Precedents all the way down: halakha as a common law system (part 5)
The origins of precedent in halakha (Second Temple period to Hazal)
In my last post I made the case that the canonical texts of the Oral Torah1 were not endowed with the formal authority of a national court, which might make it seem like Jewish law stands on shaky foundations. However, this is only so when viewed through a strictly positivist lens, one which sees law narrowly as commands issued by a sovereign individual or body. To halakha, like common law, this assumption is somewhat alien. Instead, the halakhic conception of law is centred around precedent, a complex body of law not neatly sortable or translatable into codes.
The role of precedent in halakha originates in the oral tradition of Judaism, which originally relied fully on the oral transmission from generation to generation by word of mouth. The legal epistemology of halakha was therefore based fundamentally not on formal authority but on epistemic authority, deriving from one having received the authentic tradition. The role of the Sanhedrin and the Sages, in the main, was not to lay down the law but to transmit, preserve, and teach it to the nation.2 The same motivation lay behind the increasing composition and compilation of oral texts in the centuries following the destruction of the Temple: not to codify halakha or set it in stone, but to preserve and transmit it more effectively. Ultimately, this textualisation would contribute to an informal stratification of halakha through rabbinic consensus which invested many resolutions of previous disputes with a high degree of conventional authority.
Mesorah and derasha: the ancient epistemologies of halakha
To understand the role of precedents in halakha, it is important to consider the history of the Oral Law. Before the composition of the Mishna, it was passed down through the generations by word of mouth. Without a set text, either oral or written, how was the law to be known and determined? The way the law on any given subject was known was, first and foremost, by receiving it as a tradition from a reliable source such as an ordained rabbi or a student (i.e. an oral precedent) or observed from the actions of such a person or from widespread common practice (ma’ase rav and minhag, respectively, both which are examples of practical precedents). Halakha as a whole functioned through mesorah (oral tradition; lit. transmission)—from teacher to student, from father to son. ‘Appeals’ to the Sanhedrin probably did not function like modern appeals in judicial cases but as requests for information from the mesorah, of which they were the ultimate repository. If one of the sages there had received a tradition on a relevant point of law, it would be transmitted to the appellants; only if no-one knew, or if different stated traditions conflicted, would there be any cause to vote on the matter. Of course, as stated in the previous post, courts can legislate as well, and so, additions (and, on rare occasions, subtractions) were made to the law as a matter of positive law. But the content of these decrees were known and determined through the same channels of mesorah as all other sources of law.
Thus, the origin of the concept of precedent in halakha is in the system of oral transmission. Each transmission is a kind of testimonial evidence of what the oral law says, not too differently to how Blackstone3 describes judicial rulings as ‘the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.’ Law can then be developed from precedents through the application of analogical reasoning, admittedly not in ways which differ among legal systems. In halakha, some of the most prominent tools are the diyyuk (דיוק) and the thirteen principles of interpretation listen in the Barayta deRabbi Yishmael. Not all principles in this list apply to expansion of oral precedents, but a fortiori (קל וחומר) arguments certainly are used in this way, which is very common.
Undoubtedly, not all ‘precedents’ were oral. Hazalic literature contains many examples of using the miqra (written canon) not just as sources for commandments and their details, but more as examples which could be used as evidence for concepts and doctrines in the law not otherwise spelled out in the written Torah. A powerful example is the doctrine of hefker beth din hefker—the principle that courts of law have the power to alienate property. This far-reaching principle is cited in both Talmudim (J. Shekalim 1:2, B. Yevamot 89b, Mo’ed Katan 16a) as deriving from the account in Ezra 10:7-8:
ויעבירו קול ביהודה וירושל͏ם לכל בני הגולה להקבץ ירושל͏ם: וכל אשר לא־יבוא לשלשת הימים כעצת השרים והזקנים יחרם כל־רכושו והוא יבדל מקהל הגולה:
Then a proclamation was issued in Judah and Jerusalem that all who had returned from the exile should assemble in Jerusalem, and that anyone who did not come in three days would, by decision of the officers and elders, have his property confiscated and himself excluded from the congregation of the returning exiles.
