Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis

4. “The Foundation of the Creation” and the “Laws Written on the Heavenly Tablets”

107 four “The Foundation of the Creation” and the “Laws Written on the Heavenly Tablets” In his frequently quoted and much-debated article, “Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law,” Daniel R. Schwartz raises an interesting and important question . Schwartz challenges the common use of the term “priestly halakhah” to portray the non-Pharisaic legal system exhibited by the Dead Sea Scrolls and by the Sadducean halakhah mentioned in rabbinic literature. He rightly asks: “What do we mean by this term and what makes this halakhah priestly?”1 Schwartz’s explanation is actually the most developed attempt to date to characterize sectarian halakhah. He portrays priestly halakhah as realistic, as opposed to Pharisaic halakhah, which is nominalistic. As defined by Yochanan Silman (upon whom Schwartz based his argument) a realistic conception of halakhah views the commandments as “guidelines, based in independently existing situations, which man, due to the grace of the wisdomgiving God, may introduce among his considerations by accepting the yoke of the commandments.” Put simply, the halakhah “The Foundation of the Creation” / 108 form a legal system that is bound to nature and reality. A nominalistic approach, on the other hand, views the commandments as “orders resultant from the will of the commanding God.”2 According to this worldview, it is the Torah that creates the legal status of objects and activities. Halakah itself decides what is permitted and what is prohibited, what is pure and what causes impurity. Schwartz was criticized, partly justifiably, by others.3 Two main arguments have been raised against his explanation. The first is that within rabbinic literature itself, there are not a few statements grounded in the classic realistic view, and the second is that defining any stance as realistic or nominalistic is by and large subjective. Corpse impurity, for example, may be seen as a natural result of death, and thus a reflection of reality for some people. It can also be seen, in accord with the nominalistic view, as representing God’s arbitrary decree and as not bound to any realistic circumstances. It may well be that some of the halakhic examples Schwartz cites in demonstration of the rabbinic nominalistic view were in the Rabbis ’ own eyes a simple result of reality.4 Nevertheless, as far as Qumranic halakhah is concerned, there is no doubt in my mind that Schwartz is correct. This is because its realistic worldview finds overt statement in the scrolls and is not simply deduced from its rulings. Two explicit comments appear in the Damascus Document regarding Creation as the basis for the law. The author of the Damascus Document justifies his objection to polygamy as practiced by the Pharisees because “the foundation of the Creation is ‘male and female he created them’ (Genesis 1:27)” (CD 4:18–19), and he rules that “all species of locusts [should not be eaten unless] put into fire or water while alive, for this is the precept of their creation” (CD 12:14–15). Moreover, as “The Foundation of the Creation” / 109 will be demonstrated below, I find the realistic approach most useful in that it clarifies and explains not a few halakhic issues in the scrolls. These explanations in their turn reestablish and strengthen the theory as a whole. However, whereas Schwartz characterized “realism” simply as a legal system based on nature or reality, I suggest that the sect’s own understanding of the law was somewhat more complicated. It is not just that the law supposedly is based on reality and nature , but rather, that reality is supposed to reflect the law because God, by his will, created the world according to the law. Seen thus, it quickly becomes apparent that the Damascus Document’s principle of the “foundation of the Creation” is very similar to or even identical with the book of Jubilee’s idea of “laws written on the heavenly tablets.” In no less than nineteen instances, Jubilees notes that various laws implemented in the patriarchal period were written on the heavenly tablets. Two formulas appear in Jubilees. Sometimes we find after the description of an act, “for so it is written on the heavenly tablets.” On other occasions, the concluding comment of the passage is, “it was therefore (ªal ken) written on the heavenly tablets.” As Cana Werman notes, all the events or actions described by the latter phrase are...