as the primary vehicle enabling the Jews to become close to God, in the same way that offering animal sacrifices functioned as the primary way for Jews to connect to God in the pre-destruction era.88 This transformation reveals how the rabbis of this period forged changes to the religion while retaining a continuous and purportedly authentic connection with the Israelite religion of biblical times. (p.43)

Although synagogues, the venues of public worship, were not important centers of study for the sages, they gradually “rabbinized” them over a long period of time.89 Moreover, the liturgy developed by the rabbis after the Temple’s destruction revealed “a profound nostalgia for the Temple service and its rigid protocol and precise regulation.”90 Gradually, then, the rabbis forged a religion in which the synagogue became central, and “the stabilization and adoption of a uniform order of synagogal service permanently fixed the foundations of communal religious expression.”91 From a sociological perspective, this model provided the basis for the rich model of community worship that continues to exist to this day.

Another paradigmatic example of rabbinic innovation following the destruction of the Temple is the re-creation of the Passover Festival. Talmud professor Baruch Bokser emphasized how Passover became the paradigm for the creation of new religious measures that nonetheless traced their roots to the biblical period.92 In the Bible, the paschal sacrifice is depicted as the basis for a family meal. In Chapter 12 of Exodus, the text states that each family is to slaughter its own lamb unless the household is too small. In that case, one household can share the lamb with a neighbor dwelling nearby.93 Also, the Israelites were commanded to eat the Passover offering “roasted over the fire, with unleavened bread and with bitter herbs”94 and to “not leave any of it over until morning.”95 According to Bokser, this “portrayal of a home gathering with cultic overtones provides a general model of how to perform rituals and pious activities outside of a temple.”96

Thus, absent the existence of the Temple, the rabbis eliminated the mass pilgrimage of Jews to Jerusalem and instead emphasized the family-oriented nature of the Passover meal as depicted in the Torah. Significantly, in the (p.44) Mishnah’s account of Passover, the rabbis downplayed the paschal sacrifice in the Temple and instead elevated the matzah and bitter herbs also mentioned in the Bible.97 In both the Mishnah and the Haggadah (the text containing the service for the Passover seder), the rabbis taught that consuming the symbolic foods and retelling the Exodus narrative were sufficient to make up for the inability to perform the Passover sacrifice after the Temple’s destruction. As a result of this rabbinic reinterpretation, during the seders Jews simply point to the little shank bone on the seder plates that represents the sacrifice while nibbling on both matzah and bitter herbs.98

Moreover, the Passover meal itself involves innovation linked to continuity. As indicated above, Chapter 12 of Exodus outlines the concept of a family meal during which time the sacrifice is consumed by members of the household. In the times of the early rabbis, however, the Greco-Roman tradition of symposia and banquets, with their emphasis on intellectual discourse, may have influenced the development of the seder’s focus on storytelling and discussion. The Bible requires parents to instruct their children with respect to the Passover rite. For example, Exodus states, “And when your children ask you, ‘What do you mean by this rite?’ you shall say, ‘It is the Passover sacrifice to the Lord, because He passed over the houses of the Israelites in Egypt when He smote the Egyptians, but saved our houses.’”99 In this regard, the requisite textual instruction pertains to the paschal sacrifice itself rather than to the narrative of the Exodus that is the focus of the Haggadah. Although Bokser concludes that “the seder’s intellectual dimension does not have a simple linear relation to the Bible,” or to Greco-Roman symposia,100 there is a level at which the rabbis began with the family meal delineated in the Bible and adapted it to their current situation by infusing it with a new meaning that was appropriate to their political and cultural milieu.

The story of the development of the Passover seder illustrates how Jewish law historically has operated in a manner that allows for its development within the context of an organic tradition. Judaism as a religion is set up so that the law essentially is the product of human judgment about God’s will. In short, the entire tradition is designed so that new elements with an historic (p.45) basis within the body of the system can be embraced (or at times rejected). Passover, perhaps the most widely celebrated Jewish tradition today, provides a prototypical example of the rabbinic model at work.101

The development of the Passover seder illustrates the rabbis’ outstanding abilities to delicately balance adaptation to their greater surroundings with maintenance of the Jewish tradition. As the following section develops more fully, the rabbis who lived in the Roman Empire during the Greco-Roman period had to forge their laws and tradition in the face of an overpowering Hellenistic cultural presence. From a cultural analysis standpoint, their work provides a fascinating model of the development of a minority tradition that not only borrowed from, but also reinterpreted, elements from the surrounding majority culture.

