E - Law in Formation: Religious Perspectives

14 Law as a Problematic Aspect of Religion Paul’s Skepticism in a Broader Jewish Context

Serge Ruzer

I Introduction

In his pioneering studies, E. P. Sanders described late Second Temple Judaism as “covenantal nomism” in the sense that while the demands of the law as derived from the Torah constitute a core element of the covenantal relationship between God and Israel, the covenant is not exhausted by its law-centered aspect. It includes additional foundational components like election, God’s faithfulness, his mercy, and mechanisms of atonement and reconciliation. As the title of his book where the term was first introduced indicates,¹ it is in conversation with views found in the epistles of Paul, penned mostly during the 50s of the first century CE, that the scholar was able to portray this more nuanced picture of the contemporaneous Judaism. No wonder – Paul, a member of the nascent Jesus movement, a messianic offshoot of broader Judaism, provides many examples of coping with the law-centered tenets of religion juxtaposed to those of God’s mercy revealed in messianic redemption. This chapter attempts to further clarify certain aspects of Sanders’ important intuition.

Paul uses extensively the term nomos (law) with a variety of meanings: sometimes this may refer to a universal law, archetypal law of the cosmos, which, as already the Hellenistic Jewish second-century BCE Letter of Aristeas argued, essentially overlaps with the law revealed in the Torah.² I, however, focus here on the cases where the particular Jewish meaning of nomos as related to Torah is clearly indicated by the context. This focus will allow to revisit the issue of Paul’s grasp of the interactions between various parts of the Torah-centered law and their standing vis-à-vis other aspects of the covenant. Contextualizing Paul’s strategies against the backdrop of the variety of early Jewish thought patterns, I would argue that while propagating a singular, Jesus-centered, message – in many cases explicitly directed at Gentile fellow-travelers – Paul also addresses concerns of his implicit Jewish audience. His arguments thus echo and bear witness to a broader intra-Jewish awareness of the problematic aspect of the notion of religion as first and foremost law.

II Torah and the Works of the Torah

Scholars have long recognized nascent Christianity’s multifaceted nature reflected in various, sometimes contradictory, emphases found within the Jesus movement during the first decades of its history. Attitudes to the demands of Jewish religious law, as expressed, on the one hand, in the Book of Acts, and, on the other hand, in Paul’s authentic letters provide a telling example of such unresolved tension. According to Acts, in the times of messianic redemption those Gentiles who become part of the Jesus movement are exempt from embracing some ritual markers of belonging to Judaism. However, the continuing faithfulness of Jewish believers in Jesus to these precepts is never questioned, but rather presented as harmonious with their adherence to Jesus the Messiah (Acts 15:1–29; 21:18–25).³ As a matter of fact, it seems that even Gentiles willing to embrace some positive Mosaic ritual prescriptions, preached in the Diaspora synagogues, are welcome to do so or, at least, not reprimanded for this inclination.⁴

Paul’s writings, however, are distinguished by a different and clearly polemical emphasis, unequivocally denying the capacity of Judaism’s ritual prescriptions to contribute to the cleansing of the hearts. These prescriptions might have had such a capacity in the past; but in the messianic era, it is exclusively identification with and “sharing” in the Messiah’s expiating death, and belief in his resurrection, that constitute the path leading to salvation – by grace and not by acquired merit. It is in this either-or context characterizing the Epistle to the Galatians that Paul comes to view those “external” precepts as harmful, as blocking the way to individual justification in the eyes of God through grace (Gal. 2:21, cf. Rom. 3:20): “I do not nullify the grace of God; for if justification were through the law (nomos, Torah?), then Christ died to no purpose.” Moreover, those who still put their hope in the “works of the law (Torah)” are bringing upon themselves “law’s/Torah’s curse” (Gal 3:10–11, 6:15). The argument in chapter 2 of the epistle, where the phrase the “works of the nomos,” obviously central for Paul’s thinking there, is used repeatedly and emphatically, strengthens the understanding that nomos here means specifically the Torah of Israel (Gal. 2:15-16):⁵

We ourselves, who are Jews by birth and not Gentile sinners, yet who know that a man is not justified by works of the law (ἐξ ἔργων νόμου), but through faith in Jesus Christ/the Messiah, even we have believed in Christ/the Messiah Jesus, in order to be justified by faith in Christ, and not by works of the law (οὐκ ἐξ ἔργων νόμου), because by works of the law (ἐξ ἔργων νόμου) shall no one be justified.

The Epistle to the Galatians is explicitly addressed to Gentile followers of Jesus in Galatia, who are under pressure from some representatives of the Jewish section of the movement to embrace Judaism’s ritual practices, first of all circumcision so that the Jews and the Gentiles of the messianic group can become one community, for example, eat together (Gal. 2:11–14).⁶ One then is justified in viewing the “works of the Torah” language as belonging to the discussion of that core issue – in other words, the phrase seems to designate the ritual markers of Jewish tradition. Therefore, the “works of the law, ἔργα νόμου,” that Paul expresses doubts with regard to their effectiveness (Gal. 2:15–21) should be understood in this context in a limited sense – namely, as designating those practices prescribed by the Torah that serve as “identity badges” separating Jews from their Gentile neighbors. They are thus distinguished from the “core commandments” defining God’s covenant with Israel or the Torah (νόμος) proper, such as the Decalogue and Leviticus 19:18 – passages that indisputably retain their centrality in the apostle’s interpretation of the messianic salvation in Jesus, as forcefully expressed, e.g., in Gal 5:14.⁷ Such an understanding of the “works of the law” finds corroboration in the מעשי התורה (ma’asei ha-torah, the works of the Torah) usage attested in 4QMMT from Qumran, where the phrase denotes ritual precepts, marking the proper observance of the Temple cult, corrupted according to the composers of the document by the current priestly leadership.⁸ This ritual understanding is further confirmed when Paul reiterates the core opposition mentioned above (Gal. 5:2): “Now, I, Paul, say to you that if you receive circumcision, Messiah/Christ will be of no advantage to you.”

Such a reading, highlighting the Gentiles within the Jesus movement as Paul’s intended audience, supports the interpretation suggested by a number of influential scholars subscribing to what is now customarily called the New Perspective on Paul. Among them Krister Stendahl, John Gager, and Paula Fredriksen, who emphasized the specific context in which Paul’s harsh statements concerning the (works of the) Torah were meant to resonate – namely, the non-Jewish addressees of the apostle’s writings.⁹ It was argued, moreover, that Paul’s claim that pious Gentiles do not have to observe the positive ritual precepts of the Torah, for example, perform circumcision (whereas the prohibition of participating in idol worship was emphatically upheld by Paul with regard to the Gentile fellow travelers too),¹⁰ in fact followed an accepted, particularly in the Hellenistic Diaspora, Jewish perception. Namely, even in the last days, the Gentiles will join the redemption in accordance with the pattern found in the biblical prophecy, that is, as Gentiles, without blurring the borderline between Israel and the nations. Following Isaiah’s prophecy, the nations will come to the mountain of the Lord to serve him together with the Jews and become privy to the core messages of God’s Torah, while remaining ethnically and culturally distinct from the people of Israel.¹¹ According to this influential approach, the demands to Gentiles wishing to become part of Israel’s vocation are basically two: abandoning idol worship for the sake of worshipping the one God and adopting a truly moral behavior derived from the allegiance to the Creator.¹² Paul therefore followed here a beaten track, and since he addressed Gentiles only, he obviously did not intend to introduce any drastic reevaluation of the Torah vis-à-vis Jews.¹³

This new view of Paul clearly has its merits. However, as I argued elsewhere, the context of Galatians indicates that besides the Gentile fellow-travelers Paul must have had an additional, hidden, audience in mind – namely, those Jewish propagandists from within the movement, whose pressure on the Gentile members of the community prompted the apostle’s response.¹⁴ In fact, the opening line of the passage under discussion too points to a supposed intra-Jewish logic of the argument (Gal. 2:15–16): “We ourselves, who are Jews by birth and not Gentile sinners … know that a man is not justified by the works of the Torah …” One is therefore prompted to ask if the apostle’s collation of a hierarchical distinction between the hard-core commandments of the Torah and the peripheral “ritual markers” of Judaism with the claim that those ritual “works of the Torah” do not actually contribute to achieving the righteousness epitomized in the Torah’s foundational precepts, could resonate within the Jewish milieu too.

As noted above, this kind of outlook was somehow reflected in the general Hellenistic Jewish attitude toward Gentile sympathizers. The awareness of the hierarchical relationships between ritual markers of Judaism and its moral precepts is expressed in the second century BCE Letter of Aristeas. The Jewish sages there, also addressing Gentile audience, both emphasize the shared ethical values of the Torah and general Hellenistic outlook and try to argue for the usefulness – though they are not obligatory for the Gentiles – of Jewish ritual prescriptions as “helping devices” in educating our souls in their path to moral perfection.¹⁵ It seems, however, that the hierarchical division – based on a variety of principles and with a different outcome – was applied to intra-Jewish religious discourse too, as aptly expressed in a well-known passage from the famous first century CE Jewish Hellenistic author, Philo of Alexandria:

There are some who, taking the laws in their literal sense as symbols of intelligible realities, are over-precise in their investigation of the symbol, while frivolously neglecting the letter. Such people I, for my part, should blame for their cool indifference, for they ought to have cultivated both a more precise investigation of things invisible and an unexceptionable stewardship of things visible. As it is, as if living alone by themselves in a wilderness, or as if they had become discarnate souls, knowing neither city nor village nor household nor any company of humans at all, transcending what is approved by the crowd, they track the absolute truth in its naked self. These men are taught by Sacred Scripture to be concerned with public opinion, and to abolish no part of the customs ordained by inspired men, greater than those of our own day.

