Abstract
While the possibility of pluralism in modern legal theory is established on skepticism, toleration and decentralization, halakhic thinkers approach legal diversity from within their scholastic culture, discourse and dialogue. This chapter explores different attitudes towards the problem of unsettled disputes of authorized jurists. It examines three approaches: Talmudic indecisive disposition, Karaite a-traditional outlooks and the struggle of post-Talmudic Rabbinism with the ideal of halakhic uniformity. Each reflects a different evaluation of legal diversity.
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Notes
- 1.
By disagreement we mean the situation in which the disputing parties are aware of each other’s different stances, whereas diversity can be observed independently of the consciousness of the disputing parties.
- 2.
Notwithstanding the majoritarian principle, the Mishnah also tends to record the rejected opinions of individuals. The reflection on these occurrences provides an elucidation within the codifying rationale, with reference to two opposing rationales—(1) ‘documentation-as-legitimization’ and (2) ‘documentation-as-elimination’: ‘And why do they record the opinion of the individual against (that of) the majority, whereas the legal ruling may be only according to the opinion of the majority? (This is so) that if a court approves the opinion of the individual, it may rely upon him. R. Judah said: if so, why do they record the opinion of the individual against (that of) the majority when it does not prevail? (It is recorded so) that if one shall say, ‘I have received such a tradition’, another may reply to him ’Thou hast (but) heard (it) only as the opinion of so-and-so’. (m Edu. 1: 5-6).
- 3.
Medieval traditions already identified these formulae as post-Talmudic Babylonian supplements attributed to the saboraim, see Lewin 1937, 11–3.
- 4.
Such a statement explicitly appears in a post-Talmudic tractate that reflects earlier traditions and dicta—‘and wherever two tannaim or two amoraim disputed, and we are not certain that the halakha is according to one of them, we follow the stricter view (אזלינן בתר המחמיר ).’ (Masekhet Sofrim 13:9, p. 245). On the cultural context of its various parts see Blank 1999.
- 5.
How are we to understand the category of shiqqul hada’at?—R. Papa answered: If, for example, two tannaim or amoraim 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 commonplace practice (סוגיין דעלמא )/the (Talmudic) tradition on that matter ( סוגיא דשמעתא) follows the other,—this is a case of (an error) in shiqqul hada’at. (b Sanh. 33a).
- 6.
Lit. neither thus nor thus
- 7.
b Ket. 63b.
- 8.
For more on the various explanations for proposing the ruling ‘the one who is more violent prevails’ see the discussion below chapter 5.
- 9.
b Ber. 27a; b Shev. 48a. A comparison between this ruling and the ius respondendi in the Roman Law and its later reduction which allowed the juristic liberty to choose their stance among the earlier answers: ‘The responsa prudentiumare decisions and opinions of those who are allowed to establish the law. If the decisions of all of them converge on a point, what they thus hold obtains the force of law. If, however, they dissent, it is permitted for the judge to follow whichever decision he wishes. And this is made known by a rescript of divus Hadrian.’ (Inst. 1.7) A possible comparison of the inter-relations of the two houses and these of the Roman Law schools—the Proculian school and the Sabinian school—might shed light on the representations of the legal controversies of late-antiquity and their location in historical and jurisprudential terms. See Leesen (2010), pp. 1–40; Tuori (2004).
- 10.
t Edu. 2:3; t Suk. 2:3.
- 11.
Eccl. 2:14
- 12.
b Eruv. 7a.
- 13.
The instructional character of these methods is well demonstrated when compared to post-Talmudic diachronic methods regarding unresolved disputations, such as hilkheta ke-batrai (הלכתא כבתראי ; lit. the law is according to the later authorities) or ein halakha ke-talmid befnei rabo (אין הלכה כתלמיד בפני רבו ; lit. the law is never according to the disciple when this conflicts with the rulings of the master).
- 14.
This Hadith is cited in al-Nawawi’s commentary of Sahih Muslim, a book on the waqf (Al-Nawawi, Al-Minhaj fi Sharh Sahih Muslim ibn al-Hajjaj, 91). The authenticity of this Hadith was doubted by several scholars. Asad (1986) argues that the absence of such an idea in medieval Christian writings is not accidental, but connected to the different structures of discipline within the two religious contexts.
- 15.
Abu Hanifa (699–767), Malk ibn Anas (715–795), al-Shafi’i (769–820) and ibn Hanibal (d. 855). See Melchert (1997).
- 16.
Margalioth (1938).
- 17.
Müller (1969) in his introduction hesitates between the different rationales.
- 18.
Al-Qirqisani (1984, p. 140).
- 19.
