Originally published on 16th October 1970.
INTRODUCTION TO THE LAWS OF ISRAEL IN THE PERIOD OF THE SECOND TEMPLE (Heb.). By Zeev W. Falk.
DINE ISRAEL: An Annual of Jewish Law and Israeli Family Law. Vol. 1. By Z. W. Falk. Wahrmann, Jerusalem.
Good halachists are not necessarily sound historians and many excellent Jewish historians are sadly lacking in halachic knowledge. The result is that, with few exceptions, the historians have neglected a most important source of material while the halachists proceed as if there were no history of the halacha.
When Chaim Tchernowitz, many years ago, wrote his history of the Shulchan Aruch he was severely criticised by the rabbis of his day, not so much for what he actually wrote as for the suggestion in the title that there had been a history and therefore a development of halacha prior to its crystallisation in the authoritative Jewish Code.
In some circles there has been evident for some time a fresh meeting of the two disciplines. Prominent among scholars with both halachic and historical expertise is Zeev W. Falk.
In the first of the two volumes reviewed here Professor Falk attempts the very difficult task of reconstructing the state of Jewish law in the period of the second Temple. The formative Persian period in particular presents numerous problems because of the paucity of sources.
The method Falk adopts is cautiously to read back later formulations of the law where this is possible and at the same time to note where a careful examination of the material reveals that changes took place.
As he acknowledges frankly, an element of guesswork is bound to enter into such an undertaking. For instance, Falk believes that in the earliest period it was held that a prophet could declare what the law is in particular circumstances whether or not his decision accorded with the traditional law.
Only in, the later halacha was the right of the prophet to do this restricted to a temporary suspension (Elijah at Camel) and only later was it said that the sages wished to “hide away” the book of Ezekiel because “its words contradict the words of the Torah.”
Another example of a position that other scholars may well question is Falk’s suggestion that “the judge who teaches leniently” in capital charge was, originally, one who based his argument for acquittal not on the case itself but on his interpretation of the scriptural passage in which it is stated.
The annual contains a number of important articles in Hebrew and English, book reviews, and a Current Bibliography of Hebrew Law. Among the essays are a study by the editor of “Forensic Medicine in Jewish Law” and a critique by F. C. Fensham of Alt’s distinction between “casuistic law” (“If . . . then . . .”) which is found throughout the ancient Near East, and “apodictic law” (“You shall not . . .”), which, Alt alleges, is found only in the Bible.
These two volumes are essential reading for scholars working in this field.