For all that the Seventh Day teaches us the power of the un-originate and the non-action of created beings, let us by no means annul the laws laid down for its observance, kindling fire, tilling the earth, carrying burdens, instituting changes, sitting in judgment, demanding the return of deposits, recovering loans, or doing all else that is permitted in non-festal seasons. And though it is true that the Feast is a symbol of spiritual joy and of thankfulness to God, let us not bid adieu to the annual seasonal gatherings. And though it is true that circumcision indicates the excision of pleasure and all passions and the removal of the godless conceit under which the mind supposed itself capable of engendering through its own powers, let us not abrogate the law laid down for circumcising. For we shall be neglecting the Temple service and a thousand other things if we are to pay sole regard to that which is revealed by the inner meaning. We ought rather to look on the outward observances as resembling the body, and their inner meaning as resembling the soul. Just as we then provide for the body, inasmuch as it is the abode of the soul, so we must attend to the letter of the laws. If we keep these, we shall obtain an understanding of those things of which they are symbols, and in addition, we shall escape the censure and accusations of the multitude.¹⁶

Philo tellingly attests to a variety of Jewish attitudes toward the “external” precepts of the Torah – from neglecting to upholding them – all of which acknowledge the above division and share the conviction that the true meaning of the commandments is the “internal” one. Philo himself clearly ascribes to this consensual appraisal and confirms the priority of the inner meaning of the Torah precepts. Unlike some of his Jewish contemporaries, however, whom he criticizes for their readiness to drop ritual observance altogether and deal directly with the mending of their “inner man,”¹⁷ Philo – a responsible member of the community who recognizes the constraints of our physical and social existence – upholds the validity of the ritual side of Jewish tradition as befitting external means for “gradually educating one’s soul.” Nevertheless, the problematic tension between the two divisions (or interpretations) of the law lingers: As aptly observed by Christine Hayes, while Philo’s move aspired to strengthen the ritual aspect of the Mosaic Law, it could inadvertently “enable precisely that which Philo here protests.”¹⁸

Such dichotomist perceptions seem to have not been limited to the Greco-Roman Diaspora only. Though evidence concerning the early proto-rabbinic tradition is scarce and relatively late, it may indicate that the idea of a twofold partition of the bulk of religious precepts was known and duly discussed in the Land of Israel too. Suffice it to quote a tradition ascribed to none other than the second-century codifier of the Mishnaic law himself (m. ̉Abot 2.1):¹⁹

R. Judah the Prince said: Which is the proper course that a man should choose for himself? That which is an honor to him and elicits honor from his fellow men. Be as scrupulous about a light precept (מצוה קלה) as of a weighty one (כחמורה), for you do not know the reward allotted for each precept. Balance the loss incurred by the fulfillment of a precept against the gain and the accruing from a transgression against the loss it involves.  Reflect on three things and you will never come to sin: Know what is above you – a seeing eye, a hearing ear, and all your deeds recorded in a book.²⁰

One notes a partial overlap of terminology between our early third-century Mishnah and Matthew 5:19 (τῶν ἐντολῶν τούτων τῶν ἐλαχίστων, “the least of these/ the light commandments”) – an overlap that points to the terminology’s early provenance. Moreover, not unlike Philo (and Jesus in Matthew 5:19!),²¹ the Mishnah votes for the importance of the efforts to fulfill precepts ostensibly not belonging to the core of the Torah. Though the reasons may be different, the “peripheral” commandments are seen here too as being in the final account expedient for a person’s “balance of merits.” And again, like Philo, the Mishnah mirrors an alternative approach, which it polemically rejects. Finally, while the dichotomy itself emerges as a shared feature of a whole spectrum of traditions, its character – namely, what commandments are seen as belonging to either category – may vary considerably. Thus, as distinct from Philo with his dichotomy between internal/spiritual and external meaning of the commandment, the Mishnah – similarly, for example, to Jesus’ stance in Matthew 23:23 – seems to understand both categories as pertaining to the realm of deeds.²²

If in the tractate ̉Abot the “light” commandments are presented as potentially expedient for God’s approval, another telling Mishnaic tradition speaks of the fateful eschatological transformation of the individual – that is, the gift of the holy Spirit and the resurrection – as conditioned by the sequence of efforts at fulfilling, inter alia, ritual (external, secondary) observances (m. Sotah 9.15):

R. Pinhas son of Yair says: “Expediency brings to cleanness, cleanness brings to purity, purity brings to chastity, chastity brings to holiness, holiness brings to meekness, meekness brings to the fear of sin, fear of sin brings to righteousness, righteousness brings to the spirit of holiness (holy spirit), and the holy spirit brings to the resurrection of the dead, and the resurrection of the dead comes through Elijah of blessed memory. Amen.”

The historical context here is that of the destruction of the Temple and anticipation of redemption. Yet it stands to reason that the singling out of certain ritual observances as crucial for obtaining righteousness and eventually redemption is linked and point to an older topic – as does the previously discussed mishnaic passage.

To sum up, all the reviewed sources express awareness of one or another kind of distinction between primary and secondary (meaning of) Torah precepts, thus allowing to contextualize Paul’s arguments within broader Jewish trends. While in the final account these sources uphold the validity of the secondary, for example, ritual, commandments, they indirectly attest to the possibility of an alternative tendency to dismiss those commandments as not crucial – an attitude they polemicize against.²³ Paul in Galatians therefore may be viewed as reflecting that alternative tendency; and his daring move could have been helped by the fact that he first came to discuss the issue while addressing a non-Jewish audience, which as noted, was perceived from the beginning as not obliged to the ritual identity markers of Judaism.

III The Core Demands of the Torah Law

Having rejected the auxiliary value of the ritual precepts, Paul states explicitly what constitutes the true core of the Torah law, unswervingly obliging in the Messianic era – namely, Leviticus 19:18 precept “love your neighbor as yourself” (Gal. 5:14–15): “For the whole law (ὁ γὰρ πᾶς νόμος) is fulfilled in one saying (ἐν ἑνὶ λόγῳ), ‘You shall love your neighbor as yourself’. But if you bite and devour one another take heed that you are not consumed by one another.“ Further on, in Galatians 5:22–23, the apostle clarifies the expectations from interpersonal relations, derived from the Leviticus 19:18 directive: “love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control; with regard to such there is no measure (limitations).”²⁴

It turns out, however, that Paul is not only pessimistic with regard to the ritual exercises’ capacity to help one achieve the perfection of the great love command, but in fact denies the ability to fulfill it through any efforts of our own. According to the apostle, the very nature of the foundational demands of the religious law is such that we are unable to satisfy them however hard we try – it is only through the intervention of the divine agency of the Spirit that the mission can be accomplished. In other words, our only hope to achieve the true righteousness propagated by law, namely, to fulfil the above lofty aspects of the Lev 19:18 precept – is to be endowed with the Spirit (Gal. 5:5–16, 22, 24–25):

For through the Spirit, by faith, we wait for the hope of righteousness. … But I say, walk by the Spirit, and do not gratify the desires of the flesh. … . But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control … And those who belong to the Messiah Jesus have crucified the flesh with its passions and desires. If we live by the Spirit, let us also walk by the Spirit.

[emphasis added]

Thus, whereas the validity (usefulness) of the “secondary” law precepts is questioned, with regard to the indisputable core elements of the Torah-related righteousness it is our ability to fulfill them that is negated. We will return below to the motif of the Spirit as the great enabler, as well as to that of Jesus’s atoning death, but for now suffice it to note that such an appraisal appears to undermine the whole function of the Torah as covenantal law.

It is possible to try interpreting this deeply seated skepticism in Galatians too as directed specifically at the Gentiles – in accordance with a broader Jewish perspective on Gentiles as “sinful by nature,” reflected, as we have seen, in Galatians 2:15 (“We ourselves, who are Jews by birth and not Gentile sinners”). According to this interpretation, therefore, it is only through the intervention of the Spirit that the “Gentile nature” could be reformed and the Gentiles become capable of fulfilling the Torah’s great commandment. However, as already the beginning of the slightly later Epistle to the Romans testifies, ostensibly addressing concerns of both Gentile and Jewish segments of the community in Rome,²⁵ that basic inability to cope with the Torah as law was viewed by the apostle as characteristic of Jews as well.²⁶

In Romans, that “final account” of Paul’s writing,²⁷ characteristically, the issue of ritual markers so central to Galatians takes a back seat,²⁸ with the epistle focusing instead on the basic incapacity of both Gentiles and Jews to properly respond to the core demands of God’s law.²⁹ The Gentiles’ failure is explained already in Romans 1 as resulting – in accordance with broader patterns of Jewish propaganda – from betrayal of the belief in one Creator. As for the Jewish failure, highlighted in Romans 2 in respect to one Decalogue precept, it receives its comprehensive explanation later on, in Romans 7.³⁰ Finding unconvincing the attempts to interpret the reasoning in Romans 7 as targeting exclusively the “Gentile predicament,”³¹ I therefore side with those who discern here Paul’s grim diagnosis of the human condition, Jews included.³² In the final account, what is central to my argument is that whoever are the explicit intended addressees of the reasoning in Romans 7, we should take into account – the move already probed above with regard to Galatians – the implicit Jewish audience too. The apostle’s pessimistic appraisal is characteristically complemented with the quantum leap, leading from the earlier impotence vis-à-vis the demands of the law imposed from outside to the new mode of existence (Romans 7:4–6):

Likewise, my brethren, you have died to the Torah/law through the body of Christ/ the Messiah, so that you may belong to another, to him who has been raised from the dead in order that we may bear fruit for God. ⁵ While we were living in the flesh, our sinful passions, aroused by the law, were at work in our members to bear fruit for death. ⁶ But now we are discharged from the law, dead to that which held us captive, so that we serve not under the old written code but in the new life of the Spirit.

The appearance of the favorite Pauline expression “bear fruit” collated with the centrality of the Spirit, duly noted in the earlier discussion of Galatians 5, indicates that the “freedom from the law” here does not at all mean lawless frivolity. It rather designates a new stance “in the Spirit,” finally enabling one to fulfill the core Torah commandments, which was impossible when one’s relation to the law was that of vis-à-vis externally ordered obligation. In fact, Paul himself continues to clarify the matter (Romans 7:7-12):

What then shall we say? That the law is sin? By no means! Yet, if it had not been for the law, I should not have known sin. I should not have known what it is to covet if the law had not said, “You shall not covet.” ⁸ But sin, finding opportunity in the commandment, wrought in me all kinds of covetousness. Apart from the law sin lies dead … ¹⁰ the very commandment which promised life proved to be death to me. ¹¹ For sin, finding opportunity in the commandment, deceived me and by it killed me. ¹² So the law is holy, and the commandment is holy and just and good. Did that which is good, then, bring death to me? By no means! It was sin, working death in me through what is good …

[emphasis added]

So, the law “is good” and it opens one’s eyes, teaching what sin is, but, unfortunately the law does not provide one with the capability to resist sin (cf. Romans 3:20). Moreover, in our encounter with the just demands of God’s law, sin manages to exploit our pervert nature (evil inclination?),³³ turning the commandment into temptation to disobey it. The problematic side of the “written code” is idiosyncratically emphasized here, though Paul takes care to piously ascribe the blame not to the Torah itself, which is holy, but to the defective human condition – and Jews are clearly not exempted.

In the following programmatic passage, Paul further elaborates on the issue, this time pointing to our “being flesh” as the real culprit (Romans 7:14–25):³⁴

We know that the Torah/law is spiritual; but I am carnal, sold under sin. ¹⁵ I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. ¹⁶ Now if I do what I do not want, I agree that the law is good. ¹⁷ So then it is no longer I that do it, but sin which dwells within me. ¹⁸ For I know that nothing good dwells within me, that is, in my flesh. I can will what is right, but I cannot do it. ¹⁹ For I do not do the good I want, but the evil I do not want is what I do. ²⁰ Now if I do what I do not want, it is no longer I that do it, but sin which dwells within me. ²¹ So I find it to be a law that when I want to do right, evil lies close at hand. ²² For I delight in the law of God, in my inmost self, ²³ but I see in my members another law at war with the law of my mind and making me captive to the law of sin which dwells in my members. ²⁴ Wretched man that I am! Who will deliver me from this body of death? ²⁵ Thanks be to God through Jesus Christ our Lord! So then, I of myself serve the law of God with my mind, but with my flesh I serve the law of sin.³⁵

Telling is the variety of meanings in which the word “law” (νόμος) is used. First, the law is God’s Torah addressed to our inner man, to our mind (nous) – thus it is “spiritual” (cf. Philo’s position discussed above). However, when devoid of the Spirit, our response to God’s law is “carnal,” which means transgressing the commandment we are supposed to fulfill, thus succumbing to the “law of our bodily members,” a sinful negative of God’s holy Torah.³⁶

According to Paul, this pitiful stance vis-à-vis God’s law will continue until the body, which, as it were, pulls us down, is metaphorically “put to death” overwhelmed by the Spirit. The belief in Jesus’ atoning death, combined with the notion of our bodies’ metaphorical “death to sin,” seems to reflect – and drastically modify – here a broader idea that until the very moment of physical death we all, even the righteous ones, are destined to incessantly struggle with sin. This is, for example, how this idea is expressed in the rabbinical midrash Genesis Rabbah (9.5):³⁷

“And lo, very good” (Genesis 1:31). [What is very good?] It is death. Why was the death ordained [even] for pious ones? [Because] all the time when they are [still] alive they spend fighting their evil impulse. [Only] when they die, they [may at last] rest.

