CHAPTER SEVEN CONSTRUCTED AND DENIED: “THE Talmud” FROM THE BRISKER RAV TO THE MISHNEH TORAH Sergey Dolgopolski The construction of the medieval in modernity both implies and sheds light on the construction of the ancient in the Middle Ages; together, these actions shed further light on the nature of the shifting subject position from which such seemingly objective historical epochs are constructed. Of course, the notion that many things—identities, gen- ders, and epochs among them—are “constructed” is a postmodern truism, but what does this construction entail? The concept of “construction” often is simplistically understood as the opposite of and corrective for the positivist notion that things just naturally “are.” Yet what exactly makes a constructed object “objective” or “natural” is no trivial matter. Attributing the process of construction to an agent, say to “society,” as in the clichéd term “a social construct,” makes “society” the agent in this process, which is no less naturalistic than the “naturalistic” position it purports to oppose. Although construction implies an agent, construction is not a mat- ter of pure fabulation, of making things up from scratch. Rather, it implies extracting objects from their “natural” positions and assem- bling them into a new unity. Construction is in effect the inverse of the Romantic conception of expression, in which the subject, typified by the artist, openly puts his or her thoughts and emotions on display and even stresses them, in part at the expense of objectivity or “realism” in the representation of objects. By contrast to both naturalism and expressionism the construction of “objective” phenomena is attained by the withdrawal of the subject from the representation, as if, even though constructed, the representation is still objective. The act of construction thus always implies a certain kind of subject position— the withdrawal of the subject from the resulting representation of the Sergey Dolgopolski - 9789004234062 Downloaded from Brill.com09/24/2021 06:44:41PM via free access 178 sergey dolgopolski object.1 And how that object is constructed in turn illuminates the nature of the subject position involved. The ordinary logic of the representation of “objective” entities sug- gests that what is represented precedes the representation in time. Contrary to that logic, the constructed object does not precede its rep- resentation, but rather emerges concurrently with the withdrawal of those subjects whose construct it is. This makes the withdrawal itself a purely structural matter, an essential part of the logic of construction, rather than a specific event in terms of time or chronology. The construction of antiquity and the Middle Ages in the history of the Talmud and its interpretation is no exception to this process. This essay traces how modern interpreters construct Maimonides by reenacting, in a new way, how Maimonides constructs the “ancient” Talmud as a merely rhetorical form of thinking, as opposed to a ratio- nal, philosophical mode of thought, and redeems the content of the Talmud in a new, more philosophical-rationalist form, that of a legal code. It then shows how, in the works of Maimonides’ modern inter- preters, Maimonides becomes a figure of transition from the “medieval” subject position to the “modern” subject position of post-Kantian transcendental philosopher. What is involved in the construction of antiquity and the Middle Ages in the history of the Talmud and its interpretation is thus a dou- ble withdrawal in which, first, the supposedly “ancient” nature of the Talmud is constructed from a subject position, typified by Maimo- nides and his contemporaries, in which philosophical and talmudic modes of thinking are positioned as opposing each other. In regarding philosophy and rhetoric as opposed to each other, Maimonides was in agreement with other medieval Talmudists, the Tosafists, although they privileged the practices of rhetoric in what was seen as ancient, whereas Maimonides privileged philosophy. In thus privileging phi- losophy and dismissing the Talmud’s form as merely rhetorical, Mai- monides critically withdrew from the supposedly rhetorical form of the Talmud to a purely philosophical subject position from which he translated the Talmud into a philosophically rational code of law. Then, in a second act of construction and critique, modern com- mentators have redeemed Maimonides from this now supposedly 1 See Theodor Adorno, Aesthetic Theory (Minneapolis: University of Minnesota Press, 1997). Sergey Dolgopolski - 9789004234062 Downloaded from Brill.com09/24/2021 06:44:41PM via free access constructed and denied 179 “medieval” context and have reinvented him as a modern philoso- pher-Talmudist, seen now from the subject position of neo-Kantian transcendental philosophy. Both withdrawals construct and deny the “ancient” view of the Talmud as a narrowly “rhetorical” (that is, anti-philosophical) form of thinking. However, modern critics have withdrawn from the subject position based on the opposition between philosophy and rhetoric to a position that putatively