Hellenistic Influences on Early Jewish Law

Even before the conquest of Alexander the Great in the late fourth century bce, Jews had settled in areas such as Syria, Egypt, and the lands of the Tigris and Euphrates. Still, the development of a Greek Diaspora facilitated the development of a Jewish Diaspora in areas that extended into Greece itself.102 Greek towns appeared even in Palestine, and “the Jews of Judaea could not and did not isolate themselves altogether from the pervasive aura of Hellenism.”103 These Jews had to preserve and perpetuate their culture through the “media and methods” of the more pervasive Hellenistic culture.104 In general, the Jews “redefined their heritage in terms of Hellenistic culture itself” by engaging “actively with the traditions of Hellas, adapting genres and transforming legends to articulate their own legacy in modes congenial (p.46) to a Hellenistic setting.”105 Consequently, around the third or second century bce, the Hebrew Bible was translated into Greek to accommodate the needs of Diaspora Jews for whom Greek was the primary language.106

A fascinating story appearing in the Mishnah centuries later illustrates this dilemma for Jews living in these times. Rabbi Gamaliel, the patriarch of the Palestinian Jewish community of the second century ce, was asked how he could bathe in the Bath of Aphrodite, which contained a statue of the Greek goddess. His reply was, “I did not come within her limits; she came within mine.”107 The rabbi’s reply is significant because he acknowledged the reality that the Jewish people must bathe, even if they must do so in an environment that is spiritually polluted. According to Arnold Eisen, the current Chancellor of the Jewish Theological Seminary, Rabbi Gamaliel’s “assertion of Israelite sovereignty over the polluted Land of Israel (‘she came within my limits’) was essential to Jewish survival.”108

Professor Elias Bickerman, a noted authority on the Jews of the Hellenistic period, has documented extensively the influence of Hellenistic culture on the Jewish legal system that ultimately emerged. He observed that the Pharisaic goal of bringing the Torah to everyone, and the concept that “piety was teachable and to be attained only through teaching,” was a Platonic concept.109 According to Bickerman, Hellenism introduced “the first epoch of general popular education in the Occident” and afforded citizenship rights “only after a sort of ‘proficiency test’ was passed.”110 As was true of the rabbinic tradition throughout its history, these outside concepts were imported into Judaism but reworked so as to comply with the precepts of the tradition. One such example is the importance the sages attributed to everyone (p.47) learning Torah in order to fulfill the prefatory command to the Revelation on Sinai: “Ye shall be unto Me a kingdom of priests, and a holy nation.”111

Further, in stressing the importance of global education, the Pharisees supplemented the Written Law, as discussed earlier. Significantly, this remarkable concept of setting the “halakhah alongside the written law is again Greek.”112 Bickerman has observed:

It is the concept of the “unwritten law” (agraphos nomos), which is preserved not on stone or paper but lives and moves in the actions of the people. But whereas in the Greek world this notion often served to negate the written law, Pharisaism used the oral law to “make a fence for the Torah.”113

According to some scholars, even the “chain of tradition” recorded in the Mishnah through which the rabbis traced the lineage of their authority114 was created unilaterally by the Pharisees based on a Greek model. Professor Eric Meyers has observed that this Pharisaic tradition is “closely related to the Hellenistic philosophical schools that traced their lineage back to Plato himself.”115 Further, Meyers has discussed how the Pharisees also imitated Greek legal hermeneutics in their own development of hermeneutical principles interpreting the Oral Law.116 He notes that the thirteen principles attributed to Rabbi Ishmael,117 along with “other related forms of Talmudic literature, have their precise parallels in Greek legal hermeneutics.”118 Indeed, Talmud professor Saul Lieberman has explained that the rabbis of this period invoked the interpretative strategies accepted in the civilized world so that their methods would be “understood and appreciated by their contemporaries.”119 (p.48)

From a theological perspective, Hellenism also played a part in the Pharisees’ development of a new spiritual agenda. Bickerman notes that according to the account of Flavius Josephus, the renowned Jewish historian who lived in the first century ce, “the Pharisaic doctrine of the future life derives from the Greek teaching of the Pythagoreans.”120 The Hellenistic world popularized the notion that evil on earth can be explained by rewards and punishments that would become operative after death. This idea was foreign to the Bible. The Pharisees adopted the Hellenistic doctrine of resurrection but gave it a spin that was consistent with the Torah. Therefore, whereas “among the Pythagoreans each soul must automatically return to new life after death, each according to its merit…the Pharisees substituted the single event of the Last Judgment, whose day and scope God would determine.”121 The Pharisaic sages “dovetailed the new Hellenistic idea into the structure of biblical ideas” and forged a doctrine that developed into a staple of Jewish belief.122

The reinterpretation of the Jewish religion that emerged in Jewish Palestine provided “a fertile setting for a constructive symbiosis between Jewish and Hellenistic cultures.”123 The leaders of the Jews in Hellenistic Palestine saw “no inherent contradiction between a Hellenized lifestyle and a Jewish practice.”124 An interesting example of this is furnished by “the presence of mythological Greek images on the sarcophagi of the sages,” suggesting “that burial in such containers did not contradict rabbinical Judaism.”125 Meyers has observed that “the manner in which the Jews accommodated” to living in the Hellenistic world culture “became the paradigm for future accommodation to other major world civilizations, such as Rome, Byzantium, Islam, and Christianity.”126

