© Springer International Publishing Switzerland 2015Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_15
15. Rabbinic Legal Fictions
Department of Talmud, Bar-Ilan University, Ramat-Gan, 52900, Israel
Rabbinic literature, the product of the great centers of Jewish learning in Palestine and Babylonia during the first centuries of the common era, contains numerous legal fictions. These fictions are attested in all periods and geographical centers of rabbinic literature, and they address issues of both ritual and civil law, although ritual fictions seem to dominate. In this chapter, I describe the principal characteristics of rabbinic legal fictions, analyze their legal significance, and attempt to account for their origins and development—why they were utilized in the first place, and how later fictions differ from their predecessors. One of the most prominent characteristics of rabbinic legal fictions discussed in this chapter is their frequently scholastic character, which contrasts with the practical use of fictions in other legal systems. Thus, rabbinic fictions often facilitate the theoretical analysis and explanation of the law, rather than aiming to make the law conform with desired legal outcomes. Likewise, rabbinic fictions usually do not account for exceptions to clear-cut, explicit laws of universal applicability. Rather, they emerge in the course of consolidating and generating general rules which are assumed to underlie the law.
KeywordsAssessive fictionAttitude toward explanatory fictionsBase lawsFunctionalist fictionHermeneutic characterImplicit fictionLegal fictionsLoopholesMishnahMultiple applicationNeglective fictionPresumptionsRoman fictionsRoman lawRabbinic literatureSubterfugesTalmudsUtilitarian fiction
15.1.1 Rabbinic Literature—Preliminary Remarks
Rabbinic literature , the product of the great centers of Jewish learning in Palestine and Babylonia during the first centuries of the common era,1 contains numerous legal fictions.2 However, before we can analyze these fictions from a legal perspective, a few words are in order about the principal literary works which comprise rabbinic literature, their chronological framework and literary character. As we shall see below, the legal character of rabbinic legal fictions and the way in which they are deployed depend in no small measure on the literary sources in which they appear, and hence some basic familiarity with these sources is necessary before we can analyze these fictions from a legal perspective.
The principal works of rabbinic legal literature derive from two chronological periods. The first period, which is called the tannaitic period, extends over approximately the first two centuries of the common era. During this period a number of legal compendia were produced3 (in Hebrew). Two especially important works from this period should be noted: the central work of tannaitic law, the Mishnah , and an important but ultimately secondary and less authoritative work, the Tosefta . These compositions contain a wide variety of rulings pertaining to both civil and ritual law (usually extensions or interpretations of biblical law dealing with issues such as the festivals, sacrificial law, or the laws of ritual purity). For the most part the tannaitic compositions cite rulings about particular cases, without giving the reasons for these rulings. Legal analysis and argumentation are thus relatively uncommon in these works, although they are by no means wholly absent from them. And while some of the rulings in these compositions are clearly judge- or court-based decisions regarding particular cases,4 there is no clear evidence that this is the case with regard to most of the rulings in these works .
The second period of rabbinic law, called the amoraic period,5 is marked by the production of two massive quasi-commentaries on the Mishnah . These works, which were composed in a mixture of Hebrew and Aramaic, were produced in ancient Palestine, during approximately the third and late fourth centuries CE, and Babylonia, from the third to sixth centuries and apparently later; they are called the Palestinian and Babylonian Talmuds respectively. In contrast to the tannaitic compendia, the amoraic compositions are discursive in nature, with dialectical analysis of the law their principal component . While these works discuss the Mishnah at length—inter alia, they explicate the reasons for Mishnaic rulings (reasons which the Mishnah itself is generally silent about)—they also contain a good deal of material unrelated to the Mishnah. Indeed, the Talmuds often seem to engage in legal discussion for its own sake, with minimal if any attempt to determine the actual legal “bottom line.” Thus, these works take an essentially academic and scholastic approach to legal analysis rather than a practical approach, and the importance of this point for a proper understanding of rabbinic legal fictions will become clear below .
