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E - Law in Formation: Religious Perspectives

David C. Flatto
Affiliation:
Hebrew University of Jerusalem
Benjamin Porat
Affiliation:
Hebrew University of Jerusalem

Summary

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2022

14 Law as a Problematic Aspect of Religion Paul’s Skepticism in a Broader Jewish Context

Serge Ruzer
I Introduction

In his pioneering studies, E. P. Sanders described late Second Temple Judaism as “covenantal nomism” in the sense that while the demands of the law as derived from the Torah constitute a core element of the covenantal relationship between God and Israel, the covenant is not exhausted by its law-centered aspect. It includes additional foundational components like election, God’s faithfulness, his mercy, and mechanisms of atonement and reconciliation. As the title of his book where the term was first introduced indicates,Footnote 1 it is in conversation with views found in the epistles of Paul, penned mostly during the 50s of the first century CE, that the scholar was able to portray this more nuanced picture of the contemporaneous Judaism. No wonder – Paul, a member of the nascent Jesus movement, a messianic offshoot of broader Judaism, provides many examples of coping with the law-centered tenets of religion juxtaposed to those of God’s mercy revealed in messianic redemption. This chapter attempts to further clarify certain aspects of Sanders’ important intuition.

Paul uses extensively the term nomos (law) with a variety of meanings: sometimes this may refer to a universal law, archetypal law of the cosmos, which, as already the Hellenistic Jewish second-century BCE Letter of Aristeas argued, essentially overlaps with the law revealed in the Torah.Footnote 2 I, however, focus here on the cases where the particular Jewish meaning of nomos as related to Torah is clearly indicated by the context. This focus will allow to revisit the issue of Paul’s grasp of the interactions between various parts of the Torah-centered law and their standing vis-à-vis other aspects of the covenant. Contextualizing Paul’s strategies against the backdrop of the variety of early Jewish thought patterns, I would argue that while propagating a singular, Jesus-centered, message – in many cases explicitly directed at Gentile fellow-travelers – Paul also addresses concerns of his implicit Jewish audience. His arguments thus echo and bear witness to a broader intra-Jewish awareness of the problematic aspect of the notion of religion as first and foremost law.

II Torah and the Works of the Torah

Scholars have long recognized nascent Christianity’s multifaceted nature reflected in various, sometimes contradictory, emphases found within the Jesus movement during the first decades of its history. Attitudes to the demands of Jewish religious law, as expressed, on the one hand, in the Book of Acts, and, on the other hand, in Paul’s authentic letters provide a telling example of such unresolved tension. According to Acts, in the times of messianic redemption those Gentiles who become part of the Jesus movement are exempt from embracing some ritual markers of belonging to Judaism. However, the continuing faithfulness of Jewish believers in Jesus to these precepts is never questioned, but rather presented as harmonious with their adherence to Jesus the Messiah (Acts 15:1–29; 21:18–25).Footnote 3 As a matter of fact, it seems that even Gentiles willing to embrace some positive Mosaic ritual prescriptions, preached in the Diaspora synagogues, are welcome to do so or, at least, not reprimanded for this inclination.Footnote 4

Paul’s writings, however, are distinguished by a different and clearly polemical emphasis, unequivocally denying the capacity of Judaism’s ritual prescriptions to contribute to the cleansing of the hearts. These prescriptions might have had such a capacity in the past; but in the messianic era, it is exclusively identification with and “sharing” in the Messiah’s expiating death, and belief in his resurrection, that constitute the path leading to salvation – by grace and not by acquired merit. It is in this either-or context characterizing the Epistle to the Galatians that Paul comes to view those “external” precepts as harmful, as blocking the way to individual justification in the eyes of God through grace (Gal. 2:21, cf. Rom. 3:20): “I do not nullify the grace of God; for if justification were through the law (nomos, Torah?), then Christ died to no purpose.” Moreover, those who still put their hope in the “works of the law (Torah)” are bringing upon themselves “law’s/Torah’s curse” (Gal 3:10–11, 6:15). The argument in chapter 2 of the epistle, where the phrase the “works of the nomos,” obviously central for Paul’s thinking there, is used repeatedly and emphatically, strengthens the understanding that nomos here means specifically the Torah of Israel (Gal. 2:15-16):Footnote 5

We ourselves, who are Jews by birth and not Gentile sinners, yet who know that a man is not justified by works of the law (ἐξ ἔργων νόμου), but through faith in Jesus Christ/the Messiah, even we have believed in Christ/the Messiah Jesus, in order to be justified by faith in Christ, and not by works of the law (οὐκ ἐξ ἔργων νόμου), because by works of the law (ἐξ ἔργων νόμου) shall no one be justified.

The Epistle to the Galatians is explicitly addressed to Gentile followers of Jesus in Galatia, who are under pressure from some representatives of the Jewish section of the movement to embrace Judaism’s ritual practices, first of all circumcision so that the Jews and the Gentiles of the messianic group can become one community, for example, eat together (Gal. 2:11–14).Footnote 6 One then is justified in viewing the “works of the Torah” language as belonging to the discussion of that core issue – in other words, the phrase seems to designate the ritual markers of Jewish tradition. Therefore, the “works of the law, ἔργα νόμου,” that Paul expresses doubts with regard to their effectiveness (Gal. 2:15–21) should be understood in this context in a limited sense – namely, as designating those practices prescribed by the Torah that serve as “identity badges” separating Jews from their Gentile neighbors. They are thus distinguished from the “core commandments” defining God’s covenant with Israel or the Torah (νόμος) proper, such as the Decalogue and Leviticus 19:18 – passages that indisputably retain their centrality in the apostle’s interpretation of the messianic salvation in Jesus, as forcefully expressed, e.g., in Gal 5:14.Footnote 7 Such an understanding of the “works of the law” finds corroboration in the מעשי התורה (ma’asei ha-torah, the works of the Torah) usage attested in 4QMMT from Qumran, where the phrase denotes ritual precepts, marking the proper observance of the Temple cult, corrupted according to the composers of the document by the current priestly leadership.Footnote 8 This ritual understanding is further confirmed when Paul reiterates the core opposition mentioned above (Gal. 5:2): “Now, I, Paul, say to you that if you receive circumcision, Messiah/Christ will be of no advantage to you.”

Such a reading, highlighting the Gentiles within the Jesus movement as Paul’s intended audience, supports the interpretation suggested by a number of influential scholars subscribing to what is now customarily called the New Perspective on Paul. Among them Krister Stendahl, John Gager, and Paula Fredriksen, who emphasized the specific context in which Paul’s harsh statements concerning the (works of the) Torah were meant to resonate – namely, the non-Jewish addressees of the apostle’s writings.Footnote 9 It was argued, moreover, that Paul’s claim that pious Gentiles do not have to observe the positive ritual precepts of the Torah, for example, perform circumcision (whereas the prohibition of participating in idol worship was emphatically upheld by Paul with regard to the Gentile fellow travelers too),Footnote 10 in fact followed an accepted, particularly in the Hellenistic Diaspora, Jewish perception. Namely, even in the last days, the Gentiles will join the redemption in accordance with the pattern found in the biblical prophecy, that is, as Gentiles, without blurring the borderline between Israel and the nations. Following Isaiah’s prophecy, the nations will come to the mountain of the Lord to serve him together with the Jews and become privy to the core messages of God’s Torah, while remaining ethnically and culturally distinct from the people of Israel.Footnote 11 According to this influential approach, the demands to Gentiles wishing to become part of Israel’s vocation are basically two: abandoning idol worship for the sake of worshipping the one God and adopting a truly moral behavior derived from the allegiance to the Creator.Footnote 12 Paul therefore followed here a beaten track, and since he addressed Gentiles only, he obviously did not intend to introduce any drastic reevaluation of the Torah vis-à-vis Jews.Footnote 13

This new view of Paul clearly has its merits. However, as I argued elsewhere, the context of Galatians indicates that besides the Gentile fellow-travelers Paul must have had an additional, hidden, audience in mind – namely, those Jewish propagandists from within the movement, whose pressure on the Gentile members of the community prompted the apostle’s response.Footnote 14 In fact, the opening line of the passage under discussion too points to a supposed intra-Jewish logic of the argument (Gal. 2:15–16): “We ourselves, who are Jews by birth and not Gentile sinners … know that a man is not justified by the works of the Torah …” One is therefore prompted to ask if the apostle’s collation of a hierarchical distinction between the hard-core commandments of the Torah and the peripheral “ritual markers” of Judaism with the claim that those ritual “works of the Torah” do not actually contribute to achieving the righteousness epitomized in the Torah’s foundational precepts, could resonate within the Jewish milieu too.

As noted above, this kind of outlook was somehow reflected in the general Hellenistic Jewish attitude toward Gentile sympathizers. The awareness of the hierarchical relationships between ritual markers of Judaism and its moral precepts is expressed in the second century BCE Letter of Aristeas. The Jewish sages there, also addressing Gentile audience, both emphasize the shared ethical values of the Torah and general Hellenistic outlook and try to argue for the usefulness – though they are not obligatory for the Gentiles – of Jewish ritual prescriptions as “helping devices” in educating our souls in their path to moral perfection.Footnote 15 It seems, however, that the hierarchical division – based on a variety of principles and with a different outcome – was applied to intra-Jewish religious discourse too, as aptly expressed in a well-known passage from the famous first century CE Jewish Hellenistic author, Philo of Alexandria:

There are some who, taking the laws in their literal sense as symbols of intelligible realities, are over-precise in their investigation of the symbol, while frivolously neglecting the letter. Such people I, for my part, should blame for their cool indifference, for they ought to have cultivated both a more precise investigation of things invisible and an unexceptionable stewardship of things visible. As it is, as if living alone by themselves in a wilderness, or as if they had become discarnate souls, knowing neither city nor village nor household nor any company of humans at all, transcending what is approved by the crowd, they track the absolute truth in its naked self. These men are taught by Sacred Scripture to be concerned with public opinion, and to abolish no part of the customs ordained by inspired men, greater than those of our own day.

For all that the Seventh Day teaches us the power of the un-originate and the non-action of created beings, let us by no means annul the laws laid down for its observance, kindling fire, tilling the earth, carrying burdens, instituting changes, sitting in judgment, demanding the return of deposits, recovering loans, or doing all else that is permitted in non-festal seasons. And though it is true that the Feast is a symbol of spiritual joy and of thankfulness to God, let us not bid adieu to the annual seasonal gatherings. And though it is true that circumcision indicates the excision of pleasure and all passions and the removal of the godless conceit under which the mind supposed itself capable of engendering through its own powers, let us not abrogate the law laid down for circumcising. For we shall be neglecting the Temple service and a thousand other things if we are to pay sole regard to that which is revealed by the inner meaning. We ought rather to look on the outward observances as resembling the body, and their inner meaning as resembling the soul. Just as we then provide for the body, inasmuch as it is the abode of the soul, so we must attend to the letter of the laws. If we keep these, we shall obtain an understanding of those things of which they are symbols, and in addition, we shall escape the censure and accusations of the multitude.Footnote 16

Philo tellingly attests to a variety of Jewish attitudes toward the “external” precepts of the Torah – from neglecting to upholding them – all of which acknowledge the above division and share the conviction that the true meaning of the commandments is the “internal” one. Philo himself clearly ascribes to this consensual appraisal and confirms the priority of the inner meaning of the Torah precepts. Unlike some of his Jewish contemporaries, however, whom he criticizes for their readiness to drop ritual observance altogether and deal directly with the mending of their “inner man,”Footnote 17 Philo – a responsible member of the community who recognizes the constraints of our physical and social existence – upholds the validity of the ritual side of Jewish tradition as befitting external means for “gradually educating one’s soul.” Nevertheless, the problematic tension between the two divisions (or interpretations) of the law lingers: As aptly observed by Christine Hayes, while Philo’s move aspired to strengthen the ritual aspect of the Mosaic Law, it could inadvertently “enable precisely that which Philo here protests.”Footnote 18

Such dichotomist perceptions seem to have not been limited to the Greco-Roman Diaspora only. Though evidence concerning the early proto-rabbinic tradition is scarce and relatively late, it may indicate that the idea of a twofold partition of the bulk of religious precepts was known and duly discussed in the Land of Israel too. Suffice it to quote a tradition ascribed to none other than the second-century codifier of the Mishnaic law himself (m. ̉Abot 2.1):Footnote 19

R. Judah the Prince said: Which is the proper course that a man should choose for himself? That which is an honor to him and elicits honor from his fellow men. Be as scrupulous about a light precept (מצוה קלה) as of a weighty one (כחמורה), for you do not know the reward allotted for each precept. Balance the loss incurred by the fulfillment of a precept against the gain and the accruing from a transgression against the loss it involves.  Reflect on three things and you will never come to sin: Know what is above you – a seeing eye, a hearing ear, and all your deeds recorded in a book.Footnote 20

One notes a partial overlap of terminology between our early third-century Mishnah and Matthew 5:19 (τῶν ἐντολῶν τούτων τῶν ἐλαχίστων, “the least of these/ the light commandments”) – an overlap that points to the terminology’s early provenance. Moreover, not unlike Philo (and Jesus in Matthew 5:19!),Footnote 21 the Mishnah votes for the importance of the efforts to fulfill precepts ostensibly not belonging to the core of the Torah. Though the reasons may be different, the “peripheral” commandments are seen here too as being in the final account expedient for a person’s “balance of merits.” And again, like Philo, the Mishnah mirrors an alternative approach, which it polemically rejects. Finally, while the dichotomy itself emerges as a shared feature of a whole spectrum of traditions, its character – namely, what commandments are seen as belonging to either category – may vary considerably. Thus, as distinct from Philo with his dichotomy between internal/spiritual and external meaning of the commandment, the Mishnah – similarly, for example, to Jesus’ stance in Matthew 23:23 – seems to understand both categories as pertaining to the realm of deeds.Footnote 22

If in the tractate ̉Abot the “light” commandments are presented as potentially expedient for God’s approval, another telling Mishnaic tradition speaks of the fateful eschatological transformation of the individual – that is, the gift of the holy Spirit and the resurrection – as conditioned by the sequence of efforts at fulfilling, inter alia, ritual (external, secondary) observances (m. Sotah 9.15):

R. Pinhas son of Yair says: “Expediency brings to cleanness, cleanness brings to purity, purity brings to chastity, chastity brings to holiness, holiness brings to meekness, meekness brings to the fear of sin, fear of sin brings to righteousness, righteousness brings to the spirit of holiness (holy spirit), and the holy spirit brings to the resurrection of the dead, and the resurrection of the dead comes through Elijah of blessed memory. Amen.”

The historical context here is that of the destruction of the Temple and anticipation of redemption. Yet it stands to reason that the singling out of certain ritual observances as crucial for obtaining righteousness and eventually redemption is linked and point to an older topic – as does the previously discussed mishnaic passage.

To sum up, all the reviewed sources express awareness of one or another kind of distinction between primary and secondary (meaning of) Torah precepts, thus allowing to contextualize Paul’s arguments within broader Jewish trends. While in the final account these sources uphold the validity of the secondary, for example, ritual, commandments, they indirectly attest to the possibility of an alternative tendency to dismiss those commandments as not crucial – an attitude they polemicize against.Footnote 23 Paul in Galatians therefore may be viewed as reflecting that alternative tendency; and his daring move could have been helped by the fact that he first came to discuss the issue while addressing a non-Jewish audience, which as noted, was perceived from the beginning as not obliged to the ritual identity markers of Judaism.

III The Core Demands of the Torah Law

Having rejected the auxiliary value of the ritual precepts, Paul states explicitly what constitutes the true core of the Torah law, unswervingly obliging in the Messianic era – namely, Leviticus 19:18 precept “love your neighbor as yourself” (Gal. 5:14–15): “For the whole law (ὁ γὰρ πᾶς νόμος) is fulfilled in one saying (ἐν ἑνὶ λόγῳ), ‘You shall love your neighbor as yourself’. But if you bite and devour one another take heed that you are not consumed by one another.“ Further on, in Galatians 5:22–23, the apostle clarifies the expectations from interpersonal relations, derived from the Leviticus 19:18 directive: “love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control; with regard to such there is no measure (limitations).”Footnote 24

It turns out, however, that Paul is not only pessimistic with regard to the ritual exercises’ capacity to help one achieve the perfection of the great love command, but in fact denies the ability to fulfill it through any efforts of our own. According to the apostle, the very nature of the foundational demands of the religious law is such that we are unable to satisfy them however hard we try – it is only through the intervention of the divine agency of the Spirit that the mission can be accomplished. In other words, our only hope to achieve the true righteousness propagated by law, namely, to fulfil the above lofty aspects of the Lev 19:18 precept – is to be endowed with the Spirit (Gal. 5:5–16, 22, 24–25):

For through the Spirit, by faith, we wait for the hope of righteousness. … But I say, walk by the Spirit, and do not gratify the desires of the flesh. … . But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control … And those who belong to the Messiah Jesus have crucified the flesh with its passions and desires. If we live by the Spirit, let us also walk by the Spirit.

[emphasis added]

Thus, whereas the validity (usefulness) of the “secondary” law precepts is questioned, with regard to the indisputable core elements of the Torah-related righteousness it is our ability to fulfill them that is negated. We will return below to the motif of the Spirit as the great enabler, as well as to that of Jesus’s atoning death, but for now suffice it to note that such an appraisal appears to undermine the whole function of the Torah as covenantal law.

It is possible to try interpreting this deeply seated skepticism in Galatians too as directed specifically at the Gentiles – in accordance with a broader Jewish perspective on Gentiles as “sinful by nature,” reflected, as we have seen, in Galatians 2:15 (“We ourselves, who are Jews by birth and not Gentile sinners”). According to this interpretation, therefore, it is only through the intervention of the Spirit that the “Gentile nature” could be reformed and the Gentiles become capable of fulfilling the Torah’s great commandment. However, as already the beginning of the slightly later Epistle to the Romans testifies, ostensibly addressing concerns of both Gentile and Jewish segments of the community in Rome,Footnote 25 that basic inability to cope with the Torah as law was viewed by the apostle as characteristic of Jews as well.Footnote 26

In Romans, that “final account” of Paul’s writing,Footnote 27 characteristically, the issue of ritual markers so central to Galatians takes a back seat,Footnote 28 with the epistle focusing instead on the basic incapacity of both Gentiles and Jews to properly respond to the core demands of God’s law.Footnote 29 The Gentiles’ failure is explained already in Romans 1 as resulting – in accordance with broader patterns of Jewish propaganda – from betrayal of the belief in one Creator. As for the Jewish failure, highlighted in Romans 2 in respect to one Decalogue precept, it receives its comprehensive explanation later on, in Romans 7.Footnote 30 Finding unconvincing the attempts to interpret the reasoning in Romans 7 as targeting exclusively the “Gentile predicament,”Footnote 31 I therefore side with those who discern here Paul’s grim diagnosis of the human condition, Jews included.Footnote 32 In the final account, what is central to my argument is that whoever are the explicit intended addressees of the reasoning in Romans 7, we should take into account – the move already probed above with regard to Galatians – the implicit Jewish audience too. The apostle’s pessimistic appraisal is characteristically complemented with the quantum leap, leading from the earlier impotence vis-à-vis the demands of the law imposed from outside to the new mode of existence (Romans 7:4–6):

Likewise, my brethren, you have died to the Torah/law through the body of Christ/ the Messiah, so that you may belong to another, to him who has been raised from the dead in order that we may bear fruit for God. 5 While we were living in the flesh, our sinful passions, aroused by the law, were at work in our members to bear fruit for death. 6 But now we are discharged from the law, dead to that which held us captive, so that we serve not under the old written code but in the new life of the Spirit.

The appearance of the favorite Pauline expression “bear fruit” collated with the centrality of the Spirit, duly noted in the earlier discussion of Galatians 5, indicates that the “freedom from the law” here does not at all mean lawless frivolity. It rather designates a new stance “in the Spirit,” finally enabling one to fulfill the core Torah commandments, which was impossible when one’s relation to the law was that of vis-à-vis externally ordered obligation. In fact, Paul himself continues to clarify the matter (Romans 7:7-12):

What then shall we say? That the law is sin? By no means! Yet, if it had not been for the law, I should not have known sin. I should not have known what it is to covet if the law had not said, “You shall not covet.” 8 But sin, finding opportunity in the commandment, wrought in me all kinds of covetousness. Apart from the law sin lies dead … 10 the very commandment which promised life proved to be death to me. 11 For sin, finding opportunity in the commandment, deceived me and by it killed me. 12 So the law is holy, and the commandment is holy and just and good. Did that which is good, then, bring death to me? By no means! It was sin, working death in me through what is good …

[emphasis added]

So, the law “is good” and it opens one’s eyes, teaching what sin is, but, unfortunately the law does not provide one with the capability to resist sin (cf. Romans 3:20). Moreover, in our encounter with the just demands of God’s law, sin manages to exploit our pervert nature (evil inclination?),Footnote 33 turning the commandment into temptation to disobey it. The problematic side of the “written code” is idiosyncratically emphasized here, though Paul takes care to piously ascribe the blame not to the Torah itself, which is holy, but to the defective human condition – and Jews are clearly not exempted.

