Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-25T06:17:33.017Z Has data issue: false hasContentIssue false
  • English
  • Français

“One Young and the Other Old”—Halakhah and Aggadah as Law and Story

Published online by Cambridge University Press:  18 July 2014

Shulamit Almog
Shulamit Almog
Affiliation:
Faculty of Law, Haifa University, Haifa, Israel, [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

The interrelationship between Halakhah (Jewish law) and Aggadah (Jewish Legend) evokes potent insights, relevant to most disciplines that investigate law as a cultural practice, especially in the present-day Law and Literature field. This contention will be elaborated by proposing the two phased paradigm of literature alongside law. According to this paradigm, after considering the limits and sometimes failures of law, the next step is the attempt to deal with those effectively and to keep striving towards truth and justice within difficult realities. The Halakhah and Aggadah combination reflects the literature alongside law paradigm by creating a dynamic model of interpretation that is derived from a canon that is “both sealed and open”, and from the extensive use of narrative. Thus the Halakhah and Aggadah juxtaposition creates an authentic balance that while being aware to the weakness of law, continuously re-establishes it as a vital effort, characterized by failures and disappointments, but also by vision and achievements.

Résumé

L'étude des rapports entre la Halakhah (loi hébraïque) et l'Aggadah (légende juive intéresse nombre de disciplines s'occupant du droit en tant que pratique culturelle et (particulièrement le champ de droit et littérature. Cet article propose comme cadre d'analyse le paradigme en deux phases de la littérature accompagnant le droit. Dans cette perspective, on considère dans un premier temps les limites sinon les défauts du droit, pour ensuite tenter de les affronter efficacement et d'atteindre la vérité et la justice au sein de réalités difficiles. La combinaison de la Halakhah et de l'Aggadah reflète ce paradigme de la littérature accompagnant le droit en ce qu'elle crée un modèle d'interprétation dynamique dérivé d'un canon qui est «à la fois scellé et ouvert » et d'un large recours à la narration. La juxtaposition de la Halakhah et de l'Aggadah crée un vrai équilibre qui, tout en demeurant conscient de la faiblesse du droit, en réaffirme continuellement le souffle vital, caractérisé par des échecs et des déceptions tout autant que par des avancées et de l'imagination.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 18 , Issue 2 , August 2003 , pp. 27 - 43
Copyright
Copyright © Canadian Law and Society Association 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Levinas, I., Nine Talmudic Readings, trans. Aronowicz, A. (Bloomington: Indiana University Press, 1990) at 121.Google Scholar

2 Levinas, I., Nine Talmudic Readings, trans. Epstein, D. (Jerusalem & Tel Aviv: Shocken, 2001) at 255Google Scholar [Hebrew]. The Talmudic Readings were published originally in French: Levinas, I., Quatre Lectures Talmudiques, Paris, Editions de Minuit, 1968Google Scholar); Levinas, I., Du Sacre Au Saint: Cinq Nouvelles Lectures Talmudiques, Paris, Éditions de Minuit, 1977).Google Scholar