This example clearly uses the Biblical account as a precedent: the verses in question do not spell out details of the performance of a mitzvah, but simply describe past events, specifically, the instructions once issued by the national court. These verses are not written in the Torah, often seen as the only legitimate source for de’oraita commandments, nor do they appear in the Talmud as a mesorah about a derabbanan enactment. From a civil law perspective, one might have expected the Sages to straightforwardly cite Deuteronomy 17:11 (לא תסור) as the source of this authority, but instead they cite a precedent from Ketuvim as evidence of past practice. Undoubtedly, there was an oral tradition as well, but the written source helps legitimise it and anchor it in a fixed text which was widespread and familiar to many.
Other examples of the usage of precedents from Nevi’im and Ketuvim include halakhot regarding prayer (influenced by the stories of Hannah and Daniel), conversion (Ruth), tearing of clothes as sign of mourning (e.g. Kings II 2:12), and many more. As these examples suggest, tradition did not mean stasis. Successive generations kept developing the law by applying and extending older precedents to new cases—at times, in rather creative ways.
This process of development of the oral law cannot have been fully centralised. Hazalic literature records many divisions between the communities of Beth Hillel and Beth Shammai, covering issues running the full gamut from direct interpretation of the written Torah (M. Berakhot 1:3) to oral law definitions (M. Kiddushin 1:1) and rabbinic decrees (M. Hullin 8:1). It seems clear that many halakhic conclusions were reached and applied at the local level. Where that was the case, the Sanhedrin might sometimes have stepped in to centralise matters, but only when it was able to build a consensus, something in which the late Second Temple period was famously lacking. When the Sanhedrin reconvened in Yavne after the destruction, consensus-building may have become easier on some issues, but it is clear that factional disputes were still hard to overcome.
Hermeneutics, and their role in Biblical exegesis (midrash halakha or derasha), played a seemingly-growing role in development of the oral law during this period. Hermeneutics were applied to oral precedents as well as applied directly to the text of the Torah. The thirteen middot, diyyuk, and other methods of reasoning complemented mesorah by serving as a set of hermeneutic tools for extending precedents to resolve new questions. As a number of Talmudic passages suggest (e.g. B. Temurah 16a), at least one Hazalic view of hermeneutics is that it could be used to recover forgotten halakhot.4 In this perspective, derashot could complement mesorah and fill in the gaps left in it by the ravages of time and national catastrophes. This approach does not pretend to enact new understandings of the text by means of Sanhedrinal authority, instead using logical reasoning to reconstruct law which has been forgotten.
There were differences of opinion about the role hermeneutics could play in the halakhic process, not to mention the correct methodology to be used in the process (for example, whether it could be more creative or more conservative in considering existing precedents5). It seems that there may have been a period dominated by scepticism of derashot in favour of stricter reliance on mesorah. Both Talmudim (Y. Pesahim 6:1 and B. Pesahim 66a) relate the story of Hillel the Elder being consulted by Benei Betheira, leading members of the Sanhedrin of that time, which had collectively forgotten the halakha regarding whether or not the Pesah sacrifice is still held when Pesah coincides with shabbat. As the Yerushalmi recounts the story, though Hillel expounded derashot at great length to prove that the Pesah sacrifice overrides Shabbat, Benei Betheira would not accept his arguments until he stated that he had received the teaching from Shemaya and Avtalion, the leading sages of the previous generation.6 Though they could (at least according to positivist logic) simply have made a binding ruling through the Sanhedrin, Benei Bethera show extreme deference to mesorah, requiring a precedent to accept a derasha. Now, this example probably over-emphasises the two extremes regarding hermeneutics—most probably took more nuanced views—but it clearly suggests that there were different approaches.7 Despite their sometimes decentralised evolution, some constraints on the use of hermeneutics became accepted by convention. For example, gezeira shawa would, by convention, always require a mesorah; a kal wahomer or din, it was agreed, could not be used as the basis for punishment.
