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| A Kuphar or round boat used on the Tigris and Euphrates Rivers since ancient times. (This picture is from 1914.) Was this the type of boat Rav Papa and Rav Huna were fighting over for possession during the 4th-century CE? |
INTRODUCTION:
Everyone knows that rabbis love teaching the Law and that
the transferral of knowledge is their pre-eminent occupation. And the Sages - particularly Babylonian Sages of
the Talmudic period - would certainly have specialized in so doing during the early centuries of the
Common Era.
Jacob Neusner writes in his History of the Jews in
Babylonia:
“The rabbi...aspired to
transform the ordinary people into ‘rabbis’. It was this aspiration that
brought him into close and constant contact with the masses, forcing him to
teach and to exemplify the truths he believed everyone should conform to.”[1]
In this article, I have drawn extensively[2]
from Jonathan A. Pomeranz from Yale and Tel Aviv Universities, who shows that this notion of a need to transfer knowledge, was not
as widespread as commonly imagined.
We
will examine some of the reasons behind the practice of Babylonian Sages to not promulgate the law - if not sometimes to actively conceal it - especially civil law.
POMERANZ CONFRONTS NEUSNER:
At first glance, Neusner’s depiction of the Sages in ‘close
and constant contact with the masses’ seems fairly typical and reasonable.
Rabbis have always loved to teach and still do.
Neusner brings 'case history' as support
for his seemingly benign observations. He writes:
“Rav lectured in Kimhania[3],
near Sura, on how to acquire large cattle[4],
and Samuel issued many dicta on the subject of acquiring fields[5],
trees, and so forth.”[6]
Rav and Shmuel, two colleagues who were part of the first
generation of Amoraim (Talmudic Sages from around 200 CE) are selected by
Neusner as examples of Sages who lectured to the masses on various topics.
However, Pomeranz points out that Neusner’s first example of
Rav (taken from Kiddushin 25b) is one of only two
instances in the Babylonian Talmud where we read about a Sage lecturing in
public about civil law!
The second example of Shmuel
(taken from Bava Batra 54a) is even more problematic because although he
is teaching or ‘issuing dicta’, the texts begin with ‘Amar Shmuel’
(Shmuel says) which indicates that he is lecturing only to other rabbis
and not to the masses!
In fact, I would add that this example is
no different from any other typical Talmudic text beginning in a similar manner
with ‘Amar...’ recording a legal discussion between colleagues in the
study hall. There is no indication, whatsoever, in this text that Shmuel is
teaching the laws of property transfer to the masses.
CIVIL LAW IS INTENTIONALLY LEFT UNPROMULGATED:
The lack of evidence that the Sages taught civil law to
large portions of the populace prompts Pomeranz to point out that:
“[t]he Babylonian sages, for
the most part, left civil law unpromulgated and taught it exclusively to other
sages.”
[The term promulgate is defined as “to make widely
known.” Unpromulgate would mean to intentionally conceal.]
The reason for this concealment of civil law from the people was pragmatic, if not strategic:
“This is, at least partially,
a strategy to maintain the authority of the members of the rabbinic class in
the arena of civil law...
This suggests
that...instructing an audience in the content of a particular text was not the
only way to achieve authority in antiquity, but that concealing textual
knowledge could also be a strategy that granted interpreters of texts
authority.”
According to this, matters
of civil law were concealed from the people so that the Sages have total
control and jurisdiction over the Jewish civil law.
THE PROBLEM:
The problem with this
strategy was that:
“...rabbinic
judges could, at times, rule in ways that did not accord with the outcome that
the detailed rabbinic law would seem to mandate.”
CHECKS AND BALANCES:
However, Pomeranz is quick
to allay our fears of possible rabbinic abuse of authority (although, as we shall
see the Talmud does record such instances) because he shows how, when abuses did take place, the recalcitrant Sage was immediately
reprimanded by the other Sages. Thus a system of legal checks and balances
appears to have been in place, notwithstanding the strategy of unpromulgated
civil law.
TOPICS TAUGHT IN PUBLIC
LECTURES:
Professor Isaiah Gafni has
examined the topics which were discussed in public lectures, known as pirka
(what we today might refer to as a shiur). These public lectures were
usually given on Shabbat and Festivals[7].
One category is conspicuously absent from the list of topics, and that is civil
law.
According to Gafni, there
are twelve recorded instances in the Babylonian Talmud where public lectures
took place, but only two (including the case of Rav which Neusner brings)
relate to civil law.
The Sages were only prepared
to teach ritual law to some extent but they were not interested or
prepared to talk to the public about civil law!
Pomeranz writes:
“[O]n
the basis of this evidence, it appears that the sages generally taught topics
outside the realm of civil law to the public. Civil law was, for the most part,
studied only by rabbis.”
