Originally published in Jewish Quarterly 32: 1 (117) (1985), pp. 47-50.
A TREE OF LIFE: DIVERSITY, FLEXIBILITY, AND CREATIVITY IN JEWISH LAW By Louis Jacobs (Oxford: Oxford University Press for the Littman Library of Jewish Civilization, 1984, £18.00)
The “Jacobs Affair” which split the Anglo-Jewish religious community in the 1960s turned on the question of “fundamentalism”. Is it essential for faith in Judaism to believe that the Torah was given word for word to Moses by God? Or is it consistent with faith to accept the findings of modern scholars that the Torah was compiled from various sources long after the time of Moses and thus contains many human elements, including contradictions and historical inaccuracies? How essential is it to the continuance of Judaism as a religious, ethical and legal system to believe in the inerrancy of Scripture?
In Judaism, the doctrine of the inerrancy of Scripture has always been tempered by the idea of an oral Torah existing alongside the written Torah. While the written Torah is fixed for all time (consisting as it does of a fixed canon of writings), the oral Torah, which explicates and develops the written Torah through the generations, is a growing body of thought and practice, constantly subject to enquiry and revision. Thus, it has been frequently argued, the term “fundamentalism” does not really apply to Judaism; it applies only to the type of religion (to be found primarily in Protestant sects of Christianity) which insists on the literal interpretation of Scriptural texts, and denies that a developing exegetical tradition has any role to play. In this sense, the nearest thing to fundamentalism in Judaism was the doctrine of the Sadducee and Karaite heresies, which denied the necessity for exegesis, and, like the Protestant Reformers in Christianity, called for a return to the bare text of Scripture.
However, the matter is further complicated in Judaism by the tendency of the oral Torah to acquire a quasi-Scriptural authority for its more prominent historical crystallizations. Thus the Talmud, though never accorded full canonical status (in the Scriptural sense of being inspired by the ruah ha-qodesh, or Holy Spirit), became accepted as a final authority with which subsequent masters of oral Torah were not permitted to disagree. This authority was said to reside in “a decision of all Israel” to accept the Talmud as authoritative, though when, where, or how this decision was taken is not explained. The history of the oral law thus became divided into two eras: the Talmudic era, when full and equal discussion took place, and the post-Talmudic era, when discussion could take place, but only on the basis of deference to the authority of the Talmud. Other such eras can be discerned in the history of the oral Torah: even within the Talmud a distinction of authority exists between the era of the Mishnah and the era of the Gemara; and in later Judaism, a watershed producing two eras was the publication of the Shulhan Arukh in the sixteenth century. Yet despite this stratification and apparent increase of rigidity, it cannot be said that the oral Torah ever lost its flexibility and power of adaptation to circumstances. For as new foci of written authority crystallized out of the continual discussions that comprised the oral Torah, they were treated with the same versatility of exegesis that had been applied to the Torah itself; and it must be said also that the Talmud lent itself to flexibility of interpretation by the fluidity of its structure, with its constant reference to minority opinions and its concern for recording every voice rather than for reaching codified decisions.
In The Tree of Life, Louis Jacobs is mainly concerned to show how, despite factors making for rigidity, the practice of the oral Torah retained its ability to cope with new circumstances and avoid petrifaction. Moreover, even though Jewish religious law, or Halakhah, is in theory based entirely on the Talmud, it has been influenced in fact by currents of thought subsequent to the Talmud, such as philosophy, Kabbalistic mysticism, and Hasidism. Thus, the development of the Halakhah has not been merely the eliciting of implications already inherent in it, but in many cases a real development or change, so that it is appropriate to speak of the “history” of the Halakhah. From this study of actual change in the Halakhah, Rabbi Jacobs then seeks to draw conclusions about its continuance in an age when its mythical underpinning—the inerrancy of Scripture—no longer seems tenable. Such a continuance, he argues, is both possible and desirable, and can be validated by a true historical understanding of how the Halakhah operated in practice through the centuries.
