The Dependence of the Talmudic Principle of Asmakhta on Babylonian Law

Abstract

THE LAW which governed and regulated the life of the Jew in former days is contained in two distinct literatures: Biblical literature, especially the five books of Moses, and Talmudic literature. In the latter we must distinguish between an elder stratum and a younger one. The chief work containing the former is known as the Mishnah, a book compiled about 219 A. D.; the chief work containing the latter is kiiown as the Babylonian Gemara, which is a sort of a running commentary to the older stratum of law, especially the Mishnah. The most striking difference between these two literatures as law is the following. The immediate and sole authority for the law in the Bible is God. The Bible reads, as we all know: 'And God spoke to Moses saying, speak to the children of Israel saying,' etc. On the other hand, the Talmudic legal literature resembles our own AngloAmerican law: the immediate authority for a certain law is the opinion of this or that judge or jurist. It reads as follows: If one does so and so, he should do this, in the opinion of Rabbi A; but Rabbi B says he should do that; and sometimes there follows the opinion of Rabbis C and D. These were not considered as the ultimate authority for the laws. As in the Bible, so in the Talmudic literature, God is looked upon as the ultimate and sole authority. Yet, for various reasons, the Jews could not regard the law contained in both literatures as one and the same. Thus, the problem arose, what is the relation of the one to the other? After a long struggle, the Mishnah propounded the following theory: Moses on Mount Sinai received two bodies of law: the Law and a sort of a running commentary to it. He was commanded to write down the former, while the latter was to be taught orally. The Law written down is the one we have in the five books of Moses; the other which was intended to be taught orally is the one now embodied in the Talmudic literature. Thus there were given to the Jews a written law and an oral