“It is Not in Heaven:”
Judaic Systems, Laws and Discordant Discourses
by Tzvee Zahavy
Law has played diverse roles in the varied systems that have dominated Jewish societies from Israelite times to the present. The ruling class or leadership of the two most prominent and continuous systems, that of ancient Israel (c. 1300-250 B.C.E.) and one of its successors, the early rabbinic religious system (c. 70-640 C.E.), produced differing types of narrative or mythic discourses to serve as basic explanations and justifications for the authority of the legislation they produced. These laws themselves comprised a significant percentage of the Tanakh (Hebrew Bible) and a major proportion of Rabbinic literature.
The late antique rabbinic system accounts for some aspects of the conspicuous transformations of Judaic laws and disparities from their earlier Israelite formulations to the rabbinic codes that replace them. In the initial parts of this paper I address how some early rabbis quite self-consciously explored the internal tensions of their ongoing historical system.
I then briefly examine how modern historians of religions interpret the disjunctures in religious life and thought from one Judaic system to another. We first describe the character of Israelite law to understand the extent of the discontinuity between Israelite and subsequent systems.[1]
Israelite and rabbinic law
The ancient Israelite system produced the books of scripture and operated in the society against which all successive Judaic manifestations sought to be measured. Mythic expressions in historical and cosmic modes of articulation dominated these religious texts. In their central narrative statements concerning law and its authority, the redactors of the Pentateuch sought to convey the overall impression that Yahweh revealed the law to his people through Moses in the desert prior to the national conquest of the land of Canaan. Israelite editors were careful to insinuate ambiguity into the text so that it implies to the reader that the totality of the legislation derives from the deity.
The admirable bid by recent scholars to distinguish among the variety of forms of biblical law, their origins and social significance does not blunt the over-arching impression of divinely attributed origins for all of Israelite law. Alt, in his classic study of Israelite law recognized the strength of the propounded mythic basis:
The only tradition we possess of the origins of Israelite law is that of the canonical books of the Old Testament, and the account it contains seems at first sight consistent and unambiguous. According to this tradition, every legal ordinance observed in Israel was laid down by the divine will of Yahweh, and had been revealed by him in the last generation before the tribes came out of the desert to settle in Palestine, at the moment when they united as one people under the guidance of Yahweh in the covenant delivered through Moses. All the laws in the Old Testament, therefore, are given a context in the history of that early period, as it is told in the central section of the Hexateuch, and for the most part are adapted to this context by being presented in the form of speeches by Yahweh or Moses to the people. Later on, anything not found in these books would clearly not have been regarded as obligatory in the same unconditional sense. Legal codes that were obviously of a different or later origin would not have been accorded the same value.[2]
Alt then went on to differentiate the cultural antecedents of Israelite casuistic laws from their apodeictic counterparts. The former stemmed from what he called the "ordinary Israelite secular jurisdiction," a non-sacral environment of legal activity (p. 117). While he correctly pointed out that these statutes evince no national consciousness (p. 119), and did not depend directly on Yahweh (p. 123), Alt overlooked his own essential point. True, some or all of Israelite casuistic law may have derived from Canaanite origins. Alt further made a convincing distinction between a more sacral context for Israelite apodeictic law, and a more juridical set of origins for the casuistic materials. As he pointed out regarding the former, the levitical priests asserted their role as "mouthpiece of Yahweh ... making his demands known to Israel (p. 161)."[3]
But there was little chance an Israelite would have publicly attributed any form of their law to Canaanite or secular antecedents. The redacted text of the Pentateuch implies otherwise. In biblical terminology the blurring of the categorical distinction was pervasive: all law derived from God. The same word, Elohim, in fact, is used to connote the deity in some contexts and the judges or courts in others. Those judges, the hereditary families of priests, tribal kings and local administrators had much to gain by advancing the ambiguities of legal derivations and were keen to perpetuate them.[4]
Accordingly, in Israelite times law served as basis for the idea of the intervention of divine authority through covenant or commandment. The ruling aristocracies of ancient Israel promulgated a wide range of civil, criminal, ceremonial and cultic laws. Various modes of legal discourse established the identity and individuality of the legal elite. Their authority in the society in turn derived often from abstract law codes and from collected case decisions based on actual internal legal disputations. Mythic narratives of divine revelation provided the sanction of authority for these codes, located their origins at Sinai, and their continued promulgation in the Tabernacle and implicitly in its successor institution, the Temple in Jerusalem.