In the following programmatic passage, Paul further elaborates on the issue, this time pointing to our “being flesh” as the real culprit (Romans 7:14–25):Footnote 34

We know that the Torah/law is spiritual; but I am carnal, sold under sin. 15 I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. 16 Now if I do what I do not want, I agree that the law is good. 17 So then it is no longer I that do it, but sin which dwells within me. 18 For I know that nothing good dwells within me, that is, in my flesh. I can will what is right, but I cannot do it. 19 For I do not do the good I want, but the evil I do not want is what I do. 20 Now if I do what I do not want, it is no longer I that do it, but sin which dwells within me. 21 So I find it to be a law that when I want to do right, evil lies close at hand. 22 For I delight in the law of God, in my inmost self, 23 but I see in my members another law at war with the law of my mind and making me captive to the law of sin which dwells in my members. 24 Wretched man that I am! Who will deliver me from this body of death? 25 Thanks be to God through Jesus Christ our Lord! So then, I of myself serve the law of God with my mind, but with my flesh I serve the law of sin.Footnote 35

Telling is the variety of meanings in which the word “law” (νόμος) is used. First, the law is God’s Torah addressed to our inner man, to our mind (nous) – thus it is “spiritual” (cf. Philo’s position discussed above). However, when devoid of the Spirit, our response to God’s law is “carnal,” which means transgressing the commandment we are supposed to fulfill, thus succumbing to the “law of our bodily members,” a sinful negative of God’s holy Torah.Footnote 36

According to Paul, this pitiful stance vis-à-vis God’s law will continue until the body, which, as it were, pulls us down, is metaphorically “put to death” overwhelmed by the Spirit. The belief in Jesus’ atoning death, combined with the notion of our bodies’ metaphorical “death to sin,” seems to reflect – and drastically modify – here a broader idea that until the very moment of physical death we all, even the righteous ones, are destined to incessantly struggle with sin. This is, for example, how this idea is expressed in the rabbinical midrash Genesis Rabbah (9.5):Footnote 37

“And lo, very good” (Genesis 1:31). [What is very good?] It is death. Why was the death ordained [even] for pious ones? [Because] all the time when they are [still] alive they spend fighting their evil impulse. [Only] when they die, they [may at last] rest.

This death-centered perception of final transformation is characteristically collated in Paul with the belief in the liberating function of the Spirit (Romans 7:24–8:4):

Wretched man that I am! Who will deliver me from this body of death? 25 Thanks be to God through Jesus Christ/the Messiah our Lord! So then, I of myself serve the law of God with my mind, but with my flesh I serve the law of sin. 8:1 There is therefore now no condemnation for those who are in Chris/the Messiaht Jesus. 2 For the law of the Spirit of life in Christ/the Messiah Jesus has set me free from the law of sin and death. 3 For God has done what the law, weakened by the flesh, could not do: sending his own Son in the likeness of sinful flesh and for sin, he condemned sin in the flesh, 4 in order that the just requirement of the law might be fulfilled in us, who walk not according to the flesh but according to the Spirit.

[emphasis added]

One notes that the crux of Paul’s reasoning is the aspiration to finally be able to fulfill “the just requirements of the Torah.”Footnote 38 The Torah is helpless: even if it still has a very important function to accomplish – namely, to highlight and strengthen the awareness of one’s sins (Romans 3:20) – it also exposes one to the cunning of the evil impulse and, most important, does not provide the means to overcome humanity’s built-in sinful inclinations and follow God’s commandments (Romans 9:31).

At the end of the chapter, I will return to the characteristic collation of Jesus’ atoning death and the gift of the Spirit as two complementing “enablers.” Right now, however, I am going to ask to what extent this pessimistic appraisal of our inherent ability to cope with God’s Torah as law was Paul’s idiosyncratic contribution to the religious discourse or, alternatively, a reflection of an intuition of a much broader currency in the Jewish world.

It goes without saying that the call for the earnest effort to try to fulfill Torah commandments as the sure path to righteousness was characteristic of Jewish covenantal outlook as a whole, to which there are multiple attestations. The telling passage from Mishnah Abot 2.1, addressed above, is a fine example of such an outlook. An influential trend in rabbinic tradition also viewed the Torah as antidote to the evil impulse, even if its effectiveness is not always thorough.Footnote 39 However, by the time Paul was addressing the topic, a substantially different intuition, derived from an essentially pessimistic appraisal of a person’s ability to gradually build the edifice of righteousness by his/her own efforts, had also been voiced in Jewish tradition. It was even enticingly suggested that this pessimistic appraisal was intrinsic to the Pharisaic religious outlook, which propagated the expansion of the scope of the commandments by means of reinterpretation (Oral Torah) to the realm of intentions (”the inner man”) – a demand that further aggravated the impossibility of the task.Footnote 40 Later rabbinic sources also bear witness to such a tendency, with the sometimes inevitable conclusion, mentioned above, that nothing short of death can cure one’s sinful inclination. I have dealt at length elsewhere with rabbinic responses to this conundrum;Footnote 41 it will suffice to say here that in such a context a variety of remedies were suggested, such as: trust in last-minute repentance, trust in God’s merciful benevolence, and belief in the expiating function of one’s death.

In eschatological thinking, however, this basically pessimistic assessment engendered aspirations for the last-days transformation of the nature of man’s stance vis-à-vis God’s law. This tendency, in fact, goes back to classical biblical prophecy, with a famous example provided by Jeremiah, who speaks of a “change of heart” imposed by God “from outside” – and not the steadfast efforts invested in pious ritual actions, temple sacrifices included – as the only way to righteousness, remission of sins and redemption (Jeremiah 31:31–34):

31 “Behold, the days are coming,” says the LORD, “when I will make a new covenant with the house of Israel and the house of Judah, 32 not like the covenant which I made with their fathers when I took them by the hand to bring them out of the land of Egypt, my covenant which they broke, though I was their husband, says the LORD. 33 But this is the covenant which I will make with the house of Israel after those days,” says the LORD: “I will put my Torah/law within them, and I will write it upon their hearts; and I will be their God, and they shall be my people. 34 And no longer shall each man teach his neighbor and each his brother, saying, – ‘Know the LORD,’ for they shall all know me, from the least of them to the greatest, says the LORD; for I will forgive their iniquity, and I will remember their sin no more.”

It is only this inner transformation enforced by God that makes the observance of the core stipulations of God’s covenant possible.Footnote 42 Characteristically, in another famous oracle, that of Ezekiel, this eschatological transformation is further described in terms of receiving the gift of Spirit (Ezekiel 36: 24–29):

24 For I will take you from the nations, and gather you from all the countries, and bring you into your own land. 25 I will sprinkle clean water upon you, and you shall be clean from all your uncleannesses, and from all your idols I will cleanse you. 26 A new heart I will give you, and a new spirit I will put within you; and I will take out of your flesh the heart of stone and give you a heart of flesh. 27 And I will put my spirit within you, and cause you to walk in my statutes and be careful to observe my ordinances. 28 You shall dwell in the land which I gave to your fathers; and you shall be my people, and I will be your God. 29 And I will deliver you from all your uncleannesses; and I will summon the grain and make it abundant and lay no famine upon you.

[emphasis added]

Compared to m. Sotah 9.15 quoted above, the passage from Ezekiel outlines an inverted sequence – instead of the righteousness, forgiveness of sins, gift of the Spirit and redemption as the crowning outcomes of earnest efforts to fulfill God’s precepts, including the ritual ones focused on the cleanness-uncleanness dichotomy, the very ability to act righteously is presented here as conditioned by the prior intervention by God that changes one essentially with the “stroke of the spirit.” This perception would be later picked up in the Rule of the Community, drastically modified in accordance with the Qumranic double predestination belief. A powerful expression of that pattern of religious thinking is found in the closing section of the Rule (1QS 11.7–17):Footnote 43

To those whom God has selected he has given them as everlasting possession; until they inherit them in the lot of the holy ones. 8 He unites their assembly to the sons of the heavens … to be an everlasting plantation throughout all future ages. 9 However, I belong to evil humankind to the assembly of wicked flesh; … the assembly of worms … of those who walk in darkness 10 For to man (does not belong) his path, nor to a human being the steadying of his step; since judgment belongs to God, 11 and from his hand is the perfection of the path. By his knowledge everything shall come into being, and all that does exist he establishes with his calculations and nothing is done outside of him. … 13 he will free my soul from the pit and make my steps steady on the path; 14

… in his justice he will cleanse me from the uncleanness of the human being and from the sin of the sons of man, … so that I can extol God for his justice … Blessed be you, my God, who opens the heart of your servant to knowledge! 16 Establish all his deeds in justice, … to be everlastingly in your presence, as you have cared for the selected ones of humankind. 17 For beyond you there is no perfect path and without your will, nothing comes to be.

[emphasis added]

According to the Rule, the God-imposed transformation is (a) the only possible avenue to achieving the righteousness and (b) conditioned on the predestined election. The flesh-spirit dualism characteristic of the Dead Sea Scrolls, as well as of Paul in Romans 7,Footnote 44 is only hinted at here (the “flesh” being incapable of following God’s will, line 9, cf. Matthew 26:41); the Spirit, however, is clearly perceived elsewhere in the same scroll as both cleansing the person’s “inner man” when the last days come, and revealing God’s ultimate mysteries (1QS 4.20–23):

Meanwhile, God will refine, with his truth, all man’s deeds, and will purify for himself the configuration of man, ripping out all spirit of deceit from the innermost part 21 of his flesh, and cleansing him with the spirit of holiness from every irreverent deed. He will sprinkle over him the spirit of truth like lustral water (in order to cleanse him) from all the abhorrences of deceit and from the defilement 22 of the unclean spirit. In this way the upright will understand knowledge of the Most High, and the wisdom of the sons of heaven will teach those of perfect behavior. For these are those selected by God for an everlasting covenant 23 and to them shall belong all the glory of Adam.

[emphasis added]

The heavenly mysteries revealed to those “refined by God” are identified as a new interpretation of the Torah precepts, pertaining to the pre-eschatological “age of wickedness” in the Damascus Document 6, whereas both the necessity of the initially enforced action of the holy Spirit for obtaining righteousness and its cardinal effect as preventing one from sinning against God in the future are again highlighted in the Qumranic Thanksgiving Hymns (1QH 4.17–26):

[I give you thanks, Lord,] for the spirits you have placed in me … .to confess my former sins, to bow low and beg favour 19 for […] of my deeds and the depravity of my heart. Because I wallowed in impurity, [I separated myself] from the foundation [of truth] and I was not allied with […] 20 To you does justice belong, blessing belongs to your Name for ever! [Act according to] your justice, 21 free [the soul of your servant,] the wicked should die! However, I have understood that [you establish] the path of the one whom you choose 22 and in the insight [of your wisdom] you prevent him from sinning against you, you restore his humility through your punishments, and by your ord[eals streng]then his heart. 23

[You, Lord, prevent] your servant from sinning against you … . 25 […] for your servant is a spirit of flesh. Blank 26 [I give you thanks, Lord, because] you have spread your holy spirit upon your servant […] his heart …

[emphasis added]

The emphasis on election/gift of the Spirit as the precondition for fulfilling the Torah precepts is expressed with particular force and clarity in Qumranic texts – not least, thanks to its being linked there to the double predestination concept.Footnote 45 However, it stands to reason that outside of this idiosyncratic linkage, the late Second Temple revival of the intuition found already in Ezekiel 36 was not restricted to their sectarian eschatologically oriented milieu.Footnote 46 Paul then may be viewed as an important witness to this tendency.

IV Conclusion

My reading suggests that in both Galatians and Romans, Paul repeatedly addresses the challenge of the νόμος (law) component of Jewish religion. The apostle’s rhetorically amplified statements there attest to a variety of nonharmonized appraisals – from the Torah precepts being “good and holy” to constituting an obstacle on the way to true righteousness. In accordance with the latter emphasis, the centuries-long Christian tradition ascribed to Paul the conviction that in the messianic era, following Jesus’s salvific death, the Jewish religious outlook centered on the Torah and its commandments becomes obsolete. Trying to cope with the apostle’s statements on the Torah’s (partial) validity and absolute holiness this tradition explained them away as, for example, dictated by the tactical constraints of the mission. Various modifications of this appraisal have also been adopted, mutatis mutandis, by some influential modern scholars.Footnote 47

There have been also a number of inroads in recent research, alleviating this picture of Paul’s substantial reversal of the attitude to the Torah law, including the law’s ritual aspects. Most prominently, the scholars propagating the so-called New View of Paul forcefully argued for a context-related interpretation of Paul’s criticism of Torah ritual precepts as directed exclusively toward Gentiles. If so, there is no reason at all to view it as radical – and no reason to think that he called for annulling the Torah obligations of the Jews. The issue of Torah observance or deeds-grace controversy can moreover be viewed as not part of the initial core of the apostle’s teaching of messianic salvation, but rather one of the secondary themes evoked in response to varying circumstances – most notably, the appeal to non-Jewish addressees. This study approached the issue from a different angle. Not denying Paul’s very particular circumstances, it aimed at discerning in the apostle’s reasoning a reflection of broader Jewish awareness – within the covenantal nomism outlook – of the problematic side of the law as religion’s foundational aspect.

I started with a discussion of Paul’s “works of the Torah/law” usage featuring prominently in Galatians, which gives support to the suggestion that this phrase should be understood, similarly to its Hebrew parallel in the Dead Sea Scrolls, in a limiting sense of ritual markers. The context of the epistle indicates that those are the distinguishing positive ritual markers of Judaism, circumcision et al. that Paul tries to discourage his Gentile addressees within the Jesus movement from adopting. The apostle’s argument is that the ritual elements of the law are, in fact, not helpful in our attempts to achieve true righteousness. The position, that those are only the core demands of the Torah – embracement of monotheistic faith and worship and of proper morals – and not the details of ritual law that are expected from Gentile God-fearers, was, in fact, current among Hellenistic Jews. Paul therefore may be viewed as riding upon an existing tendency. Though the apostles’ polemical stress on the dilemma of either Jewish ritual or Jesus’ atoning death, is definitely his singular trademark.

I suggested, however, that Paul’s insistence that “secondary” ritual observances do not contribute to achieving true righteousness epitomized in the Torah’s foundational demands, “Love your neighbor as yourself” (Leviticus 19:18), was also aimed at his “hidden audience” – those Jewish members of the movement, whose influence on the Gentile fellow-travelers he is trying to repel. To clarify that intra-Jewish logic of the argument, I reviewed a number of early Jewish sources attesting to the variegated divisions of the Torah law into “primary” and “secondary” sections. Though in the final account, all these sources uphold the “righteousness value” of the “secondary” (external, ritual) observances – for example, as assisting in fulfillment of the foundational moral demands – they clearly betray the backdrop disagreements and polemic. This strengthens the probability that Paul’s negation of the ritual’s auxiliary value, first triggered by the concrete polemical situation vis-à-vis his Gentile addressees, was in the final account meant to have a broader appeal. Since in the intra-Jewish discourse it was likewise a matter of contention, Paul might have consciously related to some aspects of this contention.

However, it turns out that Paul’s doubts with regard to the usefulness of the ritual precepts for our aspiration to achieve righteousness are part of his more substantial skepticism. The apostle in fact argues that one is incapable of fulfilling the Torah’s foundational moral demands, those “just requirement of the law,” through one’s own efforts at all. In the Epistle to the Romans, he further elaborates on that, blaming our “being in flesh” for the basic impotence in coping with God’s law. The chapter shows that side by side with more optimistic appraisals of the man-versus-Torah-as-law conundrum, this pessimistic one was not unknown in broader Jewish tradition, representing, moreover, a long-standing tendency within it.

Having briefly related to rabbinic responses to this pessimistic appraisal of human nature that focused on mechanisms of repentance and God’s forgiveness, I noted that traditions of eschatological flavor alternatively attest to the aspiration for the last-days transformation. They are often expressed in terms of receiving the Spirit, which would finally make feasible the fulfillment of God’s commandments. According to my reading, Paul inherited from broader patterns of Jewish thought not only the pessimistic diagnosis of human condition vis-à-vis God’s demands in the “externally imposed” law, but also the eschatological solution of the problem through the gift of the Spirit. One of the characteristic features of Paul’s argument is the coupling of this inherited motif of broader circulation with the “sectarian” argument, ascribing the same enabling function to Jesus’s salvific death.

In the final account, my investigation brings me to the conclusion that the crux of the apostle’s reasoning was not the annulment of the Jewish religious outlook centered on the Torah and its commandments. It was rather the perception of the deeply problematic nature of the human predicament in face of God’s will as epitomized in the code of law. This seasoned pessimism was coupled with the eschatological hope for the inner transformation induced by the Spirit that would finally enable us to live up to the just demands of God’s Torah. With regard to both these motifs, as well as to the perception of the hierarchical division between peripheral and core precepts, Paul’s writings may be viewed as an illuminating witness to broader intuitions of Jewish tradition. The apostle, however, retains his idiosyncratic singularity thanks to the addition of the atoning death of the Messiah as a complementing enabler of that eschatological metamorphose, and, of course, to the conviction that this metamorphose is already somehow present among his addressees.

15 When Law Meets Theology Legality and Revelation in the Jewish, Islamic, and Zoroastrian Traditions in the Abbasid Period

Yishai Kiel
I Introduction

Recent decades have seen growing interest in the interplay of law and religion, moving beyond the constitutional context (freedom of religion) and other practical legal concerns, to explore the broader dynamics of law and religion as “sciences” and classification systems.Footnote 1 The underlying assumption of research in the field has typically been that “law and religion are distinct spheres and sciences of human life, but they exist in dialectical interaction, constantly crossing-over and cross-fertilizing each other.”Footnote 2 This working assumption, however, rests, to a large extent, on the uncritical acceptance of certain binary distinctions entrenched in Western legal culture and the history of Christianity,Footnote 3 compartmentalizing the notions of logos and nomos, law and faith, letter and spirit, and church and state. These distinctions can be traced back to the Greco-Roman dichotomy between divine (or natural) and positive law,Footnote 4 on the one hand, and antinomian tendencies pervading ancient Christianity, especially Paul‘s writings,Footnote 5 that reject the very idea that nomos, in the sense of positive law, can be a medium of revelation and manifestation of God’s word and wisdom. The absence, moreover, of a distinctive category for religion and the religious sphere in premodern contexts,Footnote 6 even within the confines of the Western tradition, further obscures the discursive categorization of law and religion as distinct, yet interacting, orders of classification.

When we cast our gaze beyond the Western and Christian traditions, however, we encounter a range of alternative possibilities that blur the Western bifurcation and defy the compartmentalization of law and religion.Footnote 7 According to David Novak, commenting on law and religion in the Jewish tradition, “while today many regard law and religion as separate spheres and sciences of life, Judaism has long regarded these phenomena as overlapping, if not virtually identical.”Footnote 8 Similar observations can constructively be made for other non-Western legal and religious traditions, such as Islam, Zoroastrianism, and Brahmanic Hinduism, to name just a few. In such contexts, it would perhaps be more productive to replace the discourse of law and religion, tendentiously assuming the existence of distinct spheres and orders of classification interacting with each other, with one of law as religion and religion as law, as framed by the present volume, reflecting the essential “fuzziness” of these categories, which can represent two sides of the same coin.

One need not envision a dichotomy between “Western” and “non-Western” approaches to law and religion. It is simply that we can gain a more nuanced and variegated appreciation of these intersecting and overlapping spheres, by a conscious attempt to evade bifurcated modes of analysis entrenched in Christianity and Western legal culture, in search of alternative models beyond the confines of the Occident. The present article, centered on Jewish, Islamic, and Zoroastrian perceptions of revelation and legality in the Abbasid period – offers yet another example of the problematization and unsettling of the “law and religion” paradigm by non-Western and non-Christian discourses.

The first centuries of the Abbasid periodFootnote 9 – between the mid-eighth and early-eleventh centuries – roughly corresponding to the late Geonic era in rabbinic periodization, can arguably be seen as a landmark in the development of Jewish, Islamic, and Zoroastrian jurisprudence. This is not to say of course that the beginnings of Jewish, Islamic, and Zoroastrian law – in the sense of comprehensive systems of positive law – should be traced to this juncture. Indeed, the Jewish and Zoroastrian legal traditions are firmly rooted in late antiquity,Footnote 10 as reflected in the detailed legal systems contained in the classical talmudic corpus,Footnote 11 on the one hand, and the Zoroastrian Zand (the Pahlavi translation and commentary on the Avesta)Footnote 12 and collection of Sasanian case law,Footnote 13 on the other hand. Islamic law is likewise rooted in late antiquity, as much of early Islamic law is indebted to pre-Islamic traditions and customs (including Roman, Sasanian, Jewish, and local Arabian law and custom).Footnote 14

Notwithstanding the late-ancient origins of these legal traditions, the distinctive IslamicateFootnote 15 legal culture that emerged in Iraq and its surroundings under the early Abbasid Caliphate was marked by an unprecedented level of reflexivity, systematization, professionalization, and theorization of the law. This is manifest in the gradual shift from oral to written culture; the transformation from anonymous and collective authorship to specialized legal works attributed to named jurists; the institutionalization of academies and cross-regional legal “schools”; the professionalization of judges and jurisconsults; the coming of age of legal hermeneutics; and the emergence of legal theory and reflexive engagement with the nature of the law.Footnote 16 In this context, Jewish, Islamic and Zoroastrian authors endeavored to provide a clearer definition of the law’s “roots” (uṣūl al-fiqh to use the prevalent vernacular), and articulate its basic “rule of recognition,” identifying the authoritative legal sources and setting criteria for legal validity.

