LAW AND HERMENEUTICS IN RABBINIC
        JURISPRUDENCE: A MAIMONIDEAN
                        PERSPECTIVE
 
                            Josd Faur *
 
 
                          INTRODUCTION
     Jewish jurisprudence is the oldest evolving legal system in his-
 tory. It has existed since pre-biblical times, and continues in our own
 day both in the modem State of Israel and throughout the diaspora.
 Rabbinic tradition stands at the center of this system. This tradition
 perceives itself as the authoritative foundation and the historical bond
 linking the Jewish people from the dawn of time to the present. The
 rabbinic tradition functions as an apparatus that processes and cata-
 logues data and opinions facilitating juridical interpretations and deci-
 sions. This Article examines that apparatus by exploring its
 underlying concepts of law and hermeneutics.
      Contemporary notions of rabbinic jurisprudence have been af-
 fected by the general trend of hellenizing Jewish literature and ideas.
 Rabbinic texts are ordinarily examined through hierarchical distinc-
 tions and categories peculiar to Western classical studies. The basic
 assumption underlying this methodology is that the rabbinic truth is
 essentially platonic. As such the purpose of rabbinic exegesis is to
 "uncover" the text and reveal its "true meaning." This method re-
 flects the scholastic view that the "literal sense" of the Scripture is
 what the author intended.' Once the "intention" of the author has
 been determined, the text itself becomes insignificant-a "metaphor"
 marginal to its "true meaning." The object of interpretation thus be-
 comes displacement of the text. This view is intrinsic to Western tra-
 dition, in general, and Christianity, in particular, where writing is
 displaced on behalf of logocentrism. The classic example of this type
 of hermeneutics is the Christian Scripture interpreting, and thereby
 displacing, the Hebrew Scripture. It is worth noting that John's
 logos2 (word) is "unwritable," and therefore anti-book and anti-text.
 By way of contrast, the logos of Philo and the memra (word) of the
 
   * Professor Jos6 Faur is a rabbinic author. His most recent publication is IN THE
 SHADOW OF HISTORY: JEWS AND CONVERSOS AT THE DAWN OF MODERNITY (1992). All
 transliterations are in accordance with Cardozo Law Review convention.
    I See UMBERTO Eco, THE LIMITS OF INTERPRETATION 14-15 (1990).
    2 John 1:14.
 
 
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 rabbis do not exclude writing; writing is creation itself.3
      The idea of writing as creation reflects the rabbinic concept of
  exegesis. It generates rather than discovers, meaning. Commenting
  on the verse, "and I shall give you the tablets of stone, and the law
  and the commandment which I wrote to instruct them,"4 the rabbis
  taught as follows: "'the tablets of stone'-this is the Miqra [(Scrip-
  ture)]; 'the law'-this is the Mishnah."5 If the text is like stone, then
  exegesis is the "a blow of a hammer," giving forth various sparks.
  Like the stone, the text itself remains inviolable and absolute, whereas
  the explanations and commentaries flee like sparks. In explaining the
  polysemic character of the Scripture, the rabbis stated, "Just as each
  blow of a hammer strikes forth many sparks, a single verse unfolds
  into many senses."'6 Exegesis serves to reinforce and supplement the
  oral tradition; it can never be the explanation of a text. In contempo-
  rary terms, this means that the rabbis viewed the text as a semiologi-
  cal composition whose unit, the word, is a sign which is not subject to
  definition; it is either recognized or not. As Emile Benveniste shows,
  "[iun semiology there is no need to define what a sign signifies. For a
  sign to exist, it is necessary and sufficient that it should be received
  and that it should be related somehow to other signs."'7 At the semio-
  logical level, whether or not a sign signifies is a matter of recognition,
  not interpretation. "Does the entity in question signify?"' The an-
  swer must be an unequivocal yes or no. "If it is yes, everything was
  said, and it is registered; if it is no, it is rejected, and also everything
  was said."9 Exegesis pertains to the semantic aspect of the word,
  where meaning is generated by establishing new connections.10
      Out of this background information, two fundamental points fol-
 low. First, rabbinic exegesis is not platonic. From this perspective it
 would be faulty to apply to rabbinic ideas and institutions the theolog-
 ical notions associated with Christian hermeneutics. Second, there is
 no basis for the assumption that our hellenistic views are indeed uni-
 
    3 See Jos6 Faur, God as a Writer, RELIGION & INTELL. LIFE, Spring/Summer 1989, at 31,
 32-35
    4 Exodus 24:12 (translated by author).
    '5 MIDRASH HAGADOL 556 (Mordecai Marguiles ed., 1967) (commenting on Exodus
 24:12) (translated by author). The text in BABYLONIAN TALMUD, BERAKHOT 5a is corrupt.
 See Jost FAUR, STUDIES IN THE MISHNE TORA 18 (1978).
    6 BABYLONIAN TALMUD, SANHEDRIN 34a (translated by author). See Jost FAUR,
 GOLDEN DOVES WITH SILVER DOTS:" SEMIOTICS AND TEXTUALITY IN RABBINIC TRADI-
 TION at xiii-xiv (1986).
    7 2 EMILE BENVENISTE, PROBLtMS DE LINGUISTIQUE GIENtRALE 222 (1974) (translated
 by author).
    8 Id. (translated by author).
    9 Id. (translated by author).
    10 See FAUR, supra note 6, at 76-79, 118-23.
 
 
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 versal. In examining rabbinic jurisprudence it is unwarranted to as-
 sume that rabbinic ideas and institutions are identical to those found
 in Western tradition. Furthermore, without acknowledging the "dif-
 ferences," similarities between these separate systems are meaningless.
 Conceptually, a proper methodology for the study of rabbinics, in
 general, and the Jewish legal system, in particular, will require a radi-
 cal revision of standard hellenistic assumptions.
      There are historical reasons requiring such a radical revision.
 Due to the peculiar circumstances in which rabbinic jurisprudence
 developed, it is structurally unique. To understand the substance and
 procedures of rabbinic jurisprudence, one need not draw parallels
 with similar laws and institutions found in other legal systems, which
 ignore the specific character and function of the rabbinic method. For
 example, one might compare the rabbinic concept of an unwritten law
 with that of the ancient Greeks. The parallel, however, is trivial un-
 less one also recognizes that, within each system, the unwritten law
 had a radically different design. Whereas in Western legal tradition,
 the jurist supplements the written legislation by appealing to the "un-
 written law," in the rabbinic system, the rabbis supplemented the oral
 law by appealing to the Scripture."I Indeed, this Article will show
 that even such basic concepts as "sovereignty" and "authority" are
 substantially different in rabbinic jurisprudence than in the Western
 legal tradition.
      The major thrust of this Article is to examine the concepts of
 "law" and "hermeneutics" in rabbinic tradition. This investigation
 has followed the legal tradition of Maimonides.I2 Rabbinic literature,
 in general, and the Talmud, in particular, have been interpreted by
 various authorities during medieval times. Yet this author chooses to
 base this study on Maimonidean tradition for three reasons. First,
 historically, Maimonides' understanding of rabbinic jurisprudence is
 closely associated with the intellectual tradition of the Geonim. 13 The
 academies of the Geonim were organically connected with the actual
 schools in which the original talmudic literature was compiled and
 taught. Second, structurally, Maimonides' Mishneh Torah is the only
 code ever produced comprising the entire rabbinic legal system.
 Therefore, through Maimonides' work, a particular legal theory can
 
    11 See JosE Faur, Law and Justice in Rabbinic Jurisprudence, in SAMUEL K. MIRSKY ME-
 MORIAL VOLUME 13, 20 (Gersion Appel et al. eds., 1970); cf. ERWIN R. GOODENOUGH, THE
 POLITICS OF PHILO JUDAEUS 79 (1938).
    12 Rabbi Moses ben Maimon, widely known as Maimonides, was one of the major medie-
 val rabbinic authorities and philosophers. He lived from 1135 to 1204 C.E.
    13 The Geonim were heads of the Talmudic Academies in Babylonia between the seventh
 and tenth centuries.
 
