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Talmudic law and criticism in Judaism
Jacob Neusner

Judaism takes the form primarily of law, which contains and concretizes its theology and morality. To understand the role of talmudic law in Judaism, we have first of all to define what we mean by law in this context. The Judaic word for « law » is Torah, translated in Western civilization as nomos, hence « law », from the first century A.D. onward. But « Torah » means revelation. Since the Torah reveals a great many laws, it is not entirely inappropriate to regard « Torah » as law. To be sure, Hebrew contains many other words pertinent to law — din, statute, mishpat, judgment, hog, ordinance, and so on, not to mention halakhah, meaning « law in general », and better translated « the way ». But all of these words are subordinate to « Torah », and Torah's imperatives are to be effected through concrete actions defined and determined by law.

Inner Structure of Reality

What then shall we understand by « Torah » in its sense of law? To be sure, as I said, the Torah contains laws, but Torah as law is best understood as the divine account of the inner structure of reality. Through Torah one comes to an understanding of the whole of reality, apprehends the divine will for creation, and furthermore is able to make his own deeds conform to that divine will. Through law, therefore, Judaism enables the Jew to conduct life in accord with the fundamental structure of reality. This idea is expressed in the view that the world is created in accord with Torah-law. Scripture says (Prov. 8:22-30): « The Lord made me as the beginning of his way, the first of his works of old. I was set up from everlasting, from the beginning, or ever the earth was made . .. » The Torah is understood by the rabbinic exegetes as the speaker of these words, and so the rabbis in the midrash Genesis Rabbah have the Torah say, « When God marked out the foundations of the earth, then I was beside him, like a master workman. I was daily his delight, rejoicing before him always. » So the Torah is personified and speaks, « I was God's instrument. According to the custom of the world, when a mortal king builds a palace, he does not build it by his own knowledge, but with the knowledge of an architect. And that architect does not build the palace out of his own head, but employs plans and diagrams in order to know how to arrange the chambers and wicket doors. So too the Holy One, blessed be He, looked into the Torah and created the world. »

This seems to me the most important guide to the understanding of the meaning of « law » in Judaic religion. The idea of « Torah » rests on the notion that the world is made according to law and order. Man may uncover the laws of the world through the study of Torah, which God has revealed as the source of insight into the cosmos. In studying Torah man studies the divine architect's plan for life itself. In carrying out the commandments of the Torah, he conforms his deeds to the 'sacred canopy' under which reality takes form, by the stars of whose firmament man guides his life. Through study of Torah man penetrates into life's meaning; through the practice of Torah, man fully embodies that meaning.

It should therefore be clear that it is through law — halakhah — and the study of law that Judaism is expressed, and more than merely expressed, defined and embodied. This fact cannot be overemphasized. Every action is subject to halakhah — the way things are to be done. Two important scholars of law have stated this matter with exceptional authority. The first is Rabbi David S. Shapiro, University of Wisconsin-Milwaukee, who, in « The Ideological Foundations of the Halakhah » (Tradition 9, 1967, pp. 100 ff.), states, « Halakhah is . . . a vast system of thought that extends over the limitless ranges of human experience, subjecting them to its critical scrutiny in the light of the principles, regulations, and laws revealed at Sinai. » Halakhah is not simply a body of rules and regulations. On the contrary, Shapiro states, « The halakhah is the supreme concretization of the will of God for mundane existence. Above all else it seeks for man the achievement of the goal for which he was created: the attainment of his Godlikeness — the unfolding within him of his divine image. »

The second is Isadore Twersky, Harvard University, who writes (Judaism 16, 2, 1967, p. 157):
Halachah . . . is a tense, vibrant, dialectical system which regularly insists upon normativeness in action and inwardness in feeling and thought. It undertook to give concrete and continuous expression to theological ideals, ethical norms, ecstatic moods, and historical concepts but never superseded or eliminated these ideals and concepts. Halachah itself is, therefore, a coincidence of opposites: prophecy and law, charisma and institution, mood and medium, image and reality, the thought of eternity and the life of temporality. Halachah itself, therefore, in its own behalf, demands the coordination of inner meaning and external observance — and it is most difficult to comply with such a demand and sustain such a delicate, highly sensitized synthesis.

