Talmudic Legal Tradition Assignment

Research Essay: Talmudic Legal Tradition Assignment Instructions

Overview

For this assignment, we analyze the second major legal tradition that developed, the Talmudic legal tradition. The Talmud is the major source of this tradition and has been maintained for thousands of years. Often referred to as the Jewish legal tradition, this tradition has influenced countless other traditions throughout the world. This assignment hones your research and writing and sharpens your analytical skills by requiring you to identify historical aspects of the Talmudic legal tradition, while also deducing how the history has shaped the present in the United States.

Instructions

This module you have read about the Talmudic legal tradition, a unique legal system that has existed for thousands of years. For this first essay, answer the following 3 questions:

• Is this legal tradition a religious legal system?
• How has this legal tradition allowed the Jewish people to maintain their identity?
• Has this legal tradition influenced the legal system of the United States?

Your essay must be 5–6 pages in current Bluebook format and contain at least 5 scholarly sources in addition to/other than the course textbook and the Bible. Wikipedia does not count as a scholarly source. Include headings for clear organization. Cover Pages will not count toward the page total, and your citations should be in-text citations (not footnotes, endnotes, reference pages, etc.).

Note: Your assignment will be checked for originality via the SafeAssign plagiarism tool.

ANSWER

Talmudic Legal Tradition

The Talmud is the written version of the Jewish oral law and its application through commentaries. The Talmud covers over 5,000 pages entrenched in over 60 treatises. The Jewish Halakhah law derives from the Talmud and consists of two major versions; the Mishnah and the Gemara. The Mishnah originates from the 2^nd century CE and is the unedited version of the oral law. It entails the codification of basic Jewish law based on the Torah. The Gemara refers to the record of the rabbinic commentaries of the Mishnah until the 5^th century CE. The Gemara codifies the differences in the sages and scholars’ views as they attempted to reach conclusions on every kind’s legal issues. In the contemporary world, the Talmud refers to the Babylonian version, which was completed in the 5^th century CE as it is regarded as having the most authority.

Is Talmudic Legal Tradition a Religious Legal System?

The law in the religious legal system originates from messages within a distinct religious culture. The Talmudic legal tradition is a legal system thus, this essay analyses whether Talmudic tradition’s features resemble a religious legal system. The law in a religious legal system is permanent. There are no laid down procedures where the law can be amended to adapt to the changing circumstances. In a religious legal system, the Torah can be used as the only guide. Thus, the Torah serves as God’s commands to human beings and cannot be altered or extended by legislation. However, the Talmudic legal tradition allows for the law’s circumvention and provides a procedure where institutional changes can be made (Schick, 2021). The Talmudic legal tradition uses judicial interpretation covered in the book of Deuteronomy. Judicial interpretation allows the change of laws to conform to the issues of that generation.

In a religious legal system, some texts are restricted to a selected few. For example, there are texts in the Torah that are not made or read publicly, and some are not translated to common languages. However, the Talmudic legal tradition inscriptions are all open and accessible to the public.  In a religious system, judges are selected on the basis of lineage. Adjudication is entrusted to people with superior status in society, such as priests. In contrast, the Talmudic legal system allows judges to be selected based on merit and acquired skills.

The contrast in religious legal systems and Talmudic legal tradition is also evident in its enforcement of laws. In a religious legal system, some laws are enforced through divine intervention only. In contrast, Talmudic legal tradition uses punishment imposed by human authorities such as lashes, ex-communication, fines, compensation, and death. These punishments also vary with time, geography, and the parties who executed the remedies. Talmudic legal tradition is also different from the religious legal system in the subject matters it covers.

Religious legal systems cover aspects of the law, such as paternalistic and ritual laws. However, Talmudic legal tradition covers aspects of the law regarding the relationship between individuals and society, such as criminal and civic laws. In addition, it deals with laws regarding personal harm, such as suicide. Religious legal laws have no boundary as they apply to all persons. However, the Talmudic legal tradition specifies laws applicable in a given location, Israel, and others for all humanity. Religious legal systems view educational aspirations in high regard than the maintenance of social order. Talmudic legal traditions favored the discussion of law to enable moral, social order based on set rules rather than educational perspectives. The differences in characteristics between Talmudic legal tradition and religious legal systems paradoxically show that the tradition is not a religious legal system since its features resemble a distinct religious system.

How has Talmudic Legal Religion Allowed the Jewish People to Maintain their Identity

The Talmudic legal tradition has allowed the Jewish people to maintain their identity since the knowledge was passed down from older generations to younger generations through the Jewish educational system. The Jewish education system adopted Plato’s theory of education, emphasizing customary laws study by younger generations. Besides, the phrase Talmud is derived from the Hebrew verb meaning to teach. The basis of Jewish childhood education is enshrined in the Torah inscriptions, ‘and you shall teach the laws diligently to your children’ (Wimpfheimer, 2018). The study of Halakhah law was the epitome of young Jewish education.

Additionally, Talmudic legal tradition derives its concepts from the oral law Moses received in his days on Mount Sinai. The oral law was in the form of thoughts and perceptions, while the written law was in tablets. The Torah contained the written words of the law. However, their significance and implementation would be passed down from teacher to student or parent to offspring in an eternal chain of generations. The Talmudic legal tradition dates to the 5^th century CE, where rabbis discussed hypothetical situations as per the Jewish culture. The chronology of the Talmudic legal tradition started the Roman invasion of Palestine, which led to the destruction of the Torah institutions. Rabbi Judah Ha-Nasi thus began the compilation of the Mishnah during the period between 135-219 CE in text form since the oral transmission of law from teacher to student was compromised. The Mishnah’s interpretations by the Rabbi led to the Talmud development, which was largely based on Jewish traditions.

