fluctuating character of a thing, its origin, development, progress, and
retrogression, we have already indicated that Weiss does not consider even
the Halachah as having come down from heaven, ready‐made, and definitely
fixed for all time. To define it more clearly, Tradition is, apart from
the few ordinances and certain usages for which there is no precedent in
the Bible, the history of interpretation of the Scriptures, which was
constantly liable to variation, not on grounds of philology, but through
the subjective notions of successive generations regarding religion and
the method and scope of its application.
Weiss’s standpoint with reference to the Pentateuch is the conservative
one, maintaining both its unity and its Mosaic authorship. Those passages
and accounts in the Bible in which the modern critic discerns traces of
different traditional sources, are for Weiss only indicative of the
various stages of interpretation through which the Pentateuch had to pass.
The earliest stage was a very crude one, as may be seen from the case of
Jephthah’s vow, for which only a misinterpretation of certain passages in
the Pentateuch (Gen. xxii. 2; Num. xxv. 4) could be made responsible. Nor
was Jephthah, who felt himself bound to carry out his vow, acquainted with
the provision for dissolving vows(143) that was sufficiently familiar to
later ages. When, on the other hand, Jeremiah declared sacrifices to be
altogether superfluous, and said that God did not command Israel, when he
brought them from the land of Egypt, concerning burnt offerings or
sacrifices (vii. 22), he was not in contradiction with Leviticus, but
interpreted the laws contained in this book as a concession to popular
custom, though not desirable on their own account. This concession,
whenever it was of a harmless nature, the prophets carried so far as to
permit altars outside the Tabernacle or Temple, though this was against
the plain sense of Deuteronomy. Elijah even bewailed their destruction (1
Kings xix. 10). He and other prophets probably interpreted the law in
question as directed against the construction and maintenance of several
chief sanctuaries, but not against sacrificing in different places on
minor occasions. This is evidently a free interpretation, or rather
application, of the Law. Occasionally the conception as to when and how a
law should be applied took a completely negative form. In this manner is
to be explained the action of Solomon in suspending the Fast of the Day of
Atonement before the festival he was going to celebrate in honour of the
consecration of the Temple (1 Kings viii. 65), the king being convinced
that on this unique occasion the latter was of more religious importance
than the former. Weiss thinks that the later custom of holding public
dances in the vineyards on the 10th of Tishri might have had its origin in
this solemn, but also joyful, festival. Ezekiel, again, though alluding
more frequently than any other prophet to the laws in the Pentateuch, is
exceedingly bold in his interpretation of them, as, for instance, when he
says that _priests_ shall not eat anything that is dead or torn (xliv.
31), which shows that he took the verses in Exod. xxii. 30, and Deut. xiv.
20, to have been meant only as a good advice to the laymen to refrain from
eating these unclean things, but not as having for them the force of a
real commandment.
Starting from this proposition, that there existed always some sort of
interpretation running side by side with the recognised Scriptures, which
from the very looseness of its connection with the letter of the Scripture
could claim to be considered a thing independent in itself, and might
therefore be regarded as the _Oral Law_, in contradistinction to the
_Written Law_, the author passes to the age of the Second Temple, the
period to which the rest of the first volume is devoted. In these pages
Weiss reviews the activity of Ezra and Nehemiah, the ordinances of the Men
of the Great Synagogue, the institutions of the Scribes, the Lives of the
so‐called Pairs,(144) the characteristics of the three sects, the
Sadducees, Pharisees, and Essenes, and the differences between the schools
of Shammai and Hillel. To each of these subjects Weiss gives his fullest
attention, and his discussions of them would form perfect monographs in
themselves. To reproduce all the interesting matter would mean to
translate the whole of this portion of his work into English. I shall only
draw attention to one or two points.
