The Talmud, the oldest of legal traditions outside of the Chthonic tradition
has origins set in the Torah, which derived from Moses at Mt. Sinah, Charles
Auerbach, The Talmud- A Gateway to the Common Law, 5, CASE WESTERN
RESERVE LAW REVIEW, 3 W. Rsrv. L. Rev. 5 (1951). It differs from Chthonic
tradition, as Talmud law was written from the beginning however did include
oral teachings in the common era, H Patrick Glenn, Legal Traditions of the
World, 100 (5th ed. 2014). The Torah consists of 3 different versions – oral,
written, and all encompassing. The original writings of Moses did require a
lot of interpretation and that interpretation was typically passed down orally.
Those oral teachings proved to not be as strong with the fall of the
Babylonians and written teachings were incorporated in an effort to preserve
the message, thus the beginning of the Talmudic tradition. The Talmudic
tradition is best described as a combination of both written and oral
teachings, known as the Mishnah, H Patrick Glenn, Legal Traditions of the
World, 101 (5th ed. 2014). They closely follow original teachings and are
considered to be as divine as the original written writings by Moses. With
time, came differing opinions however. It is important to note as the
interpretation occurred, there was a lot of the original laws that were not
included in the final version of the Torah. As interpretation was completed,
those laws were written, with the final revision being completed about
220BC by Judah the Prince. This revision consists of 6 orders that cover
family life, agricultural laws, sanitary and food laws that include “clean” and
“unclean”, civil and criminal jurisprudence, festivals and fasts, and prayers
Charles Auerbach, The Talmud- A Gateway to the Common Law, 5, CASE
WESTERN RESERVE LAW REVIEW, 3 W. Rsrv. L. Rev. 5 (1951).
Is the Talmudic Legal Tradition a Religious One?
The Talmudic tradition is solely based on the Word of God, passed down
directly from Moses. Saying that, the Torah and teachings that followed
made no reference to creating a legal system. For this reason, in order for
one to depict the Talmudic tradition as a religious one, they would need to
look at the teachings themselves and how they apply to the law, Hanina
Ben-Menahem, Talmudic law: a jurisprudential perspective, 4 in THE
CAMBRIDGE HISTORY OF JUDAISM 877–898 (Steven T. Katz ed., 2006). As
stated earlier, the Torah evolved into the Mishnah over seven hundred
years, and with it came changes in the original teachings due to social and
political views and overall cultural changes. It did however maintain its
intent to follow the Word of God as originally taught by Moses at Mt. Sinah.
Hanina Ben-Menahem pointed out in her journal article that the Talmudic
system can be measured as a religious one based on the ideas that there
was a reliance on miracles when it came to judicial decision-making, officials
being selected based on descent versus skills, the thought that judges would
not be erroneous with their decisions, punishments are based on divine
intervention, and the judicial system in fixed and unchanging, Hanina Ben-
Menahem, Talmudic law: a jurisprudential perspective, 4 in THE CAMBRIDGE
HISTORY OF JUDAISM 877–898 (Steven T. Katz ed., 2006). She also
reviews what she feels are three spheres that are included in a legal system
religiosity. The first being interpersonal relationships, in which a person’s
goals will not hurt someone else. The other two spheres include laws that
are intended to prevent self-harm to a person and regulating behaviors
between a person and society, Hanina Ben-Menahem, Talmudic law: a
jurisprudential perspective, 4 in THE CAMBRIDGE HISTORY OF JUDAISM
877–898 (Steven T. Katz ed., 2006).
How Has the Talmudic Tradition Helped Maintain Jewish Identity?
The Jewish people have experienced a threat to their identity for years. In
an effort to preserve this, they have relied on the use of the Talmud as an
ongoing source for Jewish law. Three characteristics have been used to
maintain what the Jewish people feel is the important aspect of duty-
conscious law. These characteristics involve the Jewish people’s national
character, their religious character, and having no media of physical
coercion, Silberg, Moshe, and Amihud I. Ben Porath, Law and Morals in Jewish
Jurisprudence , 2 in the HARVARD LAW REVIEW 306-331 JSTOR (1961). The
Talmudic legal tradition continues to be the authority for Rabbis today.
Rabbis have used the Talmudic legal tradition, as they consider it to be due
to their knowledge of Holy law. The use of any type of political or legal
authority is not something they use when applying law to their cases within
the Jewish church, Silberg, Moshe, and Amihud I. Ben Porath, Law and Morals
in Jewish Jurisprudence , 2 in the Harvard Law Review 306-331 JSTOR (1961).
The Torah is an essential part of everyday Jewish life, in that the laws contained
within it have been adopted by Rabbis and intertwined in Jewish law, CE. Dorff,
Elliot, Judaism as a Religious Legal System, 29 HASTINGS LJ 1332 (1977). With
the basis of Talmudic Law coming from the teachings of Moses at Mt. Sinah, the
foundation of Jewish law comes directly from the Torah, both orally and in
writing, Ben-Menahem, Hanina, Jewish Law, INTERNATIONAL ENCYCLOPEDIA
OF THE SOCIAL & BEHAVIORAL SCIENCES ELSEVIER 2 (2001). By ensuring the
Torah continues to be the foundation of how the Jewish people live their lives
and hold one another accountable, they have been able to maintain their
identity as Jewish people, Farooqui, Mohammad Owais, Dinesh Ashok, and Tahir
Qureshi, The Essence of Western-Christian Influence in Talmudic Legal
Tradition, 103 PHAROS JOURNAL OF THEOLOGY 2 (2022). As years have
passed, the Torah has evolved, primarily due to social changes, however, the
sole objective of continuing the teaching of Moses, and acknowledging those
teachings as the Divine Word have enabled the Jewish people to maintain their
identity.
Has the Talmudic Tradition Influenced the United States Legal System?
The legal system in America has itself a foundation of God’s Word. It is an
“accommodation and recognition of the principle of natural right, which is
closely connected to attributive justice, which is natural religion, ‘Natural Law’”,
Farooqui, Mohammad Owais, Dinesh Ashok, and Tahir Qureshi, The Essence of
Western-Christian Influence in Talmudic Legal Tradition, 1 PHAROS JOURNAL
OF THEOLOGY 2 (2022). Additionally, the first 5 books of the Torah is what
Christians see as the Old Testament. This is an example of how Hebrew law
influenced how Christians see the world and apply law to it. America’s
Constitution is the foundation of how the United States Court systems function
and the Constitution itself has a foundation of what we know as divine law or
God’s Word. Much like Talmudic Tradition, western law has evolved through the
years, but it’s foundation remains the same. Additionally, western law interpets
each case individually, and rules on it accordingly. The same can be said for
how the Torah evolved through the years as its oral and written teachings were
handed down.
As God’s Word was handed down, beginning with Moses, teachings may have
changed and interpretations may have differed. With it came the Jewish
people’s desire to maintain purity in the Divine Word and how they feel they
were meant to live. The Torah also came to be the foundation of not only
American Society, but also the American Legal System.
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