Dear Dr

 

Chaya T. Halberstam. Law and Truth in Biblical and Rabbinic Literature. Bloomington, IN: Indiana University Press 2010.

 

Reviewed by David B. Levy, Touro College, New York, NY

 

This book makes a positive contribution to an aspect of understanding of rabbinic legal process, rabbinic sensibilities, and rabbinic pieties. As an interdisciplinary study this Jewish studies book engages law, logic, narrative, and theology to explicate rabbinic legal authority and its limits. Halberstam raises the question, How can humans ever attain the knowledge required to administer and implement divine law (the heavenly court [beit din shel malah] and render perfect justice in this world dependent on the earthly courts [bet din shel matah]? Halberstam argues that early rabbinic jurisprudence is characterized by fundamental uncertainty by arguing rabbinic understandings of the law were riddled with doubt, ambiguity, and indeterminacy.

Halberstams work has sections on signs of ownership, the impossibility of judgment, theologies of justice, objects of narrative. She deals with rabbinic juridical decision-making and standards of proof, establishing facts & evidence, rabbinic juridical procedure, and shaping the law.

Part I of the book considers instance of evidentiary reasoning in rabbinic law. Chapter 1 deals with the question of menstrual impurity (Niddah 8:3) and discusses how perceived reality recedes in favor of rabbinic formal legal maneuvering. It presents a "close" reading of a decision by Rabbi Akiba described in the Mishnah to override a woman's claim of observed menstrual blood with a legal presumption of ritual purity i.e. perhaps she is a moredet. Even as the case is settled, the question of the substantive facts of the case- whether the women is a nidah or not- remains open. Nonetheless, this ambiguity does not seem to disturb the laws of ritual purity, and Rabbi Akiba quickly dispels the anxiety that the legal pronouncement may in fact be erroneous. Formalism displaces the woman's anxiety and the law's authority triumphs over her doubts. Halberstam nicely lays out the difference between Nega'im versus Zavim, i.e. the niddah status vs. feeling of a haregah or veset.

Chapter 2 considers a case of property law requiring a court of three, in which the rabbis seem more interested in fact finding: (in departure from just the exoteric biblical law), the Mishnah delineates legal standards of evidence to define ownership through physical signs on a found object. In this case, it appears as though the Mishnah is accommodating the law to the demands of the real, but as tangible as they seem these visible signs upon which the Mishnah relies in addition to several other demands the rabbis place upon the subject who claims ownership actually undermine typical notions of real ownership. Legally constructed ownership suggests, "possession is 1/2 of ownership." The Talmud Bavli and Talmud Yerushalmi strive in different ways to forward more concrete methods of defining ownership. Halberstam shows how the court engages in bediqat edim... to disqualify testimony in considering Baba Metzia 2:5/Sifre Deut. 224 and Baba Metzia 9a and Baba Metzia 27b.

Chapter 3 turns to criminal law of capital punishment requiring a court of 23 or 71 (small or big Sanhedrin), investigating the kinds of proof allowed in Rabbinic law to assist in establishing guilt at a criminal trial by forcing on the question found in non-Mishnaic Tannaitic text of whether or not to admit physical evidence, i.e. murder weapons before the court. Here the stakes of uncertainty are at their highest (not just needing two witnesses) but many other criteria, although it is acknowledged from Sanhedrin 5:3 that sometimes, innocent persons were put to death by mistakes. For some rabbis, uncertainty about the facts is simply part of the legal system; for others, this uncertainty is paralyzing and the legal obligation to carry out capital punishment essentially becomes nullified so that in the end we are not offered a univocal rabbinic verdict of legal practice but a polyvalent portrait of rabbinic commitment to law, justice, and judicial authority in an uncertain case. She looks at the controversial statement in Mak 1:10 and notes that the judges should know whom they judge and whom stands before them (Sanh. 1:9). She considers Sanh 9:5 where capital punishment was wrongfully applied and the convicted woman confesses, "let my death be an atonement for all my sins but if I did this thing... let God not forgive me, and let the Israelite court be innocent." Rabbi Akiba and Rabbi Tarfon, she notes, were reluctant to convict someone for capital punishment do to the uncertainty of such cases, and that capital punishment is irreversible until resurrection.

In part II Halberstam deals with how divine truth plays a role in jurisprudence, stressing the dichotomy between the bet din shel malah and the beit din shel matah. A common trope of religious thought is to impute to the supreme divine judge, whether in olam hazeh, [This World] after death, or in the messianic age- the implementation of a kind of perfect justice of which human judges are not capable. Halberstam asks: if God's judgments are unfailingly true, how does divine retribution intersect with human kafquesque justice? Halberstam explores the limits of divine justice in the Tanakh and Tannaitic texts showing what she calls "the unreliability of God's rewards (skar ve onesh) and punishments in both sets of texts requires humans to define and execute justice on their own behalf." She argues that rabbinic commentaries underscore the unreliability of interpreting evidence, but they also do more: rather than leaving characters in states of uncertainty, they uncover distinct moments of divine inspiration, which lead biblical persons toward perfect knowledge of guilt and innocence.

A weakness of this book is its overuse of Mishnah from which one cannot derive the Law. This is not the fault of Halberstam as her intent is not to draw on gemarah, codes, or Responsa texts. While Halberstam does a good job looking at rules of bediqat edim (examination of witnesses), rabbinic criteria of proof of evidence, her book is purposely limited by the required scope for treating such a difficult and complex matter of rabbinic legal jurisprudence. The rabbis for instance reject biblical lex talionis in favor of monetary compensation and without grounding in the vast ocean of the gamut of rabbinic legal texts, one's task in such a book will be limited and seriously proscribed by the nature of the immense breadth of rabbinic exegesis. Halberstam's book in the area of Rabbinic jurisprudence does not constitute such a paradigm shift in law.

As with any work that is the spirit of its times, Chaya Halberstam gives voice to feminist concerns and seems to be somewhat taken back if not downright perturbed that Rabbis are given the authority to legislate the purity or impurity if a woman is a niddah or not. That men should judge a woman's body with regard to purities is somewhat bizarre if not misogynistic. Further, she objects downright to the situation that a person murdered in the presence of 10 woman witnesses may get off while someone falsely accused by false male witnesses of murdering someone could conceivably be acquitted if the court is susceptible to the male false testimony as illustrated in Sanh. 5:3.

The etymological root of the Latin form "testimony" comes from the Roman court's procedure of all male witnesses during testimony holding their scrotum and of course, women also in Rabbinic law are disqualified from Edut. With this said this book does unabashedly voice the feminist concerns of todays Jewish women who question the truth, justice, and rabbinic legal process that are tainted with misogynistic discriminatory aspects. Further, in looking at Maseket Sotah, Halberstam underscores the "suspected adulteress" becoming a victim of male humiliation and abuse, even if she is guilty of unfaithful behavior. Halberstam also questions the principle of middah keneged middah by inquiring into the extreme nature of divine punishment claiming that "for three sins women die in childbirth: because they are not cautious in menstrual purity (niddah), in hallah, and in lighting of the Sabbath candles (m. Shab. 2:6).

Halberstam might further object to the legal verdict deoreita that a girl child makes the mother impure for twice as long as a baby boy that is born to the same mother. Halberstam questions many such apparent disparities. In conclusion, this book is a sign of its time. Yet overall, an interesting read with enjoyable parts!

 

Women in Judaism: A Multidisciplinary Journal Winter 2010 Volume 7 Number 2

ISSN 1209-9392

2010 Women in Judaism, Inc.

 

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