Narrating the Law

Narrating the Law: A Poetics of Talmudic Legal Stories creates a new theoretical framework for considering the relationship between law and narrative, models a new method of studying Talmudic law, and fills out the picture of the cultural life of the rabbis who contributed to the Talmud.

Narrating the Law
A Poetics of Talmudic Legal Stories

Barry Scott Wimpfheimer

2011 | 248 pages | Cloth $59.95
Religion | Law
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Table of Contents

Introduction
Chapter 1. Privileging Legal Narrative: Resisting Code as the Image of Jewish Law
Chapter 2. Deconstructing Halakhah and Aggadah
Chapter 3. A Touch of the Rabbinic Real: Rabbis and Outsiders
Chapter 4. Social Dynamics of Pedagogy: Rabbis and Students
Chapter 5. Torah as Cultural Capital: Rabbis and Rabbis
Chapter 6. Lengthy Bavli Narratives: A New Theory of Reading
Conclusion

Notes
Bibliography
Index
Acknowledgments


Excerpt [uncorrected, not for citation]

Introduction

Contemporary books are familiar. A patron selecting a recently published volume in a bookstore instantly knows its kind. Bright cover colors and cheap construction indicate a beach or plane read. Footnotes and endnotes announce scholarly work. My three-year-old son identifies his books by their glossy dust jackets and large illustrations. The familiarity of contemporary books derives from one's experience of similar ones. Today's books classify themselves. Classification is helpful for library cataloging or gift purchasing alike; it is also important in directing readers toward particular ways of reading. One does not expect scholarly conclusions from a children's picture book or entertainment from a dry academic tome. One knows to compare a John Grisham book to its oeuvre and not to a Toni Morrison novel. The familiarity of contemporary books often masks the importance of a reader's assumptions in approaching a work of literature.

The Babylonian Talmud (henceforth Talmud), by contrast, is quite unfamiliar. From its composition in two ancient languages—Hebrew and Aramaic—to the way it floats from topic to topic without much justification to its equal interest in theology, ethics, magic, law, medicine, history, and biblical interpretation, the Talmud is an unusual text. Though it is a religious text, it rarely feels particularly spiritual. Often described as a commentary, the Talmud is unlike other commentaries in its easy distraction from the commentarial task. Were there not two of them—the Palestinian (or Jerusalem [Yerushalmi]) and Babylonian (Bavli)—one could say that the Talmud is sui generis. The existence of two Talmuds marks neither as familiar.

One might have expected that the Talmud—as an unusual text—would languish unread on a musty library bookshelf or have a small group of devotees. But the Talmud has been one of the best read works of all world literature. Since coming into being, the Talmud has been the proving ground of the rabbinic elite, who rigorously analyze its every word with monastic devotion. The magnetic pull of this text has remained strong enough that all contemporary denominations of Judaism expend significant resources learning and teaching it.

Even as the Talmud has been well studied for more than a millennium, its readers have generally pursued a cherry-picking approach that allows them to focus on small passages, ignoring those that are irrelevant for the respective reader's concern. In this way, readers do not need a full set of assumptions about the way the Talmud works as a whole. This explains how the Talmud is both the primary source of elaborations on biblical narrative cited in synagogue sermons and the forum for discussing pressing matters of Jewish law. The foremost division of the Talmud into usable smaller parts is the dichotomy of Halakhah (law) and Aggadah (everything nonlegal), a binary that explains how the Talmud is father both to Maimonides' Mishneh Torah and to the literature of Sholem Aleichem and H. N. Bialik.

This book teaches how to read the Talmud, not by detailing the mechanics of talmudic logic, but by describing how the Talmud functions as a work of literature. At its most basic structural level, the Talmud is a commentary on the Mishnah, a second-century code of Jewish law. It is misleading to call the Talmud a commentary since talmudic passages are only loosely predicated upon individual Mishnaic statutes. The smallest literary units of the Talmud, known as sugyot (plural of sugya), present themselves to the reader as literary versions of recorded rabbinic conversation. The sense that the Talmud is a rabbinic conversational archive is furthered by the Talmud's practice of attributing assertions, rationales, stories, and other parts of talmudic discourse to named rabbis in a manner that puts elements of the text in dialogue with one another. The attributions give the Talmud the feel of a screenplay; one could stage a passage of Talmud by distributing different rabbinic parts.