The dual Torah system of Rabbinic Judaism contrasts vividly with its Israelite predecessor. If, as I have suggested, one might most generally categorize the Israelite system of discourse as one of narrative history and cosmic mythic expression, then Rabbinism by comparison was a system of discourse based on legal argumentation and its stylized idiom, and on mystical theological expression. In rabbinism, one could say, law suffused society.
Not so in the antecedent system. In the Israelite instance law derived from a national source based on a widely condoned assumption of divine origin. In rabbinism the source of authority was the rabbi, who in turn laid claim to an attenuated link back to the same source of revelation. In the Judaism of the dual Torah, the rabbis asserted that Moses received a twofold revelation on Sinai. The Pentateuch was one part of that corpus, the written law. The second part was the oral law.
The doctrine of revelation encompassed in the rabbinic assertion of a dual Torah is complex, elastic and fraught with deliberate ambiguity. Its promulgators suggested that the oral law remained abstract, transmitted from teacher to student, until given a sanctioned written form in the teachings of rabbis. So it was assumed that Mishnah, the first of the canonical writings of rabbinism, contained the substance of the oral Torah, although no rabbinic sources said this outright. It further was to be presumed that the subsequently redacted official literature of the rabbis including the Tosefta, Talmud Babli and Talmud Yerushalmi, and the early midrashic compilations, also contained substantive elements of the oral Torah. And again, no single rabbinic source claimed or repudiated outright this supposition.[5]
So both Israelite and rabbinic legislators and administrators used to their best advantage the ambiguities of their respective system's associations of law with divine authority. The different ways these two cultural entities developed and fostered their respective norms of legal discourse was more sharply defined.
Discourse and the law
The fundamental rabbinic religious system of discourse rested on law, legal training and social associations of legal experts. Rabbinism placed strong value for instance on the relation between the master of the Torah and his disciple and on legal training, based on defined paradigms of logic and argumentation, techniques for the manipulation of texts, and training in rituals of study. The system emphasized obeisance to the master and mimicry of his official rituals and personal mannerisms.
The relationship of master to disciple virtually dominated the official articulations of the system. Accordingly rabbinic anecdotes themselves at times exaggerate the intensity of the bond in the system, but in doing so illustrate one of its salient facets. A caricature of the rabbi-disciple link appears in the following talmudic pericope:
R. Kahana [a disciple] went and hid under Rab's [his master's] bed. Hearing Rab "discoursing" and joking with his wife ..., [Kahana] said [out loud], "You would think that Abba's [Rab's] mouth had never before tasted the dish." [Rab] said [upon discovering his voyeur-disciple], "Kahana, are you here? Get out! This is disgraceful!" [Kahana] replied, "My lord, it is a matter of Torah, and I have the need to learn" (B. Ber. 62a).
This pointed rabbinic self-satire claims that even by learning the proper methods for love-making a disciple fulfills his obligations to study diligently the discursive practices of Torah of his master.
The more familiar and accepted modes of legal discourse in rabbinism were highly aphoristic, and basically sui generis to the system. Hence it is common for later critics tautologically to describe rabbinic style as "Mishnaic" or "Talmudic." Curiously, though they claimed common divine origins for their laws, the late antique rabbis made little attempt to imitate the style of Israelite discourse. And although the sacred writings of both shared the same language, there was very little similarity between the individual or collective expressions of the varied components of the earlier Hebrew scriptures, the Tanakh, and of these later compilations of the rabbinic corpora.[6]
The early rabbis self-consciously explored the tension in their legal system between officially sanctioned modes of reasoning and behavior and their perceived historical antecedents of their system.
Rabbinic tradition openly recognized the discontinuity of its discourse and dealt with it after its own fashion. An intense and poignant text juxtaposes Moses with Aqiba, a prominent second century rabbi, one of the most frequently cited sages in rabbinic literature. He was a leading component of rabbinic discourse and messianic political rebellion against the Imperial Rome. Aqiba was captured and tortured by the Romans along with other rabbis of the time after supporting Bar Kokhba's revolt against Rome in 135 C.E. The rabbis seek to explain why he met this tragic end. Did this master go too far in his political activism? Did he carry his cultural innovations beyond sanctioned limits?
A. Said R. Judah said Rab, "When Moses went up to the height, he found the Holy One, blessed be he, sitting and tying crowns to the letters [of the Torah]."