Two important corollaries of the preceding remarks should be noted here. First, since this chapter discusses a legal system whose literary sources are more than a thousand years old, the orientation of this chapter is descriptive: we seek to describe how and why legal fictions were used in rabbinic law, but not to draw any practical or ideological conclusions therefrom. Second, the fictions in rabbinic literature are almost invariably not judge-based fictions (legislative fictions). And while it is not fully clear what legal or historical significance this point has, if any, it should certainly be noted, in light of the fact that rabbinic fictions differ in this respect from the fictions in many other legal systems .
15.1.2 Definition of Legal Fictions
For purposes of the present discussion , we define legal fiction as the assertion6 for legal purposes of “facts” which are clearly untrue.7 This definition accordingly excludes legal presumptions ,8 since the facts which they presume are not clearly or necessarily untrue, as well as legal loopholes or subterfuges (“dodges”), since these are not assertions, but rather techniques for circumventing existing laws.9 And while phenomena of this sort do occur in rabbinic literature , they will not be discussed here, since they do not qualify as legal fictions according to our definition .10
15.1.3 The Principal Questions
Various questions arise in connection with legal fictions in rabbinic literature . How are fictional statements formulated in rabbinic literature , and what functions do these statements serve? Are fictions used with greater frequency in connection with particular areas of rabbinic law? When fictions are used to explain legal rulings, how tenable (or necessary) are these fictional explanations, hermeneutically speaking? What justification was there, according to the rabbinic sources, for claiming that the facts should be treated for legal purposes in a manner different from reality? Finally, to what extent are fictions used as a tool for legal or historical change and/or for furthering desired legal results, which presumably could not be achieved without outright alteration or reformulation of the law?11
15.2 Tannaitic Fictions
Scores of legal fictions are found in tannaitic literature . These fictions are generally used in the course of formulating the law—frequently, laws regarding issues which are not discussed in other sources. Thus, such fictions, unlike those in many other legal systems, are not used to justify deviation from existing laws and they presumably do not reflect historical development. Nevertheless, we sometimes find tannaitic fictions which are used to explain existing rulings rather than to formulate new ones, or which reflect deviation (not necessarily historical development) from apparent “base laws.”
Tannaitic fictions usually deal with specific cases, and thus are not formulated as general rules.12 Such fictions generally address ritual matters rather than issues of civil law.13 Accordingly, the fictions adduced below derive primarily from the realm of ritual law, and hence may seem somewhat esoteric.
Tannaitic fictions are usually introduced by the expression “we view [or: treat, consider] X … as if …” and minor variants; note that similar expressions are used to formulate fictions in Roman law.14 Indeed, this expression seems to be used exclusively in tannaitic literature for introducing legal fictions, and later we shall consider the significance of this usage at greater length.15
15.2.3 Types of Tannaitic Fictions
Several main types of fictions are found in tannaitic literature . The first of these is what might be termed assessive fiction . For example, M. Zevahim 8:6:16
(a) If [sacrificial] blood was mixed with water and [the mixture] looks like blood, it is acceptable [for sprinkling on the altar]. (b) If [sacrificial blood] was mixed with [red] wine [which looks like blood], we consider [the wine] as if it were water.
According to (a), diluted sacrificial blood is acceptable for ritual sprinkling provided that the mixture looks like blood—presumably, because the blood in the mixture is not nullified by the water there. However, this “visibility criterion” for defining what constitutes legally acceptable sacrificial blood is not applicable if the blood was mixed with another red liquid, such as wine. Hence the Mishnah prescribes a fiction—“we consider the wine as if it were water”—to determine whether or not the blood in this mixture is nullified by the wine.
Several observations are in order about this fiction (and other tannaitic fictions like it).17 The justification for this ruling is obvious: since the visibility criterion is not relevant here, an alternative criterion (based on the relative quantities of the components of the mixture) had to be used. Note that this fiction clarifies the relevant legal requirement ab initio, but it does not reflect deviation from any known and presumably universally applicable base law. Thus, the use of fictional formulation here serves as a technique for clearly and concisely formulating the relevant law, but it does not reflect the adoption of an innovative legal perspective about reality or the need to achieve a desired legal outcome.