Both authorities therefore stress that halakhah is the fullest, and sole normative, expression of Judaism, not because Judaism is merely a system of law, but because Judaism expresses its theological convictions through the way people behave, rather than through what they say — professions of faith alone. If theology means anything, it must shape the formation of men and women, the values by which they live, the patterns of society and the formulation of culture. Underlying such a conviction is this view of man: we are what we do.

Talmud and Reason

Clearly, Judaism conceives of law as the highest expression of rationality. To grasp this conception, we shall now focus upon the exposition of talmudic modes of legal thinking, for these are the generative source of all subsequent expressions of Judaism. The talmudic mode of legal thinking is wholly and completely critical: nothing is taken for granted, everything is received with skepticism and penetrating logic. Having stressed how law expressed theology, let me now spell out the interrelationship between law and rationality.

First, the quest of law through rationality clearly is a search for the experience of transcendence, for the image of God in man and in the society of men and women. That should seem a remote conception. People seeking a larger world of meanings for private and individual existence find answers through mystic experience, in the suppression of the intellect and the willful suspension of unbelief. Within talmudic learning and law, however, men seek these meanings by the cultivation of the intellect and the criticism even of belief. The mystery of the talmudic mode of seeking law is its capacity to sanctify the one thing we do not propose to abandon, which is our capacity to doubt, commitment to criticize, the beautiful reasoned discourse created among learning men and women. The wonder of the talmudic legal process is its tough-minded claim in behalf of the critical intellect not in search, but in the service, of God.

Second, what are these critical modes of thought one finds in talmudic legal discourse? They are four: (1) abstract, rational criticism of each tradition in sequence and of the answers hazarded to the several questions; (2) historical criticism of sources and their (un)harmonious relationship; (3) philological and literary criticism of the meanings of words and phrases; and (4) practical criticism of what people actually do in order to carry out their religious obligations. It goes without saying that these four modes of criticism are peculiarly contemporary. Careful, skeptical examination of answers posed to problems is utterly commonplace to modern men and women. Historical criticism of sources, which does not gullibly accept whatever is alleged as fact, is the beginning of historical study. Philological study of the origins and meanings of words, literary criticism of the style of expression — these are familiar. Finally, we take for granted that it is normal to examine people's actions against some larger principles of behavior. These are traits of inquiry which are both talmudic and routinely modern.

What makes talmudic criticism different from modern modes of thought? It is the remarkable claim that in the give and take of argument, in the processes of criticism, you do something transcendent, more than this-worldly. I cannot overemphasize how remarkable is the combination of rational criticism and supernatural value attached to that criticism. You simply cannot understand the Talmud without confronting the other-worldly context in which this so completely secular thinking about law goes forward. The claim is that in seeking law — reason and order — you serve God. But what are we to make of that claim? Does lucid thinking bring heavenly illumination? How can people suggest so?

Perhaps the best answer may be sought in one's own experience. Whence comes insight? Having put everything together in a logical and orderly way, we sometimes find ourselves immobilized. We know something, but we do not know what it means, what it suggests beyond itself. We sometimes catch an unexpected insight, come in some mysterious way to a comprehension of a whole which exceeds the sum of its parts. And we cannot explain how we have seen what, in a single instant, stuns us by its ineluctable rightness, fittingness — the unearned insight, the inexplicable understanding. For the rabbis that stunning moment of rational insight into the law behind the laws comes with siyyata dishamaya, the help of heaven. The charisma imparted by the rabbinic imagination to the brilliant man is not different in, substance from the moral authority and spiritual dignity imparted by contemporary intellectuals to the great minds of the age. The profound honor to be paid to the intellectual paragons — the explorers of the unknown, the men and women of courage to doubt the accepted truths of the hour — is not much different from the deference shown by the disciple to the rabbi. So the religious experience of the rabbi and the secular experience of the intellectual differ not in quality. They gravely differ in the ways by which we explain and account for that experience, and by which we are enabled to enter into the curious mode of legal religiosity discovered within the Talmud.

