1Imagine, if you will, all your questions about your life development were answered for
you! What questions do you have about your faith, your daily way of life and how did
these “rules” come to pass? Where was all this written and by whom? The answer to
many If not all these questions are the tradition of Talmudic Law.
“Talmudic law is thus rooted in the word of God as revealed to Moses, now found
in the first five- books of the Hebrew Bible (constituting the Pentateuch –
Genesis, Exodus, Leviticus, Numbers and Deuteronomy)1”
This volume of work encompasses not only the written word of that handed down to
Moses on Mt. Sanai, but generations of anecdotal notes or historical accounts written
down to complete this Torah or teaching implement. So, this legal tradition is more like a
how-to of Jewish life. To infer that the Talmud is purely a religious text misses the point
completely.
“Tradition, for example, had it that there were lacunas in the Talmud. The
accepted explanation was that everything in the Talmud was originally oral, and
that not everything oral should be written. So, it was said that — on purpose not
everything transmitted orally was later written down2.”
It may not have been written down, but scholars of the time would preach and guide the
populace as to the proper way of life. But, because this Torah (The word Torah,
however, has other uses than that which refers simply to the Pentateuch.3) it can be
seen as a legal guidance also. So, to simply call the Torah a legal document would be
missing the point totally. I have come to the position that what we have is a legal treatise
with religious guidance built in.
Writing down the oral law and maintaining a record of rabbinical disputes helped
to preserve Jewish identity; the Talmud emerged alongside the “Tanakh” as a
basis for Jewish teaching and legal tradition4.
Though the terms "Bible" and "Old Testament" are commonly used by non-Jews
to describe Judaism's scriptures, the appropriate term is "Tanach," which is
derived as an acronym from the Hebrew letters of its three components: Torah,
Nevi'im and Ketuvim.5
Totally confused yet. My study of this topic has caused me to be up at 4am to try to
understand the concept of legal, cultural identity all wrapped up into this ever-expanding
living “document” called the Talmud.
The legal system of the Pilgrims and Puritans in Massachusetts. The U.S.
1 See H. Patrick Glenn, Legal Traditions of the World, at p.99, 5th ed, 2013
2 See Isreal Shenker, a Life in the Talmud, NY Times, September 11, 1977, at Page 218
3 See H. Patrick Glenn, Legal Traditions of the World, at p.100., 5th ed, 2013
4 See Georgetown University, Berkley Center for Religion, Peace and World Affairs, Talmud,
https://berkleycenter.georgetown.edu/essays/talmud
5 See Jewish Virtual Library, Religion: The Tanakh, https://www.jewishvirtuallibrary.org/the-tanakh-full-text
Constitution and Bill of Rights. Supreme Court rulings on such issues as the
death penalty and abortion.
All of these legal structures were directly influenced by Jewish law, says Rabbi
David Saperstein, director of the Religious Action Center of Reform Judaism. He
spoke last week at The Temple-Tifereth Israel in Beachwood.6
Many of the modern U.S. legal traditions come from development of language from the
Bible and the Talmud. It’s remarkable that we can trace modern day legal structures
back to the Pilgrims and even the Salem Witch Trials. The principles underlying the
Constitution and the Bill of Rights, the belief in the accountability of leaders, and the
pursuit of peace and justice draw heavily on Jewish teachings. There was even a
motion at the Continental Congress to make Hebrew the national language, Saperstein
noted.
The Supreme Court often cites Jewish law, the Miranda decision requiring the accused
to be informed of his or her right against self-incrimination refers to the legal writings of
12th-century Jewish sage Maimonides. Even some of the death penalty cases referred
to Talmudic arguments to validate their decisions.
.
The issue of Jewish Identity cannot be decided purely on the basis of birthright.
According to Jewish Law the child of a Jewish mother is automatically Jewish.
Regardless of the birth history of the father. It is anticipated that the child will be raised
by the mother in the Jewish household since the male is typically the breadwinner. Now
before I get attacked by some women’s rights groups for being a chauvinist pig, I am
only reiterating history.
Indeed, for many, biblical theology is fundamentally Christian; this is stated
explicitly by Brevard S. Childs: "It is my contention that the discipline of Old
Testament theology is essentially a Christian discipline, not simply because of the
Christian custom of referring to the Hebrew Scriptures as the Old Testament, but
on a far deeper level."" Few articles on the Hebrew Bible that take a committed,
explicit theological perspective are written by Jews involved in critical biblical
scholarship, and there is certainly no comprehensive Jewish theology that
approaches the magisterial volumes7
One can’t talk about Jewish identity without understanding their relationship to
scriptures. It seems outside the learned halls of the synagogue there is little to no
examination of biblical texts or treatise to spark argument. So, what they have is given
as part of their history all contained within the Talmud. Contrast that with the Bible study
6 See American legal system based on Bible, Talmud, MARILYN H. KARFELD, Staff Reporter, Mar 25,
2004, https://www.clevelandjewishnews.com/archives/american-legal-system-based-on-bible-
talmud/article_6fbfc9ea-b60d-510b-810f-26372bdff19b.html#comments
7 See Theology Author(s): Marc Zvi Brettler, Biblical History and Jewish Biblical Theology, Source: The
Journal of Religion, Vol. 77, No. 4 (Oct., 1997), at pp. 563-583, Published by: The University of Chicago
Press Stable, URL: https://www.jstor.org/stable/1206748 Accessed: 21-01-2020 15:48 UTC
groups very popular in the Christian community. Those study groups dissect each
component of the Scriptures and come to a consensus of understanding as to meaning
and its relation to their everyday life.
