Classical Rabbinic Literature and the Making of Jewish Ethics

Abstract

At first glance, these four recent publications would seem to have little in common beyond their shared affiliation in Jewish studies. But despite their differences in content, these works actually share an important feature: an emphasis on the formal features and diverse genres of classical rabbinic literature, and an acknowledgment that these unique features may play an important role in Jewish ethical and legal decision making. While two of the books describe some of the defining formal features of classical rabbinic literature as well as the implications of these characteristics, the other two represent an attempt to put some of these formal features into action in contemporary Jewish ethics. Read together, these works both define a set of methodological questions and expand the possibilities of how contemporary Jewish ethicists can, or should, make use of the notoriously complex classical rabbinic sources in contemporary ethics.Rare is the contemporary Jewish ethical reflection that does not contain multiple references to classical rabbinic texts; although Mishnah and Talmud are most often invoked, classical rabbinic midrash is not infrequently present as well. More than any other literature, classical rabbinic sources provide the basis for studies in contemporary Jewish ethics. This in itself is not surprising; regardless of the degree to which modern Jews understand themselves to be observant of halakhah, Jewish law, the Talmud's influence on Jewish practice and thought is undeniable. As Judith Baskin, writing in Paul Socken's edited collection Why Study Talmud in the Twenty-first Century?, observes, The complex and many faceted Talmud, and the larger body of Jewish rabbinic literature of which it is a part, constitutes a rich and enduring component of the Jewish heritage. Talmudic teachings and legislation united and sustained Jewish life and identity across immense distances for well over a thousand years. All contemporary forms of Jewish religious life are constructed on the foundations of rabbinic Judaism. (38)But while the foundational importance of classical rabbinic literature may be established, the question of how exactly the ancient literature is employed for contemporary means is less obvious. Among Jewish ethicists, Louis Newman has provided perhaps the most extensive consideration of the ways classical sources are used, producing a body of thoughtful writing on the roles that Jewish texts do (and ought to) play in contemporary Jewish ethical decisions. In his essay “Woodchoppers and Respirators: The Problem of Interpretation in Contemporary Jewish Ethics,”1 he identifies the unstated assumptions that often drive the use of classical texts in contemporary ethics—such as, for instance, the notion that texts “contain some single determinate meaning” and that the role of the exegete is merely to “extract this meaning from the text and apply it to contemporary problems” (18). Newman rejects these assumptions as largely untenable, arguing persuasively that an ethically oriented exegete who believes their conclusions to be simply a product of “what the text says” is mistaken. Newman concludes, “any reading of the texts that we produce, and any conclusions we draw from them, are as much our work as theirs. Those engaged in contemporary Jewish ethics surely need not quit reading texts, but just as surely they need to make more modest claims on their behalf” (37).It is notable, however, that Newman's persuasive argument for literary subjectivity remains largely in the realm of textual content, with less consideration to the question of how the particular formal features of the texts might influence their use as well. By formal features, I refer to those characteristics of the text that are not related to any particular content, but that shape the way all content is presented. Newman explicitly acknowledges his own content-based approach at one point, saying, “It has been my assumption throughout … that what makes contemporary Jewish ethics Jewish is its attempt to develop positions which carry forward the views contained within that long textual tradition” (37). In invoking both “positions” and the “views contained” within the tradition, Newman makes clear that his chief focus remains on particular textual content, even if, as he argues, the ultimate meaning or significance of the content can be difficult to identify.Two of the books under discussion herein, however, put the formal features instead of the content of classical rabbinic literature at the center of their analysis. These works not only analyze the most notable features of rabbinic literature, but theorize about the enduring significance of these same features, pushing us to consider how this scholarly trend might affect the use of rabbinic sources for ethics.Moshe Simon-Shoshan's Stories of the Law is a dense literary exploration of one particular aspect of classical rabbinic