3 Babylonian Talmud, Tractate Nazir 66a–66b.

4 For a detailed bibliography of the main publications until the mid-1990's, see Ward, I., Law and Literature – Possibilities and Perspectives (Cambridge: Cambridge University Press, 1995) at 246–60.CrossRefGoogle Scholar Listed below are a number of publications in the law and literature field which have appeared in recent years: Aristodemou, M., Law & Literature: Journeys from here to Eternity (Oxford: Oxford University Press, 2000)Google Scholar; Ball, M.S., Called By Stories (Durham: Duke University Press, 2000)Google Scholar; Berns, S., To Speak as A Judge: Difference, Voice and Power (Aldershot: Dartmouth, 1999)Google Scholar; Brooks, P. & Gerwitz, P., eds., Law's Stories – Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996)Google Scholar; Brooks, P., Troubling Confessions: Speaking Guilt in Law and Literature (Chicago: The University of Chicago Press, 2000)Google Scholar; Bruner, J., Making Stories: Law, Literature, Life (New York: Farrar, Strauss & Giroux, 2002)Google Scholar; Crane, Gregg D., Race, Citizenship, and Law in American Literature (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Freeman, M. & Lewis, A.D.E., Law and Literature (Oxford: Oxford University Press, 1999)Google Scholar; Hutching, P.J., Criminal Spectre in Law, Literature and Aesthetics: Incriminating Subjects (London & New York: Routledge, 2001)Google Scholar; Morison, J. & Bell, C., eds., Tall Stories? Reading Law and Literature (Aldershot: Dartmouth, 1996)Google Scholar; Polloczek, D., Literature and Legal Discourse: Equity and Ethics from Sterne to Conrad (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar; Posner, R., Law and Literature-A Misunderstood Relation (Cambridge: Harvard University Press, 1998)Google Scholar; Rockwood, B., ed., Law and Literature Perspectives (New York: Peter Lang Publishing, 1998)Google Scholar; West, R., Caring for Justice (New York: New York University Press, 1997)Google Scholar; Williams, M., Empty Justice: One Hundred Years of Law, Literature and Philosophy (London: Cavendish Publishing, 2002)Google Scholar; Ziółkowski, T., The Mirror of Justice – Literary Reflections of Legal Crisis (Princeton: Princeton University Press, 1997).Google Scholar

5 For details regarding this classification, see Minda, G., Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York University Press, 1995) at 150–53Google Scholar; Weisberg, R., “The Law-Literature Enterprise” (1988) 1 Yale J.L. & Human. 1Google Scholar; I. Ward, supra note 4 at 22–27.

6 Cover, R., “Nomos and Narrative” in Minow, M., Ryan, M. & Sarat, A., eds., Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992) 95 at 95–96Google Scholar [hereinafter, The Essays of Robert Cover]. Leaning on some examples used by Cover in order to illustrate the nature of the normative universe, and on his self-description as “graced with a deep and abiding religious background” (Cover, R., “Obligation: A Jewish Jurisprudence of the Social Order” (1988) 5 J. of L. & Religion 65CrossRefGoogle Scholar) it seems that the nomos Cover envisaged was highly influenced by his life-long interest in Jewish texts, including Halakhah and Aggadah. For a description of Cover's engagement with Jewish sources see: Wizner, S., “Repairing the World Through Law: A Reflection On Robert Cover's Social Activism” (1996) 8 Cardozo Studies in Law & Literature 1 at 5–7.CrossRefGoogle Scholar

7 According to Culler, extra-literary functions of narrative structures can be of help to literature because they indicate the ways in which literature relates to other forms of representation: “The study of basic narrative structures is one example of the way in which models and categories that are initially drawn from the study of literary works turn out to have wider implications and make possible productive investigations of the relationships between literature and other modes of ordering and representing experience.” Culler, J., The Pursuit of Signs: Semiotics, Literature, Deconstructions (Ithaca: Cornell University Press, 1981) at 215.Google Scholar

8 A significant contribution to the study of the links between law and narrative was constituted by the discipline of law and literature. See e.g. Papke, D.R., Narrative and the Legal Discourse (Liverpool: Deborah Charles Publications, 1991)Google Scholar; Jackson, B.S., Law, Fact and Narrative Coherence (Merseyside: Deborah Charles Publications, 1991)Google Scholar; Nussbaum, M.C., Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995)Google Scholar; West, R., Narrative, Authority and the Law (Ann Arbor: University of Michigan Press, 1993)Google Scholar; Ross, T., Just Stories (Boston: Beacon Press, 1996)Google Scholar; Lame, L.H., Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (Pennsylvania: Pennsylvania State University Press, 1995)Google Scholar; Schaller, B.R., A Vision of American Law: Judging Law, Literature and the Stories We Tell (Westport & London: Praeger, 1997)Google Scholar; Thompson, M., Reproducing Narrative: Gender, Reproduction and the Law (Brookfield: Ashgate, 1998)Google Scholar; Almog, S., “From Sterne and Borges to Lost Storytellers: Cyberspace, Narrative and Law” (2003) 13 Fordham Intellectual Property, Entertainment and Media L.J. 1Google Scholar; Minda, supra note 5 at 149–66; Ward, supra note 4 at 4–15; Binder and Weisberg offer a comprehensive survey of the law and literature related narrative discourse in chapter three of their recent work. See Binder, G. & Weisberg, R., Literary Criticisms of Law (Princeton: Princeton University Press, 2000) at 201–87.Google Scholar