B. "He said to him, `Lord of the universe, why is this necessary?'
C. "He said to him, `There is a certain man who is going to come into being at the end of some generations, by the name of Aqiba b. Joseph. He is going to find expositions to attach mounds and mounds of laws to each point [of a crown].'
D. "He said to him, `Lord of the universe, show him to me.'
E. "He said to him, `Turn around.'
F. "[Moses] went and took his seat at the end of eight rows [in Aqiba's study hall], but he could not understand what the people were saying. He felt weak. When discourse came to a certain matter, one of [Aqiba's] disciples said to him, `My lord, how do you know this?'
G. "He said to him, `It is a law revealed by God to Moses at Mount Sinai.'
H. "Moses' spirits were restored.
I. "He turned back and returned to the Holy One, blessed be he. He said to him, `Lord of the universe, now if you have such a man available, how can you give the Torah through me?'
J. "He said to him, `Be silent. That is how I have decided matters.'
K. "He said to him, `Lord of the universe, you have now shown me his mastery of the Torah. Now show me his reward.'
L. "He said to him, `Turn around.'
M. "He turned around and saw people weighing out his flesh in the butcher shop.
N. "He said to him, `Lord of the universe, such is his mastery of Torah, and such is his reward?'
O. "He said to him, `Be silent. That is how I have decided matters'" (B. Men. 29b).
In their respective systems Moses and Aqiba served as venerated sources of legal authority. Yet, the pericope relates, because of the self-acknowledged divergence of discourses, the former could not understand the lecture of the latter (F), and was satisfied only after the proper attribution of authority was established (G-H). So impressed with Aqiba was the modest Moses that he suggested to God he reveal the Torah through the less humble Rabbi Aqiba. The text finally implies that the latter's discourse surpasses the former's. The unit allays any suspicion that Aqiba met his fate because he did not show adequate respect for the authority of the past. Aqiba's martyrdom remains an unexplained act of God.
This pericope provides us an opportunity to reflect on other contrasts between the narrative discourse of the successive Judaic systems. Israelite tales were often situated in some open natural or national setting. Rabbinic stories usually took place in the classroom, the study hall, the home. Israelite heroes, such as Moses, succeeded in politics or warfare. Contrastingly, as suggested in this and other stories, political activism doomed rabbinic leaders to torture and martyrdom.
The rabbis overtly recognized the discursive disconnection but rarely acknowledged substantive divergences in ritual and theology from their Israelite counterparts. These masters of late antique Judaism industriously renovated their received traditions through a process of imposing modes of predominantly legal discourse and interpretation on an antecedent heritage, or "rabbinization." They converted major elements of the cultural substance of the Israelite past to a radically different rabbinic setting.
In the process or rabbinization of ceremony and theology and revision of discourse, rabbinic authorities made Moses "our rabbi" and made other heroic Israelite figures likewise take on rabbinic characteristics. The made the major seasonal festivals into occasions for the celebration of the Torah and for its study. The transformed Pentecost, the Israelite festival of the first fruits, into the rabbinic celebration of the revelation of the Torah at Sinai, and Passover, the Israelite national festival of animal sacrifice at the Temple in the Jerusalem, into the time for technical discourse at the rabbinic Seder-symposium, in the homes of the rabbis and their followers.
That which they did not transform in Israelite practice or scripture, they atomized in midrashic analysis into brief pericopae and practiced on those their analyses based on their accepted discursive, mainly legal techniques and conventions. They thereby both created and resolved glaring incongruities, ambiguities and contradictions of rabbinic theology and ideology.
The later emergence of the Kol Nidre service on Yom Kippur serves as a dramatic illustration of how thoroughly legal discourse permeated rabbinic ritual and how sharply rabbinic practice diverged from Israelite ritual. Yom Kippur was thought to be a somber occasion of penitence and atonement. In the Israelite Temple cult it was the only time of the year that the High Priest licitly entered the Holy or Holies. The rite of the sacrifice of the scape-goat dominated the festival.
