In his landmark essay Nomos and Narrative Robert Cover ...



Love and Law: The Dialogical Nature of Talmudic Legal Narrative

In his landmark essay Nomos and Narrative Robert Cover argues that law should not be conceived as a system of rules and interpretations or a set of institutions.[1] Rather, law is better conceived as a normative world, or nomos, in which legal rules and institutions interact with other cultural forces in the production of legal meaning. This paper utilizes Cover’s reconceptualization of the law in treating a genre of talmudic legal writing, the legal narrative. The first section of this paper creates a theoretical dialogue between Cover’s idea of a nomos and Mikhail Bakhtin’s preference for all things dialogical. Bakhtin’s theoretical frame—the distinction between monological and dialogical modes of writing—provides insight into the special character of legal narratives and into the misinterpretation such narratives undergo within the institution of Jewish Law, even within the Talmud itself. The second section of this paper applies the theoretical frame established in the first section to one talmudic legal narrative found in the Babylonian Talmud at Sanhedrin 75a.

The section of Cover’s Nomos and Narrative entitled “The Thickness of Legal Meaning” utilizes a set of biblical texts to illustrate the extent to which legal rules do not fully constitute the nomos.[2] While Deuteronomy 21:15 insists that an eldest son must inherit the double portion even if a younger child is more beloved, the various narratives of Genesis repeatedly witness the selection of a younger sibling over the older. Cover argues that the repeated narrative subversion of the legal statute does not reject the law; in fact, the narratives draw dramatic energy precisely from the force of the law’s expectation. Rather, the undoing of the practice demanded by the law in specific cases illustrates the extent to which all legal statutes have boundaries in a normative world and that other cultural forces have the ability to determine normative practice against those statutes. By Cover’s reading, there are political, psychological and philosophical forces that drive the events of the Genesis narratives.

My own work follows Cover’s biblical paradigm by juxtaposing talmudic legal narratives with non-narrative talmudic legal texts. In my work on legal narratives in the Babylonian Talmud, I argue that talmudic legal narratives embrace the reality of the nomos where other non-narrative legal texts resist the notion of a nomos and insist on an image of law as a flat discourse of rules and interpretations.

The distinction I make between legal narratives and non-narrative legal texts draws energy from the work of the Russian literary theorist, Mikhail Bakhtin. In one of his earliest writings, “Problems of Dostoyevsky’s Poetics,” Bakhtin credits Fyodor Dostoyevsky with the invention of the polyphonic novel.[3] The polyphonic novel is distinguished from its predecessors by Dostoyevksy’s ability to withdraw from the voices of individual characters and allow these characters to, in Bakhtin’s terms, inhabit differing “consciousnesses.” By allowing these different consciousnesses to speak, the novelist employs what Bakhtin calls “heteroglossia”—a simultaneous speaking in multiple languages. The result of this authorial withdrawal and heteroglossia is that ideas emerge from Dostoyevsky’s novels formed in the crucible of real interaction, where Dostoyevsky’s own perspective is always in danger of giving way to those of his characters and vice versa. Bakhtin suggests that an idea can only be considered real when it has entered into a dialogue with other ideas, when it is dialogical. In Problems of Dostoyevsky’s Poetics, Bakhtin writes:

“The idea begins to live, that is, to take shape, to develop, to find and renew its verbal expression, to give birth to new ideas, only when it enters into genuine dialogic relationships with other ideas, with the ideas of others. Human thought “becomes genuine thought, that is, an idea, only under conditions of living contact with another and alien thought, a thought embodied in someone else’s voice, that is, in someone else’s consciousness expressed in discourse. At that point of contact between voice-consciousnesses the idea is born and lives.” [4]

Over the course of his lifetime, Bakhtin continued to develop his notion of the dialogical, and by the time he wrote his essay “Discourse in the Novel” Bakhtin had decided that the dialogical nature of ideas was not Dostoyevsky’s invention, but was a fundamental feature of language and of life.[5] Human interactions are always overdetermined, partaking simultaneously in the multiple discourses of psychology, sociology, economics, philosophy, theology, science, and the list could go on. Similarly, linguistic meaning is always on a broad level negotiated through these various discourses. In light of this new realization, “Discourse in the Novel” recalibrates the distinction between monological and dialogical meaning as a stylistic distinction between the Poet and the Prosewriter. The poet works within a strict genre of writing—poetry—and imposes a monological frame on the dialogical reality of language and life in an attempt to totally subsume language and life to its project—to control all unitary meaning. The prose writer, by contrast, does not impose a strong monological frame on dialogical language, but allows that language to flourish and construct meaning dialogically.

