What is This Thing Called Law?
The headline-making issues facing American Jews and Judaism are all too obvious from the statistics gathered in the latest Pew report: climbing rates of out-marriage, growing numbers of Jews with no interest whatsoever in Judaism, a noticeable distancing from Israel. Only among the religiously observant, it seems, is the continuity of a vibrant Jewish life secured.
But whatever partial comfort is to be had from this last finding, it would be wrong to conclude that Jews who remain deeply immersed in the practice of Judaism and highly affiliated with Jewish institutions are without troubles of their own. To the contrary: in Israel as well as in the Diaspora, these communities are embroiled in fierce internal debates over any number of contemporary issues—the public role of women in synagogue life; the requirements for conversion to Judaism; and others—that threaten their own cohesiveness and future vitality.
The debates themselves reflect an ongoing tension—indeed, an age-old tension—between the impulse for traditionalism and the counter-impulse for adaptation and change in the light of shifting circumstances. For many tradition-minded Jews, the issue comes down to one of halakhah, which is to say religious law and its proper interpretation. Spirituality, community, personal growth, views of the future and of the past: all are mediated through the scrupulous practice of halakhah, the “portable homeland” of the observant Jew for more than two millennia. In addressing these and other issues, such Jews turn reflexively to see how the Jewish legal tradition has addressed similar issues in the past, and how past legislation informs the religious decisions they make today.
But (with apologies to Cole Porter) what is this thing called Jewish law, and what is the Jewish legal tradition?
In invoking law, or in equating halakhah with law, observant Jews tend to have in mind a specific view of what law is and how it operates. That view is captured in phrases like “uphold the law,” “comply with the law,” “the letter of the law,” “against the law.” All of these usages share a basic assumption: namely, that the law in question is a written formulation and is to be found in a law code.
And yet this very notion—that by “law” we mean written law found in a law code—is itself a relative newcomer in the history of legal thought. Once upon a time, the norms of society—even of Jewish society— were not written. There were no codes.
What follows is the story of how the word “law” came to take on its modern meaning and—more pertinently—how this understanding has put Jews out of touch with much of their own legal tradition. Revisiting that tradition can in turn allow a fuller appreciation of contemporary debates within observant Jewish communities and contribute some fresh thoughts about the delicate balance between continuity and change in the halakhic process.
1. Statutory Law vs. Common Law
In thinking of law as something contained in a codified text, most people have in mind what legal theorists call statutory law—not in the American sense of “statutes,” or isolated pieces of legislation, but in the sense of a legal system in which the primary source of law is codes. In this conception, only what is written in the code is the law, and the code supersedes all other sources of norms that preceded the code’s formulation. Therefore, courts must pay great attention to the wording of the text and cite the text in their decisions. Where explicit legislation is lacking, judges must proceed with the code as their primary guide.
For many of us today, this approach to law is intuitive and even unremarkable. Yet as recently as the early 19th century, the vast majority of Germans, Englishmen, and Americans thought about law in very different terms—namely, in terms of common law. In that view, a judge arrives at a decision based not on a written code but on the mores and spirit of the community and its customs. Legal norms develop, gradually, through the distillation and continual restatement of such court decisions, and judges are empowered incrementally to modify those norms in consultation with previous judicial formulations. Critically, the judicial decision itself does not create binding precedent.
As a system of legal thought, common law is consciously and inherently incomplete, fluid, and vague. When decisions and precedents are collected and written down, the resultant texts do not become the source of law but rather a resource for later jurists to consult. Every decision, in the words of the early-19th-century theorist John Joseph Park, becomes “a datum from which to reason,” allowing judges to address new needs and circumstances by reworking old norms, decisions, and ideas.
Common-law thinking has flourished in communities where common values and cultural touchstones were maintained by all. In the pre-modern period, when villages were small and homogeneous, families typically lived in the same place for generations and expected to do so into the future, sharing with others a common language, religion, and heritage as well as common economic opportunities and common enemies. In these circumstances, there was no need for societal norms to be legislated, let alone written down. What was expected of a person in attitude and behavior was part of the warp and woof of day-to-day life. There were no “jurists” as a professional guild. Village elders, in possession of the wisdom of the ages, determined on an ad-hoc basis the best redress for the situation at hand.
Where cohesion breaks down, however, and the continuity and homogeneity of small communities are torn asunder, it becomes difficult to anchor law in a collective set of mores and values. There are some ancient and less than ancient precedents for this. The first written Greek laws, which date to the middle of the 7th century B.C.E., proliferate in just the period when Greek city-states were developing more formal political systems. Roman law, canon law, and even the English writ system represent attempts similarly to systematize law across locales. But it is only with the onset of modernity that the pattern becomes truly widespread.
In 19th-century Europe, with large-scale urbanization and the rise of the modern nation-state, disparate individuals were coalescing into social and political entities of ever greater scope. What was needed to unite a heterogeneous populace around a single code of behavior was, among other things, a clearly formulated set of rules to bridge the behavioral and attitudinal differences among constituent citizens. By the end of the century, legal codes were being drafted across much of the Western world; the statutory approach had won the day.