In rabbinic practice the festival began in the synagogue at sundown with the following public mainly legal declaration renouncing the year's vows and declaring them null and void. Though its formal institutionalization is thought to have been post-talmudic, this litany refracts the centrality of legal discourse in rabbinism. In the most somber of Judaic chants, the following was recited three times to inaugurate the service on Yom Kippur eve:
All vows, renunciation, promises, obligations, oaths, taken rashly, from this Day of Atonement till the next, may we attain it in peace, we regret them in advance. May we be absolved of them, may we be released from the, may they be null and void and of no effect. May they not be binding upon us. Such vows shall not be considered vows; such renunciations, no renunciations; such oaths, no oaths.[7]
A religious system pervaded by law could elevate such a set of formulae to one of the esteemed pinnacles of its liturgy.[8]
In light of the components of the system now summarized, it is not surprising that rabbinism revered the discourse itself as ritual and attributed its highest value to the study of Torah, as defined by the rabbinic paradigms of practices of analysis. In rabbinic idiom, the study of Torah outweighed all other commandments. Torah leshma, Torah-study for its own sake, was the pinnacle of religious activity.
Political and social authority and the law
In tracing the role of Jewish law within successive and overlapping Judaic systems we may note several stages of cultural "shifts" from sacred to secular legal discourse. Thus far our analysis has highlighted the change from law in a system with a national legal emphasis in ancient Israel, to legal discourse in a Judaism dominated by a brotherhood of rabbinic lawyers.
In the historical situation of late antique Judaism, the emergence of this system as dominant was not merely happenstance. One might have expected the Roman authorities in Israel and the Sassanian governors in Babylonia to support a religious system that served national their interests by constraining and localizing the religious authority and aspirations of local community leadership.
Of course rabbinism itself developed diverse and complex relationships towards political life. Mishnah's (c. 200) basic legal theology involved a combination of fantasy and reality. That corpus combined laws for prayer, agricultural taboo, festival and family law, that the rabbis could have actually influenced, with laws for damages, civil and criminal codes, over which they might have had localized control, and with rules for Temple sacrifices and ritual purity, totally irrelevant to the real life of the community.[9]
Babylonian rabbinic authorities, such as Samuel (third century) articulated practical legal principles such as, "The law of the land is the law," a dictum aimed at encouraging cooperation with the governing Sassanian authorities (Bavli Gittin 6b). For rabbis like Samuel it was enough that Rabbinic law served the limited local community under the domination of individual charismatic figures.[10]
The rabbinic holy men of the late antique era claimed the sole authority to author and interpret the law for their communities. They openly asserted the strict limitations of divine power. They thereby entrenched their prestige firmly as masters of discursive analysis, denying it to rival claimants such as those who based their stature on mystical revelation or other forms of charismatic expertise or feats. One prototypical rabbinic source begins with this point and then goes beyond it.
A. It was taught: On that day [that the sages declared a certain kind of ovens unclean against the ruling of R. Eliezer] R. Eliezer brought forth all the arguments in the world to support his view, but they refused to accept them.
B. He said to them, "If the law agrees with me, let this carob tree prove it."
C. The carob tree was uprooted and hurled from its place a hundred cubits [or according to some, four hundred cubits].
D. "No proof can be brought from a carob tree," they said to him.
E. Again he said to them, "If the law agrees with me, let this stream of water prove it."
F. The stream flowed backwards.
G. "No proof can be brought from a stream of water," they said to him.
H. He said to them, "If the law agrees with me, let the walls of the study hall prove it."
I. The wall started to lean in as if about to fall.
J. R. Joshua rebuked them and said [to the walls], "When the disciples of the sages dispute the law what business do you have to interfere?"
K. The walls did not fall in on account of the honor of R. Joshua and they did not revert to upright on account of the honor of R. Eliezer...
L. Again R. Eliezer said, "If the law agrees with me, let it be proved from heaven."
M. A heavenly voice came forth and said, "Why do you dispute R. Eliezer, as the law agrees with him in every case?"
N. But R. Joshua stood up and exclaimed, "It is not in heaven" (Deut. 30:12).
O. What did he mean by this? R. Jeremiah said, "He meant the Torah has already been given at Mount Sinai so we pay no attention to a heavenly voice since you long ago have written in the Torah at Mount Sinai, "You must follow the majority opinion" (Exod. 23:2).
P. R. Nathan met Elijah [the prophet in a mystical encounter] and asked him, "What was the Holy One Blessed Be He doing at that time [when the rabbis ruled against the heavenly voice]?"