 
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 be tested against all other elements of the system. Finally, concep-
 tually, Maimonides' legal system affords a comprehensive view of the
 rabbinic legal system according to juridical rather than theological or
 metaphysical principles. This last point is essential in characterizing
 the legal mind of the rabbis in contemporary legal terms.
 
                 I.   LAW    IN RABBINIC JURISPRUDENCE
 
                        A. The Nomocratic Society
       "Law" in Jewish tradition is a radical concept with no parallel in
 legal thought. In contradistinction with other democratic systems,
 where the demos or "people," as an absolute empirical object, are the
 ultimate source of authority, the people of Israel recognized the abso-
 lute authority of the law. The people acted as the depository of that
 law.'4 Thus, Judaism may be properly described as a "nomocratic"
 system. The "Law," referred to as torah in Hebrew, nomos in Greek,
 lex in Latin, and shari'a in Arabic, is the sole ground of authority.
 Again, whereas in other legal systems, law is the effect of authority, in
 Judaism authority is the effect of the law.'5 Therefore, all forms of
 
    14 The state of ancient Israel may be described as democratic.
      The biblical concept of state can be described as "democratic" with at least as
      much justice as the Mesopotamian form of government. It is the "people" (i.e.
      demos) of Israel who have a decisive say as to how and by whom they are to be
      ruled; it is they who set up their kings time and again.
 E. A. Speiser, The Biblical Idea of History in Its Common Near Eastern Setting, in THE JEW-
 IsH ExPRESSION 1, 9 (Judah Goldin ed., 1976). The Jewish demos, however, was intrinsically
 different from that of the pagan world, because it perceived itself as bound to a higher Law,
 divine and immutable, according to which all human affairs, including those of the state and
 society, must accommodate.
    15 The term "theocracy" was first coined by Flavius Josephus to describe the political sys-
 tem of Israel. See 2 JOSEPHUS, AGAINST APION 165 (H. St. J. Thackeray trans., 1961). In
 other writings, this author has submitted that Josephus did not mean that God-as a pure
 theological concept-is directly and imminently the ruler of Israel. This would obviously lead
 into total chaos and anarchy. Rather, this term is meant to convey "the Law of God." Thus,
 the Law, given by God Himself, and representing His eternal and unchangeable will, is the
 constitution, and therefore the source of all authority in Israel. A more appropriate term to
 designate the Jewish constitution would have been nomocracy or "authority of the Law." The
 reason that Josephus preferred "theocracy" was to emphasize that in Judaism the Law stems
 from God, rather than from the will of the political sovereign and that through the Law, God
 Himself is governing. Josephus writes:
          For us, with our conviction that the original institution of the Law was in
      accordance with the will of God, it would be rank impiety not to observe it. What
      could one alter in it? What more beautiful one could have been discovered? What
      improvement imported from elsewhere? Would you change the entire character of
      the constitution? Could there be a finer or more equitable polity than one which
      sets God at the head of the universe, which assigns the administration of its highest
      affairs to the whole body of priests, and entrusts to the supreme high-priest the
      direction of the other priests? ... But this charge further embraced a strict super-
      intendence of the Law and of the pursuits of everyday life; for the appointed duties
 
 
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 authority are limited by the law.
      Jewish law is the result of a bilateral covenant contracted be-
 tween God and the Jewish people at the foot of Mount Sinai. Accord-
 ing to rabbinic tradition, the covenant contains six hundred and
 thirteen mizvot or "articles" regulating all of Jewish life. 16 The cove-
 nant is both "divine" and "eternal." Since it is "divine," it requires
 no promulgation. It binds the contracting parties at all times and in
 all societies. This principle is known as torah min hashamayyim ex-
 pressing the tenet that the "Law is divine." Rather than a theological
 doctrine, this is a fundamental legal principle postulating that the law
 requires no promulgation or earthly authority to sanction it. From
 this perspective, God is the consequence, not the cause, of the law.
 This radical idea is implied in a rabbinic doctrine, widely held
 throughout the Jewish world, whereby the first verse to be taught to a
 child is "Moses has commanded the Law to us, it is the legacy of the
 congregation of Jacob."'" Only afterwards is the child to be taught
 "Hear 0 Israel, the Lord our God, the Lord is One.""8 As it were,
 belief in God is subsequent to, and a result of, belief in the Torah.
      This radical idea was codified in Maimonides' Mishneh Torah.
 Belief in God is categorized as a mizvah or article of the covenant. 19
 Orobio de Castro20 pointed out that since belief in God is a conse-
 quence of the law, disbelief in the law implies disbelief in God.E1
 From this perspective, there is no distinction between rejecting the
 law and atheism.22 Within this specific context, the ultimate grounds
 
 
      of the priests included general supervision, the trial of cases of litigation, and the
      punishment of condemned persons.
 Id. at 184-88. Josephus summarized the principal elements of the Law. Since "theocracy"
 came to be known as a government of God by the ecclesiastical authorities, this author now
 prefers the term "nomocracy." Actually, "theo-nomocracy" would be a more accurate
 description.
   16 For a close analysis of this fundamental concept, see Jos6 Faur, Understanding the Cov-
 enant, TRADITION, Spring 1968, at 33; Jos6 Faur, Texte et Socioti: histoire du texte revele, in I
 LA SOCItTf JUIVE A TRAVERS L'HIsTOIRE 49-52 (Shmuel Trigano ed., 1992) [hereinafter
 Faur, Texte et Socitel.
    17 Deuteronomy 33:4 (translated by author).
    18 Deuteronomy 6:4. See BABYLONIAN TALMUD, SUKKAH 42a; MAIMONIDES, MISHNEH
 TORAH, SEFER HAMADA, HILKHOT TALMUD TORAH 1:16; SHULHAN 'ARUKH, YOREH
 DE'AH 245:5.
    19 See FAUR, supra note 5, at 152-60.
    20 Orobio de Castro was a philosopher and physician born in Brazaga, Portugal (1620-
 1687). See 12 ENCYCLOPAEDIA JUDAICA 1475 (1972).
   21 See Orobio de Castro, Epistola Invectiva, in I.S. REVAH, SPINOZA ET LE DR JUAN DE
 PRADO 88, 119-23 (1959).
   22 See Jost FAUR, IN THE SHADOW OF HISTORY: JEWS AND CONVERSOS AT THE DAWN
 OF MODERNITY 147 (1992).
 
