CHAPTER

NATURE AND SCOPE

™at,TeS '?• mi"d Whe" °ne heafS the term "Jewish law"? Typically, one's reaction will
nroMhi^nn r f'°US ,ermS' SUCh as Sabbath observancei 'he dietary laws (kashrut) and their
and prayer ZXTs!IT" ^^ ^^^ a sk"'"aP

Well and good. But can Jewish law answer the constitutional question of what are the rights
of the minority when faced with a majority decision prejudicial to its interests? Can the conLt
b™ ,he P°wer em judicial review in the name of fundamental values and the
f
ogni ion of the majontanan principle of democratic theory occur, much less be resolved within
«m 7 l3W? D0CS JCWiSh ,2W diSCUSS Such "secu,ar" issues as the detentionofa
suspect, an illegal contract, the right to strike, and negligence as a cause of action in tort?
The reader will at this point already sense that the answer offered in this casebook to these
d similar questions is "yes." But this answer only raises further questions: How is it possible
Whenced rr T1
teilit0ry and POliCe pOWer has not only persevered bu, Med'
Whence do the Jewish legal authorities derive their tradition-embedded answers to what appear
to be novel, contemporary questions? wear

A hint can be found j„ the following responsum by Rabbi Menahem Mendel Krochmal (Poland
Moravia, second half of the seventeenth century), also known as "Zemah Zedek"Z ''lowering
of Righteousness ) after the title of his collected responsa. r Rabbi Kroclmia] was asked to rule
on a proposal by some of the town notables that not all taxpayers in the Jewish community would
have the nght to vote for certain officials. Rather, under the proposal, only thos" rf subsZdal
A s m i g h t h e a n S W h ° H b ° r e ' h e f e £ " e S t b U r d e " ° f c o m m u n a l expenditures would b e a b l e t o vote
might be expected, many of the poorer members of the community objected to the proposal.
Rabbi Krochmal's responsum, which we quote in full, provides a striking example of (1) the
raised h Tu resp0nsum'(2) the importance of responsa in solving difficult prob ems

raised by new and chang,ng conditions, and (3) the significance of the responsa literamre as the
primary source of Jewish law after the completion of the Talmud.

RESP. ZEMAH ZEDEK #2

> h has beea cnslomaiy refer ,o some halakhic authorities by the name of their bes, known books

682 n.,5 (1994) El°"' Uw """^hpa, D: History, Sources. Principles,

1

CH. 1
2 • BASIC CHARACTERISTICS OF JEWISH LAW
(,shammash) only with the agreement of all the taxpayers.3 Moreover, the appointment of the
communal leaders, tax collectors,4 judges, and court officials* was made by electors chosen by
lot from among all the taxpayers. Some of the town notables, however, now wish to introduce
a new system6 whereby all public affairs would no longer be decided by all the taxpayers, small
and great alike,7 as had been the practice, but only by those who have some eminence, either
by paying large sums in taxes, or by being Torah scholars.
They propose that in order for a person to be eligible to vote in communal matters or to be
included in the lottery in which electors to make appointments are chosen, he must either pay
a certain level of tax or at least be qualified as a haver* in Torah knowledge. This would exclude
those who pay small amounts of taxes and are not scholars.
The town notables argue that since the greater part of the community's business involves the
expenditure of money, how can the opinion of a poor man be of equal weight with that of a rich
man? Similarly, how can the opinion of an ignorant person be as valid as that of a haver, unless
he is distinguished by reason of his wealth? They also point to the fact that all the other large
and important Jewish communities follow this practice [of excluding small taxpayers who are not
scholars], and they argue that their community should be no less important.
For their part, the poor, who are the mass of the people, protest: Since they are taxpayers and
give their share, why should their rights be curtailed? Although the rich pay more, it is a greater
burden for the poor to pay their small sum than it is for the rich to pay their greater amount.
They further appeal to ancient and immemorial custom which, as is known, overrides even the
law.9 How, then, is one allowed to alter the custom?
Rule for us, our teacher, which side is right.
RESPONSE: It is clearly not right to reject the poor who give a small amount. Proof of this
is found in the Mishnah at the end of Tractate Menahot: w "Scripture refers to a sacrificial offering
of an animal as 'an offering by fire of pleasing odor,'11 and to a sacrificial offering of a bird
as 'an offering by fire of pleasing odor,'12 to teach that there is no distinction between those who
give more and those who give less [lit. 'one gives more and one gives less'], etc."13 It is thus
3 In the remainder of the responsum, these are called "the poor." The reference is to persons who pay only minimal
amounts in taxes, thereby qualifying as members of the community.
« The term in the text is gabbaim\ it refers to the communal officials responsible for collecting taxes.
5 The Hebrew term for court official is shammash. The same term was used earlier in juxtaposition to the rabbi
and the cantor; there, the reference was to the caretaker of the synagogue.
6 The Hebrew, laasot minhag hadash, implies the enactment of legislation to accomplish the desired goal. The word
minhag, which ordinarily means "custom," is sometimes used as a synonym for takkanah, or enactment. See Elon, Jems
Law, at 492-93 & n.78.
7 Cf. Job 3:19: "Small and great alike are there, and the slave is free of his master."
8 "Haver" was a title bestowed on scholars in Germany/Northern France in that period. The superior title was
"morenu." In mishnaic and talmudic usage, a haver — as opposed to an am ha-arez — was one who ate even unsanctified
food in a state of ritual purity, and who observed other stringencies. See Tosefta Demai 2:2 et al.
9 For a discussion of the principle that custom overrides the law, see Elon, Jewish Law, at 909-11. See also Chapter
9, infra.
to M Menahot 13:11; TB Menahot 110a.
u Leviticus 1:9.
12 Id. 1:17.
13 M Menahot 13:11 reads in full: "Scripture refers to a sacrificial offering of an animal as 'an offering by fire of
NATURE AND SCOPE • 3
CH. 1
expressly stated that a small amount given by the poor is equal to a substantial amount given
by the rich.
One might go further and say that the contribution of the poor has even greater weight. Scripture
states in connection with a meal offering: 14 "When a person [in Hebrew, nefesh, lit. 'a soul']
presents an offering of meal to the Lord . . . ." The Sages commented:" "The word 'soul' was
not used in connection with any voluntary offering except the meal offering. Who usually offers
a meal offering? A poor person. God said: 'I account it for him as if he offered his very soul.' "
(This passage is quoted by Rashi in his commentary on the Torah in the first section of Leviticus).16
The reason is that since a poor person must labor strenuously [lit. "with his soul"] to earn enough
to bring a meal offering, Scripture uses the term "soul." Similarly, Scripture states in connection
with a laborer's wages:17 "For he is needy and urgently depends on it" [lit. "sets his soul upon
it"]. This does not apply to a rich person who brings what he already has and does not exert himself
[to obtain it for the specific purpose of offering it].
This is why the Mishnah uses the formulation "one gives more and one gives less, rather than
merely stating that one who gives less is accorded the same merit as one who gives more, provided
[that one's intent is directed toward Heaven]. [The reason for the Mishnah's formulation is that]
the matter can be viewed in two ways: It can be argued that the contribution of the rich man
is more acceptable because it is greater, and it can also be argued that the poor man s gift, even
though it is of less intrinsic value, is more acceptable, because it is more difficult for him [to
give his lesser gift] than it is for the rich man [to give his greater gift]. The Mishnah therefore
uses the formulation "one gives more and one gives less" to teach us that both contributions are
equal: the contribution of the rich man is not more acceptable on account of its amount, as might
be thought, and the contribution of the poor man is not, as might be thought, more acceptable
on account of the effort that went into it, but both are of equal weight so long as [the donor's
intent is for Heaven].
Therefore, the argument of the poor is valid, since the little that they give is as difficult for
them as the substantial amount is for the rich. A similar point is made in the fifth chapter of Tractate
Berakhot, folio 31, in connection with the dictum of R. Hanina: "Everything is predetermined
by [lit. "in the hands of'] Heaven [except reverence for Heaven]. The matter may be compared
to someone who is requested to give a vessel: If it is a large vessel but he has it, it seems to
him like a small vessel; if it is a small vessel but he does not have it, it seems to him like a
large vessel."18
pleasing odor [to the Lord]' [Leviticus 1:9]; and to the sacrificial offering of a bird as 'an offering by fire of pleasing
odor [to the Lord]' [id. 1:17]; and to a meal-offering as 'an offering by fire of pleasing odor (to the Lord]' [id. 2:2]
to teach that there is no distinction between those who give more and those who give less, provided that one s intent
is directed toward Heaven."
14 Leviticus 2:1.
15 TB Menahot 104b.
16 Rashi to Leviticus 2:1.
17 Deuteronomy 24:15.
18 The source is actually TB Berakhot 33b, which reads as follows: "R. Hanina said: Everything is predetermined
by [lit. 'in the hands of] Heaven except reverence for Heaven, as it is written [Deuteronomy 10:12], 'And now, O
Israel, what does the Lord your God demand of you? Only this: to revere the Lord your God . . . .' Is reverence ot
God such a minor matter? Did not R. Hanina say in the name of R. Simeon b. Yohai: 'The Holy One, blessed be
He, has no treasure in his storehouse but reverence for Heaven, as it is written [Isaiah 33:6], "Reverence for the Lord
 CH. 1
NATURE AND SCOPE • 5
4 • BASIC CHARACTERISTICS OF JEWISH LAW CH. 1

