<pre>
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
                              Josd Faur*
 
                  I. THE MONOLINGUISTIC MIND
      "The dialogue with the Greeks," noted Arnaldo Momigliano
 (1908-1987), "happened because the Romans and Jews wanted it."'
 Unlike the Hebrews and Romans who learned Greek, Greeks never
 had any curiosity to learn a foreign language. Romans and Jews
 translated their texts into Greek, but no Greek ever cared to translate
 any of his literature into a foreign language. The Rabbis allowed the
 use of a Greek scroll of the Torah in the synagogue services. "It
 would have been inconceivable for a Greek to have Homer recited in
 Hebrew!"2 A fundamental aspect of the monolinguistic mind is that it
 conceives of its own linguistic and cultural apparatus as universally
 valid categories of human thought; only its own peculiar form of
 thinking and value-system are legitimate.' By virtue of speaking a
 different language, aliens reflect abnormality; the "other" is not an-
 other, but a subspecies exhibiting faulty standards of thought and
 culture.4
      Since the monolinguistic mind conceives of the truth according
 to the exclusive terms of its own linguistic and cultural apparatus, its
 truth is "context-free"-absolute and categorically valid in all times
 and societies.- The persecution of aliens, undesirables, and heretics
 present in persecuting societies reflects the ideology whereby one par-
 ticular group, in possession of "the truth," hounds those who are "dif-
 ferent," and hence hierarchically inferior. Since the eleventh century,
 the persecution of minorities and undesirables had become one of the
 most important features of European society. Consequently, the ap-
 pearance of groups "warranting" persecution was the result, rather
 than the cause, of the persecuting society.6 Essentially, the anti-
 
    * 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 JOS- FAUR, GOLDEN DOVES WITH SILVER DOTS: SEMIOTICS AND TEXTUALITY IN
 RABBINIC TRADITION 7 (1986) (citation omitted).
    2 Jos6 Faur, Reading Jewish Texts with Greek Eyes, SH'MA, Nov. 27, 1987, at 12.
    3 See FAUR, supra note 1, at 7-8.
    4 See Jost FAUR, IN THE SHADOW OF HISTORY: JEWS AND CONVERSOS AT THE DAWN
 OF MODERNITY 4-7 (1992).
    5 For an analysis of this type of truth, in contradiction to the Hebrew concept of truth as
 "context-bound," see FAUR, supra note 1, at 23-37.
    6 See FAUR, supra note 4, at 2.
 
 
 1713
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 Maimonidean movement (1180-1240) arising in France and spreading
 throughout the Iberian Peninsula, resulted from Jewish absorption of
 Christian patterns of thought and feeling. Responding to a mimetic
 impulse, the anti-Maimonideans went on a rampage in pursuit of Jew-
 ish "heretics." Just as Christians persecuted men of great stature
 such as Thomas Aquinas (1224/5-1274) and Peter Abelard (1079-
 1142) for their sin of examining faith by the ordinary means of human
 reason, the anti-Maimonideans made the persecution of heretics their
 raison d'etre. Their source of inspiration was men like Bernard of
 Clairvaux (1090-1153)-the "great detective of heresy"-rather than
 the Talmud. The literature produced by these persecuting communi-
 ties reflected their peculiar aggressive, hostile manner.7 As with other
 such persecuted groups, the Jewish "alien" was hounded and hated.'
      Ideologically, the anti-Maimonidean controversy concerned the
 ultimate grounds of Judaism. For the Andalusian tradition, whose
 most articulate exponent was Maimonides (1135-1204), the ultimate
 grounds for any relationship between man and God is the Law itself,
 as contracted in the Sinaitic covenant. From this perspective, the
 Law is not grounded in a particular ideology; values and ideology are
 the consequence, not the cause, of the Law. Thus, the "Law" is an
 absolutely autonomous concept, not conditioned by extraneous ideol-
 ogies and values. Although varied in their specific ideologies, the
 anti-Maimonideans concurred in one fundamental principle: the To-
 rah must be conceived in theological terms. Since neither the Scrip-
 ture nor the Talmud contains something approaching a systematic
 
    7 See id. at 9-27. The persecuting dimension of such societies was reflected in their litera-
 ture. Their criticism of other points of view, Maimonides' in particular, is contained in brief
 notes known as hasagot (or hasagah in singular, which means "to overtake", as when the
 persecutor seizes the victim, see Deuteronomy 28:45; Psalms 7:6). A more benign form of
 criticism is known as haggaha ("emendation"). In Rabbinic literature, this term refers to a
 scroll of the Torah which is "ritually void" (pasul), and may not be left in one's premise unless
 it is properly "amended." See BABYLONIAN TALMUD, KETUBBOT 19b. The reason for the
 persecuting character of this type of literature thus becomes evident.
    8 See FAUR, supra note 4, at 5 (comparing Sir Henry Summer Maine's recounting that
 there was more affinity felt toward the dogs of the clan than with "the tribesmen of an alien
 and unrelated tribe," and Rabbi Abraham ben David of Posquiers's relating that he had envi-
 sioned the members of his own community, although they were in error, "as superiors and
 better" than Maimonides, even though conceding that Maimonides was right). See RABBI
 ABRAHAM BEN DAVID, HASAGOT HARA'AVAD, printed in MAIMONIDES, MISHNEH TORAH,
 SEFER HAMADAH, HILKHOT TESHUVAH 3:7; compare Rabbi Abraham commenting on MAI-
 MONIDES, MISHNEH TORAH, SEFER TAHORAH, HILKHOT TUM'AT OKHALIN 15:1, where
 Maimonides is excluded from the "righteous" (yesharim), probably for the same reason. A
 more poignant example was the treatment given to Rabbi Zerahya ha-Levi, who was critical of
 some of Rabbi Abraham of Posquiers's talmudic interpretations. In the heart of winter, he
 was prevented from entering into the city and forced to spend the night in the outskirts, where
 he subsequently died of cold.
 
 
 1714
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 exposition of Jewish theology and religion, the Torah can never be
 conceived of as an autonomous system. Somehow, one must postulate
 that there are absolute systems and ideologies, transcending the ex-
 plicit text of the Law and the Talmudic tradition, which determine
 man's relation to God, and condition the interpretation of the Torah.9
      The triumph of the anti-Maimonidean movement resulted in the
 displacement of Jewish humanistic and scientific traditions. Judaism
 became authoritarian and doctrinaire. It could no longer be con-
 ceived in terms of a broad, pluralistic frame of reference,10 but rather
 as a rigid theological system mirroring Christianity. Critical thinking
 and creative ideas, let alone the pursuit of scientific and humanistic
 studies, were not tolerated. It was not until the eighteenth and nine-
 teenth centuries, when universities began to open their doors to Jew-
 ish students, that Jews gained access to their scientific and humanistic
 knowledge.'I Jewish perception of Judaism was conditioned by theo-
 logical and doctrinal notions absorbed from the Christian environ-
 ment.'2 Although using German secular terminology of the time, the
 nineteenth-century Jewish movement known as Wissenschaft des
 Judentums ("Scientific Study of Judaism") maintained the same basic
 outlook: Judaism must be conceived in theological terms. This led to
 a type of historiography expressing, in the words of Professor Salo
 Baron, "the theocratic view of history."'3 In spite of their claim for
 "objectivity" and "scientific methodology" based upon "universal
 principles," the movement's methodology was nothing more than the
 application of German idealism to Judaism."4
      The absorption of Western patterns of thought and feeling pre-
 vented the Jew from fully appreciating Jewish classical texts and his-
 tory. Camouflaged under the banner of "objectivity" and "scientific
 methodology," a dogmatic and authoritarian attitude lurked, based
 on hierarchical presumptions and the imposition on others of values
 and models peculiar to a specific civilization and culture. A conse-
 quence of this type of methodology is that alien cultures in general,
 and Judaism in particular, never cohere.
 
    9 The author has developed this theme in a recent study. See Jos6 Faur, Two Models of
 Jewish Spirituality, SHOFAR, Spring 1992, at 5.
   10 For an analysis of this type of religious and cultural pluralism, in contradistinction to
 relativism, see FAUR, supra note 4, at 184-89.
   11 See id. at 2.
   12 See id. at 1-2. See also Faur, supra note 9, at 6.
   13 FAUR, supra note 1, at xii.
   14 See id. at xi-xii.
 
 
 1993]
 
 
 1715
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
           II. FEARING DIVERSITY: WHEN "DIFFERENT"
                      TRANSLATES AS "OPPOSITE"
      This form of Jewish scholarship, itself a relic of nineteenth-cen-
  tury thinking, is now challenged on the basis of linguistic and
  postlinguistic research. There is a paramount question: Are there
  any sets of "universal categories" by which all values and civilizations
  can be measured, or are these "universal categories" themselves the
  product of a specific cultural-linguistic environment, and therefore in-
  applicable to a different society and language? Specifically, what is
  the intellectual justification for requiring that Jewish texts be ex-
  amined against Western models-with the inevitable consequence of
  "finding" them "faulty" and in need of supplementation by "universal
  principles" taken from those same Western models?15 The thrust of
  -my Golden Doves with Silver Dots: Semiotics and Textuality in
  Rabbinic Tradition 16 is to reject as illegitimate the application of
  "universal principles" to the interpretation of Judaism, simply be-
  cause these "universal principles" are peculiar to Greek thinking and
  civilization, and not applicable to other cultures. For some scholars,
  like Robert Alter, the mere questioning of the categoric validity of
  these "universal principles" is regarded as "barbaric," and "nothing
  less than the subversion of Western metaphysics."'7 The term "sub-
  version" used in this context is particularly significant. It indicates
  belief in the hierarchical position that certain forms of thinking ought
  to occupy vis-A-vis other systems, Judaism in particular, and the theo-
  logical and political responsibility of those in control not to allow un-
  derlings to trespass their boundaries."8
      A similar position is taken by Professor Suzanne Last Stone. In a
 highly   scintillating and   well-organized   article, Judaism     and
 Postmodernism,'9 Professor Stone warns about the effects of criticism
 stemming from postmodernism: "These criticisms, taken together,
 threaten a religious legal tradition based either on classical natural
 law, on positivist concepts of authority, or on the search for God's
 true will revealed in Scripture."20 Only when thinking in monoliguis-
 
   15 For a humorous instance of this type of circular reasoning, see id. at 155-56 (quoting
 Edmund Husserl, Philosophy and the Crisis of the European Man, in PHENOMENOLOGY 171
 (Quentin Lauer ed., 1965)).
   16 FAUR, supra note 1.
   17 Faur, supra note 2, at 12 (citation omitted).
   18 Whoever thinks that Jewish secularists are incapable of spiritual epiphany have yet to
 consider the possibility of a Borgesian situation, where the secularists are seized by one of
 those rabbinic dislocations and Athens jumps to Sinai. Or was it the other way around?
   19 Suzanne Last Stone, Judaism and Postmodernism, 14 CARDOZO L. REV. 1681 (1993).
   20 Stone, supra note 19, at 1684.
 
