34 - Talmudic law: a jurisprudential perspective

Summary

PRELIMINAY REMARKS

Talmudic discourse contains almost no general statements of a philosophical nature, and specifically, almost no self-reflective remarks by the Sages on the nature of their enterprise. In other words, the Sages never expound a jurisprudential program or articulate the directions in which they seek to develop the law. Therefore, any attempt to portray the legal thinking of the Talmud can only be carried out by posing questions to the talmudic text and seeking to answer them in terms of the Talmud’s own concepts. It goes without saying that the questions will be formulated, and the issues selected, from the perspective of the conceptual framework of the contemporary jurist. One can identify many conflicting tendencies within talmudic thinking, which does generate a certain amount of internal tension; nevertheless, the picture that emerges possesses overall coherence and cohesiveness.

Talmudic law is not identical with the legal reality at the time of the Talmud. In practice, in the land of Israel and later in Babylonia, different legal systems coexisted simultaneously. The expression “talmudic law,” in this context, refers to the legal framework accepted and developed by the Sages of the Mishnah and the Talmud, as it is reflected in these works. The question of the extent to which this framework was more generally accepted, and that of its relation to other legal systems of the period will not be addressed in this work.