The presupposition of the talmudic modes of thought is that order is better than chaos, reflection than whim, decision than accident, ratiocination and rationality than witlessness and force. The only admissible force is the power of fine logic, ever refined against the gross matter of daily living. The sole purpose is so to construct the discipline of everyday life and to pattern the relationships among men that all things are intelligible, well-regulated by law, trustworthy — and sanctified. The Talmud stands for the perfect intellectualization of life, that is, the subjection of life to rational study and laws. For nothing is so trivial as to be unrelated to some conceptual, abstract legal principle. If the placing of a napkin or the washing of the hands is subject to critical analysis, what can be remote from the Talmud's rigorous inquiry?

The mode of inquiry is not man's alone. Man is made in God's image. And that part of man which is like God is not corporeal. It is the thing which separates man from beast: the mind, consciousness. When man uses his mind, he is acting like God.

The Talmud's conception of us is obvious: we think, therefore we and what we do are worth taking seriously. We will respond to reason and subject ourselves to discipline founded upon criticism. Our response will consist in self-consciousness about all we do, think, and say. To be sure, man is dual, we are twin-things, ready to do evil and ready to do good. The readiness is not all, though some now think so. Beyond readiness there is mindfulness. As the talmudic warning about not interrupting one's study even to admire a tree — that is, nature — makes clear, man cannot afford even for one instant to break off from consciousness, to open himself to what appears then to be enatural'; to be mindless is to lose touch with revealed order and revealed law, the luminous disciplines of the sacred.

Nor is the ultimate issue of man solely legal and ethical. It is holiness. To be sure, one must do the good, but Torah-law encompasses more than ethical behavior. The good is more than the moral; it is also the well-regulated conduct of matters to which morality is impertinent. The whole man, private and public, is to be disciplined. No limits are set to the methods of exploring reason and searching for order. Social order with its concomitant ethical concern is no more important than the psychic order of the individual, with its full articulation in the 'ritual' life. All reality comes under the discipline of the critical, legal intellect, all is capable of sanctification.

The Talmud's single-minded pursuit of unifying truths itself constitutes its primary discipline. But the discipline does not derive from the perception of unifying order in the natural world. It comes, rather, from the lessons imparted supernaturally in the Torah. The sages perceived the Torah not as a melange of sources and laws of different origins, but as a single, unitary document, a corpus of laws reflective of an underlying ordered will. The Torah revealed the way things should be, just as the rabbis' formulation and presentation of their laws tell how things should be, whether or not that is how they actually are done. The order derives from the plan and will of the Creator of the world, the foundation of all reality. As I pointed out, the Torah was interpreted by the talmudic rabbis to be the architect's design for reality: God looked into the Torah and created the world, just as an architect follows his prior design in raising a building. A single, whole Torah — in two forms, oral and written, to be sure — underlay the one, seamless reality of the world. The search for the unities hidden by the pluralities of the trivial world, the supposition that some one thing is revealed by many things — these represent, as I said, in intellectual form the theological and metaphysical conception of a single, unique God, creator of heaven and earth, revealer of one complete Torah, guarantor of the unity and ultimate meaning of all the human actions and events that constitute history. On that account the Talmud links the private deeds of man to a larger pattern, provides a large and general 'meaning' for small, particular, trivial doings.

