The Talmud and the Constitution

This post is about similarities between the development of Jewish law and American law.

A story is recounted in the Babylonian Talmud, which I am going to paraphrase slightly for clarity:

Rabbi Yehudah said, “Rav (Abba Aricha) said, “When Moses ascended Mount Sinai, up to the heavens, to receive the Biblical law, he found God sitting and adding calligraphic flourishes (crowns) to the letters.

Moses said,”Master of the Universe! Why are you going so slowly? Why aren’t you finished?”

God said to him, “Many generations from now, Akiva the son of Yosef will expound on every calligraphic detail to teach piles and piles of laws.”

Moses said, “Master of the Universe! Show him to me,” so God told him to turn around, and a vision of Rabbi Akiva teaching his students appeared. Moses went and sat in the back row, but the teaching style was so intellectual that he did not understand what they were talking about and got upset.

Then one of the students asked Rabbi Akiva, “Our teacher, where did you learn this law?”

Akiva replied, “It is from a law that was taught to Moses at Sinai.”

So Moses calmed down. He returned and came before the Holy One, Blessed be He, and said before Him, “Master of the Universe! If you have a man like this, why are you are giving the Torah through me?”

But God only replied, “Be silent. This is what I have decided.”””

2,000 years ago, when Yeshua of the house of David still walked the Earth, rabbinic Judaism–the Judaism you’ll find if you walk into any synagogue–did not fully exist.* The Judaism of Roman Judea was a temple cult, centered on the great Temple in Jerusalem (though there were others, in Turkey, Greece, Egypt, and of course, Samaria.) Ordinary Jews went about their business–raising crops, tending goats, building tables, etc–and every so often they visited the Temple, bought or brought an offering, and had the priest sacrifice it.

*Note: See the comments for a discussion of continuity between Pharisaic Judaism and Rabbinic Judaism. I am not arguing that Rabbinic Judaism was invented whole cloth.

69 AD, also known as the Year of the Four Emperors, was particularly bad for the Roman Empire. Galba seized power after Nero‘s suicide, only to be murdered on January 15 in coup led by Otho. Emperor Otho committed suicide on April 16 after losing Battle of Bedriacum to Vitellius. Vitellius was murdered on December 20 by Vespasian‘s troops.

Meanwhile, Judea was in revolt. In 70 AD, Vespasian’s son (and successor) Titus besieged Jerusalem, crushed the rebellion, and razed the Temple.

Without the Temple–and worse, scattered to the winds–what was an ordinary Jew supposed to do? Where could he take his sacrifices? How was he supposed to live in this new land? Could he visit a bath house that had a statue of Aphrodite? Could he eat food that had been sold beside non-kosher meat?

The Bible has 613 laws for Jews to follow, but do you know how many laws you live under?

I once did a research project on the subject. I found that no one knows how many laws there are in the US. We have federal, state, county, and city laws. We have the code of federal regulations, containing thousands of rules created by unelected bureaucrats within dozens of agencies like the EPA, which is enforced exactly like laws. We have thousands of pages of case law handed down by the Supreme Court.

It’s one thing to live in an organic community, following the traditions handed down by your ancestors. Then perhaps 613 laws are enough. But with the destruction of the Temple, Judaism had to adapt. Somehow they had to get a full body of laws out of those measly 613.

Enter the Rabbi Akiva (also spelled Akiba or Aqiba) and his calligraphic flourishes. By examining and re-examining the text, comparing a verse from one section to a similar verse to another, groups of rabbis (teachers) and their students gradually built up a body of laws, first passed down orally (the Oral Torah,) and then written: the Talmud.

For example, the 5th Commandment says to Remember the Sabbath Day, but how, exactly, are you supposed to do it? The Bible says not to “work” (or so we translate it,) but isn’t a rabbi preaching his sermon on Saturday working? To clarify, they look to the next verse, “For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it.” (Exodus 20:11) and declare that “work” here refers to creative work: building, writing, sewing, sowing, reaping, carrying (materials for creative work), building fires, or inversely, putting out fires, knocking down buildings, etc. Merely giving a speech–even if you get paid for it–is not work. (Though you can’t accept the payment on Saturday.)