 
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 for belief in God are legal, not theological or metaphysical.23 Indeed,
 by codifying the belief in God as a mizvah,24 Maimonides was stipu-
 lating that that belief is a covenantal or a legal obligation, and not a
 theological doctrine.25
      Since the ultimate recognition of God is the law, and not some
 metaphysical notion, were God to contravene any of the elements of
 the law, He would not be obeyed. Accordingly, the Talmud identifies
 the eternity of the law with the biblical principle "16 bashamayim hi"
 ("[The Law] is not in heaven") by explaining that the divine lawgiver
 may no longer promulgate new laws or reinterpret the laws of the
 covenant.26 Indeed, the law cannot be abrogated even by a divine
 agency. Since the covenant was not imposed but negotiated by the
 two parties-God and Israel-neither may abrogate any of its terms.
      The notion that God is subject to the law, and that He cannot
 abrogate it, leads to two of the most significant aspects of rabbinic
 jurisprudence: the exclusion of "violence" and, its ensuing conse-
 quence, equality before the law. Whereas the pagan mind conceives
 of legal relationships in hierarchical terms, determined by an initial
 act of "violence," the Jewish bilateral covenant implies the absolute
 horizontality of the contractual parties. Authority, whether political,
 ecclesiastical, or judicial, is the effect, not the source, of the law. Con-
 ceptually, there is no difference between the inauguration of a system
 by an original act of violence, or the abrogation of an existent order.
 Indeed, all revolutionary systems are inaugurated by a two-directional
 act of violence, simultaneously abrogating the old order and establish-
 ing the new order. Denial of the possibility of abrogating the law
 constitutes a formal rejection of the pagan idea that "violence" stands
 at the very basis of all "legitimate" political and judicial systems.27 In
 the pagan mind, law and authority are, necessarily, the effect of "a
 monopoly of violence."'28
      We may now have a better understanding of the Jewish and
 Christian views about the abrogation of the law. The Christian claim
 that the law was abrogated by a "new," and hence more "powerful"
 
   23 See MAIMONIDES, MISHNEH TORAH, SEFER HAMADA, HILKHOT YESODEi HATORAH
 8:2 (stating that belief in God is explicitly connected with the giving of the Law at Sinai).
   24 MAIMONIDES, MISHNEH TORAH, MINYAN HAMIZVOT, MIZVAT ASE 1.
   25 Accordingly, "heretic" is defined not as one who disbelieves in God, but as one "who
 declares" ("ha'omer") that there is no God. MAIMONIDES, MISHNEH TORAH, SEFER
 HAMADA, HILKHOT YESODEI HATORAH 3:7, 8.
   26 See BABYLONIAN TALMUD, BABA MEZIA 59a; FAUR, supra note 6, at 13-14. See also
 MAIMONIDES, MISHNEH TORAH, SEFER HAMADA, HILKHOT YESODEI HATORAH 9:1.
   27 On the pagan concept of "violence," see Jacques Derrida, Force of Law: The "Mystical
 Foundation of Authority", 1I CARDOZO L. REV. 921 (1990).
   28 Id. at 985-87.
 
 
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 order, rests precisely on the belief that "law" is structurally connected
 with "violence," and is therefore antithetical to "love."'29 Ironically,
 by linking this "love" to an inaugurating act of abrogation, Christian
 love became formally and inextricably connected with "violence."
 
         B. Individual Autonomy and the Jewish Constitution
      Reflecting the pagan idea that "violence" stands as the basis of
 the legal and political systems of a nation, John Austin views "law" as
 a command expressing the will of the political superior, and thus the
 effect of authority. The magistrates and institutions issuing laws and
 legal decisions derive their authority from the sovereign. Since sover-
 eignty cannot be limited, the sovereign is not subject to the law.
 Thus, the sovereign is the basis of law, not its effect.3" Herbert Mar-
 cuse referred to this domination of the people by the ruling authori-
 ties, when he remarked:
     The only authentic alternative and negation of dictatorship (with
     respect to this question) would be a society in which "the people"
     have become autonomous individuals, freed from the repressive re-
     quirements of a struggle for existence in the interest of domination,
     and as such human beings choosing their government and deter-
     mining their life. Such a society does not yet exist anywhere. In
     the meantime, the question must be treated in abstracto-abstrac-
     tion, not from the historical possibilities, but from the realities of
     the prevailing societies.3'
     Autonomy is a fundamental Jewish concept. It means self-gov-
 ernment according to one's own laws and criteria. A society is auton-
 omous when the ordering of human conduct and the adjustment of
 human relations are relative to its own criteria and interest. Thus, it
 presupposes a law independent of the political and religious bureau-
 cracies and recognized by all as the sole source of authority. Unlike
 freedom (.ofesh) which is a negative concept with negative connota-
 tions (for example, freedom from hunger or from oppression), auton-
 omy (.erut) is the affirmation of certain inalienable rights contracted
 with God. The function of the law is to guarantee both public and
 individual autonomy. Without the law, autonomy is not possible. As
 the rabbis taught, "[n]o one is autonomous (ben horin) unless he is
 engaged in the study of the Torah.""2 Since the Jew is an autonomous
 
   29 Cf. id. at 991.
   30 See H.F. Jolowicz, LECTURES ON JURISPRUDENCE 15-27 (J.A. Jolowicz ed., 1963) (ex-
 plaining the theories of John Austin).
   31 HERBERT MARCUSE, Repressive Tolerance, in A CRITIQUE OF PURE TOLERANCE 81,
 105 (1969).
   32 MISHNAH AVOT 6:2 (translated by author).
 
 
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 entity, he owes allegiance to the law, rather than to the sovereign or
 body politic. Every morning the Jew celebrates his autonomy by
 thanking the Lord both for not being born a "gentile" and for not
 being born a "slave.""a
      Jewish law defines the responsibilities and authority of its polit-
 ical, ecclesiastical, and judicial institutions. When any of these insti-
 tutions fail to comply with it, they lose their legitimacy. Hellenistic
 Jewish writers referred to the Torah as the "constitution" of the Jew-
 ish people. Indeed, Philo viewed the Pentateuch as "the ideal Consti-
 tution."'34 In this respect, the Pentateuch is the basis of all authority:
 political, ecclesiastical, and juridical. As opposed to the role of the
 sovereign presented in the works of Hobbes and Spinoza,35 Judaism
 records the sovereign as subject to the law. Quoting a Greek proverb,
 "That for the king the law is not written," a rabbi in the Talmud
 commented as follows: "Ordinarily, when a human king issues a de-
 cree, if he chooses, he obeys it, otherwise [only] others obey it; but
 when the Holy One, blessed be He, issues a decree, He is the first to
 obey it."36 The rabbinic position on this matter coincides with separa-
 tion of kingship and divinity in ancient Israel. Addressing this funda-
 mental point, a distinguished historian remarked: "In the light of
 Egyptian, and even Mesopotamian, kingship, that of the Hebrews
 lacks sanctity. The relation between the Hebrew monarch and his
 people was as nearly secular as is possible in a society wherein religion
 is a living force."37 The king's secular role in ancient Israel led to
 what may be properly described as the "separation of powers." Un-
 like pagan society where the monarch is the head of the Church, the
 Hebrew king was not the head of the sanctuary or directly involved
 with the temple rituals. Professor Abraham Joshua Heschel notes:
 "In Israel, the king was not a priest. He was sanctified by his anoint-
 ing, appointed by God; in his person centered the hopes of the people,
 yet sacerdotal functions were regarded as the heritage of the tribe of
 
   33 For further discussion on this subject, see Faur, Texte et Societi, supra note 16, at 70-74.
   34 See HARRY A. WOLFSON, 2 PHILo 374-95 (1947). For a more modern perspective of
 this issue, see Jacob Neusner, The Constitution of Judaism in Ancient Times: The Pentateuch
 and the Mishnah, J. REFORM JUDAISM, Spring 1989, at 55; see generally 3 JACOB NEUSNER,
 The Two Constitutions of Judaism in Ancient Times, UNDERSTANDING SEEKING FAITH 145
 (1988).
   35 See FAUR, supra note 22, at 184.
   36 JERUSALEM TALMUD, ROSH HASHANAH 1:3 (translated by author). The correct text is
 found in SERIDE HAYERUSHALMI 145 (Louis Ginzberg ed., 1968) (Fragments of the Genizah).
 For the correct interpretation of this passage, see Saul Lieberman, How Much Greek in Jewish
 Palestine?, in BIBLICAL AND OTHER STUDIES 128 (Alexander Altman ed., 1963).
   37 HENRI FRANKFORT, KINGSHIP AND THE GODS 341 (1948).
 