Scholars have emphasized that the notion of adaptation by assimilating selected ingredients from the surrounding culture has been the key to the survival of the Jewish religion throughout the ages. Jewish history professor David Biale has written that “for every period of history, interaction with the non-Jewish majority has been critical in the formation of Jewish culture.”127 (p.49) Susser and Liebman have observed that “Judaism…learned from and was enriched by the many cultural legacies it inherited from the dozens of countries through which Jews passed.”128 They posit that the source of “Jewish cultural creativity” may be in its multidimensional confrontation “with so many of the world’s greatest cultures.”129 According to Gerson Cohen, Judaism “was able to survive as a living culture…precisely because of its ability to translate its culture; that is, to accept as a positive value a considerable degree of assimilation.”130

Biale concurs that throughout history the Jews were able to construct their particular identities through their “profound engagement with the cultures of their environment,” but he notes two “seeming paradoxes” resulting from this phenomenon:

On the one hand, the tendency to acculturate into the non-Jewish culture typically produced a distinctive Jewish subculture. On the other hand, the effort to maintain a separate identity was often achieved by borrowing and even subverting motifs from the surrounding culture.131

The cultural analysis paradigm reminds us that what was true for Jewish culture generally also was true for Jewish law specifically because these societal elements are completely intertwined. Talmud professor Joel Roth has observed that “borrowings from other legal systems, whether consciously or unconsciously…often incorporate the sociological reality into the Jewish legal system, sometimes intact and sometimes modified.”132 In other words, both Jewish law and Jewish culture reflected and was shaped by the reality of assimilation and acculturation.

Rabbinic Law in the Post-Talmudic Period

Ultimately, the rabbinic culture that emerged in Babylonia, rather than Palestine, had the greatest impact on the development of Jewish law throughout the centuries to come. On a comparative level, Babylonian Jews enjoyed (p.50) far more cultural autonomy than their Palestinian counterparts, who had to face an overpowering Hellenistic cultural presence. Although two Talmuds were redacted, one in Palestine and the other in Babylonia, the latter surpassed the former in importance.133

The rabbis who lived in Babylonia during the early centuries of the Common Era crafted and propagated “a self-image that would project this culture as being the embodiment of the one unique and ancient model of true, unadulterated Israelite tradition, with uncontaminated roots going back to First-Temple Jerusalem and the days of the prophets.”134 Despite the appeal to many of this image, the reality suggests otherwise given that the Babylonian rabbinic culture, like any culture, was subject to outside influences. Boyarin has documented a “shared cultural milieu” between the Hellenistic and Christian traditions and the rabbinic culture in Babylonia.135 In this context, he posits that rather than thinking in terms of one culture’s influence on another, it is more accurate to think of “shared and overlapping cultures…in different variants.”136 In this regard, Boyarin’s theory embraces a particularly fluid view of culture that is characteristic of cultural analysis.137

With respect to the rabbinic culture of Babylonia specifically, the surrounding Middle Persian attitudes and the doctrines of Zoroastrianism, the Persian Empire’s official religion, were especially strong cultural influences. Professor Yaakov Elman’s study demonstrates that the Babylonian Talmud itself testifies to substantial “Jewish acculturation to the Persian way of life, mores, and culture.”138 These Persian outside influences also impacted the developing halakhah and rabbinic theology.139

Regardless of these cultural realities, the sages succeeded “in securing a near-universal acceptance of their Babylonian Talmud as the definitive expression of rabbinic Judaism.”140 By the beginning of the Jewish Middle (p.51) Ages, the Talmudic literature informed the dominant mode of Jewish practice.141 This period can be defined as the one spanning the seventh to the eighteenth centuries. The emancipation of the Jews and the beginning of modernity tend to mark the end of this time frame.

During the Jewish Middle Ages, Jewish law and culture developed in Islamic and Christian environments.142 In the Muslim Mediterranean basin, all Jews—the rabbis, their dissenters, and the people at large—adopted Arabic language and culture just as the earlier Jews of Palestine embraced Greek culture by both owning and transforming it.143 Saadia Gaon, who lived in Babylonia under Muslim rule during the ninth and tenth centuries, translated the Bible into Arabic, which “helped to accelerate the process of the adaptation of rabbinic Judaism to the canons and tastes of intellectual Arabic society.”144 Moses Maimonides, one of the most renowned Jewish philosophers, also was a product of Islamic culture. In discussing the environment in which Maimonides lived in the twelfth century, Menachem Kellner, a scholar of medieval Jewish philosophy, has observed, “Just as today many Jews, even those learned to one degree or another in Judaism, use essentially alien categories in their own understanding of Judaism…so Maimonides’ audience lived in a culture suffused with elements of Greek and Muslim thought and very likely understood at least portions of their own faith in terms of categories borrowed from the host society.”145

Bernard Lewis, a scholar of Oriental Studies, has observed that during the Middle Ages, Jewish law was heavily influenced by the mores and norms of the dominant Islamic and Christian cultures. Further, differences in these respective cultures impacted Jewish law in different ways. He illustrated this general point by looking to the law of marriage:

One of the clearest and most striking differences between Christian and Islamic usage is that while Islam permits polygamy and concubinage, Christianity bans both. In the Christian world the Jews adopted (p.52) and practiced monogamy to the point of making it a rule of law; in the Muslim world most Jewish communities practiced, or at least permitted, polygamy and concubinage until almost the present day.146

The influence of Christianity was particularly prominent among European Jews during the Middle Ages. As early as the ninth century, small groups of Jews migrated from Italy to France and Germany. These groups ultimately grew into the prominent Ashkenazic Jewish culture of Northern, and eventually Eastern, Europe.147 The Ashkenazic Jews developed their culture and ritualistic laws in the High Middle Ages within the milieu of Christianity, resulting in an interesting process that involved both borrowing and polemics, a process termed “inward acculturation” by Jewish history and religious studies professor Ivan Marcus.148 For example, as discussed in Chapter 3, these Jews responded to persecutions and the ensuing pogroms “by developing a cult of martyrdom and rituals to memorialize the dead, elements of which they adapted from Christian imagery.”149

With respect to adherence to the ritualistic precepts of the tradition, once again the halakhists of this period sought “to justify the legality of the adjustments in terms of the ancient tradition” so that although there were deviations from older practices, “Jewish life was made to appear as a continuation of that of earlier times.”150 In this sense, therefore, the function of Jewish law was to balance “the necessity for adjustment to new conditions and the preservation of Jewish identity.”151 One interesting illustration of this process involves the rabbinic inclination to permit trading in wine prepared by Gentiles, while maintaining the prohibition against personal consumption of such beverages. The rationale behind this distinction was the socioeconomic reality that “the use of wine for business was an economic necessity, and to grant permission for this purpose did not imply any social contact with non-Jews” which, (p.53) it was feared, would lead to intermarriage.152 Nevertheless, the Talmudic prohibition is clear in that it applies to both trading and consumption.153

Another revealing example of this process involves the prohibition of interest. The Torah contains three separate prohibitions outlawing lending with interest among Jews.154 Rabbi Hillel Gamoran published an extensive scholarly treatment of these prohibitions and their historical interpretations as they apply to loans between Jews. He notes that these biblical prohibitions must be understood in the context of protections for the poor rather than regulation of commerce.155 Gamoran examines in detail buying on credit as one of the violations of the biblical prohibitions. Although the Mishnah prohibits credit sales among Jews,156 the sages were already finding ways to circumvent the prohibition and allow for the development of trade and commerce.157 The rabbis manifested additional latitude later in Talmudic times.158 As was the case with trading in wine by Gentiles, by the Middle Ages the rabbis had significantly loosened the strictures concerning buying on credit in order to legalize the practices of the people and to allow Jewish law to coexist with the economic realities of the times.159 Very simply, the Jewish people “lived in a credit society” and “to abandon interest would imperil their livelihoods.”160 In this situation as with others, the problem was solved through creative legal interpretation.

Both the medieval and the modern centuries reflected the same type of cultural exchange between the Jews and their host cultures as occurred during the Talmudic period. This reality “demonstrates how the culture of a minority group like the Jews can never be separated from that of the majority surrounding it.”161 The process, repeatedly, was a complex one that mediated (p.54) between “adaptation and resistance.”162 This adaptation also produced a wide range of divergent religious practices and customs, a point that will be addressed more fully in Chapter 3.163 Yet, despite the existence of diversity among the Jews as a whole during this time, there remained a compelling uniformity of legal practice that served as a “testimony not only to the power of the classical texts but also to the authorities who were its custodians.”164 In his study of the early modern period, Dean Bell remarked that “Jews appear to have had a remarkable ability to engage the world around them,” to adapt to the majority’s customs while infusing them with Jewish meaning, and to retain their own religion.165

Although the Jews incorporated and revamped aspects of their surrounding culture throughout history, up until the emancipation the majority continued to adhere to traditional practices and maintained their religious heritage. Jacob Katz, in his study of the Jews between the years 1770 and 1870 in Europe, noted that in the early part of this period, the Jews were still socially and culturally isolated, tightly organized, and reliant on their religion as a mighty “force for unification.”166 By the second half of the nineteenth century, however, Jews were no longer culturally isolated, the economic isolation was ameliorated if not completely gone, and they “were divided among themselves in point of religion.”167 Significantly, however, Jews still adhered to the practice of maintaining “exclusively Jewish family ties.”168

This chapter emphasizes the role of religious leaders in interpreting and developing Jewish law. The composition of Jewish law, however, always has considered the practices of the people, and in this regard, it embraces a critical insight of cultural analysis. The following chapter examines this bottom-up participatory process in more detail.

Notes:

(1.) See generally BYRON L. SHERWIN, IN PARTNERSHIP WITH GOD: CONTEMPORARY JEWISH LAW AND ETHICS 18 (1990).

(2.) See Samuel J. Levine, Halakhah and Aggada: Translating Robert Cover’s Nomos and Narrative, 1998 UTAH L. REV. 465, 477.