 
 1716
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 tic terms do different systems appear to be "diametrically opposed" to
 each other.21 Since this system of thought conceives of culture in
 monolithic terms of all or nothing, demonstrating that the Rabbis
 may have borrowed some exegetical terminology from the Hellenistic
 world could be construed as proof that they had borrowed their philo-
 sophical and metaphysical systems as well.22 And yet, as Professor
 Harry Wolfson (1887-1974) pointed out:
     In the entire Greek vocabulary that is embodied in the Midrash,
     Mishnah, and Talmud there is not a single technical philosophical
     term. Moreover, of those Greek terms embodied in them, which in
     Greek literature have a philosophic meaning in addition to their
     popular meaning, none is used in its philosophic meaning. Nor are
     there to be found in them Hebrew or Aramaic terms which may be
     taken with certainty as direct translations of Greek philosophic
     terms.23
     A pluralistic view of culture conceives of dissimilar value systems
 and civilizations not in terms of opposition to one another, but simply
 as expressions of different historical and linguistic environments.24
 To the monolinguistic mind, different cultural systems are perceived
 as being in opposition to one another; there can only be a single "cor-
 rect" system, hence every other system is opposing, rather than simply
 different. Thus, the argument that the reason some scholars apply
 poststructuralist theory to the study of Judaism simply because "con-
 temporary critical theory ... situates itself in opposition to Greek and
 Christian systems of thought," must be a proper medium to express
 Rabbinic tradition.25 Therefore, by definition, the application of post-
 structuralism must be described as one of those futile efforts to har-
 monize two "disparate" systems.26
      Whereas from a pluralistic perspective all cultures and value sys-
 tems must be viewed horizontally, monolinguistic thinking perceives
 other cultures as hierarchically inferior, and thus subordinate to the
 superior system. Therefore, to assume that the Rabbis had a system
 of their own, one must posit that somehow the Rabbis were con-
 sciously looking for an alternative to metaphysics, as argued by Pro-
 fessor  Stone:   "For   even  though    the  midrashic   rabbis  and
 poststructuralists share an antipathy to systematic theories of the sort
 
   21 Id. at 1685.
   22 Id. at 1687-88.
   23 1 HARRY A. WOLFSON, PHILO 91-92 (1948).
   24 See FAUR, supra note 1, at xii-xiii; FAUR, supra note 4, at 184-89, 204-05.
   25 Stone, supra note 19, at 1692 (emphasis added). According to this logic, the same schol-
   ars could have instead chosen Marxism or Agnosticism to achieve the same end.
   26 Id.; cf. id. at 1681.
 
 
 1993]
 
 
 1717
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 endemic in Greek thought, it is still questionable whether the rabbis
 were espousing an actual alternative to Greek metaphysics ...."I'
 Similarly, a presentation of rabbinic jurisprudence cannot be viewed
 solely on its own terms but, rather, in "stark opposition to Greek/
 Christian/Western thought."'28
      An important element in monolinguistic theory is that the truth
 is categorically absolute, and therefore absolutely static and uniform.
 This leads to the strange view that to posit that the Rabbis had a
 system of their own, one also must posit that no change had ever
 occurred in Rabbinic thought. In the words of Professor Stone, one
 then would have to ascertain that there was "a single, unchanging
 rabbinic worldview."'29 Furthermore, if such a Rabbinic system ever
 existed, then all periods should have been exactly the same. Likewise,
 all Rabbis and future rabbinic schools should have thought
 identically:
     Moreover, the notion that there is one underlying rabbinic
     worldview requires the collapse of distinctions between all rabbinic
     periods and genres. Yet rabbinic midrash, rabbinic rationalist phi-
     losophy, and kabbalistic exegesis differ from one another, almost as
     much as they differ from Greek/Christian/Western systems of
     thought.3"
 This argument makes sense upon realizing that according to Professor
 Stone's perspective, "different" actually means "opposing."
      The use of postructuralist theory for Jewish studies is not
 grounded on a surrealistic flight of fancy, imagining that rabbinic
 literature is identical to modern critical theory. The argument that
 "[t]here are also important differences,"'" unwittingly trivializes the
 issue. Nor is there any need for harmonizing. Cultural differences
 and the lack of uniformity between civilizations, or internally within a
 single system, need not be seen as an aberration to be corrected. In
 the same vein, the conclusion that Rabbinic Judaism has a system of
 its own does not imply that no interchange with other civilizations
 took place, or that it had remained homogenic throughout the ages.
 A fundamental aspect of poststructuralism, and especially for the
 study of Rabbinic Judaism and alien cultures and literature, is not to
 assume our own cultural biases and intellectual prejudices. It is true
 that the Rabbis operated under the restraint of some sort of reasoning,
 
   27 Id. at 1692. The choice of the term "antipathy" is highly significant, as it indicates that
 something different must necessarily be hostile and inimical. See FAUR, supra note 4, at 5-6.
   28 Stone, supra note 19, at 1687 (emphasis added).
   29 Id. at 1689.
   30 Id. at 1688 (emphasis added).
   31 Id. at 1696 n.67.
 
 
 1718
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 which resulted in "a system of self-imposed limitations."'32 But it does
 not follow, as Professor Stone contends, that these constraints were
 the result of some metaphysical and logical categories, imposed from
 above, and recognized as the ultimate criteria of objectivity. Rather,
 the Rabbis, just as all deliberative groups, were operating under the
 constraints peculiar to their own cultural and linguistic apparatus.
 The "major methodological question" raised by Professor Stone-"Is
 it possible 'to understand the Other without distorting it in the very
 name of Otherness?' "33--should be self-addressed, particularly when
 operating under a system equating "different" with "opposite."'34
 
    III. DAAs TORAH: WATCHMAKERS VS. THE PERFECT CLOCK
 
      A major reason for the hostility that the Maimonidean tradition
 continues to encounter is that it produced the only code encompass-
 ing the entire rabbinic legal system.3" All other works produced
 before or after Maimonides have codified only a portion of rabbinic
 law. As Maimonides himself remarked to one of his more benign
 critics:
     Many other authorities and scholars before me had composed
     works and codified laws about known subjects, both in Arabic and
     Hebrew. However, no one since the times of our Holy teacher [Ju-
     dah the Prince] and his holy colleagues have codified [all] the laws
     contained throughout the Talmud on all the commandments of the
     Torah. Do you mean that because this [work] is exhaustive, that it
     would cause desecration of [God's] Name? This is an amazing
     [argument]!36
     The strategy of the anti-Maimonideans becomes clear upon real-
 izing that in Rabbinic jurisprudence, laws are interconnected, and
 even the most disparate subjects could be made to bear upon each
 other. Since lacunas allow the interpolation of concepts and ideas
 that facilitate the exploitation of the entire system, partial codes may
 be subject to manipulation. In such a situation, control rests in the
 hands of the clergymen, not the law. As with Leibnitz's famous puz-
 zle, a perfect clock would totally displace the watchmaker.37 In our
 
   32 Id. at 1702-03.
   33 Id. at 1687.
   34 On this attitude in general, and the association between "different" and "hostile," see
 FAUR, supra note 4, at 5-7.
    35 See Josi Faur, Law and Hermeneutics in Rabbinic Jurisprudence: A Maimonidean Per-
 spective, 14 CARDOZO L. REV. 1657, 1659-60 (1993).
    36 1 QOVEZ TESHUVOT HARAMBAM 25 (Leipzig, 1859).
    37 On Leibnitz's paradox, see Jos6 Faur, Newton, Maimonides, and Esoteric Knowledge,
  CROSS CURRENT, Winter 1990, at 536.
 
 
 1993]
 
 
 1719
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 case, a complete code of all Rabbinic jurisprudence, accessible to the
 educated masses, would severely restrict the discretionary judgment
 of the clergy. Maimonides systematically rejected the notion of
 authoritas in post-Talmudic jurisprudence. Following in the footsteps
 of the school of Lucena, Spain, Maimonides was careful to distinguish
 between the law of the Talmud itself, "which is binding on all Israel"
 and that of the post-Talmudic era.38 The Talmud comprises the views
 and opinions "which were agreed upon by all Israel,''39 thus repre-
 senting the views and traditions "of all or the majority of the sages of
 Israel."' The Talmud represents national consensus and public au-
 thority. Its ultimate basis is political, namely, guidance of the nation
 of Israel (in exile). Accordingly, it has binding jurisdiction on all
 Jewry. On the other hand, post-Talmudic authorities lack a national
 political basis, and do not represent Jewish public authority. With the
 conclusion of the Talmudic era (499 C.E.), the period of the national
 Jewish court came to an end. All Jewish courts since then have local
 jurisdiction alone (bet din shel ye~hidim).41 It is on the basis of their
 expertise in Talmudic law, not on legal authority, that the decisions of
 the post-Talmudic courts are accepted.42 Current opinion that, ac-
 cording to Rabbinic jurisprudence, the later jurisconsults (abaronim)
 must subordinate their views to the earlier jurisconsults (rishonim), is
 another instance of Christian thinking affecting rabbinic thought; it is
 grounded on the well-known distinction between auctores maiores and
 minores.43 Maimonides, however, emphatically denied the notion of
 authoritas among post-Talmudic jurisconsults. When conflicting
 opinions arise, one should follow the most reasonable view, regardless
 of who issued it:
     Every court of justice in every city and city which was established
     after the Talmud, that legislated a prohibition, promulgated a stat-
     ute, or established a custom for the people of its city or of many
     cities, its decisions did not disseminate throughout Israel, because
     of the distances and poor road conditions. And because the court
     of justice of that city was local, whereas the supreme court of sev-
     enty one members had ceased to function many years before the
     compilation of the Talmud. Accordingly, one cannot coerce the
 
   38 See MAIMONIDES, INTRODUCTION TO THE MISHNEH TORAH 45 (Yosef Qafih ed.,
   1983).
   39 Id.
   40 Id. See Jost FAUR, STUDIES IN THE MISHNEH TORAH 41-42 (1978); cf. id. at 45-46.
   41 MAIMONIDES, INTRODUCTION TO THE MISHNEH TORAH 45; see FAUR, supra note 40,
 at 43-45.
   42 See FAUR, supra note 40, at 41.
   43 ERNST R. CURTIUS, EUROPEAN LITERATURE AND THE LATIN MIDDLE AGES 465-67
 (William R. Trask trans., 1973).
 