 
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 Levi."'38 When, occasionally, some kings wanted to arrogate for
 themselves such prerogatives, they were strongly resisted. For exam-
 ple, Heschel continues, "[WMhen Uzziah entered the Temple to burn
 incense on the altar ... [he] was told by the high priest, 'it is not for
 you, Uzziah, to burn incense to the Lord, but for the priests, the sons
 of Aaron, who are consecrated to burn incense. Go out of the sanctu-
 ary . . . .' "I Biblical prophecy is a direct consequence of the idea
 that the monarch and other dignitaries are not the source of author-
 ity. When the biblical prophet, an individual without an office, ad-
 monished the king, the priest, and the judge in the name of the law, he
 was affirming the principle that these authorities are subject to a law
 transcending their specific institutions and authority. Heschel makes
 this point succinctly:
      Of paramount importance in the history of Israel was the freedom
      and independence enjoyed by the prophets, their ability to upbraid
      the kings and princes for their sins. From the beginning of the
      monarchy, the king was at any moment in peril of rebuke, even of
      rejection, by the prophets, who reminded him that the king's sover-
      eignty was not unlimited, that over the king's mishpat stood the
      mishpat of the Lord-an idea that frequently clashed with the exi-
      gencies of government.'
 Unprecedented in history, Jewish prophets frequently denounced cor-
 rupt kings and political officers. When confronting the authorities in
 the name of the Law, the biblical prophet "was not a primus inter
 pares, first among his peers. By his very claim, his was the voice of
 supreme authority. [His statements] not only rivaled the decisions of
 the king and the counsel of the priest, he defied and even condemned
 their words and deeds."41
      In this connection it is important to note that the Pentateuch
 stipulates that the kohen mashiah (the High Priest) representing the
 ecclesiastical authority,42 'ene haqahal (the judiciary) representing the
 people,43 and the nasi (ruler), representing the political establish-
 ment,44 are subject to judicial error and must bring an expiatory sacri-
 fice.'5 The principle that the highest authorities entrusted with the
 
    38 ABRAHAM J. HESCHEL, THE PROPHETS 478 (1962) (citing Deuteronomy 33:8).
    39 Id. (quoting 2 Chronicles 26:16).
    40 Id. at 478-79.
    41 Id. at 480.
    42 Leviticus 4:3-12.
    43 Id. at 13-21; cf. Numbers 15:22.
    44 Leviticus 4:22-26.
    45 The sequence-ecclesiastical, judicial, and political-is particularly significant. By men-
  tioning the ecclesiastical authority first, it is implied that unless the authority of the Law is
  recognized, the priesthood cannot serve as agent of an expiatory offering. The stipulation that
 
 
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 interpretation and implementation of the law are capable of judicial
 error presupposes a totally objective law independent of governmental
 bureaucracies. An entire talmudic tractate, Horayot, deals with the
 niceties of this principle.46
 
                    C. The Autonomy of the Law
      Belief in the autonomous status of the law underlies much of
 biblical and post-biblical Jewish history. Throughout the ages, the
 political, ecclesiastical, and judicial authorities were challenged by the
 people in the name of the law.
      In the Bible, the episode of Ahab and Naboth illustrates how
 even tyrants were expected to recognize the absolute authority of the
 law in ancient Israel. When Naboth refused to sell his vineyard,
 Ahab felt despair, not knowing what to do. His pagan queen, Jezebel,
 the daughter of a Syrian King, suggested trumped up charges against
 Naboth. Yet even during that notorious incident, judicial procedure
 was meticulously observed. More importantly, the episode was de-
 nounced for generations as a most heinous crime.47 Talmudic sources
 also underscore that the monarch may not transgress the law. The
 rabbis reported a confrontation between Simeon ben Shetah48 and a
 Jewish king, who was summoned to appear in court and hear charges,
 just like any other person.49 The rabbinic doctrine of malkhut
 shamayyim (kingdom of heaven),5- usually understood in theological
 terms, is really a political concept meaning that the sovereignty (the
 kingdom) of the law (of heaven) is supreme. From this doctrine, two
 legal principles emerge. First, there is the concept of "en shaliah
 lidvar "averah" ("there cannot be a fiduciary relation in matters in-
 volving a transgression"). Second, there is the maxim of "divre harav
 vedivre talmid divre mi shomrim" ("the orders of a superior authority
 and the orders of an inferior authority, whose orders shall we
 obey?").5 The first statement asserts that an individual is responsible
 
 a sin by the high priest is "to the culpability of the people" ("le'ashmat ha'am"), Leviticus 4:3,
 emphasizes that the onus is on the people. Judaism does not accept the view that a people is
 not responsible for the crimes of its leaders. See MAIMONIDES, MISHNEH TORAH, SEFER
 SHOFrIM, HILKHOT MELAKHIM 9:14. The conduct and demeanor of the sovereign rest on the
 proper functioning of the ecclesiastical and judicial authorities, not the other way around.
   46 See BABYLONIAN TALMUD, HORAYOT; JERUSALEM TALMUD, HORAYOT.
   47 See 1 Kings 21:1-29.
   48 Simeon ben Shetah was the head of the Jewish Sanhedrin (High Court) during the first
 century B.C.E.
   49 BABYLONIAN TALMUD, SANHEDRIN 19a-b. See also MIDRASH TANHUMA, EXODUS:
 KI TISSA; JOSEPHUS, JEWISH ANTIQUITIES 14:169 (Ralph Marcus trans., 1961).
   50 See MISHNAH BERAKHOT 2:2.
   51 BABYLONIAN TALMUD, QIDDUSHIN 42b (translated by author).
 
 
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 for his own actions, and cannot claim that he was acting as an agent
 for someone else. The second statement conveys the principle that
 there can be no legal duty to act on behalf of another person in illegal
 matters. Neither the king nor any other authority may be obeyed in
 matters involving the breaking of the law.2
      These standards apply to the ecclesiastical authorities as well.
 They, too, are under the absolute mandate of the law. When acting
 outside the confines of the law, the priesthood has no authority. In
 the Bible, the conflict between Amos and the high priest Amaziah,
 illustrates this principle.53 The story depicts how Amos, a common
 man who held no religious office, challenged the authority of the high
 priest in the royal sanctuary. Even though the priesthood enjoyed an
 eminent status, nontheless it was subject to the law, and had to be be
 measured by it.54 The Talmud describes a similar incident during the
 Second Temple period in Jerusalem. The rabbis reported a clash be-
 tween the king, who was also a high priest, but who had deviated
 from prescribed ritual, and the people.55 Josephus described this inci-
 dent as follows:
     As for Alexander, his own people revolted against him-for the
     nation was aroused against him-at the celebration of the festival,
     and as he stood beside the altar and was about to sacrifice, they
     pelted him with citrons, it being a custom among the Jews that at
     the festival of Tabernacles everyone holds wands made of palm
     branches and citrons-these we have described elsewhere; and they
     added insult to injury by saying that he was descended from cap-
     tives and was unfit to hold office and to sacrifice; and being enraged
     at this, he killed some six thousand of them, and also placed a
     wooden barrier about the altar and the temple as far as the coping
     (of the court) which the priests alone were permitted to enter, and
     by this means blocked the people's way to him. He also main-
     tained foreign troops of Pisidians and Cilicians, for he could not
     use Syrians, being at war with them.56
     Judicial authority as well must follow the law. If the Supreme
 Court of Israel, or a lower court, issues a decision contrary to the law,
 
   52 See MAIMONIDES, MISHNEH TORAH, SEFER SHOFTIM, HILKHOT MELAKHIM 3:9. For
 a summary of the main legal points included in these formulas, see JACOB ALGAZI, QEHILAT
 YAAQOV lc-4d (Lemberg, 1862).
   53 See Amos 7:7-17.
   54 See Shalom Spiegel, Amos vs. Amaziah, in THE JEWISH EXPRESSION 38-65 (Judah Gol-
 din ed., 1976); cf. Malakhi 2:5-7.
   55 See MISHNAH SUKKAH 4:9.
   56 JOSEPHUS, supra note 49, at 13:372-74. The story in BABYLONIAN TALMUD, YOMA 71b
 illustrates the feeling of disgust that the people had for this type of high priest, in contrast to
 the reverence that they had for the teachers of the law.
 