In the following centuries, there were numerous commentaries regarding the Talmud from different law teachers who were inherently Jewish. The most notable contributions are from Rabbi Rashi from Northern France and Rambam from Spain. Rabbi Rashi lived in the 11^th century while Rabbi Rambam in the 12^th centuries respectively. The continued reliance on the Talmud as a guide for the Jewish culture further points to the legal tradition’s influence on the Jewish identity. Throughout the ages, Jews were encouraged to read the Talmud, thus furthering their continued resistance to assimilation. They also practiced the laws such as family law, which was also a factor in maintaining the Jewish culture (Friedman, 2018). In the contemporary world, the practice and acceptance of the Talmud legal traditions by the Jews show the continued reliance of Jewish people on the legal tradition in their quest to maintain their identity. The Rabbinic courts continue till today in areas such as the family and synagogue.

How the Talmudic Legal Tradition has Influenced the Legal System in the US

The Talmudic legal tradition influence of the US legal system is highlighted in the similarity between the legal tradition and the American constitution. The organization of the federal court system formulated its concept from the Talmud. Both systems are organized in a three-tier system comprising the Supreme, appellate, and the lower courts (Ben-Nun, 2020). The Talmud consists of the Great Sanhedrin, lesser Sanhedrin, and the lower courts. The US Supreme Court institution derives its concept from the Great Sanhedrin, who served as the Torah’s ultimate adjudicator. The Great Sanhedrin acted as the highest legal authority, had jurisdiction over national matters, and served as the court of appeal for the lower courts. The US supreme court serves in a similar capacity to the Great Sanhedrin. The lesser Sanhedrin acts as the circuit courts as they dealt with capital crimes. In both systems, the lower courts handled all the remaining cases, such as felony charges.

The concept of Miranda warning and rules regarding evidence found in the US constitution originated from the Talmudic legal traditions. The sixth amendment entails a fair trial with witnesses. According to the Talmud, a case required the testimony of two witnesses who confronted the defendant. The Miranda warning in the US constitution aimed against self-incrimination has its roots in the Talmud (Rosenberg, & Rosenberg, 2016). An accused person had the absolute right against self-incrimination, particularly in cases involving physical remedies. In addition, persons who incriminate themselves are not believed thus required eyewitness testimony or physical evidence to collaborate the confession. The enactment of due process in ensuring fair trials also emanates from the Talmud. The due process granted bail to persons accused of crimes except in capital cases, while circumstantial evidence was disregarded. The mandated evidence included eyewitness testimonies and documents. Mentally unstable persons were disqualified from serving as witnesses, while relatives were shunned from acting as witnesses. Besides, witnesses were cross-examined while the accused was present. Documentary evidence or oaths were prerequisites in monetary cases. All these statues are engraved in the US constitution.

In Talmudic legal traditions, death sentences’ gravity led to rigorous cross-examination of evidence, and only judges argued for convictions. In cases where the verdict was the death penalty, every legal effort was exhausted to allow for appeals like the US legal system. Elements of civil law regarding tort negligence, strict liability, and compensatory damages in the US constitutions also derive from the Talmud. Besides, the degree of negligence involving foreseeable risks that might cause harm was included in the liability severity.  In both systems, civil law’s redress was mainly compensatory damages equal to the plaintiff’s loss’s monetary value. The Talmudic legal tradition thus has an immense influence on American legal systems and structures.

Conclusion

The Talmudic legal system consists of two parts, the Mishnah and the Gemara. Talmudic legal tradition justification as a religious legal system is paradoxical since it combines religious and secular law aspects. The Jewish people have constantly used the Talmud as a pillar for their cultural continuity by emphasizing its laws to the younger generations through the Jewish educational system. The Talmud has greatly influenced the US legal system in aspects such as federal court organization, rules of evidence, trial procedure, criminal and civil law.

References

Ben-Nun, G. (2020). How Jewish is International Law? Journal of the History of International Law/Revue d’histoire du droit international, 1(aop), 1-33. https://www.academia.edu/44659341/How_Jewish_is_International_Law_Journal_of_the_History_of_International_Law_https_brill_com_view_journals_jhil_aop_article_10_1163_15718050_12340171_article_10_1163_15718050_12340171_xml

Friedman, H. H. (2018). Talmudic ethics and its reliance on values rather than rules. Available at SSRN 3221295. https://www.researchgate.net/publication/327020114_Talmudic_Ethics_and_its_Reliance_on_Values_Rather_than_Rules

Rosenberg, I. M., & Rosenberg, Y. L. (2016). Comparative American and Talmudic Criminal Law. Irene Merker Rosenberg and Yale L. Rosenberg, Comparative American and Talmudic Criminal Law (2016), U of Houston Law Center, (2016-A), 2. https://www.law.uh.edu/rosenberg/Comparative-American-and-Talmudic-Criminal-Law.pdf

Schick, S. S. (2021). The intention in Talmudic Law: Between Thought and Deed. In Intention in Talmudic Law. Brill.

Wimpfheimer, B. S. (2018). The Talmud: A Biography (Vol. 28). Princeton University Press. https://press.princeton.edu/books/hardcover/9780691161846/the-talmud

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