 
 1720
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
     people of one city to adopt the custom of another city. Nor may
     one say to a court of justice to legislate a prohibition which was
     legislated by another court in its own city. Similarly, if one of the
     Geonim taught that the principle of the law is one way, and an-
     other court coming afterwards came to the conclusion that this is
     not the principle of the law written in the Talmud, the opinion of
     the earliest must not be accepted, but that which seems more rea-
     sonable, be it of the earliest or the latest.'
     Because Maimonides denied the legal authority of post-Talmudic
 rabbis, it was imperative to compose a code containing the entire
 corpus of Rabbinic jurisprudence which would serve as the basis of
 authority in the post-Talmudic period. In spite of all the lip service to
 the Talmud, the anti-Maimonideans behaved as if they had at least as
 much authority as the Talmudic rabbis. Indeed, the rabbi had be-
 come an incarnation of God's will. Disregarding the history of the
 Jewish bet din ("court of justice") and its role both in the Talmudic
 and post-Talmudic periods, Professor Stone makes the essential point
 that "[r]abbinic authority, which is not derived from any institutional
 appointment, but rather from acceptance by the larger community
 which the rabbi addresses, is achieved and sustained because the com-
 munity recognizes that the particular sage has come to represent To-
 rah and, in a sense, God's will."45 From this perspective, the rabbi
 need not be a member of the Jewish court, or be appointed by the
 local Jewish authorities. As the intercessor between God's imponder-
 able will and the community, the rabbi is hierarchically superior;
 while the faithful must recognize him, his authority does not derive
 either from this recognition or from an institutional appointment.46
 Professor Stone's post-Talmudic rabbi stands hierarchically higher
 than the Talmudic rabbi in the Maimonidean tradition. For Maimon-
 ides, sovereignty resides in the law itself.47 The authority of the Tal-
 mudic rabbi is derived from the national and judicial institutions as
 stipulated by the law, and therefore the rabbi is bound by it.48 Profes-
 sor Stone conceives of the rabbi as a superior being, with the ability to
 penetrate God's mind and transmit God's will. This type of rabbi
 
   44 MAIMONIDES, INTRODUCTION TO THE MISHNEH TORAH 45.
   45 Stone, supra note 19, at 1700.
   46 The first Jew to have made such a claim in the Rabbinic period seems to have been
 Jesus. For normative Judaism, the authority of the rabbi stemmed from the institutions that
 had appointed him and had bestowed on him the right to teach and adjudicate. During the
 Rabbinic period, these institutions were the Academy (yeshiva), the Jewish Court (bet din),
 and the Exilarch in the land of Israel, or Resh Galuta in Babylonia, representing the Jewish
 political institutions.
   47 See Faur, supra note 35, at 1660-61.
   48 See id.
 
 
 19931
 
 
 1721
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 cannot possibly be bound by the letter of the Law, which is revealed
 and therefore accessible to all. Rather, he must be perceived in light
 of the modem     doctrine of daas torah-something akin to Paul's
 "spirit of the law."49 According to this doctrine, these superior be-
 ings5" have exclusive access to the most recondite corners of the To-
 rah, and they can reveal "God's will" on every conceivable subject."
 Thus, Professor Stone speaks of the blurring of distinction between
 the personality of the sage and God's will.2 Most notably, Professor
 Stone does not elaborate on the difference between the role of such a
 rabbi and that of a mediator in Christian theology. At any rate, since
 "the acceptance of the larger community" of the rabbi's supernatural
 abilities cannot possibly be the result of critical knowledge, this "ac-
 ceptance" is in fact an act of faith. Within such a context, one must
 posit a hierarchical distinction between the rabbi and the community.
 The relation is one of a subordinate to a superior. To borrow medie-
 val terminology, this relationship concerns the subordination of the
 fidelis subditus ("faithful subject") to his superior. The model for
 such a relationship is found in Christianity, not in the Talmud. In
 medieval Christian theology, faith was expressed through obedience
 to the superior by the inferior; it is the act of subordination that ren-
 ders the individual afidelis, thus worthy of salvation. Obedience ex-
 presses "[a]cceptance by the inferior of the superior's decrees and
 laws, because the subject has faith in the superior's institutions."513
 Similarly, Pope Gregory the Great declared in the sixth century that
 "the verdict of the superior-no matter whether just or unjust-had
 to be obeyed by the inferior subject."54 Accordingly, "rationalism"
 (that is, the application of critical knowledge by thefidelis) is an act of
 insubordination, and must be suppressed at all cost. Occasionally, the
 "acceptance of the larger community" of the rabbi's ability to com-
 municate "God's will" could lead to tragic results. The most harrow-
 ing case known to this author took place during the Second World
 War. Because of his anti-Zionist stand, the Belzer Rebbe prohibited
 his community to flee Hungary for Israel before the Nazi occupation.
 At the same time, using certificates reserved for Zionist veterans, he
 
    49 See Faur, supra note 35, at 1674.
    50 These "superior beings" invariably belong to the same religious political party, and rep-
  resent the same ethnic and geographical regions.
    51 For a detailed discussion of this doctrine, see Gershon Bacon, Daat Torah, 52 TARBIZ
  497 (1983); see also Lawrence Kaplan, Daas Torah: A Modern Conception of Rabbinic Author-
  ity, in RABBINIC AUTHORITY AND PERSONAL AUTONOMY 1 (Moshe Sokol ed., 1992).
    52 See Stone, supra note 19, at 1700.
    53 FAUR, supra note 4, at 33.
    54 See id. at 36. For a survey of the subject, see id. at 28-29, 32-34.
 
 
 1722
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 escaped to the Promised Land." On May 25, 1944, a few days before
 Rebbetzin Hayya Halberstam was murdered by the Nazis in Au-
 schwitz, she was recorded as saying:
     The Belzer Rebbe said that Hungary would only endure anxiety.
     And now the bitter hour has come, when the Jews can no longer
     save themselves. Indeed, heaven concealed [this fate] from them,
     but they, themselves, fled at the last moment to the land of Israel.
     They saved their own lives but left the people as sheep for
     slaughter.56
     The objection to the Maimonidean legal code, precisely because it
 was a total system, must be seen in light of the effort to depict the
 rabbi as the intermediary between "God's will" and the community.
 The purpose of hasagot (strictures) and haggahot (emendations) in
 premodern times57 was to snap the system and render it inoperative.
 Similarly, by interpolating metaphysical and theological notions into
 the Rabbinic legal system, the clock is made to crack and the watch-
 makers attain a position of control. Within that system, sovereignty
 does not lie in the law, but among those who have access to Daas
 Torah and "God's will." A thorny point for those advocating the
 interjection of theology into Rabbinic jurisprudence is the fact that
 Maimonides classified belief in God as a commandment. This means
 that for Judaism, belief in God-the most basic of all theological prin-
 ciples-must be subordinated to the law.58 There is a story told about
 the late Professor Saul Lieberman-by far the most eminent Tal-
 mudic scholar in modern times. He was asked, "What is Jewish the-
 ology?" To which he responded: shor shenaga, et haparah! That is,
 he referred to the Talmudic section dealing with the minutiae con-
 cerning an ox who had gored a cow. It is precisely in the infinitely
 meticulous discussion of even the most recondite legal problems that
 the Jewish ethos is revealed in full splendor. This does not mean that
 Judaism has no theology or religious doctrines, but rather that those
 values are to be inferred from the law and be subordinated to it, rather
 than the other way around. Reflecting Western metaphysical and the-
 
   55 Kaplan, supra note 51, at 56.
   56 Id. at 60. For an analysis of this incident, see id. at 56-60.
   57 See id. at 56-60.
   58 See Faur, supra note 35, at 1661-62. Instead of confronting the issue, Professor Stone
 veers away from the subject, referring to some secondary sources. See Stone, supra note 19, at
 1682 n.4. The meaning of the statement-"primarily declarative, not imperatival; the impera-
 tival aspect of the commandment 'arises from the fact of God's existence as Israel confronts it
 rather than from any human or intermediary authority' "--does not make sense when the
 Arabic and Hebrew terminology used by Maimonides in defining this commandment is ex-
 amined. For an analysis of the terminology and concepts underlying Maimonides' position on
 this subject, see FAUR, supra note 40, at 152-60.
 
 
 1993]
 
 
 1723
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 ological bias, Professor Stone assumes that to present Rabbinic juris-
 prudence as a totally autonomous system is an attempt "to divorce
 rabbinic jurisprudence from its religious framework."59 This argu-
 ment is particularly significant coming from a professor of law, since
 the only two other civilizations in antiquity to have produced a juridi-
 cal system, the Romans and the Sassanides, had no metaphysics or
 theology. Conversely, neither the Greeks nor the Church Fathers
 produced a juridical system.
 
             IV. MISUNDERSTANDING THE COVENANT
 
      The most integral idea in the Hebrew Scripture is that of a bilat-
 eral covenant, freely contracted between God and Israel. This cove-
 nant is the basis for all the laws and institutions governing the Jewish
 people. Professor Stone objects that "the rabbis of the classical period
 [did not devote] any systematic attention to the idea of a bilateral,
 negotiated covenant."'6 This objection is the consequence of a belief
 in the need to subordinate Jewish ideas to Western canons of truth. It
 is true that the rabbis did not devote any "systematic attention" to the
 covenant, but also to little else. The whole notion of a system, let
 alone systematic attention, was alien to them. Not only did the Tal-
 mud fail to devote any systematic attention to the concept of cove-
 nant, but also to other concepts such as God, monotheism, oral law,
 history, canonization, family law, civil law, and so forth. Indeed, it
 would be difficult to find a single subject to which the Talmud had
 given systematic attention.  At the same time, the expression ha-
 berit ("by the covenant!") in Rabbinic literature was used as an
 oath,61 reflecting supreme sanctity. More to the point, the Rabbis de-
 veloped the concept of covenant not as a theological doctrine or philo-
 sophical postulate, but as a juridical principle. This principle is
 known as mushba ve-omed me-har sinai, "(he/she) was already duly
 sworn at Mt. Sinai."62 This principle stipulates that every Jew is re-
 garded as having personally entered into the Sinaitic covenant.
 Therefore, an oath contravening any of the commandments is to be
 considered an oath "pronounced in vain" (levatalah). Maimonides
 
   59 Stone, supra note 19, at 1694 (emphasis added).
   60 Id.
   61 See TOSEFTA HALLAH 1:7. For the linguistic aspects of this expression see the valuable
 remarks of G. Sarfati, Semantics of Mishnaic Hebrew and Interpretation of the Bible by the
 Tanna'im 30 LESHONENU 29, 35-36 (1965).
   62 BABYLONIAN TALMUD, YOMA 73b. See also BABYLONIAN TALMUD, NEDARIM 8a;
 BABYLONIAN TALMUD, SHEVU'OT 21b, 27a.
 
