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 Gemara expresses a concern that a get that refers to the divorcing couple by one set of names will not be accepted as proof of divorce in a place in which one of the partners goes by a different name. Questions about the legitimacy of the get may discourage remarriage or may raise questions about the status of subsequent marriages and the children of those subsequent marriages. The technicality allowing the use of nicknames or aliases in the get thus threatens the greater institution of marriage. The rabbis therefore sacrifice a theoretically acceptable practice in order to guarantee the sustainability of the system as a whole.
Reality again interferes with the theoretical practice of law in the well-known debate between the schools of Hillel and Shammai, two early authorities, about the proper words to say to a bride. The school of Shammai argues that one should describe the bride "as she is," while the school of Hillel advocates describing the bride as "beautiful and graceful," regardless of her appearance. As support for its position, the school of Shammai invokes the biblical injunction to "stay far from an untruth" (Exodus 23:7). Surprisingly, the school of Hillel responds not with an opposing biblical verse, but with an example from everyday life: "If one bought a defective product from the market, would you praise it in front of him or insult it in front of him? We have said that one should praise it." The Talmud ultimately accepts the position of the school of Hillel. (Ketubot 16b-17a).
While acknowledging the problematic comparison between a bride and a product purchased in the market, we should note the radical nature of the school of Hillel's claim that everyday experience can trump even biblically-based legal reasoning. When the law, as derived by exegesis and other accepted techniques, proves inconsistent with community norms, the school of Hillel suggests, the law may be abandoned for the sake of preventing an individual’s shame.
The Talmud is often characterized as overly concerned with legal minutiae and with dictating laws for every area of life. As we have seen, the Talmud does pay considerable attention to individual laws, but uses these laws as the basis for deriving legal principles and methods of legal reasoning.
Beneath the technical and detail-oriented discussions of individual laws lie larger questions about legal categories, about the relationship between individual laws and the greater legal system, and about the interplay between the theoretical world of legal reasoning and the concrete world of legal and ethical choice. Law, the Talmud suggests, is an ever-changing negotiation between the whole and its parts, and between theory and practice.
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