Moreover, proof cannot be brought from the fact that other important communities do have
It is true that Asheri, in his responsa (#7:3), states as follows: "Any matter based on financial
such a custom, as one cannot adduce proof from one place to another. "Every river has its own
assessments shall be determined by the 'economic majority,' for it cannot be that the numerical
course."21 Perhaps in those communities the custom was established by the consent of all the
majority, who pay only a small portion of the taxes, may, at their will, impose an enactment on
taxpayers who, for the sake of peace, agreed to it. But a community may not introduce a new
the wealthy." (This responsum was quoted by Rema in his glosses on Shulhan Arukh, Hoshen
system as it wishes. For if this were done, there would be no end to the matter. Each day they
Mishpat 163.) However, [Joshua Falk,] the author of Sefer Me'irat Einayim [commonly known will propose something different, thereby, Heaven forbid, increasing dissension in the Jewish
by the acronym Sema], ad loc., has explained that Asheri meant only that the poor, when in the
community.
majority, are not allowed to impose their view over the objection of the rich. He did not mean
The best way in such matters is to act entirely upon the advice of a scholar who rules justly,
that the rich may be considered the "majority" for the purpose of imposing their view on the actual
who will mediate peace among [the members of] the community and will promulgate a proper
majority of the community, is Sema thus states explicitly that a wealthy minority may not impose
enactment with the consent of everyone. Then all the people — each one in peace will come
their view on the poor who constitute the majority, just as a majority composed of the poor may
to their proper place.22
not impose their view on the wealthy minority. This is the law, because these two majorities —
the numerical majority and the "economic majority" — are of equal weight. Therefore it has NOTES
become an established custom in most communities of this country that, in order to establish the
requisite majority for the appointment of a rabbi, cantor, or synagogue caretaker, the appointment 1. Terminology. First a comment on terminology: throughout this casebook, you will encounter
must be approved by both the numerical majority (the majority of the people) and the "economic terms transliterated or translated from the original Hebrew or Aramaic. When appropriate, a brief
majority" (the majority of the wealth), 20 because both of these majorities are of equal weight. definition of the term will be provided in the text or in the accompanying notes. Otherwise, the
Were we to follow the numerical majority, then the wealthy, who are the economic majority, would student is urged to consult the glossary, infra, where concise definitions can be found.
oppose them. Were we to follow the wealthy who are the economic majority, then the poor, who 2. The Written Law and the Oral Law. At the outset, some basic principles should be noted.
represent the numerical majority, would oppose them. Hence we need both majorities — economic A fundamental precept of Judaism is that, in addition to the Written Law (Hebrew: Torah she-bi-
and numerical. khetav), there also exists the Oral Law (Hebrew: Torah she-be-al peh). Tradition holds that,
together with the Written Law, commonly known as Scripture, the Oral Law was given to Moses
This custom is proper, and it rests upon the principles established in the responsum of Asheri,
at Mount Sinai (TB Megillah 19b). The term "Oral Law" includes all of Jewish law that is not
of blessed memory, as I have written in my Responsum #1. The desire of the notables to entirely
explicitly set forth in the Written Law, and both are considered equally authoritative. Thus, the
exclude the poor, who are the majority, from the decisionmaking process is certainly not proper,
Oral Law includes all of the various forms of the Halakhah throughout its development.
for the small payments made by the poor are of equal value to the large amounts given by the
The following passage explains the meaning of the term "Oral Law":23
wealthy, as explained above.
Statements by many of the halakhic authorities . . . indicate that they distinguished
The proposal to exclude them on the ground that they are not scholars is also not proper. Proof
carefully between two parts of the Oral Law: (i) the part originating in "tradition handed
of this can be found in TB Hagigah 22a: "Which sage is concerned with preventing animosity?
down from one person to another," going back to Moses, who received it from God, and
It is R. Yose, as we have learned . . .: 'R. Papa said: On whose authority do we accept today
(2) the part that the halakhic authorities had the responsibility to create and develop. The
the testimony of an ignorant person? This is the opinion of R. Yose.' " R. Yose's reason is that
distinction is made in a comment of the Sages on a verse in Exodus.24 According to the
"persons should not go off and build their own altar and burn their own red heifer." It is thus
verse:
clear that even the testimony of an ignorant person is accepted as competent, in order to prevent
When He finished speaking with him on Mt. Sinai, He gave Moses the two tables of the
animosity: if they see that they are set apart, they will build their own altar [i.e., leave the
community]. This is even more of a concern in regard to the question before us. If we reject the Testimony, stone tablets inscribed with the finger of God.
unlettered to the point of not making them a part of the process of communal legislation, they The Sages commented:
will certainly bear animosity, build their own altar, and separate themselves from the community, But did Moses learn the entire Torah? It is written in Scripture:25 "Its measure is longer
with the result that dissension in the Jewish community will be multiplied, Heaven forbid. This, than the earth and broader than the sea." Did Moses really learn something so vast in just
therefore, is certainly to be avoided. forty days? The answer is, God taught Moses the general principles . . . .26
— that is His treasure.' " Yes! For Moses it was a minor matter, as R. Hanina said: 'The matter may be compared 21 TB Hullin 18b, and see Rashi, ad loc.
to someone who is requested to give a vessel: If it is a large vessel but he has it, it seems to him like a small vessel;
22 C/ Exodus 18:23.
if it is a small vessel but he does not have it, it seems to him like a large vessel.' "
23Elon, Jewish Law, at 241-42
19 Sema, Sh. Ar. HM 163, subpar. 13.
24 Exodus 31:18.
20 The Hebrew expression used here is rov binyan ve-rov minyan. This expression is found in M Oholot 1:2, where
25 Job 11:9.
it refers to the bones and limbs of the body. Here it is used to indicate a majority according to quantity, i.e., number,
26 Exodus Rabbah, Ki Tissa, 41:6.
and a majority according to quality, i.e., wealth.
 CH. 1
6 • BASIC CHARACTERISTICS OF JEWISH LAW
Together with the Written Law, Moses was given principles whereby the Written Law was
to be interpreted and understood; and it was according to these principles that new laws were
generated so as to render explicit what had previously been only implicit in Scripture. The
thought expressed in the comment quoted above was further developed by Joseph Albo, the
Spanish Jewish philosopher, at the end of the fourteenth century:
It is impossible for the Torah of God to have covered all possible cases that may ever
arise, because the new situations that constantly arise in human affairs, in law, and as a
result of human enterprise are so manifold that a book cannot encompass them. Therefore,
general principles, which the Torah only briefly suggests, were revealed orally to Moses
at Sinai, so that the halakhic authorities of every generation would use them to derive new
laws.27
Thus when we examine the views of many of the halakhic authorities, we will find that
as clearly and unequivocally as they emphasized the suprahuman and divine quality of the
Source of the entire Halakhah, so in the very same way and with the same emphasis they
also stressed the human factor — the exclusive prerogative of the halakhic authorities in regar
to the ongoing development and creation of the Halakhah. The dual character of the Halakhah
is expressed in two fundamental maxims pervading the halakhic ambience. On the one hand,
it is a basic article of faith that "the Torah is from Heaven"; and on the other it is also a
basic principle that "the Torah is not in heaven."2* The source of the Halakhah is Heaven,
but the place of the Halakhah, and its life and development, are not in heaven but in human
society.
The halakhic authorities saw no contradiction between "the Torah is from Heaven an
"the Torah is not in heaven"; they firmly believed that each halakhic authority's, interpreta­
tions, enactments, new perceptions, and writings merely actualize what was already included
in potentia in the Revelation at Sinai and designated from the very beginning tor the needs
of his particular generation: "Not only did all the prophets receive their prophecy from^
but every halakhic authority of every generation received his [portion m the Halakhah] trom
Sinai."29
The Oral Law was studied and transmitted orally from generation to generation, front the time
of Moses, and, for a lengthy period of time, it was actually forbidden to reduce the Oral Law
to writing However, with the passing of time, the Oral Law was reduced to writing for the PurPOse
of public study and to prevent the Torah from being forgotten. For a detailed discussion of the
term "Oral Law," see Elon, Jewish Law, at 190-227, 240-42.
3. The Talmud. The following is a brief overview of the Talmudic period, which constitutes
the cornerstone of the Oral Law:
[T]he history of Jewish law extends over a period of more than three thousand years. We
divide this immense period into two broad periods . . . .
The first broad period begins with the written Torah and ends with the completion of the
Talmud [the end of the fifth century C.E.]. The second broad period is the post-Talmudic
period, from the completion of the Talmud until our own day.
used to refer to the latter. The Gemara is the compilation of commentary and discussion on the
27 Sefer ha-lkkarim 3:23.
Mishnah, which in turn is the authoritative explication of the Oral Law. There was a compilation
28 TB Bava Mezi'a 59a/b, Temurah 16a; TJ Mo'ed Katan 3:1, 10b (3:1, 81d) - based on Deuteronomy 30:12;
Maimonides, Mishneh Torah [hereinafter, MT], Yesodei ha-Torah 9:4. For a detailed discussion, see Elon, Jewish Law,
at 240-72.
29 Exodus Rabbah, Yitro, 28:4; Tanhuma (printed eds.), Yitro, 11. See also Urbach, The Sages, at 3041 .
CH. 1 NATURE AND SCOPE • 7
What is the rationale for making the Talmud the dividing line between these two major
periods? First, we must make clear and emphasize that this division between the Talmudic
Halakhah and the post-Talmudic Halakhah has no significance at all so far as continuity
and development of the Halakhah are concerned. The Halakhah not only kept on developing
continuously after the Talmud was completed, but even became, in most of its subject areas,
more prolific, and richer in literary expression. What makes the Talmud distinct as a watershed
in the history of Jewish law is its character as the authentic source of Jewish law and the
attitude of the entire Jewish people toward the Halakhah as expressed in the Talmud and
its literature. The enormous body of normative laws formulated and contained in the Talmudic
literature was received in the Jewish world as the accepted elaboration of the Oral Law, beyond
contest or reconsideration:
Everything in the Babylonian Talmud is binding on all Israel ... [as agreed to] by the
entire Jewish people.30
The Talmud is the cornerstone and foundation, the starting point for all study and
deliberation in every area of the Halakhah in the post-Talmudic period. Of course, at the
highest level of the value scale of the Halakhah, in all periods, is the written Torah. . . .
Until the literary sources of the tannaim were compiled and edited (and to a certain extent
even until the entire body of Talmudic literature was completed), the written Torah was the
source on which the judges based their decisions and into which the Sages delved. As the
Talmudic literature became complete, the written Torah continued to be the "constitution"
of Jewish law, but the Talmudic literature — the Mishnah, the halakhic midrashim, the
baraitot, and the Talmuds — became the exclusive sources for deriving the Halakhah.
Halakhic authorities taught their disciples, and judges decided cases, exclusively on the basis
of the Talmudic literature. They no longer directly consulted the written Torah to solve
problems as they arose.
The law contained in the Talmudic literature is binding because of the very fact of its
inclusion as part of the compilation of the literature of Talmudic Halakhah, and the halakhic
authorities do not go behind it to earlier sources in order to satisfy themselves as to its
authenticity. This special status was preserved for Talmudic law even after the Halakhah
was augmented, during a period of more than 1500 years, by a substantial literature that in
scope, arrangement, and facility of use is superior to the literature of the Talmud itself. The
primary and authoritative source for any halakhic rule and its analysis is the Talmud and
its literature.
There is yet another reason why the completion of the Talmud is a watershed. During the
period of the Talmud, Jewish law developed and established its sources for further growth
and its procedures for ongoing creativity, all of which set the pattern for the law s continuing
creativity and development in the post-Talmudic period. During the Talmudic period, the
Halakhah established and developed the characteristic patterns, the methods of reasoning,
and the forms of expression of halakhic legal thought.31
The term "Talmud," which actually consists of the Mishnah and the Gemara, is most commonly
30 Maimonides, MT, Introduction.
31 Elon, Jewish Law, at 39-40.