 
 1724
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 codified this principle63 and regarded it as a basic Jewish concept. In
 a letter to the Jewish community in Yemen, he wrote:
      My brethren, rely on these true verses, and don't let yourselves be
      vexed by the continuous religious persecutions, others dominating
      us, and the frailty of our word. All these are a test and a cleansing.
      So that no one, except those who are genuinely pious from the chil-
      dren of Jacob -that pure and chaste seed-will uphold the
      faith.... And these are the people whose forefathers stood on Mt.
      Sinai, and heard the speech from the Almighty, and had stretched
      their right hands to [make] a covenant with God, and registered[6]
      in their souls service and allegiance [to God], proclaiming: "We
      shall fulfill and we shall obey!" And they obligated themselves and
      their posterity to this, proclaiming: "Upon us and upon our chil-
      dren forever!",65
 In Maimonides' view, whoever entertains any doubts on this matter
 could not be a descendent from "those whose ancestors had stood at
 Mt. Sinai."'66 Therefore, according to Maimonides, the Jewish people
 are duty bound "to always remember our standing at Mt. Sinai; [the
 Jewish people] were warned not to forget it, and [the Jewish people]
 have the responsibility to teach it to [their] children, so that they
 would grow    up in this knowledge."67 This is the reason why Mai-
 monides urged, "My brethren! Know this covenant and this commit-
 ment!"6" This special kind of knowledge of God had set Israel apart
 from all other nations, and constituted the ground for all future theo-
 logical doctrines.69
      On a conceptual level, Professor Stone asks several questions:
 "[W]hat guarantees the perpetuity of the contract... ?"I' If the obli-
 gations contracted by the covenant with God "have no moral force
 . . . why is there any obligation to continue to abide by the agree-
 
    63 MAIMONIDES, MISHNEH TORAH, SEFER HAFLA'AH, HILKHOT SHEVU'OT 1:6. Cf. id.
 at 11:3.
    64 1 was unable to locate an English equivalent to sajjalu, an Arabic term from the original
 Maimonidean text, which actually means "to register, to deposit a record in an official archive
 for further evidence." This specific meaning of this term is essential to understand Maimoni-
 des' thesis that the experience at Sinai resulted in a philogenetic trait, whereby belief in Moses
 and the Torah became a distinctive characteristic of the Jewish soul. See JosE Faur, Intuitive
 Knowledge of God in Medieval Jewish Theology, 67 JEWISH Q. REV. 90, 91 (1976-77).
    65 MAIMONIDES, Iggeret Teman, in IGGEROT 15, 27 (Joseph Qafih ed., 1972) (translated
  from the original Arabic by author).
    66 Id. See also Faur, supra note 64, at 108.
    67 MAIMONIDES, supra note 65, at 28.
    68 Id. The Arabic term i'tiqad, usually translated to mean "faith," actually means "bind-
  ing," or "commitment." See FAUR, supra note 40, at 146 n.12.
    69 See Faur, supra note 64, at 90-110.
    70 Stone, supra note 19, at 1695.
 
 
 19931
 
 
 1725
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 ment?"'' More poignantly, "can God be bound to a contract in
 perpetuity without reintroducing the concept of a theological God,
 whom Israel trusts?"'72 Such considerations point to Professor Stone's
 metaphysical biases. To the Hebrew mind, such queries make as
 much sense as if one were to ask a Greek, "what is the force of ethics
 and metaphysics, as they were imposed on you without your con-
 sent?" Or, "what guarantees do you have that your God would con-
 form to your theological doctrines, when He never formally acceded
 to them?" Contrary to Professor Stone's idea, Jews who continue to
 abide by the terms of the covenant do not do so because of some meta-
 physical "obligation," or theological "imperative," but simply be-
 cause they choose to do so.73
      An essential element of the covenant is that both parties contract
 for it freely, without any kind of coercion. Since "choice" is anath-
 ema to the Western concept of "metaphysical necessity," the notion
 of a freely contracted covenant with God is highly objectionable. In-
 deed, Professor Stone argues that "the Bible portrays the human awe
 and fear when the law was given."'74 Here, Professor Stone confuses
 the theophany at Sinai with the actual contracting of the covenant
 taking place on the following day. On the next morning, Moses
     proceeded to read to the people "the book of the berit" [covenant].
     The morning is quiet and serene. There are no cataclysms, no
     lightnings. The echo of the thunderings and of the terrible sound
     of the horn are far gone. Moses finishes reading the "book of the
     berit." God is conspicuously absent. There is nothing that may
     coerce, frighten or suggest to the people. Freely and at once, the
     people burst the quietness of the morning with these words: "All
     that the Lord had spoken we will do and we will hearken."
     "Hearken," as usually used in the Bible, means "to obey." Moses
     then takes the rest of the blood and sprinkles it upon the people,
     saying: "Behold the blood of the berit which the Lord hath made
     with you, upon all these words.""7
     It is simply amazing that one who teaches law could argue that
 since the Torah "promises swift punishment for those who breach" it,
 the covenant was not voluntary.76 In Judaism, as in all legal systems,
 we must distinguish between the making of a contract, that must be
 voluntary and free from coercion, and the execution of said contract,
 
   71 Id.
   72 Id.
   73 Jos6 Faur, Understanding the Covenant, TRADITION, Spring 1968, at 33, 41-42.
   74 Stone, supra note 19, at 1694.
   75 Faur, supra note 73, at 43 (with slight corrections).
   76 Stone, supra note 19, at 1694.
 
 
 1726
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 which is compulsory. Infraction of the law results in punishment.
 These sanctions pertain to the execution, not the making, of the cove-
 nant. The purpose is to redress, not to coerce.7 Indeed, without
 sanctions and the means to enforce agreements and redress injuries,
 contracts have no force. But this certainly does not mean that all
 contracts are made under duress.
      A similar confusion characterizes the following objection made
 by Professor Stone. Since in Judaism, "the doing of commandments
 out of obligation is more meritorious than voluntary adherence,"'78
 the covenant may not have been contracted freely. Here again, we
 have the strange situation where a teacher of law confuses a legal obli-
 gation with coercion, suggesting that the obligation arose involunta-
 rily. What the Rabbis declared was that there is more merit for those
 who are duty bound to fulfill a commandment than for those who
 perform a commandment although they are not required to do so.
 This follows from the principle that since "merit" is a function of the
 covenant, those who are not commanded, and are therefore not cove-
 nanted to do a particular commandment, have less merit than those
 who are commanded to do it.79 Professor Stone's translation "volun-
 tary"-implying that those under the covenant act involuntary-is
 deliberately misleading.
      The only proof-text offered by Professor Stone that appears to
 contradict the idea of a freely contracted covenant is an opinion men-
 tioned in the Talmud, that God lifted Mt. Sinai over them and
 threatened the Jewish people with extinction unless they would accept
 the Torah."0 Professor Stone properly noted that this may have been
 a minority opinion."' Other rabbinic sources seem to uphold the view
 that God's offer to accept the Torah was not coercive.82
      In evaluating this opinion, the following considerations are essen-
 tial. This homily belongs to a special genre. The lesson is not in-
 tended to be taken verbatim, but rather, to show the rhetorical
 resourcefulness of the speaker. In this case, by cleverly reinterpreting
 a single word (ta/.tit), the speaker was able to acquit the entire Jewish
 people from sin, from the time of the Sinaitic covenant until the Per-
 sian period under Ahasheurus! The same genre of homily appears in
 the name of an earlier authority, who states: "I may be able to acquit
 
   77 See Faur, supra note 73, at 51.
   78 Stone, supra note 19, at 1694-95.
   79 See YOEL BEN SHU'EB, NORA TEHILLOT 43b (1569).
   80 BABYLONIAN TALMUD, SHABBAT 88a. See also Stone, supra note 19, at 1695.
   81 Stone, supra note 19, at 1695 n.62.
   82 See BABYLONIAN TALMUD, AVODAH ZARAH 2b; see also Stone, supra note 19, at 1695
 
 
 19931
 
 
 1727
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 from judgment the whole world, since the time of the destruction of
 the Temple till our days," on the grounds that with the destruction of
 the Temple, because of their suffering the Jewish people must be re-
 garded as "drunken," and therefore with no ability to make rational
 decisions.83 Homilies that deliberately depart from the standard in-
 terpretation of the verse, and therefore were not intended to be taken
 verbatim, are introduced in the Babylonian Talmud with the technical
 term melammed ("it teaches"). This is precisely how this homily,
 about God lifting up Mt. Sinai and threatening Israel with extinction,
 was introduced.84 As noted by one of the greatest Talmudic authori-
 ties of the nineteenth century, the use of the introductory term me-
 lammed indicates that the homily in question does not correspond to
 the actual meaning of the verse:
     [E]very place in which the Talmud uses the term melammed, is in
     order to extract the subject from its literal [context]; that is: the
     present text teaches [concerning] other [texts], or [concerning]
     other matters not implicit in the literal sense of the verse.85
 A close reading of this homily will confirm that it was not intended to
 teach that a covenant contracted under duress is valid, as Professor
 Stone contends, but exactly the opposite: that because the Sinaitic
 covenant was contracted under duress, it was not valid. Rashi stated
 that according to that thesis, the Israelites had a legal excuse to be
 exempted from punishment for sin. Rashi explained the legal basis
 for such a view, as follows:
     So that in case God would summon them for judgment, [asking]:
     why did you not fulfill what you have accepted upon you? They
     have an answer: because they accepted it by coercion.86
 Even if one were to take that homily verbatim, as Professor Stone
 proposes, the main legal theory remains unaffected. What this homily
 would be ascertaining then, is that since the Sinaitic covenant was
 made under coercion, it did not become valid until the Persian period,
 when supposedly it was voluntarily accepted. In that case, what it
 would have demonstrated is that the author of the homily had a bi-
 zarre sense of historiography, whereby the entire prophetic mission
 and subsequent Jewish history was unwarranted until the time of
 
   83 BABYLONIAN TALMUD, ERUVIN 65a (translation by author).
   84 See BABYLONIAN TALMUD, SHABBAT 88a.
   85 Jost FAUR, RABBI YISRAEL MOSHE HAZZAN: THE MAN AND His WORKS 138 (1978)
 (quoting Rabbi Moshe Hazzan). The author has further expanded on this type of terminology.
 See Jos6 Faur, Basic Concepts in Rabbinic Hermeneutics, 2 STUDIES IN JEWISH PHILOSOPHY
 (forthcoming).
   86 BABYLONIAN TALMUD, SHABBAT 88a (Rashi's commentary on moda'a rabah) (trans-
 lated by author).
 