In this context, several Jewish, Islamic, and Zoroastrian authors, who seem to have shared a postclassical consciousness vis-à-vis earlier generations, sought to confine their legal systems’ jurisprudential sources (and, implicitly, the legal sources available to judges and jurisconsults) to the canonical textual manifestation of God’s revelation. The assertion that the system’s legal sources are confined to the textual articulation of God’s revelation was connected, not only with the gradual shift from oral to written culture, but also with an ongoing process of normative and theological canonization,Footnote 17 in which compilations of earlier legal traditions came to be regarded as binding legal “sources” in a jurisprudential sense and theological manifestations of the divine will. In this context, a similar voice was echoed in Jewish, Islamic, and Zoroastrian circles in the Abbasid period insisting on the textual confinement of God’s law to closed textual corpora – the Torah and Mishnah-cum-Talmud, the Quran and Hadith, and the Avesta and Zand – and facilitating a process by which these corpora came to be regarded as binding legal “codes” and the exclusive, complete, and authoritative articulation of God’s revelation.Footnote 18

From a legal theoretical perspective, the idea that the law is exhausted by its textual-statutory articulation (rather than being custom-based or judge-made) is consistent with legal formalism, an important dimension of which is the reductive confinement of the law to an exhaustive and self-contained body of norms, often manifest in the form of a comprehensive statutory code.Footnote 19 The textual-statutory demarcation of the law is also consistent with a formal interpretation of the notion of “legality” and the “rule of law,”Footnote 20 entailing the law’s generality, accessibility, prospectiveness, coherence, clarity, stability, and predictability.Footnote 21 From a theological perspective, the textual-statutory confinement of God’s law reflects the perception of God as legislator and “author” of the law, at the expense of human participation in the revelatory and legislative processes.

The idea that God is the legislator and author of a textually confined body of law, containing stable and predictable laws, to which all (including the sovereign) are subject, is not a trivial one and, in fact, has a history that requires unpacking. In the context of the ancient Near East, something approximating a theological version of the “rule of law” can be found, as early as the first half of the first millennium BCE, in the BibleFootnote 22 and, to some extent, in the young Avesta and Old Persian inscriptions.Footnote 23 The idea that God is the author of a prescriptive legal “code,” which developed in ancient Israel and Iran, stands in contrast to the prevailing paradigm in the ancient Near East, according to which the gods were perceived as guardians of justice who authorize the laws of the kings by establishing them and conferring upon them the principles of justice and the wisdom essential to fulfill their role. In this context, the laws were generally produced and authored by the kings, not the gods, and known by their names.Footnote 24

Later expressions of the compatibility of the idea of God as legislator and author of the law and the formal principles of the “rule of law” can be gleaned, for example, from Josephus’s interpretation of theocracyFootnote 25 or the Quranic emphasis on the subjection of prophets and sovereigns to God’s law.Footnote 26 In the present context, I seek to highlight the significance of a particular juncture in the convoluted history of the interplay of legality and revelation, as manifest in Jewish, Islamic, and Zoroastrian thought in the Abbasid Near East.

The Jewish, Islamic, and Zoroastrian legal traditions generally hold that, alongside the authoritative revelation vouchsafed in the Torah, Quran, and Avesta, respectively, God imparted additional normative directives connected with the rabbinic idea of torah she-be-ʽal pe (Oral Torah) revealed at Sinai alongside the Written Torah,Footnote 27 the Islamic concept of sunna (the traditions, practices, and sayings associated with the Prophet Muhammad) complementing the Quran,Footnote 28 and the Zoroastrian notion of the dēn, expressing the totality of the Zoroastrian Tradition.Footnote 29 While Hebrew torah she-be-ʽal peh, Arabic sunna, and Pahlavi dēn ultimately came to be associated with textually demarcated legal corpora, they initially seem to have denoted an amorphous body of oral tradition.Footnote 30 In the early Abbasid period, several jurists argued for the authority of a textually-demarcated version of this “body of oral tradition” and the statutory and “codificatory” confinement of God’s law to the corpora of the Mishnah-cum-Talmud, Hadith, and Zand (in addition to the Torah, Quran, and Avesta), which were rhetorically presented as the exclusive manifestation of God’s law and the complete embodiment of his revelation.

The emerging theoretical assertion of the textual-statutory confinement of God’s law and revelation – connected with a strong emphasis on God’s “authorship” of the law, on the one hand, and the principles of “legality,” on the other hand – is consistent with a shift in the conceptualization of legal authority, in which context communal authority underwritten by a personal and mimetic relationship between master and student was gradually replaced by impersonal, textual, and hermeneutic authority,Footnote 31 while a deontic perception of legal authority was replaced by an epistemic one centered on the jurists’ knowledge of posited textual sources.Footnote 32

The legal theoretical shift was, at times, more declaratory and rhetorical perhaps than reflective of the actual legal mode of operation. This can be gleaned from the varying levels of willingness of jurists to incorporate other legal “sources” competing for prominence, such as “extra-canonical” textual traditions, “post-canonical” enactments, customary law, precedent, consensus, and independent reasoning not based on the canonical textual sources. In a similar manner, it has been correctly observed that the mere claim of a legal system to be of divine origin does not suffice, in itself, to indicate that it is actually “religious” in any practical sense.Footnote 33 But even insofar as rhetoric is concerned, one must pay close attention to the subtleties of the claim to divine origin, by interrogating the notions of “legal revelation” and “divine law” and delving into the meaning of the linkage posited between the legal and the divine. The various law codes of the ancient Near East, the laws of the Pentateuch, Greco-Roman discourses of natural law, and Manu’s laws all claim to be “divine” in one sense or another, but the meaning and significance of this assertion differ considerably from one cultural context to another.

In the course of the present discussion, I will employ a distinction between personal-authorial and impersonal-formal claims concerning the law’s “divine” nature;Footnote 34 between “participatory” and “stenographic” theories of revelation reflective of the relative role of humans vis-à-vis the divine in shaping the revelatory content;Footnote 35 and between “retrieval” versus “constitutive” paradigms of transmission in legal systems that look back to a defining moment of revelation.Footnote 36 We will see that, in the Abbasid period, the Jewish, Islamic and Zoroastrian legal traditions reflect an increasingly stronger “authorial” and “stenographic” rhetoric of God’s law (undermining the role of human agency in the legal process), on the one hand, and an emphasis on the textual confinement of the law, consistent with the formal principles of “legality,” on the other hand. Paradoxically, then, it is precisely when the law is said to be thoroughly theologized (rather than secularized) that it acquires its clearest legalistic facets, reflecting the law’s generality, accessibility, prospectiveness, coherence, clarity, stability, and predictability. Indeed, the “religious” and the “legal” are mutually enforcing.

The textual demarcation of the law and its theologization are generally characteristic of Jewish, Islamic, and Zoroastrian thought in the Abbasid period. In this article, I will center on three exemplary authors in particular, Rav Sherira Gaon (906–1006), head of the Rabbinic academy at Pumbeditha; Muhammad b. Idrīs al-Shāfiʽī (767–820), the so-called “architect” of Islamic jurisprudence; and Mānuščihr, a ninth-century Zoroastrian jurist and high priest. These authors were chosen for two main reasons. First, these authors do not only rhetorically declare the canonical status of the Mishnah-cum-Talmud, Hadith, and Zand (alongside the Torah, Quran, and Avesta), but practically seek to subordinate or otherwise subject extratextual legal sources and methodologies – such as consensus (ijmāʽ, ham-dādestānīh, haskamah); reason and discretion (ra’y, istiḥsān, istiṣlāḥ, meh-dādestānīh, sevara, shiqul ha-daʽat) and custom/practice (ʽamal, ʽurf, ʽāda, kardag, minhag, maʽase) – to the canonical textual sources against the backdrop of competing tendencies prevalent among their contemporaries and predecessors.Footnote 37 Second, these authors address the canonical status of the textual-statutory sources systematically in the form of epistolary essays intended, among other reasons, to establish and ground the idea of the demarcation of God’s law in a specific textual corpus. Thus, they played a particularly crucial role in articulating the stakes of the normative and theological canonization of their respective religious traditions during the Abbasid period, arguing for the textual confinement of revelation in designated corpora.Footnote 38

In terms of social history, the Jewish, Islamic, and Zoroastrian jurists in the Abbasid period can be seen as members of dynamic normative communities engaged in a continuous effort to create legal meaning, while negotiating their particular legal identities within the broader framework of Islamicate legal culture. As such, these jurists were not “influenced by” or “resistant to” the surrounding legal culture, so much as they were an integral part of it, while having at the same time to balance their particular legal heritage with broader cultural identities. This is no less true for culturally “conservative” jurists, such as Sherira, Shāfiʽī, and Mānuščihr, who were, at one and the same time, members of a particular religious and normative tradition and the broader Islamicate legal culture.

Revisiting the theory of communal autonomy of religious minorities under Islam, Uriel SimonsohnFootnote 39 has argued that the consolidation of legal autonomy was an ideal fostered by religious and legal elites on both sides of the border, whose authority depended on the construction of such boundaries.Footnote 40 The practice “on the ground,” however, transgressed these confessional aspirations, as evident from the fact that Jews and Christians regularly availed themselves of Muslim courts,Footnote 41 a practice which extended to other Islamicate minorities such as Zoroastrians.Footnote 42 It seems, however, that the “murky” boundaries between the various normative communities inhabiting Iraq and its surroundings in the Abbasid period were not simply the outcome of “popular” defiance of elite aspirations, as the Jewish, Islamic, and Zoroastrian authorities themselves shared deep structures of meaning (whether or not they cared to acknowledge it) and a postclassical consciousness connected with the idea of the textual-statutory demarcation of God’s law.

II Canonizing God’s Law in Sherira’s Epistle

This section will center on Sherira’s account of the transmission history of the Oral Torah initially revealed at Sinai (alongside the Written Torah) and particularly the “constitutional” moment of the Oral Torah’s textual crystallization in the Mishnah and, ultimately, in the Talmud. In this context, Sherira makes unprecedented claims about the legal and theological status of these works, claims which can be illuminated by contemporaneous reconstructions of the legal and theological status of the Quran and Hadith in the Islamic tradition and that of the Avesta and Zand in the Zoroastrian tradition.

Sherira opens his famous epistleFootnote 43 with the following statement concerning the canonical status of the Mishnah:

Thus, we have witnessed that the six orders (of the Mishnah) were all arranged by our holy Rabbi (Rabbi Yehudah the Patriarch), so that we can recite them (systematically) one halakhah after another; one may not add (to the Mishnah) nor subtract from it.Footnote 44

The idea that one may not add to the Mishnah nor subtract from its content and words seems to paraphrase Deuteronomy 4:2 (“You must neither add anything to what I command you nor take away anything from it”), thus aligning the unchangeable, static, and canonical status of the Pentateuch with that of the Mishnah as textual embodiments of the Written and Oral Torah, respectively. By pointing out the unchangeable nature of the Mishnah at the outset of the epistle, Sherira seems to set the stage for the ensuing discussion, in which he will make the case for the unique jurisprudential and theological status of the Mishnah, as the ultimate source of Jewish law and the complete and authoritative textual articulation of God’s revelation.

Sherira’s claims on behalf of the Mishnah, to be sure, are hardly trivial. Whatever its authors intended for it, the Mishnah, prior to the late Geonic period, was not perceived as the exclusive and complete articulation of the Oral Torah,Footnote 45 and certainly not as a binding legal “code.”Footnote 46 While the amoraim and redactors of both Talmuds situated the Mishnah (or parts thereof) at the center of their interpretive endeavor (thus reflecting some degree of “canonicity”), they consciously and regularly deviated from the Mishnah’s rulingsFootnote 47 on the basis of both textual and nontextual legal traditions.Footnote 48 Sherira’s assertion, by contrast, according to which “one may not add (to the Mishnah) nor subtract from it,” seems to suggest the equivalence of the Pentateuch and Mishnah as exclusive, binding, and complete textual articulations of God’s Written and Oral Torah.

Assuming the Mishnah’s antiquity, the questioner – Jacob b. Nissim Ibn Shahin in the name of the Rabbanite community of Qayrawan – suggests that the Mishnah was composed in piecemeal fashion, a process stretching back to the early Second Temple period (notwithstanding the Sinaitic origin of the Oral Torah).Footnote 49 In his response, Sherira draws a distinction between the content of the Oral Torah, which can be traced back to Sinaitic revelation, and which was well-known to the early sages, and its textualization-crystallization in the MishnahFootnote 50 (albeit in oral form).Footnote 51 As explained by Robert Brody,

there was no need in Second Temple times for a specific formulation of the tradition, which was universally agreed upon and understood; each master was free to transmit the material to his students in any style he chose. It was only with the crisis surrounding the destruction of the Temple that misunderstandings and doubts proliferated and the need for an established text was perceived, and only in the days of R. Judah the Prince was the time ripe for the production of such a text, which was immediately recognized as the canonical Mishnah.Footnote 52

The Oral Torah’s textualization-crystallization realized in Rabbi’s codificatory project is described in the epistle in the following manner:

And authority was bestowed upon Rabbi (from Heaven) together with his Torah, for his entire generation was subservient to him all of his days. As we have learned (b. Git. 59a): Rava the son of R. Abba said, and some say (it was) R. Hillel the son of Rabbi: from the days of Moses until Rabbi, we have not found Torah and authority combined in one person (lit. “in one place”) … In his days, the rabbis were spared all persecution due to the love (Emperor) Antoninus had for him. He (=Rabbi) then decided to arrange/systematize the law, so that the rabbis would recite it uniformly rather than each his own version. Since, those early rabbis before the destruction of the Temple did not require this (=a crystallized version of the Oral Torah) since it is an oral Torah and they did not receive the rationales of known matters in the form of the Written Torah. Rather, the rationales were preserved in their hearts, and each of them taught his students just as a person conveys a matter to his friend in whatever manner of speech he fancies. And as they convened in the Temple and the academies, the legal matters arranged in their hand, with authority and without fear and anxiety, they were aided from Heaven insofar as the underlying rationales of the Torah were as clear to them as the law given to Moses at Sinai … And in the days of Rabbi, their matters were aided, so that the words of the Mishnah were just as they were pronounced by the Almighty and they were like a sign and a wonder. But Rabbi did not compose (these matters) on his own accord (lit. “out of his own heart”). Rather, (they were) the words recited by some of those early rabbis.Footnote 53

The Mishnah’s status as the complete and ultimate textual embodiment of God’s Oral Torah is reflected in the assertion that “the words of the Mishnah were just as they were pronounced by the Almighty.” While Sherira acknowledges and discusses the specific historical circumstances that led to the compilation of the Mishnah by Rabbi many years after the moment of the Sinaitic revelation, he insists on the fact that the final product of the Mishnah reflects the exact words pronounced by God to Moses.

Elsewhere in the epistle, Sherira alludes to social convention and the consensus of the sages and nation at large as constitutive of the Mishnah’s jurisprudential status as the ultimate source of rabbinic law.Footnote 54 In this passage, however, he seems to ground the Mishnah’s unique status in divine providence and inspiration.Footnote 55 Talya FishmanFootnote 56 notes in this regard that Sherira makes unprecedented claims, not only about the legal status of the Mishnah, but also about its theological status, portraying Rabbi as an agent in a divinely guided project aimed at a comprehensive textual articulation of the Oral Torah. It is God who revealed the Oral Torah to Moses at Sinai and it is he who, after many generations, guided the compilation of the Mishnah, so as to systematically articulate its accurate words. The divine characteristics of the Mishnah are manifest, accordingly, in the providential support that accompanied its production, which is reflected in the fact that Rabbi encountered no objection or difficulty, from within or from without the rabbinic community, to hinder his ambitious compilation project. The Mishnah’s “divine” status is further reflected in its textual, stylistic, and organizational “perfection.”Footnote 57 “And when everyone saw the beauty of the Mishnah’s arrangement and the truth of its reasoning and the precision of (its) words, they all abandoned those (other) tannaitic teachings they had been reciting.”Footnote 58

Fishman further notes in this context that Sherira’s allusions to divine guidance and the stylistic and linguistic “perfection” of the Mishnah are reminiscent of contemporaneous Islamic rhetoric concerning the Quran’s inimitability (iʿjāz al-Qurʾān).Footnote 59 Like the Quran’s inimitable and miraculous nature, which is believed to be manifest in its perfect style, the uniqueness of its language, and its concise nature,Footnote 60 Sherira emphasizes the Mishnah’s textual, stylistic, and organizational “perfection” in rather similar terms. While Jewish authors more commonly participated in this type of discourse by arguing for the perfection and conciseness of scripture (often in response to Islamic claims of taḥrīf [“distortion, falsification”]), Sherira seems to extend the contours of this discourse by making similar claims about the Mishnah.

Sherira further grounds the authority of the Mishnah in a myth, according to which the closure and canonicity associated with Rabbi’s codificatory project were predestined and prophesied in the “Book of Adam:”Footnote 61 “As explained in the Book of Adam: Rabbi and R. Nathan are the end of Mishnah.”Footnote 62

The narrative and mythical framework in which Sherira couches his jurisprudence lends itself to a “Coverian” analysis focused on the interplay of nomos and narrativeFootnote 63 and the grounding of legal cultures in constitutional “myths.”Footnote 64 In line with Robert Cover’s view of the normative sphere as one defined not only by statutes and legal institutions but also by narratives and myths providing meaning to the law, I read the providential support guiding Rabbi’s codificatory project, the miraculous alignment of the Mishnah’s wording with the Sinaitic articulation of the Oral Torah, and the predestination of Rabbi’s endeavors prophesied in the “Book of Adam,” as the narrative context for Rav Sherira’s jurisprudence. In this framework, the textual-statutory confinement of the Oral Torah and the view of the Mishnah as “authored” and articulated by God are confirmed and validated through the narrative and mythical framework.Footnote 65

Rav Sherira’s jurisprudential claims on behalf of the Mishnah, however, are not simply upheld by the mythical and narrative framework. While the miraculous and divine characteristics of the Mishnah indeed support its unique status, it is not entirely clear how the myths surrounding the Mishnah square with its jurisprudential construction as the ultimate source of Jewish law. Does the Mishnah’s exclusive jurisprudential status rest on its divine and miraculous qualities or on the positivist notion of social convention reflected in the consensus of the sages and nation at large. As in Cover’s model, the sphere of narrative and myth does not simply and uncomplicatedly uphold the nomos, but rather often problematizes its very assumptions.

Sherira’s declaratory statements concerning the divine nature, not only of the Oral Torah per se, but also of its textual articulation in the Mishnah, reflect a “stenographic” model of revelation and a rhetoric of divine “authorship” of the law, as opposed to weaker interpretations of the law’s divine origins underlying the “participatory” model of revelation. This seems to accord with the rhetoric of other late Geonic authorities, most notably Saʿadya, whose claims on behalf of God’s “authorship” of the Oral Torah were often described as rhetorical overstatements/exaggerations, likely motivated by the Karaite challenge to rabbinic authority.Footnote 66 The revelatory model upheld by Saʿadya reflects the comprehensiveness and singularity of the Sinaitic revelation, the content of which might be “retrieved” by jurists, but is not “constituted” by them, and the rejection of “participatory” interventions in the content revealed.Footnote 67 Sherira’s assertions to that effect might similarly be construed as ideologically motivated rhetoric countering Karaite claims.Footnote 68

It must be stressed that the assertion of the textual-statutory demarcation of the Oral Torah (however rhetorical and hyperbolic) represents an unprecedented claim in rabbinic thought. The (few) talmudic sources that clearly subscribe to a theory of a dual Torah given at Sinai, one in writing and the other orally,Footnote 69 provide a rather loose definition of the content of this amorphous body of rabbinic tradition.Footnote 70 In fact, in as much as the textual and substantive limits of the Oral Torah remain undefined in the classical talmudic sources, any rabbinic tradition can tendentiously be subsumed under its authoritative wings. Any rabbinic tradition, be its source and origin as it may, can simply be integrated into the inchoate body of Oral Torah revealed at Sinai.Footnote 71 With the exception perhaps of a few talmudic statements,Footnote 72 the Oral Torah represented for the classical rabbis a dynamic and living tradition, not one that is textually and literarily demarcated and confined.Footnote 73

By contrast, Sherira’s innovative declaration (however exaggerated or overstated) regarding the Mishnah’s exclusive status as the textual-statutory embodiment of the Oral Torah,Footnote 74 underwritten by the theological assertion that God himself guided and ordained the Mishnah’s composition, has far-reaching ramifications on the theoretical perception of the law. Indeed, the idea that the law is textually confined is consistent with legal formalism and the (formal) principles of legality, both of which are largely uncharacteristic of the talmudic worldview. The epistle, moreover, does not simply assert the jurisprudential status of the Mishnah (and Talmud) as the ultimate and complete embodiment of God’s law, but also represents an attempt to articulate the historiographic, mythical, and theological underpinnings of this stance.

