Chaya T. Halberstam. Law and Truth in Biblical and Rabbinic Literature. Bloomington: Indiana University Press, 2009. 240 pp. $34.95 (cloth), ISBN 978-0-253-35411-2.
Reviewed by Jonathan P. Burnside (University of Bristol)
Published on H-Judaic (January, 2011)
Commissioned by Jason Kalman (Hebrew Union College - Jewish Institute of Religion)
Uncertainty in Judgment
The theme of this book is the manner in which the rabbinic search for justice is characterized by fundamental uncertainty. In her introduction, Chaya T. Halberstam characterizes the Hebrew Bible as presenting a world in which divine truth can be apprehended by humanity. However, she argues that the rabbis had to grapple with the problem of how fallible human beings could ever aspire to delivering true justice. They thus experienced a tension between, on the one hand, the need to aspire to true justice and, on the other, the need “to accept and even sanctify imperfect, human juridical activity” (p. 3). The author explores this theme by reference to different judicial processes of legal decision making. Her case studies include ritual as well as criminal law and seek to juxtapose the operation of what she sees as the “assuredness” of biblical law with the ambiguity of narrative. Overall, the author sees the Hebrew Bible’s confidence regarding the possibility of divine justice as a matter of “rhetoric” (p. 109), sustainable in the light of its belief that divine omniscience supports human attempts to seek justice. This contrasts, she argues, with the uncertain stance of early rabbis who regarded access to divine truth as impossible, and therefore irrelevant to doing justice.
The book is divided in two parts: the first is concerned with “Truth and Human Jurisprudence” and the second deals with “Truth and Divine Justice.” The first part contains three chapters. In her opening chapter (“Stains of Impurity”) Halberstam explores menstrual impurity law. She offers a close reading of a decision by Rabbi Aqiba, in Mishnah Niddah, in which a woman’s claim regarding observed menstrual blood is overridden by a legal presumption of ritual purity: the bloodstain and the blood that produced it are radically separated. The case exemplifies the theme of “law and truth,” for Aqiba’s counterintuitive legal finding can be held to be legitimate, despite the fact that it bears no relation to objective reality. In chapter 2 (“Signs of Ownership”), she finds a contrast between “biblical discourse [which] suggests a stable and indissoluble bond between owner and object” (p. 48) and Mishnaic texts, which, by creating the potential for different ideas of ownership and property, illustrate how the rabbis deal with the tension between actual and legally constructed ownership. Lastly, in this part of the book, chapter 3 (“The Impossibility of Judgment”) explores the kinds of proof allowable in rabbinic law to help determine guilt in a criminal trial, with reference to the problem of whether to admit physical evidence before the court. The author also considers the problems presented, uniquely, by capital cases, where “to admit the presence of doubt in a death penalty case is to acknowledge the possibility of authorized murder” (p. 77).
The second part of the book considers the role of divine truth in relationships between a just God and humanity. It begins with chapter 4 (“Theologies of Justice”), which explores what she sees as the limits of divine justice. She begins by critiquing Bernard Jackson’s presentation of the relationship between human and divine justice, although oddly this is mounted on the basis of a single article by Jackson, published in 1979, and apparently without awareness of the author’s extensive writing on the subject since. From her perspective, YHWH is no exemplar for human justice. As she sees it, the Hebrew Bible presents a picture of “a more emotional, unpredictable God who may retaliate unfairly because of his anger” (p. 115), citing Ellen van Wolde’s depiction of YHWH as the “batterer-husband” in the YHWH-Israel marriage metaphor. Halberstam claims that the manner in which God rewards and punishes people in the Hebrew Bible and tannaitic literature is unreliable; accordingly, she believes that human beings must determine what justice is, and exercise justice for themselves. In her final chapter (“Objects of Narrative”), Halberstam returns to the question of human beings’ capacity to access the truth, as presented in narratives in the Hebrew Bible (such as the story of Judah and Tamar) and aggadic midrash. Here, she finds a contrast between the biblical narratives that reveal “a confused and hazardous path to divine truth in which humans are easily led astray” and rabbinic sources that, while highlighting the shortcomings of legal procedure, nevertheless “discover divine truth and inner conviction along the way” (p. 147).
The book will be welcomed by those seeking to understand some of the intellectual and practical dilemmas faced by the early rabbis, in particular areas. Not all will be convinced by the author’s characterization of biblical law and biblical justice; indeed, there is a risk that notions of the “assured” nature of biblical law may owe something to over-formalist notions of law in late modern societies, and underplay the practical way in which biblical law operated in a paradigmatic fashion, with scope for negotiation between the individual parties. Although there is a single nod in the direction of Hans Kelsen in the introduction, the book is in fact a prime candidate for the application of some legal theory, since it is thematically concerned with legal sense making and the construction of legal truth. At times, it seems as though the author instinctively reaches toward autopoeitic theory, which recognizes the ways in which law is able to redefine the “inputs” that enter the legal subsystem on law’s own terms. Indeed, this could be an interesting way in which some of the ideas of the book could be further developed.
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Jonathan P. Burnside. Review of Halberstam, Chaya T., Law and Truth in Biblical and Rabbinic Literature.
H-Judaic, H-Net Reviews.
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