These examples may make derashot seem original and disruptive, but frequently, they uphold existing practice rather than deriving new conclusions. Many (perhaps most) derashot that have found their way to us were not of the kind that produced halakha through novel interpretation of the text (דרשה יוצרת), but that derived a textual proof for existing practice (דרשה מקיימת).8 Take, for example, the derashot cited for the requirement that a sukkah must have at least three walls (B. Sukkah 6b), for some of the rules concerning ritual impurity from giving birth (Sifra Tazri’a), and many of the rules concerning meat and dairy (M. Hullin 8:4). It is difficult to suppose that these halakhot was truly learned from the Biblical text, as they are all textually somewhat far-fetched. Instead, they must either be Sinaitic traditions, or attempts to reverse-engineer a derivation from the text based broadly on traditional practice. Examples of competing derashot, such as those defining the appropriate time for tefillin (B. Menahot 36b), show clearly that at least some derashot come from the latter category.
Derashot furthered statutory interpretation, but also had the didactic role of integrating together the written and oral traditions as a way of teaching and preserving their memory more effectively. Concepts from one area of law are often borrowed from other areas and Torah passages which are not obviously related. These are linked through exegesis.9 For example, in B. Kiddushin 2a, Hazal describe different means of effecting betrothal. Instead of describing new parameters of a third method of producing marriage, they copy the concept from elsewhere, linking them together conceptually. Instead of each law being described in detail, they are delineated through hermeneutical comparison. The grounding of these comparisons in the text (each derasha is associated with a pasuk) helps preserve the outline of the conceptual web, with the details retrievable through application of simple hermeneutics.
After the destruction, the mesorah would evolve by the advent of textualisation. However, the foundations of the oral law remained the same: precedents (oral, written, and practical) serving as evidence of the content of halakha, whatever the specific status of that halakha (e.g. statutory interpretation or rabbinic decree, national or local, etc.), while derashot and hermeneutics generally would continue to serve as tools to extend those precedents and ‘recover’ lost halakha. What would change would chiefly be the means of transmission, with fixed (oral) texts taking an ever more central role.
Textualisation of the Oral Tradition
During the Tannaitic era, sometime after the destruction, as a group of Sages perceived much of the Oral Law as being in danger of being forgotten, they began recording it in the form of fixed oral compositions. Like earlier transmissions of oral Torah, these compositions were not ‘law’ in themselves except in the sense of precedents constituting evidence of the oral law. These ancient halakhot came to be compiled (and, in a process starting a few centuries later, written down), starting with the Mishna. This process of textualisation transformed much of the oral law into a body of texts—Hazalic literature. These texts record points of law together with disputes and hermeneutical analysis. Frequently, laws are stated not by general statement of the rule but by examples—not strictly of case law, but usually instead by using abstract, pseudo-real examples (consider the example of building a sukkah on a camel—M. Sukkah 2:3).
In these texts, it is sometimes hard to tell what the origin was of any given halakha: did a textualising tanna or amora introduce it, or did it originate earlier? Did it originate with an ancient mesorah or a decision of the Sanhedrin or, alternatively, with a local rabbi or court or haburah (study group), emerging as wider consensus through an informal, decentralised process? Typically, they will simply name a single sage who transmitted a teaching, sometimes in the name of an earlier sage, but any earlier links of the chain are lost to history. Whether or not this was Hazal’s intention, the oral law, as they transmitted it to posterity, remained as it probably always had been: a body of law made of many strands melded together by the drifts of time and the transience of human memory. Its authority rests less on the personal or institutional authority of the transmitters and more on the long, immemorial, chain of transmission and legal development preceding them and ultimately linking them with Sinai.10 Compare Blackstone, writing on the common law:
I therefore stile these parts of our law leges non scriptae [unwritten law], because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws by long and immemorial usage, and by their universal reception throughout the kingdom.