The word for “work” in the Bible, transliterated as “melachah,” is further interpreted as related to “melekh,” king, relating it back to God (the King)’s work. Melachah is not found very often in the Bible, but shows up again in Exodus 31, during a discussion of the work done to build the Ark of the Covenant [which is not actually a boat] and various related tents–a discussion which is suddenly interrupted for a reminder about the Sabbath. From this, it was reasoned that work specifically mentioned in the first part of the passage was what was prohibited in the second part, and therefore these were among the specific varieties of work forbidden on Shabbat.

If a suitably similar verse could not be found elsewhere in the text to explicate an inadequate passage, rabbis found other ways of decoding God’s “original intent,” including gematria and the aforementioned calligraphic flourishes. Hey, if God wrote it, then God can encode messages in it.

Which gets us back to the story at the beginning of the post. Note how it begins: The Talmud says that Rabbi Yehudah said, “Rav said… ‘Moses said…'” This is a written account of an oral account passed from teacher to student, about a conversation between Moses (recipient of the Torah or first five books of the Bible from God and recipient of the Oral Torah, which was just how everyone lived,) about the transformation from Mosaic Judaism, centered on the Temple and lived tradition, to Rabbinic Judaism, centered on repeated reading and interpretation of the holy text, which contains in it all of the things that used to just be part of everyone’s traditions.

The result, of course, was the Talmud–or rather multiple Talmuds, though the Babylonian is the most commonly cited. The Vilna Edition of the Babylonian Tamud runs 37 volumes, and looks like this:

The inner section is a passage from the original Talmud. The inner margin is Rashi (a famous rabbi)’s commentary, the outer margin is additional commentary from other famous rabbis, and around the edges you can see marginalia from even more rabbis.

Like an onion, it is layer upon layer upon layer.

But what authority do the rabbis have to make pronouncements about the law?

The Talmud recounts an amusing argument about whether an oven could be purified:

The Sages taught: On that day, when they discussed this matter, Rabbi Eliezer answered all possible answers in the world to support his opinion, but the Rabbis did not accept his explanations from him.

After failing to convince the Rabbis logically, Rabbi Eliezer said to them: If the halakha is in accordance with my opinion, this carob tree will prove it. The carob tree was uprooted from its place one hundred cubits, and some say four hundred cubits.

The Rabbis said to him: One does not cite halakhic proof from the carob tree.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, the stream will prove it. The water in the stream turned backward and began flowing in the opposite direction.

They said to him: One does not cite halakhic proof from a stream.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, the walls of the study hall will prove it. The walls of the study hall leaned inward and began to fall.

Rabbi Yehoshua scolded the walls and said to them: If Torah scholars are contending with each other in matters of halakha, what is the nature of your involvement in this dispute?

The Gemara relates: The walls did not fall because of the deference due Rabbi Yehoshua, but they did not straighten because of the deference due Rabbi Eliezer, and they still remain leaning.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, Heaven will prove it.

A Divine Voice emerged from Heaven and said: Why are you differing with Rabbi Eliezer, as the halakha is in accordance with his opinion in every place that he expresses an opinion?

Rabbi Yehoshua stood on his feet and said: It is written: “It is not in heaven” (Deuteronomy 30:12).

The Gemara asks: What is the relevance of the phrase “It is not in heaven” in this context?

Rabbi Yirmeya says: Since the Torah was already given at Mount Sinai, we do not regard a Divine Voice, as You already wrote at Mount Sinai, in the Torah: “After a majority to incline” (Exodus 23:2). Since the majority of Rabbis disagreed with Rabbi Eliezer’s opinion, the halakha is not ruled in accordance with his opinion.

The Gemara relates: Years after, Rabbi Natan encountered Elijah the prophet and said to him: What did the Holy One, Blessed be He, do at that time, when Rabbi Yehoshua issued his declaration?

Elijah said to him: The Holy One, Blessed be He, smiled and said: My children have triumphed over Me; My children have triumphed over Me.