First, this liberal interpretation was active during the whole period
referred to. Otherwise no authority could have abolished the _lex
talionis_, or have permitted war on Sabbath, or made the condition that no
crime should be punished without a preceding warning (which was chiefly
owing to the aversion of the Rabbis to the infliction of capital
punishment), or have sanctioned the sacrificing of the Passover when the
14th of Nisan fell on Sabbath. Indeed Shemaiah and Abtalyon, in whose name
Hillel communicated this last law, were called the Great
Interpreters.(145)
Secondly, as to the so‐called _laws given to Moses on Sinai_.(146) Much
has been said about these. The distinction claimed for them by some
scholars, viz. that they were never contested, is not tenable, considering
that there prevailed much difference of opinion about some of them. Nor is
the theory that they were ancient religious usages, dating from time
immemorial, entirely satisfactory. For though the fact may be true in
itself, this could not have justified the Rabbis in calling them all
Sinaitic laws, especially when they were aware that not a few of them were
contested by certain of their colleagues, a thing that would have been
quite impossible if they had a genuine claim to Mosaic authority. But if
we understand Weiss rightly these laws are only to be considered as a
specimen of the whole of the Oral Law, which was believed to emanate, both
in its institutional and in its expository part, from the same authority.
The conviction was firmly held that everything wise and good, be it
ethical or ceremonial in its character, whose effect would be to
strengthen the cause of religion, was at least potentially contained in
the Torah, and that it only required an earnest religious mind to find it
there. Hence the famous adage that “everything which any student will
teach at any future time was already communicated to Moses on Mount
Sinai”; or the injunction that any acceptable truth, even if discovered by
an insignificant man in Israel, should be considered as having the
authority of a great sage or prophet, or even of Moses himself. The
principle was that the words of the Torah are “fruitful and multiply.”
It will probably be said that the laws of clean and unclean, and such
like, have proved rather too prolific; but if we read Weiss carefully, we
shall be reminded that it was by the same process of propagation that the
Rabbis developed from Deut. xxii. 8, a whole code of sanitary and police‐
laws which could even now be studied with profit; from the few scanty
civil laws in Exod. xxi., a whole _corpus juris_, which might well excite
the interest and the admiration of any lawyer; and from the words “And
thou shalt teach them diligently unto thy children,” a complete school‐
system on the one hand, and on the other the _résumé_ of a liturgy that
appears to have sufficed for the spiritual needs of more than fifty
generations of Israelites.
Before we pass to the age of the Tannaim,(147) the subject of Weiss’s
second volume, we must take account of two important events which have
greatly influenced the further development of Tradition. I refer to the
destruction of the Temple and the rise of Christianity. With the former
event Judaism ceased to be a political commonwealth, and if “the nation
was already in the times of Ezra converted into a church,”—an assertion,
by the way, which has not the least basis in fact,—it became the more so
after it had lost the last remains of its independence. But it was a
church without priests, or, since such a thing, as far as history teaches
us, has never existed, let us rather call it a Synagogue.
From this fact diverse results flowed. A Synagogue can exist not only
without priests, but also without sacrifices, for which prayer and charity
were a sufficient substitute. With the progress of time also many
agricultural laws, as well as others relating to sacerdotal purity,
gradually became obsolete, though they lingered on for some generations,
and, as a venerable reminiscence of a glorious time, entered largely into
Jewish literature. This disappearance of so many laws and the weakening of
the national element, however, required, if Judaism was to continue to
exist, the strengthening of religion from another side. The first thing
needed was the creation of a new religious centre which would not only
replace the Temple to a certain degree, but also bring about a greater
solidarity of views, such as would render impossible the ancient
differences that divided the schools of Hillel and Shammai. The creator of
this centre was R. Johanan ben Zaccai, who founded the school of Jamnia,
and invested it with the same authority and importance as the Sanhedrin
had enjoyed during Temple times. The consciousness that they were standing
before a new starting‐point in history, with a large religious inheritance
from the past, actuated them not only to collect the old traditional laws
and to take stock of their religious institutions, but also to give them
more definite shape and greater stability. As many of these traditions
were by no means undisputed, the best thing was to bring them under one or
other heading of the Scriptures. This desire gave the impulse to the
famous hermeneutic schools of R. Akiba and R. Ishmael.
