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CHAPTER 1
The Idea of Halakhah
Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of your spices — mint, dill, and cumin. But you have neglected the more important matters of the law — justice, mercy, and faithfulness. You should have practiced the latter, without neglecting the former.
— MATTHEW 23:23
Savory, hyssop, and thyme: When they grow in the courtyard and are watched over, they are deemed food and are obligated in the tithe.
— MISHNAH MA'ASROT 3:9
The Descent into Law: from the Bible to the Mishnah
To make sense of the idea of law cultivated by the talmudic rabbis, we start by contrasting it to the view found in the Hebrew Bible.
Scripture places great emphasis on recognizing God as the creator of the universe, that God chose the Jewish people from among the nations, that God commanded them to live a life according to specific laws, and worship only the one God of the Torah. The Bible is particularly concerned with the political consequences of God's choice of the Jewish people, and its commandments focus on the nation and its institutions. Though it contains some legal minutiae, legal dialogue and analysis are conspicuously absent from the biblical verse. Instead, we see a few central themes repeated again and again: worshipping one God, avoiding idolatry, honoring Shabbat, preserving sexual morality, and taking care of the less fortunate. The Bible's religious consciousness — the categories it uses to understand God's message — center on national/political institutions such as the Temple, priesthood, prophecy, and the monarchy. In the Bible's ideal world, Jews live as a nation that follows the divine word.
The rabbis of the Talmud, too, held that God is the Creator and had chosen the Jewish people. For the rabbis, however, living God's will requires considerably more detailed knowledge of what the law mandates than a plain reading of the Bible lets on. To observe Shabbat one must know precisely when it begins, when it ends, and what "observing" entails. Similarly, refraining from idol worship requires a refined understanding of what acts constitute worship and which belief systems are deemed idolatrous. The talmudic sages held the laws of the Bible cannot be practiced until they are translated into more particular and detailed categories.
This, broadly speaking, is the project of the Mishnah, a code-like document compiled in the land of Israel in the second and third centuries C.E., which constitutes the foundation of rabbinic halakhah.
A critical difference between the worldviews of the Bible and the rabbis comes to light when examining the term "mitzvah." In the Bible, both the singular and plural forms of this term refer to the overall content of God's teachings and commandments. Throughout Deuteronomy, the people are implored "to follow the mitzvah which God has commanded" — that is, the whole of God's instructions. In the hands of the rabbis, however, the term gains a more concrete meaning: a mitzvah is a particular instance of halakhic-legal obligation. The rabbis held that the Torah is comprised of 613 individual mitzvot, each a foundational source of law. The Mishnah's goal is to articulate the scope of the mitzvot along with the rabbinic laws and enactments designed to expand and fortify them.
A second difference lies in the terminology used to talk about mitzvot. The Bible presents them within a series of grand theological and national narratives: the exodus from Egypt, the revelation at Sinai, the conquest of the land of Israel, and so forth. The Mishnah, however, analyzes the mitzvot in terms of their legal parameters. The Bible asks whether the Jewish nation is living in accordance with God's commandments. The Mishnah asks more specifically whether an individual is liable (hayav) or exempt (patur); whether certain foodstuffs are prohibited (assur) or permitted (mutar); and whether someone has discharged the obligation (yatzah) or failed to discharge it (lo yatzah).
Developing a Halakhic Consciousness
We can see the rabbis' halakhic consciousness at work in their analysis of the Torah's first mitzvah. The opening chapter in Genesis records, "God blessed [Adam and Eve] and said to them 'Be fruitful and multiply, fill the earth and subdue it.'" (1:28) On its face, this instruction does not explain what (if any) specific action is called for. Indeed, it has been reasonably interpreted as a poetic description of things to come, or a charge or blessing to humankind generally. The rabbis, however, understand it as a specific mitzvah that generates a legal duty incumbent every individual (male) Jew. To satisfy the legal requirement, the Mishnah rules that each male must sire at least two children. The Mishnah then presents a debate: in one view (held by students of the first-century mishnaic sage, Shammai), two male children are required; in the other (held by students of Shammai's frequent interlocutor, Hillel), the requirement is for one male and one female (m.Yevamot 6:6).
This snippet of Mishnah highlights two foundations of rabbinic law echoed in the narrative about the Academy of Heaven encountered in the introduction. First, it articulates specific directives: compare the Bible's "be fruitful and multiply" with the Mishnah's "have two children." Second, law is an object of analysis and debate. While the general framework (two children) is offered without any reservation, different views arise in considering the particulars. Finally, by preserving that debate, the Mishnah suggests that something is at stake here — the rule is worth debating.