COURTROOM DRAMAS IN THE
BABYLONIAN TALMUD:
A study of courtroom dramas
or narratives recorded in the Babylonian Talmud, also supports the notion that the
commoner was ignorant of Jewish civil law. This gave the Sages and their
relatives, an unfair advantage in court.
Two examples follow:
1) RAV NACHMAN FAVOURS HIS
RELATIVE'S DAUGHTER:
The Talmud[8]
describes a case where a female relative of Rav Nachman decides to sell her Ketuvah[9]
to a speculator.
Under such circumstances, the speculator takes a risk because
if the woman were to die before her husband, she obviously receives no
insurance payment from her Ketuvah - and the speculator loses out.
And even if the husband dies
or divorces his wife, where the Ketuvah would be effective - it might
only be many years later.
Because of this risk, a speculator will usually only buy a Ketuvah for a fraction of its total worth.
In our case, the husband
does indeed divorce his wife who subsequently dies; so, in theory, the Ketuvah
insurance should have gone to the speculator.
However, Rav Nachman makes
sure that he informs his deceased relative’s daughter of a legal loophole. He tells the
daughter, who is her mother’s legal heir, that she has the right to renounce her
claim to the Ketuvah. Once she does that, her father (who just divorced
her mother) need not pay the Ketuvah. The speculator is deceived and
receives nothing, and the daughter will simply inherit the money when her
father dies.
Because Rav Nachman knows
civil law, he assists the daughter in tricking the speculator out of accruing
any benefit from his purchase. Her mother got the money from her initial sale
of the Ketuvah, the speculator gets nothing, and when her father
eventually dies, his daughter will inherit the value of her mother’s original Ketuvah.
The narrative concludes with
R. Nachman saying: “It’s different for an important man” because he
knows the law and the speculator doesn’t.
2) ‘WHITE GEESE WHO STEAL THE
CLOAKS OF ORDINARY PEOPLE’:
Then there is a similar case of
deception by Sages concerning a layman, Yeimar, who lent money to a certain
individual who died before he was able to repay the loan.
Yeimar sends his agent to claim
and seize the deceased man’s boat.
During the process, Rav Papa and Rav Huna
approach the agent and inform him that his actions are unlawful. They explain
that only the creditor himself and not his agent may seize the
property of a debtor in a case where the debtor has additional debts to others.
It transpires that Rav Papa and Rav Huna were also owed money by the deceased man but they did not reveal this to
the agent. As creditors, only they could seize the property and they seize the
boat.
As events unfold, Rav Papa and Rav Huna begin fighting amongst themselves as to which of them has actually acquired
the boat. Rav Papa rowed the boat as an act of legal acquisition while Rav Huna
pulled it with a rope.
Their case comes before Rava who
rebukes them for taking property from non-rabbis (including the heirs) calling
Rav Papa and Rav Huna “white geese (a term referring to the white beards
of the scholarly class) who steal the cloaks of ordinary men.”
And Rava
goes on to remind them of the ruling that, anyway, creditors can only claim a
debt during the lifetime of the debtor.
In this narrative, it seems
that Rav Papa and Rav Huna only expounded on the laws that suited them and did
not reveal those that didn’t.
ORAL TRADITIONS:
The Sages also had access to lines
of oral legal traditions from which they could draw from under various
circumstances.
Pomeranz writes:
“The
fact that the rabbis alone had access to legal traditions, then, surely enabled
them to use the legal system to their own advantage.
The
rabbinic decision to keep the Jewish public largely ignorant of civil law,
then, was a strategy that maintained rabbinic authority and power, and could
harm the legal interests of non-rabbis when they were opposed by rabbis or
their relatives.”
NO ADVOCATES IN COURT:
Rabbinic courts did not have
advocates. The Sages who sat in judgement had the final say and their rulings
were largely unchallenged.
NUMBERS:
Pomeranz does not touch on this issue, but it is also probable that the reason why the Sages did not teach (both ritual and civil laws generally) as much as we might have imagined is simply that the numbers of academies and students during Talmudic times were not that high.
We should not make the mistake of projecting our current numbers of yeshivot and students (which are possibly the highest in Jewish history), back onto the ancient Talmudic system.
For example, it has been suggested that at least during the 8th–century (although post-Talmudic), the numbers of yeshiva students were only somewhere between 1 200 and 2 400 - and according to Dr Henry Abramson, those numbers are ‘considerably exaggerated’. A single large institution today would have numbers like that!
ANALYSIS:
We have clearly seen that the
Sages did not generally teach civil law to the lay population.
But even more surprisingly, we have also seen that the Sages did not even teach ritual and religious
law to the masses to the extent we may have expected.
Perhaps our expectations
have been predicated by what we, today, have come to regard as 'normal' activity
on the part of rabbis who do love to teach the masses.