Indeed, the thirteenth-century Jewish scholar Sa’d ibn Mansur ibn Kammuna (d. 1248), in his Treatise on the Differences Between the Rabbanites and the Karaites, aims to narrow down the Rabbanite–Karaite gap by listing the differences and arguing that they are only minor.
- 20.
Al-Qirqisani (1984, pp. 140–141).
- 21.
Ibid. 156.
- 22.
See below Chapter 2, pp. 23–24.
- 23.
One might understand the twofold criticism as hinting at the distinction between the Talmudic approach (demonstrated in the Tosefta’s description) and the traditionalist worldview of post-Talmudic rabbinism.
- 24.
Levi ben Yefet, Book of Commandments, p. 14.
- 25.
Ibid. 14.
- 26.
Elijah ben Abraham (1860, 101:26–28; 1981, pp. 69–70); Astren (2004, pp. 141–157).
- 27.
The reference here is to the presumed forefathers of the Second Temple sects the Sadducees and Boethusians. On views of the Boethusians through rabbinic eyes see Harari (1995).
.
- 28.
Elijah ben Abraham (1860, 101:31–38; 1981, p. 70).
- 29.
This attribute is related to the description of the genuine chain of transmission based on the sufferings of the Israelites in Egypt according to Ex. 2: 23–24.
- 30.
Num. 15:22.
- 31.
Deut.17:8.
- 32.
Elijah ben Abraham (1860, 101:38–41; 1981, p. 70).
- 33.
Elijah ben Abraham (1860, 101:38–103; 1981, p. 73–74).
- 34.
The reference here is to the list of differences between these two schools edited in the eleventh century by Mishael ben Uzziel titled Sefer ha-Hillufim (1965). It includes 867 cases of disagreement and 406 cases of agreement among these schools against other schools of Masoretes.
- 35.
This adjective of God is based on the verse in Job. 37:16.
- 36.
Based on Elijah’s criticism of the syncretism of worshiping to God and the Baal together—‘And Elijah came unto all the people, and said, How long halt ye between two opinions? if the LORD be God, follow him: but if Baal, then follow him. And the people answered him not a word’ (1 kgs. 18:21). Our author therefore completely changes the original meaning of the phrase and advocates the coexistence of two contradicting practices.
- 37.
Jer. 6: 16.
- 38.
Mal. 3:1.
- 39.
Jer. 2: 39.
- 40.
See chapter one, n. 15.
- 41.
Lobel (2000), pp. 59–68.
- 42.
The term taqlid (تَقْليد) is used in legal and theological contexts to denote imitation, blind obedience to the decisions of religious authorities, and adherence to one of the traditional schools. It is commonly contrasted with ijtihad (اجتهاد), a personal effort, which in legal contexts signifies independent reasoning as a source of validation. The tension between taqlid and ijtahad reflects the meta-legal perplexity in the Islamic legal world before Shafi’i and was one of the disputed issues between Shiite and Sunni jurisprudence.
- 43.
This identification was also claimed by Karaites who denounced rabbinic attachment to tradition. In this respect, it is plausible to view ha-Levi’s theological project as an initial apologetic that was eventually internalized and then idealized.
- 44.
The example commonly brought to justify legal ijtihad as well as the multiplicity of opinions among jurists is the dilemma of finding the direction of prayer—the qiblah—for believers who cannot visually locate Mecca. While the obligation of facing Mecca applies to every Muslim believer with no temporal or spatial limitations, performing this duty might involve certain practical difficulties when Mecca is beyond the believer’s sight. In that case, the worshipper must make a special effort ( ijtihad) and use his own judgmental faculties in order to determine the correct direction. This metaphor concretizes the idea that, since the objective law is not always known to the believers, the place at which certainty ends is the point of departure for the personal independent reasoning. The image of the believers walking in the desert is associated with the image of the theologian as warrior defending religion and truth.
- 45.
Judah Ha-Levi, Al-Kitab al-Khazari, 3:37.
- 46.
Ibid. 3:39.
- 47.
Num. 15: 16. It should be noted that the original verse emphasizes the unity of the law in the sense that the law and justice should be equally applied to the Israelites and the aliens (גר תושב ). Therefore, the requirement of ‘one law’ is not epistemological but rather the moral demand to treat insiders and outsiders equally.
- 48.
Judah Ha-Levi, Al-Kitab al-Khazari, 3:49.
- 49.
Maimonides, Commentary on the Mishnah, introduction, 4.
- 50.
Ex. 23:2.
- 51.
Maimonides, The Guide for the Perplexed, II: 40, 381–382.
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David, J. (2014). Unsettled Disputes. 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_3
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