Having assumed a legal framework, the Talmud — an elaborate commentary on the Mishnah compiled in the centuries following the Mishnah's dissemination — investigates numerous derivative questions. What happens if the children themselves cannot reproduce — do they "count" toward fulfilling the halakhic obligation? What if the children die — must the father have more? If the deceased children lived long enough to have had children of their own, do these grandchildren count in lieu of the deceased parents (b.Yevamot 63a)?
Following the Talmud's lead, later generations of rabbinic scholars pushed these issues even farther. What if the child is the product of an illicit relationship (e.g., incest or adultery)? What if the children develop reproductive deficiencies?
Halakhic consciousness is defined by precisely these sorts of questions. Since the goal is to live in accord with the divine will, a person must know — with exacting precision — what is required for that purpose. Early halakhic texts establish the basic framework, while subsequent layers analyze, debate, and expand its details and applications.
Another example: though the biblical text prohibits melakhah — typically translated as "work" or "labor" — on Shabbat, it provides limited guidance as to what exactly this phrase means. The Mishnah, for its part, presents thirty-nine base categories of prohibited activities, one of which is writing (m.Shabbat 12:1–6). Here we learn that while a person who writes only one letter is exempt, one who writes two letters is liable for violating Shabbat. Use of ink, dye, or permanent liquids generates liability; while colored water or etchings in the dirt do not. Writing with the hand is a problem; writing with the foot, mouth, or elbow is not. Cases even more unusual than these are also taken under consideration, for example writing one letter on the ceiling and another on the floor, or two single letters on separate pieces of paper that are later put together. In the modern era, halakhists discussed whether it is permitted to piece together a puzzle on Shabbat (potentially problematic since it creates an intelligible picture) or to play Scrabble (generally okay, but in the Deluxe Edition the board's grooves hold the letters in place more permanently and may thereby produce a "writing").
Legalized specification of this kind is carried out through thousands of rules contained in the nearly 4,000 compact paragraphs of the Mishnah. Some instances are prosaic: laws about the hiring of workers, buying foodstuffs, dealing with nosy neighbors (found in tractates Bava Metzia and Bava Batra). Some are intensely personal: the intricacies of how women diagnose the onset and completion of their menstrual cycles (tractate Nidda). Some are obscure: an entire tractate of the Mishnah discusses how to proceed when birds designated for one Temple offering become commingled with birds intended for a different offering (tractate Kinim). And some are positively bizarre: several paragraphs of Mishnah discuss groups of men wandering around taking bets — in the form of whether they will be obligated in nazarite vows — based on the identity of different animals and persons that cross their paths (m.Nazir 5:5).
Over the vast range of its topics, the Mishnah's common thread is the centrality of its legally structured categories.
The Kingdom of Halakhah
For all its complexity, the Mishnah is but the ground floor of the halakhic edifice. Over the period of the Talmud, and then in later rabbinic literature, the halakhic consciousness thickens, encompassing an even larger range of intellectual and spiritual topics investigated through the lens of law. There are times when it seems that the Talmud knows nothing but law.
An example is the retelling of the biblical narrative surrounding David and Saul. The relationship between these two figures is, to put it mildly, complicated. David is a young war hero and prominent army officer who becomes Saul's prophetic muse, the best friend of his son Jonathan, the object of his daughter's love, and eventually his son-in-law. David was also Saul's primary political rival, the focus of several failed assassination attempts initiated by Saul, and eventually the successor to — or, as Saul might have said, the usurper of — the royal throne.
David first comes to Saul's attention when the mighty Goliath, the celebrated champion of the Philistines, taunts the Israelite camp for lacking the courage to confront him. In want of better options, Saul promises "great wealth and his daughter in marriage" to whoever shall slay the formidable heathen warrior (1 Sam. 17:25). David takes up the challenge. His success in killing Goliath launches his meteoric rise and rapid displacement of Saul as the nation's beloved. Saul, always one to hold a grudge, first reneges on the promise of his first daughter and then offers the hand of another daughter, Michal, for the price of 100 Philistine foreskins, not-so-subtly assuming David would die in his effort to procure them. When David returns with not 100, but 200 enemy foreskins in hand, Saul hastens to give Michal in marriage to another man (1 Sam. 25:44). Later, when he assumes the throne after Saul's demise in battle, David demands "my wife Michal, for whom I paid the bride-price of 100 Philistine foreskins" from the deceased king's household (2 Sam. 3:14).