I map Bakhtin’s distinction between monological and dialogical modes of writing onto talmudic literature in two ways. First, with respect to the building blocks of talmudic legal discussions, I distinguish between the attributed statements of law and the dialectical arguments between differing rabbis on the one hand, and legal narratives on the other hand. The non-narrative legal texts of the Talmud work within a strong legal genre of writing which like Poetry attempts to create meaning entirely within one language—the language of law. Because life and language are inherently dialogical, the writing of such law is always a metonymy for life and language, with considerable variance between the heteroglossia of lived life and the unitary language of law. But legal narratives as prose narratives do not similarly limit life’s natural heteroglossia. They empower discourses outside of the legal rules and describe scenarios in which the rules are trumped by those other discourses much like they are in the legal narratives of the book of Genesis.

The second way I apply Bakhtin’s distinction is in treating the reception that legal narratives receive within the history of Jewish law. While the narratives themselves are dialogical, empowering multiple languages in the development of their idea, the frame in which they are read is more often than not a monological frame that wants to turn these legal narratives into viable legal precedent by limiting their dialogical qualities and in effect rewriting them as statutes. This process of transforming legal narratives into monological legal texts that work within the system of legal rules begins already in the Talmud itself. The Talmud is a unique work of literature that broadcasts its own layered construction in which tannaitic texts are interpreted by Amoraim and amoraic materials are interpreted by the Talmud’s anonymous editorial voice, often referred to as the Stam. It is my contention that the Stam is a reader who imposes a strong monologizing frame upon the earlier sources recorded in the Talmud. While this imposition certainly has ramifications for non-narrative texts, it is within the interpretation of talmudic legal narrative that the Stam’s efforts are akin to forcing a square peg into a round hole.

I will illustrate both the inherently dialogical nature of talmudic legal narrative and the clash between such narratives and the Stam by utilizing an example from Sanhedrin 75a.

R. Yehudah said in the name of Rav

[There is] a story of a man who placed his eyes on a woman and his heart filled with black bile.

And they came and asked the doctors,

and [the doctors] said “he has no treatment unless she has intercourse [with him].”

The sages said, “Let him die, but she will not have intercourse with him.”

[the doctors said] “She should stand before him naked,”

[the sages said] “Let him die, but she will not stand before him naked.”

[the doctors said] “She should converse with him from behind a barrier,”

[the sages said] “Let him die, but she will not converse with him from behind a barrier.”

The story is a dialogical one both on the level of its plot and on the level of its underlying poetics. The plot is undeniably dialogical in the sense that it contains a dialogue between two voices or consciousnesses—the voice of the rabbis and the voice of the doctors. Though the story ultimately favors the rabbis, it enables the reader to recognize a clash here between two social practices—the practice of medicine for which the man’s bodily survival is paramount and the practice of rabbinic law for which the soul is of utmost importance.

But there are other ways in which the story is dialogical. It is dialogical within the law itself, since there is a conflict in law between saving a life and adhering to the prohibitions. Furthermore, there is a gendered power structure within the story that conceives of the rabbis and doctors as patriarchal controllers of the anonymous woman’s sexuality with the power to permit her to the anonymous man. In fact, there are so many issues within the story, that the hortatory rabbinic refrain “Let him die” hardly seems worthy of the weightiness of the dilemma.