9 For elaboration of this paradigm, see Almog, S., “Literature Alongside Law as a Contemporary Paradigm” (2001) 13 Cultural Dynamics 53.CrossRefGoogle Scholar

10 As Minda describes it: “Modern legal theories believe that they can discover the ‘right answers’ or ‘correct interpretation’ by applying distinctive legal methods (…) Legal modernism symbolizes the progressive union of scientific objectivity and instrumental rationality in pursuit of the intellectual project of twentieth-century Enlightenment—the century-old quest for universal truth (…)” Minda, supra note 5 at 5. See also Goodrich & Carlson: “The postmodern legal recourse to other disciplines (…) represents much more than a simple proliferation of academic concerns or a mere invention of precedence and establishment. At an institutional level it represents the symbolic collapse of the concept and practice of any singular or sovereign jurisprudence. The postmodern legal mind introduces a series of “minor jurisprudences” or partial forms of legal knowledge that both compete with and subvert the lingering and far from exhausted modernist conception of a unitary system or notionally complete totality of legal rules”; Goodrich, P. & Carlson, D.G., eds., Law and the Postmodern Mind (Ann Arbor: University of Michigan Press, 1988) at 2.Google Scholar

11 A description of law according to the global law paradigm was recently offered by Aharon Barak: “There is no “legal vacumm”. According to my outlook, law fills the whole world. There is no sphere containing no law and no legal criteria. Every human act is encompassed in the world of law (…) Everything can be resolved by a court, in the sense that law can take a view as to its legality.” See Barak, A., “Forward: A Judge on Judging: the Role of a Supreme Court in a Democracy” (2002) 116(1) Harv. L. Rev. 19 at 98.Google Scholar

12 For a description of the violent side of law see: R. Cover, “Violence and the Word” in The Essays of Robert Cover, supra note 6, 203.

13 Dimock, W.C., Residues of Justice: Literature, Law and Philosophy (Berkeley: University of California Press, 1996) at 10.Google Scholar Compare to Iser, who describes literature as penetrating ‘unavailable territories’ by means of its consistent consideration of the banished, the unknown, and the inconceivable, which the law tends to ignore: Iser, W., Prospecting (Baltimore: Johns Hopkins University Press, 1989 at 211–12.Google Scholar

14 For a discussion of the role emotions play in ethical decision-making, see Nussbaum, supra note 8.

15 White, J.B., Acts of Hope (Chicago: University of Chicago Press, 1994) at 306.CrossRefGoogle Scholar

16 Rorty, R., Contingency, Irony and Solidarity (Cambridge: Cambridge University Press, 1989) at XV.CrossRefGoogle Scholar

17 Ibid, at XVI.

18 This literature contains the following compilations: Midrash, collections of rules with homiletic interpretations and of legends on various passages in the Scriptures; Mishna, collection of laws compiled by Rabbi Judah Hanasi (Judah the President) about 200 A.D.; Tosefta, a supplement to the Mishna, and Talmud, the commentaries on the Mishna; the Babylonian Talmud compiled about 500 A.D.; and the Jerusalem Talmud, compiled about 375 A.D.).