Bibles are located in each courthouse and legislative chamber in the United States.
Before we testify in court we swear before God to tell the truth and nothing but the truth.
Before we assume an office/position in our Government we swear allegiance to the
Nation and its founding principles (Constitution). Our military will sear an oath before
God to defend and protect this nation from enemies both foreign and domestic. I swore
that oath on April 9, 1969 and there is no expiration date on that oath.
So, does this legal tradition require a religious test? Are there correlations between this
biblical tradition and American jurisprudence? Is there such a thing as Jewish identity
and has this legal tradition helped or hindered this identity?
“Judaism is a composite that includes elements of religion, nationality, society,
and culture. In the past, these identity components were perceived as
constituting an integrated whole. However, a series of major changes in the
lifestyle of Jews in recent generations has caused this amalgam to break down.8”
Secularization is at the heart of these changes. In the past, moving away from religion
meant abandoning Jewish identity completely. Today, many Jews opt for a life of giving
up on the Jewish traditions in favor of maintaining some of their Jewish identity. They
will often emphasize the components of Jewish identity namely cultural, national and
social components.
“The establishment of the state created a Jewish public sphere that has Jewish
politics, Jewish armed forces, a Jewish legal system, and a Jewish public
domain. This is an exciting cultural, national, and religious development.9”
I answer the question more directly is that there doesn’t seem to be a need for a
religious component to this legal tradition. The State and the Jewish people seem to be
managing this question well and, in fact, are thriving in what could be a challenging
environment. It is not required to be an Orthodox Jew to partake of the “Jewish
Experience” nor does it affect a person’s Jewishness by not maintaining their strict
adherence to Jewish day-to-day strictures.
Nothing would please me more than to say “In summation” but this is not a topic that
can be summed up easily because of the dynamic nature of the topic. The courts
8 See Professor Yedidia Z. Stern S.J.D., Cultural duality in Jewish society in Israel, Center for Middle East Policy at
Brookings, P 4.
9 See Professor Yedidia Z. Stern S.J.D., Cultural duality in Jewish society in Israel, Center for Middle East Policy at
repeatedly use Talmudic law within the decisions that have been handed down.
“Thus, in Jewish law there is no distinction between religious law and civil law; all
of Jewish law is religious––that is, of divine origin10”
Clear as mud, right? Just when I think I can settle on a defining argument, I come
across some text or point of view that supports the opposite viewpoint. The repository of
Talmudic study is described as an inverted Vee with the written/divine law on the bottom
and the volumes of rabbinical study and argument in ever increasing layers on top.
Legal system or religious system applied to the law? Take your pick. Orthodox Jews still
use the rabbis to settle both monetary and contractual matters. In matters of capital
offenses, they seem to defer to the government in those matters. I know of whole
communities in New York, Bensonhurst, Greenpoint and Sunny Side neighborhoods
often look as though they might be transported to the ghettos of Poland and the Czech
republics.
The question of this legal tradition allowing the Jewish people to maintain their identity is
really a backward question. It is because of the strong Jewish cultural and social identity
that the Jewish legal tradition has flourished and found its way into American
jurisprudence.
I was thankful to find the following example from a U.S. Supreme Court case. This is a
copy of one of the Table of Authorities in the matter before the Court.
Other Authorities
Leviticus 19:14
Talmud, Avodah Zarah Maimonides, Mishneh Torah, Laws of the Worship
of Stars and Their Statutes (Hilchot Avodat Kochavim Ve-Chukoteihem
Charles B. Chavel, The Commandments: Sefer HaMitzvoth of Maimonides,
(Soncino Press 1967
3 Charles Wengrov, Sefer ha-Hinnuch 54-58
(Feldheim 1984
Kwame Anthony Appiah, Is It O.K. to Fire a Muslim
Driver for Refusing To Carry Wine?, New York
Times Magazine, July 19, 2017
Debra Mason, Muslim Cabbies,
http://religionandprofessions.org/ 1328/muslimcabbies-case-study/11
As you can see the Court utilized many points of view to reach their decision. So this
“ancient” legal system is very much alive and well.
10 See COMPARATIVE AMERICAN AND TALMUDIC CRIMINAL LAW, by IRENE MERKER ROSENBERG AND
YALE L. ROSENBERG, P.11, CHAPTER ONE Overview of the Talmudic Criminal Justice System*
11 MASTERPIECE CAKESHOP, LTD. AND JACK C. PHILLIPS, Petitioners, v. COLORADO CIVIL RIGHTS
COMMISSION, CHARLIE CRAIG, AND DAVID MULLINS, U.S. NO. 16-111, 2017
In summation, our current legal system has its genesis in the pages of the Pentateuch
and has stood the test of time. Regardless of religious affiliation these concepts and
traditions are there for all of us to use. So, the question as it relates to Jewish identity
only defines the personal journey some people make as to culture and societal
interaction, but it does not relate to their utilization of the legal traditions available to
them.
The Judaic influence in our system of government and justice mechanisms cannot be
denied. When people rail about the separation of Church and State they are missing a
very big part of the story. As an aside, most Church v. State arguments fail on their face
because of a misinterpretation of that provision of the Constitution.
AMENDMENT I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances12.
,
12 See Human Rights Library, University of Minnesota, All Amendments to the United States Constitution,
http://hrlibrary.umn.edu/education/all_amendments_usconst.htm
