The Talmud (9 page)

Adam was created alone to teach you that whoever takes a human life is considered by the Bible to have destroyed an entire world. And whoever saves a human life is considered by the Bible as if he preserved an entire world.
20

Initially Jewish ideas found their way into Islam but the process’s subsequent reversal can be spotted in matters of finance and commerce. Talmudic law matured in Baghdad in a commercial, Islamic environment and Shmuel had already declared that when it came to civil law ‘The law of the land is the law’. This gave the
geonim
flexibility in commercial matters to amend or even abrogate Talmudic sanction as necessary.

We can see an example of this flexibility in the laws governing money transfers. The Talmud had instituted that, as a precaution against fraud, merchants could not transfer money by bills of exchange even when these were
countersigned by witnesses.
21
However a
geonic
ruling overturned this ruling on the basis that people were already doing it, and that it was in accordance with the Islamic laws that regulated merchants.

It is true that the sages said we should not send money by bills of exchange, even if witnesses have signed them. However, since we have seen that people use them we have begun to accept them in court in order not to impede trade between people, and we give judgement according to the traders’ law; neither more nor less.
22

Mark Cohen points out that this ‘shared judgement of Muslim and Jewish legal experts … could only occur in a market atmosphere that knew no confessional boundaries’.
23

An extensive survey by Gideon Libson has shown similarities between the rulings of a tenth-century
gaon
, Shmuel ben Hofni, and Islamic legal writing of the same period. Of course, as Libson concedes, the fact that there are similarities between two legal rulings in different systems doesn’t necessarily mean that one system was dependent upon the other; they may both have independently derived their rulings from a third source that they each knew.
24
But with all the other evidence of contact and cross-influences between the faiths, it’s pretty likely that the Talmudic and Islamic systems of law influenced each other.

Talmudic and Islamic scholars cross-fertilized in legal matters because they lived in the same mercantile society. But the two traditions didn’t just overlap when it came to the law. Story telling was an art in the folklore-rich Arabian world.

Amongst the few things that the patchwork of Jewish sects in the Arabia Peninsula had in common was a repository of folklore. The Talmud had drawn on some of it, but there was much more which it did not absorb, including literature linked to the secessionist priestly sect at Qumran, who are best known as the authors of the Dead Sea Scrolls.
25
Early Islam had drawn in Jewish converts who recounted these Dead Sea tales along with everyone else, based on their memories of legends they had heard as Jews.

As these stories began to circulate they took on an Islamic guise; the more they were repeated in the Islamic world, the more they were adapted to fit the cultural context.

This folklore, which became known as
Isra’iliyyat,
was not always looked upon kindly by Islamic leaders. It frequently came in for fierce censure. The Egyptian scholar Ahmad Shakir explains that
Isra’illiyat
literature can only be regarded as supporting mainstream Islamic traditions, it should not be relied on unless it is confirmed by the Qu’ran and Hadith.
26

Amongst the many Jewish converts whose stories entered Islamic hagiography, two in particular stood out. K’ab al-Ahbar, a Yemenite Jew, is thought to have been one of Caliph Umar’s closest advisers. Amongst the sayings attributed to him is that all human history is alluded to in the Jewish Torah; a Talmudic idea first expressed by the intriguingly named Ben Bag-Bag.
27

Another convert, or possibly the son of one, Wahb ibn Munabbih, wrote, or contributed to, a work known as
Kisas al-Anbiya
, the Tales of the Prophets which recounts Jewish Biblical legends, recast in an Islamic guise. Kisas al-Anbiya is considered to be the source for the Islamic belief that Abraham is commanded to sacrifice Ishmael, rather than Isaac as the Hebrew Bible has it. The Qu’ran does not say which son was nearly sacrificed. Wahb’s other major work,
Kitab al-Isra’illiyat
, or Book of Jewish Matters, no longer exists but some of its tales appear, in an Islamic context, in the
Thousand and One Nights
.

Temporal power and scholarly authority

The
geonim
as heads of the academies had a far more exalted status than their counterparts during Talmudic times. We know the names of hundreds of
amoraim:
academy heads, senior scholars and students. In the later period, however, with very few exceptions we only know the names of the
geonim.
They seem to have ruled with far greater authority than the heads of the
amoraic
academies, and they kept their office within the leading families. The position of head of the academy frequently passed from father to son or from one brother to another.