 
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 it is not to be obeyed." Maimonides codified the rule that if the
 proper Jewish authorities had appointed an unqualified person as a
 judge, that appointment would be worthless.5" As to individuals who
 were appointed as judges because of money, the rabbis taught:
      Rabbi Mane would deprecate those who were appointed because of
      money. Rabbi Amme applied to them the verse "Gods of silver
      and gods of gold do not make for yourselves." Rabbi Joshia said,
      his tallit [(mantle)] is to be regarded as the backstrap of a donkey.
      Rabbi [A]shyan said: Whoever is appointed because of money, one
      cannot stand up [in reverence] before him, and one cannot call him
      "Rabbi," and his mantle is to be regarded as the backstrap of a
      donkey. Rabbi Ze'ira and a rabbi were seated. One of those who
      was appointed because of money passed before them. Said that
      seated rabbi to Rabbi Ze'ira: Let us pretend that we are studying,
      so that we would not need to stand up before him.59
      In the matter of incompetent judges duly appointed by the Exi-
 larch, Hai Gaon' issued the following decision:
     Concerning your query about judges that impound the beds of the
     poor and other objects not in accordance to the law of the Torah,
     and [consequently] the creditors come and rob their houses and
     loot their beds and utensils which cannot be [legally] impounded,
     and you have no power to constrain them. Let the spirit of those
     judges be accursed! They are the judges of Sodom. Robbers and
     Thieves! Concerning them it is written: "You have looted the vine-
     yard, the loot from the poor is in their houses." Therefore, you
     must disseminate the word among all your neighbors and nearby
     places, and disgrace them and remove them from office, since they
     do not care about the Torah and the words of our Rabbis, of
     blessed memory. And you, who know the law of the Torah and
     Rabbinic statutes, organize, take council, deliberate, and bring
     forth from among you God-fearing men and scholars who care for
     the honor of the Torah, and appoint them over you. You should
     have no second thoughts about this matter.61
     Political rulings are also not to be obeyed if they violate the law.
 The same principle was applied to the political authorities. In a deci-
 sion of the Geonim it was concluded:
     A king, governor, or tax-collector who sends [agents] to the com-
     munity to excommunicate for his own private needs and endeav-
 
   57 See FAUR, supra note 5, at 20-24.
   58 MAIMONIDES, MISHNEH TORAH, SEFER SHOFETIM, HILKHOT SANHEDRIN 4:15.
   59 JERUSALEM TALMUD, BIKKURIM 3:3 (citing Exodus 23:20) (translated by author).
   60 The most prominent figure of his time, Hai ben Sherira (939-1038) led the Pumbedita
 academy from 998 to 1038 C.E. 7 ENCYCLOPAEDIA JUDAICA 1130 (1972).
   61 HAl GAON, SHA'ARE TESHUVA No. 86 (citing Isaiah 3:14) (translated by author).
 
 
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     ors, either to punish or to seize Jewish money-and it is impossible
     not to excommunicate because of [his] coercion. All excommuni-
     cations that are issued [by him] are worthless, and no one should
     pay any attention to them. In the same fashion, if an Israelite who
     had deposited money with a friend, and he was denounced, and the
     king ordered that he [who received the deposit] should be excom-
     municated, and the confidant does not want to disclose [the where-
     abouts of the money] except to the heirs [as required by the law] in
     order to pay [that is, the debts incurred by the deceased], then
     blessing shall descend on him, and the baseless curse will not come!
     No one should heed to that ban and excommunication. And we
     must acknowledge him [the confidant] for the good [that he did],
     and bless him because he persisted in his faithfulness, and he is
     compassionate with the heirs. Concerning this man it is written,
     "My eyes are on the faithful of the earth."62
     In short, throughout its history, Judaism has fastened to the
 principle that all forms of authority must be grounded in the law.
 The undesirability of assimilating with other political, religious, or
 legal systems is a corollary of having rejected the notion that author-
 ity is the effect of power, that is, "violence."
 
               D. Exile: Sovereignty Without Territory
      In its barest form, the Exile (galut) is a political theory stemming
 from the Jewish concept of law. It means that the Jewish nation was
 not dissolved with the territorial loss of the land of Israel. This claim
 rests on the principle that Jewish sovereignty is not predicated on the
 control of a particular geographical area, but on the law establishing
 the internal legal, religious, and cultural institutions governing the
 Jewish people. Contrary to pagan thinking, whereby the right of the
 sword, the merum imperium, or absolute power-the "monopoly of
 violence," in the language of Derrida-underlies the right for civil
 and criminal administration of justice, the law is the only basis of
 authority in Judaism. Therefore, although vanquished in war, the
 Jewish nation was not dissolved.
      With the destruction of the Temple in 70 C.E. and the subse-
 quent exile, the Jewish people politically redefined their national sov-
 ereignty. Henceforth, Jews identified themselves and were recognized
 by the host country as members of "the Jewish nation in Exile."'63
 Accordingly, the admission of Jews into a new country was not
 merely a matter of freedom of religion, but rather, of reorganizing a
 
   62 HALAKHOT PESUQOT No. 195 (Yoel Hakohen Miller ed.) (citing Psalms 101:6) (trans-
 lated by author).
   63 See Faur, Texte et Socidtd, supra note 16, at 74-82.
 
 
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 juridically autonomous entity. For example, when the first group of
 Jews sought permission to settle in New Amsterdam in January 1665,
 the petition was made in the name of the "Jewish nation.''4
 Whatever Governor Peter Stuyvesant's personal feelings concerning
 Jews and Judaism may have been, his refusal to grant them permis-
 sion was not simply a question of religious freedom. The situation of
 the Jews, believing themselves to be a legal entity autonomous from
 the state, raised highly complex issues. A Christian sect might claim
 to be a separate religious group, but not a separate national entity. So
 while the government may have been willing to grant religious free-
 dom to its subjects, recognizing Judaism's political and judicial rights
 as a nation involved not only respect for legal pluralism and non-state
 legal orders, but a redefinition of "national sovereignty." Accepting
 the Jews would have been an implicit acknowledgment of political
 entities existing within the state that are not subsidiary organs of the
 national polity.65 The same problem reemerged within the American
 legal system when it came to defining the legal status of native Ameri-
 cans. It is a remarkable fact that the United States authorities
 awarded to the American Indians an analogous status to that of the
 early Jewish settlers, and recognized them as separate "nations."'66
 
 E. The Jewish "Constitution" versus the United States Constitution
      In concluding the discussion on the place of law in rabbinic juris-
 prudence, this author wishes to highlight the differences between Jew-
 ish law as a constitution and the United States Constituion. First,
 Jewish law does not require promulgation or the sanction of author-
 ity. The law is valid even when the Jewish people no longer enjoy
 national territory. Accordingly, there could be a Jewish nation with-
 out territory or any political and judicial institutions essential for the
 government of a people. The Jewish status of galut, as a nation in
 "Exile," is the historical embodiment of the aforementioned principle.
 Although bereft of all political and national institutions, the Jewish
 people recognize the "Law," and not the host country, as their
 supreme authority. As a correlative principle, the messianic ideal as-
 serts that eventually a perfect Jewish state will be established in full
 accordance with the Law. Therefore, by definition, all political alle-
 giance to other states or systems are "temporary." The Jewish claim
 
   64 See Irving J. Sloan, Selected Documents, in THE JEWS IN AMERICA 1621-1970, at 51, 53
 (1971).
   65 See Jos6 Faur, Early Zionist Ideals Among Sephardim in the Nineteenth Century, 25
 JUDAISM 54, 54-55 (1976).
   66 On the legal status of the Indian nations in American law, see Perry Dane, The Maps of
 Sovereignty: A Mediation, 12 CARDOZO L. REV. 959 (1991).
 