literature: the presence of stories—brief and laconic, but stories nevertheless—in the Mishnah. The project requires him to engage the Mishnah's formal characteristics more generally, and the way in which narrative and non-narrative material interact in the text. While Simon-Shoshan devotes some time to determining what defines a story, he is chiefly interested in the broader relationship between narratives and law, and the ways in which the Mishnah's many stories serve to aid, nuance, or even undermine the legal declarations contained in this complex early rabbinic text.As he notes, one of the Mishnah's better-known stories is recounted in the first chapter of the first tractate of the Mishnah. M. Berakhot 1:1 relates: Once it happenedthat [Rabban Gamliel's] sons came home [late] from a wedding feast.They said to him,“We have not yet recited the [evening] Shema.”He said to them,“If the dawn has not yet come,you are still bound to recite the [evening] Shema.” The presence of such tales is just one of the factors illustrating the Mishnah's complicated status as a code of law. While the Mishnah is undoubtedly concerned with matters of Jewish law, the many and conflicting opinions on a given subject are presented without any explicit articulation of which opinion is accepted. Consider, for instance, the question that opens tractate Berakhot, and which immediately precedes the story of Rabban Gamliel's sons: From when may one recite Shema in the evening?From when the priests go in to eat their terumah [produce consecrated for priestly consumption], until the end of the first watch – this is the opinion of R. Eliezer.The sages say: until midnight.Rabban Gamliel says: until dawn. The Mishnah opens, therefore, with a single legal question but with three different opinions; the reader is never informed of which assertion has carried the day. Simon-Shoshan notes that despite some important similarities between the Mishnah and Roman law—similarities shared by few other ancient legal texts—the Mishnah is unique in this regard. According to Simon-Shoshan, there is no Roman legal material that “regularly juxtaposes opposing opinions in the matter that we find in the Mishnah is virtually every chapter. Ultimately, the Roman sources aim to present a unified view of the law, whereas the Mishnah regularly leaves issues unresolved” (81).Rejecting Jacob Neusner's account of the Mishnah as a homogenous literary production, Simon-Shoshan argues that any attempt to understand the Mishnah's narrativity must first acknowledge the dialogical character of the Mishnah itself. He turns to the Russian literary theorist Mikhail Bakhtin, whose work on heteroglossia (“different voices”) has influenced the scholarship of rabbinics scholars such as Daniel Boyarin and Barry Wimpfheimer. In his classic essay “Discourse on the Novel,” Bakhtin argued that all literary language contains multiple “voices” in dialogue with one another to create a literary work;2 as Simon-Shoshan explains it, “The essential meaning of texts lies not in the sum or synthesis of these [different] positions, but in the ‘dialogic’ interaction between these dialects and their contrasting worldviews. A thorough reading of a literary text leads not to a resolution, but to the perpetuation and enrichment of the tensions and conflicts between the texts' various voices” (63).In the Mishnah, the most obvious place to look for dialogue might be in the presentation of conflicting opinions, such as in the opening chapter of Berakhot. But Simon-Shoshan argues that the Mishnah should be understood as a dialogical text in a deeper way—through the interaction between the various literary forms employed in the text. He suggests that mishnaic stories may represent one “voice,” while other non-narrative forms, such as a declaration of opinion, represent other voices. In this formulation, the Mishnah's stories contribute to an ongoing conversation by speaking in a narrative voice and contributing a narrative point of view, while other stylistic voices provide other points of view by way of assertion, question, and other literary forms.This conclusion has multiple implications. As regards the content of the Mishnah's stories, Simon-Shoshan argues that the juxtaposition of narratives (nearly all of which feature rabbis) and and non-narrative material serves both to “establish and investigate” rabbinic authority in Judaism. The rabbis are almost always the “main characters” of the Mishnah's tales, a fact that seems to underscore their role as the final arbiters of legal questions. At the same time, however, Simon-Shoshan notes that some of the stories display ambivalence about the rabbis' influence, suggesting that the Mishnah itself is divided on the “nature and extent of rabbinic authority” (230).The second, more overarching, conclusion is that the Mishnah gives us an example of a text in which law and narrative do not operate in fundamentally distinct or opposing realms, but are, in fact, dependent