Abstract
This chapter addresses the conceptual relations between error and tolerance in the context of adjudicating, through crucial moments in the formulation of rabbinic legal thought. It outlines the conceptual approaches to the tolerable-intolerable boundary rooted in Biblical categories, defined differently by the Talmudic sages and further transformed by medieval jurists. While the Talmudic literature offers three articulations of the distinction between tolerable and intolerable judicial error—substantive, conventional and scholastic—post-Talmudic jurists confront the very notion of judicial error and reflect critically on the Talmudic definitions.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Some writers emphasize that the concept of tolerance in fact rests on skepticism, rationalism or pluralism, see McKinnon, 2006. The connection between tolerance and skepticism is also evident in pre-modern and non-western traditions, see Shagrir 1997.
- 2.
The distinction between tolerable and intolerable error is rooted in the Roman legal tradition as well. The maxim error juris nocet, error facit non nocet (derived from the Dig. 22.6 De iuris et facti ignorantia) led to the distinction between ‘error of law’ and ‘error of fact’ which was traditionally perceived to reflect the distinction between inexcusable and excusable errors (hence the canonist maxim error juris non excusat). It was suggested by Keedy that the original rationale behind the distinction made in the Justinian’s Digest is based on the Romans’ perceptions of legal norms and their intelligibility. Accordingly, they held that ‘the law is certain and capable of being ascertained, while the construction of facts is difficult for even the most circumspect’ (Keedy 1908, p. 78). The Romans believed ‘that law can and should be fixed, whereas facts tend to be more elusive. Owing to the greater elusiveness of facts, error as to them should be excused more readily so that only supine ignorance or crass negligence should bar excuse’ (Ryu 1957).
- 3.
In fact, the transition from ‘sin’ to ‘error’ is already hinted in biblical verses when describing the inadvertent act in cognitive terms—ignorance of the matter (‘… and that thing was hidden from the eyes of the congregation and they did’, Lev. 4:13) as opposed to knowledge of the sin (‘… and the sin which they committed was known…or his sin was made known to him’, Lev. 4:14).
- 4.
Evans (2002, pp. 11–19).
- 5.
SifLev 4:13.
- 6.
Lev. 4:13.
- 7.
The characterization of tractate Horayot as representing an anti-Sadducee worldview is supported by the last article, which explicitly manifests an anti-priestly ideology—‘A priest takes precedence over a Levite, a Levite over an Israelite, an Israelite over a bastard ( ממזר)… this order of precedence applies only when all these were in other respects equal. If the bastard, however, was a scholar and the high priest an ignoramus (עם הארץ), the learned bastard takes precedence over the ignorant high priest.’ (m Hor. 3:8).
- 8.
If Talmudic thought was shaped in reaction to contemporary Christians, as some have argued, one might associate this with reactions to the promotion of Christian values of inwardness.
- 9.
m Hor. 1:3.
- 10.
Lev. 4:13.
- 11.
The terminology of this distinction is also widespread in the Talmud’s laws relating to an idolatrous prophet. In this context it serves to emphasize the seriousness of deviation from the essential laws, which is understood as distorting the Torah itself. The metaphor of ‘uprooting a thing’ indicates the fixed and stable nature of the Torah, denial or nullification of which are seen as a distortion of the original Torah.
- 12.
The conception of ‘Law as Integrity’, as introduced in Ronald Dworkin’s legal theory, states that the law must speak with one voice, so that judges must assume that the law is structured on coherent principles and that in all fresh cases which come before them, judges must apply the same principles. Accordingly, integrity is both a legislative and an adjudicative principle. The legislative principle requires law makers to try to make the laws morally coherent. Law-makers are required assume that these principles were created by, or for, the community as an entity, and that they express the community’s conception, see Dworkin (1986, p. 225).
- 13.
b Hor. 4a.
- 14.
m Sanh. 4:1.
- 15.
b Sanh. 33b.
- 16.
This addition appears in: b Hor. 4a.
- 17.
b Hor. 4b.
- 18.
b Sanh. 33a.
- 19.
The accepted view is that the term mishnah (teaching) was introduced following the Destruction of the Second Temple, even before it was applied to a specific corpus which came to be known as the Mishnah of R. Judah the Prince. The literal meaning of this term is evidently related to the activity of repetition; nevertheless, it also indicated the idea of independent authority ascribed to the sages. Compared with the early midrashic literary style which presents the laws as an outcome of a correct reading of the scriptures, the mishnaic style represents the laws as an inseparable part of the sages and their scholastic activities. The independent authority of the Mishnah was taken as equivalent to the scriptures and might be reflected in the Greek form of the term as used by the Church fathers (δεντερωσις) in the various translations of the verb ש.נ.ה, to repeat (δεντεροω), or ‘the Sages taught’ (οι σοφοι δεντερωσιν), and in anonymous Geonic commentary quoted by Nathan ben Jehiel of Rome, Aruch Completum: the reason ‘it is called Mishnah, is because it is secondary (שניה; second) to the Torah … And it is the Oral Torah; and it is clear that it is secondary to the first thing.’
- 20.
A commentator in fact speaks for the interpreted text and therefore his authoritativeness is derivative and secondary to the authority of the text. The idea of self-canonization implies the view according to which the sages take themselves as firsthand authorities. Therefore the difference between the two perceptions of the sages’ authority illustrates the shifting from the text, as source of authority, to the sage, and from interpretation to teaching.
- 21.
