Q&A: Monetary Law before the Sages
Monetary Law before the Sages
Question
Hello Rabbi,
Is it the case that the biblical monetary laws were practiced among the Jewish people before the Sages interpreted them? Because for some reason the Sages do not mention the legal practice that existed before them regarding monetary law in the Talmud. It looks as though they were the first to grapple with the problems in the text and resolve its contradictions, whereas there should have been many judges before them who ought to have encountered these problems and arrived at their own resolutions. In other words, a legal tradition of precedents should have developed over many years, from the giving of the Torah until the time of the Sages. I am asking because I heard that this genre of legal literature, as practiced in the ancient Near East, was literature meant to express the principles of morality and justice of the society, as a kind of directional guide, but was not actually used as binding law in practice.
Answer
There are articles by a religious Bible scholar whose name I do not remember, arguing that the distinction between law and ordinary norms did not exist at the time the Torah was given, and he explains various things that way. Roman law began to take shape roughly from the fifth century BCE, but its codification was in the sixth century CE (Justinian). So the whole legal category did not yet really exist. But I am not sure there are no early sources on this topic at all. For example, Shammai the Elder, in the name of the prophet Haggai, speaks about agency for murder.
In any case, it is clear that most of the matter was indeed formed in the Talmudic period. Before that it probably developed gradually, both in terms of content and in terms of legal method.
Discussion on Answer
That is exactly why I wrote that legal consciousness is late. Especially when there is a prohibition against writing down the Oral Torah, cases are handled one by one, and there is no system that manages and records precedents and sees all this as one whole organism that develops (= a legal system).
I have written more than once that throughout the entire history of Jewish law, even long after legal consciousness had developed, no complete halakhic code was created, apart from Maimonides. The Talmud is arranged in an apparently very illogical way. We should not project our present-day consciousness and methods onto history.
I am sure that among other nations too there were trials and legal disputes (including in the Roman world), and in general codification and documentation arose, if at all, very late.
I will try to sharpen the question with an example. Let us take the rule that “an eye for an eye” means monetary compensation. Why do the Sages not mention the law actually practiced in such a case, where someone injured another person’s limb? Presumably they had heard of a case in their own time where they actually had to apply the rule of “an eye for an eye” as monetary compensation, and they could have said something like: “And thus I received by tradition from the court of so-and-so, the great judge of our time: ‘an eye for an eye’ means monetary compensation.” Is it not important to mention in the study hall discussion also the law that is practiced in society today—what is the common practice of the people?
“An eye for an eye” is a poor example, because the Talmud brings the view of Rabbi Eliezer, who holds that it is to be taken literally. True, the Talmud claims that even he did not actually say that, but it seems that this was done as part of an attempt to persuade the public regarding this far-reaching exposition. On the straightforward reading, it seems Rabbi Eliezer really did hold that view.
In any case, I do not see what this example adds to the discussion. I already answered that the awareness of creating precedents and a coherent system is late. And I also wrote that with regard to one particular example, in any event it is possible that it really was formed later on (as I noted from Rabbi Eliezer’s view).
In any case, it is clear that the laws written in the Torah long predated the Talmudic period, even according to those who date the composition of the Bible as late as possible. So it is very reasonable that people adjudicated Torah law earlier as well (already in the time of Moses our teacher they judged the wood-gatherer, the blasphemer, and the daughters of Zelophehad). And there are ordinances cited from King Solomon, and so on. So I do not understand what the discussion is about: clearly some of it was innovated over the generations, but equally clearly some of it was ancient. This is a system that develops over the generations. Exactly what the proportion is of the ancient part is a question that is hard to answer.
I will try to explain from another direction. My understanding is that there is a consensus in the field of ancient Near East studies that various law collections such as Hammurabi, Ur-Nammu, Eshnunna, and others were law collections that were not actually used as law in the societies in which they were formulated; that is, people did not act according to those laws, judges did not judge according to those laws, and they had no binding status. At the same time, those societies did have other legal systems apart from those law collections, and they followed those rather than the collections themselves. If so, how do we know that this was not also the case in pre-Sages Israelite society with regard to the biblical law collection?
There is no way to answer that. Maybe yes and maybe no. The laws were certainly ancient. What did they do with them? I do not know. I mentioned that Bible scholar who spoke about the ancient attitude toward laws.
How can one explain that this development began דווקא from the time of the Sages? Imagine some society conducting itself according to a certain law code for hundreds of years. Shouldn’t legal literature, or at least a legal tradition, have been created in the course of life being conducted and the law code being implemented? Only in a case where the laws are not actually applied can such a situation arise, in which a generation appears and decides that the law code now needs to be implemented in daily life. That generation would then have to be the first to deal with the textual problems, contradictions, and edge cases, and to produce guidelines for judges accordingly.