359) Is Torah Statutory Law or Common Law?

 

Introduction

Are our modern perceptions of both secular and Halachic law responsible for the way we view the laws contained within the Torah? This article is based extensively on the writings of Rabbi Dr Joshua Berman[1], a professor of Tanach at Bar-Ilan University. Rabbi Lord Jonathan Sacks refers to him as “one of the most original biblical scholars of our time.” Berman presents an interesting approach that allows one to understand how Law, in general, functioned in the Ancient Near East - and in fact, up to recent times. Although he does show theoretical rabbinic precedent, some may find his method theologically challenging while others may find it enlightening.

Discrepancy of law within Torah

Any student of biblical literature would be aware of the same commandments sometimes presented differently in various parts of the Torah. This is particularly the case with regard to the book of Deuteronomy which repeats some of the laws previously given in the Torah. This led some, like Abravanel (1437-1508) to question the very provenance of this last book of the Torah, and he referred to these later presentations as “toledot” or derivatives of earlier laws. He based this on the observation that none of the commandments of Deuteronomy are introduced by the expression “And G-d said to Moses saying, Command the children of Israel”, which is so common in previous sections of the Torah. Also, in some instances, Moshe clearly states that it is he who is giving these laws to Israel[2], and nowhere in Deuteronomy does it say that G-d was dictating these laws to Moshe.

Who eats the firstborn of the flock?

Here is an example of an apparent contradiction between Deuteronomy and Numbers, on a plain reading of the text: The law concerning the firstborn kosher animal is depicted in Numbers (18:14-18) as belonging exclusively to the Kohen or priest, who (after burning the fat) may consume the meat of the animal.  However, in Deuteronomy (15:19-23) the firstborn animal is “consecrated to G-d” and then consumed by its owner who is not a Kohen but a Yisrael. So, who eats the meat of the firstborn of the flock – the Kohen or the Yisrael?

Even Abravanel’s novel interpretation of the sometimes-variant formulations of the law in Deuteronomy as “toledot” or “derivatives”, cannot help us here, as a plain reading of the law of the firstborn animal in Numbers 18 (where the animal belongs to the kohen) compared to Deuteronomy 15 (where the animal belongs to the Israelite) appear irreconcilable.

Rashi, however, does attempt to reconcile this difference by suggesting that the Israelite owner must bring the firstborn animal to the Temple (Deut. 15:19) but the very next verse, “You shall eat it” (Deut. 15:20), refers to the Kohen, not the Yisrael according to Rashi![3] However, this is a forced interpretation and not in keeping with the pshat or plain meaning of the text which seems to be speaking about the Israelite eating the meat.

The critical approach

Biblical critics, of course, point to their theory of original multiple textual layers and even multiple law codes - namely the Covenant (Ex. 21-23), Priestly, Holiness (Lev. 17-26) and Deuteronomic Codes - which were later woven together to serve as a compromised and unified code for the Judeans after the Destruction of the First Temple and the ensuing exile.

Critiquing the critical approach

Berman (both a rabbi and an academic biblical scholar) suggests a number of problems with the critical approach.

a) While acknowledging that there would have been subcommunities and factions within Israel at the time of the Destruction, the Torah would hardly have been considered a “compromise document” specifically because of the very discrepancies as found particularly in the book of Deuteronomy. In the law of the firstborn animal, as we have seen on its literal reading, there is no compromise only contradiction, with potential for landowning Israelites and Kohanim fighting over who eats the animal.

b) Comparing law codes from all the contemporary surrounding areas in the Ancient Near East, we do not find the notion of compromised legal documents anywhere.

c) If different law codes belonging to different Israelite communities were combined to create a homogenous and united community desperate for survival, and Deuteronomy was seen as the final code to replace earlier codes - then why attribute the ‘finished product’ to Moses and not to G-d who is presented as Giver of the law in the previous four books of the Torah? Why, then, is Moses presented as the speaker in Deuteronomy and not G-d?

e) There is also no historical record or evidence of any of these alleged foundational texts, codes or variant documents, which is why the entire biblical critical enterprise is referred to as the Documentary Hypothesis.

Perceptions of “Law” have changed

At this stage, Berman introduces what becomes the pivot point of his argument. Biblical Criticism is only about two hundred and fifty years old. One notices an unusual trend amongst the early founders of this movement including Spinoza, Astruc, Eichhorn, de Wette and Ewald.

