Talmudic Jurisprudence* Maran HaGaon HaRav Mordechai Gifter, ZT"L

This sophisticated yet clearly written article by Rav Gifter, zt"l, about Torah law was published in the fall of 1958 in a journal entitled "Law in a Troubled World" by Cleveland College and the Franklin Thomas Backus School of Law at Case Western Reserve University.

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     We will attempt, within the limited scope of one article, to present a fragmentary concept of that great body of law known as Talmudic Jurisprudence, and in so doing, it will be our purpose to determine what Talmudic Law can contribute towards the solution of the problems of our troubled world.

     The purpose of the Law, as civilized society understands it, is to bring order into the lives and affairs of men, to guarantee—to use a Mishnaic phrase—that “men shall not swallow themselves alive” (Aboth 3,2. CF. Psalms 124:3). Where order exists in society human kind can develop to the fullest extent its capacities for progress under freedom and liberty. A society governed by the Law is therefore given a guarantee against anarchy, against chaos and disintegration.

     Though this be the purpose of the Law, yet the Law itself can become cold and sometimes even cruel if it is designed only to meet the requisites of an ordered society. Indeed, there is a law even among barbarians. The cruelty and tyranny of the dictator is also framed in the order of law. One is reminded of the words of the Psalmists who, in speaking of the tyrant, describes him as being one “who frames violence by statute" (Psalms 94:20).

     The development of civilized law knows, therefore, also of the development of equity in the law. Equity has served, we might say, as a guardian over the law, seeking to keep it in line with ethical norms.

     It has not been the purpose of the law, however, even when joined with equity, to develop the moral and ethical standards of society and of the individual. This has been the domain of philosophy and religion. These values nurtured by philosophy, religion, and other kindred branches of ethical and moral teachings became the norms within which the law developed and fructified.

     Talmudic jurisprudence is unique in that the very purpose of the law, itself, is the development of Man’s moral and ethical personality. The ambit of Talmudic Law is a very wide one, indeed, the widest one can imagine, for its scope embraces every facet of human living. It is, by no means, limited to that body of legal matter encompassed by the term “law” as we know it in modern society; namely, that which concerns itself only with those affairs of man vis-a-vis his fellow man. Since its purpose is order in society, it deals with man as part of society, its ambit being the world of human relations. Man, the individual, per se, is not the object of the law. Certainly the conscience of the individual is outside the scope of the law. 

     Not so with Talmudic jurisprudence. The very same law which deals with torts, bailments, contracts, and criminal offenses deals also with Man’s duties of prayer, of ritual and ceremonial, yea, even with problems of faith in the Divine Creator. Just as the Rabbinic Court was bid to enforce a contract, so was it bid to enforce the observance of the building of the Sukkah on the Feast of Tabernacles. Idolatry in Talmudic law is of the same degree as the criminal offense of murder, subject to the death penalty.

     The gamut of the Beth-Din Hagadol, the High Court, the supreme authority of the law, included such diverse matters as the case of the false prophet, the High Priest who had committed a capital offense, the decision to declare war, extending the boundaries of Jerusalem and of the Temple courts, appointing district courts and decisions involving interpretation of the law. The law embraced all of life, public as well as private, individual as well as social in character.

     The ultimate authority for Talmudic law is the Torah, the Five Books of Moses, containing the Commandments of the Lord revealed at Sinai, and thereafter, through Moses. Since the ultimate authority of the Law is the Commandment of God, there is no room left for man outside the framework of the law. All is open before  Him “who tests the hearts of men."

     The law, therefore, in the Talmudic sense, is the revelation of the Divine Commandment, of the demands made upon man to raise himself above the level of the beast. It is the law which says to man: “See, I set before thee life and good and death and evil, and thou shalt choose life" (Deuteronomy 30:15-19). It is the law which posits the freedom of Man to choose the path to nobility and human dignity, the freedom of the individual to determine and direct his destiny, that freedom which is the primary source and the ultimate goal of the sovereignty of the people revolting against the yokes of all forms of tyranny. Maimonides terms this freedom “the pillar of the Law and the Commandment" (Teshuba V,3). But yet the law, in stating this great human principle, bids and commands Man as to the direction of his choice. Within this commandment, “Thou shalt choose life,” therein is contained the entire body of the law, embracing all which is life.

