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.

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"One who steals wood and makes vessels from it, or one who steals wool and makes clothing from it [upon confessing or being caught] pays [the owner] the cost of the object at the time it was stolen [i.e. the thief pays the cost of the wool, not of the clothing.] One who steals a pregnant cow and it gives birth, or one who steals a ewe in need of shearing pays the cost of a cow about to give birth or of a ewe about to be shorn. One who steals a cow that later becomes pregnant and gives birth, or a ewe that later needs shearing and is shorn pays the cost of the animal at the time it was stolen. This is the klal: all thieves pay the price of the object at the time it is stolen." (Mishnah Bava Kamma 9:1)

The Mishnah offers a number of specific cases of theft and reparation, but is primarily interested in deriving from these cases a general principle that will serve as a basis for later decisions. Ultimately, the Mishnah may even be less concerned with appropriate fines for theft than with greater questions of property ownership and justice. The klal with which the Mishnah ends suggests that ownership extends only to property under one's direct control, and that a thief's intention is the primary determinant of his or her punishment. These principles may, in turn, be applied to other areas of civil and criminal law.

Legal theory cannot exist in a vacuum, but must be refined and revised in response to real life demands. The Talmud constantly balances attention to legal minutiae with a desire to maintain the coherence of the Jewish legal system as a whole. Great point, great transition! Generally, the Talmud derives specific laws formalistically, through a comparison of sources, interpretation of texts, and inference from previous cases. Many legal discussions are theoretical in tone—only occasionally does the text offer an instance of the law in practice. Some of the most interesting instances of real world interference in the theoretical discussions involve laws that, while technically acceptable according to the rules of legal interpretation, cause difficulties when implemented.

Real World Concerns

In some cases in which a particular law threatens to undermine an entire part of the legal system, the rabbis declare a change in the law "mipnei tikkun ha'olam"—literally, "for the sake of sustaining/repairing the world." Most of these cases revolve around issues of marriage and divorce and concern procedures that, while legally valid, may create a doubt about a couple's marital status.

In one such instance, the Mishnah notes that it was once acceptable for a get (divorce document) to identify the divorcing couple by any names by which they were known. According to the Gemara, this practice created problems for couples in which one or both partners used different names in different cities:

"According to Rabbi Yehuda, Shmuel said: The people of a far away place sent the following question to Rabban Gamliel: There are people who come from your city to ours who are named Yosef, but here go by Yochanan; or who are named Yochanan, but here go by Yosef. How are we to write gittin (plural of get) for them? Rabban Gamliel made a takana (a change in the law) that the get must refer to "Mr. so-and-so, and whatever other names he may have" and "Ms. so-and-so, and whatever other names she may have " for the sake of tikkun ha-olam" (Gittin 34b).

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Rabbi Jill Jacobs

Rabbi Jill Jacobs is the Executive Director of Rabbis for Human Rights-North America. She previously served as the Rabbi-in-Residence for the Jewish Funds for Justice.