These scholars were active between the mid-1600s until the mid-1800s. They called (as well as argued over the definitions of) their various hypothesised sources by the “J” (texts where G-d is referred to as Hashem – “J” being a reference to the “yud” of Hashem’s name), “E” (texts where G-d is referred to as Elokim), “D” (Deuteronomistic) and “P” (Priestly) sources.[4]

However, all these early critical biblical scholars were, curiously, preoccupied with contradictions and discrepancies within the biblical narratives, not the biblical laws. Investigation into variation in the biblical laws only began in earnest in the latter part of the 1800s. This anomaly prompts Berman to inquire:

Why were the earlier scholars oblivious to problems in the text [such as the discrepancies in laws][5] that would be so obviously troublesome to later scholars?

Berman suggests that the solution lies in readdressing our anachronistic definition of the word “Law” where we interpose our modern interpretation of legal ideas and definitions onto older societies who had different characterizations of “Law”. Put simply: what we in our modern era call “Law” is very different from what people understood as “Law” and “legal texts” up to a century and a half ago.

The difference between Common Law and Statutory Law

Berman (2020:138) explains that when we today use the term “Law” as in “against the law” or “letter of the law” we refer to a written law that we can consult in some legal compilation. This is, surprisingly, a relatively new innovation in jurisprudence. Laws were not always written down as they are today. When we use the term “Law” we refer technically to what is known as Statutory Law. This means a codified law as found and bound in a written text. In this system, only the law that is written down is binding. This is why modern judges scrutinise the written law because that is all they are allowed to go by and these rulings must be cited. Even if the details are not matched exactly in the primary legal code, the principles of the code must still be adhered to and interpreted as accurately as possible.

We take this for granted today, but until relatively recently this was not always the case. As Berman explains, most Germans, Englishmen and Americans, not so long ago, relied on another form of law known as Common Law. In applying Common Law, the judge did not look into a written code, but based him or herself on community customs and societal norms. Even the concept of legal precedent, as we know it, didn’t exist:

Critically, the judicial decision itself does not create binding precedent. No particular formulation of these norms is final. There is no authoritative text called “the law” or “the law code”. (Emphasis is Berman’s)

Even when Common Law judgements were later collected, written down and respected, these never took the shape of a source for law, but rather as a resource, and as fluid guidelines, for future decisions. Berman bases himself on Common Law theorist John Joseph Park who refers to Common Law decisions as “a datum from which to reason”.[6]

Towards the end of the 1800s, however, a revolution had taken place within the legal world and a move from Common Law to Statutory Law with binding legal codes became the dominant practice. The reason for this shift in mindset was due, largely, to urbanisation. Common Law flourishes in smaller particularistic and homogeneous societies where common values are shared more cohesively. But now different peoples were moving into large and growing metropolitan centres and they had to learn to live together under one law which had to be unambiguous.

The Code of Hammurabi and ancient court dockets

The famous Code of Hammurabi from 1750 BCE is not technically a “code” in terms of reflecting Statutory Law as we know it today. Although initially declared a “code” when it was discovered in 1901, it was soon realised that it reflected a form of Common Law rather than Statutory Law. The discovery of more than fifty fragments of the Code of Hammurabi were found from all over what was once the Mesopotamian region and they spanned a period of over 1 500 years. Fascinatingly, even over such a long period of time, the fragments revealed no real change in content. So, scholars initially thought the Code had held canonical status in the land. But they soon realised that records of fines imposed for certain infringements had remained set at the same amounts, throughout fifteen centuries. Given that we know how much currency was inflated and deflated during that time, the fine stipulations should have reflected those same economic patterns. Also, none of these fragments were found near the ancient courts. Many thousands of legal court dockets have been found, but none of them cites the Code of Hammurabi as their source of law. On the contrary, many contradict the prescriptions of the Code. Berman (2020:142) emphasises:

In fact, not a single court docket from anywhere in the ancient Near East ever refers to any ancient law collection as a source of law. (Emphasis is Berman’s)

The concept of written law

It, therefore, emerges that Statutory Law was not written anywhere in Mesopotamia, but Common Law which reflects basic values and guidelines, did take on written form. There were no law codes whatsoever to determine the final rule. In place of what we know as a law code necessary for Statutory Law was the application of Customary law which remained fluid and varied from place to place. The Code of Hammurabi reflected an anthology of previous judgements and served as reminders of authoritative power in the region - but they were not legislation. Berman continues:

Nowhere in the cultures of the ancient Near East is there a word for written law. The very concept does not exist.