(3.) Different understandings of the covenant exist within the boundaries of the Jewish tradition, but a detailed exploration of this theme is beyond the scope of this work. For an insightful and provocative account of the covenantal anthropology, see generally DAVID HARTMAN, A LIVING COVENANT: THE INNOVATIVE SPIRIT IN TRADITIONAL JUDAISM (1998).

(4.) Daniel Gordis, Revelation: Biblical and Rabbinic Perspectives, in ETZ HAYIM: TORAH AND COMMENTARY 1394, 1395 (David L. Leiber et al. eds., 2001) [hereinafter ETZ HAYIM].

(5.) Id. at 1398.

(6.) Sotah 37b (Babylonian Talmud); Hagigah 6b (Babylonian Talmud); Zevahim 115b (Babylonian Talmud).

(7.) ABRAHAM JOSHUA HESCHEL, HEAVENLY TORAH 378 (Gordon Tucker trans., 2005).

(8.) Id. at 378–79.

(9.) Id. at 40.

(10.) Id.

(11.) Id.

(12.) Id. at 559 n.18 (editor’s note).

(13.) Heschel devotes several chapters to defining and applying this terminology. See id. at 552–640.

(14.) Michael Rosensweig, Eilu ve-Eilu Divrei Elohim Hayyim: Halakhic Pluralism and Theories of Controversy, in RABBINIC AUTHORITY AND PERSONAL AUTONOMY 93, 108–09 (Moshe Z. Sokol ed., 1992) [hereinafter RABBINIC AUTHORITY].

(15.) Exodus 5:9 (The Midrash Rabbah) (“[T]‌o the old, according to their strength, and to the young, according to theirs; to the children, to the babes and to the women, according to their strength and even to Moses according to his strength.”).

(16.) Rosensweig, supra note 14, at 109.

(17.) Id.

(18.) These theologians include Louis Jacobs, Elliot Dorff, and Arthur Green. For a discussion of their respective views on this point, see ELLIOT N. DORFF, THE UNFOLDING TRADITION: JEWISH LAW AFTER SINAI 273, 331, 460 (2005).

(19.) HESCHEL, supra note 7, at 42–45.

(20.) DORFF, supra note 18, at 50.

(21.) See Introduction: The Talmud, Rabbinic Literature, and Jewish Culture, in THE CAMBRIDGE COMPANION TO THE TALMUD AND RABBINIC LITERATURE 1, 5 (Charlotte E. Fonrobert & Martin S. Jaffee eds., 2007) [hereinafter CAMBRIDGE COMPANION].

(22.) SHERWIN, supra note 1, at 219 n.28.

(23.) Id. at 19.

(24.) Id. at 20.

(25.) Id. at 24.

(26.) Seymour Siegel, The Unity of the Jewish People, CONSERVATIVE JUDAISM, Spring 1990, at 21, 25.

(27.) Elliot Dorff, Judaism as a Religious Legal System, 29 HASTINGS L.J. 1331, 1350 n.70 (1978).

(28.) Shabbat 31a (Babylonian Talmud).

(29.) See Deuteronomy 17:8–11.

(30.) See Rosh Hashanah 25a–b (Babylonian Talmud).

(31.) See also supra Chapter 1, notes 88–89 and accompanying text. The Mishnah is written in such a way as to facilitate memorization of its contents. Elizabeth Shanks Alexander, The Orality of Rabbinic Writing, in CAMBRIDGE COMPANION, supra note 21, at 38, 48.

(32.) Avot 1:1 (Mishnah) (The ArtScroll Mesorah Series 1984) (“Moses received the Torah from Sinai and transmitted it to Joshua; Joshua to the Elders; the Elders to the Prophets; and the Prophets transmitted it to the Men of the Great Assembly”). This tractate of the Mishnah is known as Pirke Avot (Ethics of the Fathers).

(33.) See DAVID WEISS HALIVNI, MIDRASH, MISHNAH, AND GEMARA 47 (1986) (observing that this “chain of tradition” was composed “around the first quarter of the second century for the purpose of strengthening [the sages’] authority, showing themselves to be direct successors of Moses, who received the Torah from Sinai”).

(34.) See Aaron Kirschenbaum, Subjectivity in Rabbinic Decision-Making, in RABBINIC AUTHORITY, supra note 14, at 61, 70–71. See also Shaye J.D. Cohen, The Judaean Legal Tradition and the Halakhah of the Mishnah, in CAMBRIDGE COMPANION, supra note 21, at 121, 140 (demonstrating the innovative tendencies on the part of the sages of mishnaic Judaism based on the text’s logic, rhetoric, and other “dominant concerns”).

(35.) See Exodus 31:14.

(36.) See Exodus 16:23.

(37.) See Exodus 35:3.

(38.) See Numbers 15:32–36 (prescribing death as a punishment).

(39.) Shabbat 7:2 (Mishnah).

(40.) See Exodus 31:1–11; 31:12–17.

(41.) See, e.g., Shabbat 103a (Babylonian Talmud) (“Even one who strikes with a hammer on the anvil while working is liable, for indeed, those who pounded the sheets of gold for the Mishkan [Tabernacle] did this.”); see also Shabbat 49b (Babylonian Talmud) for general principles concerning the Mishkan. See also infra Chapter 5, note 73 and accompanying text.

