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Jesus' Legal Theory—A Rabbinic Reading

Published online by Cambridge University Press:  24 April 2015

Chaim Saiman
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Extract

These are heady times in America's law and religion conversation. On the campaign trail in 1999, then-candidate George W. Bush declared Jesus to be his favorite political philosopher. Since his election in 2001, legal commentators have criticized both President Bush and the Supreme Court for improperly basing their decisions on their sectarian Christian convictions. Though we pledge to be one nation under God, a recent characterization of the law and religion discourse sees America as two sub-nations divided by God. Moreover, debate concerning the intersection between law, politics and religion has moved from the law reviews to the New York Times Sunday Magazine, which has published over twenty feature-length articles on these issues since President Bush took office in 2001. Today, more than anytime in the past century, the ideas of an itinerant first-century preacher from Bethlehem are relevant to American law.

Type
AALS Jewish Law Section Papers
Information
Journal of Law and Religion , Volume 23 , Issue 1 , 2007 , pp. 97 - 130
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2007

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References

1. See Stephen Buttry, Des Moines Register: Candidates Focus on Christian Beliefs, http://archives.cnn.com/1999/ALLPOLITICS/stories/12/15/religion.register/ (Dec. 15, 1999).

2. See Geoffrey Stone, Religious Rights and Wrongs, http://uchicagolaw.typepad.com/faculty/2006/07/religious_right.html#more (July 22, 2006) (critique of President Bush); Geoffrey Stone, Our Faith-Based Justices, http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased_.html (Apr. 20, 2007) (critique of “faith-based Justices”).

3. See Feldman, Noah, Divided by God: America's Church-State Problem—and What We Should Do About It (Farrar, Straus & Giroux 2005)Google Scholar.

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5. The Teachings of Modern Christianity On Law, Politics & Human Nature (Witte, John Jr. & Alexander, Frank S. eds., Colum. U. Press 2006)Google Scholar.

6. See Greenawalt, Kent, Reflections on Christian Jurisprudence and Political Philosophy, in The Teachings of Modern Christianity On Law, Politics & Human Nature 716 (Witte, John Jr. & Alexander, Frank S. eds., Colum. U. Press 2006)Google Scholar.

7. See Skeel, David A. Jr., The Unbearable Lightness of Christian Legal Scholarship (unpublished ms. 08 2, 2006) (abstract available at http://ssrn.com/abstract=929850)Google Scholar.

8. Christian Perspectives on Legal Thought (McConnell, Michael W., Cochran, Robert F. Jr. & Cannella, Angela C. eds., Yale U. Press 2001)Google Scholar.

9. See Stuntz, William J., Christian Legal Theory, 116 Harv. L. Rev. 1707 (2003)CrossRefGoogle Scholar.

10. Faith and Law: How Religious Traditions From Calvinism To Islam View American Law (Cochran, Robert F. Jr. ed., N.Y. U. Press 2007) [hereinafter Faith and Law]Google Scholar.

11. A similar trend can be seen in Islam. One scholar has noted “students of Islamic law have a rather odd habit: They tend to leave to the Prophet himself out of consideration when analyzing the development of Islamic law.” See Rosen, Lawrence, Muhammad's Sociological Jurisprudence in The Justice of Islam: Comparative Perspectives on Islamic Law and Society 176, 177 (Oxford U. Press 2000)CrossRefGoogle Scholar. For a notable exception to this trend, see Waldron, Jeremy, “Dead To the Law”: Paul's Antinomianism, 28 Cardozo L. Rev. 301 (2006)Google Scholar, and in a different vein, Hartigan, Emily Fowler, Law and Mystery: Calling the Letter to Life through the Spirit of the Law of State Constitutions, 6 J.L. & Religion 225 (1988)CrossRefGoogle Scholar.

12. For a discussion of some of the complexities of this type of discussion in a prelude of a yet-to-be-published book tackling the subject, see Meier, John P., The Historical Jesus and the Historical Law: Some Problems Within the Problem, 65 Cath. Biblical Q. 52, 63 (2003)Google Scholar.

13. 2 Cor 3:6 (all Biblical citations are taken from the NKJV).

14. See e.g. Talmud Shabbat 127a; more generally, Lamm, Norman, Torah Lishmah: Torah for Torah's Sake (Ktav Pub. 1989) (author translation)Google Scholar.