This book attempts to describe the Talmud by targeting a small subset of its writing—talmudic legal stories. Though only a small subset of talmudic text, talmudic legal stories are perfectly situated to represent the entirety of the Talmud for these comprise some of the messiest bits of an already untidy work of literature. The combination of their story form and legal content makes it difficult to catalog talmudic legal narratives within the division of Halakhah (law) and Aggadah (non-legal material). This book argues for a mode of reading that refuses to resolve the Talmud's incongruities by division. Rather, the book suggests that the untidiness of talmudic legal narratives—and the Talmud as a whole—mimics the messiness of life itself. By introducing a way to read the Talmud that embraces such complexity, this book produces rich readings of rabbinic literature and history and invites readers to meaningfully connect rabbinic lives with their own.

In the millennium since its composition, the Talmud has come to occupy a central position as the canonical text of Jewish law. All discussions of Jewish law, whether theoretical or practical, are conducted within a rubric that begins in the Talmud. Even though codes like the twelfth-century Mishneh Torah or the sixteenth-century Shulhan Arukh are often the public address of Jewish law, their statutes remain in force only inasmuch as these reflect compelling readings of the Talmud; innovations within Jewish law are executed through a process of return to the canonical Talmud and its rabbinic conversation.

The heretofore dominant mode of studying talmudic law privileges the statute as a genre of writing. While this is clearest within the work of those talmudic readers who produce legal codes, it is true of other talmudic commentators who signal their privilege by evaluating all legal texts on the basis of their ability to cohere with one another. This privilege is evident in the attempt, ubiquitous within both the Talmud and its commentarial literature, to challenge all legal texts that appear incoherent because their statutory content is in conflict with other such texts.

As a result of the privileging of code and statute, talmudic legal narratives are regularly misread by traditional and critical readers. In the course of producing statutory coherence, the dominant mode of reading (sometimes already within the Talmud itself) forces legal narratives into statutory form and suppresses that part of the narrative that is inexpressible in statutory form. The transformation of narrative into statute erases some of narrative's distinguishing features—such as temporality, plurality, and affect. In addition to these seemingly ancillary erasures, the dominant mode of talmudic reading must often work to suppress the basic legal message of a talmudic legal narrative because the very dramatic twist that makes a story interesting is often inconsistent with the cultural expectations preserved in normative statutes.

This book both encourages and models a new way of reading talmudic legal narratives. Rather than working within an understanding of law as a statute book to which legal narratives must conform, this book uses the opportunity of legal narrative to reimagine law. Law is a cultural discourse or a language through which a culture makes meaning. The two primary advantages to defining law as discourse are escaping the sense that law is synonymous with prescription and recognizing the ways in which law works alongside other discourses both to control behavior and to constitute cultural meaning. In framing law as discourse, this work resists the tendency (common among practitioners and theorists in Jewish and other legal contexts) to presume the dominance of legal norms. The notion of law as discourse is one that emerges if we use legal narratives to represent law. It makes sense, then, to follow the narrative's own construction of law as discourse in order to create the framework of reading.

The new reading practice described and implemented in this volume enables a novel understanding of talmudic law as a site for cultural investigation. This work is in conversation with a small cadre of legal scholars (working in American and European law) who resist the temptation to work within law as an operative practice and instead explore law as a locus of cultural meaning. Law is thus a field of the humanities rather than the arm of the state. This is not to say that this book shies away from treating law as a mechanism for control and social discipline. On the contrary, this volume targets rabbinic power at the levels of the depicted characters, the depicting authors, and the interpreting readers. The book uses talmudic legal narratives as a location to examine rabbinic power within the multiple discourses of culture, appreciating both the legal and nonlegal discourses through which such power is constituted and negotiated. It is in this vein that, though this volume makes little attempt to intervene in contemporary Jewish law, its argument is relevant for that practice. By focusing on legal narrative to put Jewish law in conversation with other cultural discourses, this book highlights the choices halakhic interpreters have made and continue to make while hinting at ways in which contemporary halakhic thinkers could reimagine the relationship between Halakhah and evolving contemporary mores.