 
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 to the Holy Land is based, precisely, on the premise that because of
 the law, the Jewish nation was not dissolved.67
      Second, the Supreme Court of Israel is subject to judicial error,
 for which it must bring an expiatory offering. The Supreme Court of
 the United States, although occasionally "erroneous," in the words of
 Lincoln, can never be subject to judicial error.68 Even in the rare
 instance where a Supreme Court decision is overruled, it is always the
 Supreme Court which makes the revision. As Chief Justice Marshall
 declared, it "is emphatically the province and duty of the judicial de-
 partment to say what the law is.'"69 Similar to Jewish law, there are,
 of course, learned analyses regarding the precise authority of the
 Supreme Court's exposition of constitutional law. Some, such as the
 former Attorney General of the United States, Edwin Meese III, dis-
 tinguish "between the Constitution and constitutional law."70 There
 is also disagreement about the exclusive authority of the Court's inter-
 pretation of the Constitution, particularly in regard to the other
 branches of government.71 At any rate, only when examining the
 Supreme Court's adjudications from a non-judicial perspective (polit-
 ical, public morality, etc.) could they be classified as "judicial mis-
 takes." There can be no "mistakes" when these decisions are
 examined from    a strict judicial perspective.72 Despite the rhetoric
 and background noise surrounding some Supreme Court constitu-
 tional decisions, for all legal and practical purposes, the Constitution
 is what the Supreme Court declares it to be.
      Third, in Judaism, the law is binding on all forms of authority.
 In the United States Constitution, there is separation of church and
 state.73 Therefore no parallel can be drawn between the American
 legal system and the Jewish principle that the highest ecclesiastical
 authorities are subject to judicial error. The area where proper com-
 parison may be made is in the status of the civil sovereign.74 Signifi-
 cantly, the American legal system has not yet developed an equivalent
 
   67 See Faur, supra note 65, at 54-56, 60-62.
   68 See HARRY H. WELLINGTON, INTERPRETING THE CONSTITUTION 133 (1990) (quoting
 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861)).
   69 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
   70 See WELLINGTON, supra note 68, at 131 (quoting Edwin Meese III, Speech at Tulane
 University (Fall 1986)).
   71 See Marbury, 5 U.S. (I Cranch) at 174-76; see also Carlos Santiago Nino, Philosophical
 Reconstruction of Judicial Review, 14 CARDOZO L. REV. 799 (1993).
   72 Wellington overlooked this point in his otherwise illuminating chapter on "Judicial Mis-
 take," in WELLINGTON, supra note 68, ch. 2.
   73 See U.S. CONST. amend. I.
   74 Although personally relieved when Nixon resigned, this author was intellectually disap-
 pointed. Contrary to what many legal theorists argue, this author is not convinced that a
 sovereign could be tried in an American court. The very fact that a president could "pardon"
 
 
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 to the talmudic tractate Horayot, nor can it point to an American
 counterpart of a Jewish king responding to a summons of the
 Supreme Court.
 
         II. HERMENEUTICS IN RABBINIC JURISPRUDENCE
    A. The Place of Hermeneutics Within Rabbinic Jurisprudence
      Rabbinic institutions have three bases of authority: (1) the trans-
 mission of authentic traditions stemming from Sinai; (2) the promul-
 gation of new statutes and legislation designed to serve as "a fence
 around the law"; and (3) the right to interpret Scripture.75 The au-
 thority for the first two is a consequence of the third. Scriptural
 grounds for the transmission of the oral law and the enactment of
 legislation are based on canonical exegesis (midrash, derashah).
      Indeed, Judaism owes its very existence to exegesis. Through ex-
 egesis, Judaism was able to grow and develop in the most adverse and
 diverse circumstances, without having to lose its connection with
 Scripture. Intimately connected with exegesis are the dinim mufla'im
 (undefined laws or casus omissus). There is purposeful ambiguity in
 the Law designed to allow for adaptability and development. Judaism
 recognizes that there are terms in the Scripture which were not de-
 fined by oral tradition, and thus these terms can be defined exclusively
 by the judiciary. Concerning the right of the judiciary to define these
 terms, the rabbis taught that the decision of the Supreme Court can-
 not be challenged "even when they tell you that your left is your right
 and your right is your left."'76
      Most talmudic debates regarding biblical exegesis revolve around
 the dinim mufla'im.7 By applying exegesis to the undefined terms of
 a law, the judiciary was able to accommodate the law to the new de-
 velopments and circumstances. A glaring example is the definition of
 ";ayin ta~hat ;ayin" ("an eye in place of an eye"),78 where tah.at is in-
 terpreted to mean "monetary compensation."79 Occasionally, laws
 that were no longer compatible with public morality were restricted
 by exegesis, making their literal application impossible. One such law
 concerns the right of parents to have a rebellious son put to death by
 
 someone indicates that the contrary may be the case. This is consistent with the above men-
 tioned theory whereby "violence" stands at the basis of authority.
   75 See MAIMONIDES, MISHNEH TORAH, SEFER SHOFETIM, HILKHOT MAMRIM 1:1-3.
   76 Id. (translated by author).
   77 See FAUR, supra note 5, at 19-32; Jos6 Faur, The Fundamental Principles of Jewish
 Jurisprudence, 12 N.Y.U. J. INT'L L. & POL. 229-32 (1979) [hereinafter Faur, Fundamental
 Principles].
   78 Leviticus 24:20 (translated by author).
   79 BABYLONIAN TALMUD, BABA QAMMA 84a.
 
 
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 the court. Another example of exegesis redefining the law is the re-
 quirement that no criminal punishment can be imposed unless the
 criminal has been formally forewarned by the witness and has ac-
 knowledged their warning.80
      Hermeneutics became more important with the loss of national
 autonomy and institutions after the destruction of the Temple in 70
 C.E. Without exegesis, Judaism would have had to either break with
 the Scripture, or reduce its growth to the sociopolitical and religious
 institutions of biblical Israel. In either case, it would have meant the
 end of the Jewish people as a distinct biblical religion.81 The issue of
 serving God through sacrifices accentuates the role exegesis and her-
 meneutics played in post-Temple Judaism. After the destruction of
 the Temple and the dispersion of the Jews throughout the diaspora,
 sacramental sacrifices were abolished. Without exegesis, the alterna-
 tives would have been fatal for Judaism. One alternative would be to
 institute minor temples outside Zion-as was done by the Elephantine
 community and some Alexandrian Jews-thus breaking with the bib-
 lical ideal of a centralized temple in Jerusalem. The other approach
 would be to eliminate the religious services altogether-just as the
 laws of purity and the agricultural tithes outside the land of Israel
 were rescinded after the destruction of the Temple. In either case,
 there would have been an end to both the Jewish people and the Jew-
 ish religion.
      The quandary was resolved through hermeneutics. The rabbis
 interpreted the expression "ul'ovdo bekhol levavkhem" ("and to serve
 Him with all your heart")82 to mean that in addition to offering sacri-
 fices, another way to worship God is through the service of the
 heart-that is, prayers.83 In Scripture, 'avodah, or "service," to God
 always involves sacramental sacrifices. By focusing on the "service-
 heart" connection, the Rabbis were able to sanction a new form of
 worship, whereby the prayers would replace (not displace!) the sacra-
 mental sacrifices. This fundamental tenet resulted in the Rabbinic
 principle of "tefillot keneged temidim tiqqenum" ("the prayers were
 instituted as parallels to the daily-sacrifices").84 The substitution of
 the Temple by the synagogue and the priest by the pious sage were a
 further consequence of this exegetical formulation. This effect totally
 revolutionized the history of religion. Again, it should be emphasized
 