transcends that position.2 This final position is typified by the work of the Brisker Rav in the nineteenth century and by that of his grandson, R. Joseph Soloveitchik, who, following the work of the greatest of the Jewish neo-Kantians, Hermann Cohen, overcomes the “ancient” opposition of philosophy and rhetoric as far as the Talmud is concerned, inter- preting it as neither one but instead as “pure thought,” a position that the modern Talmudists find in Maimonides, thus reshaping him into a modern thinker. All this, however, does nothing and can do nothing to shake the initial construction and critique of the “ancient” form of the Talmud in philosophical terms as “rhetorical,” because this con- struction has created a fantastic “ancient” and consequently a fantastic “medieval” as epochs against which critical thinking can operate. Constructing the “Old”: The Talmud as Refutations Maimonides constructs the Talmud as an object of criticism in his comprehensive legal code of Jewish law, the Mishneh Torah (MT). His self-declared intent seems to be to remove all debates and to organize and present the final rulings so that all of the Oral Law is accessible to everyone without the need for anything else. However, because the subject position in constructing the Talmud is structural rather than temporal, it is neither bound to the intellectual program of any particular thinker nor confined by the historical circumstances of any thinker’s work. Therefore, while understanding the process by which Maimonides constructed the Talmud and the way in which he did so 2 For the purposes of my argument here, it will suffice to say that while, as many scholars have suggested, Maimonides drew on the Aristotelian idea of the inclusion (and therefore translatability) of rhetoric in philosophy, his modern interpreters took a Platonic view in which rhetoric must be excluded from philosophy altogether, unless, as I explain in the essay, one takes a transcendentalist position in which one can indeed be both a philosopher and a Talmudist. Sergey Dolgopolski - 9789004234062 Downloaded from Brill.com09/24/2021 06:44:41PM via free access 180 sergey dolgopolski must begin with Maimonides’ own historical period, it must not be limited to it, much less to his self-declared intent in writing the code of the MT. In fact, exploring the self-declared intent of Maimonides does not advance our understanding of the process of construction. As Moshe Halbertal has argued, the ambivalence in that intent is irre- solvable: it remains impossible to determine whether Maimonides was proposing the final and therefore obligatory formulation of the law or only a more systematic and therefore more convenient rendition thereof.3 The irresolvable ambivalence of Maimonides’ self-declared intent thus prompts us to analyze not the thinking of Maimonides as an individual, but rather the subject position from which Maimonides’ interpretation of the Talmud stems. While the intent in Maimonides’ MT might have been ambivalent, his construction of the Talmud is not. The Talmud emerged, or rather was constructed in his work, as a certain form, approximated as a “debate,” which the thinker trans- formed into a new form, that of the Code of Law.4 3 Moshe Halbertal, “What Is the Mishneh Torah? On Codification and Ambiva- lence,” in Maimonides after 800 Years, edited Jay M. Harris (Cambridge, MA: Harvard University Press, 2007), 81–113. 4 Even if and precisely because the question of the self-declared intent of Maimo- nides is ambivalent, scholars have continued to address the question of the relation- ship between the Talmud and the MT. As Shamma Friedman highlights, Maimonides’ contemporaries asserted without doubt that he sought to replace the Talmud with his code, at least for the purposes of both studying and practicing Jewish law. In their view, Maimonides had certainly proposed replacing learning the Talmud with study- ing his code, a proposal that they consequently either endorsed or opposed. Shamma Friedman, “The Talmud of Maimonides,” in Dinei Israel: Studies in Halakhah and Hebrew Law, vols. 26–27 (Hebrew) (Tel Aviv: Tel Aviv University; New York: Yeshiva University, 2008–2009), 221–239. Scholars of the modern period, however, consid- ered such an interpretation mistaken. Instead, they presented different explanations of Maimonides’ position, interpretations in which the code culminates the study of the Talmud as an intellectual pursuit but does not replace it. That scholars have been divided on these issues is indicative of complexity in Maimonides’ thinking about the Talmud. Most readily, as Friedman helps us to see, Maimonides understands the Talmud in two ways: as a literary corpus (content), which he does not dismiss, and as a literary-intellectual form, which he does seek to replace with the more systematic form of the code. However, this dualism of content and form needs to be understood in terms of the broader context and greater nuance of Maimonides’ work in order to shed light on the tacit work of constructing the Talmud as an object of either critique or defense during and after Maimonides’ time.