The next cause that contributed to give a more determinate expression to
the Law was the rise of Christianity. This is not the place to give an
account of the views which the Rabbis entertained of Christianity. Suffice
it to say they could not see in the destruction of the Law its fulfilment.
They also thought that under certain conditions it is not only the letter
that killeth, but also the spirit, or rather that the spirit may sometimes
be clothed in a letter, which, in its turn, will slay more victims than
the letter against which the loudest denunciations have been levelled.
Spirit without letter, let theologians say what they will, is a mere
phantasm. However, the new sect made claims to the gift of prophecy,
which, as they thought, placed them above the Law. It would seem that this
was a time of special excitement. The student of the Talmud finds that
such marvels as predicting the future, reviving the dead, casting out
demons, crossing rivers dry‐shod, curing the sick by a touch or prayer,
were the order of the day, and performed by scores of Rabbis. Voices from
heaven were often heard, and strange visions were frequently beheld.
Napoleon I. is said to have forbidden the holy coat of Treves to work
miracles. The Jewish legislature, however, had no means of preventing
these supernatural workings; but when the Rabbis saw their dangerous
consequences, they insisted that miracles should have no influence on the
interpretation and development of the Law. Hence the saying with regard to
Lev. xxvii. 34, that no prophet is authorised to add a new law. And when
R. Eliezer b. Hyrkanos (about 120 A.C.) thought to prove the justice of
his case by the intervention of miracles, the majority answered that the
fact of this or that variation, effected at his bidding, in the
established order of nature, proved nothing for the soundness of his
argument. Nay, they even ignored the _Bath‐Kol_(148) (the celestial
voice), which declared itself in favour of R. Eliezer, maintaining that
the Torah having once been given to mankind, it is only the opinion of the
majority that should decide on its interpretation and application. Very
characteristic is the legend connected with this fact. When one of the
Rabbis afterwards met Elijah and asked him what they thought in heaven of
the audacity of his colleagues, the prophet answered, “God rejoiced and
said, my children have conquered me.”
Into such discredit did miracles fall at that period, whilst the opinion
of the interpreting body, or the Sanhedrin, became more powerful than
ever. These were merely dogmatical consequences. But new laws were enacted
and old ones revived, with the object of resisting Christian influences
over the Jews. To expand the Oral Law, and give it a firm basis in the
Scriptures, were considered the best means of preserving Judaism intact.
“Moses desired,” an old legend narrates, “that the Mishnah also (that is
Tradition) should be written down;” but foreseeing the time when the
nations of the world would translate the Torah into Greek, and would
assert their title to rank as the Children of God, the Lord refused to
permit tradition to be recorded otherwise than by word of mouth. The claim
of the Gentiles might then be refuted by asking them whether they were
also in possession of “the Mystery.” The Rabbis therefore concentrated
their attention upon “the Mystery,” and this contributed largely towards
making the expository methods of R. Akiba and R. Ishmael, to which I have
above referred, the main object of their study in the schools.