 
 1728
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 Ahasuerus. It would then mean that the Sinaitic covenant did not
 take effect during the Exodus but instead over a millennium later.
 Regardless, the legal theory of the covenant remains the same.
      The methodology by which one assumes that the only true fruit
 is an apple, proceeding thereby to use an apple as a model to evaluate
 oranges, grapes, and bananas will necessarily lead to a succession of
 highly questionable conclusions and assertions. There is no reason to
 demand that the rabbis develop a theme "systematically," or that a
 legal system must justify itself in terms of metaphysical and theologi-
 cal rhetoric. Before quoting a foreign text, even in English transla-
 tion, it is important to understand the literary canons and technical
 terminology peculiar to that literature. What the passage cited alone
 demonstrates is not that "the rabbinic traditions are markedly ambiv-
 alent"'87 on the nature of the covenant, but rather, that Professor
 Stone is not totally familiar with all Rabbinic literary genres and tech-
 nical terminology.
 
       V. DAAS TORAH AND THE UNRELENTING QUEST FOR
                      AUTHORIAL INTENTION
                      A. Rabbinic Hermeneutics
      An essential element of the Maimonidean system of jurispru-
 dence is the theory of Rabbinic hermeneutics. This element can be
 briefly described as the following: (i) interpretation represents the spe-
 cific view of the exegete, not of God, the author of the Torah; (ii)
 interpretation is essentially arbitrary-the text could have been ex-
 plained differently; and (iii) interpretation becomes law by virtue of
 judicial legislation, not because it was determined by some canons of
 logic that it was "correct." As it will be seen in due course, those
 elements in Scripture that are ambiguous to us-what Maimonides
 designated dinim mufla'im (or din mufla in singular form)-were not
 part of the terms of the covenant. For Maimonides, the right for the
 Court to interpret these elements is not, as Professor Stone claims,
 because "[t]he laws derived through the hermeneutic rules are them-
 selves authoritative precisely because they are based on divinely au-
 thorized procedures.""8 Were an individual Rabbi, or a body other
 than the properly instituted Jewish court of Israel, to legislate on the
 basis of those very hermeneutic rules, that legislation or interpretation
 would be null and void, and carry no authority at all. For Maimoni-
 des, and in this critical point he was following Geonic tradition, the
 
   87 Stone, supra note 19, at 1694.
   88 Id. at 1703 (emphasis added by author).
 
 
 1993]
 
 
 1729
 
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 [Vol. 14:1713
 
 
 Rabbinic authority to legislate is not grounded on the hermeneutic
 rules themselves, but on the mandate given by the Torah, explicitly
 authorizing the Jewish Court to interpret and legislate.89 Again, in
 accordance with Geonic tradition, Maimonides concluded that laws
 arrived at through exegesis are Rabbinic, that is, the dinim mufla'im
 are the result of judicial legislation and do not constitute a part of the
 original Sinaitic covenant. The precise contents of the Sinaitic cove-
 nant, including all of its legal definitions, were transmitted orally
 under the supervision of the judicial authorities of Israel.90 According
 to Maimonides, the function of exegesis is neither to transmit nor to
 "dis-cover" the terms of the covenant-these being the exclusive pat-
 rimony of the oral tradition.9" Occasionally, the Rabbis connected an
 element of the Sinaitic covenant to the text of the Scripture through a
 homily. Those homilies are not the source of knowledge, but, as Mai-
 monides indicated, they merely serve the pedagogical purpose of help-
 ing associate the law received by tradition with the text of the Torah:
      [T]hey indicate (yustaddalu) them through one of the thirteen ca-
      nons of hermeneutics. Because it is within the wisdom (hukm) of
      the text that occasionally one can find in it some clue indicating a
      transmitted interpretation, or [there may be] a judicial analysis
      (qiyyasa) [indicating the transmitted interpretation].92
 
   89 See MAIMONIDES, MISHNEH TORAH, SEFER SHOFETIM, HILKHOT MAMRIM 1:2. For a
 full discussion of this subject, see FAUR, supra note 40, at 19-25.
   90 See Faur, supra note 35, at 1673.
   91 In Judaism and Postmodernism, Professor Stone refers to "intention about intention."
 Stone, supra note 19, at 1699. Very properly, she argues, that it is possible "that the author
 may well have implanted ambiguity in the text in order to authorize later interpreters to
 choose between a range of legitimate options." Id. Here, Professor Stone is alluding to a
 theory of law first discussed by this author in an earlier article. See Jos6 Faur, The Legal
 Thinking of Tosafot, in 6 DINE ISRAEL at xliii-lxxii (1975).
      The French rabbis of blessed memory asked: How could both of them be "the
      words of the living God," when one is prohibiting and the other is permitting?
      They answered that when Moses went up to Heaven to receive the Torah they
      showed him on every matter and matter, forty-nine grounds to prohibit and forty-
      nine grounds to permit. And he asked God about this, and He told him that this is
      given to the Sages of Israel of every generation to determine [what the law should
      be] according to what they [decide].
 Id. at li. There are other sources dealing with this idea in Rabbinic literature.
     Another theory pertaining to the same subject, somehow closer to Maimonides' position,
 was given by Rabbi Eliahu Mizrahi, in his commentary to Rashi on the scriptural verse, "that
 [God] gave us the Torah according to the mind of the judge." See Deuteronomy 17:14 (com-
 mentary of Rabbi Eliahu Mizrahi). At any rate, from the point of view of Maimonides, those
 explanations are at best marginal to the fact that the Torah itself has authorized the Jewish
 court to legislate and interpret.
    92 MAIMONIDES, SEFER HAMIZVOT 12-13 (Rabbi Joseph Qafih ed., 1971) (translated from
 the original Arabic by the author). See also FAUR, supra note 40, at 48-49. Maimonides'
 views on this matter relate directly to the debate concerning the relationship between a law and
 the Rabbinic homily. See Stone, supra note 19, at 1700. In standard legal exegesis, the law is a
 
 
 1730
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 This type of homily does not become law and has no legislative func-
 tion. The relationship between these homilies and the traditions they
 correspond to in the text is peripheral. More accurately, these tradi-
 tions are confirmed by an uninterrupted chain of oral transmission
 traced all the way back to Sinai, and need not be confirmed or upheld
 by homilies. Unlike exegeses leading to legislation that are formally
 debated, and finally determined through legislative action,93 these
 homilies are not debated, and do not serve any of the functions associ-
 ated with legislative exegesis.94 It is only by confusing pedagogy with
 legislation that one would identify these homilies with legislative exe-
 gesis, and describe the traditions they associate with a text as "rooted
 in scriptural exegesis.,'95
      As shown by this author in an earlier study (quoted by Professor
 Stone), the dinim mufla'im constitute a middle term between the
 purely Rabbinic legislation instituted by the Rabbis (derabbanan),
 and the elements connected by oral tradition to Sinai (deorayta):
      On the one hand, like the laws De-Rabbanan, these laws [the unde-
      fined elements of the covenant] depend on legislation. They there-
      fore require promulgation by the court and can be abrogated by
      another court. Furthermore, the judiciary can make stipulations
      and grant exceptions that would be inadmissible in scriptural laws.
      On the other hand, since the Dinim Mufla'im define [elements per-
      taining to] scriptural laws, they affect the laws De-'Oraita and thus
      acquire the status of the laws they are defining. For example, the
      scriptural expression "to take a wife" [Deuteronomy 22:13] is
      taken as the basis of the wedding ceremony current among Jews
      since Rabbinic times. Because this ceremony defines an element of
      the covenantal law, upon the performance of this wedding the par-
      ties are duly married according to the full meaning of the law. On
      the other hand, since this ceremony was not defined by covenantal
      law but rather by the judiciary, however, the court has the power
      to annul this class of matrimony.96
 Thus, Professor Stone's rebuttal, that the laws "derived solely
 through the application of the hermeneutic rules to the scriptural text
 
 consequence of the homily and its subsequent legislation, whereas laws known through tradi-
 tion necessarily antecede the homily. For an extensive discussion of this problem, see FAUR,
 supra note 40, at 46-49.
    93 See FAUR, supra note 40, at 49.
    94 See id. at 38.
    95 Stone, supra note 19, at 1703. On the specific relation between the oral tradition and
 hermeneutics, see Jos6 Faur, Texte et Socidtd: histoire du texte reveld, in 1 LA SOCIfT JUIVE A
 TRAVERS L'HISTOIRE 45, 60-66 (Shmuel Trigano ed., 1992).
    96 Jose Faur, The Fundamental Principles of Jewish Jurisprudence, 12 N.Y.U. J. INT'L L.
 & POL. 225, 230 (1979). See also FAUR, supra note 40, at 25-32.
 
 
 1993]
 
 
 1731
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 [the dinim mufla'im] ... may well have biblical (deorayta) status,"'97
 misses the point. Every din mufla by the very fact that it pertains to
 an undefined element of the covenantal law, does indeed have an as-
 pect which directly affects scriptural law. At the same time, the defi-
 nition itself, as well as the authority to legislate such cases is
 Rabbinic, and not "rooted in scriptural exegesis.""
 