on one another. With this claim, Simon-Shoshan departs significantly from the work of Robert Cover, whose influential essay “Nomos and Narrative” maintained a clear distinction between the two categories.3 Simon-Shoshan argues, however, that in the Mishnah legal assertions and narratives are “intersecting realms,” both of which serve as “means for ordering human actions, human experience, and the human environment” (64). Moreover, the close juxtaposition between legal declaration and story in the Mishnah challenges the reader to consider the ways in which each form may be responding to or challenging the other. Lest we think that a declarative legal statement is the last word on the matter, a story may follow that appears to call the ruling into question. Conversely, a story that seems to offer a general principle may be juxtaposed with a series of rabbinic opinions that undermines the story's force. The Mishnah, of course, does not weigh in on the relative weight of these forms. But Simon-Shoshan sees this interplay as an indication of the inextricable relationship between diverse forms of expression in the text, perpetually in dialogue with one another.In contrast to Simon-Shoshan's dense scholarly exposition, Socken's edited Why Study Talmud in the Twenty-first Century? is intended for a somewhat broader audience. But like Stories of the Law, Socken's collection of academic reflections on the Talmud reveals a preoccupation with the formal characteristics of classical rabbinic literature and their significance.Socken's book features a series of academic Talmudists (including scholars of Mishnah and midrash as well as Gemara) from North America and Israel, each of whom contributed a chapter reflecting on the broad question of the Talmud's contemporary relevance. Many of the contributions include an autobiographical account of the scholar's “discovery” of the Talmud, as well as some theological or philosophical reflection on the Talmud's role in modern Jewish thought and practice; some of the contributors also undertake sustained exegesis of Talmudic sugyot, or passages, as illustration. Socken's hope, it seems, is to present a variety of cases for the Talmud's relevance to contemporary Jews who may be unconvinced that they have much to learn from an ancient text or the practice of studying it.Socken notes that the book's sixteen contributors represent a broad range of theological points of view and hail from a variety of schools of thought. But what is most striking about the featured academics is just how similar their evaluations of the Talmud's significance are, with a number of themes remaining consistent across divergent scholarly approaches, Jewish denominational affiliations, and other differences. In short, despite the intriguing content on nearly every conceivable subject within the Talmud, it is the text's formal features that compel the book's contributors—formal features whose significance seem to extend well beyond the Talmud itself.Nearly all the writers refer to the Talmud's unsystematic mode of expression, and the uniqueness of such a style among the religious texts of late antiquity. As Pinchas Hayman writes, The Talmud is unlike any text in western civilization. It is not a text at all. A western text is generally the work of a given author, from a given place and time, presenting a given story, thesis, or experience. Talmud is the work of hundreds of authors, from multiple places and times, presenting laws, stories, theses, and experiences in variegated languages … and literary styles and conventions. (96) Hayman's effusive description is echoed by a number of other contributors, all of whom locate the Talmud's brilliance not in any particular content or legal reasoning but rather in the unique method of discussion displayed in the text. Devorah Steinmetz, for instance, describes the Talmud as “inherently dialogical. Much of the text of the Talmud is cast as an actual dialogue, as questions are raised and answers are offered, challenged, and defended and as the opinions of different sages are positioned in relation to each other and in relation to the positions of those who came before” (53).Beyond the unsystematic and dialogical nature of the Talmud, a number of contributors also remark upon the text's remarkable tolerance for dissent, which they locate in the fact that the Talmud presents entire discussions, instead of simply reporting on the result of disputes. As David Kalmin writes, “For every ‘Yes’ in the Talmud there is also a ‘No’; for every rabbi who says ‘Forbidden’ there is another who says ‘Permitted.’ This tolerance of dissent, this insistence on preserving the voice of the loyal opposition along with the majority, or of preserving equally valid alternatives, is entirely the Talmud's innovation in the ancient world” (153).Importantly, several writers are quick to point out that this feature, though certainly striking, should not be over-interpreted; the Talmud is not a text where “anything goes,” or that contains an infinite possibility of correct answers. Even in cases where a rabbinic debate ends with a conclusion of teyku (“it stands”; the argument cannot be resolved), the conclusion should be understood as being limited to a finite set of possible rulings, not as a postmodern rejection of the possibility of determinate conclusions.By and large, the book's contributors are united both in their scholarly evaluation of the Talmud's formal characteristics, and their conclusion that it is these very characteristics that render the Talmud “relevant” for contemporary Jews. Why, then, should Jews study Talmud in the twenty-first century? The book's answer, unsurprisingly, is that the Talmud's formal features may provide a model for how to better reason, discuss, make decisions, and engage in relationships. Elizabeth Alexander argues that “Talmud study promotes the ability to hold on to two different, even mutually exclusive, ways of viewing the same data because the Talmud itself models the practice” (17). Chernick offers the suggestion that the Talmud models epistemological humility and the value of individual voices; he writes that “the Talmudic argument fosters respectful regard for all opinions, even ones that will eventually be dismissed on logical or practical grounds. Those who redacted the Talmud appear to have held that even those views that do not emerge as ‘normative’ still have something to teach” (108).Few of the contributors attempt any concrete theorization of what it would actually look like to engage the world, as it were, talmudically. But the book's contributors display broad agreement that it is the Talmud's formal characteristics that make it exciting. While rabbinic disputes on particular issues will concern only particular people at particular times, attention to the Talmud's formal features can shape the way people behave in a variety of contexts, slowly molding its readers into more critical and more ethical individuals. Invited to theorize about the contemporary importance of the Talmud, many of the academic Talmudists in Socken's book claim that attention to these formal characteristics and emulation of them in one's own textual study practices can actually help make us better thinkers and decision makers. Hence, the comfort with ambiguity, the preservation of the dialogical process, and the frequent absence of conclusion or consensus are not simply notable textual features, but possibly normative ones— features that can, and ought to, influence our own reasoning processes and communicative abilities.But determining what this might mean for contemporary Jewish ethics and its frequent invocation of classical sources is no easy task. Faced with urgent and enormously complex ethical questions, these fascinating formal features may quickly come to seem more problematic than productive. Ethical decision making, after all, often involves an individual surveying a body of different opinions and then deciding which is most nearly correct, or continuous with the tradition, or in line with a set of evidence. But as these two books demonstrate, much of classical rabbinic literature is characterized largely by the maintenance of a multiplicity of voices, with no (explicit) indication of which voice, if any, is more “correct.” That is, formally speaking, there may be a sharp division between the method of presentation in the literature—a plethora of voices and interpretations set side by side—and the method of presentation in ethics, where an individual surveys the relevant voices and presents a conclusion.The other two books under discussion, however, represent two attempts to overcome this challenge. Both studies, one in medicine and bioethics and the other in business ethics, strive to demonstrate that the unique formal features of rabbinic literature are not an impediment to the production of normative ethical reflection. In fact, both works suggest that these features may actually aid in addressing existing methodological problems in Jewish ethics. I should note that for the purposes of this review, my reading of these volumes is necessarily selective; there is a great deal of material in them that I will not have the space to address. But I present them as examples of works that attempt to employ the formal features of classical rabbinics for ethical decision making.Although William Cutter's edited volume opens with a salute to Maimonides, medical doctor and textual interpreter, the book is largely concerned with a style of interpretation that far precedes Maimonides, and is broadly termed “midrash.” As a collective endeavor, the work seeks to employ the trope of midrash to explore the relationship between the Jewish textual tradition and the challenges and ethics of health care, aging, death, healing, and psychotherapy in the United States.With nineteen different contributors—among them rabbis, academics, physicians, and bioethicists—writing on the relationship between midrash and