Abstract
Rabbinic literature, the product of the great centers of Jewish learning in Palestine and Babylonia during the first centuries of the common era, contains numerous legal fictions. These fictions are attested in all periods and geographical centers of rabbinic literature, and they address issues of both ritual and civil law, although ritual fictions seem to dominate. In this chapter, I describe the principal characteristics of rabbinic legal fictions, analyze their legal significance, and attempt to account for their origins and development—why they were utilized in the first place, and how later fictions differ from their predecessors. One of the most prominent characteristics of rabbinic legal fictions discussed in this chapter is their frequently scholastic character, which contrasts with the practical use of fictions in other legal systems. Thus, rabbinic fictions often facilitate the theoretical analysis and explanation of the law, rather than aiming to make the law conform with desired legal outcomes. Likewise, rabbinic fictions usually do not account for exceptions to clear-cut, explicit laws of universal applicability. Rather, they emerge in the course of consolidating and generating general rules which are assumed to underlie the law.
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Notes
- 1.
Legal fictions also appear in Jewish legal literature from later periods, but such fictions will not be discussed in this chapter.
- 2.
The most comprehensive and systematic discussions of legal fictions in rabbinic literature are Atlas (1978), pp. 224–237, 265–294 (which, however, suffers from significant methodological problems, discussed inter alia in the literature cited below); Moscovitz (2002), pp. 163–199; Moscovitz (2003); and see also Moscovitz (2013) for a detailed discussion of one particular type of rabbinic fiction. Additional literature dealing with specific rabbinic fictions or aspects of rabbinic fiction is cited below as necessary.
- 3.
Scholars disagree as to precisely how authoritative and widely accepted these works were, and as to whether and to what extent they were intended as actual legal codes, as opposed to study books (note for example the existence of conflicting opinions and unresolved contradictions in these works). However, these issues are of minimal importance for purposes of the present discussion, which focuses on those aspects of these works which are relevant to the analysis of rabbinic fictions from a legal perspective, rather than a literary or historical perspective.
- 4.
Many such rulings are explicitly identified as such, usually using the term ma’aseh (“an incident/ a case”), followed by the ruling of the rabbi who ruled on the case in question.
- 5.
Numerous scholars of rabbinic literature add a third period, that of the anonymous stratum of the Babylonian Talmud (stam in Hebrew), which in their view postdates the amoraic period. However, for purposes of the present discussion, which focuses, as indicated, on legal aspects of fiction in rabbinic literature, this distinction between amoraic and anonymous material is of limited importance, so I do not give it greater consideration here.
- 6.
For the possibility of implicit fictions, viz., rulings which were based, albeit not explicitly, on the adoption of a fictional perspective, see below, Sect. 2.4. One interesting and somewhat borderline case ought to be briefly mentioned here: the notion that “there is retrospective determination of reality” (yesh bererah; see Moscovitz (2002), pp. 171–172). This principle is somewhat reminiscent of the common law doctrine of relation, on which see Lobban, this volume, Chap. 10, p. 205. However, it is difficult to conclusively define either of these notions as a fiction; see the discussions of Moscovitz and Lobban, ibid.
- 7.
This definition excludes what I have elsewhere termed referential classification, and what other scholars of legal fiction have termed analogous application/extension of legal rules or Gleichsetzung. For a more detailed discussion of such phenomena in rabbinic law, with (somewhat complex) examples, see Moscovitz (2002), pp. 164–167.
- 8.
See especially Schauer, this volume, Chap. 6. To be sure, such phenomena are sometimes deemed legal fictions by scholars of rabbinics; see e.g. Hayes (2004), pp. 135–137, 143–147, and Novick (2009), especially pp. 11–12. (Precisely how problematic classifying presumptions as fictions can be emerges from formulations such as Novick (2010), p. 48, who discusses “legal presumptions … that, in their improbability, border on the fictional” [emphasis added].)
- 9.
Such phenomena, too, are sometimes deemed legal fictions by scholars of rabbinics; see e.g. Ancselovits (2011) and the literature cited there, p. 3 n. 2.
- 10.