Although it does seem that the
reason why civil law was largely left unpromulgated, untaught and unpublicized, was to ensure
that it was only the Sages who knew how to use it. This way, they would have
been able to maintain a large degree of elitism and authority.
While Pomeranz certainly agrees that
the strategy to not promulgate civil law would give the Sages the advantage of great authority,
he concludes that it was more to do with preventing the masses finding legal
loopholes in the law which they would use to their advantage.
A mitigating reason for
maintaining a rabbinic system of concealment of the law, therefore, may have
been the desire to protect the law from abuse by laypeople who - if they
understood the particularities and intricate details of promulgated law - could
and would manipulate that law for their nefarious ends.
Pomenanz writes:
“Rabbinic
authority, then, turns out to be an insufficient explanation for the rabbinic
legal practice of leaving civil law largely unpromulgated...
[W]e
[should not] regard the rabbis with Foucauldian[10]
cynicism and assume that everything the rabbis said and did can be explained
solely as an exercise in power."
Pomeranz then explains that this idea of concealing the law was not just an innovation of the Jewish Sages but was part and parcel of the general milieu and culture of the surrounding non-Jewish society in Babylonia as well:
"The
rabbinic class did maintain its authority by having an unpromulgated law, but
they also followed in the footsteps of a longstanding Near Eastern tradition of
unwritten law and judicial flexibility which prevented others from manipulating
the legal system for their own benefit...”
In support of Pomeranz, if the
Sages sometimes succumbed to this abuse of the law, the ordinary population
certainly would have too, and even more liberally so.
Furthermore, it is also
possible that the Sages, indeed, did not teach civil law for fear people would
abuse the law with loopholes – but that was only during the early period when
Jewish courts were in operation and legally effective. After that period, when
the study of civil law fell under the rubric of general Torah study and Jewish
civil law was largely theoretical, the rabbis would have been more open to
teaching such matters because the fear of abuse of practical law was no longer relevant.
One can also say that as long as Jewish civil law was in active use in Babylonia, authority was exercised by withholding the knowledge - whereas later, when it became theoretical, authority was exercised by those with the knowledge and language skills to expound and expose it.
One can also say that as long as Jewish civil law was in active use in Babylonia, authority was exercised by withholding the knowledge - whereas later, when it became theoretical, authority was exercised by those with the knowledge and language skills to expound and expose it.
Ultimately, Pomeranz presents us with
two possible reasons why the Sages chose to conceal Jewish civil law from the
masses –
i) to maintain rabbinic authority, and
ii) in keeping with the then
contemporaneous Near Eastern cultural influences, to prevent abuse from the
masses.
He concludes by favouring
the latter over the former.
However, considering the blatant elitism (in references like "It’s different for an important man."[11]
and the "white geese" rabbinic class "stealing the cloaks of ordinary men" [12]) which we see in a number of Talmudic
accounts - the question of whether Pomeranz (who is to be commended for
his meticulous research) is justified in downplaying the Sages quest for
authority.
Whether it was a combination of the Sages' quest for authority; their desire to protect the law from abuse by a legal savvy population; or simply a Near Eastern cultural heritage, will be left to the Reader to decide for him or herself.
FURTHER READING:
For other examples of apparent power-struggles, see:
Who Owned the early Kabbalah?
Why were the Teachings of Chassidei Ashkenaz so Elusive?
The Positive Role of Subjectivity within Halacha
FURTHER READING:
For other examples of apparent power-struggles, see:
Who Owned the early Kabbalah?
Why were the Teachings of Chassidei Ashkenaz so Elusive?
The Positive Role of Subjectivity within Halacha
[1]
Neusner, A History of the Jews in Babylonia, 3:102.
[2]
Jonathan A. Pomeranz, Concealing the Law; The Limits of Legal Promulgation
Among the Rabbis of Babylonia.
[3]
Pronounced ‘Kimchonya’.
[4]
The legal act of acquisition (kinyan) for large cattle is ‘meshicha’ or
‘pulling’ to indicate a transferral of ownership. Usually, the mere act of
picking something up is sufficient to show ownership but obviously in the case
of large cattle that would be impossible.
[5]
Shmuel spoke about removing trees and levelling a field as an act of legal
acquisition of the field.
[6]
Neusner, A History of the Jews in Babylonia, 2:264.
[7]
There was also the notion of the Yarchei Kalah where two months a year were set
aside for public education.
[8]
Ketuvot 85b-86a.
[9] A
Ketuvah is insurance a married woman receives if her husband dies or divorces
her. In common usage, a Ketuvah refers
to a marriage document.
[10]
Foucauldian is defined as the “discourse analysis...focusing on power relationships
in society as expressed through language and practices, and based on the
theories of Michel Foucault.”
[11] In the case of Rav Nachman, 'Adam chashuv shani’.
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