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The 1901 Jewish Encyclopedia

Talmudic Law

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Three Historical Periods of Jewish Law.

The development of thousands of years is represented by the Jewish law as it is found in the Shulḥ an ' Aruk, Ḥ oshen Mishpaṭ , of Joseph Caro (16th cent.), as well as in numerous other works which elaborate or elucidate individual passages in various ways. The history of the Hebrew code falls into three chief epochs: (1) the Pentateuch, (2) the Talmud, and (3) post-Talmudic literature. The Pentateuch forms the basis of the Talmud, while the latter serves in its turn as a foundation for post-Talmudic law, which has tenaciously maintained its validity in less cultured countries to the present day. Although these three periods are closely related in so far as the later epochs were developed from the earlier, they must be regarded as mutually independent, since they represent different phases of evolution. As controverting the theory which formerly prevailed, especial stress must be laid upon the fact that in the course of time the changes both in material and in spiritual life profoundly modified Jewish law, the stages of whose evolution are linked together only by the legal fictions common to all history of law. It may accordingly be said that there were three judiciary systems: the Mosaic, the Talmudic, and the rabbinic. The Talmudic code is generally termed the "Mosaic-Talmudic," since the authorities of the Talmud took the Mosaic law as their basis. From the point of view of judicial history, however, the Talmud must be regarded as an independent structure and it is therefore more correct to use the simple term "Talmudic law." The present article excludes all reference to rabbinic law, and discusses only those aspects of the Mosaic system which facilitate an intelligent comprehension of the Talmudic code.

Religious and Secular Law.
The Torah, revealed by God, was the basis of the code and God Himself was consequently the Supreme Source of law. The Talmud, like the Torah, drew no distinction between religious and secular law, thus conforming to the general custom of ancient peoples, especially in the East. One result of this peculiarity was the wide range and close articulation of the Talmudic system, since the commandments of religion influenced secular law, and modified civil relations in so far as any infraction of them was punishable. It is impossible, therefore, to differentiate sharply between religious and secular law. Everything pertaining to the former is discussed more properly under Halakah , and is, therefore, omitted here so as to render possible a brief outline of secular jurisprudence and a citation of parallels with other systems. While the application of modern legal categories to Talmudic law is foreign to its nature, it can not be avoided a careful check, however, must be kept upon this method.

Civil and Penal Codes.
In like manner a careful distinction must be drawn between the civil and the penal codes of Talmudic law. While the civil code was actually enforced, the penal code was a dead letter for the Romans, about 30 C.E. , had withdrawn all criminal jurisdiction from the Jews (Sanh. 41a Yer. Sanh. 1:1, 7:2 Mommsen, "Rö mische Geschichte," 5:512). After the destruction of the Temple, in the year 70, jurisdiction in civil cases as well seems to have been given to the Roman courts (Mommsen, l.c. p. 548 Frankel, "Der Gerichtliche Beweis nach Mosaisch-Talmudischem Rechte," pp. 45,142 idem , "Zeitschrift fü r die Religiö sen Interessen," 1:153,189), although this can have been only a temporary measure, and, in view of the power possessed by the parties involved to refuse to submit to such a court, can never have been rigidly enforced. Civil jurisdiction may be regarded, therefore, as a right which really existed, while criminal law was, for the most part, merely theoretical from the very beginning. Survivals from the period of independence, Pentateuchal laws, and the penal codes of foreign rulers are the component elements of the criminal law of the Talmud. Very frequent, moreover, are the instances in which exegeses of Biblical passages served as sources, often elucidating laws which were never actually enforced. The origin of the Talmudic penal code explains the majority of its peculiarities as well as its weaknesses and its merits. The merits consist chiefly in leniency. Thus, for example, while the code recognized capital punishment and the frequency of its infliction as ordered by the Pentateuch, it rendered the death-sentence practically impossible, since this penalty was so conditioned by requirements of proof of malice afore-thought that finally guilt could no longer be proved. Capital punishment, even for murder, was so abhorrent to the authorities of tradition that its infliction was to be prevented by all legal means (Mak. 1:10 et passim ). In view of these circumstances and principles, the penal law in general and its theoretical development in particular aimed at strengthening moral consciousness and at rousing a sense of guilt. In like manner, the punishments inflicted were mild. Thus, a thief was obliged to return twice the value of the stolen goods, while early Roman law visited a thief caught in the act with a terrible penalty, which was extended under the empire to other forms of theft as well. The Germans frequently punished theft with death or at least with amputation of a hand or a foot.