While an analysis of such phenomena as legal presumptions, dodges and the like in rabbinic literature is unquestionably a worthy endeavor, such discussion would distract us from investigation of the “hard core” fictions which form the focus of this chapter, and indeed would add relatively little of substance to such an analysis.
- 11.
As indicated above, the focus of this chapter is essentially descriptive. Accordingly, comparisons with fictions from other legal systems have been kept to a minimum, and such comparisons have generally only been adduced where important for a proper understanding of rabbinic fictions per se.
- 12.
This may account for the fact that tannaitic fictions are ordinarily not applied to multiple cases, in contrast to certain post-tannaitic fictions; see below, Sect. 3.6.
- 13.
Why this is the case is not fully clear, but see below, n. 36.
- 14.
See Moscovitz (2003 p. 115), with references to additional literature.
- 15.
See below, Sect. 3.2.
- 16.
All translations of rabbinic sources in this chapter are mine, and they are based on the text of these sources according to the standard critical editions or manuscripts. Due to the frequently laconic style of the rabbinic writings, I have supplied additional explanatory material in square brackets where necessary. The following abbreviations are used below to cite rabbinic sources: M. = Mishnah, T. = Tosefta, B. = Babylonian Talmud, P. = Palestinian Talmud.
- 17.
See e.g. M. Shevi’it 1:3; T. Terumot 9:2; T. Mikva’ot 7:4.
- 18.
For additional examples of tannaitic fictions of this sort (sometimes formulated “we consider … as if it does not exist”), see e.g. M. Kilayim 5:2; M. Ahilot 12:3; T. Ahilot 16:2.
- 19.
The suggestion advanced here is based essentially on common sense about how tent impurity should operate, since we do not find clear and explicit tannaitic rules about how such impurity spreads; such rules emerge from “between the lines” analysis of the cases treated by these sources.
- 20.
See also T. Ahilot 9:3–4, and perhaps also M. Ahilot 12:5 and 14:5 (implicit).
- 21.
Interestingly, a fair number of rabbinic fictions, both tannaitic and post-tannaitic, deal with issues such as legal space, partitions, and the like, perhaps because such issues are readily conceived of in terms of formalistic, legal definitions (and hence geometric or mathematical definitions), rather than literal, physical definitions. Cf. Moscovitz (2002): 172 n. 37 (and see examples throughout the discussion of legal fictions in this work).
- 22.
To be sure, there may be some exceptions; see e.g. M. Ahilot 10:3 (R. Jose); ibid. 15:8 (end); M. Mikva’ot 10:5 (see below, text near n. 44).
- 23.
Tannaitic literature (and similarly its post-tannaitic counterpart) is a collective endeavor which contains the rulings of numerous scholars. Many of these are identified by name, although much of this material is anonymous.
- 24.
Indeed, even the Hebrew term for “as if” (ke-illu), which is frequently used to introduce legal fictions in both tannaitic and post-tannaitic sources, is unattested in pre-rabbinic sources.
- 25.
For the possibility that the rabbis’ the use of fictions was influenced by Roman law see the next section.
- 26.
While some Roman fictions are attested well before the tannaitic period, others are contemporary with the tannaitic period.
- 27.
See most recently Ando (this volume, Chap. 14), with references to earlier literature (n. 1).
- 28.
That said, the fact that legal fictions in the ancient world seem to be first attested among the Romans and the Jews—“the two most legally minded peoples of antiquity,” in Boaz Cohen’s famous words (Cohen 1966 vol. 1, p. 124)—might not be coincidental; see further Moscovitz (2003, pp. 131–132) (although the considerations suggested there may apply more to the post-tannaitic period than to the tannaitic period).
- 29.
This is not surprising, in light of the fact that most rabbinic fictions stem from the realm of ritual law, and the rabbinic rituals were obviously not shared by the Romans. In fact, I am aware of only two more-or-less shared (and, obviously, non-ritual) fictions: the condicio pro impleta fiction, according to which a condition whose fulfillment was forcibly prevented by external factors is regarded as if it had been fulfilled, and the fiction that conditions which are physically impossible should be treated as if they had not been written and hence are not binding. See further Moscovitz (2003, pp. 122–125).