                 B. "'Recovering" Authorial Intention
      In a lengthy section, Professor Stone takes issue with the above
 theory of hermeneutics. I will now focus on the notion of exegesis as
 a means of "recovering" the "authorial intention" of the Scripture.
      In Christian hermeneutical tradition the truth is conceived of as
 an ideal Platonic Form, transcending context and circumstances. In
 keeping with Greek contempt for the written word, the Form cannot
 be reduced to writing.99 The purpose of exegesis is to "dis-cover" the
 "intention" of the author and the Form beyond the text. A primary
 objective of this type of exegesis is the displacement of the text; once
 interpreted, writing is replaced by an "unwritable" logos."l� From
 this perspective, what distinguishes rabbinic from Platonic hermeneu-
 tics is not its particular technique or the predilection of one form of
 exegesis over the other, but the relationship between text and interpre-
 tation. In Platonic tradition, by discovering "the intention" of the
 author, the text is displaced; in rabbinic hermeneutics, interpretation
 never displaces the text.
      This crucial point has been overlooked in Professor Stone's ex-
 amination of this subject. The difference between Philo's use of alle-
 gorical interpretation and the use by the Church Fathers (who
 borrowed this method from Philo) reflects a single critical issue: Can
 allegory displace the original sense of the text? For Philo the answer
 is a resounding no. As Wolfson discusses, "[T]o Philo, then, we may
 assume, no allegorical interpretation of a scriptural story, whether
 justified by him on the ground of some inherent difficulty of the text
 or not so justified by him, means the rejection of the story itself
 .... 9,I01 Similarly, Philo's "allegorical treatment of all other persons
 or events in Scripture does not mean his denial of their historicity."'12
 
   97 Stone, supra note 19, at 1703.
   98 Id. On the specific relation between the oral tradition and hermeneutics, see Faur, supra
 note 95, at 60-66.
   99 See Jos6 Faur, God as a Writer, in RELIGION & INTELL. LIFE, Spring/Summer 1989, at
 31, 31-32.
   100 See Faur, supra note 35, at 1657, 1674; Faur, supra note 99, at 31-32.
   101 WOLFSON, supra note 23, at 126.
   102 Id.
 
 
 1732
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 Philo's attitude toward the literal sense of the legal portions of the
 Scripture is a bit more complex. On the one hand, he seems to uphold
 the principle that generally the laws should be understood according
 to their legal sense.'03 Moreover, "he denounces those of his own
 time who saw in the law an underlying meaning only and treated its
 literal meaning with easy-going neglect."'"  On the other hand, not
 being a jurist himself, Philo could not always determine what was the
 precise legal sense of a text. This uncertainty was the result of his
 lack of familiarity with the Jewish legal tradition. This uncertainty,
 however, did not concern the principle itself that allegorical interpre-
 tations cannot displace the judicial sense of the legal portions of the
 Torah. This is why allegorically interpreted texts still must be ful-
 filled according to their legal sense.105 After examining Philo's treat-
 ment of this subject Wolfson concluded:
     All we may gather from his discussion is that while to him all the
     laws are both to be observed literally and to be interpreted allegori-
     cally, as a philosopher he only knew how to interpret the laws alle-
     gorically and to give reasons why certain laws should be
     interpreted allegorically, but, not being a jurist, he was not always
     certain as to what the literal meaning of the law was. In some
     places, he expresses his willingness to leave all questions about the
     literal meaning of the law to those "who are in the habit of pursu-
     ing such investigations and are fond of them."' 06
     It follows that Professor Stone's assertion-that is, that since
 Philo and Augustine both shared the same predilection for allegorical
 interpretation, they must have also shared the same "hierarchy of in-
 terpretations"1071-misses the crux of the problem. Professor Stone
 similarly falls short in her discussion concerning both the dissimilari-
 ties between the different schools of Rabbinic exegesis, and the possi-
 ble similarities between the exegetical technique used by a Rabbi and
 a Church Father.'08 Whether the Rabbis used similar or dissimilar
 methodologies, or whether they occasionally shared a particular tech-
 nique with a Church Father, is beside the point. Of primary impor-
 tance is that for the Church Fathers, proper interpretation displaces
 all prior interpretations, as the Christian Scripture displaced the He-
 brew Scripture, precisely by being the text's correct interpretation.
 On the other hand, the Rabbis maintained that the text of the Scrip-
 
   103 See id. at 127.
   104 Id.
   105 Id. at 130.
   106 Id. at 131.
   107 Stone, supra note 19, at 1689.
   108 See id. at 1687-90.
 
 
 1993]
 
 
 1733
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 ture cannot be displaced by interpretation. This point was succinctly
 expressed by Rabbi Joseph ibn Megas (1077-1141), one of the greatest
 Talmudic luminaries from Spain.'09 In Geonic and Sephardic tradi-
 tions, the Talmud is the official pirush ("explication") of the Scrip-
 ture,110 and therefore the latter's most authoritative interpretation.
 Yet it cannot equal, much less displace, the Torah itself. Referring to
 this cardinal principle, ibn Megas declared, "It (the Talmud) cannot
 be the equivalent to the true Torah."''II
      Intimately connected with the above, is Paul's doctrine of "the
 spirit of the law."'12 In strict Platonic fashion the exegete "dis-cov-
 ers" the absolute Form beyond the text, now identified as "the spirit
 of the law," and proceeds thereafter to project it into the text, thereby
 displacing the text itself.1'3 The Maimonidean theory of hermeneutics
 denies such a possibility. Professor Stone objects to this theory be-
 cause it would allow "the rabbis to disregard authorial intention."'"14
 In her view the real object of exegesis is "to recover the intention of
 the divine author,"115 and the "search for authorial intention."116 For
 Maimonides and the Geonim, the absolute sense of the Scripture was
 captured by Moses and the children of Israel at Sinai and during the
 forty years in the desert. It is the Oral Law-what Spanish speaking
 Sephardim define as la ley mental, the "mental law" of the Jewish
 people. This "mental law" resulted from the processing of the words
 of God-the first person-by the cultural-linguistic apparatus of the
 people at Sinai-the second person.'17 This absolute sense of the To-
 rah was guarded and transmitted throughout the generations by the
 judicial institutions of Israel, and was eventually deposited in the Tal-
 mud. The notion of "recovering" the "intention" of God is doubly
 preposterous. First, the intention was never lost, so that one would
 need to "recover" it. Second, unlike the Greeks who were incapable
 of putting their thought into writing,118 the God of Israel is the
 supreme master of literature. Whatever He "intended" to transmit,
 He articulated it clearly and unambiguously in the Torah. Those ele-
 ments in Scripture that are ambiguous to us-what Maimonides des-
 ignated dinim mufla'im-were not part of the terms of the
 
   109 FAUR, supra note 1, at xvii.
   110 See id. at 111.
   111 Id. at xvii.
   112 See Faur, supra note 35, at 1674.
   113 See id.
   114 Stone, supra note 19, at 1698.
   115 Id. at 1696.
   116 Id. at 1698. Cf id. (discussing the "divine author," and "divine authorial intent").
   117 See generally Faur, supra note 95, at 82-101.
   118 See Faur, supra note 99, at 31-32.
 
 
 1734
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 covenant."'9 This is why they were the object of debate and contro-
 versy among the Rabbis. Following in the footsteps of the Geonim,
 Maimonides maintained that no controversy ever took place concern-
 ing the elements of the Sinaitic covenant transmitted by tradition.120
 Indeed, the fact that the Rabbis applied exegesis to dinim mufla'im,
 and disputed how they should be best defined, is categoric proof that
 these elements were never part of the Sinaitic covenant."2'
      The urge to "recover" the "intention" of the divine author is
 Christian. It reflects Christian bias against Rabbinic tradition; since
 Christianity denies the authenticity of Rabbinic tradition, there is a
 need to "recover" what was lost by the Jews. "Intention" is a code
 term serving to designate whatever Form the exegete will project into
 the text to displace the text itself. It serves the Pauline doctrine of the
 "spirit of the law." It also serves its modern Jewish version of Daas
 Torah,'22 whereby some rabbis have exclusive access to the imponder-
 able will of God, and could dictate the "intention of the divine
 author."'23
      The presumption that "God's will" can only be known through
 exegesis implies the hierarchical subordination of tradition to herme-
 neutics. Since Judaism regarded the uninterrupted chain of transmis-
 sion stemming from Sinai as its highest institution, this is another way
 for the watchmakers to make sure that the clock would not work.
 Once that tradition is relegated to a subordinate position, there would
 be a relentless search for an "authorial intention"-forever elusive.
      As this author had indicated in the earlier study, according to
 the Maimonidean system,
         Rabbinic institutions have three bases of authority: (1) the
     transmission of authentic traditions stemming from Sinai; (2) the
     promulgation of new statutes and legislation designed to serve as
     "a fence around the law"; and (3) the right to interpret
     Scripture. 124
 Within this scheme of values, hermeneutics must be hierarchically
 subordinated to tradition.
      Professor Stone's view-that is, to maintain, as Maimonides and
 the Geonim did, that our source of knowledge of the Torah and its
 precise sense is the effect of an uninterrupted chain of tradition, under
 
 119 See FAUR, supra note 40, at 25-32; Faur, supra note 35, at 1672-73.
 120 See Faur, supra note 35, at 1662.
 121 Cf. MAIMONIDES, MISHNEH TORAH, SEFER SHOFETIM, HILKHOT MAMRIM 1:3; MAI-
 MONIDES, MISHNEH TORAH, SEFER SHOFETIM, HILKHOT MELAKHIM 12:2.
   122 See supra notes 49-51 and accompanying text.
   123 See supra part III.
   124 Faur, supra note 35, at 1672.
 
 
 19931
 
 
 1735
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 the supervision of the supreme judicial authorities of Israel,125 results
 into a system "liberated" from "God's will, and on the other hand
 from a historical past that includes legal and exegetical traditions,
 ideas, cultural practice and social life"'126-reflects alienation from
 Jewish traditional thinking. The very notion that tradition must be
 subordinated to exegesis is Christian, since its initial claim for author-
 ity rested on exegesis, rather than tradition. The necessity to
 "search" arises at the very moment that one blocks tradition and sub-
 ordinates it to hermeneutics. Thus, the need to "search" for "autho-
 rial intention" could make sense to a Christian theologian or to a
 pagan philosopher, but not to the sages of Israel who regarded the
 uninterrupted chain of Rabbinic transmission as the most authorita-
 tive source of Jewish knowledge.
 
