Abstract
The Jewish Law (Halakahh) is probably the older legal system working in our time. It is established on a hierarchy of different texts. The oldest and more authoritative is the Torah (the five books of Moshe), then come the Mishnah, the Talmud, the compilation as Maimonide’s Mishne Torah and Caro’s Shulchan Arukh, then the responsa of the rabbis. While the authorship of the later texts is more or less clear, the one of the Torah is highly problematic, also in the self-understanding of Jewish hermeneutics. This question is discussed in the present paper not from a philological-historical point of view, but from a semiotic one, trying to understand what devices and regimes of enunciation are enacted by the text in order to establish its semiotic-juridical effects. A special double enunciation frame is proposed as the mark of the legislative power in the text, in correlation with another textual device, a sort of divine “signature”. The further evolution of the authorship of the Jewish Law is discussed in its relation with the question of the autonomy in the interpretation of the sacred text.
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Notes
Corresponding roughly (but with considerable textual differences and organization of the canon) to what in the Western languages, namely in the Christian world is called the Bible. Nevertheless, Mikrah does not mean writing but reading or better proclamation, coming from the root קרא K–R–H, which is the same used in Arabic for the Koran. Tanakh is an acronym structured according to the consonantal Hebrew phonology, which recalls the three parties that compose the Hebrew scriptures: the Torah (Pentateuch), Neviim (Prophets), Ketuvim (Writings or Agiographs). I would like to use this note in order to clarify that the transcription of Hebrew words in this article is not scientific and only aims to facilitate the understanding for the non-expert reader. I want also to clarify that obviously the point of view of this study is not a legal or rabbinic, but only semiotic, and certainly it does not pretends to usurp in any field a decision power that does not belong to the author.
Torah is a semantically rich word, used in different ways in the Jewish tradition. The word Torah (תּורה) is etymologically linked to the teaching (מורה, Moreh, is the teacher), to the act of aim and hit (so to be accurate in teaching and doing: the correspondent verb is ירה ioreh; the sin -het-, consistently has the etymology of a target error), and also to the light (אור, or), with its metaphoric field of lamps, lighting, etc. (which is scattered throughout the biblical text, for example, Prov. 6:23, Psalm 119: 105–115, Is 8:20). In practice, we use the word Torah to define all the Jewish study, including “what an expert rabbinical student will say”, but mainly for the Torat Moshe, the Pentateuch (in Hebrew also named as Chumash), which is also defined as “Written Torah”, while the Talmud and by extension the later interpretive tradition, is often called “Oral Torah”. Finally, it often happens that a single law is called the Torah (eg Lev. 6:2, “Torat haolà”, the law of the Holocaust, Lv 14:97: “Torat tsar”, the law of leprosy; Nm 19:2, “hukkat torah” the statute of the law, etc…) In other contexts, the same rule shall be called the “mitsvah” (commandment), “Hukka” (norm), “Mishpat” (rule). Often these words appear together, as in Gn. 26: 5, Ex 16:28, 18:16 and so on. Those who are usually called in western languages “ten commandments”, in their Hebrew name lose this imperative tract: they are called “asseret hadibrot” meaning “ten words” (hence properly “Decalogue”). The differences in all this complex terminological field are not clear. Beginning from the Talmudic discussion (Makkoth 23b), the main obligations that the Jewish laws imposed on individuals or communities (not so for example the legal obligations of contractual aspects etc…) are summarized in “613 mitsvot” or precepts [12]. The number 613 is explained as the sum of 248 Mitsvot “laassè” or positive and 365 “lo taassé” or negative laws. About these numbers, there is plenty of Kabalistic thought. Suffice it to say here that 365 is defined as the number of days of the year, 248 that of the “bones” of the human body (in the Talmudic conception) and the number 613 is usually related to the “numerical value” or “ghimatria” of the word Torah which is actually 611. But the sum becomes right with the addition of 2 for the first two words of the Decalogue, that “God signature” about which we will discuss later. For a summary list of the 613 mitsvot, cf. http://it.wikipedia.org/wiki/613_mitsvot. The most authoritative discussion is the Sefer Hamitsvot (“Book of Precepts”) of Maimonides, which can be found on the Internet in its original language (http://www.daat.ac.il/daat/mahshevt/hamitsvot/shaar-2.htm).