(42.) In Chapter 18, verse 30 of Leviticus, the Torah states “you shall keep My charge,” but the Hebrew word for “keep,” shomer, can also be translated as “guard or protect.”

(43.) See, e.g., Genesis 1:5 (“And there was evening and there was morning, a first day”).

(44.) Rosh Hashanah 9a (Babylonian Talmud).

(45.) Exodus 15:2.

(46.) Shabbat 133b (Babylonian Talmud).

(47.) Id.

(48.) Bava Kamma 9b (Babylonian Talmud).

(49.) See Steven H. Resnicoff, Autonomy in Jewish Law—In Theory and in Practice, 24 J.L. & RELIGION 507, 516 (2009) (discussing the apparent inconsistencies in the Written Torah involving circumcision and the Sabbath).

(50.) See, e.g., Exodus 12:15; Leviticus 23:6.

(51.) Pesahim 120a (Babylonian Talmud).

(52.) See Exodus 21:22–25.

(53.) See Bava Kamma 83b (Babylonian Talmud).

(54.) Barry Holtz, Midrash, in BACK TO THE SOURCES 177, 181–82 (Barry W. Holtz ed., 1984).

(55.) Leviticus 21:2–3.

(56.) Leviticus 21:4.

(57.) See Yevamot 22b (Babylonian Talmud). The sages understand an “unblemished” wife as a woman who is not divorced and therefore qualified to be the wife of a kohen.

(58.) Hillel the Elder is believed to have died in the first century ce before the destruction of the Second Temple in 70 ce. See Stephen G. Wald, Hillel the Elder, in 9 ENCYCLOPEDIA JUDAICA 108 (Michael Berenbaum & Fred Skolnik eds., 2d edition, 2007).

(59.) But see HERMANN L. STRACK, INTRODUCTION TO THE TALMUD AND THE MIDRASH 25 (2004) (noting that the attribution of these thirteen rules to Rabbi Ishmael is historically inaccurate because this framework was developed centuries later).

(60.) See SAUL LIEBERMAN, GREEK IN JEWISH PALESTINE: HELLENISM IN JEWISH PALESTINE 63 (1950) (noting that rabbinic literature “abounds in…artificial and forced interpretations”).

(61.) See HESCHEL, supra note 7, at 559 (comparing this maximalist perspective of Rabbi Akiva with that of Rabbi Ishmael’s minimalist approach).

(62.) Alexander, supra note 31, at 55. She also discusses the work of Martin Jaffee demonstrating that the physical proximity between sage and disciple necessitated by oral transmission was a key element of this rabbinic culture. Id. at 54.

(63.) Jeffrey L. Rubinstein, Social and Institutional Settings of Rabbinic Literature, in CAMBRIDGE COMPANION, supra note 21, at 58, 66 (speaking of the amoraic period in Babylonia; see also infra note 76). Rubinstein also notes that, contrary to the common understanding, it is unlikely that the rabbis banded together following the destruction of the Second Temple in 70 ce “in the pursuit of some grand, and under the circumstances grandly implausible, scheme to preserve Judaism in the absence of a Temple.” Id. at 77.

(64.) SHAYE J.D. COHEN, FROM THE MACCABEES TO THE MISHNAH 210–11 (2d edition, 2006). The quotation from Cohen’s book has been modified to reflect a capitalized spelling of “Temple” as used consistently throughout this text.

(65.) See also supra Chapter 1, notes 90–91 and accompanying text.

(66.) Daniel Boyarin, Hellenism in Jewish Babylonia, in CAMBRIDGE COMPANION, supra note 21, at 336, 340.

(67.) JONATHAN WOOCHER, SACRED SURVIVAL 158 (1986).

(68.) Id.

(69.) JACOB NEUSNER, THE ORAL TORAH 19 (1991).

(70.) Id.

(71.) Judah Goldin, The Period of the Talmud, in THE JEWS: THEIR HISTORY 119, 157 (Louis Finkelstein ed., 1970) (noting that the law was not just for the priests but for the entire “house of Jacob”).

(72.) Robert Goldenberg, Talmud, in BACK TO THE SOURCES 129, 130–31 (Barry W. Holtz ed., 1984).

(73.) BERNARD SUSSER & CHARLES LIEBMAN, CHOOSING SURVIVAL 28 (1999).

(74.) Goldin, supra note 71, at 163.

(75.) Isaiah Gafni, Rabbinic Historiography and Representations of the Past, in CAMBRIDGE COMPANION, supra note 21, at 295, 304–05.

(76.) Id. at 307. Gafni also notes that the rabbinization process was most prevalent during the period of the amora’im, who lived in the Middle Rabbinic period after the year 220 ce. Id. at 306, 308. See also CAMBRIDGE COMPANION, supra note 21, at xiv.

(77.) Eugene Borowitz, Judaism: An Overview, in JUDAISM: A PEOPLE AND ITS HISTORY 3, 13 (Robert Seltzer ed., 1987).