This death-centered perception of final transformation is characteristically collated in Paul with the belief in the liberating function of the Spirit (Romans 7:24–8:4):

Wretched man that I am! Who will deliver me from this body of death? ²⁵ Thanks be to God through Jesus Christ/the Messiah our Lord! So then, I of myself serve the law of God with my mind, but with my flesh I serve the law of sin. 8:1 There is therefore now no condemnation for those who are in Chris/the Messiaht Jesus. ² For the law of the Spirit of life in Christ/the Messiah Jesus has set me free from the law of sin and death. ³ For God has done what the law, weakened by the flesh, could not do: sending his own Son in the likeness of sinful flesh and for sin, he condemned sin in the flesh, ⁴ in order that the just requirement of the law might be fulfilled in us, who walk not according to the flesh but according to the Spirit.

[emphasis added]

One notes that the crux of Paul’s reasoning is the aspiration to finally be able to fulfill “the just requirements of the Torah.”³⁸ The Torah is helpless: even if it still has a very important function to accomplish – namely, to highlight and strengthen the awareness of one’s sins (Romans 3:20) – it also exposes one to the cunning of the evil impulse and, most important, does not provide the means to overcome humanity’s built-in sinful inclinations and follow God’s commandments (Romans 9:31).

At the end of the chapter, I will return to the characteristic collation of Jesus’ atoning death and the gift of the Spirit as two complementing “enablers.” Right now, however, I am going to ask to what extent this pessimistic appraisal of our inherent ability to cope with God’s Torah as law was Paul’s idiosyncratic contribution to the religious discourse or, alternatively, a reflection of an intuition of a much broader currency in the Jewish world.

It goes without saying that the call for the earnest effort to try to fulfill Torah commandments as the sure path to righteousness was characteristic of Jewish covenantal outlook as a whole, to which there are multiple attestations. The telling passage from Mishnah Abot 2.1, addressed above, is a fine example of such an outlook. An influential trend in rabbinic tradition also viewed the Torah as antidote to the evil impulse, even if its effectiveness is not always thorough.³⁹ However, by the time Paul was addressing the topic, a substantially different intuition, derived from an essentially pessimistic appraisal of a person’s ability to gradually build the edifice of righteousness by his/her own efforts, had also been voiced in Jewish tradition. It was even enticingly suggested that this pessimistic appraisal was intrinsic to the Pharisaic religious outlook, which propagated the expansion of the scope of the commandments by means of reinterpretation (Oral Torah) to the realm of intentions (”the inner man”) – a demand that further aggravated the impossibility of the task.⁴⁰ Later rabbinic sources also bear witness to such a tendency, with the sometimes inevitable conclusion, mentioned above, that nothing short of death can cure one’s sinful inclination. I have dealt at length elsewhere with rabbinic responses to this conundrum;⁴¹ it will suffice to say here that in such a context a variety of remedies were suggested, such as: trust in last-minute repentance, trust in God’s merciful benevolence, and belief in the expiating function of one’s death.

In eschatological thinking, however, this basically pessimistic assessment engendered aspirations for the last-days transformation of the nature of man’s stance vis-à-vis God’s law. This tendency, in fact, goes back to classical biblical prophecy, with a famous example provided by Jeremiah, who speaks of a “change of heart” imposed by God “from outside” – and not the steadfast efforts invested in pious ritual actions, temple sacrifices included – as the only way to righteousness, remission of sins and redemption (Jeremiah 31:31–34):

³¹ “Behold, the days are coming,” says the LORD, “when I will make a new covenant with the house of Israel and the house of Judah, ³² not like the covenant which I made with their fathers when I took them by the hand to bring them out of the land of Egypt, my covenant which they broke, though I was their husband, says the LORD. ³³ But this is the covenant which I will make with the house of Israel after those days,” says the LORD: “I will put my Torah/law within them, and I will write it upon their hearts; and I will be their God, and they shall be my people. ³⁴ And no longer shall each man teach his neighbor and each his brother, saying, – ‘Know the LORD,’ for they shall all know me, from the least of them to the greatest, says the LORD; for I will forgive their iniquity, and I will remember their sin no more.”

It is only this inner transformation enforced by God that makes the observance of the core stipulations of God’s covenant possible.⁴² Characteristically, in another famous oracle, that of Ezekiel, this eschatological transformation is further described in terms of receiving the gift of Spirit (Ezekiel 36: 24–29):

²⁴ For I will take you from the nations, and gather you from all the countries, and bring you into your own land. ²⁵ I will sprinkle clean water upon you, and you shall be clean from all your uncleannesses, and from all your idols I will cleanse you. ²⁶ A new heart I will give you, and a new spirit I will put within you; and I will take out of your flesh the heart of stone and give you a heart of flesh. ²⁷ And I will put my spirit within you, and cause you to walk in my statutes and be careful to observe my ordinances. ²⁸ You shall dwell in the land which I gave to your fathers; and you shall be my people, and I will be your God. ²⁹ And I will deliver you from all your uncleannesses; and I will summon the grain and make it abundant and lay no famine upon you.

[emphasis added]

Compared to m. Sotah 9.15 quoted above, the passage from Ezekiel outlines an inverted sequence – instead of the righteousness, forgiveness of sins, gift of the Spirit and redemption as the crowning outcomes of earnest efforts to fulfill God’s precepts, including the ritual ones focused on the cleanness-uncleanness dichotomy, the very ability to act righteously is presented here as conditioned by the prior intervention by God that changes one essentially with the “stroke of the spirit.” This perception would be later picked up in the Rule of the Community, drastically modified in accordance with the Qumranic double predestination belief. A powerful expression of that pattern of religious thinking is found in the closing section of the Rule (1QS 11.7–17):⁴³

To those whom God has selected he has given them as everlasting possession; until they inherit them in the lot of the holy ones. ⁸ He unites their assembly to the sons of the heavens … to be an everlasting plantation throughout all future ages. ⁹ However, I belong to evil humankind to the assembly of wicked flesh; … the assembly of worms … of those who walk in darkness … ¹⁰ For to man (does not belong) his path, nor to a human being the steadying of his step; since judgment belongs to God, ¹¹ and from his hand is the perfection of the path. By his knowledge everything shall come into being, and all that does exist he establishes with his calculations and nothing is done outside of him. … ¹³ he will free my soul from the pit and make my steps steady on the path; ¹⁴

… in his justice he will cleanse me from the uncleanness of the human being and from the sin of the sons of man, … so that I can extol God for his justice … Blessed be you, my God, who opens the heart of your servant to knowledge! ¹⁶ Establish all his deeds in justice, … to be everlastingly in your presence, as you have cared for the selected ones of humankind. ¹⁷ For beyond you there is no perfect path and without your will, nothing comes to be.

[emphasis added]

According to the Rule, the God-imposed transformation is (a) the only possible avenue to achieving the righteousness and (b) conditioned on the predestined election. The flesh-spirit dualism characteristic of the Dead Sea Scrolls, as well as of Paul in Romans 7,⁴⁴ is only hinted at here (the “flesh” being incapable of following God’s will, line 9, cf. Matthew 26:41); the Spirit, however, is clearly perceived elsewhere in the same scroll as both cleansing the person’s “inner man” when the last days come, and revealing God’s ultimate mysteries (1QS 4.20–23):

Meanwhile, God will refine, with his truth, all man’s deeds, and will purify for himself the configuration of man, ripping out all spirit of deceit from the innermost part ²¹ of his flesh, and cleansing him with the spirit of holiness from every irreverent deed. He will sprinkle over him the spirit of truth like lustral water (in order to cleanse him) from all the abhorrences of deceit and from the defilement ²² of the unclean spirit. In this way the upright will understand knowledge of the Most High, and the wisdom of the sons of heaven will teach those of perfect behavior. For these are those selected by God for an everlasting covenant ²³ and to them shall belong all the glory of Adam.

[emphasis added]

The heavenly mysteries revealed to those “refined by God” are identified as a new interpretation of the Torah precepts, pertaining to the pre-eschatological “age of wickedness” in the Damascus Document 6, whereas both the necessity of the initially enforced action of the holy Spirit for obtaining righteousness and its cardinal effect as preventing one from sinning against God in the future are again highlighted in the Qumranic Thanksgiving Hymns (1QH 4.17–26):

[I give you thanks, Lord,] for the spirits you have placed in me … .to confess my former sins, to bow low and beg favour ¹⁹ for […] of my deeds and the depravity of my heart. Because I wallowed in impurity, [I separated myself] from the foundation [of truth] and I was not allied with […] ²⁰ To you does justice belong, blessing belongs to your Name for ever! [Act according to] your justice, ²¹ free [the soul of your servant,] the wicked should die! However, I have understood that [you establish] the path of the one whom you choose ²² and in the insight [of your wisdom] you prevent him from sinning against you, you restore his humility through your punishments, and by your ord[eals streng]then his heart. ²³

[You, Lord, prevent] your servant from sinning against you … . ²⁵ […] for your servant is a spirit of flesh. Blank ²⁶ [I give you thanks, Lord, because] you have spread your holy spirit upon your servant […] his heart …

[emphasis added]

The emphasis on election/gift of the Spirit as the precondition for fulfilling the Torah precepts is expressed with particular force and clarity in Qumranic texts – not least, thanks to its being linked there to the double predestination concept.⁴⁵ However, it stands to reason that outside of this idiosyncratic linkage, the late Second Temple revival of the intuition found already in Ezekiel 36 was not restricted to their sectarian eschatologically oriented milieu.⁴⁶ Paul then may be viewed as an important witness to this tendency.