The textualisation of the oral law gave halakha a new anchor. Previously, the mesorah had probably been stabilised by the centralised Jewish practice around the Temple, by the geographic concentration of the sages in and around Jerusalem and by the long continuity of Jewish practice in the area. With the destruction of the Temple and Jerusalem, these had all largely or entirely disappeared. The composition of oral texts preserved halakhic materials and provided a new kind of stability. Introducing a kind of ‘paper trail’ into the halakhic process could counteract knowledge being lost or corrupted unintentionally, an effect bolstered by teaching the new texts widely and methodically. Gradually, this development would lead to greater standardisation around a specific set of precedents. However, this happened through a relatively pluralistic process which sought to reach conclusions through consensus-decision making, and where differences in opinion remained, they were often integrated into the texts.
Earlier methods of transmission were gradually reduced in importance, but they were not replaced. Oral texts couldn’t be comprehensive, and were not meant to be—their aim was to anchor learning and preserve key halakhic principles. However, textualisation favoured the hardening of conventions—various doctrines and other points of halakha enjoying universal consensus—which were written into those oral compositions. Halakha had always known conventions, but previously they were not fixed or uniformised (at least, not at such a scale) in either oral or written form.
The formation of hierarchies of informal authority
As major parts of halakha became textualised, points of halakha on which consensus existed were recorded in oral compositions (halakhot) without dissents or disputes (or with a clear indication of which side is to be followed). This consensus formation strongly contributed to the development of conventional authority. Hence, explicit halakhot (i.e., halakhic statements recorded without dissents) as well as those recording a clear majority and minority (such as in the format of יחיד ורבים—one vs. a majority)11 often represented some degree of rabbinic consensus, and inclusion in the Mishna represented a particularly high level of consensus.
However, the relationship between textualisation and halakhic authority is more complex than simply the degree of clarity in a given Mishna, Tosefta, or other halakhic text. Each was a contribution to the discussion or at most an attempt to sum it up, not the final word. In other words, the composition of texts happened in parallel with a process of consolidation of consensus on various points of halakha. Often, texts were composed or compiled in an attempt to resolve a halakhic question, though consensus was not yet complete, or only local. Meanwhile, sometimes disputes were recorded as such during early stages of consensus-building and were preserved in that form even after consensus had resolved the issued, the resolutions being recorded as addenda to the original halakha or as general rules recorded elsewhere—Beth Shammai and Beth Hillel disputes being the most prominent and widespread example.
How were disputes resolved? Initially, while a dispute was still live, the choice of precedent was largely a matter of applying one’s own judgement. There was, however, a conventional understanding that this was not a blank cheque to follow whichever side one favoured in each dispute, which could lead to adopting contradictory halakhic positions in different issues. Instead, the favoured method was to follow one approach consistently (Y. Yevamot 1:6; see also T. Sukkah 2:3, B. Eruvim 6b):
כל־הרוצה להחמיר על עצמו לנהוג כחומרי בית שמי וכחומרי בית הלל על זה נאמר והכסיל בחושך הולך. כקולי אילו ואילו נקרא רשע. אלא או כדברי בית שמי כקוליהם וכחומריהן או כדברי בית הלל כקוליהם וכחומריהן
One who wishes to act in accordance with the opinion of Beit Shammai may do so, and one who wishes to act in accordance with the opinion of Beit Hillel may do so. If he wishes to adopt both the leniencies of Beit Shammai and also the leniencies of Beit Hillel, he is a wicked person. And if he wishes to adopt both the stringencies of Beit Shammai and also the stringencies of Beit Hillel, with regard to him the verse states: “The fool walks in darkness” (Kohelet 2:14). Rather, he should act either in accordance with Beit Shammai, following both their leniencies and their stringencies, or in accordance with Beit Hillel, following both their leniencies and their stringencies.