Revelation of the Mind of God

Behind this conception of the unifying role of reason and of law and the integrating force of practical criticism of everyday behavior lay the conviction that God supplies the model for man's mind, therefore man, through reasoning in the Torah's laws, may penetrate into God's intent and plan. The rabbis of the Talmud believed they studied Torah as God did in heaven; their schools were conducted like the academy on high. They performed rituals just as God performed rituals, wearing fringes as did he, putting on phylacteries just as God put on phylacteries. In studying Torah, they besought the heavenly paradigm, revealed by God « in his image » and handed down from Moses and the prophets to their own teachers. If the rabbis of the Talmud studied and realized the divine teaching of Moses, whom they called « our rabbi », it was because the order they would impose upon earthly affairs would replicate on earth the order they perceived from heaven, the rational construction of reality. It is Torah which reveals the mind of God, the principles by which he shaped reality. So studying Torah is not merely imitating God, who does the same, but is a way to the apprehension of God and the attainment of the sacred. The modes of argument are holy because they lead from earth to heaven, as prayer or fasting or self-denial cannot. Reason about law is the way, God's way, and the holy man is therefore he who is able to think clearly and penetrate profoundly into the mysteries of the Torah and, especially, of its so very trivial laws. In context, those trivialities contain revelation.

Energy Channelled by Law

To the talmudic way of thinking, man is liberated, not imprisoned, by reason, which opens the way to true creativity, that is, the work of finding, or imposing, form and order upon chaos. The wherewithal of creativity is triviality — that by now is obvious — and what is to be done with triviality is to uncover, within or beyond the simple things of chaos, the order, the complex structure, the coherence of the whole. What is concrete therefore is subordinate to what is abstract. It is the construction of the larger reality that reveals the traits of that reality. And to the talmudic rabbi, the most interesting aspect of reality is the human and the societal: the village, the home, the individual. Talmudic Juda•ism, because of its stress on what and how one eats and drinks, has been called a religion of pots and pans. And so it is, if not that alone, for its raw materials are the irreducible atoms of concrete life. But these come at the beginning; they stand prior to what will become of them, are superficial by contrast to what lies beneath them, to what they adumbrate.

What is to be done with these atoms, these smallest building blocks of reality? The answer now is evident: they are to be subjected to control, the man to self-control. All impulses are to be carefully regulated in accord with the divine plan for reality. All are good and may be holy when so ordered, evil when not. The robust sexuality of the talmudic laws of marital relations testifies to the rabbis' seriousness and matter-of-factness about what today is highly charged material. For one thing, they consistently referred to a couple's having intercourse « all night long » and promised sons and other blessings to those who engaged in sexual relations two (or more) times in succession — the more the better. So the regulation of impulse was the opposite of its suppression; it was its liberation.

For talmudic law the alternatives before men and women are not faith or nihilism, but reflection or dumb reflex, consciousness or animal-instinct. Man, in God's image, has the capacity to reflect and to criticize. All an animal can do is act and respond. And man may be holy or unholy. An animal can only be clean or unclean — a considerable difference. That is why energy, the will to act, has to be channelled and controlled by law. You are what you do. Therefore deed without deliberation is not taken seriously. Examination of deeds takes priority over mere repetition of what works or feels good. For this purpose, genius is insufficient, cleverness is irrelevant. What is preferred is systematic and orderly consideration, step by step, of the principles by which one acts. The human problem in the talmudic conception is not finding the motive force to do, but discovering the restraint to regulate that protean force. In the quest for restraint and self-control, the primal energies will insure one is not bored or lacking in purpose. For the talmudic mode of thought perceives a perpetual tension between energy and activity, on the one side, and reflection on the other. To act without thought comes naturally, is contrary, therefore, to the face of revealed discipline. The drama of the private life consists in the struggle between will and intellect, action and reflection. If the Talmud is on the side of the intellect and reflection, it is because the will and action require no allies. The outcome will be determined, ultimately, by force of character and intellect, these together. And the moot issue is not how to repress, but how to reshape, the primal energy.

Yet it is an error to ignore the other formative force in culture, the community. The Talmud, for its part, fully recognizes the social forces, the pressures to conform and to follow established custom and habit. That is why so much attention centers upon people's doing things together. The talmudic rabbis exhibit keen awareness that restraint is societal before it is personal; community takes priority over individuality and gives the private person nearly the whole of the structure of symbols and values that render living meaningful. « Give me fellowship, or give me death, » said one of them.