While the Mishnah’s perceived stylistic, linguistic, and organizational “perfection” might be regarded as more conducive to Sherira’s presentation of it as a binding and canonical legal “code” containing the ultimate articulation of God’s Oral Torah,Footnote 75 the Talmud is another story altogether. While the Talmud was, more or less, textually fixed by the time of Rav Sherira (that is, in terms of its content, sequence, and general order, notwithstanding ongoing lexical fluidity),Footnote 76 it hardly resembles a legal “code” in any meaningful sense.Footnote 77 And yet, Sherira (in line with other late Geonic authorities) portrayed the Talmud – alongside the Mishnah – (however rhetorically) as a canonical and binding statutory “code” and the ultimate source of Jewish law. Indeed, not unlike the textual-statutory demarcation of the Oral Torah in the text of the Mishnah, “They (=the Geonim) did battle not merely on behalf of an amorphous body of tradition, but also on behalf of a specific literary crystallization, the Babylonian Talmud, which serves as the flagship of that tradition … the Talmud served as the source of authority, from which almost all legal decisions were to be derived.”Footnote 78

As in the case of the Mishnah, Sherira provides us with a theological, mythical, and narrative framework for the unique canonical status of the Talmud. In this context, the epistle maintains a structural and thematic equivalence between the historical processes and conditions that led to the composition of the Mishnah by Rabbi and those which led to the redaction of the Talmud by Ravina and Rav Ashi. Sherira emphasizes, moreover, that, much like Rabbi, Rav Ashi enjoyed the undivided subservience of his colleagues, employing the very same phraseology to portray the two monumental projects. There is even a hint at divine providence, which ostensibly accompanied and guided the redaction of the Talmud by Ravina and Rav Ashi:

During all those years from after (the time of) Rav Papa, Rav Ashi was Gaon at Sura and he had come to Mata Mehasya … and his Torah and authority were affluent and abundant. And Huna bar Nathan, who was the exilarch during his days, and Maremar and Mar Zutra who came after him, were all subordinate to Rav Ashi … as we learned: “Rav Aha the son of Rava said: we too may say that from the days of Rabbi until Rav Ashi, we have not found Torah and authority combined in one person (lit. ‘in one and the same place’)”.Footnote 79

Sherira further asserts that, just like Rabbi’s codification project, the canonization and closure associated with Ravina and Rav Ashi’s redactorial project were predestined and revealed in the Book of Adam. Indeed, after Ravina and Rav Ashi legislative instruction ceased, while only interpretation and analogical-inductive reasoning based on the canonical sources remained within the purview of legitimate juristic activity.

In this manner, (rabbinic) instruction accumulated generation after generation until Ravina at whose time it ceased. As Samuel, the astronomer, had seen written in the Book of AdamFootnote 80: Ashi and Ravina are the conclusion of instruction. And after (this), although there was no instruction, there were interpretations and logical inferences, which are close to instruction, and those rabbis were called rabbanan sabora’e (lit. “the rabbis who conduct logical inferences”).Footnote 81

The epistle thus stresses the normative and theological equivalence between the canonical status of the Mishnah and that of the Talmud. By asserting that the composition and redaction of the Talmud was divinely guided, predestined, and socially ratified, Sherira lays the foundation for the unique jurisprudential status of the Talmud, alongside the Mishnah, as the ultimate source of Jewish law and the exclusive and complete textual articulation of God’s Oral Torah.

III Shāfiʽī and the Textual-Statutory Demarcation of Islamic Law

Shāfiʽī is often credited in the literature as the “architect” of Islamic jurisprudence and the promulgator of the “four-sources” theory of Islamic law – that is, the idea that Islamic law is based on four “roots”: Quran, Hadith, consensus (ijmāʽ), and analogy (qiyās).Footnote 82 It has correctly been noted, however, that, since consensus and analogy are in fact viewed by him as subordinate to, and dependent on, the textual sources and not as independent sources of law from which new directives can be derived, they should not be regarded as “official” sources of Islamic law, certainly not on a par with the Quran and Hadith.Footnote 83

Joseph Lowry has argued in this regard that the various combinations of Quran and Hadith indicated by the concept of bayān lies at the heart of the jurisprudential theory presented in Shāfiʽī’s epistle.Footnote 84 According to this theory, the entirety of the law resides in the complementarity of Quran and Hadith, while all legal norms are necessarily and by definition manifested through one of five possible combinations of these sources: (1) Quran alone; (2) Quran and Hadith together, each expressing the same rule; (3) Quran and Hadith together, whereby the Hadith elaborates that which is only briefly mentioned in the Quran; (4) Hadith alone; (5) and, finally, in case the law is not manifest in either the Quran or the Hadith, one is authorized to engage in ijtihād (legal reasoning) and qiyās (analogical-inductive reasoning) based on strict inferences from the Quran and Hadith. Thus, according to Shāfiʽī, only the textual-statutory sources (i.e., the Quran and Hadith) should be regarded as binding legal sources.

Shāfiʽī’s legal theory – namely, the idea that the Quran and Hadith enjoy an exclusive position as the primary sources of Islamic law, while consensus and legal reasoning are subordinate to the authority of the textual-statutory sources – was developed against the foil of competing theories, which recognized other legal sources as independent sources of law on a par with the Quran and Hadith. At the risk of oversimplification, early Islamic legal theory can be described as divided along the lines of legal “rationalists” (ahl al-ra’y), who used reason in addition to textual sources to determine the law, and legal “traditionalists” (ahl al-ḥadīth), who relied exclusively on the textual sources, the Quran and Hadith, to determine the law. The camps of legal “traditionalists” and “rationalists” represent in fact two extremes, while most jurists occupied a range of attitudes situated in between the two poles.Footnote 85 The followers of al-Ẓāhirī were regarded as the most extreme “traditionalists,” insofar as they relied exclusively on the manifest meaning of the Quran and rejected, not only the use of independent reasoning/discretion (ra’y), but also more restricted forms of logic included under the rubric of qiyās.Footnote 86 Close by were the followers of Ibn Ḥanbal.Footnote 87 The early Ḥanafīs were situated on the opposite end of the spectrum, as they tended to embrace a relatively wide range of legal practices associated with reason and discretion, which extended far beyond the strict use of analogical-inductive reasoning (qiyās).Footnote 88 Shāfiʽī, who launched a systematic critique of the early Ḥanafī use of arbitrary forms of reason, offered a “compromise,” rejecting those dimensions of ra’y that were associated with subjective and independent reasoning, while accepting the doctrine of qiyās in the sense of strict analogical-inductive reasoning based on the textual sources. Thus, he asserts:

No one may express an opinion except on the basis of analogy (قياس) … “Do you yourself,” he continued, “permit someone to say: I employ preference without analogy” (استحسن بغير قياس)? “In my view,” I replied, that is not permissible for anyone – though God knows best. Only scholars should express any such opinions at all, not others, and they should express opinions that are related to a report (الخبر) by following such a report, and in situations in which there is no report, by analogizing from a report (بالقياس على الخبر). If it were permissible to invalidate an analogy, then it would be permissible for the rationalists (لاهل العقول), who are not scholars of religious knowledge (اهل العلم), to express opinions, concerning matters for which there is no report according to whatever answer they happen to have at hand based on preference (من الاستحسان). Opinions given on the basis of anything other than a report or analogy are impermissible (وإن القول بغير خبر ولا قياس لَغَير جائز).Footnote 89

Shāfiʽī also rejected Ibn ʽUlayya’s (d. 834) view of consensus (ijmāʽ) as an independent legal source and insisted, in contrast to the view of Ibn Ḥanbal and others who accepted a broad definition of Hadith, that only authentic Prophetic Hadith should be deemed authoritative and binding.Footnote 90 In the present context, it is particularly instructive to examine Shāfiʽī’s jurisprudential theory against the backdrop of the ideas espoused by his former master, Mālik b. Anas (d. 796), according to whom the ongoing communal practice and collective tradition of Medina, the city of the Prophet, vouchsafed and preserved by the Medinan scholars and those who received from them, should be regarded as a jurisprudential source of law and an independent site of revelation, alongside the Quran and Hadith.Footnote 91 The authority vested in the Medinan tradition can be described as customary, bottom-up, communal, memetic (taqlīd-based), and deontic, in contrast to the textual, top-down, hermeneutic (ijtihād-based), and epistemic nature of legal authority in Shāfiʽī’s jurisprudence.Footnote 92 While the early theory of legal authority espoused by Mālik is largely consistent with the perception of legal authority found in the Talmud,Footnote 93 Shāfiʽī’s construction of legal authority is more compatible with the rhetorical assertions of the late Geonim, most notably those of Saʿadya and Sherira.

In opposition to Mālik’s reliance on bottom-up communal practice (ʽamal) as an independent source of law and carrier of revelation, Shāfiʽī sought to ground the entirety of Islamic law in the textual and revelatory authority vested in the Quran and Prophetic Hadith. The mimetic following of Medinan tradition was viewed by him as a negative form of taqlīd (imitation), contrasted with ijtihād (legal reasoning), which he understood as “the acceptance of a position without (textual-hermeneutic) evidence” (qabūl qawl bi-lā ḥujja).Footnote 94

While Mālik exerted some influence on Shāfiʽī in the earlier stages of his career, in his final years, Shāfiʽī’s critique of Mālik’s communitarian construction of Islamic law and the jurisprudential and revelatory significance attached to Medinan practice (ʽamal ahl al-madīna) matured into a comprehensive polemical treatise entitled Ikhtilāf Mālik (“Disagreement with Mālik”), which was integrated into the Umm (8:513–778).Footnote 95 In a passage contained in this work, Shāfiʽī points out the tendentious, amorphous and ambiguous employment of ʽamal by his Mālikī interlocutors:

So, I cannot comprehend what you mean when you say ʽamal, nor do you seem to know it yourself according to what you have told me, nor could I find clarification with any one of you about what ʽamal or consensus (ijmāʽ) are. I am forced to conclude, then, that you simply call your own opinions ʽamal and consensus (ijmāʽ).Footnote 96

In another passage, Shāfiʽī writes:

I used to hold this opinion with this justification, but I stopped doing so, and may God grant me what is best; because I found some of them [the Medinans] claiming it as tradition (sunna), but then I did not find their claimed tradition to reach back to the prophet.Footnote 97

This assertion highlights the significance Shāfiʽī attached to the textual basis of received tradition. Not unlike Sherira who stressed the reciprocal relationship of the textual-statutory sources and the established rabbinic tradition vouchsafed in the official custom of the two Geonic academies and courts, Shāfiʽī insisted on the reciprocity of received tradition and its textual-statutory embodiment in the form of reliable hadith-reports, in which context tradition is sifted through text and the textual reports are, in turn, validated and confirmed through an unbroken chain of tradition (isnad).

Ahmed El-ShamsyFootnote 98 argued that Shāfiʽī’s epistle on legal theory represents a watershed in Islamic jurisprudence, insofar as the locus of legal authority is transferred in it from the living practice of the Muslim community to an increasingly demarcated canon of textual sources. Prior to Shāfiʽī, the Quran and sunna represented the “raw material” of religious law, vouchsafed in a vague notion of revelation, but, in no way, were regarded as the sole canonical embodiment of God’s revelation. In this context, the Quran and sunna were continuously sifted through the filters of communal practice, local custom, and judicial discretion. Shāfiʽī’s project of legal and theological canonization of the Quran and HadithFootnote 99 validated their authority as the very fountain of Islamic normativity and embodiment of God’s revelation.

Shāfiʽī’s theory of the textual confinement of God’s law and the elevation of the Quran and Hadith to canonical status as the exclusive sources of Islamic law and ultimate embodiment of divine revelation can shed light on Sherira’s rhetoric surrounding the textual-statutory confinement of God’s law in the text of the Mishnah-cum-Talmud. Both Sherira and Shāfiʽī voiced a clear formalist and legalistic rhetoric connected with the textual-statutory demarcation of the law and its perception as exhaustive, comprehensive, and self-sufficient. Both authors further manifested a discursive shift from communitarian, interpersonal, mimetic, customary, and deontic legal authority to textual, impersonal, hermeneutic, and epistemic legal authority focused on the exclusivity of the textual-statutory sources.

IV The Textual-Statutory Demarcation of Zoroastrian Law

Not unlike their Jewish and Islamic contemporaries, Zoroastrian jurists in the early Abbasid period similarly engaged in a “positivist” enterprise aimed at identifying the authoritative sources of Zoroastrian law. In this context, a formalist and legalistic rhetoric, confining the official sources of the law to a textual-statutory corpus, came to dominate “mainstream” Pahlavi literature. The Zoroastrian jurists sought to establish the normative and theological canonicity (and the textual contours) of the Avesta and Zand as the exclusive and complete articulation of Ohrmazd’sFootnote 100 revelation of his law (Pahlavi dād; Avestan and Old Persian dāta-)Footnote 101 and tradition (Pahlavi dēn; Avestan daēnā)Footnote 102 to Zarathustra.Footnote 103 While the Zand itself goes back to the Sasanian period and probably earlier,Footnote 104 the ninth- and tenth-century Zoroastrian authors elevated the Zand to canonical and “official” status, both normatively and theologically, and demarcated its substantive boundaries alongside the Avesta.

According to several accounts preserved in the Dēnkard, the Zand was revealed to Zarathustra in its entirety together with the Avesta, much like the rabbinic attempt to trace both the Written and Oral Torah back to Sinai and Shāfiʽī’s argument that the revelation of the Book and Wisdom means the Quran and Prophetic Sunna (concretized in the Hadith). In a manner quite similar to Sherira’s portrayal of Rabbi’s endeavor to recover and retrieve the dispersed content of the Oral Torah revealed to Moses at Sinai (and Ravina and Rav Ashi’s attempt to retrieve the underlying reasons of the Mishnah’s rulings), the Dēnkard portrays a multigenerational project of rediscovery and retrieval of the lost/contaminated contents of the Avesta and Zand undertaken by a series of Iranian kings and sages, highlighting significant moments in this process:Footnote 105

Dārāy, son of Dārāy, having committed to writing the entire Avesta and Zand as it had been received by Zarathustra from Ohrmazd, commanded two copies to be made – one to be kept in the gubernatorial treasury and one in the Fortress of Books.

Walaxš, son of Aškān, commanded a memorandum to be made and sent to the various provinces with orders for the safekeeping of the Avesta and Zand as it had come down in unadulterated form, as well as the teachings – to the extent each had escaped the harm and chaos caused by Alexander and the pillaging and robbing by the Romans and were now scattered throughout Erānšahr – They remained with the sages in writing, but also in oral transmission.Footnote 106

His majesty Ardashir, king of kings, son of Pābag, guided on the straight path by Tansar, asked that all those scattered teachings be brought to the court. Tansar took charge: some he received, and some he left out of the “canon.” And he issued the following order: As far as we are concerned, any exposition that differs from that in the Mazdayasnian Tradition, but which provides awareness and knowledge, is not inferior.

Shapur (I), king of kings, son of Ardashir, brought back together the writings outside the Tradition on medicine, astrology and astronomy, time and place, nature and accident, becoming and decaying, transformation, logic and the many other crafts and skills that were scattered in India, Rome, and other lands. He compared them with the Avesta and ordered any blemish-free copy to be given to the gubernatorial treasury. And he put up for discussion whether to place with the Mazdayasnian tradition all those that were not contaminated …

Shapur (II), king of kings, son of Ohrmazd, brought everything that was said up for discussion and examination in the dispute with all of the countrymen regarding what constitutes contamination of the waters. After Adurbād escaped unharmed by the word of the ordeal, he said this too (in dispute) with both those (regular) heretics and Nask-studying heretics. And he also said: “Now, we have seen in this world, unless a person leaves his evil Tradition, we shall work on him diligently (to see that he does).” And, so he did.

The present majesty, Xusrō, king of kings, son of Kawād, it is told, when he had overcome heresies and false doctrines by fully opposing them, he increased greatly, according to what was manifest in the Tradition, in every heresy the awareness and detailed examination of the four branches (priests, soldiers, farmers, artisans).

Scholars have previously noted the motif of lost/scattered Iranian wisdom recovered by a series of figures, a trope attested in numerous accounts in Middle Persian, New Persian, and Arabic,Footnote 107 while also stressing the affinity between the Iranian trope and similar Jewish traditions concerning the retrieval of the lost wisdom of the Hebrews.Footnote 108 In the present context, I note that the Dēnkard’s emphasis on the process of retrieving the scattered contents of the Avesta and Zand,Footnote 109 which were “stenographically” recorded by Zarathustra from the mouth of Ohrmazd and handed down “in unadulterated form” from generation to generation, is reminiscent of Sherira’s portrayal of the multigenerational transmission/retrieval of the Oral Torah and particularly the involvement of Rabbi, and Ravina and Rav Ashi, in this process. The emphasis on fighting off heresy and false doctrineFootnote 110 (and particularly disbelief in the authoritativeness of the Zand itself)Footnote 111 is similarly reminiscent of the Karaite challenge to rabbinic tradition, which seems to underlie (at least in part) Sherira’s agenda in composing his epistle.Footnote 112

The Dēnkard’s account clearly reflects a “retrieval” model of legal transmission and a “stenographic” theory of revelation, according to which the extant Zoroastrian Tradition is the result of retrieval and preservation of that which has already been received in complete form by Zarathustra (hamāg abestāg ud zand čiyōn zarduxšt az ohrmazd padīrift; “the entire Avesta and Zand, as it had been received by Zarathustra from Ohrmazd”).

This perspective, to be sure, is novel.Footnote 113 The structure of the surviving works of ZandFootnote 114 (redacted circa the late Sasanian period) generally reflects a “cumulative” model of legal transmission (which may be connected with a “participatory” paradigm of revelatory theology), according to which each generation adds another layer of tradition and participates in an ongoing effort to “constitute” the revelatory content. In that sense, even the insights of later jurists are introduced in the Zand with the formula pad abestāg paydāg (“in the Avesta it is manifest”).Footnote 115 According to the pre-Abbasid scheme, the jurists were perceived as legislators partaking in the creation of Zoroastrian law.Footnote 116 The Dēnkard’s account, by contrast, echoes a legal-theological shift in Zoroastrian thought towards a stenographic-retrieval model of legal revelation, one which is likely informed by the legal and theological shifts that took place in the Islamic and Jewish legal cultures of the time, as reflected, in the thought of Sherira and Shāfiʽī.

Several Pahlavi texts describe a council/convention headed by the Sasanian king Xusrō that is said to have taken place in the sixth century. An illuminating version of this event, found in the letters of Mānuščihr, maintains that Xusrō and his council of jurists were essentially responsible for the canonization of the corpus of Avesta and Zand and the demarcation of its literary contours and legal contents:Footnote 117

It was like when Weh-šābuhr showed in the assembly of Xusrō of immortal soul, king of kings, son of Kawād, the twenty-one divisions (of the Avesta and Zand)Footnote 118 so that the “sages” (lit. “magi”) abided by it. And they sealed a document (nibišt āwišt)Footnote 119 so that it was the way the “sages” (lit. “magi”) (agreed) with it and as it had been decided. And, afterwards, the “sages” (lit. “magi”) agreed with all the decisions he showed them and they were unanimous (ham-dādestān): to regard (them) as something special, as being on the level of certainty,Footnote 120 and in firm usage.Footnote 121

In line with Sherira’s account of the canonization of the Mishnah by Rabbi and that of the Talmud by Ravina and Rav Ashi, Mānuščihr envisions the canonization of the Avesta and Zand by Weh-šābuhr, a Zoroastrian jurist and high-priest (mowbedān mowbed) who lived during the sixth century,Footnote 122 as a “constitutional” moment in legal and revelatory history. Much like the authorization of the Mishnah’s codification by Antoninus, Mānuščihr stresses that the canonization of the Avesta and Zand took place at a council summoned by the Sasanian King Xusrō and was thus authorized by his majesty.Footnote 123 Mānuščihr further emphasizes the unique legal and theological status of the Avesta and Zand, which were (now) believed to contain the binding and complete articulation of God’s revelation, pointing out that the jurists agreed “to regard (them) as something special, as being on the level of certainty, and in firm usage.” Sherira and Mānuščihr similarly stress the submission of Weh-šābuhr’s, and Rabbi’s (and Ravina and Rav Ashi’s), colleagues and their yielding to the canonization project; both stress the idea of finality and closure connected with the “sealing” of the canonized works; and, finally, both authors emphasize the consensus and unanimity of the jurists.

The legal and theological canonicity accorded by Mānuščihr to the Avesta and Zand and that accorded by Sherira to the Mishnah-cum-Talmud are similar in many ways to the claims made by Shāfiʽī regarding the status of the Quran and Hadith. All three authors seem to participate in the elevation of their respective sacred works to canonical status in a normative and theological sense, while attempting to demarcate and confine God’s law to a textual corpus. They share a formalist and legalistic rhetoric, connected with the textual-statutory confinement of the law, its comprehensiveness, and self-sufficiency. They similarly advocate a strong “authorial” interpretation of the law’s divinity, and display a “retrieval” model of legal transmission in which the jurists are entrusted merely with unearthing and discovering that which has already been revealed by God. The “councils” surrounding the canonization projects similarly serve the purpose of grounding the formalist and legalistic jurisprudential rhetoric of these authors, connected with the textual-statutory confinement of God’s law, in a founding myth.