A linguistic clue suggests that we approach this story from the perspective of Greco-Roman culture. The word that describes the man’s lovesickness—טינא—is ordinarily translated as clay and in this usage the phrase is taken as a metaphor meaning that the man’s heart was heavy. This word טינא, though, is synonymous with the Hebrew word טיט or pitch, and can refer to a black tar. As such, the usage here need not be metaphorical, but physiological. According to the humoral theory of medicine regnant in the Greco-Roman world, love sickness was the result of an excess of black bile on the heart or μελαϊνα χολή (the basis for our term melancholia). The text diagnoses the dying man with the Greco-Roman physiological malady known as lovesickness.

The tale type of the clash between spiritual and physical advisors over the dying body of a lovesick person was a trope of Greco-Roman narratives. Mary Wack highlights the dialogical qualities of the trope:

The disease of love, which afflicts both the body and the spirit of a patient caught in a matrix of social and ethical relationships, lay in a cultural zone intersected by the discourses of medicine, literature, natural philosophy, mysticism, pastoral theology and didactic literature….In this site of contestation priest and physician vied for professional territory.... [6]

Bakhtin argued that languages, like ideas, only come into being through the kinds of intersection enabled by these stories. In “Discourse in the Novel” Bakhtin writes:

Languages in heteroglossia, like mirrors that face each other, each reflecting in its own way a piece, a tiny corner of the world, force us to guess at and grasp for a world behind their mutually reflecting aspects that is broader, more multi-leveled, containing more and varied horizons than would be available to a single language or a single mirror.[7]

But the rabbis of the Talmud are not interested in Bakhtin’s dialogical insight. They each look to this legal narrative as an instance of legal precedent, and are troubled by the way the dialogical narrative does not fit within the monological precedential framework of legal rules.

Jewish law famously requires martyrdom of its practitioners for three and only three cardinal sins. The clearest iteration of this principle is cited by the Talmud within the same talmudic discussion only two pages earlier at Sanhedrin 74a:

R. Yohanan said in the name of R. Shimon ben Yehozadaq: They counted up and concluded in the attic of Beit Nitzeh in [the city of] Lod: “All biblical sins, if they say to a man, “Violate and you will not be killed,” he should violate and not be killed, except for idolatry, illicit sex and murder.”

Because of the premium placed on Jewish life in rabbinic law, there are only three cardinal sins—murder, idolatry and illicit sex—for which one is required to choose bodily death in order to save one’s immortal soul. While our story is about illicit sex, the sexual encounter it describes does not meet the legal definition of a sex act that would require death. For starters, only a sex act that is biblically forbidden—sex with an immediate relative, homosexual sex, or sex between a man and a married woman—constitutes the cardinal sin of illicit sex. If the female protagonist of our story is unmarried, as it would seem, the prohibition on the sexual relationship between the putative lovers is rabbinic, at best, and therefore does not mandate death. Furthermore, the legal discourse regarding the cardinal sin of illicit sex contains no other texts which extend the definition of such an act from its primary definition—intercourse. Rabbinic legal discussions are not shy about vivid, graphic discussions that define sexual intercourse in a specific unequivocal manner. But our story extends the cardinal sin to include various sexual encounters—his gazing at her or hearing her voice—that fall far short of intercourse. In short, then, our story is substantively at odds with legal precedent both because its two primary actors are not biblically prohibited to each other, and because the sex acts prescribed as cures do not qualify as acts that justify martyrdom.

The Talmud follows its citation of the story with the positions of various rabbis who struggled with the problematic relationship between the story and legal precedent. By my reading, these rabbis and the Stam who is responsible for arranging their positions and commenting upon them attempt to turn the dialogical narrative into monological law.

The first set of rabbis debate whether the story’s female protagonist was married. One of the rabbis marries off this character because that at least makes the putative relationship between the lovers a cardinal sin, even if the sexual interactions proposed as cures do not meet the threshold of martyrdom. The other rabbi does not marry her off, presumably because such an important legal fact would have been mentioned in the story.

The Stam follows this debate by questioning the rabbi who asserted that the woman was unmarried; if she is unmarried, it is once again difficult to make the story cohere with legal precedent. The Talmud now cites two later rabbis who argue that the rabbis require the man’s death for social reasons—one because of the shame that would attach to the woman’s family over her participation, and the other in order not to send the message that Jewish girls can be prostituted in this manner.