The rule is based on the well known passage of Deuteronomy (30:12) which states that “The Torah is not in heaven,” reinterpreted by TB Bava Mets. 59b to show that the practical rule of Judaism, the Halakhah, is established in the discussions of the sages, following their majority (Es.23:2). Then there is a passage in TB Baba Mets. 2b that says that one does not follow the interpretation given by the prophets about the Chumash. Maimonides in Chapter 9 of his “Foundations of the Torah” (the beginning of the Mishna Torah), specifies that a prophet has no right to innovate halakhot, and that its purpose is just to remember to look at the Torat Moshe (i.e. the Pentateuch), and cites the passage of Malakhi (3:22) that is read as Haftarah of Shabbat Hagadol and is also the conclusion of the Tanakh. In fact, some laws are made on Neviim, but clearly the sages feared that it could be too easy to pretend to be prophets and change the halakhah. There is a passage in Megillah 2b (parallel Shabbat 104a), where the verse “And these are the words” (Lev 27.4) is used to emphasize that the prophets can not innovate, but they can only reintroduce former things that had been forgotten: “from now on in a prophet is not allowed to innovate.” The same goes in Yoma 80a as regards the minimum of the sanctions. In…Temurah 16a the same principle is reaffirmed, talking about the fact that many halakhot were lost after Moses, and the theological root is elle hadevarim: i.e., only these are the words of God, not that will be added. (thanks to Haim Cipriani, for this personal communication). See also Maimonides, Introduction to the Mishnah, I, 2.
Cf. Nicholson [13].
For a review of all these positions, written by a scholar who defends “the Legacy of Wellhausen”, see Nicholson [13]. As our object is the authorship of Jewish Law, which is defined by the Jewish tradition as originated in the Pentateuch, a theory devaluating and destructuring it can hardly be our point of departure.
Often it is recast together with the book of Joshua, in an “Exateuch”, which is a “discovery” of the Documentary Hypothesis writers, without any known support in the history of the text reception before it.
For a brief but effective argument for these positions, see Cassuto [6].
I will transcribe here and later the Tetragrammaton jod-he-vaV–He (so to speak that is the proper name of the Lord, not to be uttered following the Jewish law) with the Western corresponding letters. In non-liturgical context the Jewish tradition replaces it the definite description Hashem, which I will sometimes literally translate “the Name”. The way of naming God in the Jewish contest, depends on semiotic-liturgical rules that raise fundamental semiotic questions. For a discussion of the divine names in the Jewish tradition cf. Volli [24]. Normally in Western languages the current translation for this term is “Lord”. I will not use it, as it has deep theological implications, that I prefer avoid in this discussion.
This is the seventh of the thirteen principles of faith proposed by Maimonides (Pirush Hamishnayot, treated Sanhedrin, Chapt. 10) and reflects a tradition that starts from the very conclusion of the text of the Torah (Deuteronomy 34:10), “lo kam be Yisrael ke Moshe od navi”, “did not rise in Israel a prophet like Moses”.
On the very complex way the expression sefer (usually translated as “book”) is understood in the Tanakh, cf. Volli [25].
Noun from the root D-R-SH, which means petting, soliciting, and hence commenting. It is a rabbinic commentary that may be legal, theoretical or narrative; most often it is understood as a legendary and homiletic expansion of the Torah developed in the rabbinic tradition. For a detailed discussion, see Banon [5].
See the opposition between two kind of innovations, shinui and hiddush, as defined in Askenazi [1]:248–253.
I remember that for “enunciated enunciation” semiotics intend that within an utterance (e.g. a narration) there is the statement of a character – no matter if a “true” historical or a fictional one. So it is a kind of act of enunciation, not in the real world but in that of the story, hence not a live word but its narrative.
By this statement of course I don’t mean that God is only a literary character, as some people think today. I will just say that when we study the text of the Torah with the techniques of contemporary narratology, we find characters (actors) actants, speech, focus, storytellers, just as if one looks at it with the techniques of grammatical analysis there are subjects, predicates, parataxis and hypotaxis etc. without of course implying that the Torah as such, its story and those who act in it are reduced to these categories.
For example, the passages in which Moses is ordered to write “this Torah” that may be the specific law which is spoken or the entire text. In any case, as in this discussion we accept the text as it is, since we are interested in its consequences and not enter into the philological problem of its composition, so we work using the traditional attribution, without discussing it.
The ambiguity is due to the fact that in Hebrew language the copula in the present tense is not usually expressed by a separate word and any combination of a subject and a verbal predicate, or as in this case a pronoun and a noun can be always understood as predication.
