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Reclaiming Halakhah: On the Recent Works of Aharon Shemesh

  • Beth Berkowitz (a1)

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Bialik may have protested in “halakhah and aggadah” that aggadah had become too dominant in his day, but for countless generations it was halakhah that possessed greater gravitas, thanks to the geonim and their successors. Bialik was onto something, however, since even he succumbed to the power of aggadah—his most popular work was Sefer Ha-Aggadah. In the contemporary academy, aggadah continues to flourish. The encounter between midrash and literary theory in the 1980s, and between talmudic aggadah and stam-oriented source criticism in the 1990s and today, have firmly secured aggadah's territory on the academic map. Some aggadot have been scrutinized by so many scholarly eyes—the oven of Akhnai, the heresy of Elisha ben Abuya, the partnership of Rabbi Yoḥanan and Resh Lakish—that they seem to constitute a new Jewish core curriculum.

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1. On the role of the geonim in manufacturing the halakhah/aggadah binary and in draining aggadah of legal significance, see Stone, Suzanne Last, Preface, in Diné Israel: Studies in Halakhah and Jewish Law, vol. 24, eds., Edrei, Arye and Stone, Suzanne Last (Tel-Aviv: Buchmann Faculty of Law, Tel-Aviv University, 2007), 19 (and articles within the volume by Berachyahu Lifshitz and Yair Lorberbaum). Bialik tends to use the terms metaphorically rather than as referring to the constituent parts of classical rabbinic literature; see Rubin, Adam, “‘Like a Necklace of Black Pearls Whose String Has Snapped’: Bialik's ‘Aron ha-Sefarim’ and the Sacralization of Zionism,” Prooftexts 28, no. 2 (2008): 181.

2. For midrash, see Hartman, Geoffrey and Budick, Sanford, eds., Midrash and Literature (New Haven, CT: Yale University Press, 1986); Stern's, David reflections in Midrash and Theory: Ancient Jewish Exegesis and Contemporary Literature Studies (Evanston, IL: Northwestern University Press, 1996); and now Bakhos, Carol, ed., Current Trends in the Study of Midrash (Leiden: Brill, 2006). Perhaps the best contemporary example of theoretically inflected work in midrash is that of Joshua Levinson; see Ha-Sippur she-lo suppar: omanut ha-sippur ha-mikra'i ha-murhav be-midreshe hazal [The Twice-Told Tale: A Poetics of the Exegetical Narrative in Rabbinic Midrash] (Jerusalem: Magnes Press, 2005). For talmudic aggadah, see Rubenstein, Jeffrey L., Talmudic Stories: Narrative Art, Composition, and Culture (Baltimore: Johns Hopkins University Press, 2003); idem, The Culture of the Babylonian Talmud (Baltimore: Johns Hopkins University Press, 2005); idem, Stories of the Babylonian Talmud (Baltimore: Johns Hopkins University Press, 2010); and Rubenstein, ed., Creation and Composition: The Contribution of the Bavli Redactors (Stammaim) to the Aggada (Tübingen: Mohr Siebeck, 2005), based on a conference on the subject at New York University in February 2003.

3. On the oven of Akhnai (Bava Metzia 59a–59b), see Fonrobert, Charlotte, “When the Rabbi Weeps: On Reading Gender in Talmudic Aggada,” Nashim 4 (2001): 5683; Rubenstein, Talmudic Stories, 34–63 (and bibliography cited there); Daniel Boyarin, “The Yavneh-Cycle of the Stammaim and the Invention of the Rabbis,” in Rubenstein, ed., Creation and Composition, 237–90. On Aher, or Elisha ben Abuya (Hagigah 15a–b), see bibliography in Rubenstein, Talmudic Stories, 64–104, and in Goshen-Gottstein, Alon, The Sinner and the Amnesiac: The Rabbinic Invention of Elisha ben Abuya and Eleazar ben Arach (Stanford, CA: Stanford University Press, 2000). On Rabbi Yoḥanan and Resh Lakish (Bava Metzia 84a–b), see Boyarin, Daniel, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man (Berkeley: University of California Press, 1997), 127–50; Kalmin, Richard Lee, The Sage in Jewish Society of Late Antiquity (New York: Routledge, 1999), 15; Liebes, Yehuda, “'Eros ve-‘anteros ba-yarden” [“Eros and Anti-Eros on the Jordan”],” in Life as a Midrash: Perspectives in Jewish Psychology, ed. Arzy, Shaḥar et al. (Tel Aviv: Yediot Aḥaronot, 2004), 152–67; Kosman, Admiel, “R. Johanan and Resh Lakish: The Image of God in the Study Hall, ‘Masculinity’ versus ‘Femininity,’European Judaism 43, no. 1 (2010): 128–45.