It would, however, be a mistake to think that the Sanhedrin now spent
their powers in “enforcing retrograde measures and creating a strange
exegesis.” I especially advise the student to read carefully that
admirable chapter (VII., of Vol. II.) in which Weiss classifies all the
Ordinances, “Fences,” Decrees, and Institutions, dating both from this and
from earlier ages, under ten headings, and also shows their underlying
principles. The main object was to preserve the Jewish religion by
strengthening the principle of Jewish nationality, and to preserve the
nationality by the aid of religion. But sometimes the Rabbis also
considered it necessary to preserve religion against itself, so to speak,
or, as they expressed it, “When there is time to work for the Lord, they
make void thy Torah.” This authorised the _Beth Din_(149) to act in
certain cases against the letter of the Torah. “The welfare of the World”
was another great consideration. By “World” they understood both the
religious and the secular world. From a regard to the former resulted such
“Fences” and Ordinances as were directed against “the transgressors,” as
well as the general injunction to “keep aloof from what is morally
unseemly, and from whatever bears any likeness thereto.” In the interests
of the latter—the welfare of the secular world—they enacted such laws as
either tended to elevate the position of women, or to promote the peace
and welfare of members of their own community, or to improve the relations
between Jews and their Gentile neighbours. They also held the great
principle that nothing is so injurious to the cause of religion as
increasing the number of sinners by needless severity. Hence the
introduction of many laws “for the benefit of penitents,” and the maxim
not to issue any decree which may prove too heavy a burden to the majority
of the community. The relaxation of certain traditional laws was also
permitted when they involved a serious loss of property, or the sacrifice
of a man’s dignity. Some old decrees were even permitted to fall into
oblivion when public opinion was too strong against them, the Rabbis
holding that it was often better for Israelites to be unconscious sinners
than wilful transgressors. The _Minhag_, or religious custom, also played
an important part, it being assumed that it must have been first
introduced by some eminent authority; but, if there was reason to believe
that the custom owed its origin to some fancy of the populace, and that it
had a pernicious effect on the multitude, no compunction was felt in
abolishing it.
Very important it is to note that the Oral Law had not at this period
assumed a character of such rigidity that all its ordinances, etc., had to
be looked upon as irremovable for all times. With those who think
otherwise, a favourite quotation is the administratory measure laid dawn
in Tractate _Evidences_,(150) I. 5, where we read that no _Beth Din_ has
the right of annulling the dicta of another _Beth Din_, unless it is
stronger in numbers (having a larger majority) and greater in wisdom than
its fellow tribunal. Confess with becoming modesty that the world is
always going downhill, decreasing both in numbers and in wisdom, and the
result follows that any decision by the earlier Rabbis is fixed law for
all eternity. Weiss refutes such an idea not only as inconsistent with the
nature of Tradition, but also as contradictory to the facts. He proves by
numerous instances that the Rabbis did abolish ordinances and decrees
introduced by preceding authorities, and that the whole conception is
based on a misunderstanding. For the rule in question, as Weiss clearly
points out, originally only meant that a _Beth Din_ has no right to undo
the decrees of another _contemporary Beth Din_, unless it was justified in
doing so by the weight of its greater authority. This was necessary if a
central authority was to exist at all. Weiss is indeed of opinion that the
whole passage is a later interpolation from the age of R. Simeon b.
Gamaliel II., when certain Rabbis tried to emancipate themselves from the
authority of the Patriarch. But it was not meant that the decision of a
_Beth Din_ should have perpetual binding power for all posterity. This was
left to the discretion of the legislature of each generation, who had to
examine whether the original cause for maintaining such decision still
existed.
The rest of this volume is for the greater part taken up with complete
monographs of the Patriarchs and the heads of the schools of that age,
whilst the concluding chapters give us the history of the literature, the
Midrash, Mechilta, Siphra, Siphré, Mishnah, etc., which contain both the
Halachic and the Agadic sayings emanating from these authorities.
With regard to these Patriarchs, I should like only to remark that Weiss
defends them against the charge made by Schorr and others, who accuse them
of having assumed too much authority on account of their noble descent,
and who describe their opponents as the true friends of the people. Weiss
is no lover of such specious phrases. The qualifications required for the
leadership of the people were a right instinct for the necessities of
their time, a fair amount of secular knowledge, and, what is of chief
importance, an unbounded love and devotion to those over whose interests
they were called to watch. These distinctions, as Weiss proves, the
descendants of Hillel possessed in the highest degree. It is true that
occasionally, as for instance in the famous controversy of R. Gamaliel II.
with R. Joshua b. Hananiah, or that of R. Simeon b. Gamaliel II. with R.
Nathan and R. Meir, they made their authority too heavily felt;(151) but
this was again another necessity of those troubled times, when only real
unity could save Israel.
