Rabbinic Authority (review)

In Rabbinic Authority, Michael Berger grapples with a fundamental and yet surprisingly elusive issue in the history of the Oral Law and, more broadly, in the hierarchy of Judaism. What gave the sages of the Talmud their authority for subsequent generations? To answer this question, Berger takes the reader through a series of nuanced possi bilities. These include models or concepts such as the sages as (members of the) Sanhedrin (or as the successors of Moses) and the sages as experts or as the bene ficiaries of Divine guidance, as well as authority that is based primarily on accepted practice or canonized texts. In each instance, Berger offers a cogent analysis that is, to a large extent, philosophically based as well.

After laying out the weaknesses of the various possible solutions, Berger concludes that the constructs of Stanley Fish on the authority of interpretive communities and of Ronald Dworkin on how laws are interpreted within a legal tradition (constructs that conflict with each other to some degree) come closest to addressing the problem at hand. Fish’s theory of literary criticism, that how one reads a text is determined by the community of readers in which he or she is found, is especially suggestive for Berger. The authority of the Rabbis of the Talmudic period derives less from the status of the sages themselves, and more from the life of the community that looked (and looks) to the Talmud as a focal point of interpretation and practice. (Berger’s appreciation of Fish’s work even gives rise to a heading [on p. 134] entitled “Fish-ing for a model of legal interpretation.”)

The possibilities raised by applying the theories of Fish and Dworkin to the authority of the Talmudic corpus are certainly interesting, although this technique strikes me as a bit too trendy. Moreover, Berger, who through the earlier chapters cites freely from the Talmud itself and from its commentators to assess the accuracy of each successive solution presented, offers less specific evidence from this literature in support of the Fish/Dworkin position. Nonetheless, the argument that the authority of the Talmud derives from its canonized status, rather than from the personal authority of the Tannaim and Amoraim, is a solid one that is supported by a number of suggestive texts from the rabbinic and medieval periods.

Indeed, I should like to add a responsum of the Italian tosafist R. Isaiah di Trani (Teshuvot ha-Rid, ed. A. Y. Wertheimer [Jerusalem, 1975], responsum #1, pp. 6–7) that espouses this view and that speaks to other issues of periodization and status raised by Berger. In establishing the ability of a later post-Talmudic authority to argue with and to contradict the rulings of his precedessors, R. Isaiah draws an analogy to the Talmudic period, in which later Amoraim bested earlier ones in halakhic disputes, and early Amoraim occasionally overturned the rulings of the Tannaim. At the same time, R. Isaiah is quite clear that the Talmud itself is a kind of Maginot line that no post- Talmudic authority can cross in order to disagree with a Talmudic view. Rather, the correctness of any post-Talmudic position must be judged by the way that it comports with the rulings and formulations of the “sefer” (=the “book” of the Talmudic corpus). R. Isaiah asserts that he will not accept any position that does not appear to him to be well based according to the Talmud, no matter its author. On the other hand, he will not hesitate to argue with even the most venerable predecessor, if he can prove his point from within the Talmudic text (mi-tokh ha-sefer).¹

Rabbinic Authority is a well organized and well written work. It has the distinction of being both an excellent introduction to its subject and a learned and provocative stimulus for further discussion.