Zalman Rothschild on Moshe Halbertal
Jewish law considers the topic of doubt worthy of occupying an entire category of law unto itself, and this category is arguably the most nuanced, complex, and difficult area of rabbinic law. Elaborate rules and discussions pertaining to doubt can be found in nearly every tractate of the Talmud. In The Birth of Doubt, Moshe Halbertal treats these rules in the context of Jewish laws dealing with forbidden and permitted foods, purity and impurity, monetary disputes, lineage, and prayer. He focuses primarily on the earliest stratum of rabbinic law, the Mishnah and Tosefta (works that were redacted at the beginning of the third century CE). The Birth of Doubt not only constitutes a valuable scholarly contribution to the field of early rabbinics, but also sheds important light on the nature of Jewish law.
One of Halbertal’s case-studies is of doubt surrounding the legal status of meat. The Babylonian Talmud – redacted in the late rabbinic period (seventh century CE) – records the following rule: if one forgets from which store he purchased a piece of meat, then despite the fact that nine out of ten neighborhood stores are owned and operated by Jews, if even one is owned and operated by a non-Jew, the piece of meat is deemed not kosher. However, if one chances upon a piece of abandoned meat in the street, then even if only a slight majority of neighborhood stores are owned and operated by Jewish butchers, the slightly greater probability that the meat originated from a kosher butchery renders it kosher. The puzzling disparate treatment of two hypothetical pieces of meat in the same neighborhood is grounded by the Talmud in the formalistic legal distinction between that which is “fixed in its place” and that which is “uprooted from its source” – a justification Halbertal rightly finds unsatisfactory.
Halbertal helpfully locates an earlier parallel source which offers a different type of distinction: this time not between purchased meat and found meat, but between two types of purchases, one from a store and the other from a booth at the market. With respect to a store, any degree of doubt regarding the meat renders it unkosher. But in the case of the market, only doubt involving a fifty or higher percent probability that the meat is unkosher renders it unfit for consumption. In other words, even if a slim majority of the butchers selling meat in the market are Jewish, that slight probability tilts the scale such that one may assume the meat is kosher. Although the fifty-one percent probability is the same if the meat was purchased from a shop or a booth in a market, Jewish law treats them differently. Why? Here, Halbertal offers a compelling explanation.
Halbertal makes sense of these disparate and seemingly arbitrary standards for determining permissible consumption by drawing attention to the early rabbis’ sensitivity to the chaotic nature of the public marketplace and human frailty. Early rabbinic authorities appreciated that a purchaser of meat in a busy market is more prone to forgetting from whom he made his purchases. The anxiety surrounding doubt as to the source of the meat and a responsive draconian rule requiring one to assume the worst when in doubt would disincentivize merchants from participating in public markets. The earliest stratum of rabbinic law, with great foresight and sensitivity, established a rule according to which the Jewish merchant can enter the marketplace armed with confidence that an entire system of laws would be implicated in any situation of legal doubt, and that this system of laws does not stringently require him to dispose of anything he purchased for which he does not have near certainty that it is kosher.
On its face, Halbertal is merely doing the work of a diligent philologist. He is tracing parallel sources, noting their discrepancies, and parsing their differences – a service of undoubtable value to scholars of early rabbinics. In fact, he is doing more than just making a philological scholarly contribution. He is also subtly demonstrating how a rule from Judaism’s foundational era has significant implications for early rabbinic values and priorities even as it was passed over by later Jewish legal authorities. Conducting a textual archeological dig of sorts, he unearths an early stratum of Jewish law that has been obscured by eighteen centuries of Jewish legal discourse. In doing so, he foregrounds a forgotten value that can rightly be called a founding principle of Jewish law. That value can be described as recognizing the power of doubt and destabilizing it in the face of religious-legal anxiety.
Halbertal provides another example of rabbinic sensitivity to the phenomenon of doubt, this time from the laws of purity and impurity. These laws, discussed extensively in the Hebrew Bible, have as their design the aim of segregation. If one is deemed impure because one has touched a corpse, for example, one is instructed to separate from society until the impurity is lifted. One’s own impurity is contagious and causes those with whom one comes into contact to become impure as well. Thus, Biblical law created a stringent set of rules surrounding impurity, which early Jewish law further developed. But, as Halbertal deftly shows, it developed these laws with an unexpected twist.