The impetus to the development of the Talmudic code was given by the study of the divine law, the precepts of which had to be expounded and elucidated even to the least dot on the smallest letter. No other people ever honored its national literature so highly or guarded it so carefully as the Jews did the teachings of Moses. Numerous scholars of the Law consequently arose, who may be regarded as jurists both individually and collectively. Every place of any size had its bet ha-midrash, where men of all vocations gathered daily for discussions. The result of five centuries of this activity was the Talmudic code. The civil law was intelligible even to laymen, and it was, moreover, interpreted by scholars consequently its development was essentially practical, not merely theoretical as was that of the criminal code. These scholars, all working without compensation, evolved a legal system which in scope and excellence stands far above the period of civilization for which and in which it was created. The wealth of Talmudic law and its comparative freedom from defects are best seen when it is compared with a compendium of modern law, such as Josef Kohler's "Einfü hrung in die Rechtswissenschaft" (2d ed., Berlin, 1905).

Absence of Commercial Law.
The history of the Jews explains the fulness of development in the code of civil law, its deficiencies as regards public law, and the entire absence therefrom of international law. In civil law the most noteworthy features are the provisions relating to persons, property, claims, family estates, and inheritance. A distinct branch of commercial law, such as has been highly developed among modern nations, does not exist in the Talmudic code, although regulations concerning commerce are not lacking for in Talmudic times the Jews were not as distinctly a commercial nation as they became in the post-Talmudic and medieval periods. Indeed, the highly developed system of damages, as, for instance, in the case of injuries by animals (Kohler, l.c. p. 96), characterizes them as an agricultural people. The following is a list of the various legal articles in The Jewish Encyclopedia :

    Abrogation of Laws
    Accommodation of the Law
    Accusatory and Inquisitorial Procedure
    Acquittal in Talmudic Law
    Admissions in Evidence
    Agency, Law of
    Agrarian Laws
    ' Agunah
    Alienation and Acquisition
    Assault and Battery
    Attestation of Documents
    Attorney, Power of
    Authentication of Documents
    Authority, Rabbinical
    Avenger of Blood
    Baba Batra
    Baba Ḳ amma
    Baba Meẓ i' a
    Bar Miẓ wah
    Bigamy Birthright
    Breach of Promise of Marriage
    Cancelation of Documents
    Capital Punishment
    Charity and Charitable Institutions
    Circumstantial Evidence
    Clerical Errors
    Commercial Law
    Confiscation and Forfeiture
    Conflict of Laws
    Contempt of Court
    Corporal Punishment
    Criminal Procedure
    Daughter in Jewish Law
    Deaf and Dumb in Jewish Law
    Debtor and Creditor
    Debts of Decedents
    Domain, Public
    Drunkenness in Law
    Family and Family Life
    Family Vault
    Finder of Property
    Fines and Forfeiture
    Foreign Attachment
    Fraud and Mistake
    Gleaning of the Fields
    Guardian and Ward
    Ḥ aliẓ ah
    Ḥ allah
    Hatra' ah
    Hawkers and Pedlers
    Ḥ azaḳ ah
    Health Laws
    Hefḳ er
    Heresy and Heretics
    Hiring and Letting
    Holy Days
    Husband and Wife
    Identity, Proof of
    Ignorance of the Law
    Infancy, Legal Aspects of
    Joint Owners
    Ḳ iddushin
    Lamp, Perpetual
    Landlord and Tenant
    Law, Civil
    Law, Codification of
    Laws, Noachian
    Levirate Marriage
    Marriage Laws
    Martyrdom, Restriction of
    Master and Servant
    Master and Workmen
    Maxims (Legal)
    Medicine in Bible and Talmud
    Mi' un
    Mortgage or Hypothec
    Neighboring Landowners
    New Moon, Blessing of the
    Oral Law
    Palestine, Laws and Customs Relating to
    Police Laws
    Procedure in Civil Causes
    Real Estate
    Remainders and Reversions
    Restraints on Alienation
    Right of Way
    Riparian Owners
    Sabbatical Year and Jubilee
    Slaves and Slavery
    Specific Performance
    Subpœ na
    Sumptuary Laws
    Synagogue, Legal Aspect
    Trusts and Trustees
    Weights and Measures
While the foregoing list will give an idea of the extent of the Talmudic code, an estimate of its value compared with other systems may be gained by a perusal of the following list of rubrics which do not occur in the Talmud. The pages cited in parentheses are those of Kohler's above-mentioned work:
    Associations (p. 81 societies only)
    Bankruptcy (p. 145)
    Bills of Exchange and Kindred Matters (p. 88 promissory notes only)
    Commercial Firms (p. 79)
    Counterfeiting (p. 155)
    Defamation of Character, Slander, Calumny, etc. (p. 174 no specific penalty was fixed for these crimes they were branded as most immoral and the severest divine punishment was invoked upon the offender)
    Embezzlement (included under theft, and does not constitute a specific crime p. 175)
    Insurance (pp. 66 et seq. )
    Joint-Stock Companies (p. 68)
    Lawful Duels (as ordeals, which ceased in Italy in the thirteenth century p. 170)
    Lex Talionis (p. 161)
    Limited Liability Companies and Financial Trusts (p. 82)
    Maritime Law (p. 87 river law, however, existed)
    Ordeals (p. 133)
    Pardon (p. 166)
    Secrets of Manufacture and Commerce (p. 172)