(78.) MAX KADUSHIN, ORGANIC THINKING 3 (1st edition, 1938).

(79.) See Menahot 29b (Babylonian Talmud).

(80.) Alexander, supra note 31, at 43.

(81.) Gerson D. Cohen, The Talmudic Age, in GREAT AGES AND IDEAS OF THE JEWISH PEOPLE 143, 177 (Leo W. Schwarz ed., 1956).

(82.) See id. at 175 (“Occasionally this might involve tearing a phrase out of context, emending the holy text, or…interpreting a Hebrew word as though it were synonymous with a similar-sounding Greek one!”).

(83.) Id.

(84.) See also supra Chapter 1, notes 135–36 and accompanying text.

(85.) Pirkei Avot 1.2 (Mishnah) (Philip Blackman trans., 2000). There is some discrepancy as to whether Simeon the Just refers to Simeon I (who lived around 280 bce) or his grandson, Simeon II (who lived around 200 bce), although the latter is the most favored position. See ETHICS OF THE FATHERS 4 n.10 (Hyman E. Goldin trans. & ann., 1962).

(86.) Id. at 4 n.13.

(87.) Taanit 2a (Babylonian Talmud).

(88.) For an excellent discussion of this concept, see THE KOREN SACKS SIDDUR xxxvi–ix (Jonathan Sacks ed., 2009).

(89.) Rubenstein, supra note 63, at 67.

(90.) Cohen, The Talmudic Age, supra note 81, at 207.

(91.) Id. at 168–69.

(92.) BARUCH BOKSER, THE ORIGINS OF THE SEDER 8 (1984).

(93.) ETZ HAYIM, supra note 4, at 380–81 (corresponds to Exodus 12:3–4).

(94.) Id. at 382 (translation of Exodus 12:8). For the most part, this book uses the English translation of the Torah that is derived from ETZ HAYIM. The Introduction to ETZ HAYIM states that this translation is from the most recent Jewish Publication Society translation, which is “considered by scholars to be the standard in the Jewish world.” Id. at xx.

(95.) Id. (translation of Exodus 12:10).

(96.) BOKSER, supra note 92, at 9.

(97.) The bitter herbs are mentioned in Exodus in conjunction with eating the Passover offering, see Exodus 12:8, although unleavened bread is also mentioned separately in the Bible. See Exodus 12:15; Leviticus 23:6.

(98.) BOKSER, supra note 92, at 8.

(99.) ETZ HAYIM, supra note 4, at 386 (translation of Exodus 12:26–27).

(100.) BOKSER, supra note 92, at 12.

(101.) Interestingly, the Passover seder also is a perfect example of both halakhah and aggadah—the two primary components of rabbinic activity—operating together given that the Haggadah is composed of many narratives “to be discussed, pondered and explored.” Holtz, supra note 54, at 202 (noting that “the Haggadah is more appropriately understood as a study compendium and the seder as a learning experience rather than as a ‘service’”); see also Isaiah M. Gafni, The Historical Background, in THE LITERATURE OF THE SAGES 1, 15 (Shmuel Safrai & Peter J. Tomson eds., 1987) (noting how the activities of the rabbis following the destruction of the Second Temple stressed “continuity with Jerusalem and the past, while simultaneously setting up an authority structure and religious framework that clearly evolved out of a radically new situation”).

(102.) Erich S. Gruen, Hellenistic Judaism, in CULTURES OF THE JEWS 77, 101 (David Biale ed., 2002).

(103.) Id. at 78.

(104.) Isaiah Gafni, Babylonian Rabbinic Culture, in CULTURES OF THE JEWS, supra note 102, at 223, 230.

(105.) Gruen, supra note 102, at 80.

(106.) Id. at 78–79 (this translation is known as the Septuagint). Although historians explain the creation of the Septuagint, as discussed in the text, some classical Jewish sources provide a different picture. See AMMIEL HIRSCH & YOSEF REINMAN, ONE PEOPLE, TWO WORLDS 188 (2002) (including the statement by Yosef Reinman that the Septuagint was the result of Egyptian king Ptolemy’s order to translate the Torah into Greek around 250 bce; Reinman claims this event is “recorded as an awful tragedy in Megillat Taanit, composed during Mishnaic times, not more than a century or two after the fact”).

(107.) Avodah Zarah 3:4 (Mishnah).

(108.) ARNOLD M. EISEN, GALUT: MODERN JEWISH REFLECTIONS ON HOMELESSNESS AND HOMECOMING 40 (1986); see also Eric M. Meyers, Jewish Culture in Greco-Roman Palestine, in CULTURES OF THE JEWS, supra note 102, at 135 (noting that this narrative “attests to the sense the Jews have of participation in the discourses of the wider culture”).

(109.) ELIAS BICKERMAN, FROM EZRA TO THE LAST OF THE MACCABEES 162 (1987).

(110.) Id.

(111.) Id. at 163; see Exodus 19:6.

(112.) BICKERMAN, supra note 109, at 163.