Unlike their compatriots in Israel, the Jews of Babylon were tolerated by the Islamic rulers. Together with other minority religions they were free to worship according to their faith, as long as they did nothing to offend Islam. Pirkoi ben Baboi, a ninth-century Talmudist recounts that the ‘two academies in Babylon did not witness imprisonment, forced conversions or plunder; nor were they dominated by Greece or Rome’
28

Nevertheless the caliph ruled supreme. His empire was vast and diverse; to hold it all together required strong military, political and diplomatic control. Even though the exilarch was appointed by the heads of the
yeshivot
and the elders of the community, his tenure was now to be ratified by the caliph.
29
And his court was to be relocated from Mahoza to Baghdad. There was to be no repetition of Mar Zutra’s attempt to establish an independent Jewish state. Nor would the Commander of the Faithful permit a repetition of the Exilarch Bustanai’s alliance with the Sassanian Empire when Caliph Umar’s forces had first invaded. We encountered Bustanai’s son discussing the names of the stars in Joseph’s dream with the prophet Mohammed in Medina.

Most of Bustanai’s life is the stuff of legend and it is hard to unravel the historical detail. But as versions of his legend are attested in several Muslim and Jewish sources,
30
there is probably an historical core to it. Bustanai’s father, the previous exilarch, had been slain by one of the Sassanian kings; the accounts differ as to which monarch it was. One night King David, the traditional ancestor of the exilarchs, appeared in a dream to the Sassanian monarch and warned him, on pain of death, to stop slaying his descendants. Seeking to put right his offence, the king took the orphaned Bustanai under his wing and appointed him exilarch.

Bustanai’s followers fought with the Sassanians against the Muslim invaders but it was no more than an alliance of convenience. Following the Muslim victory he signed a peace pact with Caliph Umar. As part of the deal Umar gave him one of the daughters of the defeated Sassanian king as a wife. Bustanai now had two wives, one Jewish and one Persian. However, the Persian wife, as a prisoner of war, was technically a slave and the sons of his Jewish wife tried to exclude her children from inheriting their father’s title. The scholars of the Babylonian academies found in favour of the children of the Persian princess,
ruling that Bustanai had liberated her from her status as a slave. Bustanai’s descendants from each branch of his family eventually became exilarchs but three hundred years later the matter was still being hotly disputed; the legitimacy of the Persian line challenged by the then leader of the Babylonian community, Hai
Gaon
.

The powers of Bustanai’s successors under the caliphate, although diminished from their peak under Sassanian rule, were nevertheless considerable. Although the exilarch no longer had the right to judge criminal cases, other than in exceptional circumstances, he was still able to levy taxes upon his Jewish subjects. According to one report he would collect 20 per cent of their income together with a proportion of any produce and additional levies whenever a house was built or a wedding conducted.

The exilarch resided in state in a palace stretching from the Barley Gate to the Harranian Arch in the Western quarter of the city. Once ‘crowned’, in an elaborate feast, during which he would be showered with gifts, he remained in his palace. He would only leave if summoned to visit the caliph, when he would travel in a royal carriage accompanied by his entourage, their numbers swelled by onlookers who would join the throng as the exilarch travelled through the city.
31

But for all the exilarch’s grandeur he was merely the embodiment of temporal authority. He sat at the head of society but he did little for it that was not ceremonial. His memory endures solely due to the enterprise of his scholarly colleagues, those who were working to fulfil their perceived spiritual mission. It was the
geonim
who were responsible for the legal and social structures that would allow the Talmud to grow beyond Baghdad, and to exert its influence on a world that was growing ever more connected.

Notes

1
Avot 5.22.

2
Goitein, 1952.

3
Gil, 2004.

4
Gil, 2004.

5
Gil, 2004.

6
Stillman, 2012.

7
Cohen, 1994.

8
Goitein, 2005.

9
Lassner, 2012.

10
Abu Isa was a Jewish schismatic. He promoted the doctrine of the one True Prophet who has revealed himself successively in every religion, and held that all religions are repetitions of each other. See Friedlaender, 1912, p. 121 and the sources quoted there.