IV Conclusion

My reading suggests that in both Galatians and Romans, Paul repeatedly addresses the challenge of the νόμος (law) component of Jewish religion. The apostle’s rhetorically amplified statements there attest to a variety of nonharmonized appraisals – from the Torah precepts being “good and holy” to constituting an obstacle on the way to true righteousness. In accordance with the latter emphasis, the centuries-long Christian tradition ascribed to Paul the conviction that in the messianic era, following Jesus’s salvific death, the Jewish religious outlook centered on the Torah and its commandments becomes obsolete. Trying to cope with the apostle’s statements on the Torah’s (partial) validity and absolute holiness this tradition explained them away as, for example, dictated by the tactical constraints of the mission. Various modifications of this appraisal have also been adopted, mutatis mutandis, by some influential modern scholars.⁴⁷

There have been also a number of inroads in recent research, alleviating this picture of Paul’s substantial reversal of the attitude to the Torah law, including the law’s ritual aspects. Most prominently, the scholars propagating the so-called New View of Paul forcefully argued for a context-related interpretation of Paul’s criticism of Torah ritual precepts as directed exclusively toward Gentiles. If so, there is no reason at all to view it as radical – and no reason to think that he called for annulling the Torah obligations of the Jews. The issue of Torah observance or deeds-grace controversy can moreover be viewed as not part of the initial core of the apostle’s teaching of messianic salvation, but rather one of the secondary themes evoked in response to varying circumstances – most notably, the appeal to non-Jewish addressees. This study approached the issue from a different angle. Not denying Paul’s very particular circumstances, it aimed at discerning in the apostle’s reasoning a reflection of broader Jewish awareness – within the covenantal nomism outlook – of the problematic side of the law as religion’s foundational aspect.

I started with a discussion of Paul’s “works of the Torah/law” usage featuring prominently in Galatians, which gives support to the suggestion that this phrase should be understood, similarly to its Hebrew parallel in the Dead Sea Scrolls, in a limiting sense of ritual markers. The context of the epistle indicates that those are the distinguishing positive ritual markers of Judaism, circumcision et al. that Paul tries to discourage his Gentile addressees within the Jesus movement from adopting. The apostle’s argument is that the ritual elements of the law are, in fact, not helpful in our attempts to achieve true righteousness. The position, that those are only the core demands of the Torah – embracement of monotheistic faith and worship and of proper morals – and not the details of ritual law that are expected from Gentile God-fearers, was, in fact, current among Hellenistic Jews. Paul therefore may be viewed as riding upon an existing tendency. Though the apostles’ polemical stress on the dilemma of either Jewish ritual or Jesus’ atoning death, is definitely his singular trademark.

I suggested, however, that Paul’s insistence that “secondary” ritual observances do not contribute to achieving true righteousness epitomized in the Torah’s foundational demands, “Love your neighbor as yourself” (Leviticus 19:18), was also aimed at his “hidden audience” – those Jewish members of the movement, whose influence on the Gentile fellow-travelers he is trying to repel. To clarify that intra-Jewish logic of the argument, I reviewed a number of early Jewish sources attesting to the variegated divisions of the Torah law into “primary” and “secondary” sections. Though in the final account, all these sources uphold the “righteousness value” of the “secondary” (external, ritual) observances – for example, as assisting in fulfillment of the foundational moral demands – they clearly betray the backdrop disagreements and polemic. This strengthens the probability that Paul’s negation of the ritual’s auxiliary value, first triggered by the concrete polemical situation vis-à-vis his Gentile addressees, was in the final account meant to have a broader appeal. Since in the intra-Jewish discourse it was likewise a matter of contention, Paul might have consciously related to some aspects of this contention.

However, it turns out that Paul’s doubts with regard to the usefulness of the ritual precepts for our aspiration to achieve righteousness are part of his more substantial skepticism. The apostle in fact argues that one is incapable of fulfilling the Torah’s foundational moral demands, those “just requirement of the law,” through one’s own efforts at all. In the Epistle to the Romans, he further elaborates on that, blaming our “being in flesh” for the basic impotence in coping with God’s law. The chapter shows that side by side with more optimistic appraisals of the man-versus-Torah-as-law conundrum, this pessimistic one was not unknown in broader Jewish tradition, representing, moreover, a long-standing tendency within it.

Having briefly related to rabbinic responses to this pessimistic appraisal of human nature that focused on mechanisms of repentance and God’s forgiveness, I noted that traditions of eschatological flavor alternatively attest to the aspiration for the last-days transformation. They are often expressed in terms of receiving the Spirit, which would finally make feasible the fulfillment of God’s commandments. According to my reading, Paul inherited from broader patterns of Jewish thought not only the pessimistic diagnosis of human condition vis-à-vis God’s demands in the “externally imposed” law, but also the eschatological solution of the problem through the gift of the Spirit. One of the characteristic features of Paul’s argument is the coupling of this inherited motif of broader circulation with the “sectarian” argument, ascribing the same enabling function to Jesus’s salvific death.

In the final account, my investigation brings me to the conclusion that the crux of the apostle’s reasoning was not the annulment of the Jewish religious outlook centered on the Torah and its commandments. It was rather the perception of the deeply problematic nature of the human predicament in face of God’s will as epitomized in the code of law. This seasoned pessimism was coupled with the eschatological hope for the inner transformation induced by the Spirit that would finally enable us to live up to the just demands of God’s Torah. With regard to both these motifs, as well as to the perception of the hierarchical division between peripheral and core precepts, Paul’s writings may be viewed as an illuminating witness to broader intuitions of Jewish tradition. The apostle, however, retains his idiosyncratic singularity thanks to the addition of the atoning death of the Messiah as a complementing enabler of that eschatological metamorphose, and, of course, to the conviction that this metamorphose is already somehow present among his addressees.

15 When Law Meets Theology Legality and Revelation in the Jewish, Islamic, and Zoroastrian Traditions in the Abbasid Period

Yishai Kiel

I Introduction

Recent decades have seen growing interest in the interplay of law and religion, moving beyond the constitutional context (freedom of religion) and other practical legal concerns, to explore the broader dynamics of law and religion as “sciences” and classification systems.¹ The underlying assumption of research in the field has typically been that “law and religion are distinct spheres and sciences of human life, but they exist in dialectical interaction, constantly crossing-over and cross-fertilizing each other.”² This working assumption, however, rests, to a large extent, on the uncritical acceptance of certain binary distinctions entrenched in Western legal culture and the history of Christianity,³ compartmentalizing the notions of logos and nomos, law and faith, letter and spirit, and church and state. These distinctions can be traced back to the Greco-Roman dichotomy between divine (or natural) and positive law,⁴ on the one hand, and antinomian tendencies pervading ancient Christianity, especially Paul‘s writings,⁵ that reject the very idea that nomos, in the sense of positive law, can be a medium of revelation and manifestation of God’s word and wisdom. The absence, moreover, of a distinctive category for religion and the religious sphere in premodern contexts,⁶ even within the confines of the Western tradition, further obscures the discursive categorization of law and religion as distinct, yet interacting, orders of classification.

When we cast our gaze beyond the Western and Christian traditions, however, we encounter a range of alternative possibilities that blur the Western bifurcation and defy the compartmentalization of law and religion.⁷ According to David Novak, commenting on law and religion in the Jewish tradition, “while today many regard law and religion as separate spheres and sciences of life, Judaism has long regarded these phenomena as overlapping, if not virtually identical.”⁸ Similar observations can constructively be made for other non-Western legal and religious traditions, such as Islam, Zoroastrianism, and Brahmanic Hinduism, to name just a few. In such contexts, it would perhaps be more productive to replace the discourse of law and religion, tendentiously assuming the existence of distinct spheres and orders of classification interacting with each other, with one of law as religion and religion as law, as framed by the present volume, reflecting the essential “fuzziness” of these categories, which can represent two sides of the same coin.

One need not envision a dichotomy between “Western” and “non-Western” approaches to law and religion. It is simply that we can gain a more nuanced and variegated appreciation of these intersecting and overlapping spheres, by a conscious attempt to evade bifurcated modes of analysis entrenched in Christianity and Western legal culture, in search of alternative models beyond the confines of the Occident. The present article, centered on Jewish, Islamic, and Zoroastrian perceptions of revelation and legality in the Abbasid period – offers yet another example of the problematization and unsettling of the “law and religion” paradigm by non-Western and non-Christian discourses.

The first centuries of the Abbasid period⁹ – between the mid-eighth and early-eleventh centuries – roughly corresponding to the late Geonic era in rabbinic periodization, can arguably be seen as a landmark in the development of Jewish, Islamic, and Zoroastrian jurisprudence. This is not to say of course that the beginnings of Jewish, Islamic, and Zoroastrian law – in the sense of comprehensive systems of positive law – should be traced to this juncture. Indeed, the Jewish and Zoroastrian legal traditions are firmly rooted in late antiquity,¹⁰ as reflected in the detailed legal systems contained in the classical talmudic corpus,¹¹ on the one hand, and the Zoroastrian Zand (the Pahlavi translation and commentary on the Avesta)¹² and collection of Sasanian case law,¹³ on the other hand. Islamic law is likewise rooted in late antiquity, as much of early Islamic law is indebted to pre-Islamic traditions and customs (including Roman, Sasanian, Jewish, and local Arabian law and custom).¹⁴

Notwithstanding the late-ancient origins of these legal traditions, the distinctive Islamicate¹⁵ legal culture that emerged in Iraq and its surroundings under the early Abbasid Caliphate was marked by an unprecedented level of reflexivity, systematization, professionalization, and theorization of the law. This is manifest in the gradual shift from oral to written culture; the transformation from anonymous and collective authorship to specialized legal works attributed to named jurists; the institutionalization of academies and cross-regional legal “schools”; the professionalization of judges and jurisconsults; the coming of age of legal hermeneutics; and the emergence of legal theory and reflexive engagement with the nature of the law.¹⁶ In this context, Jewish, Islamic and Zoroastrian authors endeavored to provide a clearer definition of the law’s “roots” (uṣūl al-fiqh to use the prevalent vernacular), and articulate its basic “rule of recognition,” identifying the authoritative legal sources and setting criteria for legal validity.

In this context, several Jewish, Islamic, and Zoroastrian authors, who seem to have shared a postclassical consciousness vis-à-vis earlier generations, sought to confine their legal systems’ jurisprudential sources (and, implicitly, the legal sources available to judges and jurisconsults) to the canonical textual manifestation of God’s revelation. The assertion that the system’s legal sources are confined to the textual articulation of God’s revelation was connected, not only with the gradual shift from oral to written culture, but also with an ongoing process of normative and theological canonization,¹⁷ in which compilations of earlier legal traditions came to be regarded as binding legal “sources” in a jurisprudential sense and theological manifestations of the divine will. In this context, a similar voice was echoed in Jewish, Islamic, and Zoroastrian circles in the Abbasid period insisting on the textual confinement of God’s law to closed textual corpora – the Torah and Mishnah-cum-Talmud, the Quran and Hadith, and the Avesta and Zand – and facilitating a process by which these corpora came to be regarded as binding legal “codes” and the exclusive, complete, and authoritative articulation of God’s revelation.¹⁸

From a legal theoretical perspective, the idea that the law is exhausted by its textual-statutory articulation (rather than being custom-based or judge-made) is consistent with legal formalism, an important dimension of which is the reductive confinement of the law to an exhaustive and self-contained body of norms, often manifest in the form of a comprehensive statutory code.¹⁹ The textual-statutory demarcation of the law is also consistent with a formal interpretation of the notion of “legality” and the “rule of law,”²⁰ entailing the law’s generality, accessibility, prospectiveness, coherence, clarity, stability, and predictability.²¹ From a theological perspective, the textual-statutory confinement of God’s law reflects the perception of God as legislator and “author” of the law, at the expense of human participation in the revelatory and legislative processes.