A level that is subject, in semiotic terms, to the first basic debrayage that every text undergoes, detaching it from the I-here-now of the actual utterance or writing of the text. “Débrayage” literally means disengagement. It is the disjunction or the separation of the text from the actual situation of enunciation or writing and then the creation inside the text of simulacra (tracks, marks, indicators) of another I-here-now. Thus it entails the projection of one or more subjects (= actors) other than those of the enunciation, and of a space and a time different than those of the enunciation.
Further evidence of the need for a double enunciational frame can be found in those numerous episodes where Moses (or both Moses and Aaron, in some cases) receive the command to do something, without it becomes law. It’s the case, of course, of the instructions for the dialogues with the Pharaoh in the first chapters of Exodus, but also of the institution of the census at the beginning of Leviticus (chapt. 1–4): “Y–H-V–H spoke to Moses […] saying so [lemor]: Count the people of the whole community of the children of Israel,” etc. (Lev. 1:1–2). This is a complex operation that requires a broad cooperation (wit the appointment of supervisors of each tribe, etc.…) But the order is not intended to ground a law for establishing censuses, which indeed is considered forbidden in Jewish tradition, but only to hold that single enumeration. Therefore it lacks the double frame. If it had been written in such terms as “Y–H–V–H said to Moses: Say to the children of Israel to count” etc., it would then probably become a law.
Written in France in the mid-eleventh century. Cf Rashi [16], ad loc.
All universal norms, which are known in Talmudic language as Noachic ones for allegedly be ordered to Noah, even though the Torah does not mention them directly but only perhaps hints at them, are also Mitsvot. The codification, which contains some pretty bold interpretations of apparently not legal passages from the Torah, is established in a midrashic source: Genesis Rabbah 16:6. Cfr. Rabello [15]: 7.
“One cannot be entirely sure of the existence of a circumcision law at this stage; it is safer to talk about a costume, which from the way itself in which Levi and Shimeon and communicate it in Shechem, seems to be part of a tribal culture more that being a religious principle: they do not say ‘G–d ordered us that …’ but only that ‘it is a shame’ to give our sister to an uncircumcised man and talk of becoming one people, but no more.” Rabbi Haim Cipriani, personal communication.
Actually things are not exactly this way; i.e. in this case the clause of the second frame immediately follows the proclamation of the rule, which is directed only to Moses and Aaron: “Y–H–V–H spoke to Moses and Aaron in the land of Egypt in these terms [lemor]”. “This month is for you the head of months that will be for you the first of the year. Speak to the whole community of Israel, telling them on the tenth day of this month” etc. (Ex. 12: 1–3). We must assume that the legislative status also extends to the Nissan definition, although when the text records Moses exact obedience to the order and his speech to the “elders of Israel” (Exodus 12: 21) the privilege of the month is not mentioned.
The most typical case is the construction, in the wilderness, of the Tabernacle, its furnishings and priestly vestments, every small detail of which is very carefully prescribed in several chapters of the book of Exodus (25–31) and then executed with an equally detailed and long description (capp. 35–40). Between the two descriptions, one in the second person of the future tense and the other in the third person of the past tense, however, there are small but significant differences (for example, in the order of operations), which were often commented upon. About the enforceability of the legislation, it is interesting noting the frequent use of the verb “to do”: the regulations are often qualified “to do” (cf Volli [23]). A famous example of the proper attitude in receiving them is the promise “we will do and listen” (first “do” and then “listen”), as the Jewish people responds to the Revelation (Ex. 24:7), which became the subject of a famous commentary by Levinas [9, 10].
Appointing judges is also, according to the sages of the Talmud, one of the seven “Noah’s laws” mandatory for all people (all the sons of Noah).
Yitrò for example in Es.18:23 makes reserve for an explicit divine approval of its advice.
A famous case is that of the Paschal sacrifice, Korban Pesach, which in Ex 12:1–28 seems to be only roasted lamb and in Deut 16:2 to be cooked (hence possibly boiled) beef. The chosen solution was to follow strictly the first indication and treat the latter as inclusive of other circumstances. See http://ohr.edu/explore_judaism/daf_yomi/weekly_dafootnotes/1019.
The life of Moses is dated back in the fourteenth century before our era; the first writing of the oral Torah, that of the Mishnah that ends in the late second century CE.