4. Wimpfheimer, Barry, “‘But It Is Not So’”: Towards a Poetics of Legal Narrative in the Talmud,” Prooftexts 24, no. 1 (2004): 5186; idem, Talmudic Legal Narrative: Broadening the Discourse of Jewish Law,” Diné Israel 24 (2007): 157–96; idem, Narrating the Law: A Poetics of Talmudic Legal Stories (Philadelphia, PA: University of Pennsylvania Press, 2011); Simon-Shoshan, Moshe, “Halakhic Mimesis: Rhetorical and Redactional Strategies in Tannaitic Narrative,” Diné Israel 24 (2007): 101123; Cohn, Naftali, “Rabbis as Jurists: On the Representation of Past and Present Legal Institutions in the Mishnah,” Journal of Jewish Studies 60, no. 2 (2009): 245–63; Kanarek, Jane, “He Took the Knife: Biblical Narrative and the Formation of Rabbinic Law,” AJS Review 34, no. 1 (2010): 6590; Lorberbaum, Yair, Tselem elohim: Halakhah ve-Aggadah [Image of God: Halakhah and Aggadah] (Tel Aviv: Schocken, 2004). Gordon Tucker's responsum on homosexuality, “Derosh ve-qabel sekhar: Halakhic and Meta-Halakhic Arguments Concerning Judaism and Homosexuality,” also deserves mention here for its aggadically oriented approach to halakhah—it can be found at www.rabbinicalassembly.org/teshuvot/docs/20052010/tucker_homosexuality.pdf.

5. The essay by Cover, Robert M., “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative,” Harvard Law Review 97, no. 4 (1983): 468, had great influence on Jewish studies. See the essays collected in the Yale Journal of Law and the Humanities 17, no. 1 (Winter 2005), based on a symposium at Yale University in April 2004, “Rethinking Nomos and Narrative: Marking Twenty Years Since Robert Cover's ‘Nomos and Narrative,’” combining legal and Jewish studies scholars. See Diné Israel 24 (2007), English section, for a variety of recent work, mostly in rabbinics, emerging from a conference held at Harvard Law School in May 2005, “The Relationship between Halakhah and Aggadah.”

6. Yale Law Journal 95 (1986): 1601–30, anthologized in Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Minow, Martha and Ryan, Michael (Ann Arbor: University of Michigan Press, 1995), 203.

7. Halbertal, Moshe, Mahapekhot parshaniyot be-hit'havutan: arakhim ke-shikulim parshaniyi'im be-midreshe halakhah [Interpretive Revolutions in the Making] (Jerusalem: Magnes Press, 1997); Hayes, Christine E., “Authority and Anxiety in the Talmuds: From Legal Fiction to Legal Fact,” in Jewish Religious Leadership: Image and Reality, ed. Wertheimer, Jack (New York: Jewish Theological Seminary, 2004), 1: 127–54; idem, “Rabbinic Contestations of Authority, Cardozo Law Review 28, no. 1 (2006): 123–41; idem, Legal Truth, Right Answers and Best Answers: Dworkin and the Rabbis,” Diné Israel 25 (2008): 73121; for a description of Adiel Schremer's project in progress, see www.nyutikvah.org/fellows/adiel_schremer.html.

8. Panken, Aaron, The Rhetoric of Innovation: Self-Conscious Legal Change in Rabbinic Literature (Lanham, MD: University Press of America, 2005); Halberstam, Chaya, Law and Truth in Biblical and Rabbinic Literature (Bloomington: Indiana University Press, 2010).

9. Levinson, Bernard, Legal Revision and Religious Renewal in Ancient Israel (New York: Cambridge University Press, 2008); for his discussion of scholarship with similar interests, see pp. 95–181.

10. Hammer-Kossoy, Michelle, “Divine Justice in Rabbinic Hands: Talmudic Reconstitution of the Penal System” (Ph.D. dissertation, New York University, 2005); Berkowitz, Beth, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (New York: Oxford University Press, 2006); Steinmetz, Devora, Punishment and Freedom: The Rabbinic Construction of Criminal Law (Philadelphia: University of Pennsylvania Press, 2008); Rosen-Zvi, Ishay, Ha-tekes she-lo haya: mikdash, midrash u-migdar be-masekhet Sotah [The Rite That Was Not: Temple, Midrash and Gender in Tractate Sotah] (Jerusalem: Magnes Press, 2008); for the other references see above.

Reclaiming Halakhah: On the Recent Works of Aharon Shemesh

  • Beth Berkowitz (a1)

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