This week’s homework assignment is to answer the following three questions about the Talmudic Legal system: first, is this legal tradition a religious legal system? Secondly, how has this legal tradition allowed the Jewish people to maintain their identity? And finally, has this legal tradition influenced the legal system of the United States.
Our textbook tells us that “the Talmud is the most important single element in the bran-tub of Jewish legal tradition. It has no equivalent in other legal traditions. Jewish people have maintained their identity for thousands of years, and Talmudic law has played a very large part in this process.” H. Patrick Glenn, Legal Traditions of the World 98 (5th ed. 2014).
So jumping right in, is this legal tradition a religious legal system? Exodus 20 starts the most well-known chapter for the Talmudic legal tradition. Over the next few chapters of Exodus, God gives Moses 600+ commandments, summarized and codified in the form of the traditional Ten Commandments, written on Moses’ stone tablets. Exodus 20:1-17 (New King James Version). So, we know that there were Jewish people and Jewish laws before the incident on Mount Sinai, people believe that God spoke to many people before he spoke to Moses. What we witness in Exodus 20 is change. This incident transformed, added to and constituted it as divine law. H. Patrick Glenn, Legal Traditions of the World 99 (5th ed. 2014).
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So, the Talmud is rooted in God’s Word, particularly the Pentateuch, (Genesis-Deuteronomy). This is known as the Torah. But it can be argued that the Torah is not the Talmud. While the law is found in the Torah, the Talmud is the commentary and analysis of the law. This analysis of the Torah continues even today, but at the time of captivity by Babylon and later during the Roman occupation, the people sometimes found it hard to worship God openly. At this time it became obvious that is was the duty of the clergy to make sure the people could carry the Word of God forward into subsequent generations. The marked the beginning of the written and unwritten law and was the beginning of the Talmud. The term refers to a central text associated with Rabbinic Judaism. Elliot N. Dorf & Arthur Rossett, Living Tree 6 (2014).
The commandments give to the people covered all aspects of life and made little distinction between religious aspects and secular aspects of life. One result of this was that fact that the commandments of religion influenced secular law, and modified civil relations since any infraction of them was punishable. Another problem, outside of the self-explanatory Ten Commandments, is that taken by themselves, each commandment needs a little commentary. For example, the commandment to circumcise one’s self by itself, it seems a little vague if you’re hearing it for the first time from a mountain that seems to be on fire. When looking at the totality of the event, we see that the each commandment is similar in that an explanation is needed. So the commentary began, orally to begin with and was eventually written down in the Babylonian and Jerusalem Talmud. Commentary continues to this day. Yehuda Shurpin, How and why was the Oral Torah written? What Is the Talmud? (January 25, 2019 1340) www.chabad.org/library/article_cdo/aid/3347866/jewish/What-Is-the-Talmud.htm
So, how has the Jewish legal tradition allowed the Jewish people to maintain their identity? It would be too simple to say that one born of a Jewish mother is a Jew. Likewise one that converts is also considered a Jew. True as both of those statements are, nationality and religion are only part of more complex issues surrounding identity. As a people they have been expelled from many countries: England, Germany, Italy, and Spain to name a few. Even the homeland given to them by God is hard to call home given that even today it is disputed and claimed by others. The Jewish people had an identity as wanderers even before Moses. Abraham, Isaac and Jacob all lived a nomadic lifestyle. However, they were drawn together by God in the form of covenants between Him (God) and them. Covenants were common between the peoples of the ancient world. Kings and strong warlords made them between themselves and their smaller counterparts, principally for acquiring protection for subjugation or allegiance. More than the covenants between Abraham, Isaac and Jacob though, we see that the event at Mount Sinai created the Jewish identity. The whole Jewish nation got to hear God choose them to belong to Him. This is captured in the Torah and has been handed down orally and in writing since then. The Talmudic tradition and law has kept the Jewish identity alive. Tzvi Freeman, Who Is a Jew? Solving the Mystery of Jewish Identity (January 25, 2019 1445) www.chabad.org/library/article_cdo/aid/3854897/jewish/Who-Is-a-Jew.htm
In addition to acceptance, there is a large practice surrounding the shunning of an individual who decides to leave the religion. Although such shunning may not change the outcome of the departed, it speaks volumes to the remaining community for what may be expected if they also decide to leave. “Jewish law has functioned for the past two millennia with only two real jurisdictional bases to punish violations: the ‘pursuer’ jurisdictional grant, and excommunication or shunning” Michael J. Broyde, Forming Religious Communities and Respecting Dissenter’s Rights: A Jewish Tradition Model for a Modern Society, Jewish Law Articles, (January 26, 2019 1845), http://www.jlaw.com/Articles/excom2.html. As Jewish societies felt the growing pressures of organized pressures from western traditions, they formulated strong bonded communities. Despite the intense pressure of ratification that Jewish principles and practices faced, the contention only proved to strengthen their attachment to their religion and increased the identity of Jewish principles. Talmudic law remained the focal point of its followers and enabled Jewish followers to leverage this tradition in order to cement their identity in a long line of history.
Finally, has this legal tradition influenced the legal system of the United States? While there is currently a struggle between western legal systems and the Talmudic legal tradition, there can be no doubt that western legal systems have been heavily influenced by the Talmudic legal tradition. Just as Talmudic legal traditions were influenced by divine law first, then Babylonian, and then Roman law. As Europe moved out of the middle ages and towards the end of the Renaissance Period, the monarchial system of government was giving way to republicanism (ideology, not party). The Talmudic law began to share this belief, frowning upon the monarchies in Europe and elsewhere. Eric Nelson, The Hebrew Republic : Jewish Sources and the Transformation of European Political Thought, 23 (2010).
Property law, criminal and family law, and common law are all foundations of western legal societies. The US Bill of rights and the US Constitution in general is written so that a person with a foundational education can read and comprehend it. The Talmud is not so easy to read and understand, requiring years if not a lifetime of study. When it comes to the individual, both western and Talmudic legal traditions protect different aspects of the individual. While western legal systems protect the individual rights of a person, this is not as evident in the Talmud. The Talmud outlines individual obligations. The first obligation is the study of God’s law or the Torah in order to lean life’s other obligations. In the performance of the first obligation, one shows one’s love of God.
There are different theories about the Talmudic legal tradition and rights, and notionally rights do exist somewhere in the bran-tub of Talmudic tradition as it exists in all legal traditions today. H. Patrick Glenn, Legal Traditions of the World 115 (5th ed. 2014). The Talmud, having never been completed is open to interpretation and commentary even today. Interpretations and commentary, in the form of responsa, are very similar to the Amendments process in our government. While we are working towards a perfect, democratic style government, the trial and errors of the journey that has followed allowed for the amendments of previously written laws. Much like the responsa of Talmudic law, our amendment process has allowed our constitution to become a living tradition of our own.
In conclusion, the Talmudic legal tradition as one of the oldest legal systems on record, has played at least a couple of significant roles in history. First, the oral traditions helped a nomadic landless people keep their identity, enabling them to overcome many challenges in the last 3000+ years. The Talmudic legal tradition has had a clear impact on western legal systems including the US legal system too, from our Bill of Rights to our representative form of government.