The more important parts of the Talmud deal with civil regulations: What to do if an ox gores another ox? How to divide a disputed prayer-shawl? How to litigate a contested will, in which the material results affect the disposition of a palm-tree or a tiny bit of land?

The talmudic rabbis are well aware that society forms the individual. If a person seeks to create a disciplined individual, whose life is regulated by revealed law, he must give priority to the regulation of the society which forms the ground of individual existence. And to regulate society, he must concentrate upon the conflicts among men, the conflicting claims to unimportant things which, all together, will add up to justice and make possible dignity and autonomy. It is through law that you will revise habit, establish goodcustomary behavior. It is through a lawful society that you will create an environment naturally productive of restraint and rational manners. If, therefore, it is correct to claim that what is talmudic about the Talmud is the application of reason and criticism to concrete and practical matters, then the Talmud is at its core an instrument for the regulation of society in the most humble and workaday sense of the words.

To be sure, to regulate society you must have access to the institutions that exercise and confer legitimate power, and the talmudic rabbis knew the importance of various sorts of power. They understood, first of all, the intrinsic power of law itself, which rendered unnecessary constant, ad hoc intervention of puissant authority in routine affairs. Once law has established how things should be done, the enforcement of the law becomes necessary only in exceptional circumstances. In normal ones the law itself ensures its own enforcement, for most men most of the time are law-abiding.

Supernatural Conception Imposed

But the purpose of law is not simply to verify and vindicate the given. Law has the capacity to impose on natural life a supernatural conception. It is the means of exercising the freedom of reconstruction of reality in accord with revealed law. The rabbis reinterpreted the meaning of the most common relationships, for example, those between the father and the son. They understood the primacy of the father in the formation of the personality of the child and the shape of the family. At the same time they claimed they, as masters of Torah, should shape personality and provide the model for the family. They admitted that the father brought the child into this world. But, they quickly added, the sage brings him into the next world, therefore is entitled to the honor owing from the child to the father. The sage is better than the father, above the father, just as God is the ultimate father of the child and giver of his life. If, therefore, a son sees the ass of his, father struggling under his load, and at the same time he sees the ass of his sage about to stumble, he helps the ass of his rabbi, then that of his father, for the one has brought him this world, the other, eternity. Just as the rabbi placed his rule over that of the state and the state's functionaries, the Patriarch and Exilarch, so he sought to take precedence over the primary component of the community, the family, by laying claim to the position of the father.

In larger terms the effort to replace the father by the rabbis symbolizes a struggle equivalent to the effort to replace the concrete, this-worldly government of ordinary officials by the non-natural or supernatural authority of the rabbi, qualified by learning of the Torah and capacity to reason about it. The Roman authority and his representative in Jewry ruled through force or the threat of force. The rabbinical figure compelled obedience through moral authority, through the capacity to persuade and to demonstrate, through affective example, what the law required. Both political and familial life thus was to be rendered something other than what seemed natural or normal. Everyone could understand the authority of the gendarme, the priority of the father. But to superimpose the rabbi both in politics and in the family represented a redefinition of the ordinary sense of politics and the plain, accepted meaning of the family. It made both into something abstract, subject to a higher level of interpretation, than an ordinary person might readily perceive. Political life to the rabbi was not merely a matter of the here and now, nor was the family what it seemed. Both were to be remodeled in the image of Heaven, according to the pattern of the Torah. That is to say, they were to be restructured according to the underlying principles of reality laid down by the divine plan as uncovered by rational inquiry. Society was to be made to conform to the heavenly definition of the good community; the family was to be revised according to the supernatural conception of who the father really was: God and his surrogate, the rabbi — man most closely conforming to his image.

The talmudic stress upon criticism, therefore, produced a new freedom of construction, the freedom to reinterpret reality and to reconstruct its artifacts upon the basis of well-analyzed, thoroughly criticized principles revealed through the practical reason of the sages. Once a person is free to stand apart from what is customary and habitual, to restrain energies and regulate them, he attains the higher freedom to revise the given, to reinterpret established perceptions of reality and the institutions which give them effect. This constitutes, to begin with, the process of the mind's focusing upon unseen relationships and the formation of imposed non-material and non-natural consideration.