15. Talmud, Berakhot, 8a.

16. See e.g. Acts 15 & Gal 2 (unless otherwise noted, all Biblical citations are from the RSV). More recently, see e.g. Banks, Robert, Jesus and the Law in the Synoptic Tradition 242 (Cambridge U. Press 1975)Google Scholar; Sanders, E.P., Jesus and Judaism (Fortress Press 1985)Google Scholar; Watson, Alan, Jesus and the Law (U. Ga. Press 1996)Google Scholar; Loader, William R.G., Jesus' Attitude Towards the Law: A Study of the Gospels (W.B. Eerdmans Publg. 2002)Google Scholar; Meier, John P., A Marginal Jew: Rethinking the Historical Jesus (vol. 4, 2007)Google Scholar.

17. Were I were more inclined toward continental legal thought, I might describe law as an “epistemic subject” formed by a set of “discursive practices” that leads to the “production of an autonomous social reality.” See e.g. Teubner, Gunther, How the Law Think: Towards a Constructivist Epistemology of Law, 23 L. & Socy. Rev. 727, 732 (1989)Google Scholar.

18. The Mishna is a legal code that expounds the Bible and constitutes the core of Oral Law. It was compiled and edited by Rabbi Judah the Prince in the early third century. The Talmud is a collection of records of academic discussion, homiletical exposition and judicial administration of Jewish Law by generations of scholars during several centuries after 200 c.e. The Talmud consists of the Mishna and the Gemara, which is an expanded commentary on the Mishna.

19. A recent account of this question from the text critical tradition can be found in Loader, supra n. 16, at 509-518.

20. Gen 1:28.

21. See Mishna Yevamot 6:6 & Talmud Yevamot 61a-63b.

22. Id.

23. Mishna Yevamot 6:6

24. See Minhat Hinukh, § 1.

25. Talmud Yevamot 62b.

26. Minhat Hinukh, § 1.

27. Talmud Yevamot 62b.

28. Id.

29. Id.

30. See Matt 12:1-13 & Mark 3:1-12. See also Ringe, Sharon H. “Holy, as the Lord your God commanded you’: Sabbath in the New Testament, 59 Interpretation 17 (2005)CrossRefGoogle Scholar.

31. See Matt 12:1-13, Mark 2:23-28, Luke 6:1-11. A text-critical account of these stories can be found in, Meier, John, The Historical Jesus and The Plucking of the Grain on the Sabbath, 66 Cath. Biblical Q. 561 (2004)Google Scholar. For a complete account of Jewish and Christian attitudes to Shabbat in the ancient period, see Weiss, Herold, A Day of Gladness: The Sabbath Among Jews and Christians in Antiquity (U. S.C. Press 2003)Google Scholar.

32. Mark 2:23-28.

33. E.g. Sherman, Robert, Reclaimed by Sabbath Rest, 59 Interpretation 38 (2005)CrossRefGoogle Scholar.

34. See 1 Macc 2:29-42.

35. See Watson, supra n. 16, at 40. Yet other scholars argue that a purpose, if not the purpose, of the passage is to illustrate Jesus' authority. See e.g. Banks, supra n. 16, at 116. See also e.g. Loader, supra n. 16, at 33-36, 55.

36. See Parsons, Mikeal C., Mark 2:23-28, 59 Interpretation 57 (2005)CrossRefGoogle Scholar.

37. See Sherman, supra n. 33.

38. Id.

39. Puritan sabbatariansim was a notable exception. See Solberg, Winten U., Redeem the Time: The Puritan Sabbath in Early America (Harv. U. Press 1977)CrossRefGoogle Scholar. But while the Puritans certainly had a penchant for restricting activity on the Sabbath, unlike the rabbis, the Puritans displayed little appetite for theorizing about scope, properties and limitations of each technical detail.

40. See Sherman, supra n. 33, at 49. (”The mistake of sabbatarianism is to suppose that the object of our allegiance is the Sabbath itself, thus subordinating humanity to a divine instrument rather than to God himself. Historically, such an instrumentalist approach has tended to equate the quality of proper observation with a multiplied quantity of obligations and prohibitions.”); see also Bass, Dorothy C., Christian Formation in and for Sabbath Rest, 59 Interpretation 25 (2005)CrossRefGoogle Scholar. Although they use different terms, this work is very much the spirit of Pope John Paul's 1998 apostolic letter, Dies Domini.