This is a story about power plays and palace intrigue; about family, passion, and jealousy; about alliances formed and allegiances broken. Its purpose is to demonstrate why David, and not Saul, is worthy of establishing the royal dynasty. The Talmud, however, rereads it through a thoroughly halakhic lens (t.Sotah 11:9; b.Sanhedrin 19b). Ignored are the drama, the emotion, the egoism, and all the juicy details of human life that course through the biblical saga. Instead, the Talmud focuses on a legal conundrum: if David was halakhically betrothed to Michal, how could Saul give her in marriage to someone else? And if they were not legally bound, how could David (who, as God's chosen king, would never utter an extra-halakhic statement) demand "my wife" from Saul's household? In the talmudic view, David and Saul clashed not with swords, but with refined arguments, engaging in what the sages intentionally called "the battle of Torah." (More on this in chapter 5.) Per talmudic law, when a man gives a woman (or her father) an item bearing at least nominal value, she becomes formally committed to marry him. This betrothed status, known as kiddushin, cannot be created "through a loan", a category that includes forgiveness of a debt that the woman (or her father) owes the prospective groom. A debate arises, however, when someone seeks kiddushin through both forgiveness of a debt and the provision of an item of (at least) nominal value. Does the offer to forgive the debt invalidate the entire kiddushin, or is the kiddushin still formed through receipt of the item of value?
This, as the Talmud sees it, this was the real point at issue between David and Saul. David's proposal of kiddushin rested both on his forgiving of the "great reward" promised to Goliath's slayer (i.e., the debt owed him by Saul), and on the king's receipt of the nominally valuable Philistine foreskins. Since this was an effective kiddushin, Michal had become his lawful wife — or so he thought. Saul, however, held differently: the kiddushin was halakhically ineffective due to David forgiving Saul's debt/promise, leaving Michal free to marry another.
Underlying the talmudic discussion is, obviously (!), the assumption that David and Saul were not only fully committed to halakhah but conversant in its nuanced detail — details the talmudic rabbis were still debating thousands of years later. It's hard to know how seriously this should be taken. Did the talmudic rabbis really think David and Saul were arguing over the legal technicalities of kiddushin, or, did the biblical narrative simply offer a familiar reference point on which to sharpen their students' skills in halakhic reasoning?
Either way, the discussion offers a window into the rabbinic mindset. Since, halakhah is the framework through which reality can be interpreted, no detail is too small, no distinction too fine, and no case too remote to escape analysis and regulation.
Jesus's Critique of Halakhah
A nascent version of the legalism at work in the passage we've just examined is likely what prompted the critiques ascribed to Jesus against the Pharisees, the forebears of the Mishnah's authors. Throughout the Christian Gospels, Jesus claims the Pharisees' exclusive focus on the precise details of religious practice led them to mistake the legal trees for the spiritual forest. Jesus charges the Pharisees with hypocrisy for worrying about legal trifles like tithing "mint, dill, and cumin" while "neglecting the weightier matters of the law — justice, mercy, and faith" (Matthew 23:23). The same line of attack recurs in many of the arguments between Jesus and the Pharisees over the laws of, among other topics, Shabbat, kashrut, and ritual purity.
This trend becomes more extreme in the writings of the apostle Paul (who had been a Pharisee himself). Paul encapsulates the difference between what he saw as the law-obsessed Pharisees and the God-focused early Christians in his famous phrase "for while the letter [of the law] kills, the Spirit gives life" (2 Corinthians 3:6). The same notes can be heard in writings of early church fathers.
In many ways, these charges preceeded Jesus and Paul by several centuries. The biblical prophets Isaiah and Jeremiah chastised the people for focusing on Temple rituals rather than interpersonal conduct and the need for social justice. (For example, Isaiah 1:10–17; Jeremiah chapter 7.) But whereas the earlier prophets criticized the Temple rituals generally, Jesus zeroed in on the technical distinctions that, though rare in the Bible, are typical of rabbinic thought. In time, Jesus would be joined by a long line of critics — medieval and modern, Jewish and non-Jewish, polemic and apologetic, sympathetic and avowedly anti-Semitic. The details would change, but the core criticism remained: by emphasizing the legal particular, halakhah inevitably blinds itself to the more relevant ethical, philosophical, and theological dimensions of God's revelation.
Was Jesus Right?
It might seem strange — perhaps a bit blasphemous — to introduce Jesus, of all people, at such an early point in our story. But precisely because his critique has framed both Jewish and non-Jewish understandings for centuries, it is worth taking seriously right at the outset.
A quick glance at the Mishnah reveals that Jesus was not wholly off base. He chastises the Pharisees for fussing over questions like the tithing of herbs — and it is true, the Mishnah does not find these questions the least bit trivial. As Mishnah Ma'aserot(3:9) explains, if "savory, hyssop, and thyme" are deemed foods, they require tithing; if they are merely plants, they will be exempt. Jesus also ridicules the Pharisees for focusing on the syntax of an oath rather than its substance — and yes, the very syntactical variations he disparages matter a great deal in the Talmud (b.Nedarim 10b-11a). In short, Jesus correctly diagnosed that the Mishnah and the rabbinic tradition that grew out of it tend to refract the human experience through legal-analytical prism.
(Continues…)
Excerpted from "Halakhah"
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