Assyro-Babylonian Influence.
The Talmud has been completed for 1,400 years and the greater part of the legal material which it contains is more than 2,000 years old. It is therefore self-evident that foreign elements from the great civilized nations of the ancient world must have exercised an influence on it. Following the chronological order, mention should first be made of the Assyro-Babylonian elements. With regard to the relation of the Mosaic law to the code of Hammurabi, see Hammurabi and the literature there cited, as well as numerous later works. There can be no doubt that the Assyro-Babylonian laws outlived the state by centuries, while their influence was felt even in the Christian period, and may still be traced in Talmudic law. The most common terms for written contracts, "sheṭ ar" and "geṭ ," are Babylonian and clay tablets were still used in Talmudic times for promissory notes (Blau, "Althebrä isches Buchwesen," p. 18). A receipt was called "ẓ ober," i.e. , "ẓ ebiru", in Assyrian contracts. Giṭ . 86a gives the text of a contract regarding the sale of slaves, the first part of which is apparently Assyrian in origin. Even in post-Talmudical literature, as in the "Sefer ha-Sheṭ arot" of Judah b. Barzillai (ed. Halberstam, Berlin, 1898), there are distinct reminiscences of Babylonian formulas. The contracts included in this work number more than seventy, and in them the phrase "the contracting party has made all stipulations ' in accordance with his pleasure' " recurs in all varieties of terminology (e.g. , pp. 9 et seq. ). The same formula appears in Babylonian contracts, this example, like others, being furnished by Pick ("Assyrisches und Talmudisches Kulturgeschichte und Lexicalische Notizen," pp. 22,30).

Influence of Roman Law.
Incomparably greater was the influence exerted by Greco-Roman jurisprudence in later days. The lingua Franca of the East, even during the period of Roman sovereignty, was the κ ο ι ν ή so that about seventy of the seventy-seven foreign legal terms that are found in the Talmud (Lö w, in Krauss, "Lehnwö rter," 2:630), are Greek, only the remaining few being Latin. As a rule the Jews learned Roman law from the actual practise of the courts and not from legal writings only. Greek terms are used for document, will, protocol, guardian, contract, hypothec, purchase, accusation, accuser, attorney, and the like and Latin words for legacy, bill of indictment, divorce, etc. Roman law, with its high development, exercised a much greater influence on the Talmudic system than has hitherto been shown, thorough investigations having as yet been made only sporadically. Frankel ("Gerichtlicher Beweis," pp. 58 et seq. ) thinks that the majority of the legal cases in Talmudic law have parallels in the Roman code. "The same subjects are often treated in both, and form a basis for the application of the legal principles. This resemblance was due to the conditions and requirements of the time and for the same reason many legal provisions are common to both codes." The difference between the two lies, in his view, "in the divergent mental processes of Orientals and Occidentals, so that Talmudic law formulated anew the very parts it borrowed from the Roman code. The Oriental in his method of investigation is characterized by acuteness and facility of comprehension so that he is guided in his legal enactments by the vivacity of his mind rather than by a principle. . . . The Occidental is marked by thoughtfulness: he desires a universal concept, not a schematized nexus or a reduction to some principle. He therefore combines the law into a harmonious whole, while the code of the Oriental consists of disconnected parts."

