Friday, January 17, 2014

Fact-Checking -- the Fourth Answer

In fact there’s also a fourth answer to your question.  Judaism did develop subject-organized compendia of the law, and it didn’t help one little bit.
Review:  For 35 centuries, Jews who practiced in Jewish courts had to learn the entire Torah to do it, and for the last 22 centuries they have learned the entire Mishnah, and they learn the entire Gemara, and they learn all the halakhot in Mishneh Torah and Shulchan Arukh, which exists in three versions.  And they learn all the legal decisions since 1600 CE.
Some terminology.  Mishnah is a collection of legal enactments from 1000 BCE to 600 CE.  Gemara is a commentary on Mishnah which records discussions about Mishnah up to about 600 CE.  There are two collections of Gemara, the Jerusalem, and the Babylonian.  The combination of the Mishnah, with one set or the other of Gemara, is the Talmud.  So there is a Jerusalem Talmud, and a Babylonian Talmud.
Halakhah (plural halakhot) is “Jewish law.”  The halakhah is the final decision of Jewish law in a specific case.
Mishneh Torah is a collection of halakhot from the 1100s CE written by Rabbi Moshe Maimonides.  Shulchan Arukh is a collection of halakhot from the 1200s CE written by Rabbi Yosef Caro.  It mostly records the practices of R. Caro’s community, the Sephardic community that lived around the Mediterranean Ocean.  The other great Jewish community was the Ashkenazic community of Northern and Eastern Europe; they have their own specific Kitzur Shulchan Arukh.  The Chassidic communities, especially the Lubavitcher “Chabad” Chassidic community, have Shulchan Arukh HaRav composed by the founder of Chabad Chassidism, Rabbi Shneur Zalman of Lyady in the early 1800s CE.
Mishneh Torah and Shulchan Arukh are organized by subject.  These two collections are useful only when the facts of the case are identical to the ones in the collections.  As soon as they came out, rabbis all over Europe and wherever else it was important said, if the facts of the case are different from the facts that Maimonides and Caro documented, it is prohibited to argue on the basis of their work.  The new case has to be argued on the basis of Gemara.
Why?  Because there’s a rationale to how you argue a case in court.  You have gezerah shavah, you have “if two verses seem to contradict each other a third verse can reconcile them,” and 11 other principles for Jewish legal arguments.  They are documented in a collection called Midrash Halakhah, at the start of a commentary on Leviticus.  Maimonides and Caro wrote nothing about how to use these principles.  You can only learn that from Gemara.
The same is true today in American law.  I already talked about writing a brief using gezerah shavah to encourage a judge to agree with my argument.  Judaism and American law both use a principle called qal vachomer, chomer vaqal in Hebrew and a fortiori, “all the more so” in American law.  You don’t learn these arguments in statutes.  You learn them from cases and you learn them from practice. 
And the 13 principles of Jewish forensic argument come out of the contents and the sequence of the verses in Torah.  So slicing and dicing it into subject order doesn’t get you anything.  But I’m not preparing you to argue in a Jewish court. 
I’m saying that you’ve been taught an urban legend that Torah is a religious work when it’s a law book, especially from Exodus 12 on, and it has been used to run the Jewish culture for 35 centuries, longer than any culture except perhaps the Hindu culture (try reading the Mahabharata sometime). 
I’m also busting the urban legend you’ve been taught that Jewish law is alien, foreign, incomprehensible, or whatever other adjectives you’ve heard.  It is not identical to modern American law, but it used similar arguments in court and arrived at similar conclusions about how a culture ought to run, almost 3 millennia before the U.S. came to those same conclusions.  After all, the Equal Protection Amendment to the U.S. Constitution is less than 200 years old as of this writing.

We'll start a new topic next week.  If you still have questions on battery, email me or post a comment.
© Patricia Jo Heil, 2013-2018 All Rights Reserved

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