Other tannaitic fictions are neglective , as they instruct us to disregard particular facts or objects as irrelevant or treat them as nonexistent for legal purposes. For example, T. Menahot 11:14:
(a) The [Temple] showbread is arranged by setting six loaves in [the first] row and six loaves in the [second] row … (b) If one arranged two rows of fourteen [loaves], Rabbi says: We consider the upper [loaves] as if they do not exist, and the lower ones are acceptable.
The fictional formulation here—Rabbi’s statement in (b)—instructs us to disregard the upper loaves and treat them as nonexistent. As in the previous example, the use of a fiction here was presumably not motivated by the need to achieve a desired legal goal. Rather, this seems to be a felicitous way to formulate the relevant legal requirement ab initio, viz., that at least two rows of six loaves of showbread are necessary, but not exactly two rows of six loaves. As with the previous example, this fiction entails no deviation from any existing base law, and the fiction does not seem to reflect an innovative legal perspective on the relevant facts in light of unique attributes which these facts might possess; it simply instructs us to disregard certain aspects of reality as irrelevant for legal purposes.18 Indeed, Rabbi’s ruling in (b) could just as well have been formulated without a fiction: “If there were two rows of fourteen loaves, the bottom ones are acceptable.” Here too, then, the use of a fictional formulation (as opposed to simply presenting the relevant legal “bottom line,” viz., that the lower loaves are acceptable) presumably reflects stylistic rather than legal or conceptual considerations.
Other tannaitic fictions, however, do seem to reflect legal considerations, rather than serving as an elegant way to formulate the law in question. Indeed, some of these fictions instruct us to alter reality for legal purposes, and not just to disregard particular aspects of reality. For example, T. Eruvin 1:1, 5:
(a) If an alley was more than 20 cubits high, one must … put a beam on top of it [to permit carrying there on the Sabbath]… (b) If one [beam] was on top and another below, R. Jose b. Judah says: We consider the bottom [beam] as if it rises and the top [beam] as if it descends, [so they join fictionally to form a single beam].
The beginning of this passage (a) states that a beam over an alley permits carrying there on the Sabbath. Judging from how this ruling is formulated, however, it would seem that it would not apply to a pair of noncontiguous beams, since this statement speaks solely of “a beam,” without mentioning the acceptability of other, similar structures. Hence a fiction was invoked in (b) to enable a pair of noncontiguous beams to join, thereby forming a single, legally acceptable but ultimately fictional beam.
What legal justification is there for this fiction? We cannot say for certain, although it stands to reason that the law here was conceived of from the outset in geometrical terms rather than physical terms: for legal purposes, a “beam” need not be a single, solid, contiguous object. Rather, even a combination of beams whose joint projection outlines a single beam is acceptable. Such reasoning makes particularly good sense if the rationale behind the beam requirement was to erect a visibly distinctive structure over the alley (so according to at least one view in the Talmud; see B. Eruvin 12b), for even a geometrically constructed beam could serve this purpose.
In the examples considered above fictions appear in the course of formulating a law ab initio. However, on rare occasions tannaitic fictions are used to explain existing laws. For example, T. Ahilot 11:10:
If there is an opening between the lower story and the upper story [of a house], and [the opening] is not a handbreadth wide … and there is something impure in the upper story, utensils in the lower story are pure,
because I consider the beams [of the roof of the upper story] as if they had descended and sealed off [the opening].
Another explanation: Impurity cannot enter or exit a tent [a horizontal overhanging structure] less than a handbreadth wide.
This passage discusses a case where a corpse was located under the roof of the upper story of a house, and the floor of the upper story has a hole which opens to the lower story. According to rabbinic law, objects under a horizontal overhanging structure (a “tent”) become impure if a corpse (or certain parts thereof) was located under this tent, even if these objects did not come into contact with the corpse. Accordingly, one might expect items in the lower story to become impure, since they are located under the “tent” formed by the roof of the upper story. (The floor of the upper story presumably would not interpose between the upper and lower stories , thereby protecting items beneath it from the impurity in the upper story, since this floor contains a hole.)19 Nevertheless, the Tosefta rules that objects in the lower story are pure (1), and it provides two explanations for this ruling (2 and 3), the first fictional and the second non-fictional. According to the fictional explanation, we imagine the beams on top of the upper story descending to the floor of the upper story and sealing off the hole, whereas the non-fictional explanation asserts that the opening is too small to let corpse impurity enter.