In his letters, Mānuščihr launched a scathing attack directed at his brother Zādspram, himself a jurist and high-priest, for seeking to relax the requirements of the baršnūm ceremony – an Avestan purification ritual lasting nine days and nights prescribed for the removal of severe contamination (especially corpse impurity)Footnote 124 – utilizing in its stead a much simpler ceremony (pixag) consisting merely of fifteen ablutions, which was initially prescribed for lighter forms of ritual impurity.Footnote 125 Among other things, Mānuščihr criticizes his brother Zādspram for relying on subjective and independent reasoning (“for he [=Zādspram] spoke his own view as it seemed to him” [čē-š wēnišn xwēš čiyōn-iš sahist guft])Footnote 126 that is not backed up by the textual-statutory sources. Mānuščihr further asserts: “The other things he [=Zādspram] wrote in connection with this – except for those (decisions) which are ‘manifest’ to him to be the words of Abarg and (contained) in (at least) one teaching (čāštag) among them – he adjudicated as it seemed to him and as he deemed (fit) (sahist ī čiyōn-iš wizīrēnīd).”Footnote 127 Mānuščihr seems to be accusing his brother Zādspram of issuing legal decisions on the basis of his own subjective reasoning and what seems to him (sahist) – rather than on the basis of the textual-statutory sources (the Avesta and Zand) – at least insofar as those decisions in which he does not rely on the teachings of Abarg and the other teachers of old recorded in the Zand.Footnote 128

Read in the light of contemporaneous debates among Muslim and Jewish jurists regarding the jurisprudential and juridical status of reason, logic, and discretion, it would seem that the disagreement between Mānuščihr and Zādspram, two of the foremost jurists of the Zoroastrian community of Iran in the ninth-century, should be understood along similar lines. Mānuščihr, in line with the mainstream of legal “traditionalists,” argues that the law is based on the textual-statutory sources, whereas Zādspram seems to have recognized independent reasoning based on subjective discretion as a legitimate source of adjudication. It is, admittedly, somewhat difficult to reconstruct the actual position of Zādspram, whose part of the correspondence (and other legal writings) did not survive.Footnote 129 But even to the extent that Mānuščihr might have misrepresented his brother’s actual position, using him perhaps as a straw man (not unlike certain Shāfiʽī attacks on Ḥanafī doctrine), the letters of Mānuščihr provide an indispensable glimpse into the legal theoretical discourse and concerns of Zoroastrian jurists in the ninth century. As such, Mānuščihr’s juxtaposition of two competing theories of jurisprudence and adjudication, corresponding with the contemporaneous camps of legal “traditionalists” and “rationalists,” however inaccurately attributed to individual jurists, constitutes an invaluable source for the reconstruction and contextualization of Zoroastrian legal theory within the broader legal theoretical “landscape” that pervaded the Islamicate Near East in the early Abbasid period.Footnote 130

V Conclusion

In this article, I hope to have contributed to the unsettling of the Western bifurcation inherent in the “law and religion” paradigm, by examining the overlapping functions of the two categories as two sides of the same coin – law as religion, religion as law – in Jewish, Islamic, and Zoroastrian discussions of legality and revelation in the early Abbasid period. In this context, we saw that “religious” or “revelatory” rhetoric work in tandem to reflect a coherent jurisprudential view. In all three systems, we traced a process of theologization of the law (i.e., advocacy of strong “authorial” models of revelation and “retrieval” models of legal transmission, while minimizing in the process the role of human agency in effecting the content of revelation), on the one hand, and a process of textual demarcation and confinement (giving rise in embryonic fashion to the principle of “legality” entailing the law’s prospectiveness and stability), on the other hand.

We saw that Sherira, Shāfiʽī, and Mānuščihr played a particularly significant role in framing and articulating the stakes of the normative and theological canonization of their respective religious traditions, by insisting on the textual confinement of God’s revelation – as pronounced at the initial revelatory moment in unadulterated form – in the Mishnah-cum-Talmud, Hadith, and Zand, corpora which soon enough came to be regarded as the exclusive, complete, and authoritative articulations of the law (alongside the Torah, Quran, and Avesta). Indeed, the parallel diachronic shifts in each of these religious traditions point to a broader legal-theological turn in the Islamicate culture of the early Abbasid period, which has major implications for mapping the history of the dynamics of law and religion.

Footnotes

14 Law as a Problematic Aspect of Religion Paul’s Skepticism in a Broader Jewish Context

1 Ed P. Sanders, Paul and Palestinian Judaism: A Comparison of Patterns of Religion (Philadelphia: Fortress Press, 1977). See also Ed P. Sanders, “‘A Covenant to the People, a Light to the Nations’: Universalism, Exceptionalism, and the Problem of Chosenness in Jewish Thought,” Jewish Studies Quarterly 16.1 (2009): 2355.

2 The equation that would be later propagated by Philo, see discussion in Christine Hayes, What Is Divine about Divine Law? (Princeton and Oxford: Princeton University Press, 2015), 122–24. That the outlines of universal law were available to the Gentiles without the Torah and thus they are responsible for fulfilling it, seems to be indicated in Rom 2:12: “All those who sinned without the law/Torah will also perish without the law/Torah.”

3 Thus the author characteristically insists – in a balancing act compensating for the tragic Stephen episode in Acts 7 – that not only the first Jerusalem-based apostles but also Paul, returning to the city in the wake of his praiseworthy missionary successes among the non-Jews in the Diaspora, remained faithful to the Temple, undoubtedly the core element of Jewish ritual observance of the day (Acts 2:46; 21:26). See Hans Conzelmann, Acts of the Apostles: A Commentary on the Acts of the Apostles (Hermeneia; Philadelphia: Fortress, 1987), 24. For discussion of the narrative strategies throughout Acts, see, for example, Steven G. Wilson, The Gentiles and the Gentile Mission in Luke-Acts (Cambridge: Cambridge University Press, 1973); Robert L. Brawley, Luke-Acts and the Jews: Conflict, Apology, and Conciliation (Atlanta, GA: Scholars Press, 1987); Serge Ruzer, “Crucifixion: The Search for a Meaning vis-à-vis Biblical Prophecy. From Luke to Acts,” in Mapping the New Testament: Early Christian Writings as a Witness for Jewish Biblical Exegesis (Leiden: Brill, 2007), 187–99. See also Justin Taylor, “Paul and the Jewish Leaders at Rome: Acts 28:17–31,” in Paul’s Jewish Matrix, eds. Thomas G. Casey and Justin Taylor (Rome: Gregorian and Biblical Press, 2011), 311–26. But cf. Martin Hengel, “The Beginnings of Christianity as a Jewish-Messianic and Universalistic Movement,” in The Beginnings of Christianity: A Collection of Articles, eds. J. Pastor and M. Mor (Jerusalem: Yad Ben-Zvi, 2005, 85100; Martin Hengel, The Atonement: The Origins of the Doctrine in the New Testament (Philadelphia: Fortress Press, 1981). In Hengel’s view, the insight that the fulfillment of Torah ritual demands in general (and, more specifically, those connected to Temple worship) has lost its ability to effect forgiveness of sins and a place in the world-to-come, constituted a salient marker of the early Jesus movement as a whole almost from its inception, and thus distinguished it from broader Judaism.

4 See Acts 15:21.

5 The English quotations from the Old and New Testaments throughout this chapter are from the RSV.

6 For discussion of the nature of the “Galatian crisis,” see, for example, Francis Watson, Paul, Judaism, and the Gentiles: Beyond the New Perspective (Grand Rapids, MI; Eerdmans, 2007), 100–08.

7 See James D. G. Dunn, “Works of the Law and the Curse of the Law (Galatians 3:10–4),” NTS 31.4 (1985): 523–42. For a criticism of Dunn’s thesis, see Charles E. B. Cranfield, “The Works of the Law in the Epistle to the Romans,” JSNT 43 (1991): 89101; Dunn’s response is found in his Yet Once More ‘The Works of the Law’: A Response,” JSNT 46 (1992): 99117.

8 4Q398 (4QMMT e), Frags. 14–17, 2:2–8; 4Q399 (4QMMT f), 1:11. See Dunn, “Works of the Law”; Joseph A. Fitzmyer, “Paul’s Jewish Background and the Deeds of the Law,” in According to Paul: Studies in the Theology of the Apostle (Mahwah, NJ: Paulist Press, 1993), 835, esp. 21–23. For a variety of appraisals – mostly differing from Dunn’s – of the link observed here between Paul and 4QMMT, see Martin G. Abegg, Jr., “Paul, ‘Works of the Law’ and MMT,” BAR 20:6 (1994): 5261, 82; idem, “4QMMT, Paul, and ‘Works of the Law’,” in The Bible at Qumran: Text, Shape, and Interpretation, ed. Peter W. Flint (Studies in the Dead Sea Scrolls and Related Literature; Grand Rapids, MI: Eerdmans, 2001), 203–16, esp. 205–06; Tom N. Wright, “Paul and Qumran,” BR 14.5 (1998): 1854, esp. 54; Jacqueline C. R. de Roo, “The Concept of ‘Works of the Law’ in Jewish and Christian Literature,” in Christian-Jewish Relationships through the Centuries, eds. Stanley E. Porter and Brook W. R. Pearson (Sheffield: Sheffield Academic Press, 2000), 116–47. It deserves notice that it is in this context that Paul moves to talk about Abraham, for whom his faith “was reckoned as righteousness” (Gen. 15:6) long before he was circumcised (Gal. 3:6–9).

9 See, for example, Krister Stendahl, Final Account: Paul’s Letter to the Romans (Minneapolis, MN: Augsburg Fortress, 1995); John Gager, Reinventing Paul (Oxford: Oxford University Press, 2000), 4375; Paula Fredriksen, “Judaism, the Circumcision of Gentiles, and Apocalyptic Hope: Another Look at Galatians 1 and 2,” JTS 42 (1991): 532–64.

10 As, for example, in 1 Cor. 10:14–22.

11 See Isa. 2:1–4; Paula Fredriksen, “Judaism, the Circumcision of Gentiles.” Correspondingly those are, in fact, Paul’s opponents within the Jesus movement, insisting on “Judaizing” Gentiles who have embraced Jesus as the Messiah of Israel, who act as innovators here. Their stance may be seen as a reaction to the perceived delay in the arrival of the end and the corresponding changes in the projected redemption scenario – a longer historical perspective or, alternatively, the upcoming catastrophic phase of wars and disasters – with both perspectives engendering a need for socially consolidating the Jesus movement (Footnote ibid., pp. 558–61).

12 This is, apropos, the approach reflected in Romans 1.

13 According to this new approach, the age-long erroneous perception of Paul as a rebel against the Torah is a result of an anachronistic reading of his epistles in light of a later Christian outlook that emerged in different socio-historical circumstances of a clear-cut division and border marking. For example, Fredriksen has highlighted that some later notions emerging in the wake of and as a reaction to the destruction of the Temple, with Jewish followers of Jesus being gradually marginalized, were completely foreign to Paul’s thinking. See Paula Fredriksen, “Paul, Purity, and the ‘Ekklesia’ of the Gentiles,” in The Beginnings of Christianity, eds. J. Pastor and M. Mor (Jerusalem: Yad Ben-Zvi Press, 2005) 205–17, esp. 215–16.

14 See Serge Ruzer, “Paul’s Stance on the Torah Revisited: Gentile Addressees and the Jewish Setting,” in Paul’s Jewish Matrix, eds. Thomas G. Casey and Justin Taylor (Rome: Gregorian & Biblical Press, 2011), 7597.

15 See R. H. Charles (ed.), Letter of Aristeas (Oxford: The Clarendon Press, 1913), 139–68.

16 Philo, Migration of Abraham 89–93 (emphasis added).

17 Footnote Ibid., 89–93.

18 Hayes, What is Divine about Divine Law?, 124 (emphasis in original).

19 Cf. Matt. 23:23 “Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cummin, and have neglected the weightier matters of the law, justice and mercy and faith; these you ought to have done, without neglecting the others.”

20 The English translation of Mishnaic material in this paper follows Herbert Danby, The Mishnah (Oxford: Oxford University Press, 1950).

21 “Whoever then relaxes one of the least of these commandments and teaches men so, shall be called least in the kingdom of heaven; but he who does them and teaches them shall be called great in the kingdom of heaven.”

22 Matt. 23:23: “Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cummin, and have neglected the weightier matters of the law, justice and mercy and faith; these you ought to have done, without neglecting the others.” Cf. ̉Abot 1.1, 3.13 (“the fence around the Torah”). The nature of the dichotomy – or hierarchy – indicated in Matthew 5 warrants further discussion. See Serge Ruzer, “Antitheses in Matthew 5: Midrashic Aspects of Exegetical Techniques,” in Serge Ruzer, Mapping the New Testament: Early Christian Writings as a Witness for Jewish Biblical Exegesis (Leiden: Brill, 2007), 1134.

23 At least in the case of Philo, it is clear that we are not dealing with a polemical response to Paul, but in my opinion the same goes, e.g., for the ruling from m. ʾAvot 2.1.

24 Supposedly, an early reflection of the Rabbinic terminology of אין שיעור (no measure/limitations) – e.g., in y. Yoma 5.4.

25 See, for example, John Murray, The Epistle to the Romans, vol. 1 (Grand Rapids, MI: Eerdmans, 1959), xviiixxii; Norman Perring and Dennis C. Duling, The New Testament: An Introduction (San Diego et al.: Harcourt Brace Jovanovich, 1982), 187; Joseph A. Fitzmyer, Romans: A New Translation with Introduction and Commentary (London: Chapman, 1992), 3134; cf. Gager, Reinventing Paul, 101, who while believing – in accordance with the New Approach tendency – that Romans likewise targets exclusively the Gentile audience, concedes that this epistle does speak “about Jews” too.

26 See Romans 2.

27 See Krister Stendahl, Final Account: Paul’s Letter to the Romans (Minneapolis: Fortress Press, 1995).

28 See, for example, Rom. 3:20.

29 Romans thus presents itself as a continuation of the discussion in Galatians, with Paul striving to clarify his position and “to ward off potential and actual misreadings of his (earlier) arguments” (Gager, Reinventing Paul, 103).

30 Rom. 7:1 (“Do you know, brethren – for I am speaking to those who know the law/Torah … ”) is one more indication of the epistle’s engagement with the concerns of the Jewish component of the community in Rome; see note 26 above.

31 As, for instance, in the Stowers’ claim that “the persona of Romans 7,” for whose sake Paul performs here the speech-in-character act, “can only be a gentile” (Stanley K. Stowers, A Rereading of Romans: Justice, Jews & Gentiles (New Haven & London: Yale University Press, 1994), 277). Stowers bases his assessment, inter alia, on his observation that the “sin as power” pattern of thought, is “not typical of the Hebrew Bible/Old Testament … but rather … of Homer and Greek poets” (Footnote ibid., p. 272), ignoring later, and more relevant, Jewish evidence. See also note 34 below and discussion there. Stowers views Romans as a whole in terms of exclusively Gentile intended audience (Footnote ibid., pp. 32–33, pace, e.g., Wernerm G. Kümmel, Introduction to the New Testament, 17th rev. ed. (Nashville: Abingdon Press, 1975), 307–10).

32 Cf. Fitzmyer, Romans, pp. 473–77, where Romans 7 is understood as presenting the case of the human Ego.

33 See discussion in Serge Ruzer, “The Seat of Sin in Early Jewish and Christian Sources,” in Transformations of Inner Self in Ancient Religions, eds. Jan Assmann and Guy G. Stroumsa (Leiden: Brill, 1999), 151–65.

34 See Ephraim E. Urbach, The Sages: Their Concepts and Beliefs (Jerusalem: Magnes Press, 1987), 472, who argues that such a localization of the sinful inclination in the body – in other words, the dualism of body and soul – while current “in the Hellenistic world, and also in Jewish Hellenism,” was not characteristic of the rabbinic Sages.

35 Whether the “I” of the passage provides a glimpse of Paul’s own autobiographical exposure or represents the “speech in character” rhetorical device only, is an intriguing and much debated question. It is, however, irrelevant for the present discussion (emphasis added).

36 As I suggested in an earlier study, Paul may be here a witness to a pristine phase in a trajectory leading in later rabbinic sources to the idea that each bodily member is tasked with fulfilling the specific commandment assigned to it by the Torah. See Serge Ruzer, “The Seat of Sin.”

37 The English quotation is from the Midrash Rabbah, ed. and tr. by H. Freedman (London: Soncino Press, 1939). See discussion in Serge Ruzer, “The Death Motif in Late Antique Jewish Teshuva Narrative Patterns and in Paul’s Thought,” in Transformations of Inner Self, eds. Assmann and Stroumsa (Leiden: Brill, 199), 151–65, esp. 158–62.

38 In contradistinction to what was until only a few decades ago the traditional view of Paul, which ascribed to the apostle the conviction that the dawn of the messianic era in its very essence heralded a divorce from the Jewish religious outlook centered on the Torah and its commandments. Statements on the Torah’s (partial) validity and absolute holiness were correspondingly explained away as secondary and/or dictated by the needs of the mission. This appraisal had a long history in theological thought – both among Christians, who embraced this position as their own and among Jews (those who paid attention), who disapproved of it, including Judeo-Christians of the early centuries. Its various modifications have also been adopted, mutatis mutandis, by many influential scholars. For a review, see Gager, Reinventing Paul, 3–42. Characteristically, even Alan F. Segal (“Torah and Nomos in Recent Scholarly Discussion,” SR 13:1 (1984): pp. 927) subscribed to this view at an earlier stage, claiming that “Paul deliberately revalued Torah” following “his radical conversion experience” (Footnote ibid., 27). The scholar seems to have later modified this assessment; see Alan F. Segal, Paul the Convert: The Apostolate and Apostasy of Saul the Pharisee (New Haven, CT: Yale University Press, 1990).

39 See Urbach, The Sages, pp. 472–73, 483–85.

40 Ellis Rivkin, “Pharisaic Revolution,” inEllis Rivkin The Shaping of Jewish History: A Radical New Interpretation (New York: Scribner, 1971).

41 Ruzer, “The Death Motif”; “The Seat of Sin,” in Transformations of Inner Self, 151–65, 367–91.

42 It has been suggested that, in fact, Jeremiah already did not view certain elements of the ritual – namely, those pertaining to Temple sacrifices – as part of the obligatory core stipulations. See Moshe Weinfeld, “Jeremiah and the Spiritual Metamorphosis of Israel,” ZAW 80 (1976): 1756, esp. p. 32, who proposes that the prophet might have perceived the new covenant as associated not with formal statutes but exclusively with the “circumcision of the heart.” Jeremiah might have also expressed a broader prophetic tendency to harbor reservations toward the priestly aspect of the Jewish religion.

43 The English translation of Qumranic material in this chapter follows Wilfred G. E. Watson in The Dead Sea Scrolls Translated, ed. F. García Martíne (Leiden: Brill, 1994) (electronic version).

44 See discussion in David Flusser, “The Dead Sea Sect and Pre-Pauline Christianity,” in David Flusser, Judaism and the Origins of Christianity (Jerusalem: Magness, 1988), 2374.

45 Moreover, the gift of the Spirit features in some Qumranic texts as a self-definition of the covenanters. Thus, for example, in fragments of the Damascus Document found at Qumran, “the anointed/messiahs by his/the holy Spirit” or “the messiahs of (his) holy Spirit” (משיחי רוח הקודש/משיחי רוח קודשו) serve as the community’s collective self-definition (See 4Q266 ii, 2:12 (= CD-A 6) and 4Q 270 ii, 2:14). In other passages, a shorter title, “the anointed of the holiness” (משיחי הקודש), denotes the whole community of the covenanters – as distinguished from the Qumranic priestly elite, those belonging to the “Aaronic anointing see, e.g., 4Q266 iii, 2:9; 4Q267 2, 6; 4Q269 iv, 1:2; see Serge Ruzer, “The New Covenant, the Reinterpretation of Scripture and Collective Messiahship,” in idem, Mapping the New Testament, 215–39.

46 The following passage by Philo seems to indicate that a similar emphasis, albeit without a characteristic link to the Spirit, was probed also in a non-eschatological Hellenistic Jewish context: “God has … promoted goodly natures apart from any manifest reason, pronouncing no action of theirs acceptable before bestowing his praises upon them. … the prophet says that Noah found grace in the sight of the Lord God (Gen 6:8) when as yet he had … done no fair deed, etc.” (Philo, Leg. 3.77–79).

47 See note 38 above.

15 When Law Meets Theology Legality and Revelation in the Jewish, Islamic, and Zoroastrian Traditions in the Abbasid Period

1 The literature is vast. See, e.g., Harold Berman, The Interaction of Law and Religion (1974); Harold Berman, Faith and Order: The Reconciliation of Law and Religion (1993); Law and Religion (Gad Barzilai ed., 2007); Perry Dane, Constitutional Law and Religion, in A Companion to Philosophy of Law and Legal Theory 119, 119–22 (2nd ed. Dennis Patterson ed., 2010).

2 John Witte, Jr . & Frank S. Alexander , Christianity and Law: An Introduction 1 (2008). For one recent example of this discourse, see Rafael Domingo, Theology and Jurisprudence: A Good Partnership? 32(1) J.L & Relig. 79 (2017) (arguing for the restoration of a “dialogue” between theology and jurisprudence, since “interactions, synergies, and communication between sciences play an important role in the development of a scientist’s knowledge”).