The idea that God is the legislator and author of a textually confined body of law, containing stable and predictable laws, to which all (including the sovereign) are subject, is not a trivial one and, in fact, has a history that requires unpacking. In the context of the ancient Near East, something approximating a theological version of the “rule of law” can be found, as early as the first half of the first millennium BCE, in the Bible²² and, to some extent, in the young Avesta and Old Persian inscriptions.²³ The idea that God is the author of a prescriptive legal “code,” which developed in ancient Israel and Iran, stands in contrast to the prevailing paradigm in the ancient Near East, according to which the gods were perceived as guardians of justice who authorize the laws of the kings by establishing them and conferring upon them the principles of justice and the wisdom essential to fulfill their role. In this context, the laws were generally produced and authored by the kings, not the gods, and known by their names.²⁴

Later expressions of the compatibility of the idea of God as legislator and author of the law and the formal principles of the “rule of law” can be gleaned, for example, from Josephus’s interpretation of theocracy²⁵ or the Quranic emphasis on the subjection of prophets and sovereigns to God’s law.²⁶ In the present context, I seek to highlight the significance of a particular juncture in the convoluted history of the interplay of legality and revelation, as manifest in Jewish, Islamic, and Zoroastrian thought in the Abbasid Near East.

The Jewish, Islamic, and Zoroastrian legal traditions generally hold that, alongside the authoritative revelation vouchsafed in the Torah, Quran, and Avesta, respectively, God imparted additional normative directives connected with the rabbinic idea of torah she-be-ʽal pe (Oral Torah) revealed at Sinai alongside the Written Torah,²⁷ the Islamic concept of sunna (the traditions, practices, and sayings associated with the Prophet Muhammad) complementing the Quran,²⁸ and the Zoroastrian notion of the dēn, expressing the totality of the Zoroastrian Tradition.²⁹ While Hebrew torah she-be-ʽal peh, Arabic sunna, and Pahlavi dēn ultimately came to be associated with textually demarcated legal corpora, they initially seem to have denoted an amorphous body of oral tradition.³⁰ In the early Abbasid period, several jurists argued for the authority of a textually-demarcated version of this “body of oral tradition” and the statutory and “codificatory” confinement of God’s law to the corpora of the Mishnah-cum-Talmud, Hadith, and Zand (in addition to the Torah, Quran, and Avesta), which were rhetorically presented as the exclusive manifestation of God’s law and the complete embodiment of his revelation.

The emerging theoretical assertion of the textual-statutory confinement of God’s law and revelation – connected with a strong emphasis on God’s “authorship” of the law, on the one hand, and the principles of “legality,” on the other hand – is consistent with a shift in the conceptualization of legal authority, in which context communal authority underwritten by a personal and mimetic relationship between master and student was gradually replaced by impersonal, textual, and hermeneutic authority,³¹ while a deontic perception of legal authority was replaced by an epistemic one centered on the jurists’ knowledge of posited textual sources.³²

The legal theoretical shift was, at times, more declaratory and rhetorical perhaps than reflective of the actual legal mode of operation. This can be gleaned from the varying levels of willingness of jurists to incorporate other legal “sources” competing for prominence, such as “extra-canonical” textual traditions, “post-canonical” enactments, customary law, precedent, consensus, and independent reasoning not based on the canonical textual sources. In a similar manner, it has been correctly observed that the mere claim of a legal system to be of divine origin does not suffice, in itself, to indicate that it is actually “religious” in any practical sense.³³ But even insofar as rhetoric is concerned, one must pay close attention to the subtleties of the claim to divine origin, by interrogating the notions of “legal revelation” and “divine law” and delving into the meaning of the linkage posited between the legal and the divine. The various law codes of the ancient Near East, the laws of the Pentateuch, Greco-Roman discourses of natural law, and Manu’s laws all claim to be “divine” in one sense or another, but the meaning and significance of this assertion differ considerably from one cultural context to another.

In the course of the present discussion, I will employ a distinction between personal-authorial and impersonal-formal claims concerning the law’s “divine” nature;³⁴ between “participatory” and “stenographic” theories of revelation reflective of the relative role of humans vis-à-vis the divine in shaping the revelatory content;³⁵ and between “retrieval” versus “constitutive” paradigms of transmission in legal systems that look back to a defining moment of revelation.³⁶ We will see that, in the Abbasid period, the Jewish, Islamic and Zoroastrian legal traditions reflect an increasingly stronger “authorial” and “stenographic” rhetoric of God’s law (undermining the role of human agency in the legal process), on the one hand, and an emphasis on the textual confinement of the law, consistent with the formal principles of “legality,” on the other hand. Paradoxically, then, it is precisely when the law is said to be thoroughly theologized (rather than secularized) that it acquires its clearest legalistic facets, reflecting the law’s generality, accessibility, prospectiveness, coherence, clarity, stability, and predictability. Indeed, the “religious” and the “legal” are mutually enforcing.

The textual demarcation of the law and its theologization are generally characteristic of Jewish, Islamic, and Zoroastrian thought in the Abbasid period. In this article, I will center on three exemplary authors in particular, Rav Sherira Gaon (906–1006), head of the Rabbinic academy at Pumbeditha; Muhammad b. Idrīs al-Shāfiʽī (767–820), the so-called “architect” of Islamic jurisprudence; and Mānuščihr, a ninth-century Zoroastrian jurist and high priest. These authors were chosen for two main reasons. First, these authors do not only rhetorically declare the canonical status of the Mishnah-cum-Talmud, Hadith, and Zand (alongside the Torah, Quran, and Avesta), but practically seek to subordinate or otherwise subject extratextual legal sources and methodologies – such as consensus (ijmāʽ, ham-dādestānīh, haskamah); reason and discretion (ra’y, istiḥsān, istiṣlāḥ, meh-dādestānīh, sevara, shiqul ha-daʽat) and custom/practice (ʽamal, ʽurf, ʽāda, kardag, minhag, maʽase) – to the canonical textual sources against the backdrop of competing tendencies prevalent among their contemporaries and predecessors.³⁷ Second, these authors address the canonical status of the textual-statutory sources systematically in the form of epistolary essays intended, among other reasons, to establish and ground the idea of the demarcation of God’s law in a specific textual corpus. Thus, they played a particularly crucial role in articulating the stakes of the normative and theological canonization of their respective religious traditions during the Abbasid period, arguing for the textual confinement of revelation in designated corpora.³⁸

In terms of social history, the Jewish, Islamic, and Zoroastrian jurists in the Abbasid period can be seen as members of dynamic normative communities engaged in a continuous effort to create legal meaning, while negotiating their particular legal identities within the broader framework of Islamicate legal culture. As such, these jurists were not “influenced by” or “resistant to” the surrounding legal culture, so much as they were an integral part of it, while having at the same time to balance their particular legal heritage with broader cultural identities. This is no less true for culturally “conservative” jurists, such as Sherira, Shāfiʽī, and Mānuščihr, who were, at one and the same time, members of a particular religious and normative tradition and the broader Islamicate legal culture.

Revisiting the theory of communal autonomy of religious minorities under Islam, Uriel Simonsohn³⁹ has argued that the consolidation of legal autonomy was an ideal fostered by religious and legal elites on both sides of the border, whose authority depended on the construction of such boundaries.⁴⁰ The practice “on the ground,” however, transgressed these confessional aspirations, as evident from the fact that Jews and Christians regularly availed themselves of Muslim courts,⁴¹ a practice which extended to other Islamicate minorities such as Zoroastrians.⁴² It seems, however, that the “murky” boundaries between the various normative communities inhabiting Iraq and its surroundings in the Abbasid period were not simply the outcome of “popular” defiance of elite aspirations, as the Jewish, Islamic, and Zoroastrian authorities themselves shared deep structures of meaning (whether or not they cared to acknowledge it) and a postclassical consciousness connected with the idea of the textual-statutory demarcation of God’s law.

II Canonizing God’s Law in Sherira’s Epistle

This section will center on Sherira’s account of the transmission history of the Oral Torah initially revealed at Sinai (alongside the Written Torah) and particularly the “constitutional” moment of the Oral Torah’s textual crystallization in the Mishnah and, ultimately, in the Talmud. In this context, Sherira makes unprecedented claims about the legal and theological status of these works, claims which can be illuminated by contemporaneous reconstructions of the legal and theological status of the Quran and Hadith in the Islamic tradition and that of the Avesta and Zand in the Zoroastrian tradition.

Sherira opens his famous epistle⁴³ with the following statement concerning the canonical status of the Mishnah:

Thus, we have witnessed that the six orders (of the Mishnah) were all arranged by our holy Rabbi (Rabbi Yehudah the Patriarch), so that we can recite them (systematically) one halakhah after another; one may not add (to the Mishnah) nor subtract from it.⁴⁴

The idea that one may not add to the Mishnah nor subtract from its content and words seems to paraphrase Deuteronomy 4:2 (“You must neither add anything to what I command you nor take away anything from it”), thus aligning the unchangeable, static, and canonical status of the Pentateuch with that of the Mishnah as textual embodiments of the Written and Oral Torah, respectively. By pointing out the unchangeable nature of the Mishnah at the outset of the epistle, Sherira seems to set the stage for the ensuing discussion, in which he will make the case for the unique jurisprudential and theological status of the Mishnah, as the ultimate source of Jewish law and the complete and authoritative textual articulation of God’s revelation.

Sherira’s claims on behalf of the Mishnah, to be sure, are hardly trivial. Whatever its authors intended for it, the Mishnah, prior to the late Geonic period, was not perceived as the exclusive and complete articulation of the Oral Torah,⁴⁵ and certainly not as a binding legal “code.”⁴⁶ While the amoraim and redactors of both Talmuds situated the Mishnah (or parts thereof) at the center of their interpretive endeavor (thus reflecting some degree of “canonicity”), they consciously and regularly deviated from the Mishnah’s rulings⁴⁷ on the basis of both textual and nontextual legal traditions.⁴⁸ Sherira’s assertion, by contrast, according to which “one may not add (to the Mishnah) nor subtract from it,” seems to suggest the equivalence of the Pentateuch and Mishnah as exclusive, binding, and complete textual articulations of God’s Written and Oral Torah.