In many disputes, consensus would slowly emerge on the correct ruling. Consensus could be articulated as a resolution (הכרעה) in a particular dispute or a broader rule of pesak: a rule identifying how to decide a range of possible disputes, for example which named sage is to be followed in any recorded dispute with another sage (e.g. הלכה כר’ עקיבא מחבירו). Hazalic texts record many (attempted) resolutions with different levels of consensus, from statements by individual sages that the halakha follows so-and-so to attestations of formal votes being held on the subject. Resolutions recorded in Hazalic texts are sometimes a decision of the Sanhedrin, but were mostly the result of consensus reached largely informally and more gradually than a Sanhedrin ruling. The gradual consensus-building process was punctuated by more formal (though not necessarily national) decisions and textual compilations (most notably, that of the Mishna), which partly reflected a high existing level of consensus around many halakhot but also entrenched their conventional authority for the future.
The compilation of the Mishna was perhaps the most important chapter of consensus-building. It was perhaps the most centralised attempt to sum up existing halakha, and certainly the most influential. Using existing halakhot as raw materials, it preserved many disputes (some of them live, others already obsolete), recorded many points of consensus which had been reached, but also attempted to resolve various disputes in the same way as previous compositions, by recording them in explicit terms. This doesn’t mean consensus existed or resolution was actually achieved; the Talmudim are replete with examples of Sages who explicitly or implicitly challenge the stam Mishna. But even where consensus was less universal at the time it was compiled, the Mishna generally served as a foundation for subsequent consolidation of agreement. The fixing of the Mishnaic text thus gave the explicit positions recorded in it a very high degree of conventional authority, although it would continue to compete with other compositions (baraytot), as the Talmudim demonstrate. Though the Mishna itself seems to have continued being edited after its compilation, subsequent editing was undoubtedly relatively limited in scope. Ultimately, it would halt completely, while the broader consensus-formation process continued.
How authoritative was such a halakhic consensus? If consensus existed on a given point of halakha, would anyone have any discretion to rule differently? Only a few Hazalic sources discuss this question explicitly. Most notably, both Talmudim discuss what kind of court ruling in financial cases constitutes a mistake liable to be revoked by another court. Yerushalmi Ketubot 9:2 relates a dispute between R. Lakish and R. Yohanan. Though they are in agreement that a mistake in a Torah matter (דבר תורה) is to be revoked, while a mistake in deliberation (שיקול הדעת) is not revoked, R. Lakish also holds that a mistake in a matter of Mishna (devar mishna—דבר משנה) must also be revoked, but R. Yohanan disagrees.
Though ‘devar mishna’ is generally defined as something explicit in a Hazalic source, the example referred to in the sugya (which relates a case actually voided by R. Lekish) involves not an explicit Mishna but a dispute between R. Akiva and R. Tarfon. This dispute was resolved by a later rabbinic consensus on which sage ought to be followed in such a dispute, namely הלכה כרבי עקיבא מחבירו—the halakha follows with Rabbi Akiva in his disputes with a peer. Thus, some rules of pesak are seen here as being included in ‘devar mishna’ though not included in the text of the Mishna itself. Note also that the next layer, that of ‘deliberation’ or shikul hada’at is not necessarily seen as within the full discretion of the judge in deciding which precedent to follow—there is such a thing as a ‘mistake’ in this category of law. As R. Papa suggests (B. Sanhedrin 6a), this is where no explicit resolution has been reached, but there is a common practice or tendency which ought to be given preference.12
Starting in the Bavli, we see a set of views which both endow devar mishna with more authority, and greatly expands the bounds of this category of law. The parallel sugya in the Bavli, Ketubot 84a rejects the interpretation that R. Lakish and R. Yohanan differ with regards to revoking mistakes in devar mishna, instead taking their disagreement as being about the details of the rule of pesak involved, or the standing of R. Akiva relative to R. Tarfon, or as to whether the rule in question had truly been established as a devar mishna. The Bavli assumes that both sages see devar mishna as binding, with any ruling which errs in it is no ruling at all, i.e., it is void. Indeed, Bavli consistently sees devar mishna as binding over courts (B. Sanhedrin 6a, 33a), although in some cases an apparent devar mishna is subject to the dispute of whether or not a ruling is void if it did not follow the majority view (e.g. ibid, B. Bava Bathra 124b).