A very interesting feature of Rabbi Jacobs’ handling of his theme is the way in which he relates it to the age-old question, “How far should Halakhah be affected by Aggadah?” In theory, Halakhah—law and practice—is a system on its own, isolated from Aggadah—material of an inspirational nature, comprising stories about biblical and rabbinical times, theological thoughts and speculations, concepts about the mission of Israel or the Messiah. Halakhah is a tight system, in which binding decisions must be reached; while Aggadah is an open system, in which rival or complementary ideas can exist side by side, without requiring a decision enthroning some and banishing others. For practice (Halakhah means “going”, i.e. practice) requires a decision, right or wrong; but thought and speculation in Judaism (within certain limits) is generously free—with the consequence that heresy-hunting has been relatively rare. Philosophy and mysticism belong to the realm of Aggadah, so their influence on Halakhah, in theory, should have been nil. Yet new areas of thought external to the Halakhah affected it profoundly; for example, many laws included in that sober legal work the Shulhan Arukh come not from the Talmud, but from the Zohar, which undoubtedly belongs to the Aggadah (e.g. the use of a ring in Jewish marriage ceremonies is a Zoharic prescription and has no support in the Talmud). The attempt was certainly made to limit the influence of the Zohar on the Halakhah (by the formula that wherever the Zohar contradicts Talmudic Halakhah, the Talmudic ruling has superior force), but this still left a considerable area in which Zoharic Halakhah was allowed to fill gaps in the Talmud. Similarly, philosophy had a considerable influence on Halakhah in Maimonides’ great compilation, the Mishnah Torah.
This kind of consideration really does bear out Rabbi Jacobs’ contention that the Halakhah, while preserving an appearance of sedate continuity, has assimilated influences which have stimulated new growth. It has indeed been a “Tree of Life”, not a mere computer system handling problems without ever going beyond its inbuilt programme.
It must be said, however, that Rabbi Jacobs does not always bear in mind sufficiently this distinction between the tree and the computer. The material which he adduces is always fascinating in itself and informed by his unrivalled learning and acumen; but much of it does not in fact prove new growth, but only ingenuity in the application of old principles to new circumstances. For example, the Halakhic problems produced by the advent of electricity (in relation to the Sabbath prohibition against kindling a fire) have not required any new moral insights or philosophical concepts, but only the sharpening of distinctions found in the Talmud.
More to the point are the cases where the Halakhah has developed in response to some pressing sense of injustice. For example, Halakhists have used all their ingenuity to reduce the suffering caused by the law of the mamzer, by which a person born of an adulterous union (even when unwittingly contracted) is excluded from marriage with most members of the community. The unwillingness of the Talmud to declare a child a mamzer even on apparently uncontrovertible evidence is echoed in later practice, which amounts almost to a nullification of the law. The law of the mamzer is regarded as Biblical in origin; yet every effort is made to reduce its effects, because it is regarded as cruel. If a developing sense of justice can create law in this way, Rabbi Jacobs asks, why should it not continue to do so even after a literal belief in the Divine origin of the law in question has ceased? For, in practice, that belief, even in the age of faith, did not prevent the law from developing under the dictates of the individual, human conscience. The willingness to set aside Divine law in the past validates the continuance of the Halakhah as a humanistic programme, concerned for continuity and tradition, but relying in the last resort on the human conscience, through which the will of God is gradually and accumulatively revealed.
If Halakhah depends for its development on human insight and conscience, what need is there, it may be asked, for any doctrine of Divine revelation to validate it? Why not regard it as a purely human undertaking, like science? Rabbi Jacobs’ answer to this question is that the eye of faith can discern in the development of the Torah (both in its Halakhic and Aggadic aspects, and in the interaction between them) something more than a humanistic process; that we have here a dialogue between God and man, often stumbling and provisional, but throughout illuminated by an openness to a transcendent reality.
Also, as Rabbi Jacobs points out, it may well be questioned how far the doctrine of literal inspiration was ever held in a simplistic form. For the doctrine that is characteristic of Judaism—that there is an oral Torah as well as a written Torah—has delivered the administration and practical interpretation of the religion into fallible human hands; so much so, that in a famous Talmudic story, God Himself could be declared out of order when he tried to intervene in a debate of the rabbis, and reminded of the assertion in His own Scripture: “It [the Torah] is not in heaven.”