Early rabbinic law provided a system of rules for when one is in a state of doubt over whether one had touched an impure object. Because impurity was taken very seriously in the Hebrew Bible, early rabbinic law took great care to treat it with comparable seriousness (even as much of it was irrelevant in the era in which these laws were codified). Thus, when one is not sure whether one touched a corpse, early Jewish law mandates that one assume the worst; absent surety to the contrary, one who has doubt whether one came into contact with something impure must segregate from society.
But, strangely, early rabbinic law inserted a wildly different rule for doubts regarding whether one came into contact with impurity in the public domain. There, the rule is flipped; one can assume the best and is deemed pure absent surety that one in fact did come into contact with impurity. Early Jewish law’s opposite rules for the private and public domain resulted in a peculiar outcome: if an elderly person on her death bed about whom there is uncertainty whether she is alive or dead is moved from her home to the public domain, she is considered alive and pure and anyone who touches her is deemed pure, too. But the moment she is moved back to her home, upon crossing the threshold she is considered dead and impure, and anyone who touches her is in turn deemed impure, as well.
Halebrtal explains the disparate treatment of the private and public domain similarly to how he explains its divergent rules regarding the status of meat. The rationale governing these purity rules is that uncertainty should not trigger paralyzing religious dread such that one can no longer enter public spheres and interact with society. The rules pertaining to uncertainty with respect to the status of meat and impurity were thus designed, in Halbertal’s view, precisely to enable entering spaces that invite uncertainty – the market in the case of forbidden foods, and the public domain with respect to impurity.
By bringing attention to the very first encounters with uncertainty in early rabbinic literature (the Mishna and Tosefta), Halbertal insightfully demonstrates the ways in which early Jewish legal authorities were keenly interested in “demarcate[ing] and limit[ing] the destabilizing power of doubt and fear of uncertainty.” The heaps of laws surrounding states of uncertainty – which Halbertal correctly describes as some of the most complex areas of Jewish law – were not designed, by virtue of their sheer volume and complexity, to increase anxiety but to quell it. Early rabbinic engagement with doubt was thus an expression of liberation, not legal bondage. Its intent was not to compound hair-splitting laws on top of likely never-to-be-experienced hypotheticals for the sake of burdening Jews with laws where none previously existed, thereby adding to their already extensive repertoire of rules. Rather, this complex system was intended to free up the Jewish practitioner.
The alternative to a system of norms surrounding legal doubts is not license to do as one pleases when confronted with doubt, but paralyzing religious anxiety. The default, according to Halbertal, is to assume the worst in any situation involving doubt. Thus, a merchant who frequents the public market and forgets from whom he purchased meat would err on the side of stringency – as did Jewish sectarians, in Halbertal’s estimation – and assume the meat is not kosher. The rabbinic rule that so long as fifty-one percent of the butchers at the market are Jewish, meat about which there is doubt is deemed kosher encourages societal engagement. With laws of doubt in place, one could enter the market confident that Jewish law allows for human error and provides a ready system of detailed and forgiving laws to which one could resort when needed.
Those concerned with Jewish law’s foundational period and the values on which it is premised will find in The Birth of Doubt not only an erudite scholarly study of some of the most complicated laws in rabbinic literature, but also a timely reflection on several important values – one of which is the early rabbinic agenda of advancing engagement with society. In The Birth of Doubt, Halbertal not only unearths a particular phenomenon regarding a few specific laws, but brings awareness to a gestalt that, if taken seriously, compels one to see early Jewish law in a different light. It pushes one to reckon with its deep humanity and see it not as a draconian and exacting system of norms concerned only with obedience and perfection, but also as a deeply humanistic enterprise that took into serious consideration other human needs.
Zalman Rothschild is Nonresident Fellow at the Stanford Constitutional Law Center and Adjunct Professor of Law at New York University School of Law. His scholarship on law and religion has appeared in Columbia Law Review, University of Chicago Law Review, and California Law Review.