Though neither Talmud’s discussions give a very clear definition of devar mishna, the Bavli adds to this ambiguity by greatly adding to the list of sources which fall under this category. In B. Sanhderin 33a, it records an exchange between Ravina and R. Ashey suggesting that devar mishna should be understood as further extending to the Tosefta, to statements of Rav and Shmuel, as well as statements of later heads of the Babylonian academies. How this jumble of sometimes conflicting sources is to be applied is left unclear, especially when the Bavli defines shikul hada’at as an unresolved dispute. Presumably, only statements where there is no conflicts between these sources are to be seen as devar mishna—although, as we’ve already seen, this definition is not always accurate even in identifying devar mishna in the Mishna itself. More likely, the Babylonian Amoraim were simply assuming the continuation of mesorah, carried forwards and gradually clarified by rabbinic consensus-building. In this tradition, certain voices (such as explicit and stam statements compiled in the Mishna or Tosefta, or the positions of Rav and Shmuel) carry more weight than others, but none is necessarily the final word in a formally authoritative sense.
By the end of the Hazalic period, the transmission of halakha had undergone evolution from a relatively fluid mesorah to one of increasingly fixed texts. These fixed texts increasingly embodied conventional authority founded on rabbinic consensus. Nonetheless, it remained a fully oral tradition, and retained the twin epistemologies of mesorah (in which precedents serve as evidence of the ancient halakha) and derasha (in which hermeneutics can serve to extend known precedents and recreate lost halakha). The main role of oral compositions was to efficiently and effectively preserve existing halakhic teachings. Their recorders and compilers, though they may have aimed at achieving greater halakhic uniformity through their texts, far from extinguished the role of halakhic contestation and debate. And that debate, recorded most prominently in the Talmudim, would continue on a similar basis, using precedents as evidence of the ancient halakha.
During the next era of halakhic development, the mesorah would transition to the written word. This new medium, as well as the increasing disconnect between halakhic practitioners and the historic context in which the halakhic compositions in question had been composed, would have significant consequences on how these texts were understood and interpreted. Writteness would foster a clearer divide between the canonical and extra-canonical as well as the further growth of sources accorded conventional authority. To some extent, these developments were connected with halakhic theories which might be described as positivist. As I will argue, however, though these notions became widespread, their displacement of older conceptions would be incomplete at best.
Especially Talmud, but likely even the Mishna.
As we’ll see, there was certainly a role for legal creativity, but it also derived or borrowed from precedents; it largely complemented rather than competed with the main channel of oral transmission.
Blackstone, Commentaries on the Laws of England: Of the Laws of England
Subject, of course, to the ongoing process of contestation and debate, which serve as sanity checks to ensure the soundness of hermeneutical derivations.
this is part of the difference between Beth Hillel and Beth Shammai, or the schools of Rabbi Akiva and Rabbi Yishmael. See Koppel 1997, Meta-halakha p199
The full story is immediately followed by the teaching (from R. Zeˋira in the name of R. Eleazar): any teaching which has no pedigree is no teaching.
The next part of the story, however, is the same in both—when Hillel the Elder is asked about how to bring the Pesah sacrifice without violating the prohibition on carrying in the public domain, he does not know, and suggests to wait and see what the people will do (‘they may not be prophets, but they are the sons of prophets’). Upon witnessing the people’s solution to the problem, Hillel states he now remembers that this was the halakha he had received from Shemaya and Avtalion.
Or, more traditionally, we might say these derashot are of Sinaitic origin. With most of these, it may be impossible to know, though it seems more in line with the growing role of midrash halakha to say that most, at least, are original derashot derived from the practical precedents.
I thank Eliezer Graber for highlighting this point and example to me on the Habura chat.
Even among those halakhot (oral law) attributed to Moshe it is not entirely clear what came from God (and therefore de’oraita) and what was enacted on his own authority (and derabbanan).
As reflected in the opinions in Eduyyot (M. 1:6, T. 1:4) which hold that dissenting views were included only to be dismissed.
Fascinating stuff! A bit wordy though :)
Do you (plan to) write in Hebrew as well?