3 See Joseph David, Jurisprudence and Theology in Late Ancient and Medieval Jewish Thought (2014).

4 Christine Hayes, What’s Divine about Divine Law? Early Perspectives 5489 (2015).

5 This is hardly the only possible reading of Paul. Indeed, Paul’s view of the law is complex, “at times, his attitude toward the law is mildly positive, at times neutral, and at times harshly critical and condemnatory.” (Footnote id., at 141). For the inconsistency in Paul’s treatment of the law see Hayes, Divine Law, Footnote id., at 140–64 and the vast literature cited.

6 See Brent Nongbri, Before Religion: A History of a Modern Concept (2013); Carlin Barton & Daniel Boyarin, Imagine No Religion: How Modern Abstractions Hide Ancient Realities (2016).

7 The literature is vast. See, e.g., Religion, Law and Tradition: Comparative Studies in Religious Law (Andrew Huxley ed., 2002).

8 David Novak, Law and Religion in Judaism, in Christianity and Law, supra Footnote note 2, at 33; The Cambridge Companion to Judaism and Law 2–3 (Christine Hayes ed., 2017).

9 For historical overviews of the period, see Michael G. Morony, Iraq after the Muslim Conquest (1984); Muhammad Q. Zaman, Religion and Politics under the Early ʿAbbāsids: The Emergence of the Proto-Sunnī Elite (1997); Amira K. Bennison, The Great Caliphs: The Golden Age of the ‘Abbasid Empire (2009).

10 The chronological limits of late antiquity are rather elusive. Certain scholars still do not include the rise of Islam within the confines of late antiquity, see, e.g., The Formation of the Islamic World, Sixth to Eleventh Centuries, The new Cambridge History of Islam, Vol. I (Chase F. Robinson ed., 2011). To date, most scholars, however, do include the inception of Islam within late antiquity, see, e.g., Thomas Sizgorich, Narrative and Community in Islamic Late Antiquity, 185(1) Past & Present 9 (2004); Thomas Sizgorich, Violence and Belief in Late Antiquity: Militant Devotion in Christianity and Islam (2008); Robert G. Hoyland, Early Islam as a Late Antique Religion, in The Oxford Handbook of Late Antiquity 1053 (Scott Fitzgerald Johnson ed., 2012). Recently, Lena Salaymeh has suggested extending late antiquity to ca. 800 (while altogether discarding the conceptions of the “formative” and “classical” periods in Islamic legal history). See Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions 78 (2016). In the present context, I use the term “late antiquity” somewhat more conservatively, extending it only to the rise of Islam in the seventh century.

11 That talmudic law amounts to a cohesive legal system, see Hanina Ben-Menahem, Talmudic Law: A Jurisprudential Perspective, in The Cambridge History of Judaism, vol. 4: The Late Roman–Rabbinic Period 877 (Steven T. Katz ed., 2006).

12 For the pre-Islamic date of the Zand and its jurists see, e.g., Alberto Cantera, supra note 12 164239 (2004); Shai Secunda, On the Age of the Zoroastrian Sages of the Zand, 47 Iranica Antiqua 317 (2012). The eighth book of the Dēnkard summarizes the contents of the (mostly lost) twenty-one nasks (“books”) of the Avesta and Zand. But cf. Michael Stausberg, The Invention of a Canon: The Case of Zoroastrianism, in Canonization and Decanonization: Papers Presented to the International Conference of the Leiden Institute for the Study of Religions (LISOR) 257, 264–66 (910 Jan. 1997, Leiden; Arie van der Kooij & Karel van der Toorn eds., 1998) (“the twenty-one nasks of the dēn catalogued in Dēnkard book 8 are an attempt at classifying the entire religious tradition and not specifically the Avestan corpus as has been commonly assumed by the previous generation of scholars”).

13 The Mādayān ī Hazār Dādestān (“Book of a Thousand Judgements”), a collection of real and hypothetical case law, was compiled in the first-half of the seventh century prior to the Islamic conquest of Iran. See Maria Macuch, Rechtskasuistik und Gerichtspraxis zu Beginn des siebenten Jahrhunderts in Iran: Die Rechtssammlung des Farrohmard i Wahrāmān 910 (1993); Maria Macuch, Mādayān ī hazār dādestān, in Encyclopædia Iranica (online edition; available at www.iranicaonline.org/articles/madayan-i-hazar-dadestan).

14 See, e.g., Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh 715 (1997); Wael Hallaq, The Origins and Evolution of Islamic Law 2425 (2005). Some jurists, such as the eighth-century Ḥanafī legal scholar Abū Yūsuf (d. 798), went as far as consciously granting binding legal status to ancient pre-Islamic customs that are neither confirmed nor abolished or altered by Islamic law.

15 Marshall Hodgson was the first to coin the term “Islamicate” as referring “not directly to the religion, Islam, itself, but to the social and cultural complex historically associated with Islam and the Muslims, both among Muslims themselves and even when found among non-Muslims.” See Marshall G. S. Hodgson , The Venture of Islam: Conscience and History in a World Civilization, Vol. 1, 59 (1974); See also Salaymeh, supra Footnote note 10, 9 (“The category of Islamicate is a heuristic tool that enriches our understanding of Islamic legal history by recognizing that Islamic law, from its beginning, structured relationships between and among Muslims and non-Muslims. The result was Islamicate legal syncretism”).

16 The literature exploring these processes is exceedingly vast. For a summary, see the description and references listed in Yishai Kiel, A Jurisprudential Reading of Rav Sherira’s Epistle and Legal Responsa in the Light of Rabbinic, Islamic and Zoroastrian Legal Culture 1622 (PhD dissertation; The Hebrew University of Jerusalem, 2020).

17 For the relationship between normative and theological canonization, on the one hand, and textual canonization (the establishment of a textually crystallized and thematically fixed version of a sacred work), see Ahmed El-Shamsy, The Canonization of Islamic Law: A Social and Intellectual History 34 (2013).

18 The connection between canonization, limitation, confinement and closure will be discussed below. See generally Jonathan Z. Smith, Sacred Persistence: Towards a Redescription of Canon, in Imagining Religion: From Babylon to Jonestown 48 (1982).

19 On legal formalism, see, in general, Judith N. Shklar, Legalism: Law, Morals, and Political Trials (1964); Duncan Kennedy, Legal Formality, 2 J. Leg. Stud. 351 (1973); Fredrick Schauer, Formalism, 97 Yale L.J. 509 (1988); Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 Yale L.J. 9491016 (1988); D. Lyons, Legal Formalism and Instrumentalism – A Pathological Study, 66 Cornell L. Rev. 949 (1988); Brian Leiter, Positivism, Formalism, Realism 99 Colum. L. Rev. 1138 (1999); Larry Alexander, “With Me, It’s All or Nothing”: Formalism in Law and Morality, 66 U. Chi. L. Rev. 530 (1999); Martin Stone, Formalism, in The Oxford Handbook of Jurisprudence and Philosophy of Law 166205 (Jules L. Coleman, Kenneth Einar Himma & Scott J. Shapiro eds., 2002); Ernest J. Weinrib, Legal Formalism, in A Companion to Philosophy of Law and Legal Theory 327–38 (Dennis M. Patterson ed., 2008).

20 See Lon Fuller, The Morality of Law 46–90 (1964 [rep. 1969]). For more recent discussions, see, e.g., Andrei Marmor, The Rule of Law and Its Limits, in Law in the Age of Pluralism 3 (2007); Andrei Marmor, The Ideal of the Rule of Law, in A Companion to Philosophy of Law and Legal Theory 666 (2nd edition; Dennis Patterson ed., 2010); Jeremy Waldron, The Rule of Law, in The Stanford Encyclopedia of Philosophy (2016) (available online at https://plato.stanford.edu/archives/fall2016/entries/rule-of-law/); Jeremy Waldron, The Concept and the Rule of Law, 43 Georgia L. Rev. 1 (2008); Scott Shapiro, Legality 388–400 (2011). For the debate over the moral vs. formal nature of the “rule of law” and principles of “legality,” see, e.g., Fuller, Footnote id., at 200–23; H.L.A Hart, Book Review: Lon Fuller. The Morality of Law, 78 Harv. L. Rev. 1281 (1965); Ronald Dworkin, Elusive Morality of Law, 10 Villanova L. Rev. (1965); Matthew Kramer, In Defense of Legal Positivism: Law without Trimmings (2003); Nigel Simmonds, Law as a Moral Idea (2007); Joseph Raz, The Authority of Law: Essays on Law and Morality 210–31 (2009).

21 For a useful summary of Fuller’s principles of “legality,” see Colleen Murphy, Lon Fuller and the Moral Value of the Rule of Law, 24 Law & Phil. 239, 240–42 (2005).

22 See, e.g., Bernard M. Levinson, The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy, 27(4) Cardozo Law Review 1853 (2006) (demonstrating Deuteronomy’s division of political power into separate spheres of authority and the subordination of each branch to the authority of the law).

23 I refer specifically to Xerxes’ reference to “the law set down by Ahura Mazda,” as distinct from the law of the king, and the Avestan underpinnings of this stance. See Yishai Kiel, Reinventing Mosaic Torah in Ezra-Nehemiah in the Light of the Law (dāta) of Ahura Mazda and Zarathustra, 136(2) Journal of Biblical Literature 325 (2017). See also Yaakov Elman, Contrasting Intellectual Trajectories: Iran and Israel in Mesopotamia, in Encounters by the Rivers of Babylon: Scholarly Conversations between Jews, Iranians, and Babylonians in Antiquity 7, 1314 (Shai Secunda & Uri Gabbay eds., 2014) (“in vital respects Israelite religion and Zoroastrianism stood apart from Sumero-Akkadian religion even in Achaemenid times. Both had become, or were in the process of becoming, scriptural religions, that is, religions whose central doctrines were embodied in a revelation vouchsafed to a prophet in the form of a long compilation, though it would be more than a millennium before Zoroastrianism’s ‘scripture’ would be written down”). For the history of “divine law” in ancient Israel see, e.g., Michael LeFebvre, Collections, Codes and Torah: The Re-characterization of Israel’s Written Law (2006); Hayes, Divine Law, supra Footnote note 4; John Collins, The Invention of Judaism: Torah and Jewish Identity from Deuteronomy to Paul (2017).

24 Hayes, Footnote id., at 31–36. See also Bernard Levinson , Legal Revision and Religious Renewal in Ancient Israel 27 (2008) (“Israelite scribes introduced into the ancient world a new idea: the divine revelation of law. Accordingly, it was not the legal collection as a literary genre but the voicing of publicly revealed law as the personal will of God that was unique to ancient Israel”). Cf. LeFebvre, supra Footnote note 23, at 1–30 (arguing for the nonlegislative and nonprescriptive nature of ancient Near Eastern law in general and the essential conformity of biblical law to this model) and Raymond Westbrook, What Is the Covenant Code? in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development 15–36 (Bernard M. Levinson ed., 2006). Also compare the Akkadian examples discussed in Peter Machinist & Hayim Tadmor, Heavenly Wisdom, in The Tablet and the Scroll: Near Eastern Studies in Honor of William W. Hallo 146, 146–47 (1993); Karel van der Toorn, Scribal Culture and the Making of the Hebrew Bible 207–11 (2007); Uri Gabbay, Akkadian Commentaries from Ancient Mesopotamia and Their Relation to Early Hebrew Exegesis, 19 DSD 267 (2012).

25 David Flatto, Theocracy and the Rule of Law: A Novel Josephan Doctrine and Its Modern Misconceptions, 28 Dine Israel 530 (2011) (rejecting the popular and scholarly perception of theocracy, which is often used to designate fundamentalist religious leadership that undermines the “rule of law” and constitutional values, suggesting instead an opposite notion of theocracy, developed by Josephus, that is grounded in the “rule of law” and constitutional values). See also Re´mi Brague, The Law of God: The Philosophical History of an Idea (2007); Ran Hirschl, Constitutional Theocracy (2010).

26 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament 4873 (2013) (arguing for a robust constitutional paradigm in Islam as early as the Quran itself and rejecting Western scholarship’s assumption of the impossibility of such a constitutional organization in Islamic governance); Wael Hallaq, Quranic Magna Carta: on the Origins of the Rule of Law in Islam, in Magna Carta, Religion and the Rule of Law 157–76 (Robin Griffith-Jones & Mark Hill QC, 2015). (providing a “constitutional” reading of Q. 3:79: “It is not for a human [prophet] that Allah should give him the Scripture and authority and prophethood and then he would say to the people, ‘Be servants to me rather than Allah,’ but [instead, he would say], ‘Be pious scholars of the Lord because of what you have taught of the Scripture and because of what you have studied’,” which asserts the separation of powers and the supremacy of God’s law over the sovereign).

27 For the development and meaning of the rabbinic notion of torah she-be-ʽal peh see, e.g., Gerald Blidstein A Note on the term ‘Torah she-be-ʽal peh, 42(3–4) Tarbiz 496 (1973); Martin S. Jaffee, Torah in the Mouth: Writing and Oral Tradition in Palestinian Judaism, 200 BCE–400 CE (2001); Yaʿaqov Sussman, Torah she-be-ʿal peh’ – peshuṭa ke-mashmaʿa: koḥo shel qotzo shel yod, in Meḥqere Talmud 3:289 (3 vols.; Yaʿaqov Sussman & David Rosenthal eds., 2005); David Weiss Halivni, The Breaking of the Tablets and the Begetting of the Oral Law: A History of ‘Torah Sheb’al Peh, in Jerusalem Studies in Jewish Thought: In Memoriam of Gershom Scholem (1897–1982) Vol. 2, 137–63 (Joseph Dan ed., 2007); Israel Y. Yuval, The Orality of Jewish Oral Law: from Pedagogy to Ideology, in Judaism, Christianity, and Islam in the Course of History; Exchange and Conflicts 237–90 (Lothar Gall & Dietmar Willoweit eds., 2011); Natalie B. Dohrmann, Can “Law” Be Private? The Mixed Message of Rabbinic Oral Law, in Public and Private in Ancient Mediterranean Law and Religion 187216 (Clifford Ando & Jörg Rüpke eds., 2015).

28 For the concept of sunna in early Islam see Patricia Crone and Martin Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam 5880 (1986); G.H.A Juynboll, Some New Ideas on the Development of Sunna as a Technical Term in Early Islam, 10 Jerusalem Studies in Arabic and Islam 97 (1987); Joseph Lowry, Early Islamic Legal Theory: The Risāla of Muḥammad ibn Idrīs al-Shāfiʻī 165205 (2007); See also the recent collection in The Sunna and Its Status in Islamic Law: The Search for a Sound Hadith (Adis Duderija ed., 2015).

29 For the concept of dēn in Zoroastrianism, see Prods Oktor Skjærvø, The Zoroastrian Oral Tradition as Reflected in the Texts, in The Transmission of the Avesta 3, 2025 (Alberto Cantera ed., 2012); Yuhan Vevaina, Enumerating the Dēn: Textual Taxonomies, Cosmological Deixis, and Numerological Speculations in Zoroastrianism, 50 History of Religions 111 (2010). For other meanings associated with Pahlavi dēn (in relation to Av. daēnā and New Persian and Arabic dīn), see Mansour Shaki, Dēn, in Encyclopædia Iranica 7: 279–81 (available online at www.iranicaonline.org/articles/den). It would seem that much of the semantic range of Pahlavi dēn is already present in the Young Avestan daēnā. The latter term, which in the Old Avesta seems to refer primarily to a mental faculty that “sees” in the other world and guides the sacrifices, assumes in the Young Avestan texts several additional meanings, one of which is the totality of Ahura Mazdā’s teachings and traditions (but not his “religion” as often translated). See Kiel, Reinventing Mosaic Torah, supra Footnote note 23, at 343–44.

30 For the initially amorphous nature of sunna see, for example, Lowry, Early Islamic Legal Theory, supra Footnote note 28, at 168 (“Most often, however, the term sunna appears in the general sense of “tradition,” “precedent,” or “time-honored way of doing things”); for dēn, see, e.g., Stausberg, The Invention of a Canon, supra Footnote note 12, at 266 (“It shows the tendency to identify the Avesta with the religious tradition. This tendency is the result of an unconscious application of a Jewish, Christian, or Muslim concept of ‘canonical scripture’ to Zoroastrian material”). For torah she-be-ʽal peh, see, e.g., Halivni, The Breaking of the Tablets, supra Footnote note 27.

31 For personal and impersonal constructions of legal authority, see Martin S. Jaffee, A Rabbinic Ontology of the Written and Spoken Word: On Discipleship, Transformative Knowledge, and the Living Texts of Oral Torah, 65(3) Journal of the American Academy of Religion 525–49 (1997); Hanina Ben-Menahem, Two Talmudic Understandings of the Dictum ‘Appoint for Yourself a Teacher’, in Thinking Impossibilities: The Intellectual Legacy of Amos Funkenstein 288 (Robert S. Westman & David Biale eds., 2008); Yishai Kiel, Filial Piety and Educational Commitments: A Talmudic Conflict in Its Cultural Context, 21 Jewish Studies Quarterly 297 (2014).

32 For “epistemic” and “deontic” authority, see Richard T. De George, The Nature and Limits of Authority (1985). Cf. Max Weber’s classification of authority into charismatic, traditional, and legal-rational: Max Weber, The Three Types of Legitimate Rule, in 4(1) Berkeley Publications in Society and Institutions 1 (1958). For the shift in the conceptualization of legal authority from late antiquity to the early medieval period in Jewish, Islamic, and Zoroastrian law, see the preliminary remarks in Yishai Kiel, The Authority of the Sages in the Babylonian Talmud: A Zoroastrian Perspective, 27 Shenaton ha-mishpat ha-ivri 131 (2012–13).

33 Hanina Ben-Menahem, Is Talmudic Law a Religious Legal System? A Provisional Analysis, 24 J.L. & Relig. 379, 383 (2008–09).

34 See, e.g., Hayes, Divine Law, supra Footnote note 4, at 1–4 (juxtaposing the personal biblical conception of divine law with the formal and impersonal sense of Greco-Roman discourses of divine law, according to which the law is divine by virtue of certain qualities inherent in it, i.e., rationality, truth, universality, and unchangeability).

35 See, e.g., Benjamin D. Sommer, Revelation and Authority: Sinai in Jewish Scripture and Tradition 2 (2015). (“Participatory” theories of revelation typically hold that the law constitutes a mixture of revelation and human responses to the divine will, while the law is created through a constant dialogue and the joint efforts of God and humans. “Stenographic” theories of revelation, on the other hand, typically hold that the law in its entirety was “handed down” and articulated by God).

36 See, e.g., Moshe Halbertal, People of the Book, Canon, Meaning and Authority 5481 (1997) (the “retrieval” model grounds the authority of the law in a complete and perfect moment of revelation, while eliminating human agency and creativity. The jurists and exegetes merely reconstruct, unearth, and retrieve the content related at the initial moment of revelation. The “constitutive” model, on the other hand, holds that the jurists and exegetes possess the authority to constitute the law itself).

37 For a detailed discussion of these issues and the various approaches among Jewish, Islamic, and Zoroastrian jurists to “noncanonical” legal sources (e.g., “extra-canonical” textual traditions, “post-canonical” enactments, customary law, precedent, consensus, and independent reason not based on the canonical textual sources), see Kiel, Jurisprudential Reading, supra Footnote note 16.

38 For the connection between canonization, limitation, and textual closure see the “classical” treatment by Smith, Sacred Persistence, supra Footnote note 18.

39 Uriel Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam 610 (2011).

40 Compare Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity 1–33 (2004) (arguing that despite the attempts of the inspection-officers/heresiologists on both sides of the Jewish-Christian border to protect and maintain the borders, people were smuggling ideas and practices the whole time.)

41 Simonsohn, Common Justice, supra Footnote note 39, at 6–10. For a similar juxtaposition of elite aspirations vs. a murky situation on the ground (although not in the context of Iraqi legal culture), see recently Eve Krakowsky, Coming of Age in Medieval Egypt: Female Adolescence, Jewish Law, and Ordinary Culture (2017).

42 See the curious account of Zoroastrians under Islam in Sherman Jackson, Islam and the American Common Good, 1(1) The Journal of Islamic Faith and Practice 27, 35 (2018). I would like to thank Ahmed El-Shamsy for this reference.