Q. He replied, "He laughed and said, `My sons have defeated me, my sons have defeated me'" (B. Baba Mesia 59a-b).
The pericope's anecdote in the law-laden discursive style of the system itself explained certain incongruities inherent in the shift in discourse from Israelite religion to rabbinic Judaism. A sets the action in an internal debate on a matter of technical ritual law. B-I develop Eliezer's charismatic challenge to rabbinic authority. Joshua parries the thrust at J-K. L-M raises the ante of the challenge and N closes the debate. The first post script (O) invokes majority rule, a simple legal justification for rejecting Eliezer. The second post script at P-Q cites a mystical teaching to further bolster rabbinic claims to exclusive regulation of matters of religious law.
The unit cleverly closes with an indirect avowal of mystical knowledge of God in a parody of what the rabbis seem to be claiming for themselves. Nathan asserts that when God learned that the sages rejected direct mystical revelation and defended their decision in terms of the singularity of the revelation at Sinai (at O), God could not help but laugh. The rabbis of late antiquity after all maintained that they were the sources of law and that they possessed the continuing capacity to add new elements and interpretations to their Oral Torah.
In its later history Judaism evolved in Europe and North Africa to become a medieval religious subculture broadly infused with legal discourse, with but a circumscribed authority for enforcing religious law. The rabbis of this era developed the responsa, legal publications of case decisions. To enforce them, they could mainly resort to threats of future punishment in the world to come or excommunication from rabbinic society. Hasidism represented a late eighteenth and nineteenth century popular rebellion against the suffusion of law within the religious culture of Eastern Europe.
In more recent history an anti-legal reformed religious system has made use of messianic world view to overthrow the dominant suffusion in Judaism of rabbinic legal culture. This Judaism in competition with Zionism, another non-legal salvific system, thrived in post-enlightenment Western secular society where the role of law was more and more targeted to preserve the balance between the dominance of the state and the individual rights of the person.[11] In one contemporary radical application, Jewish law has reverted to serve another function, reminiscent of a previous time, to become a tool of obstructing contact between fundamentalist apocalyptic Orthodox Jews and the rest of society at large.
Accordingly, in the systems of Judaism, law took on a variety of roles. It served primarily as a tool of various ruling political elites within a society. It facilitated discourse within a scholastic group. And at times it became a manipulative implement against society at large in closed anti-social religious settings.
Contemporary systemic analysis
In contemporary academic terms the distinctions between the roles of law in Israelite and rabbinic cultures is an issue of systemic analysis. This method of the study of the representations of a religion employs the premise that religions, like culture in general develop not along a simple linear progression, but as a series of separate, sometimes overlapping, systems. Jacob Neusner articulated and developed the theory of the applied systemic analysis of Judaism in his studies of the history of Judaism to explain the contradictions inherent in the evolution of religious institutions.[12]
To account for the differences between Israelite and rabbinic Judaisms, for instance, and to engage in the construction of the broader history of Judaism, according to the view of Neusner, one must consider independently each Judaic system and its data in light of its metaphoric social personification, its "Israel."[13] "Given the diversity of Judaisms past and present," Neusner says,
we cannot find it astonishing that the name for the social entity constituted by Jews, the name "Israel," has carried a variety of meanings, and . . . each of these served not as concrete description of real people living in the here and now, a merely factual statement of how things are, but as a metaphor. The metaphor might take genealogical or political or supernatural or taxonomical and hierarchical or ontological or epistemological character, as systems varied (p. 39).
The vitality of Neusner's analysis is its insistence on placing primacy for description on the social group. "A Judaic system derives from and focuses upon a social entity, a group of Jews who (in their minds at least) constitute not an Israel but Israel (p. 13)." A strength of the approach is the clarity of the definition of a system: a "Judaism" articulates a distinct world-view and a well-defined way of life for its society. "I understand by a religious system three things that are one," Neusner says:
[1] a world-view, which by reference to the intersection of the supernatural and the natural worlds accounts for how things are and puts them together into a cogent and harmonious picture;
[2] a way of life, which expresses in concrete actions the world-view and which is explained by that world-view;
[3] and a social group, for which the world-view accounts, which is defined in concrete terms by the way of life, and therefore which gives expression in the everyday world to the world-view and is defined as an entity by that way of life.
In further defining the assumptions of his concepts as they pertain to Judaisms, he adds:
A religious system is one that appeals to God as the principal power, and a Judaic system is a religious system that identifies the Hebrew Scriptures or "Old Testament" as a principal component of its canon. A Judaism, then, comprises not merely a theory -- a book -- distinct from social reality but an explanation for the group (again: Israel) that gives social form to the system and an account of the distinctive way of life of that group. A Judaism is not a book, and no social group took shape because people read a book and agreed that God had revealed what the book said they should do.