   80 See Faur, Fundamental Principles, supra note 77, at 231-32.
   81 It is highly doubtful that even the Samaritans would have been able to survive on their
 own, without the Jewish people.
   82 Deuteronomy 11:13 (translated by author).
   83 MAIMONIDES, MISHNEH TORAH, SEFER AHAVAH, HILKHOT TEFILAH 1:1.
   84 TOSEFTA, BERAKHOT 3:1.
 
 
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 that the transformation was effected not by the rabbis breaking away
 with the Scripture but by basing the new method on Scriptural exege-
 sis. It is interesting to note that both the church and the mosque
 subsequently evolved from the synagogue and not the Temple. Thus,
 rabbinic exegesis was instrumental in revolutionizing the concept of
 religion throughout much of the civilized world.
 
 B. Reading as Writing: Derashah and the Collusion Reader-Text
      There are two types of exegesis. One is platonic, while the other
 is stoic.85 Platonic exegesis assumes a theory, postulating a priori
 knowledge of the "ideal Forms." As Julia Kristeva explains, "it
 seems that one does not interpret something outside theory but rather
 that theory harbors its objects within its own logic.""6 This method-
 ology is consistent with the principle that authority both antecede,
 and be independent of, the text. The ultimate grounds of interpreta-
 tion is the theory, not the text. Early Christian exegesis is Platonic.
 In Pauline terminology, "the spirit" supercedes and displaces the "let-
 ter" of the Scripture. It is because the interpreters incarnate the the-
 ory that they have authority to expound the text. As with the Greek
 a-letheia, interpretation "uncovers" the "ideal Forms" in the text.
 The agenda of the interpreter is to "uncover" the text and "discover"
 the ideal forms; more precisely, his agenda is to project those forms
 onto the text. In this way, interpretation displaces the text. Accord-
 ingly, in Christian tradition the New Testament displaces the Hebrew
 Scripture precisely by being its "true" interpretation.
      For the rabbis, akin to the Stoics, interpretation involves "mak-
 ing connections" in the text as with the connection "service-heart"
 mentioned above.87 The interpretation, however, can never displace
 the peshat (the manifest tenor) of the text. Thus, the rabbinic princi-
 ple provides "en miqra yoge midai peshuto" ("a verse [which was the
 object of exegesis] does not lose its manifest tenor").88 Accordingly,
 the interpretation is surveyed in light of the text and not the other
 way around. This methodology is consistent with the premise that
 interpreters have authority because they authentically interpreted the
 
   85 On these two types of exegeses, see Julia Kristeva, Psychoanalysis and the Polis, in THE
 POLITICS OF INTERPRETATION 85 (W.J.T. Mitchell ed., 1983).
   86 Id.
   87 On the two basic types of "connections" in rabbinic exegesis, see FAUR, supra note 6, at
 xviii-xix.
   88 BABYLONIAN TALMUD, SHABBAT 63a (translated by author). For a detailed analysis of
 this principle as well as of the concept of peshat, see Jos6 Faur, Basic Concepts in Rabbinic
 Hermeneutics, in 2 STUDIES IN JEWISH PHILOSOPHY (forthcoming). In short the peshat in
 rabbinic jurisprudence is analogous to Vico's sensus communis.
 
 
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 text; an interpretation is not "authoritative" simply because it was
 issued by people with "authority."
      The rabbis of the Talmud and the Midrash did not set up rules to
 decide between different hermeneutical options, or to distinguish be-
 tween legitimate and illegitimate exegesis. Rabbinic sources view all
 forms of hermeneutics as legitimate. Even the thirteen rules of her-
 meneutics (shelosh 'esreh middot shehatorah nidreshet) are sufficiently
 broad to allow for all types of interpretations and associations. Since
 the rabbis regarded the entire Scripture as a collection of semiotic
 symbols, every aspect of the text could be "connected" through der-
 ashah with one another. In rabbinic literature, even those elements
 void of lexical meaning, like defective and full spellings, particles, pre-
 positions, calligraphic ornamentation, and even the shape of letters,
 may be "connected" and acquire "significance" through canonical ex-
 egesis.89 According to the rabbis, Moses discovered God "tying
 up"-in the sense of making connections-"the calligraphic orna-
 mentations" of the Torah.90 By means of derashah the reader does
 not discover, but generates meaning.
      One of the most important aspects of the derashah is that the text
 is interpreted independently of the author's intention. Notions of
 "original intention" are Platonic. According to the "originalist" per-
 ception, the judiciary "discovers" the "true" or "real Form" lying
 somewhere in the mind of the legislator. The rabbinic doctrine of
 derashah is consistent with the principle "lo bashamayyim hi."91
 What was ratified at the covenant on Sinai was not the "intention" of
 the lawgiver, but the actual law, as understood by those who received
 it.92 It follows that the task of the judiciary is not to recapture the
 "original intent" of the legislator, but to apply the text of the law to
 the situation at hand, by making innovative connections, generating,
 thereby, fresh meaning and understanding of the law.93
      The rabbis approached the text as if it were a semantic composi-
 tion. Exegesis borders into the aesthetic. Like in music and painting,
 there is a complete collusion between the exegete/artist and the ele-
 ments that were incorporated into the derashah/artistic composition.
 
   89 See FAUR, supra note 6, at 84-85.
   90 See BABYLONIAN TALMUD, MENAHOT 29b (translated by author).
   91 See supra text accompanying note 26.
   92 This point was analyzed and further elaborated in Faur, Texte et Socidti, supra note 16,
 at 60-66.
   93 Benjamin Cardozo drew parallels between the understanding of Maimonides and the
 Geonim of judicial derashah with concepts in American jurisprudence. See generally BENJA-
 MIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (Yale Univ. Press 1960) (1921);
 BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW (Greenwood Press 1973) (1924). Cf.
 WELLINGTON, supra note 68, at 43-60.
 