Assuming the Mishnah’s antiquity, the questioner – Jacob b. Nissim Ibn Shahin in the name of the Rabbanite community of Qayrawan – suggests that the Mishnah was composed in piecemeal fashion, a process stretching back to the early Second Temple period (notwithstanding the Sinaitic origin of the Oral Torah).⁴⁹ In his response, Sherira draws a distinction between the content of the Oral Torah, which can be traced back to Sinaitic revelation, and which was well-known to the early sages, and its textualization-crystallization in the Mishnah⁵⁰ (albeit in oral form).⁵¹ As explained by Robert Brody,

there was no need in Second Temple times for a specific formulation of the tradition, which was universally agreed upon and understood; each master was free to transmit the material to his students in any style he chose. It was only with the crisis surrounding the destruction of the Temple that misunderstandings and doubts proliferated and the need for an established text was perceived, and only in the days of R. Judah the Prince was the time ripe for the production of such a text, which was immediately recognized as the canonical Mishnah.⁵²

The Oral Torah’s textualization-crystallization realized in Rabbi’s codificatory project is described in the epistle in the following manner:

And authority was bestowed upon Rabbi (from Heaven) together with his Torah, for his entire generation was subservient to him all of his days. As we have learned (b. Git. 59a): Rava the son of R. Abba said, and some say (it was) R. Hillel the son of Rabbi: from the days of Moses until Rabbi, we have not found Torah and authority combined in one person (lit. “in one place”) … In his days, the rabbis were spared all persecution due to the love (Emperor) Antoninus had for him. He (=Rabbi) then decided to arrange/systematize the law, so that the rabbis would recite it uniformly rather than each his own version. Since, those early rabbis before the destruction of the Temple did not require this (=a crystallized version of the Oral Torah) since it is an oral Torah and they did not receive the rationales of known matters in the form of the Written Torah. Rather, the rationales were preserved in their hearts, and each of them taught his students just as a person conveys a matter to his friend in whatever manner of speech he fancies. And as they convened in the Temple and the academies, the legal matters arranged in their hand, with authority and without fear and anxiety, they were aided from Heaven insofar as the underlying rationales of the Torah were as clear to them as the law given to Moses at Sinai … And in the days of Rabbi, their matters were aided, so that the words of the Mishnah were just as they were pronounced by the Almighty and they were like a sign and a wonder. But Rabbi did not compose (these matters) on his own accord (lit. “out of his own heart”). Rather, (they were) the words recited by some of those early rabbis.⁵³

The Mishnah’s status as the complete and ultimate textual embodiment of God’s Oral Torah is reflected in the assertion that “the words of the Mishnah were just as they were pronounced by the Almighty.” While Sherira acknowledges and discusses the specific historical circumstances that led to the compilation of the Mishnah by Rabbi many years after the moment of the Sinaitic revelation, he insists on the fact that the final product of the Mishnah reflects the exact words pronounced by God to Moses.

Elsewhere in the epistle, Sherira alludes to social convention and the consensus of the sages and nation at large as constitutive of the Mishnah’s jurisprudential status as the ultimate source of rabbinic law.⁵⁴ In this passage, however, he seems to ground the Mishnah’s unique status in divine providence and inspiration.⁵⁵ Talya Fishman⁵⁶ notes in this regard that Sherira makes unprecedented claims, not only about the legal status of the Mishnah, but also about its theological status, portraying Rabbi as an agent in a divinely guided project aimed at a comprehensive textual articulation of the Oral Torah. It is God who revealed the Oral Torah to Moses at Sinai and it is he who, after many generations, guided the compilation of the Mishnah, so as to systematically articulate its accurate words. The divine characteristics of the Mishnah are manifest, accordingly, in the providential support that accompanied its production, which is reflected in the fact that Rabbi encountered no objection or difficulty, from within or from without the rabbinic community, to hinder his ambitious compilation project. The Mishnah’s “divine” status is further reflected in its textual, stylistic, and organizational “perfection.”⁵⁷ “And when everyone saw the beauty of the Mishnah’s arrangement and the truth of its reasoning and the precision of (its) words, they all abandoned those (other) tannaitic teachings they had been reciting.”⁵⁸

Fishman further notes in this context that Sherira’s allusions to divine guidance and the stylistic and linguistic “perfection” of the Mishnah are reminiscent of contemporaneous Islamic rhetoric concerning the Quran’s inimitability (iʿjāz al-Qurʾān).⁵⁹ Like the Quran’s inimitable and miraculous nature, which is believed to be manifest in its perfect style, the uniqueness of its language, and its concise nature,⁶⁰ Sherira emphasizes the Mishnah’s textual, stylistic, and organizational “perfection” in rather similar terms. While Jewish authors more commonly participated in this type of discourse by arguing for the perfection and conciseness of scripture (often in response to Islamic claims of taḥrīf [“distortion, falsification”]), Sherira seems to extend the contours of this discourse by making similar claims about the Mishnah.

Sherira further grounds the authority of the Mishnah in a myth, according to which the closure and canonicity associated with Rabbi’s codificatory project were predestined and prophesied in the “Book of Adam:”⁶¹ “As explained in the Book of Adam: Rabbi and R. Nathan are the end of Mishnah.”⁶²

The narrative and mythical framework in which Sherira couches his jurisprudence lends itself to a “Coverian” analysis focused on the interplay of nomos and narrative⁶³ and the grounding of legal cultures in constitutional “myths.”⁶⁴ In line with Robert Cover’s view of the normative sphere as one defined not only by statutes and legal institutions but also by narratives and myths providing meaning to the law, I read the providential support guiding Rabbi’s codificatory project, the miraculous alignment of the Mishnah’s wording with the Sinaitic articulation of the Oral Torah, and the predestination of Rabbi’s endeavors prophesied in the “Book of Adam,” as the narrative context for Rav Sherira’s jurisprudence. In this framework, the textual-statutory confinement of the Oral Torah and the view of the Mishnah as “authored” and articulated by God are confirmed and validated through the narrative and mythical framework.⁶⁵

Rav Sherira’s jurisprudential claims on behalf of the Mishnah, however, are not simply upheld by the mythical and narrative framework. While the miraculous and divine characteristics of the Mishnah indeed support its unique status, it is not entirely clear how the myths surrounding the Mishnah square with its jurisprudential construction as the ultimate source of Jewish law. Does the Mishnah’s exclusive jurisprudential status rest on its divine and miraculous qualities or on the positivist notion of social convention reflected in the consensus of the sages and nation at large. As in Cover’s model, the sphere of narrative and myth does not simply and uncomplicatedly uphold the nomos, but rather often problematizes its very assumptions.

Sherira’s declaratory statements concerning the divine nature, not only of the Oral Torah per se, but also of its textual articulation in the Mishnah, reflect a “stenographic” model of revelation and a rhetoric of divine “authorship” of the law, as opposed to weaker interpretations of the law’s divine origins underlying the “participatory” model of revelation. This seems to accord with the rhetoric of other late Geonic authorities, most notably Saʿadya, whose claims on behalf of God’s “authorship” of the Oral Torah were often described as rhetorical overstatements/exaggerations, likely motivated by the Karaite challenge to rabbinic authority.⁶⁶ The revelatory model upheld by Saʿadya reflects the comprehensiveness and singularity of the Sinaitic revelation, the content of which might be “retrieved” by jurists, but is not “constituted” by them, and the rejection of “participatory” interventions in the content revealed.⁶⁷ Sherira’s assertions to that effect might similarly be construed as ideologically motivated rhetoric countering Karaite claims.⁶⁸

It must be stressed that the assertion of the textual-statutory demarcation of the Oral Torah (however rhetorical and hyperbolic) represents an unprecedented claim in rabbinic thought. The (few) talmudic sources that clearly subscribe to a theory of a dual Torah given at Sinai, one in writing and the other orally,⁶⁹ provide a rather loose definition of the content of this amorphous body of rabbinic tradition.⁷⁰ In fact, in as much as the textual and substantive limits of the Oral Torah remain undefined in the classical talmudic sources, any rabbinic tradition can tendentiously be subsumed under its authoritative wings. Any rabbinic tradition, be its source and origin as it may, can simply be integrated into the inchoate body of Oral Torah revealed at Sinai.⁷¹ With the exception perhaps of a few talmudic statements,⁷² the Oral Torah represented for the classical rabbis a dynamic and living tradition, not one that is textually and literarily demarcated and confined.⁷³

By contrast, Sherira’s innovative declaration (however exaggerated or overstated) regarding the Mishnah’s exclusive status as the textual-statutory embodiment of the Oral Torah,⁷⁴ underwritten by the theological assertion that God himself guided and ordained the Mishnah’s composition, has far-reaching ramifications on the theoretical perception of the law. Indeed, the idea that the law is textually confined is consistent with legal formalism and the (formal) principles of legality, both of which are largely uncharacteristic of the talmudic worldview. The epistle, moreover, does not simply assert the jurisprudential status of the Mishnah (and Talmud) as the ultimate and complete embodiment of God’s law, but also represents an attempt to articulate the historiographic, mythical, and theological underpinnings of this stance.

While the Mishnah’s perceived stylistic, linguistic, and organizational “perfection” might be regarded as more conducive to Sherira’s presentation of it as a binding and canonical legal “code” containing the ultimate articulation of God’s Oral Torah,⁷⁵ the Talmud is another story altogether. While the Talmud was, more or less, textually fixed by the time of Rav Sherira (that is, in terms of its content, sequence, and general order, notwithstanding ongoing lexical fluidity),⁷⁶ it hardly resembles a legal “code” in any meaningful sense.⁷⁷ And yet, Sherira (in line with other late Geonic authorities) portrayed the Talmud – alongside the Mishnah – (however rhetorically) as a canonical and binding statutory “code” and the ultimate source of Jewish law. Indeed, not unlike the textual-statutory demarcation of the Oral Torah in the text of the Mishnah, “They (=the Geonim) did battle not merely on behalf of an amorphous body of tradition, but also on behalf of a specific literary crystallization, the Babylonian Talmud, which serves as the flagship of that tradition … the Talmud served as the source of authority, from which almost all legal decisions were to be derived.”⁷⁸

As in the case of the Mishnah, Sherira provides us with a theological, mythical, and narrative framework for the unique canonical status of the Talmud. In this context, the epistle maintains a structural and thematic equivalence between the historical processes and conditions that led to the composition of the Mishnah by Rabbi and those which led to the redaction of the Talmud by Ravina and Rav Ashi. Sherira emphasizes, moreover, that, much like Rabbi, Rav Ashi enjoyed the undivided subservience of his colleagues, employing the very same phraseology to portray the two monumental projects. There is even a hint at divine providence, which ostensibly accompanied and guided the redaction of the Talmud by Ravina and Rav Ashi:

During all those years from after (the time of) Rav Papa, Rav Ashi was Gaon at Sura and he had come to Mata Mehasya … and his Torah and authority were affluent and abundant. And Huna bar Nathan, who was the exilarch during his days, and Maremar and Mar Zutra who came after him, were all subordinate to Rav Ashi … as we learned: “Rav Aha the son of Rava said: we too may say that from the days of Rabbi until Rav Ashi, we have not found Torah and authority combined in one person (lit. ‘in one and the same place’)”.⁷⁹

Sherira further asserts that, just like Rabbi’s codification project, the canonization and closure associated with Ravina and Rav Ashi’s redactorial project were predestined and revealed in the Book of Adam. Indeed, after Ravina and Rav Ashi legislative instruction ceased, while only interpretation and analogical-inductive reasoning based on the canonical sources remained within the purview of legitimate juristic activity.

In this manner, (rabbinic) instruction accumulated generation after generation until Ravina at whose time it ceased. As Samuel, the astronomer, had seen written in the Book of Adam⁸⁰: Ashi and Ravina are the conclusion of instruction. And after (this), although there was no instruction, there were interpretations and logical inferences, which are close to instruction, and those rabbis were called rabbanan sabora’e (lit. “the rabbis who conduct logical inferences”).⁸¹

The epistle thus stresses the normative and theological equivalence between the canonical status of the Mishnah and that of the Talmud. By asserting that the composition and redaction of the Talmud was divinely guided, predestined, and socially ratified, Sherira lays the foundation for the unique jurisprudential status of the Talmud, alongside the Mishnah, as the ultimate source of Jewish law and the exclusive and complete textual articulation of God’s Oral Torah.