This remains the case today. For us, citizens more often than not of heterogeneous and sometimes multilingual political entities, far removed from the spirit that animated the common-law jurisprudence of the past, codified law is law.
2. Before Judaism Had Codes
In the beginning—that is, in the Bible—there was no Israelite “law” in the sense of a statutory code. Indeed, there was no such law anywhere in the ancient Near East.
I can hear the reader asking: really? What about what is often called history’s first law code, the Code of Hammurabi (CH, hereafter), which dates all the way back to the early second millennium B.C.E.? As scholars have reluctantly come to conclude, that famous document is in fact no code at all.
French archeologists discovered the Code of Hammurabi while digging in 1901 at Susa, ancient Shushan. There they unearthed an imposing seven-foot-tall column of black diorite inscribed with cuneiform writing on all sides; today it stands as the marquee holding of the Louvre in Paris. Quickly translating the Akkadian script, written around 1750 B.C.E., scholars found that it contained provisions—282 of them, to be exact—like this one:
 If anyone opens his ditches to water his crop, but is careless, and the waters flood the field of his neighbor, then he shall pay his neighbor corn for his loss.
And this one:
 If a builder builds a house for someone, and does not construct it properly, and the house that he built falls in and kills its owner, then the builder shall be put to death.
Seeking to define the nature of this text, its early decipherers reasoned that since it looked like a law code, and read like a law code, it had to be a law code. This was, after all, the early 20th century, and every civilized country in Europe was beginning to champion statutory law. Moreover, evidence was quickly adduced to support this thesis in the form of more than fifty fragments of the Code found all across the Mesopotamian region. These fragments, copies that had been made over a period of more than 1,500 years, revealed virtually no adjustments of content, further cementing the impression that the Code of Hammurabi—or CH, as scholars refer to it in shorthand—enjoyed canonical status throughout Mesopotamia and was unrivaled as the source of law.
Around the middle of the 20th century, however, cracks began to appear in the scholarly consensus. For one thing, it was well known that throughout the ancient Near East, there had been wild fluctuations of economic inflation and deflation; nonetheless, the financial penalties mandated by the Code for various offenses remained unchanged everywhere in the epigraphic record. For another thing, significant areas of day-to-day life receive no attention at all in the Code; for example, there are no stipulations relating to inheritance—inexplicable in the binding law code of a culture.
Even more puzzling was the evidence from the archeological record. Copies of CH showed up in royal archives and in temples, but never at the sites of local courts, and never together with the thousands of court dockets that were coming to light from ancient Mesopotamia. Most puzzling of all: not one of those court dockets ever refers to or cites CH—or any law collection—as a source of law. Finally, and crucially, many court dockets record proceedings of cases whose remedy CH directly addresses but in which the judge rules counter to the Code’s prescription.
These complications raised two inter-related questions. If collections like CH did not contain the law, where could the law be found—where was it written? And if texts like CH were not statutory codes, what were they?
Where was the law written in Mesopotamia? The answer is: it wasn’t. A judge would render a decision by drawing on an extensive reservoir of custom and accepted norms. Such decisions would vary from locale to locale. One could not point to an accepted text of the law as the final word on what the law was or prescriptively should be. Philology here speaks volumes: in ancient Greece, the word for written law was thesmos and, later, nomos. But, as we have seen, that was Greece. Nowhere in the cultures of the ancient Near East is there a word for written law. The concept does not exist.
So if CH wasn’t a collection of laws, what was it? Both it and other such collections are anthologies of judgments—snapshots of decisions rendered by judges or perhaps even by the king himself. The domain of these texts was the ivory tower of old: the palaces and the temples, the world of the court-scribe. The collections offer a model of justice meant to inspire: a kind of treatise, proceeding by way of examples of the exercise of judicial power. They are records of precedent, not of legislation.
All of this throws great light upon what we call law in the Bible.
Nowhere does the Bible instruct judges to consult written sources. Nor do narratives of adjudication, like Solomon’s “split the baby” trial in the book of Kings, make reference to written sources of law. Nor do any of the collections of biblical “laws”—like those in the so-called Book of the Covenant (Exodus 21-23) or those enumerated in chapters 12-26 of Deuteronomy—strive to provide a comprehensive set of rules to be applied in judicial cases.
Similarly, as in CH, critical aspects of daily life receive no legal attention. The Torah clearly endorses and sanctifies the institution of marriage, for example; yet, if you want to get married, it nowhere says just what you have to do, ritually or contractually. In a work of statutory law, that would be unthinkable.
Let’s look at two examples of how law in the Bible is negotiated through a common-law mentality. Recall the parable of the poor man’s ewe in the book of Samuel. David has slept with Bathsheba, the wife of Uriah, one of his soldiers on the battlefront. The prophet Nathan wishes to compel the errant king into an awareness of his misdoing. He brings up a fictitious case in which a man blessed with large flocks steals and slaughters the ewe of his neighbor, a poor man who owned nothing but the ewe, which he loved very much.