So say the rabbis!

(you might be thinking, “Didn’t Elijah live a long time before the rabbis?” But since Elijah was taken up in whirlwind he never died, and thus may still be encountered.)

The importance of this little bit of Talmudism–in my opinion–is it lets the rabbis modify practice to avoid parts of the Bible that people don’t like anymore, like stoning adulterers. Sure, they do so by legalistically telling God to buzz off, they’re interpreting the law now, but hey, “Israel” means “wrestled with God“:

So Jacob was left alone, and a man wrestled with him till daybreak. … Then the man said, “Let me go, for it is daybreak.”

But Jacob replied, “I will not let you go unless you bless me.” …

Then the man said, “Your name will no longer be Jacob, but Israel,^[a] because you have struggled with God and with humans and have overcome.” (Genesis 32: 24-28)

Arguing with God. It’s a Jew thing.

The downside to all of this is that the Talmud is SUPER LONG and gets bogged down in boring legal debates about EVERYTHING.

Every so often, a group of Jews decides that all of this Talmud stuff is really too much and tries to sweep it away, starting fresh with just the Laws of Moses. Karaite Jews, for example, reject the Talmud, claiming instead to derive all of their laws directly from the Bible. They have therefore written several hundred books of their own interpreting Biblical law.

Hasidic Judaism was founded by the Baal Shem Tov, a rabbi who (according to his followers) emphasized the importance of having a “spiritual connection” to God (which even poor Jews could do) over legalistic arguing about texts, (which a rich atheist could do but not a poor man.) Today, Hasidic Jews are prominent among the Orthodox Jews who actually care about extensive, strict interpretation and implementation of Jewish law.

It’s not that reform is worthless–it’s just that the Bible doesn’t contain enough details to use as a complete legal code to govern the lives of people who no longer live in the organic, traditional community that originally produced it. When people lived in that community, they didn’t need explicit instructions about how to build a sukkah or honor the Sabbath day, because their parents taught them how. Illiterate shepherds didn’t need a long book of legal opinions to tell them how to treat their guests or what to do with a lost wallet–they already learned those lessons from their community.

It’s only with the destruction of the Temple and the expulsion of the Jews from Judea that there comes a need for a written legal code explaining how, exactly, everything in the culture is supposed to be done.

Okay, but what does all of this have to do with the Constitution?

As legal documents go, the Constitution is pretty short. Since page size can vary, we’ll look at words: including all of the amendments and signatures, the Constitution is 7,591 words long.

The Affordable Care Act, (aka Obamacare,) clocks in at a whopping 363,086 words, of which 234,812 actually have to do with the law; the rest are headers, tables of contents, and the like. (For comparison, The Fellowship of the Ring only has 177,227 words.)

Interestingly, the US Constitution is both the oldest and shortest constitution of any major government in the world. This is not a coincidence. By contrast, the Indian Constitution, passed in 1949, is 145,000 words long–the longest in the world, but still shorter than the ACA.

People often blame the increasing complexity of US law on Talmudic scholars, but I think we’re actually looking at a case of convergent evolution–the process by which two different, not closely related species develop similar traits in response to similar environments or selective pressures. Aardvarks and echidnas, for example, are not closely related–aardvarks are placental mammals while echidnas lay eggs–but both creatures eat ants, and so have evolved similar looking noses. (Echidnas also look a lot like hedgehogs.)

US law has become more complex for the same reasons Jewish law did: because we no longer live in organic communities where tradition serves as a major guide to proper behavior, for both social and technical reasons. Groups of people whose ancestors were separated by thousands of miles of ocean or desert now interact on a daily basis; new technologies our ancestors could have never imagined are now commonplace. Even homeless people can go to the library, enjoy the air conditioning, log onto a computer, and post something on Facebook that can be read, in turn, by a smartphone-toting Afghan shepherd on the other side of the world.

