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Home , Philosophical realism

AND IN QUMRANIC AND RABBINIC LAW: A REASSESSMENT

JEFFREY L. RUBENSTEIN New York University

D.R. Schwartz's noteworthy article, "Law and : On Qumran- Sadducean and Rabbinic Views of Law," proposes a powerful new for conceptualizing the fundamental between Qumran- Sadducean and Pharisaic-rabbinic law.' Previous studies generally sufficed with the vague characterization of Qumran law as "priestly" without defining exactly what this means or how it relates to specific legal issues. Schwartz, in contrast, examines numerous dis- putes between these two legal systems and explains how they devolve from two conflicting understandings of law. The rabbis were legal nom- inalists while the Qumran-Sadducean exegetes were legal realists, de- fined as follows:

From a systematic point of view, the contrast between the nominalist and realist trends is bound up with the contrast in concerning the actual of the link between God and the laws of the Torah-the contrast between a view of the commandmentsas orders resultant from the of the commanding God, on the one hand, and, on the other hand, a view of the commandmentsas guide- lines based in independently existing situations, which man, due to the grace of the wisdom-giving God, may introduce among his considerations by accept- ing the yoke of the commandments.'

' D.R. Schwartz, "Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law," The Dead Sea Scrolls: Forty Years of Research (eds D. Dimant and U. Rap- paport ; STDJ 10; Leiden: Brill; Jerusalem: Magnes Press and Yad Izhak Ben-Zvi, 1992). Schwartz bases the connection between Qumran and Sadducean law on J.M. Baumgarten, "The Pharisaic-Sadducean Controversies about Purity and the Qumran Texts," JJS 31 ( 1980) 157-70; J. Sussman, "The History of Halakha and the Dead Sea Scrolls: Preliminary Observations on Miq?at Ma'ase ha-Torah (4QMMT)," Tarbiz 59 (1989/90) 11-76 (Hebrew) and B.Z. Wacholder's lecture at the Eighth World Con- gress of Jewish Studies (1981). To these studies should be added L.H. Schiffman,"The Temple Scroll and the Systems of Jewish Law of the Second Temple Period," Temple Scroll Studies (ed. G.J. Brooke; JSPSup 7; Sheffield: Sheffield Academic Press, 1989) 250-53; idem, "The New Halakhic Letter (4QMMT) and the Origins of the Dead Sea Sect," BA 53 (1990) 64-73. 2 Schwartz, "Law and Truth," 231 n. 8. Schwartz borrows this definition from 158

Schwartz surpasses previous studies by relating this difference in legal philosophy to different views of repentance, predestination and con- temporary divine revelation, thus illuminating the common ground of law and theology. He then links law to socio-cultural considerations by explaining how realism makes in a priestly whereas nominalism better fits the situation of rabbis and sages. This insightful has gained a following at academic conferences and has been adopted by other scholars.3 All who share an interest in ancient Jewish law should appreciate this contribution to the field. However, like many innovative perspectives, Schwartz's position is somewhat overstated. In the following discussion I make three general . First, I present some considerations which militate against classifying rabbinic law as nominalist, and hence against seeing nom- inalism versus realism as the fundamental dispute between the rabbis and Qumran. Second, I argue that the specific legal disputes Schwartz analyzes fail to unequivocally support his conclusions. Finally, I will suggest some modifications to Schwartz's theory. I hope that my en- gagement with Schwartz's will contribute to a deeper of the two systems of law.

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The sources of Schwartz's conceptual apparatus should give us to pause before classifying rabbinic law as nominalist. Schwartz bor- rowed the terminology "realism" and "nominalism" from Y. Silman's article "Halakhic Determinations of a Nominalistic and Realistic Na- ture : Legal and Philosophical Considerations."' He quotes and endorses Silman's definition of the two approaches.' Silman's article was in

Y. Silman, "Halakhic Determinationsof a Nominalistic and Realistic Nature: Legal and Philosophical Considerations," Dine Yisrael 12 (1984-85) 25 (Hebrew); see below. See C. Werman, "The Rules of Consuming and Covering the Blood in Priestly and Rabbinic Law," RevQ 64 (1994) 622-36; A. Shemesh, "4Q271.3: A Key to Sectarian Matrimonial Law," JJS 49 (1998) 250-51. 4 Dine Yisrael 12 ( 1984-85)249-66 (Hebrew). 5 See n. 2. This definition and the subsequent use of the term is confusing. Nom- inalism and realism are philosophical terms related primarily to (where nom- inalism holds that material objects do not exist independent of our and realism holds that they do), or to the (whether universals have an objective or not) but Silman and Schwartz use them to refer to views of the "nature of law" (Schwartz, "Law and Truth," 230). "," as used in contemporary legal discourse, has little to do with . It also differs from Silman's definition. Legal realists are skeptical of the claim that law is an inde- pendent, self-sufficientsystem of rules. Therefore, they encourage judges to take into