- 30.
- 31.
Perhaps the explanatory function served by most post-tannaitic fictions, in contrast to their generally prescriptive tannaitic counterparts, played some role in the evolution of new terminology. In any event, I tend to doubt that there is any connection between the fact that the tannaitic terminology closely parallels that found in Roman legal sources, which are in large measure contemporaneous with the tannaitic material. This similar phraseology is most likely attributable to coincidence and not to any sort of direct contact or influence between rabbinic law and Roman law.
- 32.
See B. Eruvin 89a and B. Sukkah 4b for the first fiction and B. Sukkah 22a–b for the second.
- 33.
See B. Eruvin 80b and parallels. Interestingly, a similar principle is formulated elsewhere using ordinary fictional terminology: “It is as if it had been crushed” (B. Yevamot 103b).
- 34.
See B. Shabbat 7b and parallels.
- 35.
This possibility might account (at least in part) for the application of particular fictions to multiple cases from different legal domains; see below, text at n. 59.
- 36.
This might account for the fact that so many rabbinic fictions stem from the realm of ritual law rather than civil or criminal law, although this suggestion remains conjectural. In any event, it is noteworthy that rabbinic fictions are sometimes used to justify stringent rulings (e.g. the fictional explanations of R. Aqiba’s ruling in M. Shabbat 11:1, discussed below, in the text after n. 44), whereas functionalist considerations would presumably prompt the adoption of an approach marked by greater leniency.
- 37.
Theoretically, it might be argued that some rulings which were explained in fictional fashion by post-tannaitic sources were actually based on functionalist considerations. For example, tannaitic rulings which permit building ritual booths for the festival of Tabernacles (see Leviticus 23:42) with defective partitions, which the Talmud fictionally validates on grounds such as “extend the partitions upwards,” might be attributed to such considerations as the need to deal with a dearth of building materials. Yet while such a possibility cannot be dismissed out of hand, it ultimately remains unproven (and, to my mind, unlikely). Moreover, even if laws explained fictionally were initially motivated by functionalist considerations, the sages who explained them in fictional fashion might well have considered these fictions to be the correct explanations of the relevant rulings, since there is nothing intrinsically implausible about such explanations (at least from a rabbinic perspective; see also below, Sect. 3.7).
- 38.
Cf. also the parallel ibid., 15:5, 15a (and see below, n. 41).
- 39.
A similar ruling, attributed to the same sage, is found in the Babylonian Talmud (B. Yevamot 88a), although there this ruling appears without any explanation (but see the Talmud’s discussion further on) and without use of a fiction: “Rav said, This only applies where [the woman] was married with one witness, but with two witnesses she need not leave [the husband].” See further Friedman (1977): pp. 331–333; Hayes (2004): pp. 137–143; Hayes (2006): pp. 134–137.
- 40.
In rabbinic law marriages cannot be terminated by the disappearance of a husband, regardless of how long he was missing, but only by his actual death.
- 41.
From the partial parallel in P. Yevamot 15:4, 15a (see the statement of R. Jose b. R. Bun there) it might appear that denial of the newly appeared husband’s identity reflects at least some degree of uncertainty as to whether this man is the original husband. However, this claim seems extremely disingenuous. Moreover, the plain sense of the talmudic text suggests that the Talmud realizes full well that the man who just appeared is the woman’s original husband (“if he comes, we say …”).
- 42.
See the discussions of Friedman and Hayes cited above, n. 39.
- 43.
For a similar suggestion see Edrei (1998–2000, pp. 15–16). Prima facie, such an approach might seem to have a Roman parallel (the idea that res iudicata pro veritate accipitur with regard to certain issues of personal status; see Chap. 14). However, two significant reservations should be noted here. First, rabbinic law does not adopt such an approach as a general principle (see e.g. T. Horayot 1:6). Second, the Roman approach seems to have been motivated by the need to sustain the social order (cf. Ando, ibid.), whereas such a line of reasoning would presumably be irrelevant to a case which, from a rabbinic perspective, ultimately dealt with a ritual issue (= the laws of adultery).
- 44.