 
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 The elements used in creating the artistic composition lose their origi-
 nal value in isolation (that is, before they were "connected"), acquir-
 ing a fresh significance in the "composition" of the derashah. The
 total significance of the derashah-unit is not the sum of the individual
 significance of the parts. For instance, in the above mentioned der-
 ashah, the isolated meaning of the term 'avodah and the term lev do
 not add up to tefillah (prayer). It is through the construction of the
 derashah-unit "prayer" that the semiological lexical meaning of the
 terms is transformed into a semantic composition. Accordingly,
 whereas at the peshat level (sense), S = (A) + (B), at the derashah
 level, S =  (A)+-(B) + n.
      Because a derashah is a semantic composition not reducible to its
 constitutive elements, it is accepted or rejected by the same process
 that one accepts or rejects any artistic composition. At the level of
 derashah, there is no "objective" text; the meaning of a unit is not
 reduced to the sum of its elements in isolation. Consequently, the
 rabbis taught, "One cannot raise an objection against a homily."94 At
 the level of derashah, there is a complete collusion between the reader
 and the text. The "connections" made in the text are the creative
 composition of the reader functioning as an author.9" To underscore
 this point, the Geonim and Maimonides postulated the principle that
 everything stemming from rabbinic exegesis is not a scriptural (de-
 orayta) but a rabbinic (derabbanan) obligation. Rabbinic exegesis is
 the creation of the rabbis, rather than the stipulation of the text.96
 This position parallels the distinction made by contemporary jurists
 "between the Constitution and constitutional law.'"97
      There are however, definite limits to the reader-text collusion.
 Certain types of exegeses are regarded as illegitimate and offensive.
 Among those who have forfeited the World-to-Come and fellowship
 with the people of Israel are those engaging in "derashot shel dofi"
 ("exposition of faltering interpretations").9" This category includes
 
   94 See 3 OZAR HAGEONIM, PESAHIM 71 & n.3.
   95 See FAUR, supra note 6, at 122.
   96 See FAUR, supra note 5, at 25-32.
   97 See WELLINGTON, supra note 68, at 131.
   98 See BABYLONIAN TALMUD, SANHEDRIN 99b; FAUR, supra note 6, at xxi. There are two
 different versions of megalle panim. Concerning MISHNAH AVOT 3:14, Maimonides used the
 version megalle panim batorah. See 4 MAIMONIDES, PIRUSH HA-MISHNAYOT 433 (Joseph
 Qafih ed., 1963). Accordingly, Maimonides explained the term to mean "one who transgresses
 the Law in open defiance." Megalle panim is referred to in this precise sense of "open defi-
 ance" in BABYLONIAN TALMUD, ERUBIN 69a. This is also how Maimonides codified it in
 MAIMONIDES, MISHNEH TORAH, SEFER HAMADA, HILKHOT TESHUVA 3:11. This is proba-
 bly the version that he had in BABYLONIAN TALMUD, SANHEDRIN 99b. The more popular
 version, in both MISHNAH AVOT and BABYLONIAN TALMUD, SANHEDRIN, is "megallepanim
 
 
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 all the Gnostic, Christological, and antinomial exegeses.
      Our focus now is to examine the perimeters of readerly collusion.
 Specifically, by which criterion did the rabbis distinguish between a
 legitimate derashah that may be accepted, and a Christological or an-
 tinomial derashah, that must be rejected as offensive and illegitimate?
 
      C. Subverting the Text: The Limits of Readerly Collusion
      The perimeters and limits of derashah and reader-text collusion
 are those of all judicial interpretation. In Judaism, the Torah is prin-
 cipally the Law of Israel. Indeed, the rabbinic institution of derashah
 is modeled on the judicial principle whereby a court of justice is au-
 thorized to determine the sense of and interpret all contracts, statutes,
 and written documents under its jurisdiction. Now, since the Torah
 was given to the Jewish people, it follows that they have the right to
 interpret it and determine its meaning in the same fashion as does a
 judicial court.99 The most basic principle governing judicial interpre-
 tations is that exegesis cannot be used as an instrument designed to
 deauthorize the text and render it void. Accordingly, when there is
 ambiguity in a contract, statute, or constitution, it cannot be inter-
 preted in a way that would void the document. Both "strict" and
 "liberal" methods of interpretation are limited by this overwhelming
 principle. An excellent example of this principle may be found in a
 responsum by the famous medieval jurist, Rabbi Asher."o A promis-
 sory note on Passover was brought to his Court for execution. Some-
 how the scribe had omitted the pronoun "this," which would have
 indicated that the first Passover from the time of the drafting was
 intended as the due date for the note. A strict interpretation of the
 contract would imply, as the promisor argued, that the note was due
 in a future, indeterminate Passover. A liberal interpretation, as the
 promisee argued, warranted an immediate execution of the contract,
 since it was clear that "[this] Passover" was intended. Although usu-
 ally a strict interpreter of the text, Rabbi Asher decided in favor of the
 promisee, that is, the liberal interpretation. After a careful analysis of
 talmudic sources, he pointed out that an interpretation rendering an
 ambiguous contract invalid must be avoided. Now, he said, since the
 strict interpretation would render the note null and void, as the prom-
 isor could always argue that a later, indefinite Passover was meant,
 the liberal interpretation was correct:
 
 batorah shelo kahalakhah" ("unveiling in the Torah directions contrary to the law")--that is,
 subversive homilies designed to void a particular law.
   99 See FAUR, supra note 6, at 123-24.
   100 Also known as the Rosh, Rabbi Asher ben Jehiel lived from 1250 to 1321 C.E.
 
 
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     Only when it can be explained in two ways, [one favoring the
     promisor and another favoring the promisee], then we explain it
     against the promisee, as the burden of proof is on him. This is
     possible only when the contract would not be rendered ineffectual.
     However, in our case, if we would interpret it to mean an indefinite
     Passover, there would have been no reason for the contract to have
     been drafted in the first place. Therefore, we must surely assume
     that this immediate Passover was intended, and that the scribe
     erred and forgot to write the date.'0'
     The exclusion of subversive exegesis by the rabbis is quite clear in
 light of the preceding. The Gnostic, Christological, and antinomial
 interpretations of the Hebrew Scripture are designed to impugn the
 law ("derashot shel dofi"), rendering the text void and ineffectual.
 Therefore, they must be rejected for the same reason that such inter-
 pretations would be rejected by any court of justice. In the American
 legal system, both "strict" and "liberal" interpreters would concur
 that any interpretation whose ultimate consequences are the abolition
 of the Constitution, and the subversion of national authority and in-
 stitutions, must be rejected. This is all the more true in Judaism
 where the authority to interpret stems from the text, rather than from
 an outside institution. As to the latter, if an argument concerning the
 validity of the law were correct, then an interpreter would have no
 authority to issue any interpretation.
 
                          III. CONCLUSION
      Judaism admitted both "strict" and "liberal" interpretations of
 the text, and acknowledged, better than any one else, the collusion
 reader-text. This was always with the provision that the interpreta-
 tion does not void the law. Thus, subversive exegeses were rejected as
 offensive and illegitimate. A peculiar technique of the subversive der-
 ashot is to tear a term or expression out of its general context, and
 give to it a meaning designed to subvert the law or a national institu-
 tion. Addressing themselves to this concern, the rabbis formulated
 the principle that "kol midrash umidrash ke'inyano" ("every interpre-
 tation and interpretation must be context-bound").'02 This means
 that the text must be interpreted in the light of the original context.
 The same principle is held in other legal systems, including the Amer-
 ican legal system. Jurists warn against reading the law, "without re-
 gard for the surrounding jurisprudence--including its constitutional
 
   101 ASHER BEN JEHIEL (RosH), TESHUVOT HAROSH, RESPONSUM no. 14 (translated by
 author).
   102 JERUSALEM TALMUD, YOMA 3:5 (translated by author).
 
 
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 configurations-into which the statute must fit."'113 Concerning law-
 yers who take words and terms out of their context, disregarding their
 specific background and circumstances, a great legal scholar of our
 times wrote with indignation: "One of the most important contexts is
 that of the whole Act, and there is no more vicious method of argu-
 ment than tearing words from a statute as some counsel do, without
 relating them to the whole purport of the enactment."1°'
     Judaism felt the same about the Law. Since ambiguity is intrinsic
 to the nature of language, one cannot interpret an obscure or laconic
 term in such a way as to render a law, or the entire Constitution, null
 and void. The perimeters of text-reader collusion in Judaism parallel
 the standard methodology applied in American courts of justice for
 the interpretation of contracts and legal texts.
 
 
 103 See WELLINGTON, supra note 68, at 31.
 104 CARLETON K. ALLEN, LAW IN THE MAKING 506-07 (1964).