Talmud is Not a Code of Law
In working out the ideas behind the statements of the rabbis, the Talmud serves not as a law code but as a work of Jewish legal theory.
The Talmud is neither a "commentary on the Mishnah" nor a "code of Jewish Law," as many people often describe it. As Jacobs demonstrates, the sages of the Mishnah and Gemara (together known as the Talmud) were working out, in different ways, the underlying principles of Jewish law. Jacobs also shows how the legal theories had to relate to the "real world" as the rabbis sought to apply the principles in Jewish society.
The Talmud has consistently defied attempts to categorize it. The legalistic nature of many of its discussions, as well as its importance for the later development of Jewish law, have led many to describe the Talmud as a code of law. However, this narrow definition fails to account for the stories, theological discussions, and anecdotes that make up much of the text. Furthermore, we cannot ignore the structural differences between the Talmud and other Jewish and non-Jewish law codes.
Codes of law, which are designed for easy reference, generally follow a clear order and offer concise rulings. In contrast, the Talmud text includes minority opinions, digresses from its intended subject, and leaves cases unresolved. In more than 300 cases, the Talmud concludes a discussion with the word teyku—a declaration that the issue is unresolved and (as later tradition understands the term) will not be decided until the messianic age.
Theory, Not Code
Without attempting my own, necessarily flawed, definition of Talmud, I will suggest that the legal interests of the Talmud tend primarily toward the development of a Jewish legal theory--and not toward the codification of a body of law. The Talmud is concerned primarily with the process of determining a law or a legal principle, and not in the law itself. To understand this interest, we will examine some of the ways in which the Talmud develops general principles, addresses problematic laws, and reconciles conflicting laws.
The Talmud is comprised of the Mishnah, completed around 200 C.E., and the Gemara, completed around the sixth or seventh century C.E. The Mishnah, which is written in Hebrew, consists primarily of case law. The text introduces a scenario, then offers one, two or, in rare instances, three rulings on the case at hand. Although an individual chapter of the Mishnah may work through the various details of a legal concept, the Mishnah includes virtually no discussion beyond the presentation of originally opposing opinions, and does not decide between opposing rulings. The Gemara, written primarily in Aramaic, discusses and expands upon the Mishnah, while also offering stories and loosely related discussions.
The Mishnah often details rules relating to specific cases, and then sums up the discussion with a klal—a general principle that can be applied to other cases. For example:
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