the ethics and theology of medicine, the most obvious question is how, precisely, midrash is being defined. In the strict historical sense, of course, the term refers to the body of playful and creative rabbinic interpretation of the Hebrew Bible, with the ostensible goal of locating and filling gaps in the Bible's narrative, legal, and poetic accounts, often linking these insights to the rabbis' own context. Like Mishnah and Talmud, the features of rabbinic midrash include tolerance for semantic ambiguity, the preservation of multiple voices and points of view, and a frequently meandering and unsystematic mode of expression.4These formal characteristics are frequently alluded to by the volume's contributors, sometimes with reference to scholars such as Daniel Boyarin, James Kugel, and David Stern, all of whom have written extensively on the mechanics of midrashic literature. But while knowledge of the historical midrashic corpus underlies much of the work in Midrash and Medicine, there is a broader use of the term at work as well.From a wealth of examples, I present two that illustrate some of the chief ways “midrash” is employed in the volume. In a chapter on the burgeoning Jewish healing movement, for instance, Eric Weiss writes, In the canon of our sacred literature, “midrash” means at its core “interpretation.” Because we use sacred narrative as a framework to interpret its application to our own lives, the very nature of midrash invites us to weave the cumulative text of our own lives into a canonized communal story such as the Exodus…. It is uniquely Jewish to understand our communal life in the context of what our past tradition can illuminate today…. The story of our people, the midrash of our collective lives, is spoken in every counseling office, at every hospital grand rounds, at every staff meeting, at every bedside. (45) In his statement, Weiss appeals to midrash as a tradition-specific mode of interpretation that invites Jews to examine their own lives in the context of communally shared ancient traditions. Weiss also uses the term to refer to the many common interactions (“the midrash of our collective lives”) that occur in clinical settings, suggesting that these communications are as legitimately “midrashic” as the ancient rabbinic practice of biblical interpretation. Midrash, therefore, takes on an expansive definition, capable of encompassing a wide array of interactions.What then is the function of midrashic discourse in this context? In Weiss's case, midrash serves as a kind of descriptive shorthand for complex and unsystematic human interactions. That is, the well-known formal character of rabbinic midrash allows the term to communicate that the kinds of contemporary interactions under discussion may, like midrash, be ambiguous, contain implied and hidden meanings, and be worthy of extended consideration and interpretation.A second example demonstrates the way in which reference to midrash may serve an explicitly prescriptive ethical function. In his chapter, “Talking to Physicians about Talking about God: A Midrashic Invitation,” the volume's editor, William Cutter, defines midrash broadly as the process of “creat[ing] the new out of communication with each other about the old,” and calls for doctor-to-patient and doctor-to-doctor communication to take on a more “midrashic” character. He suggests, for instance, that the health care system writ large would benefit from increased communication between the multiple physicians consulting on a patient's case; the conversation he envisions would consist not merely of a series of reports, but an open dialogue between experts attentive not only to patients' physical conditions but also to their histories, beliefs, and emotional states.To be sure, the volume's contributors also make reference to midrash in more historically specific ways, or engage with particular rabbinic midrashim. But in general, the term is used to describe everything from the process of asking difficult questions to the use of personal stories in healing rituals or talk therapy. Ronald Andiman's evaluation of the term's usage in Cutter's aforementioned chapter accurately characterizes the use of the trope across the volume: “The term midrash is being used metaphorically as a shorthand way of combining such cognitive and interpersonal elements of the physician's own experience and the doctor-patient relationship as communication (dialogue in particular), reflection, interpretation, poetic insight, self-examination, and dealing with issues of the spirit” (100).Jonathan Cohen's chapter, near the end of the volume, provides a provocative critique of midrashic discourse in medical and bioethical settings, an argument that can be read as a response to the volume as a whole. Specifically, Cohen is responding to Leonard Sharzer's chapter, “Aggadah and Midrash: A New Direction for Bioethics?” Sharzer prescribes further inclusion of the narrative and midrashic tradition in contemporary