43 On Sherira’s epistle see, in general, Gerald Blidstein, Raʿayon torah she-be-ʿal peh ve-toldotav be-iggeret rav sherira gaon, 4 Daʿat 5 (1980); reprinted as Oral Torah: Ideology and History in the Epistle of Sherira Gaon, in Religious Knowledge, Authority, and Charisma: Islamic and Jewish Perspectives 73 (Daphna Ephrat & Meir Hatina eds., 2014) (further references will be to the English version); Robert Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture 2025 (1998); Robert Brody, On the Sources for the Chronology of the Talmudic Period, 70 Tarbiz 75 (2000); Robert Brody, Epistle of Sherira Gaon, in Rabbinic Texts and the History of Late Roman Palestine 253 (Martin Goodman & Philip Alexander eds., 2010); Isaiah Gafni, On the Talmudic Chronology in Iggeret Rav Sherira Gaon, 52 Zion 1 (1987); Isaiah Gafni, On Talmudic Historiography in the Epistle of Sherira Gaon, 73 Zion 271 (2009). See also Adam Becker, Fear of God and the Beginning of Wisdom 107–10 (2006); Adam Becker, The Comparative Study of ‘Scholasticism’ in Late Antique Mesopotamia: Rabbis and East Syrians, 34 AJS Review 91 (2010); Gerson Cohen, Sefer Ha-Kabbalah 5056 (1967); Joseph David, As Explained in the Book of Adam: The History of Halakha and the Mythical Perception of History in the Late Geonic Period, 74(4) Tarbiz 577, 594–95 (2005); Simcha Gross, When the Jews Greeted Ali: Sherira Gaon’s Epistle in Light of Arabic and Syriac Historiography, 24(2) Jewish Studies Quarterly 122 (2017); Kiel, Jurisprudential Reading, supra Footnote note 16. For the only critical edition of the epistle see Iggeret Rav Sherira Gaon (Hebrew, B. M. Lewin ed., 1921).

44 Iggeret, Footnote id., at 7 (French recension).

45 See, e.g., David W. Halivni, The Reception Accorded to R. Judah’s Mishnah, in Jewish and Christian Self-Definition, Vol. 2, 204 (E. P. Sanders ed., 1981); Mayer I. Gruber, The Mishnah as Oral Torah: A Reconsideration, 15 Journal for the Study of Judaism in the Persian, Hellenistic and Roman Period 112 (1984). In fact, the few talmudic references to a theory of an Oral Torah suggest a much more amorphous and dynamic body of tradition. See especially Halivni, The Breaking of the Tablets, supra Footnote note 27 (arguing that only in the post-talmudic period does the doctrine of the Oral Torah reach its “mature” form, according to which Moses received at Sinai every last detail of rabbinic tradition that will unfold throughout history. At this point, the Oral Torah becomes as static and unchangeable as the Written Torah). Cf. Samuel Safrai, Oral Torah, in The Literature of the Sages, vol. 1: Oral Tora, Halakha, Mishna, Tosefta, Talmud, External Tractates 35119 (Samuel Safrai ed., 1987).

46 See, e.g., Yaakov Elman, Order, Sequence and Selection: The Mishnah’s Anthological Choices, in The Anthology in Jewish Literature 53, 5455 (David Stern ed., 2004) (pointing out the Mishnah’s lack of cohesiveness, internal contradictions, unresolved disputes, duplications, lack of comprehensiveness in terms of the topics covered, and lack of organization in terms of the noncontextual arrangement of the material). See also Avraham Goldberg, The Mishna: A Study Book of Halakha, in The Literature of the Sages, vol. 1: Oral Tora, Halakha, Mishna, Tosefta, Talmud, External Tractates 211–62 (Samuel Safrai ed., 1987); Ishay Rosen-Zvi, Introduction to the Mishnah, in The Classic Rabbinic Literature of Eretz Israel: Introductions and Studies, Vol. 1, 4748 (2 vols., 2018).

47 See, e.g., Halivni, The Reception Accorded to R. Judah’s Mishnah, supra Footnote note 45, 204–12. By contrast, Geonic deviation from the Mishnah (and its authoritative interpretation in the Babylonian Talmud) is marginal. See Uziel Fuchs, The Geonic Talmud: The Attitude of Babylonian Geonim to the Text of the Babylonian Talmud 171 (2017) (“It is true that the later Geonim decided, here and there, not in accordance with the Talmud and, sometimes, interpreted the Mishnah against the grain of its talmudic interpretation … . But, those were all rare exceptions” [my translation and emphasis]).

48 Cf. Rosen-Zvi, Introduction to the Mishnah, supra Footnote note 46, at 2 (arguing that the Mishnah in the early amoraic period was regarded as “a complete and binding corpus”).

49 Iggeret, supra Footnote note 43, at 5 (French recension): “And as for your inquiry concerning how the Mishnah was written, and whether the members of the great assembly started writing it, and the sages of every generation wrote parts of it, until Rabbi came and sealed it.” .(ודשאלתון כיצד נכתבה המשנה אם אנשי כנסת הגדולה התחילו לכתוב וכתבו חכמי כל דור ודור מקצתה עד שבא רבי וחתמה) The question seems to allude to the position of Rav Saʿadya as recorded in Sefer Ha-Galui. See Hanoch Albeck, Introduction to the Mishnah 6566 (1959); Rosen-Zvi, Introduction to the Mishnah, supra Footnote note 46, at 12n. 51. For Sefer Ha-Galui see most recently Rav Saʿadya Gaon, in the Focus of Controversies in Baghdad: Saʿadya’s Sefer Ha-Galuy and Mevasser’s Two Books of Critique of Him 80167 (Joshua Blau & Joseph Yahalom eds., 2019).

50 See Blidstein, Oral Torah, supra Footnote note 43.

51 At least according to the French recension (MS Aleppo) of Rav Sherira’s Epistle, which is generally regarded as more reliable than the Spanish one, the author was acutely aware of the oral nature of the Mishnah’s compilation. See Brody, Geonim, supra Footnote note 43, at 21–22.

52 Footnote Id., at 278–79.

53 Iggeret, supra Footnote note 43, at 21–23 (French recension).

54 Yishai Kiel, Reinventing Yavneh in Sherira’s Epistle: From Pluralism to Monism in the Light of Islamicate Legal Culture, in Strength to Strength: Essays in Honor of Shaye J. D. Cohen 515 (Brown Judaic Studies ed., 2018).

55 This duality in the epistle was briefly noted in Blidstein, Oral Torah, supra Footnote note 43, at 83.

56 Talya Fishman, Claims about the Mishnah in the Epistle of Sherira Gaon: Islamic Theology and Jewish History, in Beyond Religious Borders: Interreligious Interaction and Intellectual Exchange in the Medieval Islamic World 65, 67 (David Freidenreich & Miriam Goldstein eds., 2012).

57 See Talya Fishman, Becoming the People of the Talmud: Oral Torah as Written Tradition in Medieval Jewish Cultures 41 (2011).

58 Iggeret, supra Footnote note 43, at 30 (French recension).

59 Fishman, Claims about the Mishnah, supra Footnote note 56, at 67; Fishman, People of the Talmud, supra Footnote note 57, at 41–42, 249n. 131. For the doctrine of iʿjāz al-qurʾān, see Richard C. Martin, Inimitability in Encyclopædia of the Qurʾan 2:526 (available at https://referenceworks.brillonline.com/entries/encyclopaedia-of-the-quran/inimitability-EQCOM_00093).

60 These facets, I might add, are emphatically stressed throughout Shāfiʽī’s epistle on legal theory. See, e.g., Shāfiʽī, Risāla, 53–71 [The Epistle on Legal Theory: A Translation of Shāfiʻī’s Risāla 22–28 (Joseph Lowry trans., 2015)].

61 For Sherira’s employment of the “Book of Adam” see David, As Explained in the Book of Adam, supra Footnote note 43.

62 Iggeret, supra Footnote note 43, at 59 (French recension), based on b. B. Metz. 85b–86a. Sherira further argues based on the talmudic tradition that, “in this manner, (rabbinic) instruction accumulated generation after generation until Ravina at whose time it ceased. As Samuel, the astronomer, had seen written in the Book of Adam: Ashi and Ravina are the conclusion of instruction” (Iggeret, Footnote id., at 69). See also Iggeret, Footnote id., at 28: “And our rabbis have taught that even Adam took joy in R. Akiva’s Torah, when the Holy One, blessed be he, showed him every generation and its sages.”

63 See Robert Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, 97(4) Harv. L. Rev. 4 (1983).

64 See Robert Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5(1) Journal of Law and Religion 65, 66 (1987) (juxtaposing the foundational myths of Sinai and the Social Contract, which underly the Jewish and Western legal cultures).

65 For another example of Sherira’s use of jurisprudential myths see Kiel, Yavneh, supra Footnote note 54(regarding the founding rabbinic “council” at Yavneh)

66 For Saʿadya’s ‘overstatements’ in this regard and his anti-Karaite agenda, see, e.g., Brody, Geonim of Babylonia, supra Footnote note 43, at 96–99, 244–48; Marina Rustow, Heresy and the Politics of Community: The Jews of the Fatimid Caliphate 2526 (2008); Jay Harris, How Do We Know This? Midrash and the Fragmentation of Modern Judaism 79 (1995); Eliezer Schlossberg, Ha-pulmus be-yeṣirato shel rav saʿadya gaon 126–27 Sinai 305 (2000–01); Marc Herman, Systematizing God’s Law: Rabbanite Jurisprudence in the Islamic World from the Tenth to the Thirteenth Centuries 39–42 (PhD dissertation; University of Pennsylvania 2016); Marc Herman, Prophetic Authority in the Legal Thought of Saadia Gaon, 108(3) Jewish Quarterly Review 271, 278–81 (2018).

67 According to this approach, rabbinic midrash (ostensibly deriving the law by means of scriptural exegesis) should be regarded as an attempt to scripturally ground preexisting laws already known to the exegetes through tradition, rather than “real” law-generating activity. This paradigm associates midrash with “retrieval” rather than “constitution.” The “retrieval” model is related theologically to the “authorial” and “stenographic” paradigms of revelation, both upholding the completeness and singularity of the Sinaitic revelation, while downplaying human involvement in the revelatory process. In addition to the studies by Halbertal (supra Footnote note 36) and Sommer (supra Footnote note 35) mentioned above see also Harris, How Do We Know This, supra Footnote note 66, at 73–102; Yohanan Silman, Qol gadol ve-lo yasaf: torat israel ben shelemut le-hishtalmut 3969 (1999).

68 His hyperbolic rhetoric notwithstanding, Sherira advocates a somewhat more moderate version of the Oral Torah’s revelatory status in comparison with Saʿadya. Robert Brody observes in this regard that, “In addition to literary crystallization … Sherira is willing to allow for a substantial degree of historical evolution in the specific contents of the Oral Torah, while at the same time maintaining the extreme antiquity of the tradition as a whole. Aside from doubts and controversies concerning the details of earlier traditions, new problems arose from time to time, which had to be resolved by analogy with established tradition. The essence of his position appears to be that all the later ramifications were contained in potentia in the earliest tradition and would have been clear to the earliest authorities had they considered these questions” (Brody, Geonim of Babylonia, supra Footnote note 43, at 279). Indeed, it would seem that Sherira’s “formalistic” and “legalistic” rhetoric is complicated by the role (however limited) he assigns to human agency in the legal process. Compare with Maimonides’ “cumulative” paradigm outlined in Halbertal, People of the Book, supra Footnote note 36, at 59–63. For the differences between Saʿadya and Sherira in this regard see Harry Fox, Neusner’s The Bavli and Its Sources, A Review Essay, 80(3–4) Jewish Quarterly Review 353–54 (1990); Herman, Systematizing God’s Law, supra Footnote note 66, at 63–64.

69 For rabbinic controversy over the doctrine of the Oral Torah, see, e.g., Sifra, Behuqotai, 8:12 (ed. Weiss, 112b).

70 See, e.g., Sifre Deuteronomy 351 (ed. Finkelstein, 408) and b. Git. 60b. The ambiguity surrounding the actual content of the oral revelation at Sinai is highlighted in the famous story recorded in b. Menah. 29b.

71 See, e.g., b. Yoma 28b (cf. m. Qid. 4:14; t. Qid. 5:17).

72 See esp. b. Ber. 5a. See also Gerald Blidstein, Oral Law as Institution in Maimonides, in The Thought of Moses Maimonides 167, 175 (Ira Robinson et al. eds., 1990); Berakhyahu Lifschitz, Minhag ‘u-meqomo be-midrag ha-normot shel torah she-be-ʿal-peh, 24 Shenaton ha-mishpaṭ ha-ʿivri 123, 213 (2006–07); Sommer, Revelation and Authority, supra Footnote note 35, at 253–54. For the fascinating textual history of this tradition see Roni Shweka, The Tablets of Stone, the Law, and the Commandment, 81 Tarbiz 343 [2013]).

73 See Halivni, The Breaking of the Tablets, supra Footnote note 27.

74 See also Saʿadya’s claims at the beginning of the second part of his Kitāb Tahsīl al-Sharā’iʽ al-Samʽiyya (“Book on Attaining the Revealed Commandments”), according to which “This essay establishes the tradition known from the Mishnah and Talmud.” See David E. Sklare, Samuel ben Hofni Gaon and His Cultural World: Texts and Studies 160 (1996).

75 As I mentioned, however, Sherira’s claim constitutes a stretch even for the Mishnah, given the presence of numerous contradictions, duplications, and inconsistencies.

76 Jacob Nahum Epstein has argued that the Geonim preserved, at times, alternative “editions,” which predate “our edition” of the Talmud. See, e.g., Jacob Nahum Epstein, Studies in Talmudic literature and Semitic languages 2:378 (3 vols., Melamed ed., 1983–91). See, more recently, Yoav Rosenthal, On the Early Form of Bavli Mo’ed Qatan 7b-8a, 77(1) Tarbiz 4570 (2007). Others maintain that significant textual variants preserved by the Geonim stem neither from earlier stages of the Talmud’s consolidation and redaction nor from the later history of the Talmud’s textual transmission, but rather from an intermediate stage of development in which the Talmud’s content and order were largely determined, but its language and phraseology remained fluid. See, e.g., Eliezer S. Rosenthal, The History of the Text and Problems of Redaction in the Study of the Babylonian Talmud, 57 Tarbiz 1 (1988); Eliezer S. Rosenthal, ‘iyunim be-toledot Ha-nosakh shel hatalmud ha-bavli, in Jubilee Book in Honor of Rabbi Mordechai Breuer 2:571 (2 vols.; Moshe Bar Asher ed., 1992); Robert Brody, Geonic Literature and the Talmudic Text, in Mehqere Talmud 1: 237, 275 (Yaakov Sussman & David Rosenthal eds., 1990). Still others have argued that even the more “significant” textual variants generally reflect later developments in the history of the Talmud’s textual transmission, stemming from “creative transmission” and deliberate interventions in an attempt to improve the text. See, e.g., Shamma Friedman, On the Formation of Textual Variation in the Bavli, 7 Sidra 67, 7374 (1991). For a recent summary and reevaluation of this matter see Fuchs, The Geonic Talmud, supra Footnote note 47, at 28–29, 53.

77 See, e.g., Fishman, People of the Talmud, supra note. 57, at 1 (“When considered from certain vantage points, the Talmud’s role as a guide to Jewish life is bewildering. Though construed as a legal reference work, a significant proportion of the Talmud’s content does not pertain to law, and the legal traditions themselves are presented in the form of pending disputes (critical scholars have determined that the resolved disputes are actually late interpolations into the talmudic text). In other words, there is no evidence that the sages whose teachings are preserved in the Talmud, Babylonian amoraim of the third through sixth centuries C.E. intended to produce a prescriptive guide to applied Jewish law”); Brody, Geonim of Babylonia, supra Footnote note 43, at 161 (“The Talmud is an extremely complex literary work, comprising legal and other materials, which evolved over several centuries. Even in its legal portions, many discussions are wholly or partly of an academic nature, and many disputes on practical issues remain unresolved. Furthermore, the material is not organized systematically, in the style of a legal code; a single issue may figure in a variety of contexts, and the relationship (if any) between the various discussions, as well as the weight to be assigned to them in deriving legal conclusions, is rarely self-evident. We have no way of knowing to what extent, if at all, the ‘editors’ of the Talmud – as distinct from the authors of the legal dicta embedded within it – intended to create a normative legal work rather than an academic or literary corpus”).

78 Brody, Geonim of Babylonia, supra Footnote note 43, at 161–62.

79 Iggeret, supra Footnote note 43, at 90–91 (based on b. Git. 59a). Compare Sherira’s assertion above, according to which “from the time of Moses until the time of Rabbi we did not find Torah and authority in one and the same place.”

80 See David, Book of Adam, supra Footnote note 43, and the discussion above.

81 Iggeret, supra Footnote note 43, at 69 (French recension).

82 For the “four-sources” theory of Islamic law and Shāfiʽī’s epistle, see, e.g., Joseph Schacht, An Introduction to Islamic Law 5960 (1964).

83 Joseph Lowry, Does Shāfiʿī Have a Theory of ‘Four Sources’ of Law? in Studies in Islamic Legal Theory 23 (Bernard Weiss ed., 2002). Compare also Hallaq, Islamic Legal Theories, supra Footnote note 14, at 29 (“It is no wonder then that the bulk of the treatise [=Shāfiʽī’s epistle] is devoted to a discussion of the Sunna, its types, interpretation, and its function in elaborating the Sharīʽa. Nearly everything else seems tangential, discussed to a greater or lesser extent in order to shed light on, or expound, the Sunna. In insisting on Prophetic Sunna as the only binding textual authority next to the Quran, Shāfiʽī was arguing for a law that would be exclusively divine in its origin, and this required that he explain the manner in which non-textual sources – i.e., consensus and qiyās – may be utilized while maintaining the fundamental proposition that law derives from the Divine will.”)

84 See Lowry, Early Islamic Legal Theory, supra Footnote note 28, at 23–24; Joseph Lowry, Some Preliminary Observations on al-Šāfiʿī and Later Uṣūl al-Fiqh: The Case of the Term Bayān, 55(5–6) Arabica 505 (2008). The idea that the Quran and Hadith are the only binding and authoritative legal sources articulating the totality of God’s revelation can also be seen as an argument for the very authority of Prophetic Hadith alongside the Quran. See, e.g., Hallaq, Islamic Legal Theories, supra Footnote note 14, at 29; Lowry, Early Islamic Legal Theory, Footnote id., at 165 (“It also seems clear from the structure of the law as portrayed in the Risalā and from some of Shāfiʽī’s remarks therein that Shāfiʽī considered the prophetic Hadith to be revelation, on a par in that respect with the Quran”); Shāfiʽī, Risāla, supra Footnote note 60, at 101 [translation, at 150]. (“Moreover, He paired the wisdom [understood as the practice of God’s Emissary] imparted by Prophetic Practice with His Book, and made it to follow the Book”) See also Shāfiʽī, Risāla, supra Footnote note 60, at 98 [translation, at 39]. (“Al-Shāfiʽī said: God put his Emissary in a position relative to His religion, His obligations, and His Book, in a way that clarified that He had made him a signpost of His religion. He did this by imposing the obligation to obey him and making disobedience to him unlawful. God also provided a clear statement about his excellence by pairing together faith in his Emissary and faith in Him”); and Shāfiʽī, Risāla, supra Footnote note 60, at 285–86 [translation, at 103].(“I said to him: If it were permissible to abandon a Prophetic practice – because of the conclusions arrived at by some, out of ignorance of the position of such practices relative to the Book (=the Quran) – then one could abandon what we have mentioned above … Whoever holds such an opinion invalidates the totality of the practices of God’s Emissary, and that opinion is a sign of the ignorance of the one who holds it”).

85 For surveys see, e.g., Joseph Schacht, The Origins of Muhammadan Jurisprudence, 98132, 311–28 (1982); Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory 159258 (2013); Hallaq, Islamic Legal Theories, supra Footnote note 14, at 82–124.

86 For Ẓāhirī “scripturalism” and the rejection of reason and logic see, e.g., Ignaz Goldzieher, The Ẓāhirīs: Their Doctrine and Their History 1118 (trans. W. Behn, 1971); Zysow, Economy of Certainty, supra Footnote note 85, at 167–87; David Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law 7888 (2011); Robert Gleave, Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory 14750 (2013). On the Ẓāhirī madhhab in general see Amr Osman, The Ẓāhirī Madhhab (3rd/9th–10th/16th Century): A Textualist Theory of Islamic Law 1147 (2014); Devin Stewart, Muḥammad b. Dawūd al-Ẓāhirī’s Manual of Jurisprudence, al-Wuṣūl ilā Maʿrifat al-Uṣūl, in Studies in Islamic Legal Theory 99–158 (Bernard Weiss ed, 2002); Abū Ḥanīfa Nuʿmān ibn Muḥammad (al-Qāḍī al-Nuʿmān), The Disagreements of the Jurists: A Manual of Islamic Legal Theory 212–67 (Devin Stewart ed., 2015). On Ibn Ḥazm’s rejection of qiyās see George F. Hourani, Reason and Tradition in Islamic Ethics 167–89 (1985); F. I. Abdallah, Notes on Ibn Ḥazm’s Rejection of Analogy (Qiyās) in Matters of Religious Law, 2 American Journal of Islamic Social Sciences 207224 (1985); J. P. Montada, Reason and Reasoning in Ibn Ḥazm of Cordova, 92 Studia Islamica 165–85 (2001). On Ibn Ḥazm’s connections with the Ẓāhirīs see Camilla Adang, The Beginnings of the Ẓāhirī Madhhab in al-Andalus, in The Islamic School of Law: Evolution, Devolution, and Progress 117–25 (Peri J. Bearman et al. eds., 2005).