     The law is so many times identified, in the language of the Torah, with righteousness—“righteous statues and judgments” (Deuteronomy 4:8)—for its purpose is to make of Man a righteous being, who has chosen freely to be governed by moral and ethical values. The basic premise of the law is the never ceasing consciousness that one stands always in the presence of his Creator. In order to insure this goal the law sees the necessity for a complete system regulating the conduct of Man, not merely in dealing with his fellow-man, but, also, in dealing with himself. For he who attempts to achieve moral and ethical perfection and integrity in himself will, of necessity, deal in kind with his fellow-man. Society is molded of the individuals who build it. An ordered and disciplined personality in the individual guarantees a well balanced and harmonious society. 

     How striking are the words of the Torah when commanding the judge to be completely impartial and objective, not to be influenced by the fear of men. Why? “For justice is of G-d" (Deuteronomy 1:17). The court is but the instrument of the will and of the commandment of Him who has created the judge, the plaintiff, and the defendant. How ennobling for all concerned to feel that they stand in the presence of G-d when seeking justice in the court of law!

     The student of the Talmud is acquainted with the phrases “Rahmana amar, Rahmana katab, the Merciful One has said, the Merciful One has written" (Baba Kama 5b). The law is an expression of Divine mercy evidenced in the desire, apparent in the Commandment, to raise and elevate Man to the level of that law designed for Man. And ofttimes our opinion would dictate a more stringent liability, but “Rahmana has alei—the Merciful One has eased the penalty" (Baba Kama 15a). Laws in civil liberties become lessons in Divine mercy. Is this not a unique approach to law?

     That great pillar of Talmudic jurisprudence, Maimonides, created the greatest comprehensive codification of Talmudic law. It seems apparent that he considered his Code as an elaborate commentary upon the six hundred and thirteen commandments of the Torah. He first created hi Safer Hamitzvot, the Book of Commandments, containing the cardinal principles in determining the essence of a Commandment of the Torah, and thereupon enumerating the six hundred and thirteen Commandments based upon these principles. He then proceeded to elaborate upon this work by codifying the entire body of Talmudic law. Every division in his Code, therefore, is introduced with an enumeration of the Mitzvot, the Commandments, dealt with in the respective division of the Code. This is indicative of the Talmudic approach to the law. The law is the commandment of G-d revealed in the Torah, developed and expostulated down through the ages. A discussion of the law in the Talmudic academies of learning is an attempt to understand the will of G-d in directing the conduct and affairs of Man.

     Lest we leave the impression that Talmudic law is primarily theologic in nature it might be of value to make mention of some points of law which engage the attention of the student of the Talmud.

     We are engaged, presently, at the Telshe Yeshiva in the study of the tractate Baba Kama in the Mishnaic Order of Nezikin—Injuries. This tractate deals primarily with torts resulting from injury. The first portion of the tractate is concerned with damages resulting from injury caused by personal property. The Torah speaks of the “goring ox” for which the owner is liable as “a Man’s ox" (Exodus 21:35-36), the ox belonging to a person. It also mentions the fact that “its owner hath not kept it in.” The liability for damages is conditioned by two requisites; that the ox be the property of a person and that the owner shall not have exercised the prudent care over the ox. Hence the principle enunciated in the first Mishnah of Baba Kama is that of “your property and subject to your care.” The question arises: What is the primary cause of liability? Is it “ownership"—the fact that the injury was caused by your personal property, in which case the clause “subject to your care” is not the cause of liability but rather a ground for defense to free you from liability if you had exercised proper care; or is the clause “subject to your care” the cause of liability, your negligence in not exercising prudent care, in which case the clause “your property” is merely the reason for your obligation to perform proper care. In brief, does liability presuppose a fault or is the lack fault merely ground for defense? This is a basic problem in the fundamental principle of the law with many practical effects resulting therefrom. We shall mention a few.

     Suppose the ox belonged to a minor. A minor cannot be held responsible for personal negligence. If liability results from the fault of the owner, a minor is free of fault. If liability result from ownership the minor would also be liable, for the fact of his being a minor does not create grounds for defense.

     Another practical effect. Let us suppose there is doubt as to whether the owner had exercised proper care. If ownership is the cause for liability, a doubtful defense cannot free the owner of his liability. If, however, negligence is the cause of liability, proof would have to be brought for negligence and the burden of such proof would rest upon the person who suffered the damages.