Although this characterization is in the main correct, it must be borne in mind that Frankel under-estimates the influence of the Roman code on the Talmud. Several Talmudists of the early part of the second century were so deeply versed in the Roman civil law that they decided cases according to it if they were so requested. Constantin l' Empereur of Oppyck, in his "De Legibus Ebræ orum Forensibus" (1637 reprinted by Surenhuis in his "Mischna," iv.), was the first to compare the Roman and Talmudic systems, although he did not postulate any adaptation from the one code by the other. Subsequently Zunz ("Etwas ü ber die Rabbinische Litteratur," 1818), Jost ("Gesch." 4:144, and appendix), Frankel (l.c. ), Krochmal ("Moreh Nebuke ha-Zeman," 1845), and others (comp. Blau, "Concursus Vitiorum" [in Hungarian], pp. 8,11, 13) made similar comparisons.

Influence of Persian Law.
The Jews lived for a time both under the ancient Persian ré gime of the Achæ menidæ (550-330 B.C. ) and under the neo-Persian dynasty of the Sassanids (250-500 C.E. ). Persian law has, therefore, also been a factor, although the present knowledge both of the Achæ menian and the Sassanid codes is insufficient for an estimate of the extent of their influence on the Jews. The Talmud, on the other hand, characterizes the legal system of the Sassanids as a superficial one, and quotes some extracts in support of its assertions, e.g. , the creditor may seize the security (B. B. 173, borrowed from Turkish law). See further Frankel, l.c. p. 56, where the theory is advanced that Sassanid law influenced the code of the Babylonian Talmud.

Compilations of Talmudic Law.
Among the compilations of Talmudic law, the "Mishneh Torah," or religious code, of Maimonides took a foremost place. Superior in system and arrangement to its predecessors and successors alike, even though its author did not codify the law of the Talmud in the strict sense of the term, but only the rabbinicolegal system as formulated at the time, it served as an authority for subsequent centuries. The Christian literature on the subject in the sixteenth and seventeenth centuries, and, to a great extent, even the modern literature of the nineteenth century, are dependent upon this work, even in cases where the treatises are termed "Mosaic-Talmudic." The authors who combined Talmudic and legal knowledge were, generally speaking, rare for the majority were either Talmudists or jurists, but not both.

In recent times Rapoport has begun a systematic compilation of Talmudic law (the laws of inheritance, endowments, obligations, etc.) and his work has been favorably received by the eminent historian of jurisprudence, Josef Kohler of Berlin. Rapoport, however, has not drawn a sharp distinction between the three chief epochs, the Mosaic, the Talmudic, and the rabbinic, nor has he paid sufficient heed to the historical criticism contained in traditional literature. Much work still remains to be done in this field.