8 • BASIC CHARACTERISTICS OF JEWISH LAW CH. 1
of the Talmud at the end of the fifth century C.E. in Babylonia, which became the center of Jewish
thought after the exile of the Jews from the Land of Israel. This compilation is known as the
Babylonian Talmud. In addition, there was also a compilation of the Talmud composed in the
Land of Israel at the end of the fourth century C.E. This compilation is known as the Jerusalem
Talmud. Both versions of the Talmud are written primarily in Aramaic (although there are
differences in the dialects used), with extensive material written in Hebrew as well. The Babylonian
Talmud is accepted as the more authoritative source of Jewish Law.32
The Mishnah is divided into six Orders, which are further subdivided into 63 tractates. The
Babylonian Talmud contains commentary on 36 of these tractates, and the Jerusalem Talmud on
39.
Halakhic authorities and scholars have long disputed, from as early as the tenth century, the
date when the Talmud was actually put into writing. The majority view is that the Mishnah was
put into writing simultaneously with its redaction by R. Judah Ha-Nasi at the end oi the second
century C.E., and that the Gemara, in both its Jerusalem and Babylonian versions, was written
down at the time of its redaction. The minority view is that the Mishnah was not reduced to writing
upon its redaction by R. Judah Ha-Nasi, and that both the Mishnah and the Gemara were put
into writing only during the sixth century C.E., although orally compiled and redacted much
earlier.33
4. Components of the Oral Law. The Oral Law can be divided into two components — Halakhah
and Aggadah. This division is both textual and substantive. Halakhah is the term used to refer
to the normative part of the Jewish tradition containing the mandates of the law — the what, when
and how of religious and legal activity. Aggadah, on the other hand, is comprised of homiletic
material and constitutes the philosophy of the Halakhah.34
The Halakhah itself may be further broken down into two distinct areas of law: "religious
law, which deals with such matters as prayer, Sabbath, festivals, sacrificial offerings, etc., and
"legal" law, which is concerned with such issues as criminal law, family law, contracts, torts,
etc. The subject matters of "religious" law are typically not part of any modern legal system, while
those of "legal" law deal with topics familiar to any student of contemporary jurisprudence.
In somewhat different words, Jewish "legal" law deals with the legal relationships among
individuals and between the individual and his society, while the religious portion of the Halakhah
is concerned with the relationship between the individual and his Maker. The "legal" portion of
the Halakhah has come to be referred to in legal scholarship as mishpat tvri.35
5. The Responsa Literature. In this responsum of Zemah Zedek, we encounter what is referred
to as the responsa literature. The responsa literature, which has been called the "case law" of the
Jewish people, consists of myriad decisions written by diverse and far-flung Jewish legal authorities
on legal subjects ranging from contracts and torts to personal status and human rights, as well
as on a wide variety of religious issues. It includes the preponderance — both quantitative and
qualitative — of mishpat ivri in the post-Talmudic period. There are over 300,000 responsa, which
date back as far as the eighth century, and continue to be written today in Israel as well as
32 See Maimonides, MT, Introduction.
33 See Elon, Jewish Law, at 224-27, 1091-98.
34 See id., at 93-96.
35 For further discussion, see id., at 105-41.
NATURE AND SCOPE • 9
CH. 1
throughout the various diasporas. For an extensive discussion of the responsa literature and its
significance, see Elon, Jewish Law, at 1454-1528.
In particular, it should be noted that this responsum of Zemah Zedek was composed in the
seventeenth century, a period during which Polish Jewry lived under the threat of frequent pogroms,
war, and economic hardship. At that time, Cracow was reeling under the impact of pogroms
perpetrated by Bogdon Chmielnicki against the Jews; so ferocious were these pogroms that they
have been assigned a special name in Jewish history — the Tah and Tat decrees (referring to
the designation of the years of the Jewish calendar during which the horror of these pogroms
reached its peak).
The responsum of Zemah Zedek, which deals with the constitutional question of the right to
vote, was written under those unsettled circumstances. These external circumstances — as well
as the internal conflict within the community between the rich and the poor — undoubtedly
influenced the decision of Zemah Zedek.
6. How Krochmal Reconciles a Different Responsum. Krochmal cites a responsum of Asher
b. Jehiel (Asheri), a German and Spanish halakhic authority of the thirteenth and fourteenth
centuries, which appears to contradict Krochmal's conclusion regarding absolute equality in the
right to vote between the wealthy and the poor.36 Asheri's important responsum was relied upon
by many great halakhic scholars, and different interpretations were given to it over the centuries.37
In order to reconcile his conclusion with Asheri's responsum, Krochmal contracted the scope of
Asheri's decision, saying that Asheri's responsum allows for basic equality in the right to vote
between the wealthy and the poor. The result of this interpretation is a linking of the numerical
majority with the "economic majority." Krochmal's approach is typical of that found in many
legal systems, where a judge, rather than overtly disagreeing with a precedent that does not appear
to be consonant with his view of the law, instead limits and distinguishes that precedent.
7. Dealing with an Issue Having No Clear Precedent. The subject matter of this responsum
addresses a fundamental constitutional issue: the right to vote and the extent to which it may be
limited. This issue is not directly discussed either in the Torah or the Talmud, the classic sources
on which the halakhic authorities based their rulings. Zemah Zedek offered no precedent or other
direct authority as support for his ruling. However, as with great judges in all societies and
throughout history, he did not hesitate to issue an unequivocal ruling on a difficult question. On
the matter of dealing with a legal issue for which there is no clear precedent, compare the
pronouncements of two distinguished judges — Justice Cardozo and Lord Denning.
Justice Cardozo of the United States Supreme Court was of the opinion that problems for which
there was a ready precedent are of little interest as an intellectual matter. He wrote.
[T]he work of deciding cases in accordance with precedents that plainly fit them is a process
similar in its nature to that of deciding cases in accordance with a statute. It is a process
of search, comparison, and little more. Some judges seldom get beyond that process in any
case. Their notion of their duty is to match the colors of the case at hand against the colors
of many sample cases spread out upon their desk. The sample nearest in shade supplies the
36 Asheri's responsum (Resp. Asheri #7:3) appears in full in Chapter 16.02, infra.
37 See Elon, Demokratiah, Zekhuyol Yesod u-Minhal Takin bi-Pesikatam shel Hakhmei ha-Mizrah be-Mopi'ei Gerush
Sepharad [Democracy, Fundamental Rights, and Public Administration in the Decisions of the Eastern Halakhic
Authorities Following the Spanish Expulsion], 18-19 Shenaton ha-Mishpat ha-Ivri [Jewish Law Annual] 9, 14-15, 20-43
(1992-94).