Rabbi Jacobs has confined himself largely in this book to illustrating the flexibility of Talmudic law, and has not entered into a deeper discussion of the theoretical relationship of the oral to the written law. Perhaps this was too big a subject for adequate treatment, and required another book. But it is worth pointing out here that, in the last analysis, the standing given to oral law in Judaism means that all Judaism—even Scripture itself—is oral law. For the very definition of what is written Torah and what is oral Torah lies in the hands of the rabbis. It was, after all, the rabbis who decided the actual canon of Scripture—what should be included, and what should be excluded. Moreover, the actual text of Scripture has come to us through a very human process of transmission, which means that even if one believes that it was verbally inspired at the time of its revelation, it must have suffered many corruptions in the course of so many centuries. Moreover, whenever the question arises in Talmudic argument, whether a given law is de’uraita (of Scriptural authority) or derabbanan (of rabbinical authority), the matter is decided by the rabbis—so that many laws now regarded as de’uraita are so only by rabbinical decision, often involving the overruling of minority opinions which would prefer to regard them as derabbanan!
Consequently, the fallible nature of rabbinical decisions has in time affected the whole Halakhah. In the Catholic Church, this dilemma has been resolved by a doctrine of the Infallibility of the Church, by which it is held that, by a perpetual miracle, the Church continues to be inspired directly by God throughout time. Such a doctrine is nonexistent in Judaism, in which human fallibility is regarded as a constant factor (though some Jewish fundamentalists have attempted to introduce doctrines similar to the Infallibility of the Church into Judaism, without the slightest support from the classical sources). True, the Talmud validates the right to rabbinic decision-making by basing it on a Scriptural text—but this text itself is thus given a rabbinic interpretation.
There is a story about Hillel that well illustrates this point. He was approached by a prospective convert to Judaism, who stipulated that he wished to adopt the written law and not the oral law. Hillel (more patient than his colleague, Shammai) accepted the convert on these terms provisionally, and started by teaching him the Hebrew alphabet. In the second lesson, however, he deliberately gave the Hebrew letters wrong names, saying that “aleph” was “bet”, and “bet” was “aleph”. When the would-be convert protested, “That is not what you said in our first lesson”, Hillel pointed the moral: “It is only by tradition that we even know the alphabet; and you want to know only the Scripture and not the tradition!” Hillel might have added that it is only by tradition (masoret) that we know the Scripture itself, which is written in that alphabet.
And the tradition is not a static body of doctrine, but something growing and developing (even on the most orthodox view, the part of the oral Torah that was given to Moses on Mount Sinai is only a portion of the whole, and there is much difference of opinion—settled again by rabbinical decision —about which laws were so given). Rabbi Jacobs has given an important and enlightening account of the way in which the concept of oral law has vivified Judaism, enabled it to survive so many crises, and may well enable it to survive the crisis of modernism.
This crisis, indeed, cannot be ignored. The myth that the written Torah was handed to Moses in exactly the same form that we have it today cannot be upheld in the face of modern methods of scientific textual enquiry. But the myth was not just an error in scientific judgement; we need an understanding of the function of myth in the formation of a culture. The social and ethical purpose of belief in a Divinely-revealed Scripture is to provide a transcendent focus of attention for a community, by which its communal structure and individual patterns of behaviour and thought are informed and shaped. Only time can tell whether a Scripture deserves the attention thus centred on it; and time has justified the Jewish Scripture beyond measure. It has proved to be a fountain of ideals of love, justice, resistance to oppression, equality and peace for the whole world. Its central story—the deliverance of a slave-people from Egypt and the establishment of a Promised Land under a charter of freedom, the Torah—has been a power for good throughout history, and the attention lavished on this story and its implications has produced the oral Torah, the implementation and cultivation of the ideals contained in the written Torah. As Rabbi Jacobs argues, it would be foolish in the extreme to jettison this priceless religious heritage just because its underpinning myth has proved to be symbolic rather than literal, and because we now have a more adult understanding of the meaning of inspiration.
Hyam Maccoby is a Fellow of the Leo Baeck College, London, and the author of, among other works, Revolution in Judaea, Judaism on Trial and The Sacred Executioner.