87 See, e.g., Goldzieher, The Ẓāhirīs, supra Footnote note 86, at 81–84; Schacht, Origins, supra Footnote note 85, at 128–32; Hourani, Reason and Tradition, supra Footnote note 86, at 273–74. On Ibn Ḥanbal’s legal theory see in general Christopher Melchert, Ahmad Ibn Hanbal (2006); Saud Al Sarhan, The Responsa of Aḥmad Ibn Ḥanbal and the Formation of Ḥanbalism, 22 Islamic Law and Society 18 (2015).

88 See Hallaq, Islamic Legal Theories, supra Footnote note 14, at 107–08; Rumee Ahmed, Narratives of Islamic Legal Theory 113–47 (2012); El-Shamsy, The Canonization of Islamic Law, supra Footnote note 17, at 22–28. After the ninth century, to be sure, Ḥanafī jurists “took steps to disassociate themselves from the reputation of being arbitrary reasoners.” (Hallaq, Islamic Legal Theories, Footnote id., at 108. See also Ahmed, Narratives of Islamic Legal Theory, Footnote id., at 114).

89 Shāfiʻī, Risāla, supra Footnote note 60, at 613 [translation, at 213], from a chapter on subjective reasoning/preference (باب الاستحسان). Compare also Shāfiʻī, Risāla supra Footnote note 60, at 616 [translation, at 214: “If that is so, then scholars should not express any opinions in such cases except on the basis of religious knowledge – and the source of religious knowledge is a binding report – by means of an analogy from the indications of what is correct”].

90 Ibn Ḥanbal purportedly accepted the authority of nonprophetic hadith reports. See, e.g., Al Sarhan, The Responsa of Aḥmad Ibn Ḥanbal, supra Footnote note 87, at 38–39.

91 For discussions of Shāfiʽī’s text-based jurisprudence as opposed to Mālik’s custom-based jurisprudence see, e.g., Brannon Wheeler, Applying the Canon in Islam: The Authorization and Maintenance of Interpretive Reasoning in Ḥanafī Scholarship 4345 (1996); Yasin Dutton, The Origins of Islamic Law: The Qur’an, the Muwattaʾ and Madinan ʽAmal 45 (1999); El-Shamsy, The Canonization of Islamic Law, supra Footnote note 17, at 63–68. For Mālik’s theory of ʽamal see also Faruq Abd-Allah, Mālik’s Concept of ʽAmal in Light of Mālikī Legal Theory (PhD dissertation; University of Chicago, 1978); El-Shamsy, The Canonization of Islamic Law, Footnote id., at 38–43. According to El-Shamsy (The Canonization of Islamic Law, Footnote id., at 42), this understanding of Medinan tradition can serve as a corrective to the view of Schacht (An Introduction to Islamic Law, supra Footnote note 82, at 28–29), who argued that the earliest form of what later became the Islamic “legal school” (maddhab) was of regional nature (“This does not mean that the proto-Maliki school consisted of a unitary doctrine propagated by all Medinan scholars. Rather, the terms “the Medinans” [al-madaniyyūn] and “people of Medina” [ahl al-madīna] refer to scholars who claim to speak in the name of the Medinan tradition – irrespective of whether they form the majority or minority in Medina, or even whether they live in Medina at all. The early legal schools were regional in the sense that they were justified in regional terms”). See also the critique in Wael Hallaq, From Regional to Personal Schools of Law? A Reevaluation, 8 Islamic Law and Society 1 (2001).

92 For the Islamic notions of taqlīd (imitation) and ijtihād (legal reasoning) see, in general, Hallaq, History of Islamic Legal Theories, supra Footnote note 14, at 121–23.

93 See Kiel, Authority of the Sages, supra Footnote note 32; and Kiel, Filial Piety, supra Footnote note 31. To exemplify the notion of mimetic, interpersonal, and deontic authority characteristic of the Babylonian Talmud consider the anecdote in b. Ber. 62a (cf. b. Hag. 5b). The story rhetorically pushes the mimetic aspects of legal authority to its limits. While the student is reproached by his master for hiding under the bed, so as to obtain knowledge of proper sexual etiquette, the redactors give the final word to the student, who artfully justifies his actions by his need to learn Torah. This anecdote represents a Babylonian rabbinic reworking of a Palestinian rabbinic story concerning tannaitic authorities who followed their masters into the privy (y. Ber. 9:5 14c). For the relationship between the Palestinian and Babylonian versions, see Shamma Friedman, A Good Story Deserves Retelling: The Unfolding of the Akiva Legend, 3 JSIJ 7376 (2004); Jeffrey Rubenstein, Stories of the Babylonian Talmud 211–14 (2010).

94 See Ahmed El-Shamsy, Rethinking Taqlīd in the Early Shāfiʽī school, 128 Journal of the American Oriental Society 1 (2008); El-Shamsy, The Canonization of Islamic Law, supra Footnote note 17, at 65–66.

95 El-Shamsy, The Canonization of Islamic Law, Footnote id., at 63–64 (suggesting three gradual stages in the maturation of Shāfiʽī’s position. In his earlier debate with the Ḥanafīs, “he still paid lip service to the Medinan legal tradition” [Umm 8:66, 84, 90]. In the debate with Ibn ʽUlayya “he declared local traditions to be unstable and equivocal” [Umm 9:25–26]. Only in the debate with Mālik he “would finally abandon the concept of a local legal tradition entirely”).

96 Umm 8:739; El-Shamsy, The Canonization of Islamic Law, supra Footnote note 94, at 65. According to El-Shamsy, Shāfiʽī points out in this passage that “the anonymous ‘ʽamal of Medina’ cannot in fact produce a single coherent result: it contains multiple contradictory voices but does not offer any systematic method for adjudicating among them … The reasons why certain sources – prophetic reports, scholars’ opinions, and so on—were accepted as normative while others were not could not be deduced from an examination of the sources themselves, but only by reference to their reception, that is, whether or not they were followed by the community. This opacity rendered Mālik’s ʽamal a ‘black box.’ One could not trace the reasoning that led to a particular ruling; one could only follow it blindly.” For ʽamal as an early form of consensus see Lowry, Early Islamic Legal Theory, supra Footnote note 28, at 321–22; Dutton, The Origins of Islamic Law, supra Footnote note 91, at 35.

97 Umm 9:105; El-Shamsy, The Canonization of Islamic Law, supra Footnote note 17, at 67.

98 El-Shamsy, The Canonization of Islamic Law, supra Footnote note 94, at 3–4.

99 Note the shift from the amorphous sunna to a corpus of Hadith.

100 Ohrmazd is the Pahlavi form of the name of the supreme Zoroastrian God, Ahura Mazdā (Avestan)/Ahuramazdā (Old Persian).

101 Kiel, Reinventing Mosaic Torah, supra Footnote note 23, at 339–47.

102 Skjærvø, The Zoroastrian Oral Tradition, supra Footnote note 29, at 20–25; Shaki, Dēn, supra Footnote note 29, at 279–81.

103 Certain scholars have attempted to marginalize the role of revelation in Zoroastrianism in comparison with Judaism and Islam. See, e.g., Janos Jany, Judging in the Islamic, Jewish and Zoroastrian Legal Traditions: A Comparison of Theory and Practice 4550 (2012). See, however, the critique of this position in Kiel, Authority of the Sages, supra Footnote note 32, at 155–56 and Kiel, Reinventing Mosaic Torah, Footnote id., at 339–47.

104 For a reconstruction of an Old Persian Zand from the Achaemenid period, see Prods Oktor Skjærvø, Avestan Quotations in Old Persian? Literary Sources of the Old Persian Inscriptions, in 4 Irano-Judaica 1 (Shaul Shaked & Amnon Netzer eds., 1999). See also Prods Oktor Skjærvø, The Achaemenids and the Avesta, in Birth of the Persian Empire, vol. 1: of The Idea of Iran 52 (Vesta Sarkhosh Curtis & Sarah Stewart eds., 2005).

105 Dēnkard 4.15–21 (ed. Dresden, at 321–22). For the translation, see Shai Secunda, The Talmudic Bei Abedan and the Sasanian Attempt to ‘Recover’ the Lost Avesta, 18 Jewish Studies Quarterly 343 (2011); Shai Secunda, The Iranian Talmud: Reading the Bavli in its Sasanian Context 59 (2013). See also Mansour Shaki, The Denkard Account of the History of the Zoroastrian Scriptures, 49 Archiv orientální 114 (1981); Shlomo Pines, A Parallel between Two Iranian and Jewish Themes, 2 Irano-Judaica 41 (1990); Carlo Cereti, La Letteratura Pahlavi: Introduzione ai testi con riferimenti alla storia degli studi ed alla tradizione manoscritta 5961 (2001); Cantera, Studien, supra Footnote note 12, at 106–13; Kevin T. Van Bladel, The Arabic Hermes: From Pagan Sage to Prophet of Science 3039 (2009).

106 The notion that the Avesta and Zand “remained with the sages in writing, but also in oral transmission,” while attributed to a much earlier period, is reflective of the situation at the time of the text’s redaction, i.e., the Abbasid period, in which the Zoroastrian tradition was well on its way of being committed to writing, but remained pervasively oral nonetheless. This was also the situation on the Jewish and Islamic side.

107 Van Bladel, The Arabic Hermes, supra Footnote note 105, at 30–39.

108 Pines, Two Iranian and Jewish Themes, supra Footnote note 105, at 41–51.

109 Notably, according to the text, the lost Avesta and Zand are not identical to the scattered wisdom, although the kings and sages were involved in the collection and retrieval of both. While the scattered wisdom is purportedly contained at present in the Dēnkard, it would seem that the eighth book of the Dēnkard in particular constitutes an attempt to textually demarcate and delineate the contours of the Avesta and Zand, by classifying the contents of its twenty-one nasks (“books”). Cf. Stausberg, The Invention of a Canon, supra Footnote note 12, at 264–66 (“the twenty-one nasks of the dēn catalogued in Dēnkard book 8 are an attempt at classifying the entire religious tradition and not specifically the Avestan corpus as has been commonly assumed by the previous generation of scholars”).

110 Cf. Secunda, Iranian Talmud, supra Footnote note 105, at 58–63 (contextualizing the reference in this passage to heretics with the talmudic be abedan (בי אבידן).

111 “Nask-studying heretics” (Pahlavi nask-ōšmurdārān ī jud-ristagānēn).

112 For the extent of the anti-Karaite undertones in Sherira’s epistle, see, e.g., Sklare, Samuel ben Hofni, supra Footnote note 74, at 90; Gafni, On Talmudic Historiography, supra Footnote note 43, at 293; Blidstein, Oral Torah, supra Footnote note 43, at 74. See, however, the assessment in Brody, Geonim, supra Footnote note 43, at 20n. 5 (“A number of scholars have suggested that these questions were motivated by a need to defend the integrity of rabbinic tradition against Karaite criticism, but it now appears that they are representative of some of the sorts of questions which occupied the Rabbanite intellectuals of Qayrawan in this period”). See also the explicit reference in Iggeret, supra Footnote note 43, at 107 (French recension): “And in those days after him Anan [b. David] came forth” (ובאותן הימים בתריה נפק ענן).

113 For contesting views of revelation in Zoroastrianism see, e.g., Shaul Shaked, Esoteric Trends in Zoroastrianism, 3 Proceedings of the Israel Academy of Sciences and Humanities 188–89 (1969); Yaakov Elman, Scripture Versus Contemporary Needs: A Sasanian/Zoroastrian Example, 28(1) Cardozo Law Review 154–56 (2006).

114 E.g., the Pahlavi translations and commentaries to the Videvdad, Hērbedestān and Nērangestān.

115 Traditionally, the term paydāg was translated “revealed,” which highlights its theological undertones, but “visible, manifest” is more accurate. I would like to thank Prods Oktor Skjærvø for pointing this out to me.

116 See Kiel, Authority of the Sages, supra Footnote note 32, at 158–59.

117 An alternative reconstruction of Xusrō’s council focuses on the “fighting off of heresy” and grapples with disbelief in the authoritativeness of the Zand. In addition to the Dēnkard passage above, see also Zand ī Wahman Yasn 2.1–4 (“In the Zand of the Wahman Yasn and Hordād Yasn and Aštād Yasn it is manifest that, one time, the accursed Mazdak son of Bām-Dād, the adversary of the religious Tradition (dēn petyārag), appeared. And they (i.e. his followers) brought adversity to the religious Tradition of the gods. And Xusrō of immortal soul summoned before him Xusrō son of Māh-Dād, Weh-Šāpūr, Dād-Ohrmazd the dastwar of Azerbaijan, and Ādurfarnbay the deceit-less, and Ādurbād, Ādur-Mihr and Baxt-Āfrīd. And he requested a pact of them: Do not keep these Yasnas in concealment, yet do not teach the Zand outside your offspring. They made a pact with Xusrō”). See The Zand ī Wahman Yasn: A Zoroastrian Apocalypse 134 [transcription], 150 [translation] (Carlo G. Cereti ed., 1995); Cereti, La Letteratura Pahlavi, supra Footnote note 105, at 59–61; Cantera, Studien, supra Footnote note 12, at 106–13; Van Bladel, The Arabic Hermes, supra Footnote note 105, at 30–39. On the question of the historicity of this council see Philippe Gignoux, Sur l’inexistence d’un Bahman Yasht avestique, 32 Journal of Asian and African Studies 53, 5457 (1986), but cf. Secunda, On the Age, supra Footnote note 12, at 321–24.

118 For the twenty-one nasks of the Avesta and Zand, see Vevaina, Enumerating the Dēn, supra Footnote note 29.

119 Although the “sealing” of a document indicates some sort of contract/agreement between the attendant jurists, it may also refer to the canonical “sealing” of the Avesta and Zand. It is noteworthy that the Aramaeogram for Pahlavi āwištan (“to seal”) is HTYMWN, the same verb used by the Geonim to indicate the canonization and sealing of the Mishnah and Talmud. See, e.g., Iggeret, supra Footnote note 43, at 7 (French recension): “Until Rabbi came and sealed it (=the Mishnah)” (עד שבא רבי וחתמה). Sherira also uses the synonymous root סתם in this context. See Iggeret, Footnote id., at 97: “And the Talmud was sealed” (ואיסתתים תלמודא). For the terminology and conceptualization of canonical “sealing” in the rabbinic tradition see Shlomo Z. Havlin, On Literary Sealing as the Basis for Periodization in Halakha, in Studies in Talmudic Literature 148, 154–62 (1983). Compare also the Islamic doctrine perceiving Muhammed as the “seal of prophets” (khātam al-nabiyyīn) first mentioned in Q. 33:40. The literature on the precise meaning of the Quranic phrase (finality, closure, confirmation?) and the history of the doctrine is vast. See the recent discussions in Uri Rubin, The Seal of the Prophets and the Finality of Prophecy, 164(1) Zeitschrift der Deutschen Morgenländischen Gesellschaft 65 (2014); David Powers, Finality of Prophecy, in The Oxford Handbook of the Abrahamic Religions 254 (A. Silverstein & G. Stroumsa eds., 2015). Also compare the notion of “closure of the gates of ijtihād” (insidād bāb al-ijtihād) in the Islamic tradition, for which see the classical study of Wael Hallaq, Was the Gate of Ijtihad Closed? 16(1) International Journal of Middle East Studies 3 (1984).

120 Compare the parallel interest in epistemological certainty in Islamic jurisprudence, for which see Zysow, The Economy of Certainty, supra Footnote note 85, at 1–4. For the Geonic context, see Sklare, Samuel ben Hofni Gaon, supra Footnote note 74, at 159 (“Islamic legal theory is epistemological is nature. The central question is which of the sources of law (scripture, tradition, analogy or consensus) provides certain knowledge of legal rules and which furnish only probable opinion. The authority or legitimacy of a source is determined by its epistemological status. The Geonim and their contemporaries largely adopted this conceptual structure.”)

121 Mānuščihr, Nāmagīhā, 1.4.17–18 (trans. Prods Oktor Skjærvø [unpublished]). Cf. Maneck Fardunji Kanga, Epistle 1, Ch. 4, of Mānuščihr ī Juwān-jamān: A Critical Study, 27 Indian Linguistics 46, 5657 (1966).

122 On this figure see Secunda, On the Age, supra Footnote note 12, at 323–25.

123 This can be further compared with the Islamic legend concerning the council commissioned by the third caliph ʿUthmān ibn ʿAffān, which produced the canonical and authoritative Uthmanic codex of the Quran. I would like to thank Ahmed El-Shamsy and David Flatto for (independently) calling my attention to this comparison.

124 A detailed description of the baršnūm ceremony performed when a person becomes polluted by dead matter is given in Videvdad chs. 8 and 9. See Mary Boyce, Barašnom in Encyclopædia Iranica, 3:756–57 (available online at www.iranicaonline.org/articles/barasnom). For the grades of ritual impurity associated with the baršnūm and pixag purification rituals, see, e.g., J. K. Choksy, Purity and Pollution in Zoroastrianism: Triumph over Evil 2352 (1989); Yishai Kiel, Shaking Impurity: Exegesis and Innovative Traditions in the Babylonian Talmud and Pahlavi Literature, in Encounters by the Rivers of Babylon: Scholarly Conversations Between Jews, Iranians and Babylonians in Antiquity 413–34 (Uri Gabai & Shai Secunda eds., 2014).

125 Mānuščihr, Nāmagīhā, supra Footnote note 121, 3.1–2: “It has come to my, Mānuščihr son of Juwān-jam, rad of Pārs and Kirmān, attention that, in some areas of the land of the Iranians, those who have made decisions that pollution from corpses and other pollution are in the category of other (pollution), that should be washed with the pixag, they are (now) washing fifteen times with gōmēz (bull’s urine) and once with water and (then) regard their bodies as clean. And, when they approach the water, fire, and ritually clean barsom (twigs) they do so in the measure of what (they regard as) ritually clean. They say: ‘Zādspram son of Juwān-jam ordered the priests to give this kind of washing,’ which seemed to me quite terrible and burdensome and, to my feeling, grasp, and liking, quite backward.”

Cf. M. F. Kanga, Life and Letters of Manushchihr Goshnjam, in Prof. Poure Davoud Memorial 2:189, 198–99 (2 vols., 1951).

126 Mānuščihr, Nāmagīhā, supra Footnote note 121, at 1.6.5. Cf. Manek F. Kanga, A Critical Study of Epistle I Ch. 6 and 7 of Manuščihr Gošnjaman, in Memorial J. de Menasce 251, 255 (Philippe Gignoux & Ahmad Tafazzoli eds., 1974).

127 Mānuščihr, Nāmagīhā, supra Footnote note 121, at 1.6.1. Cf. Kanga, Epistle I Ch. 6 and 7, supra Footnote note 126, at 254.

128 On the ancient sages recorded in the Zand see Philip Gignoux, La controverse dans le mazdéisme tardif, in La controverse religieuse et ses formes 127 (A. Le Bolluec ed., 1995); Cantera, supra note 12 164239; Secunda, On the Age, supra Footnote note 12. On the legal “teaching” (čāštag) [as opposed to the “practice” (kardag) of the courts] in Zoroastrian law see Janos Jany, The Four Sources of Law in Zoroastrian and Islamic Jurisprudence, 12(3) Islamic Law and Society 291, 298302 (2005). See also Shai Secunda, The Sasanian “Stam”: Orality and the Composition of Babylonian Rabbinic and Zoroastrian Legal Literature, in The Talmud in its Iranian Context 140, 154–57 (Carol Bakhos & Rahim Shayegan eds., 2010); Secunda, On the Age, Footnote id., at 337–38. And see Šāyist nē Šāyist 1.3–4 [ Šāyast nē Šāyast : A Pahlavi Text on Religious Customs 2829 (Jehangir C. Tavadia ed. and trans., 1930)].

129 Other (nonlegal) texts by Zādspram survived, namely the Selections of Zādspram (Wizīdagīhā ī Zādspram), for which see Anthologie de Zadspram : Edition critique du texte pehlevi traduit et commenté (Philippe Gignoux & Ahmad Tafazzoli eds., 1993). He is also reported to have written “The Book of the Enumeration of Races” (nibēg ī tōhmag-ošmārišnīh), a treatise which has not survived but must have contained a description of animal species. See Philippe Gignoux, Zādspram, in Encyclopædia Iranica (online edition, available at www.iranicaonline.org/articles/zadspram).

130 Although Mānuščihr essentially belonged to the camp of legal “traditionalists,” as opposed to that of legal “rationalists,” he was clearly far-removed from the more extreme “traditionalist” (or rather “scripturalist”) tendencies of Ẓāhirī and certain Ḥanbalī jurists, who relied exclusively on the manifest meaning of the textual sources. Beyond his affirmation of the living Zoroastrian tradition vouchsafed in the doctrines of judicial practice (kardag) and legal consensus (ham-dādestānīh), Mānuščihr was acutely aware of the ambiguity inherent in the Avesta and Zand and the fact that varying textual accounts – either Avestan verses or legal teachings recorded in the Zand – occasionally support contradictory legal positions. Although Mānuščihr does not address qiyās (or its equivalent) explicitly, it would seem that some form or another of analogical-inductive logic based on the textual sources is inherent in his recognition of the ambiguity characterizing the revealed sources. In that sense, Mānuščihr’s legal theory seems to resemble that of Sherira and Shāfiʽī, insofar as all three authors shared an aversion to subjective legal reasoning, while making a limited concession to the employment of analogical-inductive logic strictly based on the textual sources.

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