When Neusner applies this systemic approach to the interpretation of official Judaic legal and hermeneutical texts and narrative he presumes to be dealing with ecological systems, independent ordered and closed cultural entities.[14]
As a tool to explain change and development within ongoing historical traditions, systemic analysis rests on two premises:
[1] No religious system recapitulates any other.
[2] All religious systems within a given social and political setting recapitulate the same resentments (p. 19).
Neusner avers that his analysis better enables the scholar to compare systems one to another. The comparative enterprise requires, he says, study of the setting, the literary and material evidence of the system and, "the consequent system and its definition of urgent questions and self-evidently true answers." Because each system stands ecologically distinct from another we can ask about the particular "resentment" confronting the vision of a certain group and how it, through the representations of its system, "responded to that inescapable question (p. 20)."[15] In this fashion some historians of Judaism employ the prevailing systemic paradigm of analysis to interpret the contradictions within an ongoing historical tradition among a multiplicity of Judaisms and their respective historical and cultural circumstances and discursive spheres.
In the modern systemic perspective, the classical Judaism of the dual Torah, rabbinic Judaism, does not derive directly from its predecessor, ancient Israelite culture. In fact it is a distinct system that took shape after a catastrophe of 70 C.E. (the destruction of the Temple in Jerusalem and loss of independence to the Roman Empire) and persisted in one or another configuration through the middle ages to the present day where it is most closely approximated as a form of contemporary Orthodoxy or Conservative Judaism.[16]
Conclusions: Judaisms and the law
In the course of two millennia numerous shifts occurred in the sources and functions of law and of legal authority in Judaic systems. Our comparison of aspects of rabbinic and Israelite law in their respective systems demonstrated one of the stages of the shift of legal authority from divine to human sources. Rabbinism was an extended intermediary way station along this journey.
The issues I have raised in this paper illustrate stages in the "shift from sacred to civil law," and they highlight for us some special cases of "the nature of the contradictions that ensue when the attempt is made to construct law as a predominantly (but not entirely) this-worldly discourse, and to ground legal and moral issues in the contingent and profane realm of human preferences."[xvii] In creating, recognizing, and trying to come to grips with these contradictions, the rabbinic sages thereby took important steps in the direction of moving the source for legal authority and its processes out of their former exclusive association with the domain of the deity, as they were in an earlier religious systemic conceptualization, and placing them more squarely into the territory of human authority, as these masters generated new and more complex systems of prescriptive discourse.
[1] Other examples of issues of comparative systemic interest are: the law in the Biblical systems (Deuteronomy and P in particular) and "discovery" by Josiah of the book of Deuteronomy; rabbinic denigration of the Sinai narrative in Mekhilta; medieval rabbinic and anti-rabbinic postures, such as Karaism; the virtually symbolic role of law in modern post-enlightenment forms of Judaism.
[2] Albrecht Alt, "The Origins of Israelite Law," in Essays on Old Testament History and Religion, New York, 1968, p. 103.
[3] Alt (pp. 163-171) more speculatively associated the origin of apodeictic law with Israelite worship recited during the Tabernacles festival at a renewal of the covenant between Yahweh and Israel.
[4] For a summary of the relationship between law and the wisdom and scribal tradition, see J. Blenkinsopp, Wisdom and Law in the Old Testament, Oxford, 1983.
[5] Neusner summarizes the evidence in Judaism: The Classical Statement. The Evidence of the Bavli, Chicago, 1986, pp. 215-222.
[6] To be precise: Mishnah is a middle Hebrew text in syntax more Indo-European than its Israelite predecessor. The Talmudic corpora freely mix Hebrew and Aramaic.
[7] The High Holy Day Prayer Book, trans. Ben Zion Bokser, New York, 1959, p. 258.
[8] We find references to the Kol Nidre by the Geonim beginning in the eighth century and subsequent debate over the propriety of reciting it. Sages in Sura condemned it. Some modern scholars speculated that it originated in Israel as reaction to Karaism. Others thought it was opposed by the sages because some saw a connection between it and formulae meant to annul magical incantations, like those on the Aramaic incantation bowls of the Talmudic era. This theory seems far-fetched and represents at best a secondary meaning, associated post facto with these clearly legal declarations. For a discussion of the litany see, R. Posner et. al. eds., Jewish Liturgy, Jerusalem, 1975, p. 177.