11
As Gil remarks ‘Any attempt to determine when the use of their title began is a waste of time’ (Gil, 2004).

12
The month-long sessions, known as
kallah
, are mentioned in the
Iggeret
of Pirkoi ben Baboi, reproduced in Lewin, 1930–1, p. 120. Moshe Gil (Gil, 2004) maintains that the academies continued their regular sessions of study, analysis and debate, just as they had always done, and although he is probably right there is very little confirmatory evidence for this, or indeed any other, view.

13
Libson, 1995.

14
Goitein, 2005.

15
Cohen, 1994.

16
E.g. Qu’ran Sura V.44.

17
Qu’ran Sura II.187.

18
See Chapter 1.

19
Qu’ran Sura V.32.

20
M. Sanhedrin 4.5.

21
Bava Kamma 104b.

22
Teshuvot Hageonim (Harkavy) 423; Goiten, 1967 vol. 1, p. 328.

23
Cohen, 1994.

24
Libson, 1995.

25
Halperin and Newby, 1982. On the Qumran sect as a secessionist priestly sect see Elior, 2004.

26
Shakir, 1956. For a detailed discussion of the relationship between Isra’iliyyat and the Jewish folklore, or
aggadic
tradition see Heller, 1934, p. 383–405.

27
Mishnah Avot 5.22.

28
Iggeret of Pirkoi ben Baboi, reproduced in Lewin, 1930–1, p. 395.

29
Gil, 2004.

30
A comprehensive review of the sources and various forms of the legend appears in Gil, 2004.

31
Gil, 1995.

6

From your father’s house

Ben Zoma said: Who is wise? He who learns from all men. Who is mighty? He who subdues his passions, Who is rich? He who rejoices in his portion.
1

The Talmud’s expanding influence

Both the Talmudic and Islamic scholars shared the same imperative, to extend their authority beyond their immediate neighbourhood. It was important for the Islamic scholars because the faith was relatively new, the empire was still expanding and there were many areas that were not yet fully Islamized. It mattered to the Talmudic scholars because the small Jewish nation was scattered over a vast geographical area, and the danger was that without a centre of influence the faith may weaken and dissipate.

There was also the question of the Jerusalem Talmud, which still exerted its authority in regions which the Babylonians wished to reach. Although Israel was the ancestral homeland its impoverished community was lacking in leadership and serious legal scholarship. Its main cultural activity had for some time been the production of poetry and biblical interpretation; disciplines which the scholarly
geonim
considered relatively unimportant. In the early days Babylon had accepted the authority of the scholars in the Holy Land without question; now this was no longer the case. The last time we hear of a Babylonian scholar applying to the Academy in Israel for the answer to a problem was in the late fifth
century.
2

As scholarship in one centre blossomed and the other faded the contest between the two Talmuds for influence was to grow increasingly trenchant. The Babylonian Talmud’s position at the heart of the Islamic Empire gave its advocates an advantage over its hard-pressed rivals in Israel; the majority of Jews lived under Islamic rule and it was far easier to communicate with them from Baghdad than from Jerusalem.

Additionally, and perhaps most importantly, the sectarian threat had not been dispelled. There was a growing body of dissenting voices within the Jewish world; sects which had never been part of the rabbinic camp or which had become disillusioned with it and now, tolerated by the caliphate, were becoming more vociferous. Spreading the Talmud far and wide was one of the strategies the
geonim
would try to use to bring these communities into the mainstream.

It was no coincidence that the scholars of both faiths used identical tools to promote the fruits of their labours. One was the new science of codification; which reduced complex legal discussions to systematic, logically arranged summations of the law. The other was the well-established craft of letter writing.

Even today, when printing has standardized the Talmud text, it is astonishing how few of the discussions it contains end up with a definite legal conclusion, most of which were added in by later editors. The Talmud was not then, and is still not, a rule book. Its genius lies in taking the detailed case law of the Mishnah, defining the principles and concepts that underlie it and advancing arguments that can be used to underpin a subsequent legal ruling.
3
Its lack of clarity, its tendency to avoid decisions, was not unusual for its time, the whole business of making laws evolved very slowly in all ancient societies, over a period of several centuries. In fact up to this point the connected world had only ever known one true legal code.