19 Neusner, J., The Aggadic Role in Halakhic Discourse, vol. 1 (Lanham: University Press of America, 2001) at ix.Google Scholar For a description of the cultural complexity of the Halakhah and Aggadah combination, see Kagan, Z., Halakha and Aggada as a Code for Literature (Jerusalem: Bialik Institute, 1988) [Hebrew].Google Scholar

20 See Alon, M., Jewish Law: History, Sources, Principles, trans, by Auerbach, B. & Sykes, M.J. vol. 1, (Philadelphia & Jerusalem: The Jewish Publication Society, 1994).Google Scholar According to Neusner, Halakhah is: ‘Law, norms of behavior, expressed in legal formulations of rules of correct conduct. The halakah derives from the Scripture, the Mishnah, the Tosefta, the two Talmuds (Babylonian and Yerushalmi or Jerusalem), and some exegetical studies of the legal passages of Exodus, Leviticus, Numbers, and Deuteronomy called Tannaite Midrashim.”; see also Neusner, J., Recovering Judaism: The Universal Dimension of Judaism (Minneapolis: Fortress Press, 2000) at 192.Google Scholar

21 For example, Saperstein writes: ““Aggadah” is best defined negatively as the nonlegal component of rabbinic discourse. Among its characteristics are the frequent use of hyperbole and other forms of figurative languages, the variety of levels ranging from the profoundly intellectual to the unabashedly popular, the spectrums of tones including both high seriousness and good-natured banter, and the juxtaposition of two or more mutually incompatible opinions with no attempt to reach a definitive and binding conclusion.” in Saperstein, M., Decoding the Rabbis: A Thirteenth-Century Commentary of the Aggadah (Cambridge, Harvard University Press, 1980).Google Scholar Compare to Neusner, who defines Aggadah as “lore, norms of belief, expressed in narrative, including midrash, the rereading and retelling of scriptural stories; a type of writing in Rabbinic literature.” Neusner, ibid., at 192.

22 Even though extensive use was made of the Aggadah in later times, there was no period, following that of the Talmud, in which there was any comparable degree of merging between Halakhah and Aggadah as can be found in Talmudic literature. See Alon, supra note 20 at 95.

23 Even if there are unique characteristics in the Halakhah and Aggadah phenomenon, combinatory models with similar characteristics can be found in the history of other cultures as well. For the integration of Greek ideals of law and justice with other cultural achievements see Jaeger, W., Paideia: The Ideals of Greek Culture, trans. By Highet, G., 2nd ed., vol. 1 (Oxford: Oxford University Press, 1945) at 99–115.Google Scholar Scholars have noted the links between ancient French literature and the formation of French law in the twelfth and thirteenth centuries. See Bloch, H.R., Medieval French Literature and Law (Berkeley: University of California Press, 1977).Google Scholar For links between Christian legends about the lives of saints and the formation of legal concepts, see I. Englard, “The Stick of Rava, The Altar of St. Nicholas and the Chain of King David” (1981/82) 52 Tarbiz 591 at 591–94 [Hebrew]. For correlations between law and literature in fourteenth-century England, see Green, R.F., “A Crisis of Truth – Literature and Law” in Ricardian England (Philadelphia: University of Pennsylvania Press, 1999).Google Scholar For the links between Shakespeare's plays and the developments in English legal methods, such as the tensions between common law and equity, see Dickinson, J., “Renaissance Equity and Measure for Measure” (1962) 13 Shakespeare Quarterly 287CrossRefGoogle Scholar; Keeton, G.W., Shakespeare's Legal and Political Background (London: Sir Issac Titman & Suns Ltd., 1967).Google Scholar For the links between literary works and the emerging of various doctrines in American law, see Thomas, B., Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville (Cambridge: Cambridge University Press, 1990).Google Scholar

24 Shechter, I., “Introduction to Aggadah” in Introduction to Oral Law (Tel Aviv: The Open University of Israel, 1992) 250 [Hebrew].Google Scholar