We recall in this connection the purity laws, which play so considerable a role in the rabbis' regulation of eating (and other fundamental things, for instance, sexual relations). Those laws seem to have comprised and created a wholly abstract set of relationships, a kind of non-Euclidean geometry of the levitical realm. Yet those high abstractions are brought down to earth to determine in what order one washes his hands and picks up a cup of wine, or, as noted, where one puts his napkin. So what is wholly relative and entirely a matter of theory, not attached to concrete things, transforms trivialities. It affects, indeed generates, the way one does them. It transforms them into issues of some consequence, by relating them to the higher meanings (to be sure, without much rational, let alone material substance) associated with the pure and the impure. The purity-laws stand at the pinnacle of talmudic abstraction and ratiocination.

How does the Talmud make room for individual character? The answer lies in the Talmud's stress on the reasons for its rules. Once the reason is made known, one makes room for contrary reason, for reason to reject or revise the established rule. Not only does the individual have the place to differ, but he also has the power through criticism to move the entire community to appropriate what to begin with expressed his private judgment, his individuality. This I think is not only to the advantage of the individual, but also fundamentally therapeutic for the community as 'a whole.

Now for contemporary man the Talmud presents formidable criticism, for by it the value « follow your own impulse » — utter subjectivism in all things — is rejected. The Talmud gives contrary advice. « Tame your impulse », regulate, restrain, control energies through the self-imposition of the restraining rule of law. At the same time, the Talmud demands that a person not do 'his own thing' alone, but persuade others to make what is his own into what is to be shared by all. The Talmud therefore subjects the individual to restraints on his pure individuality, while opening for individuality the possibility of moral suasion of the community at large. « Unrestrained » and « individualism » therefore are set over against « regulated » and « rationality », for it is rationality and law which overcome the isolation of the individual, connecting one mind to another through the mediating way of reason. Through the imposition of rational, freely adopted rules, one restrains those destructive elements of the personality which potentially are damaging for both the individual and the community.

Discipline of the Sacred

Let me conclude by dealing with three interrelated questions. First, is law an appropriate vehicle for dealing with problems of religious belief? I believe I have shown how law serves as the vehicle for the expression of religious belief, and not that in general, but of a specific religious conception of man; he is mindful and capable, therefore, of harnessing his natural impulses to the rational requirements of reality. Second, does the historical experience of Judaism suggest that law has been a useful tool for inculcating morality? I maintain that it is notonly a useful tool, but the best possible means for the inculcation of morality, by the shaping of the practical and concrete deeds of man according to a fundamental conception of the world's meaning and order. We are what we do — and law tells us what we are supposed to do. Third, does law have a legitimate role in religion? It seems again that Judaism through the Talmud shows the potential value of law in religious life. But that is because of the capacity of the talmudic law to express a conception of man and God and to reform man into God's image. Let me then specify the means by which talmudic law and modes of thinking may serve as a vehicle of religious reform.

To undertake reform through talmudic modes of legal thinking, we have, to begin with, to consider what to the rabbis makes those modes more than merely an expression of practical reason, but an expression of the transcendent which is in ourselves. We cannot ask the Talmud to vindicate itself by our standards. We have to bring to bear upon our perceptions of ourselves the Talmud's critique, its sacred image of us. That image to begin with asks, What say you of the human condition? What is man, but that God is mindful of him? If all we are and ever shall be is here and now, if our minds are merely useful and our capacity to think entirely a secular virtue, then the talmudic mode of legal formation and reform is unavailable. If through our strength of reason we pursue the profound rationality which underlies, gives unity and imparts meaning to existence, and if through our power of reflection we then undertake the reconstruction of reality through law, the interpretation of what is in terms of what can and should be, then we shall have already entered into the talmudic situation. But when we do, we shall thereby have undertaken all the talmudic law knows as the discipline of the sacred. We shall, in other words, have renewed the experience of sanctification both through the law and of the law.