Talmudic legal narratives are themselves part of the talmudic legal discourse that has structured a millennium of Jewish law. In seeking to revisit these texts and resist the dominant hermeneutics of that legal discourse, this volume subverts from within, calling attention to the ways authoritative texts are sometimes marginalized through interpretation. This effort is akin to attempts within American legal scholarship to recover the voices of those (slaves, women) whose words were repressed when first verbalized even within the authoritative discourse. The deconstructive act of refocusing attention on the hitherto marginalized (or interpretively suppressed) evidence is made more powerful through its ability to claim the authority of the tradition. The ubiquity of talmudic legal narrative throughout the Talmud, in its most important legal passages, marks this volume's call for a new hermeneutics to handle such texts as fundamental.

The multidiscursive approach to law advocated through the example of legal narratives need not be limited to narrative. Rather, once one recognizes the way that law functions as one of several cultural discourses and should be read together with, rather than separate from, those discourses, one can apply the same thick reading practice both to nonnarrative legal genres and to the nonlegal materials usually classified as Aggadah. The long-standing distinction between Halakhah and Aggadah is a dichotomy of reading practices that has long masqueraded as a division into two textual corpora; readers have divided unified rabbinic sources in order to determine hermeneutic operating procedures for each corpus. By applying a complex hermeneutics that reads law together with other discourses, this volume opens the door for a reconsideration of the value of the exclusionary gesture that separates Halakhah from Aggadah. This deconstruction of the Halakhah/Aggadah binary is analogous to the similar gesture performed by those within the "law and literature" subfield who refuse to import material from one field into the other and insist on exploring both law and literature through a lens of cultural meaning.

Students of the Talmud in traditional settings generally work under the assumption that the attributed dialogue of a talmudic passage reflects an actual conversation that took place in one of the great Babylonian yeshivas during the amoraic period. Critical scholars recognize several facts that undermine this traditional picture: They note that the scholars named in the Talmud lived and operated in different areas of both Babylonia and Palestine; that these named scholars were often removed from one another by a century or more; that the great Babylonian yeshivas did not yet exist in the amoraic period (ca. 200-500 C.E.); and that the significant portion of unattributed matter in the Talmud that binds the talmudic conversation together stems from the later period of the Talmud's redaction. Critical scholarship recognizes that the Talmud's archival appearance is a posture artfully created by its editors, not a simple transcription of rabbinic conversations.

Few works have directly targeted the Talmud's fashioning from a literary rather than a compositional perspective. One reason for this is that the sedimentation preserved on the surface of the text and the text's free-associative style suggest a randomness that belies the unity often presumed as the basis for strong literary analysis. Another reason is the sheer size of the Talmud and the bias (inherited from traditional Talmud study) within the field toward comprehensive essentialist claims. Few scholars, including myself, have the capacity to speak from a place of comprehensive knowledge of the Talmud in toto.

The choice to limit attention to a specific genre of text within the Talmud helps to both narrow the book's realm of analysis and clarify the dilemma that the Talmud's layering poses for literary analysis. Even with the limitation to genre, this book does not claim to treat all instances of legal narrative in the Talmud. While such work would likely be fruitful, the size of that corpus with all of the attendant passages is overwhelming. In this volume, readings focus on both the legal narratives as hermetic units and on the literary and legal collages surrounding the narratives.

Over the past two hundred years (beginning with the nineteenth-century movement known as Wissenschaft des Judentums), scholars have developed a set of methodological tools essential to establishing a textual laboratory despite the challenge of inconsistent and even contradictory transcription from oral works to medieval manuscripts and print editions. This volume utilizes these lower critical tools in analyzing texts. Critical rabbinics scholarship has also evolved a set of assumptions about the meaning of texts, crafted as a corrective to the unrestrained treatment of such texts within some traditional scholarship. These higher critical assumptions form the starting point for this volume's treatments of the Talmud and other rabbinic sources. But this work is not limited to the assumptions of higher critical reading, which assumes as its task the recovery of a text's original meaning. Rather, this work is also informed by regnant literary theory, which identifies both the difficulty of confidently recovering original intent and the strong role the reader plays in constructing meaning. There is valuable tension here between the intentionalist hermeneutics of Wissenschaft and the reader-centric possibilities of contemporary theory.