III Shāfiʽī and the Textual-Statutory Demarcation of Islamic Law

Shāfiʽī is often credited in the literature as the “architect” of Islamic jurisprudence and the promulgator of the “four-sources” theory of Islamic law – that is, the idea that Islamic law is based on four “roots”: Quran, Hadith, consensus (ijmāʽ), and analogy (qiyās).⁸² It has correctly been noted, however, that, since consensus and analogy are in fact viewed by him as subordinate to, and dependent on, the textual sources and not as independent sources of law from which new directives can be derived, they should not be regarded as “official” sources of Islamic law, certainly not on a par with the Quran and Hadith.⁸³

Joseph Lowry has argued in this regard that the various combinations of Quran and Hadith indicated by the concept of bayān lies at the heart of the jurisprudential theory presented in Shāfiʽī’s epistle.⁸⁴ According to this theory, the entirety of the law resides in the complementarity of Quran and Hadith, while all legal norms are necessarily and by definition manifested through one of five possible combinations of these sources: (1) Quran alone; (2) Quran and Hadith together, each expressing the same rule; (3) Quran and Hadith together, whereby the Hadith elaborates that which is only briefly mentioned in the Quran; (4) Hadith alone; (5) and, finally, in case the law is not manifest in either the Quran or the Hadith, one is authorized to engage in ijtihād (legal reasoning) and qiyās (analogical-inductive reasoning) based on strict inferences from the Quran and Hadith. Thus, according to Shāfiʽī, only the textual-statutory sources (i.e., the Quran and Hadith) should be regarded as binding legal sources.

Shāfiʽī’s legal theory – namely, the idea that the Quran and Hadith enjoy an exclusive position as the primary sources of Islamic law, while consensus and legal reasoning are subordinate to the authority of the textual-statutory sources – was developed against the foil of competing theories, which recognized other legal sources as independent sources of law on a par with the Quran and Hadith. At the risk of oversimplification, early Islamic legal theory can be described as divided along the lines of legal “rationalists” (ahl al-ra’y), who used reason in addition to textual sources to determine the law, and legal “traditionalists” (ahl al-ḥadīth), who relied exclusively on the textual sources, the Quran and Hadith, to determine the law. The camps of legal “traditionalists” and “rationalists” represent in fact two extremes, while most jurists occupied a range of attitudes situated in between the two poles.⁸⁵ The followers of al-Ẓāhirī were regarded as the most extreme “traditionalists,” insofar as they relied exclusively on the manifest meaning of the Quran and rejected, not only the use of independent reasoning/discretion (ra’y), but also more restricted forms of logic included under the rubric of qiyās.⁸⁶ Close by were the followers of Ibn Ḥanbal.⁸⁷ The early Ḥanafīs were situated on the opposite end of the spectrum, as they tended to embrace a relatively wide range of legal practices associated with reason and discretion, which extended far beyond the strict use of analogical-inductive reasoning (qiyās).⁸⁸ Shāfiʽī, who launched a systematic critique of the early Ḥanafī use of arbitrary forms of reason, offered a “compromise,” rejecting those dimensions of ra’y that were associated with subjective and independent reasoning, while accepting the doctrine of qiyās in the sense of strict analogical-inductive reasoning based on the textual sources. Thus, he asserts:

No one may express an opinion except on the basis of analogy (قياس) … “Do you yourself,” he continued, “permit someone to say: I employ preference without analogy” (استحسن بغير قياس)? “In my view,” I replied, that is not permissible for anyone – though God knows best. Only scholars should express any such opinions at all, not others, and they should express opinions that are related to a report (الخبر) by following such a report, and in situations in which there is no report, by analogizing from a report (بالقياس على الخبر). If it were permissible to invalidate an analogy, then it would be permissible for the rationalists (لاهل العقول), who are not scholars of religious knowledge (اهل العلم), to express opinions, concerning matters for which there is no report according to whatever answer they happen to have at hand based on preference (من الاستحسان). Opinions given on the basis of anything other than a report or analogy are impermissible (وإن القول بغير خبر ولا قياس لَغَير جائز).⁸⁹

Shāfiʽī also rejected Ibn ʽUlayya’s (d. 834) view of consensus (ijmāʽ) as an independent legal source and insisted, in contrast to the view of Ibn Ḥanbal and others who accepted a broad definition of Hadith, that only authentic Prophetic Hadith should be deemed authoritative and binding.⁹⁰ In the present context, it is particularly instructive to examine Shāfiʽī’s jurisprudential theory against the backdrop of the ideas espoused by his former master, Mālik b. Anas (d. 796), according to whom the ongoing communal practice and collective tradition of Medina, the city of the Prophet, vouchsafed and preserved by the Medinan scholars and those who received from them, should be regarded as a jurisprudential source of law and an independent site of revelation, alongside the Quran and Hadith.⁹¹ The authority vested in the Medinan tradition can be described as customary, bottom-up, communal, memetic (taqlīd-based), and deontic, in contrast to the textual, top-down, hermeneutic (ijtihād-based), and epistemic nature of legal authority in Shāfiʽī’s jurisprudence.⁹² While the early theory of legal authority espoused by Mālik is largely consistent with the perception of legal authority found in the Talmud,⁹³ Shāfiʽī’s construction of legal authority is more compatible with the rhetorical assertions of the late Geonim, most notably those of Saʿadya and Sherira.

In opposition to Mālik’s reliance on bottom-up communal practice (ʽamal) as an independent source of law and carrier of revelation, Shāfiʽī sought to ground the entirety of Islamic law in the textual and revelatory authority vested in the Quran and Prophetic Hadith. The mimetic following of Medinan tradition was viewed by him as a negative form of taqlīd (imitation), contrasted with ijtihād (legal reasoning), which he understood as “the acceptance of a position without (textual-hermeneutic) evidence” (qabūl qawl bi-lā ḥujja).⁹⁴

While Mālik exerted some influence on Shāfiʽī in the earlier stages of his career, in his final years, Shāfiʽī’s critique of Mālik’s communitarian construction of Islamic law and the jurisprudential and revelatory significance attached to Medinan practice (ʽamal ahl al-madīna) matured into a comprehensive polemical treatise entitled Ikhtilāf Mālik (“Disagreement with Mālik”), which was integrated into the Umm (8:513–778).⁹⁵ In a passage contained in this work, Shāfiʽī points out the tendentious, amorphous and ambiguous employment of ʽamal by his Mālikī interlocutors:

So, I cannot comprehend what you mean when you say ʽamal, nor do you seem to know it yourself according to what you have told me, nor could I find clarification with any one of you about what ʽamal or consensus (ijmāʽ) are. I am forced to conclude, then, that you simply call your own opinions ʽamal and consensus (ijmāʽ).⁹⁶

In another passage, Shāfiʽī writes:

I used to hold this opinion with this justification, but I stopped doing so, and may God grant me what is best; because I found some of them [the Medinans] claiming it as tradition (sunna), but then I did not find their claimed tradition to reach back to the prophet.⁹⁷

This assertion highlights the significance Shāfiʽī attached to the textual basis of received tradition. Not unlike Sherira who stressed the reciprocal relationship of the textual-statutory sources and the established rabbinic tradition vouchsafed in the official custom of the two Geonic academies and courts, Shāfiʽī insisted on the reciprocity of received tradition and its textual-statutory embodiment in the form of reliable hadith-reports, in which context tradition is sifted through text and the textual reports are, in turn, validated and confirmed through an unbroken chain of tradition (isnad).

Ahmed El-Shamsy⁹⁸ argued that Shāfiʽī’s epistle on legal theory represents a watershed in Islamic jurisprudence, insofar as the locus of legal authority is transferred in it from the living practice of the Muslim community to an increasingly demarcated canon of textual sources. Prior to Shāfiʽī, the Quran and sunna represented the “raw material” of religious law, vouchsafed in a vague notion of revelation, but, in no way, were regarded as the sole canonical embodiment of God’s revelation. In this context, the Quran and sunna were continuously sifted through the filters of communal practice, local custom, and judicial discretion. Shāfiʽī’s project of legal and theological canonization of the Quran and Hadith⁹⁹ validated their authority as the very fountain of Islamic normativity and embodiment of God’s revelation.

Shāfiʽī’s theory of the textual confinement of God’s law and the elevation of the Quran and Hadith to canonical status as the exclusive sources of Islamic law and ultimate embodiment of divine revelation can shed light on Sherira’s rhetoric surrounding the textual-statutory confinement of God’s law in the text of the Mishnah-cum-Talmud. Both Sherira and Shāfiʽī voiced a clear formalist and legalistic rhetoric connected with the textual-statutory demarcation of the law and its perception as exhaustive, comprehensive, and self-sufficient. Both authors further manifested a discursive shift from communitarian, interpersonal, mimetic, customary, and deontic legal authority to textual, impersonal, hermeneutic, and epistemic legal authority focused on the exclusivity of the textual-statutory sources.

IV The Textual-Statutory Demarcation of Zoroastrian Law

Not unlike their Jewish and Islamic contemporaries, Zoroastrian jurists in the early Abbasid period similarly engaged in a “positivist” enterprise aimed at identifying the authoritative sources of Zoroastrian law. In this context, a formalist and legalistic rhetoric, confining the official sources of the law to a textual-statutory corpus, came to dominate “mainstream” Pahlavi literature. The Zoroastrian jurists sought to establish the normative and theological canonicity (and the textual contours) of the Avesta and Zand as the exclusive and complete articulation of Ohrmazd’s¹⁰⁰ revelation of his law (Pahlavi dād; Avestan and Old Persian dāta-)¹⁰¹ and tradition (Pahlavi dēn; Avestan daēnā)¹⁰² to Zarathustra.¹⁰³ While the Zand itself goes back to the Sasanian period and probably earlier,¹⁰⁴ the ninth- and tenth-century Zoroastrian authors elevated the Zand to canonical and “official” status, both normatively and theologically, and demarcated its substantive boundaries alongside the Avesta.

According to several accounts preserved in the Dēnkard, the Zand was revealed to Zarathustra in its entirety together with the Avesta, much like the rabbinic attempt to trace both the Written and Oral Torah back to Sinai and Shāfiʽī’s argument that the revelation of the Book and Wisdom means the Quran and Prophetic Sunna (concretized in the Hadith). In a manner quite similar to Sherira’s portrayal of Rabbi’s endeavor to recover and retrieve the dispersed content of the Oral Torah revealed to Moses at Sinai (and Ravina and Rav Ashi’s attempt to retrieve the underlying reasons of the Mishnah’s rulings), the Dēnkard portrays a multigenerational project of rediscovery and retrieval of the lost/contaminated contents of the Avesta and Zand undertaken by a series of Iranian kings and sages, highlighting significant moments in this process:¹⁰⁵

Dārāy, son of Dārāy, having committed to writing the entire Avesta and Zand as it had been received by Zarathustra from Ohrmazd, commanded two copies to be made – one to be kept in the gubernatorial treasury and one in the Fortress of Books.