10 • BASIC CHARACTERISTICS OF JEWISH LAW CH. 1
applicable rule. But, of course, no system of living law can be evolved by such a process,
and no judge of a high court, worthy of his office, views the function of his place so narrowly.
If that were all there was to our calling, there would be little of intellectual interest about
it. The man who had the best card index of the cases would also be the wisest judge. It is
when the colors do not match, when the references in the index fail, when there is no decisive
precedent, that the serious business of the judge begins.38
In the early 1950's, Lord Denning in England uttered harsh words against judges who would
"hesitate" to rule in a certain way because of the absence of clear supporting precedent. He wrote:
What is the argument on the other side? Only this, that no case has been found in which
it has not been done before. That argument does not appeal to me in the least. If we never
do anything which has not been done before, we shall never get anywhere. The law will
stand still while the rest of the world goes on, and that will be bad for both .... I think
that we should follow the course which is permitted by statute and prescribed by good sense.39
8. Reliance on the Philosophy of the Law. Still, the question remains: On what did Zemah Zedek
base his ruling? On what legal sources did he rely? In deciding between the interests of rich and
poor persons, he consulted certain sources which do not appear to be legal in nature. The Talmudic
sources on which he relied were taken from the Aggadah, i.e., the homiletic, non-normative portion
of the Talmud. This phenomenon is not foreign to the Halakhah. Frequently, general ideas most
graphically expressed in the aggadic literature — the "philosophy of the law" — serve as the
basis for establishing the substance of the Halakhah.*0 Thus, in the absence of any direct legal
precedent, the halakhic authority may derive his ruling from the world of Jewish ideas and values.
An additional point worth mentioning is that the source on which Zemah Zedek ultimately based
his ruling is taken from what appears to be a religious area par excellence — the ritual of sacrificial
offerings (Hebrew: korbanot).
In the responsum of Zemah Zedek, the poor did not, nor could they, refer to any authority in
support of their arguments. Rather, the so-called force of logic put forth by the rich in support
of their position was rejected, not on the basis of any specific biblical verse, communal legislation
or judicial precedent, but on the basis of general precepts of justice, fairness, and equality, which
collectively constitute the fundamental norms on which the Halakhah rests, despite their not being
inscribed in any text in haec verba.
In fact, the responsum of Zemah Zedek may serve as a classic example of Ronald Dworkin's
view that the law consists not only of "rules of law," but of "principles of law as well. See
Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967). There is no doubt that in Zemah
Zedek's view, the concepts that ultimately govern the Halakhah are "principles," not "rules."
9. Other Opinions in Jewish Law on the Question of Voting. It should also be noted that the
question that was posed to Zemah Zedek had arisen in other Jewish communities, both in Zemah
Zedek's own time and earlier. Various conclusions were reached by the other halakhic authorities
who rendered opinions on this question, and some took a view diametrically opposed to that of
Zemah Zedek. See Elon, Jewish Law, at 725-27, and Chapter 16.02, infra.
38 Cardozo, The Nature of the Judicial Process 20-21 (1921).
39 Packer v. Packer, [1953] 2 All E.R. 127, 129.
40 See Elon, Jewish Law, at 94-104.
NATURE AND SCOPE • 11
CH. 1
10. Judicial Review and Advisory Opinions. Judicial review of communal enactments (Hebrew:
takkanot ha-kahal), wherein a judicial decision is rendered prior to the enactment taking effect,
is an interesting phenomenon in mishpat ivri. The community is given an opinion from the judicial
authority, relying on submissions by the proponents and opponents of the proposed enactment,
before the legislative process is commenced. In this way, the community is able to ensure the
legality of its enactments and avoid the undesirable consequences which may result from the
enactments' being declared illegal after they have already been promulgated.41
This procedure is similar to the rendering of an advisory opinion by a court. The difference
between the receptiveness of mishpat ivri and the general hostility of U.S. constitutional law to
such a device is stark. See Tribe, Constitutional Law 73-77 (2d ed. 1988), for the American attitude.
11. Possible Limitations on the Right to Vote. Nearly 100 years before the United States
Constitution was adopted, and without the benefit of a written constitution, an equal protection
clause, or any unequivocal precedents, Zemah Zedek discussed the question of the legality of
certain limitations on the basic right to vote. Zemah Zedek gave different reasons for his opposition
to various limitations: he opposed a wealth-based limitation on grounds rooted in basic principles
of fairness and equity, and a literacy-based limitation on grounds rooted in utilitarian
considerations.
Thus, in the dispute between the rich and the poor, he adopted a position based on fundamental
values. Through a consideration of the ritual law of sacrificial offerings, he concluded that equal
weight should be ascribed to the "quantitative test," i.e., how much does the person give, and
to the "qualitative test," i.e., how difficult is it for the person to give. How would a utilitarian
rule on this dispute? Would Zemah Zedek have been of a different opinion if the wealthy had
been in the numerical majority?
Is Zemah Zedek's rejection of a limitation based on wealth due to the importance he attributed
to the fundamental right to vote, or does it derive from his opposition to classifying persons on
the basis of wealth? Using the terminology of American jurisprudence, is this a "voting' case
or a "poverty" case?
12.The Decision in Lassiter v. Northampton County Board of Elections. Zemah Zedek rejected,
on purely practical grounds, the suggestion of any literacy-based limitation. Cf Lassiter v.
Northampton County Board of Elections, 360 U.S. 45 (1959). In Lassiter, the Supreme Court
scrutinized the law of the State of North Carolina whereby the right to vote was conditioned on
passing a literacy test in reading and writing. The Lassiter Court ruled that the law was not illegal
because the test under scrutiny appeared on its face to be both fair and rational. The Court noted
that "[t]he ability to read and write likewise has some relation to standards designed to promote
intelligent use of the ballot." 360 U.S. at 51. (It should be noted that while Lassiter has not been
overruled, Congress has effectively disallowed such use of literacy tests by enacting the Voting
Rights Act of 1965, 42 U.S.C. § 1973.)
Assuming that the percentage of illiterates in his community was substantial, how would Zemah
Zedek have answered the question posed by the Lassiter decision? What is the significance of
the differences in historical circumstances between the community that was the subject of the case
brought before Zemah Zedek and the State of North Carolina?
13. Custom as a Source of Law. Note that in Zemah Zedek's responsum, both the rich and
the poor appealed to custom (Hebrew: minhag) to support their respective positions. However,
41 See generally Elon, Jewish Law, at 751-59.
12 • BASIC CHARACTERISTICS OF JEWISH LAW CH. 1