Torah as Common Law

Based on how we now understand the function of “Law” in the Ancient Near East, Berman (2020:130) suggests that:

[o]nly by reading the peshat of the Torah in its ancient Near Eastern context, as its first audience understood it, can we hope to grasp its message.

Scholars have pointed to the resemblance of style (and sometimes content) between the Torah and the “Code” of Hammurabi in that both are expressions of Common Law and are not to be taken, anachronistically from the modern perspective, as Statutory Law. This way we have a model to deal with some of the discrepancies and seeming contradictions within the “Laws” of the Torah as we saw between Numbers 18 and Deuteronomy 15 regarding the firstborn animal. The Torah was not a Code as the Shulchan Aruch was later to become.

And interestingly, we transitioned to Statutory Law as early as the twelfth century when Maimonides codified his Mishneh Torah (a forerunner of R. Karo’s sixteenth century Shulchan Aruch), which was quite sometime before the rest of the world transitioned in the mid-nineteenth century.  

Berman (2020:144-145) gives a practical example of how the Torah functions on the model of Common Law rather than Statutory Law. In II Samuel 12, the prophet Nathan censures David for the incident with Batsheva the wife of Uriah. Nathan creates a fictitious case about a rich man with large flocks who steals the ewe (female sheep) belonging to a poor man and then slaughters it. The ewe was the poor man’s only possession. David, not realising it is a metaphor for his taking the wife of Uriah, adjudicates the fictitious matter as if it were real:

Now, if Torah was Statutory Law like a Shulchan Aruch, the answer would be easy for David. He would simply apply the appropriate law as expressed in 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.”

But David doesn’t simply apply that law because Torah is not Statutory Law. Instead, while his verdict does require the guilty rich man to pay fourfold, he additionally sentences that fictitious man to death! Statutory Law does not allow much leeway and requires a literal interpretation to uphold its validity. David, however, applies and “interprets” the Law just as one would and does apply and interpret Customary Law. David wasn’t looking to apply and uphold the Law as we would today. He wanted “justice”. In his mind, the rule in Exodus did not take into account malice. It dealt only with one stealing from another. In the case brought to him by Nathan, there was malice. Therefore, he was well within his rights to adjudicate more severely than what the Torah required. He was applying Common Law.

There are other examples of this. Levirate marriage (yibbum) in Deuteronomy 25:5-12 refers to the brother-in-law, while in Ruth 3:9 it is extended to a distant cousin. This is a Common Law “reapliction of the institution…of yibum…as they were practiced in Boaz’s time”. Boaz and anyone else for that matter would have had no conception of applying laws as one would apply Statutory Law today.

And should one retort that this is all well and good for secular Common Law but it cannot be applied to the Torah which comes from G-d – Berman (2020:146) responds that even a Divine Law must insist on fluidity not because G-d is fallible but because the human recipients of the Torah and their circumstances fluctuate from case to case. Even a law from G-d “requires adaptation to the changing needs of society”.

The Netziv

Berman (2020:148) believes that such a conception of law was recognised by R. Naftali Tzvi Yehudah Berlin (1823-1900), known as the Netziv who wrote (in his commentaries on Deuteronomy 5:1 and Lev. 25:18) about changing modes of Torah interpretation. He explains that Hillel the Elder has seven rules for Torah interpretation but later R. Yishmael had thirteen. Chukim, in the Netziv’s view, refer to the rules of Torah interpretation and Mishpatim are final laws derived from applying the Chukim. They undergo a constant evolutionary process. Moshe, says the Netziv, had his own set of Chukim (rules of interpretation) and deduced his own Mishpatim (laws) “which he had derived from his powers of induction” and he taught them to Israel “with the intent that they, too, should do the same in each and every generation.”[7] Although the Netziv does not use the term Common Law, he does seem to suggest that the Torah was never meant as Statutory Law, but as Common Law.

This way, Berman (2020:149-150) explains many of the discrepancies as found throughout sections of the Torah including those in the two versions of the Ten Commandments as found in Exodus 20 and Deuteronomy 5. 

Rav Tzadok haKohen

Berman also shows how Rav Tzadok haKohen Rabinowitz of Lublin was prompted to take a similar stance by suggesting that the second version of the Ten Commandments was written by Moses “on his own account” and that from the beginning of the book of Deuteronomy, everything was in fact “material that was said on his own account [and] represents the root of the Oral Law, the things that the Sages of Israel say on their own account”^[8].

And because Deuteronomy was written “on Moshe’s account”:

[n]o mitzva, then, in Deuteronomy will be identical to its precursor in the other books.