25 Shinan, A., The World of Aggadic Literature (Tel Aviv: Ministry of Defense, 1987) at 102Google Scholar [Hebrew].

26 Jerusalem Talmud, Peah 2a.

27 Shinan, supra note 25 at 96.

28 Ibid. at 97.

29 Alon, supra note 20 at 102–104.

30 Shinan, supra note 25 at 99.

31 Mack, H., The Aggadic Midrash Literature, 2nd ed. (Tel Aviv: Ministry of Defence, 1995) at 25, 110–11.Google Scholar According to another assumption, the Aggadah was promoted not only to serve legalistic needs of the sages, but also as a result of demand by the people of Israel, who needed its escapist dimension as a distraction from daily hardship. Shinan, supra note 25 at 18–19.

32 Neusner, J., The Aggadic Role in Halakhic Discourse, vol. 3, (Lanham: University Press of America, 2001) at 265.Google Scholar

33 Ibid., at 266. See also Neusner, supra note 19 at xii: “Overall, the category-formations of Aggadah and those of the Halakhah are indeed incompatible. The Aggadic documents rarely introduce Halakhic materials in their exposition of Aggadic propositions. And the contrary is also the case.”

34 Saperstein, supra note 21 at 1.

35 Ibid., at 1–20. As Saperstein elaborates, attacks upon the Aggadah appeared not only in Jewish discourse, but also in the polemical literature of Islam and in medieval Christian literature, Ibid. at 1–6. See also Mack, supra note 31 at 20–26.

36 Neusner, supra note 32 at 268.

37 Kagan, Z., “Halakhah and Aggadah – The Paradoxical Context” (2002) 18 Bar lian Law Studies 213 at 214 [Hebrew].Google Scholar

38 Ibid., at 217.

39 Compare to Cover's distinction between interpreting law and interpreting literature. Although acknowledging the immeasurable value of narrative to law, Cover explains that interpreting law is an essentially different discipline from interpretation in literature and the humanities. Cover, R., “The Bonds of Constitutional interpretation: Of the Word, The Deed and the Role” (1986) 20 Georgia L. Rev. 815 at 816.Google Scholar

40 Iser, W., The Range of Interpretation (New York: Columbia University Press, 2000) at 13.Google Scholar

41 Ibid. On the concept of the duality of the canon, Moshe Halbertal writes: “The sealing of the text engenders both the bestowal and the removal of authority (…) The moment the text was sealed, authority was removed from the writers of the text and transferred to its interpreters; denied to the prophets and awarded to the Sages.” Halbertal, M., People of the Book: Canon, Meaning, and Authority (Cambridge, Mass.: Harvard University Press, 1997) at 18.Google Scholar

42 Iser quotes Rojtman in this connection: “The role of the interpretation is to combine units from differing systems, to link the textual with the ritual, written characters with existential significations (…) [The] uncertainty principle—situated between precise boundaries—will allow us to lay the methodological foundations of commentary. Jewish exegesis has constructed for itself an entire hermeneutic apparatus that regulates these relations between textual premises and existential conclusions, between original formulations and semantic translations.” Rojtman, B., Black Fire on White Fire: An Essay on Jewish Hemeneutics from Midrash to Kabbalah, trans, by Rendali, S. (Berkeley: University of California Press, 1998) at 4–5.Google Scholar

43 Kook, Rabbi, Igrot Harayah, 2nd rev. ed. (Jerusalem: Rabbi Kook Institute, 1965) at #103, 123 [Hebrew].Google Scholar

44 One should note that the perception of Aggadah and its importance changed during the generations. Generally, the Aggadah, although never entirely abandoned, diminished in stature. See Mack, supra note 31 at 20–26.