However, Weiss is no partisan, and the love he lavishes on his favourite
heroes does not exhaust his resources of sympathy and appreciation for
members of the other schools. Weiss is no apologist either, and does not
make the slightest attempt towards explaining away even the defects of R.
Akiba in his somewhat arbitrary method of interpretation, which our author
thinks much inferior to the expository rules of R. Ishmael; but this does
not prevent him from admiring his excellences.
Altogether it would seem that Weiss thinks R. Akiba more happy in his
quality as a great saint than in that of a great exegete. What is most
admirable is the instinct with which Weiss understands how to emphasise
the right thing in its right place. As an indication of the literary
honesty and marvellous industry of our author, I would draw attention to
the fact that the sketch of R. Akiba and his school alone is based on more
than two thousand quotations scattered over the whole area of the Rabbinic
literature; but he points in a special note to a sentence attributed to R.
Akiba, which presents the whole man and his generation in a single stroke.
I refer to that passage in Tractate _Joys_,(152) in which R. Akiba speaks
of the four types of sufferers. He draws the comparison of a king
chastising his children; the first son maintains stubborn silence, the
second simply rebels, the third supplicates for mercy, and the fourth (the
best of sons) says: “Father, proceed with thy chastisement, as David said,
Wash me thoroughly from mine iniquity and cleanse me from my sin” (Ps. li.
4). This absolute submission to the will of God, which perceives in
suffering only an expression of His fatherly love and mercy, was the ideal
of R. Akiba.
The great literary production of this period was the Mishnah, which,
through the high authority of its compiler, R. Judah the Patriarch, his
saintliness and popularity, soon superseded all the collections of a
similar kind, and became the official text‐book of the Oral Law. But a
text requires interpretation, whilst other collections also demanded some
attention. This brings us to the two _Talmuds_, namely, the Talmud of
Jerusalem and the Talmud of Babylon, the origin and history of which form
the subject of Weiss’s third volume.
Here again the first chapters are more of a preliminary character, giving
the student some insight into the labyrinth of the Talmud. The two
chapters entitled “The instruments employed in erecting the great
Edifice,” and the “Workmanship displayed by the Builders,” give evidence
of almost unrivalled familiarity with the Rabbinical literature, and of
critical powers of the rarest kind. Now these instruments were by no means
new, for, as Weiss shows, the Amoraim employed in interpreting the Mishnah
the same explanatory rules that are known to us from the School of R.
Ishmael as “the Thirteen Rules by which the Torah is explained,” though
they appear in the Talmud under other names, and are in reality only a
species of Midrash. Besides this there comes another element into play. It
was the exaggerated awe of all earlier authorities that endeavoured to
reconcile the most contradictory statements by means of a subtle dialectic
for which the schools in Babylon were especially famous. There were
certainly many opponents of this system, and from the monographs which
Weiss gives on the various heads of the western and eastern schools we see
that not all followed this method, and some among them even condemned it
in the strongest words. However, it cannot be denied that there is a
strong scholastic feature in the Talmud, which is very far from what we
should look for in a trustworthy exegesis. Thus we must not always expect
to find in the Talmud the true meaning of the sayings of their
predecessors, and it is certain that a more scientific method in many
cases has led to results the very opposite of those at which the later
Rabbis have arrived. This fact was already recognised in the sixteenth
century, though only in part, by R. Yom‐Tob Heller and others. Only he
insisted that in this matter a line must be drawn between theory and
practice. But Weiss gives irrefragable proofs that even this line was
often overstepped by the greatest authorities, though they remained always
within the limits of Tradition. Indeed, as Weiss points out, not every
saying to be found in the Talmud is to be looked upon as representing
Tradition; for there is much in it which only gives the individual opinion
or is merely an interpolation of later hands; nor does the Talmud contain
the _whole_ of Tradition, this latter proceeding and advancing with the
time, and corresponding to its conditions and notions. As we read Weiss,
the conviction is borne in upon us that there was a Talmud before, and
another after _The Talmud_.