41. By contrast the Talmud assumes that David was in mortal danger and was therefore permitted to eat the holy bread. See Talmud Menahot 95b-96a. The Jerusalem Talmud takes this idea even a step further and assumes that David was so hungry that he ate all twelve loaves of the Bread of the Presence himself. Jerusalem Talmud Yoma 8:5. Hyperbole aside, the rabbis assume that David's actions were legitimate only because he was in mortal danger of starvation.

42. Sherman, supra n. 33.

43. The punishment for intentional desecration of Shabbat is stoning, Mishna Sanhedrin 7:4, which is the most severe form of capital punishment, see Talmud Sanhedrin 49-50 & Maimonides, The Laws of Sanhedrin 14:4 Google Scholar. By contrast, eating of the Bread of the Presence is considered me'eila (private use of temple property), Mishna me'eila 2:8, and Maimonides, , The Laws of Me'eila 2:7 Google Scholar. The punishment for me'eila is lashes and is thus considered a lower degree of offense than violation of Shabbat. See Sanhedrin 93a & 94a, Maimonides, , The Laws of Me'eila 1:3 Google Scholar.

44. See for example the discussion in Sanhedrin 93-94.

45. Interestingly, Yalkut Shimoni preserves a rabbinic tradition that frames the David and Abi'athar incident in terms of the laws of Shabbat. In this reconstruction, David argues that since he is in mortal danger, the laws of Shabbat are suspended, and David is allowed to partake of the Bread of the Presence. One of the glossators understands David to argue that since the fear of mortal danger is serious enough to suspend the Shabbat laws, a fortiori, the lesser prohibition of eating Temple foods is suspended. See Yalkut Shimoni to 1 Sam 21, § 130 & comments of Eytz Ra'ana'an ad loc. The Talmud, Menahot 95b, debates whether the enigmatic verse of 1 Sam 21:6, permits the Priest's to bake the Bread of the Presence on Shabbat. Both of these sources suggest traditions that link the David incident to abrogation of Shabbat laws, and raise the possibility that Jesus' invocation of the verses in Samuel was to the same effect. Nevertheless, the Christian exegetical tradition has by and large neglected this legalistic construction of Jesus' argument.

46. E.g. Exod 20:10.

47. Mishna, Shabbat 7:2.

48. Id.

49. Talmud, Bava Kamma 2a-b.

50. Talmud, Shabbat 74b.

51. Talmud, Shabbat 40b.

52. Talmud, Shabbat 20a.

53. Mishna, Shabbat 3:3. Talmud, Shabbat 38b-39a.

54. Talmud, Shabbat 40b.

55. Shulkhan Arach, Orah Hayim § 321:3. See also Mishna Berura & Arukh Ha Shulkhan ad loc.

56. Talmud, Beitza 34a.

57. Id.

58. See Maimonides, , The Laws of Shogeg 7:3 Google Scholar.

59. This is known as the concept of p'sik reisha. See e.g. Maimonides, , The Laws of Shabbat 1:5 Google Scholar.

60. This is known as the concept of davar she'eino mit'kaven. See Maimonides, id. at 1:5; Arukh, Shulkhan, Orah Hayim 337:1 Google Scholar.

61. This is known as the concept of mit'assek. Maimonides, , The Laws of Shabbat at 1:8 Google Scholar.

62. Adaptation of Mishna Shabbat 12:3-6.

63. See e.g. Ribiat, Dovid, The 39 Melochos, vol. 2, 274, nn. 70-77 (3d rev. ed., Feldheim 1999)Google Scholar.

64. See Rubenstein, Jeffrey L., Talmudic Stories: Narrative Art, Composition and Culture (Johns Hopkins U. Press 1999)Google Scholar.

65. See Milsom, S.F.C., Reason in the Development of the Common Law, 81 L. Rev. Q. 491 (1965)Google Scholar.

66. See Matt 23:1-14.

67. MacArthur, John Jr., Hebrews 95 (Moody Press 1983)Google Scholar. “Sabbath rest was instituted as a symbol of the true rest to come in Christ. That is why the Sabbath could be violated by Jesus, and completely set aside in the New Testament. When the true Rest Land came, the symbol was useless.” Id. at 101.