              VI. HASAGOT:127 AN UPDATED VERSION
      I will now address three issues raised by Professor Stone in con-
 nection with the Maimonidean theory of hermeneutics.
      This author had proposed the thesis that the Rabbinic definition
 of lex talionis is a case of din mufla, where the Rabbis interpreted the
 term tahat to mean "monetary compensation."''28 This was not the
 view held by Maimonides in the Introduction to his Commentary to
 the Mishnah. In compliance with the official position maintained by
 the Rabbanites in their polemics against the Karaites, he wrote that
 the Rabbinic interpretation of lex talionis was Sinaitic.'29 This is one
 of the many instances in which Maimonides accepted a Geonic view
 in his youth during the composition of his commentary to the Mish-
 nah, that he rejected later on.130 A close reading of this law in his
 Mishneh Torah shows a deliberate ambivalence on the part of Mai-
 monides. In paragraph five of .Hovel Umaziq, Maimonides demon-
 strates, through judicial analysis of the term tahat, that lex talionis
 means monetary compensation.'3' Strangely, in the following para-
 graph he writes that "they appear (nir'in) to be from a theme
 (me'inyyan) of the Scripture and having been explained by Moses
 from Sinai." 132 At first blush, this would render the explanation given
 
   125 See MAIMONIDES, MISHNEH TORAH, SEFER SHOFETIM, HILKHOT MAMRIM 1:1-2.
   126 Stone, supra note 19, at 1701.
   127 On the precise meaning of this term see supra note 7.
   128 See Faur, supra note 35, at 1672.
   129 See 1 MAIMONIDES, PIRUSH HA-MISHNAYOT 16 (Joseph Qafih ed., 1963).
   130 See MAIMONIDES, HILKHOT YERUSHALMI LE-HARAMBAM 6-15 (Saul Lieberman ed.,
 1947) (some illuminating comments made by Saul Lieberman).
   131 MAIMONIDES, MISHNEH TORAH, SEFER NEZIKIN, HILKHOT HOVEL UMAZIQ 1:5.
   132 Id. at 1:6.
 
 
 1736
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 in paragraph five superfluous. More disturbing is the term nir'in
 ("appear"), which occasionally implies a false first impression. Mai-
 monides should have written "they are"-rather than "they appear to
 be"-"from Sinai." He then concluded the paragraph by stating that
 this was "the practice of the court" (halakhah le-ma'ase).133 As some
 commentators noted, this type of evidence is unwarranted in case of a
 Sinaitic tradition.134 Maimonides was more open on the subject in the
 Guide of the Perplexed, where he clearly stipulated that the sense of
 lex talionis in the Scripture is bodily mutilation. Hebrew translators
 both medieval and modem had problems with some terms and expres-
 sions, and lost the sense of the passage. The following is a direct
 translation from the original Arabic:
     Whoever deprived someone from a limb he should be analogously
     deprived .... Do not badger your thoughts, that actually we ap-
     ply a monetary penalty [rather then mutilation], since here our ob-
     jective is the explanation of the Scripture, not the explanation of
     jurisprudence (fiqh). However, concerning this jurisprudence
     (fiqh) I have an explanation that I would only transmit orally.135
 By insinuating that his refusal to make his explanation public was
 concern for reprisals, Maimonides clearly indicated the nature of his
 explanation. Solomon Munk's remarks on this subject are particu-
 larly illuminating:
     Possibly, he wanted to say that out of compassion, the Rabbis had
     softened the ancient law of talion and had passed their interpreta-
     tion as if it were from Moses himself.136
 I believe that my explanation concerning the function of dinim
 mufla'im sheds light on the juridical basis allowing the Rabbis for
 such a change.
      The second issue concerns the Rabbinic principle tefillot keneged
 temidim tiqqenum ("prayers were instituted as parallels to the daily
 sacrifices").137 In a long winded section, cheerfully bouncing from
 discussions of the history of the Synagogue, to the salutary effect of
 "acts of loving kindness," and from asides about the "wide variety of
 pietistic acts," to riffs on "customs once performed at the Temple,"
 Professor Stone presents a series of objections that will be answered in
 
   133 Id. This is the version of the Constantinople and other early editions, as opposed to the
 more popular version stating: "halakhah le-Moshe."
   134 See 4 MAS'UD HAl RAQQAH, MA'ASE ROQEAH 111 n.3 (1964).
   135 3 MAIMONIDES, DALALAT AL-HA'IRIN 409 (Issachar Joel & Solomon Munk eds.,
 1931).
   136 3 SOLOMON MUNK, LE GUIDE DES EGARES 314 n.1 (1960).
   137 Faur, supra note 35, at 1673-74.
 
 
 1993]
 
 
 1737
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 the following two paragraphs.138
      As Scripture and Rabbinic literature attest, prayers and houses of
 prayers were in existence from early times. What was revolutionary
 about the institution of prayers after the destruction of the Temple,
 was not the act of praying, but the fact that a particular form of
 prayer, the tefillah, was instituted in place of the daily sacrifices. The
 daily sacrifices were the collective responsibility of the nation of Israel.
 The same type of responsibility pertained to the sacrifices offered at
 the holidays (musafim). As it were, without the possibility of offering
 such sacrifices, the people of Israel had no means to express their na-
 tional identity. The function of the tefillah prayers was not merely to
 provide some salutary atonement, comparable to charity or the study
 of Torah. Rather, they were established (tiqqenum) to function in
 place of the temidim and musafim. This type of prayer revolutionized
 the Synagogue (rather than the other way around) and the liturgy,
 transforming the people of Israel from a Temple-oriented to a prayer-
 oriented people. Since the pre-Temple Synagogue and liturgy never
 offered services in place of the daily sacrifices, their history is not ger-
 mane to this subject.
     Although Maimonides maintained that the duty to pray is scrip-
 tural, nonetheless, as in all cases of dinim mufla'im, it became effec-
 tively conditioned by the new stipulations. For Maimonides, the
 source for the scriptural duty to pray is not the verse in Deuteronomy
 11:13 ("To serve Him with all your hearts"), but the verse "and you
 shall serve the Lord your God" (Exodus 23:25). 13 Maimonides ap-
 plied the verse in Deuteronomy 11:13 not as a proof-text for the duty
 to pray, but for the definition that such a prayer is in fact tefillah.
 Similarly, in Sefer Ha-Mizvot, positive commandment 5, where Mai-
 monides lists the Scriptural source for prayers, he did not cite the
 verses in Deuteronomy 11:13.140 Thus, he distinguishes between the
 duty for prayer and the definition of prayer, which Maimonides ex-
 plictly classifies as proceeding from the Rabbis. Maimonides cites the
 verse in Exodus 23:25 and Deuteronomy 11:13 in the opening para-
 graph of his section on the laws of tefillah, clearly distinguishing be-
 tween their respective functions. 141 Professor Stone misreads this
 paragraph, not realizing that the first part concerns the proof-text for
 the Scriptural obligation, while the second part concerns the defini-
 tion of such an obligation. A contributing factor to Professor Stone's
 
 138 See Stone, supra note 19, at 1707-09.
 139 MAIMONIDES, MISHNEH TORAH, SEFER AHAVAH, HILKHOT TEFILLAH 1:1.
 140 MAIMONIDES, SEFER HAMIZVOT 60-61.
 141 MAIMONIDES, MISHNEH TORAH, SEFER AHAVAH, HILKHOT TEFILLAH 1:1.
 
 
 1738
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 reading is her assumption that the expression mi-pi ha-shemu'a inva-
 riably means "from Sinai."'142 Actually, this expression only means
 "by tradition," which may or may not be Sinaitic. As the attentive
 reader will soon discover, in the paragraph in question, it certainly
 does not mean "from Sinai."
      It is a positive commandment to pray every day, as it is written
      "And you shall serve the Lord your God" [Exodus 23:25]. From
      tradition (mipi-ha-shemu'ah) it was taught that this service means
      prayer (tefillah), as it is written, "And to serve Him with all your
      hearts" [Deuteronomy 11:13]. The sages said: Which is the service
      of the heart? That is prayer (tefillah).143
 Obviously, the expression "the sages said" (amru .hakhamim) is a
 clear reference to a Rabbinic institution, expounding a din mufla in
 Deuteronomy 11:13. This is a reference to the Rabbinic principle that
 the prayers were instituted in place of the daily sacrifices.1" Accord-
 ingly,' Maimonides' entire section on the laws of tefillah is dominated
 by the principle that prayers function in place of the daily
 sacrifices. 145
      The third issue concerns my thesis about subversive exegesis.
 Although I had explicitly cited as a proof-text only the Rabbinic doc-
 trine on derashot shel dofi ("expositions of faltering interpretations"),
 and in the corresponding footnote, I justified my exclusion of another
 more popular source, that of megallepanim batorah shelo kahalakhah
 ("unveiling in the Torah directions contrary to the law"), because
 there is another version,116 Professor Stone writes:
     Professor Faur attempts to locate a rabbinic ... thesis in the Baby-
     lonian Talmud's denial of a share in the world to come to those
     who offer "faltering interpretations" and to those who "disclose a
     face to the Torah not in accordance with the law." According to
     Professor Faur, these statements explicitly condemn "subversive"
     legal interpretations "designed to void a particular law."'147
 In the corresponding footnote, Professor Stone refers to my footnote
 98. Careful writers cannot prevent sloppy readers. As mentioned
 before, in that note, I indicated why I refrained from mentioning the
 case of megalle panim.
 
   142 See Stone, supra note 19, at 1709; cf. id. at 1705.
   143 MAIMONIDES, MISHNEH TORAH, SEFER AHAVAH, HILKHOT TEFILLAH 1:1 (emphasis
 added).
   144 See Faur, supra note 35, at 1673.
   14s For a detailed analysis of this subject, see Jos6 Faur, Tefillot Keneged Temidim Leda'at
 Harambam, 2 ASUFOT 157 (1988).
   146 See Faur, supra note 35, at 1677 & n.98.
   147 Stone, supra note 19, at 1710-11 (footnotes omitted).
 