The king does not realize that the parable is a metaphor of his own lust for women, of whom he has had many. Asked by Nathan to adjudicate this hypothetical case, he imposes a punishment on the thief. Now, if biblical law were statutory law, David would need only to consult Exodus 21:37: “If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five oxen for the ox and four sheep for the sheep.” David, however, deviates from this ostensible statute. In addition to obligating the thief to four-fold restitution—as per Exodus—he also sentences him to death.
From a statutory perspective, David’s actions are out of line, a violation of the cardinal tenet of strict construction: interpreting the law as literally as possible. Seen as common law, however, the proposal in Exodus of four-fold restitution for a stolen and slaughtered sheep is not prescriptive but rather an example of justice in the given circumstances: presumably, a case of the thief’s need for food or cash. David, clearly aware of the Torah’s teaching, applies it to a case in which the thief’s actions are flagrant and contemptible in the extreme. The thief is not some poor person desperate to feed his family, while the victim is not only poor himself but has been brutally robbed of his only, beloved possession. Such avarice and callousness warrant the perpetrator’s death.
From the perspective of statutory jurisprudence, David performs a miscarriage of justice. From the perspective of common-law jurisprudence, David, even as he alludes to the verse in Exodus as “a datum from which to reason,” applies justice to the specifics at hand. Within the Bible’s common-law jurisprudence, the word of the Lord is the first word, but not the final word.
My second example reaches deeper and wider, showing how common-law jurisprudence works across the Torah as a whole. This happens most saliently in the book of Deuteronomy, where many legal passages found earlier—in Exodus, Leviticus, and Numbers—are reformulated, in some cases changing the law outright.
Take the laws of debt relief, observance of the paschal sacrifice, and others. Not only do they occur in different forms in different books, but nowhere in Deuteronomy does God issue His standard command to perform the laws contained in that book. There is no “And God told Moses, saying. . . .” Indeed, nowhere in Deuteronomy does Moses even claim that God told him or commanded him to issue these laws.
Why are laws in the earlier books “God’s laws,” while laws in Deuteronomy seem to be Moses’? The answer is that Deuteronomy presents a record of Moses’ common-law application of earlier teachings. God had spoken at Sinai to a people just released from bondage. Now, with the people poised to enter the land of Israel, Moses interprets and reapplies the laws to accord with an array of challenges they will meet there.
The idea that divine law can be as malleable as human law no doubt sounds counterintuitive. Humans are fallible and limited in their perspective; God’s wisdom is infinite, and surely His laws cannot be altered. This intuition, however, rests on a misunderstanding. The fluid nature of common law stems only partially from the limitations of the human jurist. It also stems from the fluidity of society itself, a quality of human life to which even divine law must adapt.
This position was forcefully advocated by one of the most creative rabbinic minds of the 19th century: Tzadok ha-Cohen Rabinowitz of Lublin (1823-1900), a great hasidic master. As against the many voices in the rabbinic tradition who have seen halakhah as a relatively static inheritance passed down through an unbroken chain of transmission, Rabinowitz adheres to an alternative view that emphasizes its changing and dynamic nature. This alternative view is substantiated by the way Scripture itself approaches the law. There, laws do not assume a single, immutable form. Rather, the basic institution undergoes restatement and receives new expression through the generations.
To Rabinowitz, the Ten Commandments themselves were subject to adaptation. The Decalogue, after all, appears in two versions in the Torah. The first is at Sinai, in Exodus 20. The second is in Deuteronomy 5, where Moses “recounts” what God said at Sinai. Remarkably, there are discrepancies—some only of style, but others of substance.
The rabbis of the Talmud resolve these discrepancies by attributing them to the unique nature of divine speech. When God spoke at Sinai, they explain (Sh’vuot 20b), the complexity of His word could be conveyed only by preserving two separate records of that communication. But Rabinowitz rejects this explanation. For him, God spoke the version recorded in Exodus, while Moses’ retelling of the Decalogue in Deuteronomy is a reapplication of God’s word in accordance with the needs of the new generation about to enter the land.
The same patterns of reinterpretation and reapplication of a biblical command can be seen with regard to the laws of the Sabbath, Passover, levirate marriage, and many other commandments throughout the Bible. Who controlled these processes of scriptural interpretation and reapplication? Were all laws open to endless revision? Were there foundational principles that guided the process? The Bible is remarkably silent on these issues, registering no anxiety about what for observant Jews today are matters of burning import.
But if the limits and controls of the legal process in biblical times are shrouded in mystery, we do know this: when Israel flagrantly ignored a particular instruction, the prophets would register divine disapproval. Thus, for example, Israel is criticized for completely ignoring the injunction against working the land during the sabbatical year. Yet, despite censuring Israel for these and many more grievous failings—theft, murder, idolatry—nowhere do the prophets throw the book at the people for performing a law in a fashion that happens to differ from the Torah’s specific prescription. “So it shall be written; so it shall be done!”—the essence of codified law—was fine for Cecil B. DeMille’s 1956 film The Ten Commandments. But the actual Ten Commandments and many other commandments were interpreted and applied by judges and leaders through the processes of common law.
This excerpt of the essay and the following responses originally appeared in Mosaic Magazine.