Scriptural Allusion and Legal Argument

ERNEST J. WEINRIB Scriptural Allusion and Legal Argument lilT IS NOT IN HEA VEN' In law, as in literature, texts allude to other texts. And as in literature, the process is perplexing. Why is allusion necessary, and how is it possible? Why not simply settle each issue as it arises on its own merits without reference to a pre-existing formula? And how do words produced at one point in time assume subsequent relevance? What different forms does such relevance take? What room does the original text leave for legal creativity? What distinguishes legitimate from abusive allusion? How do the alluding jurists understand their own activity? Jurists consider these questions under the rubric of 'authority.' This word, of course, merely focuses the problems of legal allusion without resolving them. Authoritative texts are those that are subsequently cited. But in law as in scholarship subsequent citation can confer authority as well as reflect it. Authority is itself a mystery, a creativity that both preempts creativity and facilitates it. Whatever authority is, those who believe in an active divine presence can hardly fail to ascribe authority to it. If God is that than which nothing greater can be conceived, the capacity to create legal norms should be one of the divine attributes. For believers, God has the qualities of the paradigmatic lawgiver: all-powerful, all-knowing, and with unlimited jurisdiction in and beyond time and space. Divinity is thus the extreme accentuation of legality. . Accordingly, the handling of allusion by religiously based legal systems assumes particular legal interest. Such systems govern themselves according to a divine communication. All subsequent legal activity draws its vitality from that communication, invoking it, interpreting it, adapting it - and even evading it. Consequently, such systems are unintelligible without an appreciation of their modes of allusion. And through those allusions law becomes an ordering not only of behaviour but of the imagination . This article glances at allusion in the Talmud, the central text of Jewish law. The Talmud is a compendium of the debates in the rabbinic academies in the first five centuries of the common era. It is a tissue of citation layered on citation, with jurists reporting and trying to make sense of the UNIVERSITY OF TORONTO QUARTERLY, VOLUME 61, NUMBER 3, SPRING 1992/355 356 ERNEST J. WEINRIB opinions of their predecessors against the background of the divine word revealed in the Torah (the first five books of the Bible). For Talmudic jurists, scriptural commands are authoritative in the most transcendent sense: God's will crystallized into words. One would expect that the urgency of discerning and applying God's will would make the rabbis adhere scrupulously to the 'natural' meaning of the text. In fact, the opposite occurs. They engage in a process of interpretation (if that is the word) so bizarre as almost to extend the very idea of meaning. It is not that the rabbis ignore the scriptural text. Rather, so attentive is their reading that they are alert to the text's most latent implications. Fundamental to the juristic activity of the Talmudic rabbis is the distinction between the revelation and the elaboration of God's law. That God revealed his will through the Torah was taken for granted. But the process of revelation came to a definite close with the death of Moses. Thenceforth, the law was to develop not through the direct prophetic ascertainment of God's will but through the application of human intelligence . God had revealed the law, but the rabbis were to elaborate the legal system. In discharging this responsibility, the rabbis functioned as jurists, not oracles. The rabbis did not consider their juristic activity as a frolic of their own. They interpreted the Torah as a delegation of divine authority. The imaginative reconstruction of that delegation is evident in the following Talmudic dictum: Rav Yehudah said in the name of Shmuel: Three thousand laws were forgotten during the mourning period for Moses. They said to Joshua: 'Ask (God).' He said to them, 'It is not in heaven.' (Deuteronomy 30:12) They said to Samuel, 'Ask (God).' He said to them, 'These are the commandments' (Numbers 36:13), that henceforth no prophet is authorized to introduce...