 
 19931
 
 
 1739
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
      Professor Stone is wrong when she says that the Talmud
 "equates" someone who engages in "faltering interpretations" with
 one who "discloses a face to the Torah."'48 Rather than "equating,"
 the Talmud contrasts them in order to find out the difference. Profes-
 sor Stone is right when she says that all these are linked to someone
 acting with a "high hand" and mocking God's words.'49 This, how-
 ever, is not because all the terms associated with this verse are sub-
 stantially the same, but, rather, because they express the same attitude
 of contempt for Jewish accepted norms and tradition.'5�
      Professor Stone's reliance on secondary sources preclude the pos-
 sibility of a critical analysis of the primary sources. The whole meth-
 odology of dismissing an opinion by referring to another individual
 who expressed a different view on the matter, presupposes the type of
 hierarchical authority that makes very little sense to those who are
 interested in the subject itself, rather than in what people happen to
 have said about it. This should be particularly true in this case, where
 we are dealing not with all rabbinic schools, but with a single juridical
 tradition-that of Maimonides. Within this context, how relevant
 could be the references to a score of opinions expressed by other writ-
 ers on a variety of eclectic issues? Moreover, as I wrote then, the
 Maimonidean view has not yet been exposed, precisely because
 "[c]ontemporary notions of rabbinic jurisprudence have been affected
 by the general trend of hellenizing Jewish literature and ideas.""'
 Therefore, to cite other views on the matter is to beg the question,
 rather than confront the issue. This is also evident in Professor
 Stone's references to, and quotations of, my work. Sometimes they
 are correct, but other times they are slanted and prejudicial. Contrary
 to what Professor Stone claims, I never wrote that the laws of the
 Torah "are effectively annulled through interpretation .. ,,"    Nor
 did I insinuate that somehow the "[i]interpretation may de-author the
 text,"''5 or that the Rabbinic interpretation of the prayers
 "culminated" in the creation of the church and mosque,'54 and so
 
   148 Id.
   149 Id.
   150 Since by definition a faltering exegesis denies either a term of the Scripture or Oral law,
 and since for Maimonides one who denies any of these terms falls into the category of one who
 denies the Torah, see MAIMONIDES, MISHNEH TORAH, SEFER HAMADAH, HILKHOT
 TESHUVAH 3:8; FAUR, supra note 40, at 23, there is no need to separately codify one proposing
 a faltering exegesis. From the point of view of law, a faltering exegesis is just an instance of
 one denying the Torah.
   151 Faur, supra note 35, at 1657.
   152 Stone, supra note 19, at 1710.
   153 Id. at 1709.
   154 Id. at 1707.
 
 
 1740
 
 
 [Vol. 14:1713
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 forth.
      There may be some excuse for being a careless reader, but none
 to impute careless ideas to a careful writer. Finally, there is some-
 thing defensive in Professor Stone's frequent stipulation of her
 sentences, and making them sufficiently vague, as if afraid of being
 caught making errors. What are supposed to be assertions are slyly
 conditioned by words such as "possibly," "often," "appear," "virtu-
 ally,'" "seem," "suggest." Similarly, negations are "much less in-
 clined," "virtually no," "a far cry from," "questionable." This is
 more appropriate for a freshman student, taking precautions in case
 he or she would be challenged by an attentive teacher, than for a seri-
 ous scholar. Are we having here an updated version of hasagot, more
 interested in disproving the other, then in probing into the subject?
 Professor Stone tries to present her work as if it were the result of an
 open-minded inquiry, when in fact it is a Work full of cultural and
 intellectual prejudices. In the end they reveal her as a prisoner of her
 own narrow-minded mental tastes and values.
 
                    VII. CONCLUDING REMARKS
      In my previous study, Law and Hermeneutics in Rabbinic Juris-
 prudence: a Maimonidean Perspective,'55 I explored two of the three
 institutions making up Rabbinic tradition since ancient times, till the
 close of the Talmudic period (499 C.E.). The first of these institutions
 is the authority to transmit the Torah, symbolized by the tablets of
 stone, immutable and eternal, containing the Sinaitic commandments
 and their interpretation. They are the Law, functioning as the consti-
 tution of the Jewish people-a freely contracted covenant between
 God and Israel. The other institution that I explored is the Rabbinic
 authority to apply exegesis to the Law, and the theory of hermeneu-
 tics.t56 The pivotal element in the Maimonidean theory of jurispru-
 dence is the relation between the Law, representing permanence and
 steadiness, and a type of hermeneutics where the reader functions as a
 writer-a writer who is limited by the fact that the words are in-
 scribed on stone, whereas his interpretations are like the fleeting
 sparks, resulting from the strike of the hammer. These sparks are a
 consequence of the tension between the permanent and the momen-
 tary. The strike of the hammer could result in sparks only because
 the stone does not break; because in perfect physical counterbalance,
 
   155 Faur, supra note 35.
   156 I refrained from exploring the second institution, involving the authority of the Rabbis
 to enact legislation, because it is only tangentially connected to the theory of hermeneutics and
 jurisprudence. For a detailed analysis of this institution, see FAUR, supra note 40, at 19-24.
 
 
 1993]
 
 
 1741
 
 
 
 
 
 CARDOZO LAW REVIEW
 
 
 it responds to the pounding of the hammer by pounding back to it. In
 a sense, the sparks are as much a result of the pounding of the ham-
 mer on the stone as of the pounding of the stone on the hammer.
 Without the inviolability of the stone, in both its written and oral
 form, the hammer would be pounding onto a vacuum, remaining for-
 ever sterile and soundless.157
      Is this structure meaningful for our time? Can these concepts of
 Law and hermeneutics help us come to grips with the socio-economic
 problems of a post-modern world? One of the most successful think-
 ers of our days sees the future of humankind precisely in terms of
 such concepts. When considering the chances of human survival in
 the next millennium, Jacques Attali, one of the most brilliant and ef-
 fective intellectual leaders in the emerging European Community, em-
 phasizes the importance of the two principal elements of our theory of
 hermeneutics, that of a "sacred covenant," representing the steadiness
 and immutability of the Law, and the need not to break the stone
 under the pounding of the momentary.
     Above all, a new sacred covenant must be struck between man and
     nature so that the earth endures, so that the ephemeral gives way
     to the eternal, so that diversity resists homogeneity.'18
 The model of a "sacred covenant" is that of the covenant contracted
 at Sinai between God and Israel. Only such a covenant will not break
 under the pounding of the momentary. A primary function of the
 sacred is to delineate the boundaries of evil, and not to allow the kind
 of subversive manipulation of the system by forces representing a mo-
 mentary interest. Those who fail to recognize the agonizing evil be-
 falling humanity under the pounding of the momentary self-interest,
 will never contract a sacred covenant. As noted by Attali, "[t]he
 problems that will plague millennial man require that we restore the
 idea of evil, the idea of the sacred, to the center of political life."'59
 Unlike monolinguistic cultures, the Hebraic sense of the "sacred" is
 "covenantal," and therefore, essentially pluralistic."6 The new civili-
 zation, in the words of Attali, "must embrace a pluralistic and toler-
 ant political culture that is imbued with a profound sense of the
 sacred."'161 The law that emerges from such a covenant allows an
 individual to be a "nomad," that is, she/he could interact with the
 
   157 On the elements of this metaphor, see Faur, supra note 35, at 1658.
   158 JACQUES ATTALI, MILLENNIUM: WINNERS AND LOSERS IN THE COMING WORLD OR-
 DER 129 (Leila Conners & Nathan Gardelis trans., 1991) (emphasis added).
   159 Id. at 124.
   160 See FAUR, supra note 1, at 119-20.
   161 ATTALI, supra note 158, at 118.
 
 
 [Vol. 14:1713
 
 
 1742
 
 
 
 
 
 MONOLINGUALISM AND JUDAISM
 
 
 "other," and share her/his pastures. Reflecting on the semantic
 evolution of this term, Attali commented as follows:
     The word nomad comes from an ancient Greek word that sought
     to express the notion "to divide," or "to split up into shares."
     Over time other meanings were attached to the word, one signify-
     ing "law" and another signifying "order." What does this linguis-
     tic evolution suggest?
          That the nomad could survive only if he knew how to share
     his pastures with fellow men.
          That without law there is no nomad. That the first nomadic
     object was law itself, which permitted man to organize the violence
     that threatened his existence and to live in peace.'62
     A fundamental aspect of Judaism is that the message that God
 gave Moses is not a set of philosophical platitudes or theological doc-
 trines, but Law itself. It is the Law that protects the sacred, not the
 other way around. This paradigm must illuminate the man of the
 future. In one of his most poignant passages, Attali states the
 following:
     That the Word received by Moses in the desert, in the form of
     stone tablets carried into the Tabernacle, still remains the most
     precious nomadic object in history because it is the Law that pro-
     tects life and safeguards the sacred. 163
     To effectively participate in such a Law and such a covenant, we
 must learn how to read as the Hebrews do, precisely, by functioning
 like writers, generating new meanings from the stone tablets and at
 the same time, respecting every letter of the text. This also means
 that we cannot impose our readings on others and claim that our in-
 terpretation has totally exhausted the text, and thus effectively dis-
 placed it. Unless we resist the temptation to dictate, instead of
 passing our interpretation on to the next generation, we will be hand-
 ing them some broken stones and hammers pounding in a vacuum.
 Attali closes his book with the following remark:
         The earth is like a library, to be left intact after enriching our-
     selves by reading it and after having been enriched by new authors.
     Life is the most precious book. We must handle it with love, care-
     ful not to tear any of its pages, in order that we may pass it on-
     with new commentaries-to others who will know how to decipher
     the language of their forebears in the hope of honoring the world
     they will leave to their sons and daughters."64
 
  162 Id. at 130.
  163 Id.
  164 Id.
 
 
 1993]
 
 
 1743
 
 
 
 
 
 1744               CARDOZO LAWREVIEW               [Vol. 14:1713
 
     It seems that the idea of a covenant, resulting in a Law inscribed
 on tablets, from which new commentaries could emerge and be passed
 on to a new generation, make sense not only to those who think in
 terms of Jewish traditional structures, but also to those who are at the
 threshold of the new and the original. Upon a second thought, this is
 a tautology. As my father Abraham Faur, of blessed memory, used to
 say, "To be Jewish is to be modem and vice versa."
 
 
 
 
 
 
 
 ' � .i  ; 
 
 
 K,  ..
 
 
 From HORTON HATCHES THE EGG by Dr. Seuss. Copyright � 1940 by Dr. Seuss.
 Copyright renewed 1968 by Audrey S. Geisel and Carl Zobell, trustees under the Trust
 Agreement dated August 27, 1984. Reprinted by permission of Random House, Inc.
 
 
 4� v
 
 
 17�
 
 Y-9
 
 
</pre>