[9] Thurman Arnold (in The Symbols of Government, New York, 1962, cited in The Sociology of Law, ed. V. Aubert, New York, 1969, p. 47) theorizes, "The principles of law are supposed to control society, because such an assumption is necessary to the logic of the dream. Yet the observer should constantly keep in mind that the function of law is not so much to guide society, as to comfort it. Belief in the fundamental principles of law does not necessarily lead to an orderly society. Such a belief is as often at the back of revolt or disorder."
[10] Peter Brown's recent research underscored the emergence of the holy man in the late antique world. Brown understates the connections between cultural change and the political circumstances in the imperial Roman and Sassanian contexts. Richard Horsely better accounts for the political roots of religious change but his research lacks Brown's subtle insight into the primary data. See Peter Brown: The World of Late Antiquity, London, 1971; The Cult of the Saints, Chicago, 1981; The Making of Late Antiquity, Cambridge, Mass., 1978. Also see Richard A. Horsely, Jesus and the Spiral of Violence, San Francisco, 1987; Richard A. Horsely with John S. Hanson, Bandits, Prophets, and Messiahs, San Francisco, 1985.
[11] In Henry Maine's classic articulation (Ancient Law, Dent, 1917, pp. 99-100), "The movement of progressive societies has been uniform in one respect. Through all its course it has been distinguished by the gradual dissolution of family dependence and the growth of individual obligation in its place... [It has been] a movement from Status to Contract."
[12] Some ostensibly direct recent accounts of the system of Jewish law lack a clear methodological framework for social scientific analysis in general and an ignorance of religious studies in particular. Elliot Dorff ("Judaism as a Religious Legal System," in the Hastings Law Journal, vol. 29, July, 1978, pp. 1331-1360) assembles much pertinent data in a recent essay. But his treatment of the subject and theological concluding statement suggest he had an apologetic, rather than critical, agenda (p. 1360): "Jewish law is a religious legal system. It functions in some ways like any other body of law, but in other ways it is distinctively religious. The religious elements have a far-reaching effect on Jewish law, and the law in turn affects the religion. Through these interactions Jews believe that Jewish law becomes, `a tree of life to them who hold fast to it, an all its paths are peace' (Proverbs 3:17-18)." Dorff's misunderstanding of the distinction between religious law and secular law rests in his assumption that some inherent nature or the alleged origins of a law locates it in one of these categories. Historians and social scientists since Weber and Durkheim have focused for categorical definitions on the sources of authority and of enforcement. For an example of a more sophisticated approach within legal studies see e.g. Robert M. Cover, "Nomos and Narrative," in the Harvard Law Review, vol. 97:4, 1983, pp. 4-68. I thank Prof. J. Williams of the Law School of the College of William and Mary for bringing these and other references to my attention.
[13] Jacob Neusner, First Principles of Systemic Analysis: The Case of Judaism Within the History of Religion, Lanham, MD, 1987, pp. 35-36.
[14] This systemic view derives in large part from Geertz's definition of religion as a cultural system, and stems in the main without question from the classical Weberian vision of social structures. See Clifford Geertz, "Religion as a Cultural System," in Michael Banton, ed., Anthropological Approaches to the Study of Religion, London, 1966, pp. 1-46 and the references assembled there on pp. 44-46.
[15] Some books by Neusner related to the description of systems include, From Description to Conviction: Essays on the History and Theology of Judaism, Atlanta, 1987, The Systemic Analysis of Judaism, Atlanta, 1988, Canon and Connection: Intertextuality in Judaism, Lanham, 1987, Midrash as Literature: The Primacy of Documentary Discourse, Lanham, 1987, Ancient Judaism and Modern Category Formation: "Judaism," "Midrash," "Messianism," and Canon in the Past Quarter-Century, Lanham, 1986.
[16] As I have indicated, Jews in Nineteenth century Europe formulated several new Judaisms. Dominant among these were utopian and messianic movements leading to Reform and Zionism, and other forces giving rise to Conservative Judaism and Yiddishism. They also participated in and helped shape a variety European secular cultural alternatives, like socialism, anarchism and communism, all movements conceived of and articulated in significant measure by Jews, but clearly not Judaic systems.
[17] Bruce Lincoln and William Malandra, "Conference Proposal, Religious Law: the Construction of Law as a Sacred Discourse," University of Minnesota, 1989, p. 2.