45 Peter Brooks writes: “Only from another tradition of critique and reading can we summon the law to recognize what it represses (…) What has become a loosely-defined movement called “law and literature” represents a conscious breaching of barriers between disciplines, maintaining that those barriers are artificial dykes erected against the inrush of forms of critical thinking the law considers irrelevant, an attempt to disturb certain complacencies of legal thinking.” Brooks, P., “Policing Stories” (2002) 18 Bar Ilan Law Studies 249 at 261Google Scholar [Hebrew]. The creators of Halakhah and Aggadah, so it seems, indeed defied any complacency of thinking, legal or other.

46 Engel, D.M., “Origin Myths: Narratives of Authority, Resistance, Disability, and Law” (1993) 27 L. & Soc'y Rev. 785 at 789–90.CrossRefGoogle Scholar

47 White, J. B., The Legal Imagination (Boston: Little, Brown & Company, 1973) at 859.Google Scholar

48 Ibid., at 859–60.

49 Miller, J. Hillis, The Ethics of Reading (New York: Columbia University Press, 1987) at 2.Google Scholar

50 Babylonian Talmud, Baba Mezi'a 59b.

51 On the extraordinary personality of Rabbi Eliezer, see Kagan, supra note 19 at 35–50.

52 As Cover notes, the issues raised by this narrative “are connected to the theoretical, philosophical, and theological disputes that raged in Judaism for hundreds of years concerning the relative authority of law and prophecy.” Cover, supra note 6 at 118, n. 66.

53 This is one of the two conclusions cited in connection with this aggadah. For the other conclusion and the significance of the difference between the two conclusions, see Sagi, A., ‘Elu va-Elu’: A Study on the Meaning of Halakhic Discourse (Tel Aviv: Hakibbutz Hameuchad, 1996) at 14–18Google Scholar [Hebrew].

54 Menahem Alon interprets this in the same sense by saying that even if the ‘abstract truth’ is according to Rabbi Eliezer, the legal truth is according to the view of the Sages. Alon, supra note 20 at 260–61.

55 A useful introduction to this vast literature may be found in Englard, I., “Majority Decision vs. Individual Truth: The Interpretations of ‘The Oven of Achnai’ Aggadah” (1975) Tradition 137.Google Scholar

56 Ibid.

57 For further discussion about “The Oven of Akhnai” see Rubenstein, J.L., Talmudic Stories: Narrative Art, Composition, and Culture (Baltimore & London: The Johns Hopkins University Press, 1999) at 34–63.Google Scholar Another well known story deals with the decision regarding the dispute between the two schools of thought, Beth Hillel and Beth Shammai: “R. Abba stated in the name of Samuel: For three years there was a dispute between Beth Shammai and Beth Hillel, the former asserting, ‘The halachah is in agreement with our views’ and the latter contending, ‘The halachah is in agreement with our views.’ Then a bath kol issued announcing, ‘[The utterances of] both are the words of the living God, but the halachah is in agreement with the rulings of Beth Hillel.’” Babylonian Talmud, Erubin 13b. Here, too, as in the story in Baba Mezi'a, a heavenly voice intervenes, but the influence of voice is completely different in this case. In the first story the Sages altogether negate the intervention of the heavenly voice which Rabbi Eliezer calls upon to vindicate him in the dispute between them. In the second story the intervention of the heavenly voice is accepted. According to the analysis of Sagi, the difference in the status of the heavenly voice is to be found in the different role it plays in each of these two stories. In the first story, it functions as a means to deny open discussion, to negate any validity and legitimacy to accepted truths. In the second story, on the other hand, its role is the opposite: it indicates the value of open argument, and the value of the rejected viewpoint, that of Beth Shammai. (Sagi, supra note 53 at 16). According to the final rule, the position of Beth Hillel is to be preferred. But even if the ruling is according to Beth Hillel in the practical sphere, from the theoretical standpoint the position of both schools of thought are identical. Both are of equal value because ‘both are the words of the living God.’ This is true just as that is true! For further discussion of this Aggadah see Rubenstein, Ibid., at 1–2.

58 Babylonian Talmud, Baba Cama 60b.

59 Levinas, supra note 1 at 194.

60 Almog, supra note 9 at 61.