While at first glance it appears that both of these positions dialogically empower forces outside the legal rules—the forces of family shame and patriarchy, respectively—I argue that these outside forces are coopted as exceptional precedents that are incorporated into the language of legal precedent. Bakhtin notices the same phenomena with respect to poetry. In “Discourse and the Novel” he writes:

Nevertheless, heteroglossia (other socio-ideological languages) can be introduced into purely poetic genres, primarily in the speeches of characters. But in such a context it is objective. It appears, in essence, as a thing, it does not lie on the same plane with the real language of the work: it is the depicted gesture of one of the characters and does not appear as an aspect of the word doing the depicting. Elements of heteroglossia enter here not in the capacity of another language carrying its own particular points of view, about which one can say things not expressible in one’s own language, but rather in the capacity of a depicted thing. Even when speaking of alien things, the poet speaks in his own language. To shed light on an alien world, he ever resorts to an alien language, even though it might in fact be more adequate to that world. [8]

After reviewing a technical solution to the problem (she is married) and then expanding the reach of the law (through social means), the Stam now asks after the seeming callousness of the rabbis: even if one grants that the sexual cures are illicit, why do the rabbis not suggest a legal relationship—that the couple marry? The Stam answers its own question by citing a statement from R. Yizhaq.

That would not settle his mind because of R. Yizhaq.

For R. Yizhaq said from the day of the destruction of the temple the flavor of intercourse was taken and given to sinners as it is written, “Stolen waters will be sweet and hidden breads will be pleasant.”

With this answer, the Stam finally submits to the story’s dialogical nature and provides a response that dialogically solves the problem. The reason the man must die is not legal but psychological. The rabbis cannot provide the dying man with his solution because their sanction removes the very nectar of his antidote—it is outside the domain of legal rules. His cure does not require the physical sex act, but sexual pleasure that R. Yizhaq claims is only available in sin. The rabbis are powerless because the law by definition can never sanction sin and it is the very illegality of the act that constitutes its palliative property. This answer constructs a dialogical nomos in which the languages of psychology and law intersect as irreconcilable forces, creating a paradox that renders the rabbis powerless—if they help the man, the act would be legal and have no effect, while if they stand by and do nothing, the same result transpires. Space does not permit a thorough critique of the Stam’s answer and the way it misses the point of the story’s poetics, mistaking a story about rabbinic power for a tale of powerlessness.

Robert Cover derived his notion of the nomos from Jewish legal texts, and Cover has been critiqued for idealizing Jewish Law as a nomos.[9] As my reading of this story demonstrates, there is certainly a monologizing force that constructs Jewish Law as a positivist legal system. But there are also other texts—legal narratives among them—that embrace the notion of a nomos. In short, there is a dialogue within Jewish Law between those texts that construct law monologically and those that, in seeing law as a metonymy for life, resist the impulse to impose strong limits on the dialogical essence of life.

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[1] Robert Cover, “nomos and Narrative” in Cover, et. al, Narrative, Violence and the Law, (Ann Arbor: Michigan, 1993), pp. 95-172.

[2] ibid., 113-120.

[3] Mikhail Bakhtin, Problems of Dostoyevsky’s Poetics, tr. Caryl Emerson, (Minneapolis: University of Minnesota, 1984) 8-16.

[4] Problems, 88.

[5] Mikhail Bakhtin, The Dialogic Imagination, tr. Caryl Emerson and Michael Holquist, (Austin: University of Texas, 1981), 259-422.

[6] Mary Frances Wack, @BX]k ¡Ìãäí- # Š ‘ Lovesickness in the Middle Ages, (Philadelphia: University of Pennsylvania Press, 1990), 7.

[7] Bakhtin, Dialogic, 414.

[8] Bakthin, The Dialogic Imagination, 287.

[9] Suzanne Last Stone, “In Pursuit of the Countertext: The Turn to the Jewish Legal Model in Contemporary American Legal Theory.” Harvard Law Review 106 (February 1993): 813-894.

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