ABSTRACT

This chapter makes two intertwined arguments, one methodological and one historical. The historical claim is that the Babylonian rabbis did not teach much civil law to Babylonian non-rabbis. The rabbis tended to limit their teaching in the pirqa and other public lectures to ritual law. This choice by the Babylonian rabbi sages made their civil law and court systems different from the contemporary American image of a functioning court system: rabbinic laws were not promulgated, rabbinic courts lacked advocates, and judges had a great deal of discretion to make judgments in accordance with their sense of justice. The methodological argument is that “authority” and “power,” which have become standard explanations in the study of rabbinics, provide an incomplete account of the rabbinic choice not to promulgate civil law. Looking to authority as an explanation for this phenomenon has a certain degree of explanatory power. The rabbis’ exclusive knowledge of the law helped protect the privileges granted to their class by the Persian government and maintain their movement’s hold on judgeships. This, however, is only a part of the story. The rabbis themselves understood the purpose of their concealing the law as a key to producing just outcomes, by preventing litigants from making use of legal loopholes or shaping their accounts of the facts of the case to achieve the outcome that they desired. Moreover, the rabbis realized that allowing judges broader judicial discretion could invite the abuse of power, and sought to deter that abuse of power by criticizing and threatening judges who took advantage of their knowledge of the law in order to make arbitrary judgments. Rabbinic concealment of legal knowledge should also be understood as part of the longstanding tradition in Ancient Babylonia of unwritten law, in which judges were not strictly bound by legal codes, but were required to do their best to render a just judgment, given the facts of the case and their intuitive sense of what justice demanded.