When the Byzantine emperor Justinian I assumed power in 527
ce
he found Roman law in a terrible mess, completely disorganized and with no formal structure. He immediately appointed a commission to go through all the legal material, verbal and written, to eliminate contradictions, get rid of redundancies and put the whole thing into a systematic order. The result was the Justinian code of Roman civil law. It functioned as the law book of the Byzantine Empire
and influenced all subsequent legal developments wherever Roman influence was still felt.

The Justinian code had been formulated in the Roman west in the sixth century but it wasn’t until the late eighth century that a flurry of codification activity broke out amongst major religions in the east. Islam, Zoroastrianism, Monophysite Christianity, Nestorianism and Judaism all produced legal codes. Benjamin Jokisch
4
suggests that the starting point for all these activities was in and around Baghdad. He conjectures that the caliph Harun al-Rashid and his childhood teacher, subsequently to be appointed vizier, Yahya ibn Khalid, organized round-table sessions in which leading representatives of the different faiths had the opportunity to exchange ideas. Jokisch even proposes that, just as Justinian had done, al-Rashid may have set up a legal commission comprising both Islamic and Talmudic jurists, with the different religious parties each laying down a codex of their own. He suggests that Shimon Kayyara and Pirkoi ben Baboi may have been amongst the Jewish members of the commission.
5

Shimon Kayyara has gone down in history as an instrumental figure in the process of codifying and systematizing Talmudic law. A ninth-century, comprehensive legislative code,
Halachot
Gedolot
, is attributed to him. If Jokisch is right then it would have been this code that he worked on in the caliph’s inter-faith legal commission. But
Halachot
Gedolot
was only one of at least three codifications of Talmudic law that emerged around the same time. Another was
Halachot
Pesukot,
said to have been produced by Yehudai
Gaon
. It’s hard to know which came first. Modern academic opinions are divided as to which of these two codes (if either) influenced the other, whether or not they really are different versions of the same work and even whether Shimon Kayyara and Yehudai
Gaon
really were the authors! But while all this is unclear there is no doubt that the production of these two codes was a seminal development in clarifying the legal rulings of the Talmud and projecting its influence beyond Babylon.
6

The third summary of Talmudic law was written by the head of the Pumbedita academy, Ahai
Gaon.
Known as the
She’iltot
, it was very different
from the other two works, and became much more popular. Ahai had spent thirteen years living in Israel after the exilarch refused to appoint him as the head of the Pumbedita academy. It was there that he learnt new techniques for drawing ideas out of the biblical text
7
and he used them to good effect in his S
he’iltot.
Unlike the authors of
Halachot Gedolot
and
Halachot Pesukot,
Ahai didn’t arrange the laws according to topic. Instead he linked them to the text of the Five Books of Moses, and he did so with a homiletical eye, often leading to some quite odd results. The laws of robbery are not included, as one might think, after ‘Thou shall not steal’ in the Ten Commandments. Instead they are used to expand the story of Noah which the Bible introduces with the words ‘And the earth was filled with violence’. For Ahai that violence was characterized by robbery.

She’iltot
is based on the Talmud and draws its material from there, yet it was composed before the final version of the Talmud.
8
This shows us just how fluid the editing process of the Talmud was; and how long it survived in an oral form before it was finally written down.

Questions and answers

Codification enabled people to access a concise summary of the law but codes in themselves didn’t help much in building relationships between the academies and distant communities. A far more effective way for the Talmudic and Sharia scholars to establish their authority was by corresponding with their co-religionists, answering their questions and providing religious guidance. The Jews called these answers
teshuvot
; the Muslims called them
fatwas.
Academics of all faiths and none call them
responsa
.

In the second half of the ninth century, the leader of the Sura academy, Amram
Gaon
, received a question from a Jewish community in Spain; possibly Barcelona. It concerned a Talmudic injunction that one should recite a hundred blessings each day.
9
This injunction doesn’t receive a lot of attention in the Talmud, the discussion in which it occurs moves on quite quickly. But it was
important to the people who sent the question. They wanted to know, what are these hundred blessings? Amram’s predecessor and teacher Natronai
10
had previously been asked a similar question by the people of Lucena in Cordoba but whilst he refers to Natronai’s answers, Amram’s response was far more detailed.