the significance which each group attributed to custom differed. For further discussion of the role
of minhag in mishpat ivri, see Chapter 9, infra. See also Elon, Jewish Law, at 880-944.
14 Mediation of Disputes. At the conclusion of the responsum, Zemah Zedek recommends that
the parties turn to the local "scholar who rules justly" (Hebrew: moreh Zedek). The Jewish court
not only decided disputes, but also served as a mediator of disputes between the parties. Is such CHAPTER
judicial mediation possible in a legal system which rests on the principle of the separation of
powers? Cf the recent rise of court-sponsored mediation, particularly in family law cases, in the
United States.
15 A Responsum as Authority. Is the responsum of Zemah Zedek "law"? Is it accurate to call LAW AND RELIGION
it an example of Jewish "case law"? Is it an "authority"? If so, why? What do we mean when
we describe a certain type of legal literature as authoritative? How does Zemah Zedek s responsum Jewish law is sometimes defined as "religious" law. This characterization is certamly correct
compare as "authority" with an obiter dictum? An Attorney General's opinion? A treatise? A law regarding the foundation of Jewish law, which is based not upon a social contract or utilitarianism,
review article? An opinion of a jurisconsult, who had a license to issue legal opinions under Roman but rather upon a religious belief in a divine revelation at Mount Sinai. However, the characteriza­
law? What is the source of the authoritativeness of Zemah Zedek's responsum? For further tion "religious law" is not very helpful in describing the nature and operation of Jewish law. Indeed,
discussion of this responsum, see Elon, Jewish Law, at 96-99, 725-27. application of modern legal categories to Jewish law often causes confusion. It is, therefore,
necessary to clarify several fundamental points at the outset.

§ 2.01 The Relationship Between the Religious and Civil Parts of the Halakhah
As students of contemporary jurisprudence, we are accustomed to a tripartite classification of
social norms: (1) legal norms; (2) moral or ethical norms; and (3) religious norms. Thus, the
prohibition against homicide is an example of a legal norm, the duty to honor one's parents is
an example of an ethical norm,1 and the duty to observe the Sabbath is an example of a religious
norm. All of these norms are included in the Ten Commandments and, according to Jewish belief,
all such norms were proclaimed and revealed by the Almighty on Mount Sinai. Thus, the basis
for all of these obligations is uniform. A person has the same obligation to fulfill his "legal duties
as he has to obey the "religious" commandments.
Thomas Hobbes and the proponents of his ideas maintain that the purpose of the law is to bring
order to society. Mishpat ivri, as religious law, would reject this as not only incomplete but also
misplaced. While part of the law's purpose is undoubtedly, as Hobbes claims, to establish order,
there is another, higher purpose for mishpat ivri, namely, to bring the Lord's truth to this Earth.
The relationship between the religious and civil parts of Halakhah also finds expression in the
judicial and educational systems. The court that deals with such seemingly purely legal issues
as sales or torts is the very same court that must decide questions involving such purely religious
matters as the Sabbath and the dietary laws. Further, in the traditional Jewish educational system,
students studied rules of interpretation and halakhic principles that apply equally to both the
"religious" and "legal" aspects of the Halakhah.
Therefore, one should be wary of applying modem classifications to the Halakhah. While the
distinctions between law, morality, and religion do exist in Halakhah, they are not nearly as sharp
as those that are found in contemporary jurisprudence. As a result of this interrelationship between
the religious and civil parts of the Halakhah, numerous "legal" doctrines are employed within
the context of "religious" matters, and vice versa.2
1 See Elon, Jewish Law, at 1906-09.