     Yet another practical effect. Let us suppose the owner gave the ox to an agent for keeping and the agent had not exercised proper care. If negligence is the cause for liability then the agent should be liable, since agency also places the responsibility of proper care upon the agent and we have here the fault of negligence caused by agency even though it be not “ownership.” If, however, “ownership” is the cause for liability, an agent should not be liable. However, it is possible that agency constitutes a new category of liability, acting in place of the owner and therefore, liable by the principle of “ownership."

     The basic problem, involved, has not yet, to my knowledge, been definitely resolved. (The student will find enlightenment on this subject in the following works: Even Hoezel, Nizkei Mamon I, 1. Shiurei Halacha—R. Joseph L. Bloch, 75-76. MehKarim B’Talmud—R. J. J. Weinberg, 180-191.)

     Such problems in civil law also represent human striving to dignity and nobility, a desire to attune human conduct to the will of G-d. This is the basis of the principle posited by the great Medieval Talmudic jurist, R. Solomon Ibn Adret, who states that questions involving doubts of interpretation of the basic law in injuries are governed by the principle used in resolving doubts in ritual law rather than the principle applied in resolving doubts relating to money values (Novellae Rashba Baba Kama 3b).

     The effort expended in trying to solve the problem is, from the viewpoint of Talmudic law, an attempt to discern the intent of the Divine Commandment pertaining to the goring ox, so that men may govern themselves in accordance with that Divine Will and Authority.

     We find a most interesting and unique feature in Talmudic law. We read in the Talmud (Baba Mezia 83a): Rabba Bar Bar-Hana had a barrel of wine broken through the negligence of laborers hired to transport the wine. Rabba, thereupon, seized the laborers' cloaks as a lien for damages, something permissible by law. The laborers complained to the great master, Rav, who directed Rabba to return the cloaks. Rabba asked Rav: "Is this then the law?" And Rav answered: "Yes, for it is written, 'That thou shalt walk in the path of the virtuous'" (Psalms 2:20). Rabba returned the cloaks. The laborers then said to Rav: "We are poor, we have labored all day and we are hungry, but we have not the means to purchase food." Rav, thereupon, said to Rabba: "Pay them their hire." Rabba asked: "Is this the law?" And Rav answered: "Yes, for it is written, 'And the paths of the righteous shalt thou keep'" (a.l.).

     The ruling of the court in this case was not prompted by the recognition of the equity and justice in the claim of the plaintiffs for, indeed, they had no claim at all. Rather was it prompted by the realization that the ultimate purpose of the law is to develop a disciplined personality, fully imbued with personal morals and ethics. No doubt, the ruling was delivered by Rav because the defendant was Rabba Bar Bar-Hana, an individual who had proved himself worthy of higher moral demands and standards. The ruling of the court took into consideration the ethical norms of the individuals involved. This is the general principle known as "Lifnim Mishurat Hadin"--going beyond the line of the law, which, in our case, was equated by Rav with "Din"--the line of the law itself.

     It is quite apparent that this is not a question of an equity which seeks to have the law meet ethical norms, but rather reveals a desire on the part of the law to inject its inner spirit and purpose into the ruling of the court. It is a part of that body of law which describes a law suit in terms of "unto the Lord shall their dispute come" (Exodus 22:8. Cf. Deuteronomy 19:17. Rashi a.l.).

     All which we have attempted to say is so beautifully presented in the poetic language of the Midrash. Solomon, in his Song of Songs, speaks of the people of Israel as being like unto a "heap of wheat set about with a hedge of roses" (Song of Songs 7:3. Vide Midrash Rabba a.l.). The Rabbis of the Midrash comment thereon: The hedge of roses, these are the words of the Torah, which are as delicate as the rose. Said Rabbi Levi:

     "A tempting dish is brought before a person. He prepares to partake of it with great relish. He is told tallow has fallen into the food and he refrains even from tasting it. Who has caused this restraint? What serpent has bitten him? What scorpion has stung him to keep him from drawing near to the food to taste of it? Only the words of the Torah, delicate as the rose, for it is written: 'Ye shall not eat of the fat'" (Leviticus 3:17).

     And yet another illustration (Vide Rashi Song of Songs, a.l.). A person was walking along a country road. He passed a fruit orchard and the fragrance of the fully ripened first fruits of the season attracted him. He stretched forth his hand to pick a fruit from the tree. He was reminded: These fruits have an owner. He drew back his hand in restraint. What has caused this restraint? What stands between him and the fruit? Only the words of the Torah, delicate as the rose, for it is written: "Thou shalt not rob" (Leviticus 19:13).