Amram’s reply, addressed with the flamboyant courtesy of the age to ‘Rabbi Isaac son of our rabbi and teacher Shimon, beloved, exalted and honoured by us and the entire
yeshiva
’, is effectively the earliest known prayer book.
11
In it he sets out the blessings, the times they are to be recited and manner of their recital. Of course, he didn’t intend it to be a prayer book; such a thing was unheard of in those days.
12
All Amram was doing was to answer a question posed by a remote community, but in such detail, and in such a prescriptive manner, that he reinforced the Babylonian Talmud as the natural, and only, source for determining Jewish law and practice.

The
geonim
didn’t invent the practice of sending
teshuvot;
missives containing legal decisions were already well established by their time. The Roman emperor Augustus had long ago appointed official jurists who had the right to issue
responsa
on behalf of the Emperor. The Talmud itself contains a dispute in which Rav Kahana, whom we met when he was forced to flee Babylon for Israel, was accused of erecting a fence which encroached on his neighbour’s land. This was in the days when the Academy in Israel was still considered the supreme authority. Kahana denied the charge and offered to bring a letter from ‘the West’ (i.e. Israel), confirming that his understanding of the law was correct.
13

But although the practice was well established, the sending of written answers accelerated in the
geonic
period; sometimes, as in the case of Amram, the answers were in response to a question from a distant locale, at other times
the ‘answers’ were sent at the
Gaon’s
initiative, to make a particular point or pre-empt a forthcoming situation from developing.

Some of the earliest
responsa
sent to local towns or communities dealt with issues that arose due to the interlocking of Talmudic and Sharia law. One early incident concerned the laws of divorce. The Talmudic custom had been that when a wife wanted a divorce, there should be a twelve-month cooling off period.
14
This restriction did not apply in Islamic law and, some Jewish women, unwilling to wait a full year, gave up on their Jewish divorce and married Muslim men. This seems to have obliged the Jewish courts to order an immediate divorce; though it’s not clear whether this was due to pressure from the Islamic authorities. In any event around the year 650
ce
two of the early
geonim,
Huna and Rava sent out letters authorizing divorces to be given immediately, so that women would no longer need to resort to the Islamic courts.
15

The system of sending written answers to distant communities was less than sophisticated. Very often no record of either the question or the response was preserved in the Academy. So the Talmud scholars in Babylon frequently did not know decisions circulated by earlier generations, even though these decisions were known elsewhere. Some of the rulings of Yehudai
Gaon
, who was active around 760
ce
, only became known in Babylon a hundred years later, when they arrived back in Baghdad, brought by Jewish captives from Christian countries.
16

By Amram
Gaon
’s time
responsa
were being sent to communities throughout the Islamic Empire. Most of the traffic was with settlements in Egypt, North Africa and Spain. The nineteenth-century discovery of a thousand years of religious and secular Hebrew documents stored in a synagogue attic in Fustat, Cairo, has unearthed hundreds of
responsa
, covering everything from the most technical laws about ritually unfit meat to obscure religious customs and ceremonies that were unique maybe only to a handful of villages.
17
One
tenth-century letter found in the Cairo
Genizah
, which made its way to the Bodleian Library in Oxford and was published in 1906, tells us that in the middle of the ninth century another of the
geonim
, Paltoi, was asked by a group in Spain to send them a copy of the Talmud, together with explanations, and this he duly did. Unfortunately we have no other evidence of this so it is hard to know exactly what is meant. It’s pretty certain that the full, 1.8 million-word document that we know today had not yet crystallized into a format that could be written down. It is likely therefore that Paltoi sent them extracts, an abridgement or an explanation of what the Talmud was.
18

The
responsa
functioned as more than just ritual guides and legal decisions. A
gaon
might sometimes decide to send one for propaganda purposes, or to drive home a polemical
point.
19
None was better at this than Pirkoi ben Baboi, even though he wasn’t a
gaon
. Pirkoi was born towards the end of the eighth century and was a pupil of Yehudai
Gaon
, whose
responsa
had been brought back by captives to Baghdad a century after they had been written. What makes him particularly interesting is that he used his
responsa
to fight two battles at the same time.