See e.g. M. Mikva’ot 10: 1–4. The base law here can also be inferred from the ruling which was fictionally explained: by implication, if the handle of the utensil will not be cut off later, this handle must also be immersed.
- 45.
The statements in both Talmuds seem to mean the same thing, despite the difference in formulation (as is the case with many parallel statements in these works).
- 46.
To better comprehend the difference between the two explanations of R. Aqiba’s ruling suggested here, consider what would happen if the object thrown was destroyed in the air of the intermediate domain before it landed in the second private domain. According to the fictional explanation, one would be liable under such circumstances for Sabbath violation, since the object had fictionally landed in the intermediate domain. According to the non-fictional explanation, however, one would be exempt, since this object never landed anywhere.
- 47.
See P. Shabbat 11:1, 12d–13a.
- 48.
See M. Bikkurim 2:10 and parallels.
- 49.
Indeed, despite the fact that the base law here is very widely accepted in rabbinic literature, it is not universally accepted; see Kehat (2010).
- 50.
Fictions of this sort might also reflect the predilection of the post-tannaitic sources and especially the Babylonian Talmud for conceptualist explanations; see Moscovitz (2002, pp. 27–29).
- 51.
For another potentially illuminating example of this sort, see B. Eruvin 87a, where a particular law is explained based on a fiction, while similar (though admittedly not identical) rulings are explained elsewhere on the basis of discretionary leniency (see B. Eruvin 12a and parallels: “The [rabbis] were lenient about partitions suspended above water”).
- 52.
See e.g. B. Eruvin 3a; B. Zevahim 18b; B. Hullin 58b = B. Bekhorot 40a.
- 53.
For the first fiction see B. Shabbat 101a and parallels and B. Eruvin 89a = B. Sukkah 4b; for the second see B. Eruvin 25a (and cf. P. Eruvin 1:1, 18b and parallels); for the third see B. Shabbat 5a and parallels (and cf. P. Shabbat 1:1, 2c and 2d).
- 54.
For the first fiction see B. Ketubbot 51a and B. Hullin 72b–73a; for the second see B. Yevamot 38b and parallels.
- 55.
See e.g. Moscovitz (2002): 189 n. 102.
- 56.
See e.g. Fuller (1967): x. This inconsistent use of legal fictions might be attributable to a variety of factors, e.g. the fact that the relevant legal requirement or “bottom line” was formulated in figurative, fictional style without reconceptualizing the facts for legal purposes, or that fictions were deemed inapplicable to cases which are governed by special, individual requirements.
- 57.
The same applies to other types of post-tannaitic rabbinic rules as well; see Moscovitz (2002, pp. 327–337).
- 58.
- 59.
This possibility might gain added plausibility from the fact that many post-tannaitic fictions are formulated using ordinary verbs rather than comparative terminology (see above, text at n. 32–34), perhaps suggesting that this is how reality was actually conceived for legal purposes. At the same time, it should be stressed that some of the post-tannaitic fictions subjected to multiple application are formulated using comparative terminology (e.g. the fiction discussed above at n. 45, that “an [object] intercepted is as if it had been set down”/“R. Aqiba treats the empty space of a public domain like solid material”; these notions are invoked in both Talmuds in connection with both the Sabbath laws and the laws pertaining to delivery of a bill of divorce).
- 60.
Analogical reasoning of this sort seems to be extremely widespread in rabbinic literature; see Moscovitz (2002, pp. 228–273), passim, especially pp. 260–271.
- 61.
I omit the other passages, which are quite complex and add little to the discussion here.
- 62.
See T. Shabbat 1:1 and parallels.
- 63.
A parchment containing certain biblical passages which must be affixed to the doorpost of a house; see Deuteronomy 6:9.
- 64.
In both cases the fiction is invoked to account for a ruling of the same scholar, Rabbi Meir. However, while it is obvious that both rulings of this sage can be explained in light of a common principle, there is clearly no logical necessity to do so.
- 65.
See above, n. 37.
- 66.