2 For further discussion of the relationship between the religious and civil parts of the Halakhah, see Elon, Jewish
Law, at 4-5, 111-41.
13
 CH. 2
14 • BASIC CHARACTERISTICS OF JEWISH LAW
[A] Agency
The concept of agency is an example of what we could term a legal fiction — the agent
physically carries out the transaction, while the principal is deemed the actor. In other words, the
acts of the agent are regarded as those of his principal.
The concept of agency was well recognized in mishpat ivri over two thousand years ago. In
Hebrew, the concept of agency is expressed by the phrase sheluho she I adam kemoto ("a person's
agent is as himself," i.e., the act of an agent is the act of the principal). Indeed, it is possible
that mishpat ivri was the first legal system to adopt this principle, applying it to such civil matters
as sales, marriage, and divorce, as well as to religious matters, such as sacrificial offerings.
In modem Western legal systems, the law of agency derives either from judicial decisions or
legislative enactments. In mishpat ivri, however, the doctrine of agency was established in the
Talmud through the application of the accepted rules of interpretation of the Torah.
In Exodus 12:6, in connection with the religious obligation of the paschal sacrifice, the Torah
commanded: "You shall keep watch over it until the fourteenth day of this month; and all the
assembled congregation of the Israelites shall slaughter it at twilight." The Talmud (TB Kiddushin
41b) commented on this passage as follows:
R. Joshua b. Korha said: "What is the source of the rule that action by an agent is equivalent
to action by the principal? It is stated: "All the assembled congregation of the Israelites shall
slaughter it at twilight." But does the entire congregation do the slaughtering? Is not the
slaughtering done by only one person? We deduce from here that action by an agent is
equivalent to action by the principal.
In other words, since the verse cannot be understood in a literal manner (because it is not possible
for the entire community to slaughter the sacrifice), we must interpret the verse so that the act
of one person is imputed to and considered to be the act of another person or even of an entire
community.
NOTES
1. The above method of interpretation of the verse in Exodus is well known to those familiar
with the interpretation of legal sources. By deriving the principle of agency from the biblical verse,
the rabbinic authorities were grounding a legal concept on the text of the Torah. How does this
practice compare to the practice by the United States Supreme Court of grounding the recognition
of new constitutional rights upon the Court's reading of the text of the Constitution?
2. Consider the fact that in mishpat ivri, the principle of agency, which applies largely in the
area of "civil" law, is derived from a verse dealing with the performance of a religious
commandment. This is not an unusual occurrence in the Halakhah.
As discussed above, the concept of agency may also apply in a purely "religious" context, such
as prayer. Prayer, essentially an activity between a person and the Almighty, or between the person
and himself, is characterized in the Halakhah by certain rules and commandments that specify
what, as well as when, where, and how to pray.
Further, a clear distinction is made between public and private prayer, the former being preferred.
In public prayer, one of the participants serves as the "agent" of the congregation (sheli'ah zibbur).
The use of this term is not a mere semantic nicety; rather, it connotes one who has been appointed
LAW AND RELIGION • 15
CH. 2
by the participants to fulfill on their behalf a religious act legally commanded. Indeed, the Talmudic
text in which we first find mention of the phrase "a person's agent is as himself' (M Berakhot
5:5) states as follows:
If the one who recites the Tefillah [i.e., the Amidah prayer] falls into error, it is a bad omen
for him [because his intention was not pure]; if he was the agent (shali ah) of the congregation,
it is a bad omen for those who appointed him, because the act of an agent is the act of the
principal.
3. For further discussion of the principle of agency in Jewish law, see Elon, Jewish Law, at
112-13, 342-43.
[B] The Definition of Ownership as It Applies to the Duty to Bring the First-
Fruits Offering
This dual religious-civil nature of the Halakhah often brings about a situation where the
fulfillment of a religious commandment will depend upon the rules and application of the civil
law. An example is the duty incumbent upon a farmer to bring his first fruits (bikkurim) to
Jerusalem. The priest takes the basket containing the fruit and places it before the altar of the
Temple, and the farmer then recites a biblical passage (Deuteronomy 26:5-11) which recounts
the history of the Jewish nation until the time they entered the Land of Israel. Included in the
text is the verse (Deuteronomy 26:10) "Wherefore I now bring the first fruits of the soil which
you, O Lord, have given me."
The words "which you have given me" connote a legal concept, i.e., ownership, and imply that
recitation of the verse applies only to the owner of land. In this regard, the Talmud raises the
following issue. A has purchased the exclusive right to the fruits of the field of B for a period
of five years; title to the field remains, however, in B. Who, then, may recite the verse . . . of
the soil which you . . . have given me" in connection with bringing the first fruits offering? In
other words, what constitutes a property interest for purposes of the commandment? The Talmud
(TB Gittin 47b) contains the following discussion of this question:
It has been said: As to one who sells his field for its fruit [i.e., the land itself remains under
the ownership of the seller and the purchaser acquires only the fruit], R. Johanan said: "He
brings and recites" [the purchaser brings the first fruit from these fruits and also recites the
verses]; Resh Lakish said: "He brings but does not recite." R. Johanan said: "He brings and
recites," [because] acquisition of the fmit is the same as acquisition of the underlying property
[kinyan perot ke-kinyan ha-guf dami] [i.e., with the acquisition of the fmit, one also acquires
the property for purposes of cultivating the fmit, and therefore he may recite the statement,
"I now bring the first fmits of the soil which you . . . have given me"]. Resh Lakish said:
"He brings but does not recite," [because] acquisition of the fmit is not the same as acquisition
of the underlying property" [i.e., he acquires only the fmit, but he has no rights in the property
itself, and therefore he cannot say "the soil which you . . . have given me"].
NOTES
1. To a modem jurist, the infusion of a discussion of ownership of property into a question
of one's religious obligations may seem strange In the modem view, fulfillment of a religious
obligation depends upon the subjective dictates of one's own conscience. In the Halakhah,
however, as we have previously noted, religious duties are defined in terms of legal norms, to
 CH. 2
16 • BASIC CHARACTERISTICS OF JEWISH LAW
_. . . . T . rhp issue raised in the Talmudic passage quoted above
be fixed on an objec lve a . , operty interest has ramifications in other areas of the
regarding the nature and sufficiency ol a property
civil law as well, such as taxes, sales, and gifts.
. , M ok™* rplates to the nature and quality of a property interest
2. The tewnmtepassa^ ^ ^ ^ „ Would ^ same dispute arise if, instead, A held
ataseUTtoesTin B's field? If not, what is the difference between these two types of interests?
Wha property interest does the donee have in a returnable gift (i.e a conveyance of property
subjecf to return to the original donor within a fixed penod)? See Marmomdes, MT, Zekhtyyah
u-Mattanah 3:9, quoted in Elon, Jewish Law, at 114-15 n.97.
3. For further discussion of this question, see Elon, Jewish Law, at 113-14.
[C] Distinguishing Between "Religious" and "Legal" Halakhah - Ritual and Civil
Law
A study of the halakhic sources reveals that the Halakhah, notwithstanding its overall unity,
distinguishes materially between the two main fields of its subject matter - between monetary
matters (mamon) and nonmonetary matters (issur, lit. "prohibition i.e., ritual law) Although
the concepts of issur and mamon are not coextensive with the modern concepts of regions
and "legal" law, the material distinction made between them exerted a decisive influence on the
evolutionary path taken by the large part of the Halakhah embraced in the term mis ivri.
The first manifestations of the distinction date back to the time of the Schools of ammai
and Hillel, when the School of Shammai argued: "You have been permissive on a i atter of
forbidden sexual relations, a subject where great stringency is required; should you not t erefore
also be permissive on a monetary matter, which is not nearly so serious?" (M Eduyyot 1:12;
Yevamot 15:3).3 In the course of time, this distinction became entrenched in many fields of the
Halakhah.
For example, with regard to freedom of contract, the principle was established that "contracting
out of a law contained in the Torah as to a monetary matter is valid, but as to a nonmonetary
matter is void" (Tosefta Kiddushin 3:8). The explanation is that the legal order prescribed by the
Torah in civil matters was not enjoined in the form of a binding obligation {i.e., jus cogens), but
as conditional on the will of the parties {i.e., jus dispositivum), except in cases of a stipulation
inimical to personal freedom or the public good.4
The distinction between issur and mamon also has an important bearing on the question of
legislative authority in Jewish law. While such authority was to some extent limited ir matters
of issur, it remained fully effective in matters of mamon. So far as the legislative authority conferred
on the public and its leaders was concerned, this authority never extended to matters of issur but
encompassed only matters pertaining to the civil law and criminal offenses.5 The distinction is
also an important factor in the binding force of custom, particularly as regards the basic principle
that "custom overrides the law," which is applicable in matters of the civil law exclusively.
Similarly, civil and ritual matters were governed by different rules and principles of decisionmak­
ing. It is a fundamental principle that law in matters of ritual is not to be derived from law governing
3 See Elon, Jewish Law, at 123.
4 For a detailed discussion, see id., at 122-27.
5 See id., at 130, 707-12.
6 See id., at 909-11. See also Resp. Zemah Zedek #2, quoted in Chapter 1, supra.
CH. 2 LAW AND RELIGION • 17
civil matters, and vice versa. This is so because of fundamental differences in the law applicable
to each category. Thus, on the one hand, ritual matters are, by their very nature, of greater
stringency than matters of civil law, whereas, on the other hand, the rule that "the burden of proof
rests upon the claimant" applies to civil but not to ritual law. Moreover, a number of rules are
applicable only to matters of civil law (for instance, that ordinarily, "the majority is not followed
in civil law matters" {ein holkhin be-mamon ahar ha-rovj).7 It was likewise universally agreed
that the rule that "the law of the land is law" (dina de-malkhuta dina) has no application to matters
of ritual law, since all the reasons given for the adoption of the doctrine are relevant only to matters
of the civil law.® Thus, the Halakhah represents a unitary system of law, with both its "religious"
precepts and "legal" directives sharing a common origin, and each part supplementing the other.
At the same time, the Halakhah, as it crystallized during its different periods, evolved a clear
distinction between matters of issur and those of mamon, the latter being the counterpart of a
