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A Judge with No Courtroom: Law, Ethics and the Rabbinic Idea of Lifnim Mi-Shurat Ha-Din

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A Judge with No Courtroom: Law, Ethics and the Rabbinic Idea of Lifnim Mi-Shurat Ha-Din A Judge With No Courtroom: Law, Ethics and the Rabbinic Idea of Lifnim Mi-Shurat Ha-Din Deborah Adèle Barer Boston, MA B.A. in Religion, Oberlin College, 2006 M.A. in Religious Studies, University of Virginia, 2013 A Dissertation presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Department of Religious Studies University of Virginia August 2016 A Judge With No Courtroom: Law, Ethics and the Rabbinic Idea of Lifnim Mi-Shurat Ha-Din Deborah Barer © Copyright by Deborah Adèle Barer ALL RIGHTS RESERVED Abstract A Judge With No Courtroom: Law, Ethics and the Rabbinic Idea of Lifnim Mi-Shurat Ha-Din offers a new paradigm for understanding the enigmatic Hebrew phrase lifnim mi- shurat ha-din, which lies at the center of ongoing debates over the relationship between Jewish ethics and Jewish law. Contemporary scholars largely understand lifnim mi-shurat ha- din as indicating one of two types of morally praiseworthy action: cases in which a person ethically exceeds his or her legal duty, or cases in which a person forgoes a special right or privilege under the law. Over and against these two models, the present study argues that the Talmudic use of this phrase does not indicate a specific type of action, but instead refers to a specific type of rabbinic decision-making. The dissertation claims that the Talmudic editors primarily adopt the phrase lifnim mi- shurat ha-din, which first appears in tannaitic literature, as a way of addressing a set of narratives about rabbis whose behavior does not conform to established rabbinic norms and standards. By classifying such behaviors as lifnim mi-shurat ha-din, the editors preclude them from establishing legal precedent and neutralize potential conflicts among their sources. The application of this label does not simply resolve hermeneutic or legal challenges, however, but also establishes a new model of rabbinic decision-making. Through an analysis of the classical rabbinic sources that create this category, this study examines how the Talmud constructs an understanding of lifnim mi-shurat ha-din as discretionary judgment, both in relation and in opposition to the more prominent Talmudic model of rule-based judgment. The primary focus of the present work is to elucidate and clarify the idea of lifnim mi- shurat ha-din in Talmudic sources. By highlighting the role that questions of judgment play in discussions of rabbinic behavior, however, it also introduces a new framework for exploring contemporary Jewish approaches to ethics, law and normative decision-making. - i - For my mother, Joyce, who taught me to pursue justice, and for my father, Philippe, who taught me compassion. - ii - Table of Contents Acknowledgements....................................................................................iv Abbreviations.............................................................................................vi Introduction................................................................................................1 Discretionary Judgment: A New Model...........................................7 Law vs. Ethics: A Brief History of the Debate.................................12 Disrupting Conceptual Binaries.......................................................16 The Talmudic Sugya.........................................................................21 Plan for the Dissertation...................................................................32 Chapter 1: The Talmud's Legal Hermeneutic..........................................35 Rule-Based and Discretionary Judgment..........................................38 Narrative Sources, Legal Inferences.................................................44 The Self-Conscious Exemplar...........................................................51 Chapter 2: The Development of an Idea....................................................54 Tannaitic Traditions............................................................................56 When the "Correct" Rule is Inadequate.............................................63 Lifnim Mi-Shurat Ha-Din as a Form of Divine Judgment.................67 The Role of Compassion in Judgment...............................................70 Eliciting Compassion in Judgment....................................................80 Conclusions.......................................................................................89 Chapter 3: Everyday Decision-Making......................................................91 Ketubot 97a........................................................................................97 Berakhot 45b......................................................................................110 Bava Kamma 99b-100a......................................................................118 Conclusions........................................................................................138 Chapter 4: The Risks and Rewards of Discretionary Judgment.............140 Instantiating a Paradigm of Judgment................................................143 Legal Fictions, Lived Experiences and the Force of Law...................149 Constructing an Alternative Paradigm of Judgment...........................153 R. Ishmael's Encounter on the Road...................................................168 When Rules Are Destructive...............................................................170 Competing Models of Judgment.........................................................167 Conclusion.......................................................................................................172 Core Features of Lifnim Mi-Shurat Ha-Din.........................................173 Why Discretionary Judgment?.............................................................177 The Puzzling Case of Rabbah bar bar Ḥanan.......................................181 - iii - Works Cited....................................................................................................188 - iv - Acknowledgements I am deeply grateful to the many teachers, friends, colleagues and family members whose wisdom has formed me as a scholar, and whose support and guidance have made this work possible. Whatever insight may be found in this dissertation is largely theirs; all errors are, of course, my own. First, I want to thank the members of my committee. Elizabeth Fowler offered good cheer, patience and advice throughout the writing process. Margaret Mohrmann guided me through different frameworks for thinking about ethics, leading to the present focus on decision-making and behavior. Frederick Schauer provided the foundation for my understanding of how legal rules operate, a cornerstone upon which much of the present work is built. It was Peter Ochs who first recommended, many years ago, that I engage rabbinic sources in my pursuit of contemporary questions. In many ways, this dissertation is my response. Finally, I am deeply indebted to my advisor, Elizabeth Shanks Alexander, who guided me throughout this process and who has helped me to find my voice as a scholar. I am also grateful to Elizabeth Shanks Alexander and Mark James, who read and commented on numerous drafts of this work. Benjamin Barer, Chaya Halberstam and Kelly Figueroa-Ray also read substantial portions, debated sources or workshopped several of the core ideas presented here. Their feedback has beeen indispensable. The program in Scripture, Interpretation and Practice (SIP) at UVA provided me with an intellectual home throughout the course of my graduate studies. I am deeply grateful for the many friends and lifelong colleagues I found there, especially Kelly Figueroa-Ray, Mark James, Ashleigh Elser, Brian Siebeking, Rebecca Epstein-Levi and Nauman Faizi. I am also grateful to Asher Biemann, Gabriel Finder and the Jewish Studies Program, which offered another vibrant scholarly community, and to Vanessa Ochs, Margaret Mohrmann, Martien Halvorson-Taylor and Chuck Mathewes for their ongoing advice and mentorship. - v - It was in Leah Rosenthal's class at the Pardes Institute for Jewish Studies that I first encountered the idea of lifnim mi-shurat ha-din. I thank her, and the entire Pardes faculty, for opening the world of rabbinic literature to me and for instilling in me a passion for study. A large portion of this dissertation was written from Boston, where the Hebrew College community provided me with another intellectual home. I am grateful to Michael Rosenberg, Jane Kanarek, Rachel Adelman, Ayalon Eliach, Elizabeth Bonney, Stephen Slater and Bethany Slater for their encouragement throughout that period. Finally, the Oberlin College community provided a new institutional home during my final year of writing. I am especially grateful to Cheryl Cottine, Margaret Kamitsuka, David Kamitsuka, Cynthia Chapman, and Charles Lockwood for their welcome and friendship. Much of this dissertation was written during periods of significant transition in my life. My deepest thanks go to the friends and family who helped sustain me throughout that process, especially Sarah Fajardo and Christina Randall-James, who helped me maintain a sense of self, and Laura Herman, who helped me maintain my love of Torah. My sisters, Rebecca Ó Murchadha and Aviva Galaski have offered a constant wellspring of love and support. My in-laws, Steven Barer and Susan Albersheim, have provided laughter, perspective and encouragement. The unwavering faith of my parents, Philippe Galaski and Rabbi Joyce Galaski, has sustained me not only throughout
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