Understanding the difference between Customary Law and Statutory Law

Understanding this difference between Customary Law and Statutory Law explains the discrepancies in Torah law without having to revert to different traditions combing in a compromised document as per the schools of Biblical Criticism. Nor do we depart from the plain meaning of the text as per Rashi who was forced to harmonise conflicting verses. It also explains how the rabbinical tradition could emerge from a Torah framework because were the earlier books of the Torah to have been read as Statutory Law, there would be no space for an Oral Tradition to develop in the first instance.

Were the Torah to have been read as Statutory law as we read the Shulchan Aruch today, then there would never have been the possibility of a Shulchan Aruch emerging in the first place, and the “entire enterprise of Torah Shebe’al Peh would be invalidated”.

Reaction to the Shulchan Aruch

When R. Yosef Karo codified his Shulchan Aruch, essentially for perpetuity, not all the rabbis were happy with him. R. Yehuda Loeb ben Betzalel (c.1520-1609) known as the Maharal of Prague, and R. Shlomo Luria (1510-1573) known as the Maharshal, strongly objected to bringing Judaism into an era of Statutory Law.

R. Yosef Karo explained his reason for creating the Shulchan Aruch. It was to prevent Judaism from becoming “an infinite number of Torahs” with multiple interpretations and to bring a sense of uniformity to Halacha which became “Law”. But the Maharal and Maharshal were determined to cling to the notion of applying Talmudic principles of Common Law to changing circumstances, and did not want Halacha to move to a model of Statutory Law. The Maharshal wrote that the multiple or even infinite number of interpretations that R. Karo was trying to do away with, were instead to be celebrated and preserved. As Berman (2020:161) paraphrases:

The souls of Israel are each endowed with different capacities…and each may be considered to bear an aspect of a larger truth.[9]

Of course, we do, and must, follow the Shulchan Aruch today. But one could still argue that we should not lose sight of the essential elements of Common Law and the desire to maintain, in principle, the multifacetedness that defines the essence of Torah (and Talmud) despite the fact that we have now transformed into a system of codified Statutory Law.

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[1] Berman, J., 2020, Ani Maamin: Biblical Criticism, Historical Truth, and the Thirteen Principles of Faith, Maggid Books, Koren Publishers Jerusalem.

[2] Deuteronomy 4:44-45; 5:1; 6:6.

[3] See Rashi on Deuteronomy 15:20: “Scripture is speaking to the priest (not to the owner to whom תקדיש in the previous verse refers).” 

One could explain it as follows: לפני ה' אלהיך תאכלנו: לכהן הוא אומר, שכבר מצינו שהוא ממתנות כהונה אחד תם ואחד בעל מום, שנאמר (במדבר יח, יח) ובשרם יהיה לך וגו

Bamidbar 18 clearly says the animal belongs to the Kohen (וּבְשָׂרָ֖ם יִֽהְיֶה־לָּ֑ךְ). However, in Devarim 15 while the subject appears to be the Yisrael (כָּל־הַבְּכ֡וֹר אֲשֶׁר֩ יִוָּלֵ֨ד בִּבְקָֽרְךָ֤ וּבְצֹֽאנְךָ֙ הַזָּכָ֔ר תַּקְדִּ֖ישׁ לה) who brings the animal to the Temple, and then eats it there לִפְנֵי֩ ה אֱלֹקיךָ תֹֽאכְלֶ֨נּוּ֙ תֹֽאכְלֶ֨נּוּ֙  - Rashi changes the subject of לִפְנֵי֩ ה אֱלֹקיךָ תֹֽאכְלֶ֨נּוּ֙  to the Kohen because of Bamidbar 18 וּבְשָׂרָ֖ם יִֽהְיֶה־לָּ֑ךְ.

[4] Later just two sources were referred to, namely the “P” (Priestly) and “non-P” (non-Priestly), which even later simply became “P” and “L” (Priestly and Lay sources).

[5] Parenthesis mine.

[6] Park, J.J., 1827, A Contre-Project to the Humpheresian Code, London, 21, 25, cited in Lobban M., The Common Law and English Jurisprudence 1760-1850, Clarendon Press, Oxford, 220-21.

[7] Translation by Berman.

[8] Rabbi Tzadok haKohen of Lublin, Pri Tzadik, Kedushat haShabbat, article 7. (Translation by Berman)

[9] See Rabbi Shlomo Luria, Yam Shel Shlomo, introduction to Tractate Bava Kama.