‘Ravina asked R. Ashi: Is this also the case if he erred regarding a teaching of R. Hiyya or R. Oshaia? Yes, said he, And even in a dictum of Rab and Samuel? Yes, he answered. Even in a law stated by you and me? He retorted, Are we then reed cutters in the bog? How are we to understand the term: shiqqul hada’at?—R. Papa answered: If, for example, two Tannaim (i.e. sages of the Mishnah) or Amoraim (i.e. sages of the Talmud) are in opposition, and it has not been explicitly settled with whom the law rests, but he (the judge) happened to rule according to the opinion of one of them, whilst the general practice; follows the other,—this is a case of (an error) in shiqqul hada’at.’ (b Sanh. 33a). On the status of such second order guiding principles in unresolved disputations see the our discussion below.
- 22.
The two examples brought in the Talmud are the spirit of the Talmudic discussion and the widespread habit.
- 23.
This statement is documented only in later sources and it is probably known only through the testimony of Estori Ha-Parhi (Isaac b. Moses; 1280–1355) who learned about it through his travels in the Orient, see Kaftor va-Ferah, Chap. 12, p. 51.
- 24.
The idea of which the general acceptance of a legal corpus makes it obligatory and of a canonical status renounce the notion of ijma’ (إجماع) in Islamic jurisprudence. Ijma’ refers to the consensus of the Muslim community. The various schools within Islamic jurisprudence define the consensus differently: Some argued that it refers to the consensus of the first generation or the first three generations of Muslims only; some held that it refers to the consensus of the jurists in the Muslim world in general and some even extend it to include consensus of all the Muslims, scholars and laymen alike.
- 25.
Ta-Shma identifies this scholar with Joseph b. Meir ibn Migash (1077–1141) the head of the yeshiva in Lucena, see Ta-Shma (1992 p. 113).
- 26.
Sefer ha-Maor, 80b.
- 27.
Born around 900 and died around 1000. He served as the head of the Babylonian academy ( yeshiva) in Pumbedita, which was relocated to Baghdad towards the end of the ninth century.
- 28.
Otzar ha-Geonim, Sanh., pp. 25–26.
- 29.
Sherira’s insights can be compared to those of Sayf al-din al-Amidi (d. 1233). For Amidi, the resemblance between two analogized cases is anticipated due to its preexistence and not the aftermath the jurist’s deliberation. By that, he situates the qiyas outside of the sphere of intellectual activity of the jurists; see Weiss (1992, pp. 552–553).
- 30.
It seems that for Sherira ‘roots’ and ‘branches’ have slightly different denotations. They do not indicate the principles and their particular derivations, but rather stand for two types of resemblance. A ‘root’ is a legal norm whose potential similarities, subject to further analogies, are fixed in advance. Therefore, failure to construe the ab initio similarities is an intolerable judicial error. A ‘branch’ is a legal norm whose potential resemblances are not prefixed. An analogy drawn to this norm does not undermine preexisting resemblances and is thus tolerable.
- 31.
The Arabic term qiyas (قیاس) in its legal sense refers to judicial analogy, general deduction or syllogism. At times legal qiyas is considered the archetype of all forms of legal argumentation. In particular, it indicates the various types of argumentations that legal scholars use in their independent reasoning. The term probably originated in the ancient Hebrew term hekesh (היקש), based on the Aramaic root n.k.sh which means to ‘hit together’ See also p. 89 below.
- 32.
Itturei Soferim, pp. 157–158.
- 33.
Certainly, he held the ‘documentation-as-legitimization’ approach. See our discussion on p. 30 below.
- 34.
The fundamentalist character of Maimonides was recently emphasized by Stroumsa (2009, pp. 53–85).
- 35.
Maimonides, Commentary on the Mishnah. Bekh. 4:4.
- 36.
Maimonides’ reference to the juxtaposition of revelational/derivative law with the terms of nass and qiyas illustrates a high incorporation of the usul al-fiqh technical terminology.
- 37.
Maimonides, Commentary on the Mishnah. Bekh. 4:4.
- 38.
The jurisprudential significance of historical events is also illustrated by a parallel conception in Sunni legal theory, according to which the ‘gates of ijtihad’ were ‘closed’ in the tenth century. On the meaning of this phrase, see Hallaq, 1984.
- 39.
Maimonides’ fundamentalist-reductionist approach is also apparent in his attitude towards the problem of transmission. On that topic he claims that rabbinic law indeed relies on a continuous transmission traced back to Moses at Sinai, however the continuous chain of transmission ( isnad) had vanished when the Talmud was sealed and therefore post-Talmudic law is no longer based on transmission, see David (2008).
- 40.
Shafi’i: ‘(It is) that in respect of which God has imposed on His creation the obligation to perform ijtihad in order to seek it out. He tests their obedience in regard to ijtihad just as He tests their obedience in regard to the other things He has imposed on them.’ (Risala, § 59).
- 41.
Ibid. §. 1409.
- 42.
Al-Ghazali (2006, pp. 85–86).
- 43.
Referring to human fallibility as essential aspect of the divine law and its implications on the concepts of disagreements and diversity, see our discussion below about Elijah ben Abraham (pp. 39–42).
- 44.
Lazarus-Yafeh, note 34 to Al-Ghazali (1965, p. 48).
- 45.
Al-Ghazali (2003, p. 112).
- 46.
Novak (1988).
- 47.
Ibn Rushd (1961, pp. 57–58).
- 48.
Ibid., pp. 58–59.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
David, J. (2014). Error and Tolerance. In: Jurisprudence and Theology. Studies in the History of Law and Justice, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-06584-7_2
Download citation
DOI: https://doi.org/10.1007/978-3-319-06584-7_2
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-06583-0
Online ISBN: 978-3-319-06584-7
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)