68. See Talmud Yoma 85.

69. Shulkhan Arukh, Orach Hayyim § 328.

70. The English Protestant reformer Robert Barnes said “For the Christian, … every day is a Sabbath day and a festal day and not only the seventh day.” See Solberg, supra n. 39, at 23. See also Sherman, supra n. 33.

71. See e.g. Tribe, Laurence H. & Dorf, Michael C., Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057 (1990)CrossRefGoogle Scholar.

72. [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. [Liberty] is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion;… and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.

Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, I, dissenting).

73. See e.g. Brennan, William J. Jr., The Constitution of the United States: Contemporary Ratification, in Interpreting the Constitution: The Debate Over Original Intent 23 (Rakove, Jack N. ed., N.E. U. Press 1990)Google Scholar.

74. Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6 (1989) (plurality) (“Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”).

75. Luke 10:25.

76. See Luke 10:27.

77. Luke 10:29.

78. The entire text of Luke 10: 25-37 reads:

And behold, a lawyer stood up to put him to the test, saying, “Teacher, what shall I do to inherit eternal life?” He said to him, “What is written in the law? How do you read?” And he answered, “You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbor as yourself.” And he said to him, “You have answered right; do this, and you will live.” But he, desiring to justify himself, said to Jesus, “And who is my neighbor?” Jesus replied,

A man was going down from Jerusalem to Jericho, and he fell among robbers, who stripped him and beat him, and departed, leaving him half dead. Now by chance a priest was going down that road; and when he saw him he passed by on the other side. So likewise a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he journeyed, came to where he was; and when he saw him, he had compassion, and went to him and bound up his wounds, pouring on oil and wine; then he set him on his own beast and brought him to an inn, and took care of him. And the next day he took out two denarii and gave them to the innkeeper, saying, “Take care of him; and whatever more you spend, I will repay you when I come back.” Which of these three, do you think, proved neighbor to the man who fell among the robbers?

He said, “The one who showed mercy on him.” And Jesus said to him, “Go and do likewise.”

79. See Bava Metiza 30; 32.

80. See Talmud Sanhedrin 73a; Maimonides, , The Laws of Murder 1:14 Google Scholar.

81. See Talmud Sanhedrin 74a; Maimonides, , The Laws of the Foundation of the Torah 5:1–3 Google Scholar.

82. See Talmud, Bava Metzia 32a-b.

83. Id. at 33a.

84. Talmud, Bava Metzia 30a.

85. Talmud, Bava Metzia 30a & commentaries ad loc. See also Aruch, Shulkhan, Hoshen Mishpat 263:3 & 272:3Google Scholar.

86. Talmud, Bava Metzia 32a-b.

87. See e.g. Alexander, Larry The Gap, 14 Harv. J.L. & Pub. Policy 695 (1991)Google Scholar.

88. See e.g. Responsa Havot Yair § 191 & Responsa Ridbaz vol. 2, § 728 Google Scholar who interpret the Bible's duty to aid narrowly and technically. These authorities maintain the duty applies only to the loading and unloading of animals but does not impose a general obligation to assist persons in distress. But see Responsa Rashba § 252 & 256 (rejects this approach) and Responsa Yehave Da'at vol. 5, § 65 Google Scholar (collecting numerous authorities rejecting Havot Yair's view).

89. See e.g. Gordon, Robert W., Unfreezing Legal Reality: Critical Approaches to Law, 15 Fla. St. U. L. Rev. 195 (1987)Google Scholar.

90. Matt 23:23 (“Woe to you, scribes and Pharisees, hypocrites! for you tithe mint and dill and cummin, and have neglected the weightier matters of the law, justice and mercy and faith; these you ought to have done, without neglecting the others.”).

91. Mishna, Maaserot 3:9.

92. Peter Kirby, Early Christian Writings, The Didache, ch. 8, http://www.earlychristianwritings.com/text/didache-roberts.html (accessed July 28, 2007). Didache is the title of one of the earliest church documents, designed to prepare gentile Christians for membership in the church. Harper's Encyclopedia Religious Education 189 (Cully, Iris V. & Cully, Kendig Brubaker eds., Harper & Row 1990)Google Scholar.

93. Mishna Berakhot 4:1.

94. Talmud, Berakhot 26a-b.

95. Acts 2:38.

96. Col 2:11-13.

97. Titus 3:5.

98. Gal 3:23-29.

99. Kirby, supra n. 92, at ch. 7 (“[B]aptize into the name of the Father, and of the Son, and of the Holy Spirit, in living water. But if you have no living water, baptize into other water; and if you cannot do so in cold water, do so in warm. But if you have neither, pour out water three times upon the head. …”).