Two of my mentors, David Weiss Halivni and Shamma Friedman, have together been responsible for the most important transformation within talmudic hermeneutics—the approach that makes dividing the Talmud into its historical layers a consistent a priori rule rather than an occasional post facto necessity. This volume, which focuses on a specific subgenre of talmudic text, is enabled by their insight and approach. This book also owes a debt to Daniel Boyarin's Carnal Israel. When I first encountered Carnal Israel as a rabbinical student, it inspired me to imagine rabbinics as part of a broader humanities discourse. Like Carnal Israel, this volume hews to the close reading styles of New Criticism and its postmodern heirs. It considers all of its texts within a hermeneutics of suspicion that presumes multiple registers beneath the surface. The goal is to produce a sense of these texts that is persuasive and compelling. Strong literary analysis produces a rich meaning from these texts by enabling their full flourishing as a literature with all of the unknowing knowledge that good criticism is capable of unveiling.

Though the major work of this book is its contribution to talmudic poetics, the book also contributes to a historiographic picture of the Babylonian rabbinate. While the initial chapters engage most explicitly in identifying and responding to the hermeneutic challenge of talmudic legal narrative, the latter chapters implicate the method of reading such narratives and their attending sugyot thickly. These applications of the book's method of reading Talmud uncover the ways in which the complex reading practice encouraged by legal narratives yields anthropological insight into Babylonian rabbinic culture. The passages treated provide a glimpse of the instability of rabbinic authority by shining a light on the boundaries within Babylonian rabbinic culture: the boundary between rabbinic insiders and outsiders, between rabbinic teachers and their students, and between one rabbi and another. At each of these liminal points, the analysis demonstrates extreme cultural anxiety where one might have expected confidence; more important than the fact of this cultural anxiety, though, is the genealogy of its manifestation in the Talmud.

Book Program

The opening two chapters of this book identify talmudic legal narrative as a form and transform it into a literary genre. Drawing together legal, literary, and cultural theory, the first chapter imagines law as a space of cultural meaning large enough to embrace even those details of legal stories that deliberately subvert the expectations of normative statutes. Along similar lines, the second chapter continues the expansion of law as a discourse by challenging the traditional dichotomy of Halakhah/Aggadah usually employed to characterize rabbinic texts; by noting the ways in which this dichotomy is most significant for its determination of a reader's assumption, this chapter deconstructs it by asking readers to refrain from classifying legal narratives as one or the other as an initial step.

The hinge connecting the book's genre thesis and its thick description of Babylonian rabbinic culture is located at the beginning of Chapter 3. The prologue to this chapter introduces the treatment of Babylonian rabbinic culture comprised within Chapters 3, 4, and 5. While talmudic legal narratives have played a little acknowledged role as the basis of much Babylonian rabbinic historiography, rabbinic historians have mined this material for their own interests in describing static institutions and relationships. This book's readings are interested in the social dynamics evidenced by literary tensions—within the legal narratives themselves and within the larger talmudic passages in which these are juxtaposed. Chapters 3, 4, and 5 each address a social relationship essential to any understanding of rabbinic culture. Chapter 3 examines the complicated relationship between rabbinic insiders and outsiders, the legal response to that relationship, and the tension between ethics of equality and the compulsion to protect group interests. Chapter 4 targets the pedagogical scenario of rabbis and their students, highlighting the local struggles and means through which individuals established their standing as teachers in the community. Chapter 5 examines the relationships of rabbis and their colleagues through an economic lens that views the rabbinic intellectual community as a marketplace driven by competition for Torah capital. The three chapters together further our understanding of the ways the Babylonian rabbis constituted, negotiated, and authorized their own communal power both collectively and individually.

The final chapter reconnects the historical treatment of Babylonian rabbinic power with the book's earlier focus on talmudic genre. While the book's earlier readings focus on terse single-scene amoraic legal narratives incorporated within legal passages suffused with the active voice of the Talmud's anonymous editors, Chapter 6 considers the genre of the elaborate multiscene talmudic narrative that scholars have largely attributed to the Talmud's anonymous editors. This examination applies the hermeneutics employed in the reading of concise legal narratives to longer talmudic stories and suggests that scholars look to rabbinic narratives not as vehicles for transmitting discrete morals but as literary attempts to process contemporaneous culture. In this vein, literary analysis highlights the ways in which talmudic storytellers themselves embrace the cultural complexity often resisted by the editors of talmudic conversational passages. This insight partially reconstructs the Halakhah/Aggadah dichotomy along different lines as a distinction between literary genres.