substantial part of the subject matter of modem legal systems. This material distinction lent the
legal part of the Halakhah, which was the more sensitive and subject to the influence of changmg
social and economic realities, a wide flexibility and capacity for development. For further details,
see Elon, Jewish Law, at 137-41.
§ 2.02 Jewish Law and Conceptions of Religious Law
Anyone who studies mishpat ivri, the civil part of the Halakhah, will find a great similarity
between the subject matter it covers and the subject matter of modem secular legal systems. Still,
the foundation of Jewish law is religious in nature, and rests on the belief in divine revelation.
Indeed, it was this belief that kept all of Jewish law alive and vibrant despite the fact the Jews
for most of their history were without a country or autonomous government. The Jewish people,
who clung to Judaism throughout their 2,000-year dispersion, carried Jewish law with them as
part of their religious heritage. The question is, therefore: To what extent does this religious
aspect affect the nature and application of the civil part of Jewish law?
[A] Human Authority to Determine the Law: The Oven of Akhnai
One can identify two models of religious law. One model is based upon the view that, as
compared to the Almighty, man is infinitesimal. Because of the inherent limitations of human
beings, no mortal judge can hope to discover the absolute truth as to the facts, or the soundness
of the legal arguments, in any case. Therefore, "judgment is for the Lord" {ha-mishpat I'elohim).
This maxim leads to either of two practical consequences. The courts may refrain from passing
judgment at all, with decisions left to the Divine, as in the "ordeals" of ancient and medieval
times, or the courts may defer to those who claim divine inspiration.
The second model of religious law — notwithstanding its acknowledgment of human fallibility
— assigns to mortals the task of rendering judgment. This model is based on the view that the
Almighty has ordained that human beings must make use of their capabilities, however limited,
to resolve disputes without any divine help or intervention. This view therefore confers on the
courts the exclusive authority to judge. It does so, however, at a price, because the right to decide
is also the right to err. In this second model, absolute truth must give way to "legal truth."
Mishpat ivri has adopted this second model. In the words of the Talmud, while the Torah is
from heaven" {torah min ha-shamayim), "the Torah is not in heaven {torah lo ba-shamayim),
7 See Elon, Jewish Law, at 131-32 & n.167; TB Bava Kamma 46b.
8 See Resp. Tashbez, 1, #158, quoted and discussed in Elon, Jewish Law, at 132-37.
 CH. 2
18 • BASIC CHARACTERISTICS OF JEWISH LAW
i.e., the application and interpretation of the Torah is no longer the province of the Almighty,
but rather of mortal humans, and this is true not only of the civil part of Halakhah, but of the
religious part as well.
This doctrine is expressed in the incident involving the Oven of Akhnai, which occurred in
Yavneh after the destruction of the Second Temple in 70 C.E. A dispute arose between R. Eliezer
b. Hyrcanus, on the one hand, and R. Joshua and his colleagues, on the other, in the matter of
an oven owned by a man named Akhnai. R. Eliezer's opinion was that the oven was ritually pure,
while R. Joshua and the other Sages believed that the oven was ritually impure. The Talmud states:
It has been taught: On that day R. Eliezer brought forward every imaginable argument
[to prove his point], but they did not accept them. He said to them: "If the Halakhah is in
accord with me, let this carob tree prove it." Thereupon, the carob tree was uprooted 100
cubits out of its place — others state 400 cubits. They responded: "No proof can be brought
from a carob tree."
Again he said to them: "If the Halakhah is in accord with me, let the stream of water
prove it." Whereupon, the stream of water flowed backwards. "No proof can be brought from
a stream of water," they rejoined.
Again he urged: "If the Halakhah is in accord with me, let the walls of the study hall
prove it." Whereupon the walls leaned at an angle, as if to fall. But R. Joshua rebuked them
[the walls], saying: "When scholars are engaged in halakhic disputation, what business have
you to interfere?" Hence, out of respect for R. Joshua they did not fall; but out of respect
for R. Eliezer they did not right themselves either, and thus they are still standing aslant.
Again he said to them: "If the Halakhah is in accord with me, let it be proved from Heaven."
Whereupon, a heavenly voice cried out: "Why do you dispute with R. Eliezer, seeing that
in all matters the Halakhah is in accord with him?" R. Joshua arose and exclaimed: "It is
not in heaven" [Deuteronomy 30:12]. What did he mean by this? R. Jeremiah said: "The
Torah has already been given at Mt. Sinai. We pay no attention to a heavenly voice because
You [God] have already written in the Torah at Mt. Sinai, 'Follow the majority' " [Exodus
23:2].
The story reaches its climax with this conclusion:
R. Nathan met Elijah [the prophet] and asked him: "What did the Holy One, blessed be
He, do at that time [during the discussion between R. Eliezer and R. Joshua]? Elijah replied:
"He smiled, saying, 'My children have bested me, my children have bested me.'"
This passage from the Talmud (TB Bava Mezi'a 59b), which at first glance may seem to be
no more than a folk legend, in fact contains a remarkable assertion about the independence of
human reasoning. Among the implications of this passage are at least the following:
God Himself, the Giver of the law and its Source, Who made known, as it were, by means
of a heavenly voice, that R. Eliezer, although in the minority, was correct as to what the
Torah actually intended to say, concedes that those of His children who believe otherwise,
but are in the majority, are entitled to prevail even over Him. Objective truth was on the
side of the dissenter; the majority were in effect saying that "left was right and right was
left." Legal truth, however, follows the majority because the Halakhah was entrusted to
halakhic authorities, and the Giver of the Torah Himself, as it were, accepts their decisions.
Elon, Jewish Law, at 262-63. For further discussion, see id. at 262-63 n.84; Chapter 19.01, infra.
CH. 2 LAW AND RELIGION • 19
In the words of Aryeh Leib ha-Kohen, a nineteenth century scholar and author, in the Preface
to his Keipt ha-Hoshen commentary on the Hoshen Mishpat part of the Shulhan Arukh:
Certainly, one should be fearful of stating matters of Torah erroneously, and human wisdom
falters in the search for truth .... However, the Torah was not given to ministering angels,
but to mankind, who are endowed with human reason .... God gave us the Torah to
administer as human understanding determines it to be, even if that determination falls short
of objective truth. Thus, if one brings forth a completely new idea, it need only be true by
the measure of human reasoning .... Truth should sprout forth from the earth; and the
truth is what the halakhic authorities, exercising their human intelligence, agree is true.
It is interesting to compare this view with the following from John Chipman Gray, The Nature
and Sources of the Law 101 (2d ed. 1962):
It may be said that there are reasons, based on the highest welfare of the human race, why
the Law should be so or otherwise, and that it is one of the functions and duties of a judge
to investigate those reasons; that he is an investigator as much as, in his sphere, was Sir
Isaac Newton; that he may make mistakes, just as Newton did; and yet that truth is largely
discovered by his means.
But the difference between the judges and Sir Isaac is that a mistake by Sir Isaac in
calculating the orbit of the earth would not send it spinning round the sun with an increased
velocity; his answer to the problem would be simply wrong; while if the judges, in
investigating the reasons on which the Law should be based, come to a wrong result, and
give forth a rule which is discordant with the eternal verities, it is none the less Law. The
planet can safely neglect Sir Isaac Newton, but the inhabitants thereof have got to obey the
assumed pernicious and immoral rules which the courts are laying down, or they will be
handed over to the sheriff.
NOTES
1. How would one characterize the doctrine of the case of the Oven of Akhnai? What is a similar
situation in a modem setting between the lawmaker and the law interpreter? Is the result in the
modem situation similar to the one reported in the Talmud?
2. The Talmudic episode described above illustrates the "right to be wrong" in the context of
a religious matter, namely, the laws of ritual purity. However, the reach of this "right" is, of course,
not limited to religious matters: it may be found in the civil part of the Halakhah as well.
In any secular legal system in which the court is called upon to interpret the laws enacted by
a legislature, the "right to be wrong" is almost self-evident. In such a system, neither the legislature
nor the court can claim to achieve the absolute truth; therefore, the court s interpretation of the
law, i.e. the legal truth, is as valid as any other interpretation. In the Halakhah, however, where
the court is called upon to interpret a body of law emanating from the Almighty, who by definition
is the source of the truth and is infallible, it is difficult to understand how the court's "right to
be wrong" can be justified.
One of the great Spanish halakhic authorities of the thirteenth century, Nissim Gerondi (known
by his acronym "Ran"), dealt with this difficult issue. He summarized the story of the Oven of
Akhnai as follows (Derashot ha-Ran #11):
20 • BASIC CHARACTERISTICS OF JEWISH LAW CH. 2
For the Lord, Who is to be blessed, has entrusted these decisions entirely to the halakhic
authorities of our generation and commanded us to obey them, so that whatever they decide
is what Moses was commanded by the Almighty. Even if we are informed by a heavenly
voice or a prophet that their decision is the opposite of the truth, we may still not deviate
from it. And this is the meaning of the story of the great R. Eliezer and the other sages in
the Talmud (TB Bava Mezi'a 59b). . . . For God has not entrusted the decision on doubtful
matters of Torah to a prophet or to a heavenly voice, but to the halakhic authorities of the
generation. This is what R. Joshua [was saying when he] stood up and declared: "It is not
in heaven."
Nissim Gerondi explained further (id.):
The Torah took pains to prevent an ever-threatening misfortune: schisms and dissension that
would cause the Torah to become two Torahs. It forestalled this constantly threatening
misfortune when it entrusted the decision of doubtful cases to the halakhic authorities of each
generation. In most cases, the result will be desirable, and their decisions will be just; for
the Masters of the Halakhah will err much less frequently than persons of lesser wisdom.
This is certainly true for the Sanhedrin, who stand before God in his Temple and in the Divine
Presence, which abides among them. And if it happens that on an extraordinary and unusual
occasion they may err in some matter, the Torah was not apprehensive about the remote
possibility of such mischance, because it is worthwhile accepting that risk, it being outweighed
by the beneficial results over the long run; and no other source exists [which can reduce
the risk]."
The supreme authority given to the court to decide cases does not necessarily mean that the truth
will be attained, but it does tend to guarantee the stability of the society.
3. Deuteronomy 17:11 states the duty to abide by the decisions of the court: "You shall act
in accordance with the instructions given you and the ruling handed down to you; you must not