The result is a confused morass. Groups of people who don’t know how to talk to each other have degenerated into toxic “call-out culture” and draconian speech codes. (Need I remind you that some poor sod just lost his job at Google for expressing views backed by mountains of scientific evidence, just because it offended a bunch of SJWs?) Campus speech codes (which infringe on First Amendment rights) are now so draconian that people are discussing ways to use a different set of laws–the Americans with Disabilities Act–to challenge them.

Even the entry of large numbers of women into colleges and the paid workforce (as opposed to unpaid labor women formerly carried out in homes and farms) has simultaneously removed them from the protective company of male relatives while bringing them into constant contact with male strangers. This has forced a massive shift both in social norms and an increase in legal protections afforded to women, whom the state now protects from harassment, “hostile work environments,” rape, assault, discrimination, etc.

Without tradition to guide us, we try to extrapolate from some common, agreed upon principles–such as those codified in the Constitution. But the Constitution is short; it doesn’t even remotely cover all of the cases we are now trying to use it to justify. What would the founding fathers say about machine guns, nuclear missiles, or international copyright law? The responsibilities of universities toward people with medical disabilities? Medications that induce abortions or unionized factory workers?

The Constitution allows Congress to grant Letters of Marque and Reprisal–that is, to officially commission pirates as privateers, a la Sir Francis Drake, private citizens allowed to attack the boats of (certain) foreign nations. But Letters of Marque and Reprisal haven’t actually been granted since 1815, and the practice has been out of favor among European governments since 1856. Like stoning, privateering just isn’t done anymore, even though it is technically still right there in the Constitution.

By contrast, the Supreme Court recently ruled that the Constitution says that the states have to issue gay marriage licenses. Whether you agree with gay marriage or not, this is some Rabbi Yehoshua, “It is not in heaven,” level reasoning. I’m pretty sure if you raised the Founding Fathers or the authors of the 14th Amendment from the dead and ask their ghosts whether the Constitution mandates gay marriage, they’d look at you like you’d just grown a second head and then call you crazy. Gay sex wasn’t just illegal in every state, it was punishable by execution in several and Thomas Jefferson himself wrote a bill for the state of Virginia which penalized it via castration.

But “living constitution” and all that. A majority of modern Americans think gay marriage should be legal and don’t want to execute or dismember homosexuals, so society finds a way.

It’d be more honest to say, “Hey, we don’t really care what people thought about gay marriage 200+ years ago; we’re going to make a new law that suits our modern interests,” but since the legitimacy of the whole legal edifice is built on authority derived from the Constitution, people feel they must find some way to discover legal novelties in the text.

Like a man trying to fix a broken fence by piling up more wood on it, so American law has become an enormous, burdensome pile of regulation after regulation. Where traditions can be flexible–changing depending on human judgment or in response to new conditions–laws, by nature, are inflexible. Changing them requires passing more laws.

The Talmud may be long, but at least I can eat a bacon cheeseburger on leavened bread on a Saturday during Passover with no fear of going to jail. Even Israelis aren’t significantly restricted by Talmudic law unless they want to be.

By contrast, I can be put in prison for violating the endlessly complex US law. I could spend the next ten pages recounting stories of people fined or imprisoned for absurd and trivial things–bakers fined out of business for declining to bake a gay wedding cake, children’s lemonade stands shut down for lack of proper permits, teenagers imprisoned and branded “sex offenders” for life for having consensual sex with each other. Then there’s the corporate side: 42% of multi-million dollar patent litigation suits that actually go to court (instead of the parties just settling) result in the court declaring that the patent involved should have never been granted in the first place! Corporate law is so complex and lawsuits so easy to bring that it now functions primarily as a way for corporations to try to drive their competitors out of business. Lawsuits are no longer a sign that a company has acted badly or unethically, but merely a “cost of doing business.”

How many businesses never get started because the costs of regulation compliance are too high? How many people never get jobs as a result? How many hours of our lives are sucked away while we fill out tax forms or muddle through insurance paperwork?

Eventually we have to stop piling up wood and start tearing out rotten posts.

 

PS: For more information on the development of Rabbinic Judaism, I recommend Visotzky’s Aphrodite and the Rabbis: How the Jews adapted Roman Culture to Create Judaism as we Know it.