(113.) Id. at 163–64 (emphasis added).

(114.) See supra notes 31–34 and accompanying text.

(115.) Meyers, supra note 108, at 167. According to Meyers, this chain of tradition was an innovation that occurred “roughly parallel in time to the second-century invention of the ‘apostolic succession’ among Catholic Christians.” Id.

(116.) Id. at 170.

(117.) See supra note 59 and accompanying text.

(118.) Meyers, supra note 108, at 170. See also LIEBERMAN, supra note 60, at 55–64.

(119.) LIEBERMAN, supra note 60, at 78 (this similarity also extended to interpretations of dreams).

(120.) See BICKERMAN, supra note 109, at 165.

(121.) Id.

(122.) Id.

(123.) Meyers, supra note 108, at 174.

(124.) Id. at 161.

(125.) Id. at 171.

(126.) Id. at 136.

(127.) David Biale, Preface to CULTURES OF THE JEWS, supra note 102, at xv, xx.

(128.) SUSSER & LIEBMAN, supra note 73, at 88.

(129.) Id.

(130.) GERSON D. COHEN, JEWISH HISTORY AND JEWISH DESTINY 151 (1997).

(131.) Biale, Preface, supra note 127, at xxi.

(132.) JOEL ROTH, THE HALAKHIC PROCESS 303 (1986).

(133.) See Introduction to CAMBRIDGE COMPANION, supra note 21, at 1, 8–9. See also supra Chapter 1, note 90.

(134.) Gafni, supra note 104, at 223, 253.

(135.) Boyarin, supra note 66, at 336–37.

(136.) Id. at 349.

(137.) See Naomi Mezey, Law as Culture, 13 YALE J.L. & HUMAN. 35, 43 (2001).

(138.) Yaakov Elman, Middle Persian Culture and Babylonian Sages: Accommodation and Resistance in the Shaping of Rabbinic Legal Tradition, in CAMBRIDGE COMPANION, supra note 21, at 165, 166.

(139.) Elman’s study provides an extensive examination of these topics. Id.

(140.) Gafni, supra note 104, at 253.

(141.) See David Biale, Introduction to Part Two: Diversities of Diaspora, in CULTURES OF THE JEWS, supra note 102, at 305.

(142.) Id.

(143.) See generally Raymond P. Scheindlin, Merchants and Intellectuals, Rabbis and Poets: Judeo-Arabic Culture in the Golden Age of Islam, in CULTURES OF THE JEWS, supra note 102, at 313.

(144.) COHEN, supra note 130, at 153.

(145.) MENACHEM KELLNER, DOGMA IN JEWISH THOUGHT 45 (1986).

(146.) BERNARD LEWIS, THE JEWS OF ISLAM 82, 196 n.21 (1987).

(147.) Biale, supra note 141, at 306.

(148.) Ivan G. Marcus, A Jewish-Christian Symbiosis: The Culture of Early Ashkenaz, in CULTURES OF THE JEWS, supra note 102, at 449, 461. See also infra Chapter 3, notes 25–27 and accompanying text.

(149.) Biale, supra note 141, at 306–07. See also infra Chapter 3, notes 125–49 and accompanying text.

(150.) JACOB KATZ, EXCLUSIVENESS AND TOLERANCE 45–46 (1961).

(151.) Id. at 46.

(152.) Id. at 46–47.

(153.) Id. at 46 (“The Talmudic sources do not make any distinction between the Gentile’s wine as an object of trade and as a commodity for personal consumption”).

(154.) See Deuteronomy 23:20–21; Exodus 22:24; Leviticus 25:35–37.

(155.) HILLEL GAMORAN, JEWISH LAW IN TRANSITION 5–8 (2008).

(156.) See, e.g., Bava Metzia 5:2 (Mishnah).

(157.) GAMORAN, supra note 155, at 20 (“[I]‌f the ‘regular’ price of the goods already included the cost of credit, then the transaction was allowed”).

(158.) Id. at 31, 66 (discussing the complicated and not completely defined Talmudic concept of the tarsha as a means of circumventing the prohibition concerning credit sales).

(159.) Id. at 62–93.

(160.) Id. at 179.

(161.) Biale, supra note 127, at xx.

(162.) Id. at xix.

(163.) One division familiar to many Jews even today is that of the Eastern European Ashkenazic Jews and their Sephardic brethren, whose roots can be traced to the Iberian Peninsula in the period preceding the expulsion of the Jews from Spain. See generally Benjamin R. Gampel, A Letter to a Wayward Teacher: The Transformations of Sephardic Culture in Christian Iberia, in CULTURES OF THE JEWS, supra note 102, at 389.

(164.) Biale, supra note 141, at 309.

(165.) DEAN BELL, JEWS IN THE EARLY MODERN WORLD 232 (2007).

(166.) JACOB KATZ, OUT OF THE GHETTO 213 (1973).

(167.) Id. at 213–14.

(168.) Id. at 214. In contrast, today intermarriage among American Jews exceeds 50 percent. See infra Chapter 9, notes 27–30 and accompanying text.