This fiction resembles those in the previous examples in numerous respects. As in the previous examples, this fiction deals with a case of ritual law. The idea that an object fictionally descends, thereby legally restructuring a partition (here, sealing off the hole in the floor of the upper story)—in effect, the mathematical concept of a projection given legal force—is attested in other tannaitic passages as well (e.g. the previous example).20 Thus, the justification for adopting this fiction might be a unique rabbinic take on legal space, which was defined in geometrical terms rather than physical terms.21
Why was a fiction used here, particularly seeing that the relevant legal “bottom line” (viz. that the objects in the lower story are pure) can be justified without resort to a fiction, as we see from the nonfictional explanation in 3? Presumably, the need for such a fiction arose because the ruling in 1 seems to deviate from a common-sense understanding of tent impurity: as indicated above, we might well expect objects in the lower story to become impure, due to the hole in the roof above them. That said, it should be stressed that this ruling entails no clear-cut deviation from any explicit or near-explicit tannaitic base law, and in this respect the fiction discussed here resembles most other tannaitic fictions.
15.2.4 Implicit Fictions
Might some tannaitic rulings which were not formulated or explained fictionally have been based on the implicit adoption of a legal fiction? This possibility emerges in light of the fact that numerous tannaitic rulings which are not explained in the relevant tannaitic sources (fictionally or otherwise) are explained on fictional grounds by the Talmuds . The question accordingly arises: do the fictional explanations offered by the Talmuds in such cases correctly reflect the implicit reasoning underlying the tannaitic rulings?
Due to the complexity of potentially relevant passages, I cannot consider any specific examples here. Suffice it to say, though, that many and perhaps most rulings of this sort can be plausibly explained without resorting to fictions, and thus there is generally no need to assume that tannaitic rulings were based on implicit fictions .22
15.2.5 Chronology of Tannaitic Fictions
Many tannaitic fictions cannot be dated with any degree of certainty, since they are not attributed to named scholars.23 However, those fictions which are attributed to named and hence datable figures stem from all parts of the tannaitic period. Accordingly, the development and use of tannaitic legal fiction cannot convincingly be attributed to any particular part of the tannaitic period, rabbinic figure or circle.
Legal fictions do not seem to be attested in Jewish legal texts before the tannaitic period,24 even though a fair amount of texts of this nature have survived (the Qumran texts). This might stem from the essentially “realistic” character of the Qumran material, which perceived reality as it was, in contrast to the frequently more abstract and legalistic character of the rabbinic material, which was accordingly more open to adopting legal definitions and conceptions which were not necessarily based on physical reality. Ultimately, though, the precise origins of the rabbis’ use of fiction remain unclear.25
15.2.6 Relationship with Roman Fictions
The tannaitic period overlaps in large part with the classical period of Roman law,26 where legal fictions occur frequently .27 Accordingly, the question arises as to whether there is any connection between the use of fictions in the two systems—and, more specifically, whether the tannaitic use of fictions was in any way influenced by parallel phenomena in Roman law . In fact, however, this seems extremely unlikely.28 Thus, the two systems hardly share any fictions,29 and none of the more-or-less common fictions appear in tannaitic sources. Indeed, the possibility of (direct) Roman legal influence on tannaitic law in general seems highly questionable.30
15.3 Post-tannaitic Fictions
Legal fictions occur frequently in post-tannaitic literature. Such fictions resemble tannaitic fictions in certain respects and differ from them in others, as we shall see in greater detail below.
15.3.2 Stylistic Aspects
The amoraic sources use new terminology, unattested in the tannaitic sources, to formulate fictions. One of these terms, which appears exclusively in the Palestinian Talmud, closely resembles the parallel tannaitic expression: “you consider [lit. see]… as if” (Palestinian Talmud), rather than “we consider [lit. see]… as if” (tannaitic sources). Indeed, this talmudic phrase, like its tannaitic counterpart, is apparently used exclusively to introduce fictions.