deviate from the verdict that they announce to you either to the right or to the left."
The Sifrei (Deuteronomy, Shofetim, sec. 154) comments upon this verse, stating that "even when
it appears to you that they are saying that right is left and left is right, you must obey them."
Similarly, Nahmanides (Moses b. Nahman of thirteenth century Spain, known as Ramban), in his
commentary on this verse, wrote:
Even if you think that they [the halakhic authorities] are mistaken and the matter is as
clear to you as the difference between your right hand and your left, you shall do as they
direct. You shall say: "The Lord, who is the source of the commandments, has commanded
me to perform all of His commandments in accordance with the instructions of those who
stand in His presence in the place that He will choose. He gave me the Torah to carry out
according to their opinion as to its meaning, even if their opinion is erroneous ..." [Their
opinion controls] as to all of their interpretations of the Torah, whether they received the
interpretation by transmission from person to person extending back to Moses, [who received
it] from God [i.e., by tradition], or whether they base their views upon the sense of Scripture
[i.e., exegesis] or on their own objectives [according to a different text: its objective]. This
is because He gave the Torah to us with the understanding that the ultimate prerogative to
construe it is entrusted to the halakhic authorities, and their construction is binding even if
they appear to be changing right into left.
CH. 2 LAW AND RELIGION • 21
4. Maharal of Prague (who lived during the sixteenth century) wrote (GurAryeh on Deuteronomy
17:11):
There is no inconsistency here. Since He who commanded the observance of the Torah
and prescribed what is prohibited and what is permissible also commanded that you must
not deviate from the verdict that they announce to you," it follows that whatever they direct
may properly be done because that is what God commanded.
5. Are there any differences between the explanations of Ran, Ramban, and Maharal? If so,
what are they?
6. For further discussion, see generally Elon, Jewish Law, at 240-72.
[B] The Human Court as the Final Authority
In the Oven of Akhnai case, when the heavenly voice announced that R. Eliezer's interpretation
of the Torah was correct, R. Joshua replied: "It is not in heaven." R. Joshua's reply seems difficult
to understand. If a secular legislature disagrees with an interpretation of a court, it may in effect
overrule the court's decision by enacting legislation that is inconsistent with the court's decision.
How then, did R. Joshua and the Sages refuse to abide by R. Eliezer's opinion, when the legislature
(i.e., "heaven") specifically recognized R. Eliezer's interpretation of the law? True, the interpreta­
tion of the law is generally left up to the decision of the majority, but here, where it is the Lord
who wishes to clarify and make known the law, how could the majority refuse to comply with
the divine legislator's decision?
The answer to this conundrum lies at the very core of the Jewish religion and mishpat ivri.
Maimonides wrote:9
1. The Torah is clear and explicit that it is a commandment that stands forever and to
all eternity, not subject to modification, subtraction, or addition, for it is written: "Be careful
to observe everything which I enjoin upon you; neither add to it nor take away from it. 10
. . . This teaches that we are commanded to carry out the provisions of the Torah forever.
... It is also written: . . . "It is not in heaven."11 We thus learn that from this time on,
a prophet may not introduce anything new. Therefore, should an individual come forth, be
he Jew or gentile, and perform any sign or wonder and declare that the Lord has sent him
to add a commandment, or to subtract a commandment, or to explain one of the command­
ments in a manner which we have not heard from Moses; or should he say that the
commandments enjoined upon the Jewish nation are not permanent and for all generations,
but are only temporary — that man is a false prophet, because he came to deny the prophecy
of Moses . . . .
2. If this is correct, why does it say in the Torah: "I will raise up for you a prophet from
among your own people, like you?"12 The answer is that the prophet does not come to
establish any new laws, but only to command the observance of the Torah and to warn the
people to obey it; just as the last of the prophets said: "Remember the Torah of Moses, My
servant."13
* M T , Yesodei ha-Torah 9:1-2
10 Deuteronomy 13:1.
11 Id 30:12.
12 Id. 18:18.
19 Malachi 3:22.
22 • BASIC CHARACTERISTICS OF JEWISH LAW CH- 2
Maimonides informs us of the proper role of the prophets and divine revelation in the Jewish
legal system. Maimonides incorporated the concept of the eternal verity of Torah into one of his
basic tenets of faith which observant Jews recite every morning in prayer: "I believe, with complete
faith, that this Torah will not be altered, and the Lord, blessed be He, will not issue another Torah-'
Based upon this principle, it is easy to understand why the Sages stood their ground and refused
to obey the heavenly voice that sided with R. Eliezer. The task of interpreting the Torah was given
to them; and any heavenly intervention therein would be equivalent to issuing a new Torah —
which, as Maimonides observes, would be contrary to an essential principle of Judaism.
The role of the prophet in the determination of the Halakhah is, therefore, the same as that
of any other halakhic authority:
When a prophet and one who is not a prophet both engage in legal reasoning, and the
prophet contends that God told him that his reasoning is correct, you shall pay no heed to
him. If 1000 prophets all of them as great as Elijah and Elisha — all agree on a particular
result to which their legal reasoning has led them, and 1001 halakhic authorities who are
not prophets are of the opposite opinion, "one must follow the majority": the law follows
the view of the 1001 authorities who are not prophets, and not that of the 1000 distinguished
prophets.14
[C] Human Error in Rendering Judgments: Asheri, Piskei ha-Rosh, Sanhedrin, ch.
4, #6
The exclusive authority of the Jewish court — despite its human fallibility — to decide legal
issues and to interpret the law is a major factor both in the court's autonomy and in its authority
to adjudicate. This authority includes the right, and even the duty, to reconsider issues previously
decided, even though the caliber of the judges may have declined since the earlier decision.
An illuminating application of this principle may be found in the following passage from the
Talmud and the commentary by Asher b. Jehiel (known as Asheri), a German and Spanish halakhic
authority of the second half of the thirteenth and the beginning of the fourteenth centuries. The
Talmud in Tractate Sanhedrin (TB Sanhedrin 33a) states:
If the judge erred concerning a law of the Mishnah, the judgment is set aside; if, however,
he erred in the determination of a disputed point of law (shikkul ha-da'at), the judgment may
not be set aside.
In commenting upon this passage, Asheri wrote (Piskei ha-Rosh, Sanhedrin, ch. 4, #6):
Ba al ha-Ma'or [Zerahiah ha-Levi Gerondi ("Rezah"), twelfth century, southern France],
of blessed memory, has written: T heard in the name of one of the great scholars of the
preceding generation that nowadays, there can be no 'error in the determination of a disputed
point of law, since all of the laws have been handed down to us in conclusory form, either
from the Talmud or the geonim [i.e., the Sages in the period immediately following the
redaction of the Talmud, in the sixth century C.E.].... Rather, every error made by a judge
is an error concerning a law of the Mishnah." I, however, do not agree with this view. Anyone
whose error cannot be definitively and explicitly ascertained from either the Mishnah or the
Talmud is not regarded to have erred concerning a law of the Mishnah; rather, it is considered
an error in the determination of a disputed point of law.
14 Maimonides, Commentary on the Mishnah, Introduction.
CH. 2 LAW AND RELIGION • 23
It is interesting to note that the Talmud itself (TB Sanhedrin 33a) has the following to say in
the continuation of the discussion of this matter:
What constitutes "the determination of a disputed point of law?" R. Papa said: "If, for
example, two tannaim [sages of the Mishnah] or amoraim [sages of the Gemara] disagree
with each other, and it has not been explicitly decided with whom the law rests, but the judge
ruled in accordance with one of them, while the general trend of the Talmudic discussion
follows the other, [the judgment may not be set aside]."
Rabad (Abraham b. David of Posquifcres, twelfth century, southern France), a staunch critic
of Maimonides, commented upon Ba'al ha-Ma'or's statement as follows (quoted in Piskei ha-Rosh,
supra):
That scholar [i.e., one of the great scholars mentioned by Zerahiah ha-Levi] was right.
If a judge erred on a point of law determined by the geonim because he did not know of
their decision, but if he had known, he clearly would have retracted his judgment, then the
judge has erred concerning a law of the Mishnah. I am inclined to say that even if he disagreed
with a ruling of a gaon for a reason of his own that is contrary to the rationale of the gaon,
his error is deemed to be one concerning a law of the Mishnah. This is so because we may
not disagree with the opinion of a gaon and reach a different result based on our own reasoning
unless there is a well known difficulty with the gaon's opinion — and this is not normally
the case.
After Asheri reviewed the opinions of Ba'al ha-Ma'or and Rabad on this fundamental and
important issue, he expressed his own position on the matter:
I say that certainly, whoever has erred in failing to follow the decisions of the geonim
as a result of ignorance of their views, and then accepted the geonic decision as being correct
when it was called to his attention, has committed the equivalent of an emor on a law of
the Mishnah; and it goes without saying that this is true not only for such error in matters
decided by the geonim but also in matters decided by the authorities in all succeeding
generations, who, after all, are not simply reed-cutters in a bog [i.e., they are not ignorant
and untutored]. In all these cases, if an authority has rendered a decision contrary to earlier
views, and upon being made aware of the earlier rulings, accepts those rulings as being correct
and acknowledges that he erred, it is as if his error concerns a matter contained in the Mishnah,
and he must retract his decision.
However, if he disagrees with the earlier opinions and brings proof for his position
acceptable to his contemporaries, then Jephthah in his generation has as much authority as
Samuel in his generation15 — at any given time, there is only "the judge of that time," and
he may choose not to follow the views of his predecessors. For as to all questions that were
not definitively decided in the Talmud as compiled by R. Ashi and Ravina, one may "demolish
and create" even to the point of disagreeing with the views of the geonim.
15 As recounted in Judges 11:1-12:7, Jephthah, the son of a prostitute, was a judge of Israel who successfully repelled
an invasion of the Ammonites. As a vow of thanksgiving, Jephthah promised to sacrifice to the Lord whatever would
first come out of his house to greet him upon his triumphant return. As it turned out, it was his daughter that first
came out to meet him, and Jephthah was forced to keep his solemn vow.
Jephthah was considered among the less distinguished of those who held the position of judge of Israel. Nevertheless,
once having been so appointed, he was considered no less worthy than anyone else who had held the position.