     For the aesthete who has developed an appreciation for the beauty and delicacy of the rose, a hedge of roses is stronger than a wall of iron. He needs but the rose itself to serve as a barrier against trespass. For one reared and nurtured in the law, transgression is trespass.

     Man, created in the image of G-d, is inherently good and noble, striving to fulfill the Divine will which inheres within him (Maimonides, Gerushin II, 20).  That world of passion, lust and temptation which makes goodness and nobility so difficult to realize, must find its remedy in the law. Man is called upon to develop within himself, through the law, an aethestic appreciation of moral and ethical values--an ever present G-d consciousness. The word of the law is the gentle reminder to refrain from trespass in the human soul, handiwork of the Almighty G-d.

     But certainly a code of law designed to be studied only by lawyers cannot achieve the purpose of which we speak. The law cannot lead men to the lofty heights of morals and ethics, nor can it serve as a guide for the disciplined conduct of the individual, if it remains beyond the reach of the individual. The loftiest principle, therefore, of Talmudic law, is the exhortation to study the law, an exhortation directed toward every individual, not only to these who seek their profession in the law.

     It is of interest, in this connection, to quote from Josephus in his work, Against Apion (Book II, 18. Tr. Whiston). 

“Moses did not suffer the guilt of ignorance to go on without punishment, but demonstrated the law to be the best and most necessary instruction of all others, permitting the people to leave off their other employments and assemble together for the hearing of the law and learning it exactly. And this not once or twice, or oftener, but every week, which thing all the other legislators seem to have neglected. And indeed, the greatest part of Mankind are so far from living according to their own laws, that they hardly know them; but when they have sinned they learn from others that they have transgressed the law. Those also who are in the highest and principal posts of the government confess they are not acquainted with those laws and are obliged to take such persons for their assessors in public administrations as profess to have skill in those laws. But for our people, if anybody do but ask anyone of them about our laws, he will more readily tell them all than he will tell his own name. And this in consequence of our having learned them immediately, as soon as ever we became sensible of anything, and of having them as it were engraven on our souls."

     So wrote an historian recording Jewish life at about the beginning of the common era.

     Maimonides, in his Code, has a division devoted to the laws of Torah study. Therein he postulates (Talmud Torah I, 8.): Every male person in Israel is obligated to study Torah, be he poor or rich, healthy or subject to suffering, young or so old that his strength is ebbing, even if he be burdened with wife and children, he is obligated to set aside a specific time by day and by night to study Torah, for it is written: “Thou shalt study it by day and by night."

     This Commandment, this law to study the law, is the quintessential of Talmudic jurisprudence. We quote from Talmudic literature (Abot de R. Nathan VI, 2.):

“What were the beginnings of R. AKiba? It is said: When he was forty years of age he had not yet studied Talmud. Once he stood by the mouth of a well. There he noticed a well-stone. ‘Who has hollowed out the stone?’ he asked. He was told it was the water which fell upon it every day continually. He wondered about this. It was said to him: ‘AKiba, has thou not read: “The waters wear away the stones?”’ (Job 14:19) Thereupon R. AKiba drew the implication for himself. ‘If what is soft wears down the hard, all the more shall the words of Torah, which are hard as iron, (i.e.—in their unbending and unchanging demands upon man.) hollow out my heart which is but flesh and blood!’ With this he dedicated himself to the study of Torah." 

     The law, through continuous, endless study, can make of Man’s heart a receptacle for the living waters of moral and ethical perfection. For, and we quote from Maimonides’ Code (Teshuba VI, 5. Tr. Hyamson.):

“It is characteristic of every human being that, when his interest is engaged in the ways of wisdom and righteousness, he yearns for those ways and is eager to follow them."

     Talmudic law is common law in the sense that its knowledge is common for all men and not the domain of the professional student of the law. The law is therefore truly a Torah—a system of instruction to the people embracing all the problems of life, seeking to make the people worthy of the great heritage of humanity—Man created in the image of G-d (Cf. Mishnah Abot III, 18.).

I think we have made some points, though of necessity quite superficial, which, if digested and taken to heart, will be found to have great bearing upon the problems besetting us in these troubled times. Freedom and liberty under law rather than violence under tyranny, this is the great problem of our day. The further the advance of science in developing nuclear energy and in conquering outer space, the greater is the poignancy of this problem. The law, Divine in essence, brought to all the people to lead and guide them to the heights of human nobility and dignity—therein lies our strength and security as free men.

 * I am indebted to Mr. Israel Taslit for a number of corrections in the manuscript.