However, two new modes of formulating fictions are found in the Talmuds .31 The first mode entails the use of various types of comparative terminology. These new terms, in both Hebrew and Aramaic, include such expressions as “it is considered as if,” “[the authority cited] treats [case X] as if,” “it is as if one had done …,” etc. Nevertheless, this new terminology seems to be essentially a stylistic phenomenon, and as such it is presumably devoid of any legal significance.
However, in the Babylonian Talmud we sometimes find fictions which are formulated without comparative terminology, as metaphors rather than similes . These statements do not speak of how we consider, treat, or “see” matters, but (as it were) of how matters really are. Such fictions may be expressed using imperatives, e.g. “extend the partitions upward,” “beat and throw down”32 (describing the fictional extension of a partition or other structure of inadequate size), or indicative verbs in the present tense, with the relevant assertions formulated as ordinary declarative statements (e.g. “its quantity is crushed”33 [and hence deemed nonexistent], “we hollow out to complete [a space]”).34 The use of these formulations, too, might just be a stylistic phenomenon. However, this new mode of formulating fictions might have legal significance, as it might indicate the adoption of a new perception of reality, and later we shall consider the implications of this possibility at greater length.35
15.3.3 Functionalist Fictions
Fictions in other legal systems often seek to advance socioeconomic and other types of functionalist goals (e.g. equity) . However, the vast majority of legal fictions in rabbinic literature do not seek to further moral, legal or utilitarian goals ,36 or to amend unsatisfactory existing law. Indeed, I can only think of one fairly clearcut (and post-tannaitic) exception37—apparently, the exception which proves the rule—and as such it is worth considering this fiction at greater length here. P. Yevamot 10:5, 11a :38
Rav said, If a woman was married [on the testimony] of two [witnesses], even if [the husband] comes, we say: It is not him.39
According to rabbinic law, a woman who has relations with a man other than her husband is guilty of adultery, and the children of such a relationship are illegitimate. This applies even if the woman married the second husband because she mistakenly assumed that the first husband had died: since the first husband is still alive, the original marriage remains in effect.40
Our passage deals with a case where two witnesses testified that the first husband had died, after which he appeared, thereby decisively disproving their testimony. Presumably, such a woman should be deemed an (unwitting) adulteress and her children from the second relationship illegitimate, since her marriage to the first husband is still in effect . Nevertheless, the Talmud states that when the original husband appears, we deny his identity (“we say: It is not him”), thereby maintaining the legitimacy of the woman’s relationship with her second husband and of any offspring of that marriage. And it goes without saying that such a claim is a legal fiction par excellence.
The motivation behind this fiction seems clear: the sages wanted to save the woman and her children from the tragic consequences of adultery, especially since the adultery here had been committed unwittingly. However, the actual legal justification for this ruling remains unclear,41 and it seems extremely problematic. (Indeed, both the Palestinian and Babylonian Talmuds record objections to this ruling, to the point where the Babylonian Talmud actually reformulates this statement in toto, thereby reconstructing it out of existence!42) To be sure, it might be argued that a court decision based on the testimony of two witnesses is legally constitutive, so the woman’s status after reappearance of the original husband is a function of the law (viz., was the court’s ruling based on legally valid testimony) rather than the facts (viz., whether or not the original husband is still alive).43 But in the final analysis this suggestion remains speculative, and our initial uncertainty about the legal basis of the fictional ruling here remains .
15.3.4 Hermeneutic Character
Post-tannaitic fictions are generally used to explain earlier rulings—often, tannaitic rulings. These fictions are usually invoked to account for rulings which seem to deviate from existing legal rules or other accepted legal notions .
Two sets of questions arise here. First, in what sources, literary or otherwise, do we find the “base laws” from which fictionally explained rulings seem to deviate? Second, are post-tannaitic explanatory fictions hermeneutically or logically justifiable (or necessary), or might other, non-fictional explanations of rulings explained fictionally be possible or preferable? And if fictional explanations could have been avoided, why did the rabbis sometimes prefer them to non-fictional explanations?