bioethics, suggesting that this would actually allow for a more open-ended and democratic decision-making process. As he writes, I believe that for many of the questions raised by modern medical situations, aggadah [narrative material] may be more helpful at arriving at decisions that are within the Jewish tradition than halakhic reasoning. It is the nature of stories that they are open to multiple interpretations and invite the active participation of the listener, be she physician, patient, or family member. (253) Unlike the use of halakhic material, which may function coercively or “prescribe specific courses of action” (254) without listening carefully to complicating factors, Sharzer argues that the narrative tradition is better suited for dealing with complex modern medical questions. He concludes, “In the end it may be the very ambiguity of the story that is its most valuable characteristic” (262).Cohen, however, takes issue with this claim, and, by extension, the book's dominant assumption that more “midrashic” forms of discourse—including the use of rabbinic midrashim in bioethics—necessarily create the kinds of nuanced interactions that Sharzer and others desire. Appealing to literary theorist Geoffrey Hartman's work on “word-wounds,”5 Cohen argues that all literature, regardless of its formal features, has the ability to “wound” readers or listeners, striking them in ways that we cannot anticipate or control. Narrative and other “open-ended” literature can still, Cohen argues, “‘make us do things,’ rather than merely influence our worldviews or inform general principles and values that guide our action” (271). In other words, ethicists and other medical professionals ought not to assume that by employing texts or tropes with “midrashic” features they escape the danger of imposing values or conclusions on people seeking healing or guidance. Responsible use of midrashic material in medical settings requires constant evaluation of how midrash—no matter how broadly construed—is being employed.Like Cutter's volume, Moses Pava's book, Jewish Ethics in a Post-Madoff World, is largely methodological, although his focus is on business instead of medicine. Pava's book, however, frames the methodological questions as a specific response to a series of recent and high-profile legal and ethical lapses in the Jewish world: the Agriprocessors kosher slaughterhouse scandal, the New Jersey rabbi money-laundering arrests, and, of course, the investment scandal of Bernie Madoff, which had serious existential and financial implications for many American Jewish institutions.The Jewish textual tradition is not short on discussions, norms, and halakhic rulings that could be used to speak directly to the content of these egregious lapses. Particularly given that several of these cases originated in the Orthodox community or implicated Orthodox institutions, we might expect Pava to respond first with ferocious citation of these many passages. Instead, however, his book revolves around a critique of the means by which contemporary Jews arrive (or don't) at ethical conclusions. What is missing, he argues, is not knowledge of the tradition per se, but something more fundamental: the “basic abilities, skills, and vocabulary to get started and to talk openly and reasonably about ethics and the rampant ethics failures in our society” (xiv). Knowledge of “the tradition” will make little difference in how we formulate ethical questions and attempt to answer them if we do not possess the right tools to engage the tradition and one another.To that end, Pava calls for a “Jewish ethics in a new key,” with the ability to more effectively identify and respond to serious ethical challenges—in business and otherwise—as they arise. Like many of the contributors to Cutter's volume, Pava suggests that a different approach can perhaps avoid some of the common ethical errors he observes. And like the contributors in Midrash and Medicine, Pava is convinced that this methodological shift must include increased respect for the ethical potential of “ambiguity, complexity, contradictions, and uncertainty” (3). Pava classifies these features under the category of “playfulness,” a notion he draws from biblical scholar Avivah Zornberg's recent work The Murmuring Deep: Reflections on the Biblical Unconscious.6 Acknowledging that “play” might seem an odd approach to serious ethical questions, he argues that “an ethical philosophy that is certain in its beliefs, completely realistic in its aspirations, total in its coverage, absolute in its faith, and purposely devoid of humor is a far darker and scarier scenario to contemplate” (4). Against this ethical absolutism, Pava repeatedly exhorts his readers to hold on to the Jewish tradition more “lightly,” allowing room for communal change and a more inclusive, creative, and open-ended discourse about the demands of ethics alongside civil and religious law.As a means of putting his vision into action, Pava presents a series o