Thus the famous first chapter I of the Treaty “Pirkei Avot”, certainly the best known of the Mishnah: “Moses received the Torah at Sinai and transmitted it to Joshua, Joshua handed it to the elderly and the elders to the prophets and the prophets to the members of the Great Assembly” etc.. Note that the verbs used for transmitted and received are Mesariá and Kibulì, from which arise two key cultural developments of Judaism for the future: the Massorà, or care of the philological texts beginning from the seventh century, and the Kabbalah, the mystical movement that defines itself as the guardian of the secret tradition of the Torah. The received Torah, in the opinion of commentators, “are the written and oral ones.” See Mello (ed.) [11] ad loc. which shows the classical commentaries.
The prophets, who at least in terms of the text self dating are intermediate between the Torah and Talmud, often emphasize the adherence to the law of Moses, but then sometimes speak as if they did not know it. See, as examples, the discrepancy between the description of the shrine of Ezekiel and that of the Exodus or the polemic against the sacrifices prescribed in Leviticus by Amos 5:21–24 (“If you offer me burnt offerings and grain offerings, I do not like: the fat of your sacrifices of fat victims I do not even look”), Isaiah 1.11–12 (“I am enough of burnt offerings of rams and the fat of the calve, I do not like the blood of oxen, lambs and goats. When you come to appear before me, who will claim this from you?”), Jeremiah 7.22 (“In truth, I did not speak, nor gave I command to your fathers about the Holocaust and the sacrifice when I brought them out of Egypt) etc. The controversy, however, certainly revolves more on the “hypocrisy of the rituals” as they were then realized in that time, that it does against the sacrifices as such in principle.
Also in this case the comments of Rashi and those of his immediate successors, the Tossafot, should be mentioned as particularly influential.
It is an interesting fact, and certainly an unusual one in the history of religions that the Talmud preserved also the views of Elisha ben Abuya, who is accused by the Talmud of apostasy and hence was nicknamed “acher” (meaning “the other”) because of his “epicurean” views.
Talmud b. Baba Metz 59b, see Rabello [15]: 49.
Mishnah Eduiot 1: 5. See Rabello [15]: 27. Note that this willingness to overturn in the future a rule (or rather a rabbinic court decision) even providing the tools for making it possible the reversal, is one of the great difference between the Jewish and Islamic legal system, which also show similarities formal being grounded both on a sacred text and an interpretive/legislative work around it. Except that for almost 800 years the Islamic legal system has been “locked”, when in 1258, with the Mongol conquest of Baghdad was closed the so called “door effort”: the four legal schools (madhhab: Hanafi, Malic, Hanbali, Shaifi’it), have been fixed for ever, ancient decisions can not be discussed more.
See for example the passage, by no means atypical, of the Treaty of Moed Katan 22a.
The standard layout itself of the Talmud presents an hypertextual form, with the passage of the Talmud in the middle of every page and all around, with different bodies and characters, the main comments (Rashì, Tossefot etc.) the links to parallel passages, the notes of later authorities (Gaon of Vilna, etc.) and so on. For an explanation see Ouaknine 1986. The theme of the argumentative techniques of the Talmud (for instance, the thirteen principles of interpretation that are stated and applied in the Talmud, the discursive form in which its “ideological grasp of the world” takes place, its very idiosyncratic way of thinking and discussing) goes beyond the limits of this essay.
Including the oral Torah, and hence also the living tradition, including even what “a good student” in the future will say “deducing it from the Law” (Palestinian Talmud, treated Pea, 2,4,17 a). See Volli [24].
Given the very extensive definition of the “divine” law, which includes also what is inferable in a more or less logical way from other divine laws, the distinction between “de oraita” and “de rabbanan” laws is very delicate matter, which is decided only by the comment. Is very difficult to point out a logical or semiotic standard for this problem.
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Halakhah (literally path, from the root H–L–CH) is the overall name of the actual Jewish law, that is what actually binds the Jews. We shall see the meaning of this specification later. By “Jewish law” we mean the traditional and religious legal system of Jewish people—not to be confused with that of contemporary Israel, which is secular and presents the key features and authorship of a typical modern democratic legal systems. It should be noted, as I will show later, that the Jewish legal system is probably the world’s oldest still widely applied one, at least in certain areas.
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Volli, U. Who is the Author of Halakhah?. Int J Semiot Law 26, 191–210 (2013). https://doi.org/10.1007/s11196-012-9268-7
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DOI: https://doi.org/10.1007/s11196-012-9268-7