Walaxš, son of Aškān, commanded a memorandum to be made and sent to the various provinces with orders for the safekeeping of the Avesta and Zand as it had come down in unadulterated form, as well as the teachings – to the extent each had escaped the harm and chaos caused by Alexander and the pillaging and robbing by the Romans and were now scattered throughout Erānšahr – They remained with the sages in writing, but also in oral transmission.¹⁰⁶

His majesty Ardashir, king of kings, son of Pābag, guided on the straight path by Tansar, asked that all those scattered teachings be brought to the court. Tansar took charge: some he received, and some he left out of the “canon.” And he issued the following order: As far as we are concerned, any exposition that differs from that in the Mazdayasnian Tradition, but which provides awareness and knowledge, is not inferior.

Shapur (I), king of kings, son of Ardashir, brought back together the writings outside the Tradition on medicine, astrology and astronomy, time and place, nature and accident, becoming and decaying, transformation, logic and the many other crafts and skills that were scattered in India, Rome, and other lands. He compared them with the Avesta and ordered any blemish-free copy to be given to the gubernatorial treasury. And he put up for discussion whether to place with the Mazdayasnian tradition all those that were not contaminated …

Shapur (II), king of kings, son of Ohrmazd, brought everything that was said up for discussion and examination in the dispute with all of the countrymen regarding what constitutes contamination of the waters. After Adurbād escaped unharmed by the word of the ordeal, he said this too (in dispute) with both those (regular) heretics and Nask-studying heretics. And he also said: “Now, we have seen in this world, unless a person leaves his evil Tradition, we shall work on him diligently (to see that he does).” And, so he did.

The present majesty, Xusrō, king of kings, son of Kawād, it is told, when he had overcome heresies and false doctrines by fully opposing them, he increased greatly, according to what was manifest in the Tradition, in every heresy the awareness and detailed examination of the four branches (priests, soldiers, farmers, artisans).

Scholars have previously noted the motif of lost/scattered Iranian wisdom recovered by a series of figures, a trope attested in numerous accounts in Middle Persian, New Persian, and Arabic,¹⁰⁷ while also stressing the affinity between the Iranian trope and similar Jewish traditions concerning the retrieval of the lost wisdom of the Hebrews.¹⁰⁸ In the present context, I note that the Dēnkard’s emphasis on the process of retrieving the scattered contents of the Avesta and Zand,¹⁰⁹ which were “stenographically” recorded by Zarathustra from the mouth of Ohrmazd and handed down “in unadulterated form” from generation to generation, is reminiscent of Sherira’s portrayal of the multigenerational transmission/retrieval of the Oral Torah and particularly the involvement of Rabbi, and Ravina and Rav Ashi, in this process. The emphasis on fighting off heresy and false doctrine¹¹⁰ (and particularly disbelief in the authoritativeness of the Zand itself)¹¹¹ is similarly reminiscent of the Karaite challenge to rabbinic tradition, which seems to underlie (at least in part) Sherira’s agenda in composing his epistle.¹¹²

The Dēnkard’s account clearly reflects a “retrieval” model of legal transmission and a “stenographic” theory of revelation, according to which the extant Zoroastrian Tradition is the result of retrieval and preservation of that which has already been received in complete form by Zarathustra (hamāg abestāg ud zand čiyōn zarduxšt az ohrmazd padīrift; “the entire Avesta and Zand, as it had been received by Zarathustra from Ohrmazd”).

This perspective, to be sure, is novel.¹¹³ The structure of the surviving works of Zand¹¹⁴ (redacted circa the late Sasanian period) generally reflects a “cumulative” model of legal transmission (which may be connected with a “participatory” paradigm of revelatory theology), according to which each generation adds another layer of tradition and participates in an ongoing effort to “constitute” the revelatory content. In that sense, even the insights of later jurists are introduced in the Zand with the formula pad abestāg paydāg (“in the Avesta it is manifest”).¹¹⁵ According to the pre-Abbasid scheme, the jurists were perceived as legislators partaking in the creation of Zoroastrian law.¹¹⁶ The Dēnkard’s account, by contrast, echoes a legal-theological shift in Zoroastrian thought towards a stenographic-retrieval model of legal revelation, one which is likely informed by the legal and theological shifts that took place in the Islamic and Jewish legal cultures of the time, as reflected, in the thought of Sherira and Shāfiʽī.

Several Pahlavi texts describe a council/convention headed by the Sasanian king Xusrō that is said to have taken place in the sixth century. An illuminating version of this event, found in the letters of Mānuščihr, maintains that Xusrō and his council of jurists were essentially responsible for the canonization of the corpus of Avesta and Zand and the demarcation of its literary contours and legal contents:¹¹⁷

It was like when Weh-šābuhr showed in the assembly of Xusrō of immortal soul, king of kings, son of Kawād, the twenty-one divisions (of the Avesta and Zand)¹¹⁸ so that the “sages” (lit. “magi”) abided by it. And they sealed a document (nibišt āwišt)¹¹⁹ so that it was the way the “sages” (lit. “magi”) (agreed) with it and as it had been decided. And, afterwards, the “sages” (lit. “magi”) agreed with all the decisions he showed them and they were unanimous (ham-dādestān): to regard (them) as something special, as being on the level of certainty,¹²⁰ and in firm usage.¹²¹

In line with Sherira’s account of the canonization of the Mishnah by Rabbi and that of the Talmud by Ravina and Rav Ashi, Mānuščihr envisions the canonization of the Avesta and Zand by Weh-šābuhr, a Zoroastrian jurist and high-priest (mowbedān mowbed) who lived during the sixth century,¹²² as a “constitutional” moment in legal and revelatory history. Much like the authorization of the Mishnah’s codification by Antoninus, Mānuščihr stresses that the canonization of the Avesta and Zand took place at a council summoned by the Sasanian King Xusrō and was thus authorized by his majesty.¹²³ Mānuščihr further emphasizes the unique legal and theological status of the Avesta and Zand, which were (now) believed to contain the binding and complete articulation of God’s revelation, pointing out that the jurists agreed “to regard (them) as something special, as being on the level of certainty, and in firm usage.” Sherira and Mānuščihr similarly stress the submission of Weh-šābuhr’s, and Rabbi’s (and Ravina and Rav Ashi’s), colleagues and their yielding to the canonization project; both stress the idea of finality and closure connected with the “sealing” of the canonized works; and, finally, both authors emphasize the consensus and unanimity of the jurists.

The legal and theological canonicity accorded by Mānuščihr to the Avesta and Zand and that accorded by Sherira to the Mishnah-cum-Talmud are similar in many ways to the claims made by Shāfiʽī regarding the status of the Quran and Hadith. All three authors seem to participate in the elevation of their respective sacred works to canonical status in a normative and theological sense, while attempting to demarcate and confine God’s law to a textual corpus. They share a formalist and legalistic rhetoric, connected with the textual-statutory confinement of the law, its comprehensiveness, and self-sufficiency. They similarly advocate a strong “authorial” interpretation of the law’s divinity, and display a “retrieval” model of legal transmission in which the jurists are entrusted merely with unearthing and discovering that which has already been revealed by God. The “councils” surrounding the canonization projects similarly serve the purpose of grounding the formalist and legalistic jurisprudential rhetoric of these authors, connected with the textual-statutory confinement of God’s law, in a founding myth.

In his letters, Mānuščihr launched a scathing attack directed at his brother Zādspram, himself a jurist and high-priest, for seeking to relax the requirements of the baršnūm ceremony – an Avestan purification ritual lasting nine days and nights prescribed for the removal of severe contamination (especially corpse impurity)¹²⁴ – utilizing in its stead a much simpler ceremony (pixag) consisting merely of fifteen ablutions, which was initially prescribed for lighter forms of ritual impurity.¹²⁵ Among other things, Mānuščihr criticizes his brother Zādspram for relying on subjective and independent reasoning (“for he [=Zādspram] spoke his own view as it seemed to him” [čē-š wēnišn xwēš čiyōn-iš sahist guft])¹²⁶ that is not backed up by the textual-statutory sources. Mānuščihr further asserts: “The other things he [=Zādspram] wrote in connection with this – except for those (decisions) which are ‘manifest’ to him to be the words of Abarg and (contained) in (at least) one teaching (čāštag) among them – he adjudicated as it seemed to him and as he deemed (fit) (sahist ī čiyōn-iš wizīrēnīd).”¹²⁷ Mānuščihr seems to be accusing his brother Zādspram of issuing legal decisions on the basis of his own subjective reasoning and what seems to him (sahist) – rather than on the basis of the textual-statutory sources (the Avesta and Zand) – at least insofar as those decisions in which he does not rely on the teachings of Abarg and the other teachers of old recorded in the Zand.¹²⁸

Read in the light of contemporaneous debates among Muslim and Jewish jurists regarding the jurisprudential and juridical status of reason, logic, and discretion, it would seem that the disagreement between Mānuščihr and Zādspram, two of the foremost jurists of the Zoroastrian community of Iran in the ninth-century, should be understood along similar lines. Mānuščihr, in line with the mainstream of legal “traditionalists,” argues that the law is based on the textual-statutory sources, whereas Zādspram seems to have recognized independent reasoning based on subjective discretion as a legitimate source of adjudication. It is, admittedly, somewhat difficult to reconstruct the actual position of Zādspram, whose part of the correspondence (and other legal writings) did not survive.¹²⁹ But even to the extent that Mānuščihr might have misrepresented his brother’s actual position, using him perhaps as a straw man (not unlike certain Shāfiʽī attacks on Ḥanafī doctrine), the letters of Mānuščihr provide an indispensable glimpse into the legal theoretical discourse and concerns of Zoroastrian jurists in the ninth century. As such, Mānuščihr’s juxtaposition of two competing theories of jurisprudence and adjudication, corresponding with the contemporaneous camps of legal “traditionalists” and “rationalists,” however inaccurately attributed to individual jurists, constitutes an invaluable source for the reconstruction and contextualization of Zoroastrian legal theory within the broader legal theoretical “landscape” that pervaded the Islamicate Near East in the early Abbasid period.¹³⁰

V Conclusion

In this article, I hope to have contributed to the unsettling of the Western bifurcation inherent in the “law and religion” paradigm, by examining the overlapping functions of the two categories as two sides of the same coin – law as religion, religion as law – in Jewish, Islamic, and Zoroastrian discussions of legality and revelation in the early Abbasid period. In this context, we saw that “religious” or “revelatory” rhetoric work in tandem to reflect a coherent jurisprudential view. In all three systems, we traced a process of theologization of the law (i.e., advocacy of strong “authorial” models of revelation and “retrieval” models of legal transmission, while minimizing in the process the role of human agency in effecting the content of revelation), on the one hand, and a process of textual demarcation and confinement (giving rise in embryonic fashion to the principle of “legality” entailing the law’s prospectiveness and stability), on the other hand.

We saw that Sherira, Shāfiʽī, and Mānuščihr played a particularly significant role in framing and articulating the stakes of the normative and theological canonization of their respective religious traditions, by insisting on the textual confinement of God’s revelation – as pronounced at the initial revelatory moment in unadulterated form – in the Mishnah-cum-Talmud, Hadith, and Zand, corpora which soon enough came to be regarded as the exclusive, complete, and authoritative articulations of the law (alongside the Torah, Quran, and Avesta). Indeed, the parallel diachronic shifts in each of these religious traditions point to a broader legal-theological turn in the Islamicate culture of the early Abbasid period, which has major implications for mapping the history of the dynamics of law and religion.