Like the Didache, the Talmud also proscribes guidelines for performing the immersion ritual under sub-optimal conditions. In certain cases one can substitute complete immersion in a ritual pool with pouring a lesser amount of water over the body and head. See Mishna Mikvaot 3:4. Unlike the Didache however, the Talmud sees this exception as a cause for further analysis, inquiring both under what circumstances is one entitled to rely on the more lenient method and as to whether immersion and pouring methods are fully interchangeable. See Talmud Berakhot 22a-b. Later commentators would push this inquiry further wondering whether (i) the pouring method is simply an exception to the general rale or (ii), whether it establishes an alternate mechanism to achieve ritual purification. See generally, Saiman, Chaim, Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law, 21 J.L. & Religion 39, 55–57 (2005)Google Scholar. In the rabbinic tradition, even exceptions established for dire circumstances are appropriate subjects of technical and formal analysis.

100. Talmud, Nidda 2b.

101. Talmud, Bava Metiza 86a.

102. In fact, Peter Vernerabilis (1094-1156) one of the first Christian polemicists to attack the Talmud cites this passage as Exhibit A of the Talmud's heresy. See Brand, Yitchaq, The Oven of Achnai—A Story at the Heart of a Polemic, 75 Tarbitz 438–440 (2006) (Hebrew)Google Scholar.

103. A similar motif is found in another famous Talmudic story regarding the Oven of Achnai. See Bava Metzia 59.

104. Gal 2:16.

105. See Talmud Kiddushin 40b.

106. Over the past century, this view has expanded considerably. In contemporary ultraorthodoxy, many assume that a rabbi's extensive knowledge of the Talmud and Jewish law grants him unique insights into issues of communal governance, social and national policy and even as to the appropriate course of medical treatment. See Katz, Jacob, Da'at Torah—The Unqualified Authority Claimed for Halakhists, 11 Jewish Hist. 41 (1997)CrossRefGoogle Scholar; Kaplan, Lawrence, Torah, Daas: A Modern Conception of Rabbinic Authority, in Rabbinic Authority and Personal Autonomy (Sokol, Moshe ed., Jason Aronson Inc. 1992)Google Scholar.

107. Deut 29:11.

108. See e.g. Halbertal, Moshe, People of the Book: Canon, Meaning and Authority (Harv. U. Press 1997)Google Scholar.

109. See e.g. Merchavia, Chen, The Church Versus Talmudic and Midrashic Literature: 500-1248 (Bialik Inst. 1970) (Hebrew)Google Scholar; Berger, David, The Jewish-Christian Debate in the High Middle Ages (Jewish Publication Socy. 1979)Google Scholar.

110. E.g. Sanders, E.P., Jesus and Judaism (SCM Press 1987)Google Scholar; Sanders, E.P., Paul, the Law and the Jewish People (Fortress Press 1985)Google Scholar; Meier, John, A Marginal Jew: Rethinking The Historical Jesus (4 vols.); Early Christian Thought in its Jewish Context (Barclay, John & Sweet, John eds., Cambridge U. Press 1996)Google Scholar.

111. See Skeel supra n. 7.

112. Matt 22:21.

113. John 8: 1-11.

114. Mark 11:15-19; Matt 21:12-17; Luke 19:45-48.

115. Mark 2:13-17. See also Matt 9:9-13 & Luke 5:27-32.

116. See e.g. the following essays in Christian Perspectives on Legal Thought, supra n. 8: Carter, W. Burlette, What's Love Got to Do With It? Race Relations and the Second Great Commandment 133 Google Scholar; Shaffer, Thomas L., The Radical Reformation and the Jurisprudence of Forgiveness 321 Google Scholar; Nagle, John Copeland, Christianity and Environmental Law 435 Google Scholar; McCauliff, Catherine M.A., A Historical Perspective on Anglo-American Contract Law 470 Google Scholar; Allegretti, Joseph G., Can Legal Ethics Be Christian? 453 Google Scholar. See also e.g. Stuntz, supra n. 9; Robert F. Cochran, Jr., Evangelicals, Law and Abortion, in Faith and Law, supra n. 10.