Bibliography : Ludovicus de Compiè gne de Veille, Hebreorum de Connubiis Ius Civile et Pontificium seu ex R. Mosis Majemonidae Secundae Legis sive Manus Fortis Eo Libro, Qui Est de Re Uxoria, Tractatus Primus , Paris, 1673 Surenhuis, Dissertatio de Natura Pandectarum Hebraicarum , Amsterdam, 1704 Spencer, De Legibus Hebreorum Ritualibus, three books , Leipsic, 1705 four books, Tü bingen, 1732 Frankel, Die Eidesleitung der Juden , Dresden, 1840 idem, Der Gerichtliche Beweis nach Mosaisch-Talmudischem Rechte , Berlin, 1846 Hirsch Bä r Fassel, Ẓ edeḳ u-Mishpaṭ , Vienna, 1848 idem, Mishpeṭ e El: Das Mosaisch-Rabbinische Civilrecht , etc., Nagy-Kanizsa, 1852-54 idem, ' Asot Mishpaṭ : Das Mosaisch-Rabbinische Gerichtsverfahren in Civilrechtlichen Sachen , etc., ib. 1859 idem, We-Shafeṭ u we-Hiẓ ẓ ilu: Das Mosaisch-Rabbinische Strafrecht , etc., ib. 1870 Saalschü tz, Das Mosaische Recht , 2 vols., 2d ed., Berlin, 1852-53 M. Duschak, Das Mosaisch-Talmudische Eherecht, mit Besonderer Rü cksicht auf die Bü rgerlichen Gesetze , Vienna, 1864 idem, Josephus Flavius und die Tradition , ib. 1864 I. Wiesner, Der Bann in Seiner Geschichtlichen Entwickelung auf dem Boden des Judenthums , Leipsic, 1864 Bruns-Sachau, Syrisch-Rö misches Rechtsbuch (comp. Perles in Z. D. M. G. xxxv.) Samuel Mayer, Die Rechte der Israeliten, Athener und Rö mer , 3 vols., Leipsic and Treves, 1866-1876 Leopold Auerbach, Das Jü dische Obligationsrecht nach den Quellen und mit Besonderer Berü cksichtigung des Rö mischen und Deutschen Rechts Systematisch Dargestellt , vol. i., Umrisse der Entwickelungsgeschichte des Jü dischen Rechts Die Natur der Obligation , Berlin, 1870 J. Fü rst, Das Peinliche Rechtsverfahren im Jü dischen Alterthume , Heidelberg, 1870 M. Schmiedl, Die Lehre vom Kampf ums Recht , Vienna, 1875 S. Spitzer, Das Heer-und Wehrgesetz der Alten Israeliten, Griechen und Rö mer , 2d ed., Vinkovce, 1879 M. Bloch, Das Mosaisch-Talmudische Polizeirecht , Budapest, 1879 (English transl., Cincinnati, 1880) idem, Die Civilprozess-Ordnung nach Mosaisch-Rabbinischem Rechte , Budapest, 1882 idem, Das Mosaisch-Talmudische Erbrecht , Budapest, 1889 idem, Der Vertrag nach Mosaisch-Talmudischem Rechte , ib. 1893 idem, Das Mosaisch-Talmudische Besitzrecht , ib. 1897 idem, Das Mosaisch-Talmudische Strafgerichtsverfahren , ib. 1901 idem, Die Vormundschaft nach Mosaisch-Talmudischem Rechte , ib. 1904 Israel Michel Rabbinovicz, Lé gislation Civile du Thalmud , Paris, 1880 O. Bä hr, Das Gesetz ü ber Falsche Zeugen nach Bibel und Talmud , Berlin, 1882 M. Mielziner, The Jewish Law of Marriage and Divorce , Cincinnati, 1884 Elijah Benamozegh, Israé l et Humanité : Demonstration du Cosmopolitisme dans les Dogmes, les Lois , etc., Leghorn, 1885 I. Klein, Das Gesetz ü ber das Gerichtliche Beweisverfahren nach Mosaisch-Thalmudischem Rechte , Halle-on-the-Saale, 1885 L. Blau, A Bü nhalmazat Elmé lete a Hé berekné l Szentί rá suk é s Hagyomá nyuk Szerint , Budapest, 1887 D. Fink, Miggo als Rechtsbeweis im Babylonischen Talmud: Ein Beitrag zur Kenntniss der Talmudischen Methodologie , Leipsic, 1891 D. Farbstein, Das Recht der Unfreien und der Freien Arbeiter nach Jü disch-Talmudischem Recht, Verglichen mit dem Antiken, Speciell mit dem Rö mischen Recht , Frankfort-on-the-Main, 1896 F. Kanter, Beiträ ge zur Kenntniss des Rechtssystems und der Ethik Mar Samuels Rectors der Hochschule zu Nehardea und Babylonien , Bern, 1895 S. Mandl, Der Bann: Ein Beitrag zum Mosaisch-Rabbinischen Strafrechte Dargestellt nach der Bibel und der Rabbinischen Litteratur , Brü nn, 1898 I. Ziegler, Die Kö nigsgleichnisse des Midrasch Beleuchtet Durch die Rö mische Kaiserzeit (Die Jurisdiction der Kaiser) , pp. 101-132, Breslau, 1903 H. Pick, Assyrisches und Talmudisches Kulturgeschichte und Lexicalische Notizen , Berlin, 1903 Rapoport, Der Talmud und Sein Recht , in Zeitschrift fü r die Vergleichende Rechtswissenschaft , xiv.-xvi. C. H. W. Johns, Babylonian and Assyrian Laws, Contracts, and Letters , Edinburgh, 1905 I. Telski, Die Innere Einrichtung des Grossen Synedrions zu Jerusalem und Ihre Fortsetzung im Spä teren Palä stinensischen Lehrhause bis zur Zeit des R. Jehuda ha-Nasi: Ein Beitrag zum Verstä ndnisse und Wü rdigung der Aeltesten Talmudischen Quellen , Breslau, n.d.W. B. L. B.

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These files are public domain.

Bibliography Information
Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Talmudic Law'. 1901 The Jewish Encyclopedia. 1901.

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