Such as the ones in T. Eruvin 1:5 (see above, text after n. 18) and T. Ahilot 11:10 (see above, text after n. 19). However, there is an important difference between the tannaitic and post-tannaitic fictions: the former are formulated casuistically, as they deal with specific items (beams, roofs), while the latter is formulated in more general terms (= “beat and throw down,” without specifying what). Indeed, this more general formulation might well have facilitated the multiple application of the fiction presented here; cf. above.
- 67.
See the next part of our passage, not cited here because of its complexity.
- 68.
Hayes (2004) (passim, and see especially the Conclusion, pp. 152–154) argues that there is evidence of rabbinic discomfort with certain bold legal fictions, and that some fictions of this sort were eliminated or defused by later authorities who found them objectionable. However, of the five examples Hayes cites to support this claim, only one would qualify as a fiction under our definition (= Hayes’ third example, on which see below), and as noted below, this case seems to be the exception which proves the rule. And while post-tannaitic sages sometimes disagreed as to whether a particular fiction or fictional explanation should be accepted (see e.g. the Talmud’s analysis of the dispute between Abbaye and Rava in B. Eruvin 95a), it is highly questionable whether those scholars who rejected fictions in these cases opposed legal fiction per se. Such scholars generally seem to have preferred non-fictional approaches on localized grounds or in particular cases, without rejecting or objecting to the use of fictions as a matter of principle.
- 69.
While tannaitic fictions frequently are prescriptive, and hence their adoption does have practical import, one could hardly expect to find reflection about legal fictions in tannaitic sources, since these works are basically just collections of rulings, with very limited theoretical analysis and no real legal rumination.
- 70.
Note too that far-fetched explanations of various sorts occur frequently in the Talmuds, and only on rare occasions do such explanations arouse opposition.
- 71.
- 72.
Note too that this particular fiction is used in a prescriptive capacity (even if it also has somewhat of an explanatory element); cf. the text above near n. 69.
- 73.
Cf. further Schauer, this volume, Chap. 6.
- 74.
The use of legal rules in rabbinic literature has been discussed at length in Moscovitz (2002), passim.
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Conclusions
Conclusions
As indicated above, post-tannaitic fictions generally function in an explanatory capacity. Most such fictions seek to ensure the conceptual consistency of problematic rulings with assumed base laws ; they facilitate the theoretical analysis and explanation of the law, rather than attempting to make it conform with desired goals or legal outcomes. Such fictions generally do not seem to be the product of historical development or the desire to amend existing law.
This use of fictions in post-tannaitic sources reflects the adoption of a highly formalistic and rigid approach to law. For it demonstrates how relevant base laws, generally inferable from though frequently not articulated explicitly in earlier literary sources, were endowed with rule-like character and treated as universally binding, in a fashion which brooked no exceptions.
Earlier we noted most of the principal differences between tannaitic and post-tannaitic: the former are usually prescriptive and not explanatory. Moreover, tannaitic fiction often seems to be more of a stylistic phenomenon than a conceptual phenomenon—a figurative way to formulate the relevant legal requirements. Likewise, we noted that tannaitic fictions usually do not serve as general rules, but address specific cases, and hence, in contrast to their post-tannaitic counterparts, are not subject to or capable of multiple application . Yet despite these differences between tannaitic and post-tannaitic fictions, the relationship between these two is better described as evolution than revolution: the use of legal fictions in tannaitic literature certainly prefigures the use of such notions in post-tannaitic sources, despite the differences between fictions from the two periods.
Finally, it is worth noting that post-tannaitic fictions share important characteristics with other types of rabbinic legal rules, such as the frequently explanatory character of such statements, the abstract and “legalistic” approach to reality which they reflect, and the fact that they are frequently subjected to multiple application. Thus, post-tannaitic legal fictions should not be considered an utterly unique phenomenon in the world of rabbinic law, but rather (at least to a certain extent) as a particular instance of the broader phenomenon of legal rules in post-tannaitic literature .Footnote 74
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Moscovitz, L. (2015). Rabbinic Legal Fictions. In: Del Mar, M., Twining, W. (eds) Legal Fictions in Theory and Practice. Law and Philosophy Library, vol 110. Springer, Cham. https://doi.org/10.1007/978-3-319-09232-4_15
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