- The term is from Hans Blumenberg, The Legitimacy of the Modern Age, Robert M. Wallace, trans. (Cambridge: Massachusetts Institute of Technology Press, 1983), p. 64. Blumenberg argues that, in the passage of historical time, we can observe a process of “functional reoccupation,” in which entirely different contents take on identical functions in “the system of man's interpretation of the world and himself.” On the nation-state as a cultural system, see Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism (London, New York: Verso Press, 1991), p. 12.
- See, e.g., David Luban, “Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus, and Plato,” 54 Tennessee Law Review 279, 298 (1987); Paul Gewirtz, “Aeschylus' Law,” 101 Harvard Law Review 1043 (1988)(both analyzing the image of law in the Oresteia as a gendered phenomenon).
- For other scholarly treatments of this midrash, see Alan Mintz, Hurban: Responses to Catastrophe in Hebrew Literature (New York: Columbia University Press, 1984), pp. 57–62; David Stem, “Imitatio Hominis: Anthropomorphism and the Character(s) of God in Rabbinic Literature,” 12 Prooftexts 151, 160–68 (1992); David Kraemer, Responses to Suffering in Classical Rabbinic Literature (New York: Oxford University Press, 1995), pp. 143–46; Moshe Halbertal and Avishai Margalit, Idolatry (Cambridge: Harvard University Press, 1992), pp. 33–35.
- Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction,” 14 Capital University Law Review 179 (1985).
- See the discussion of de Beauvoir's The Second Sex in Judith Buder, Gender Trouble: Feminism and the Subversion of Identity (London: Rudedge Press, 1990), p. 12.
- For trenchant critiques of the traditional dichotomy in legal thinking between justice and reason, on the one hand, and passion and emotion, on the other, see Martha Minow and Elizabeth Spelman, “Passion for Justice,” 10 Cardozo Law Review 37, 39 (1988); Benjamin Zipursky, “DeShaney and the Jurisprudence of Compassion,” 65 New York University Law Review 1101, 1129–1137 (1990).
- On midrash as mixed discourse, see David Stern and Mark Mirsky, eds., Rabbinic Fantasies: Imaginative Fantasies from Classical Hebrew Literature (Philadelphia: The Jewish Publication Society, 1990), p. 5.
- Geoffrey H. Hartman, “Jewish Tradition as/and the Other,” I Jewish Studies Quarterly 89, 90 (1993/94).
- See, e.g., Mary Daly, Beyond God the Father (Boston: Beacon, 1973); Rosemary Ruether, Sexism and God-Talk: Toward a Feminist Theology (Boston: Beacon, 1983).
- See Jean Elshtain, “Sovereign State, Sovereign God, Sovereign Self,” 66 Notre Dame Law Review 1555 (1991); Judith Resnik, “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges,” 61 Southern California Law Review 1877, 1927 (summarizing the views of others). See also Bernard S. Jackson, “Jewish Law or Jewish Laws,” 8 Jewish Legal Annual 15, 21 (1989) (discussing the “myth of the unity of the legal system” as a reflection of the monotheistic idea).
- For a listing and critical review of recent feminist writings that perpetuate a dualistic approach to gender traits, see Jeanne L. Schroeder, “Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence,” 75 Iowa Law Review 1135, 1136–1151, 1187–1214 (1990).
- See Elshtain, supra note 10; on polytheism and pluralism, see Halbertal and Margalit, supra note 3 at 8, 247.
- Id., at 1371.
- For an excellent summary and partial critique of these theories, see Resnik, supra note 10.
- Id., at 1927. Resnick rightly finds these arguments incomplete.
- See Hartman, supra note 8 at 89–92 (discussing Hegel's treatment of Judaism); Halbertal and Margalit, supra note 3 at 8, 247–250 (discussing modern valuations of paganism as superior to monotheism because the former connotes the idea of pluralism).
- David Hume, The Natural History of Religion (Stanford: Stanford University Press, 1957), pp. 48–51.
- Hartman, supra note 8 at 96; on the “inversion” of the traditional valuation of monotheism and polytheism, see Halbertal and Margalit, supra note 3 at 247.
- See Elaine Pagels, The Gnostic Gospels (New York: Random House, 1981), pp. 33–56.
- See, e.g., Lawrence Blum, “Compassion,” Explaining Emotions, A. Rorty, ed. (Berkeley: University of California Press, 1980), p. 509.
- See Susannah Heschel, “Configurations of Patriarchy, Judaism and Nazism in German Feminist Thought,” Gender and Judaism: The Transformation of Tradition, T. M. Rudavsky, ed. (New York: New York University Press, 1995), pp. 135–54.
- John T. Noonan, Jr., “Heritage of Tension,” 22 Arizona State Law Journals, 40 (1989).
- Id.
- See Suzanne Last Stone, “In Pursuit of the Countertext: The Turn to the Jewish Legal Model in Contemporary Legal Thought,” 106 Harvard Law Review 813, 887–90 (1993).
- On the association of divine names with the divine attributes, see N. Dahl and A. Segal, “Philo and the Rabbis on the Names of God,” 9 Journal for the Study of Judaism 1 (1978).
- See Ephraim E. Urbach, The Sages: Their Concepts and Belief, Israel Abrahams, trans., vol.1 (Jerusalem: Magnes, 1975), pp. 420–448. Urbach suggests that the literary representation of justice engaged in a struggle with God himself is a later development and reflects a conception of mercy as “extruded” from the sphere of justice. This breaks sharply with the earlier tannaite literary representation of the struggle of the two attributes within God, which, in turn, reflects a view of justice and mercy as comprising a complex form of justice encompassing both qualities. According to this conception, as the rabbis state, God is merciful when he exercises justice and not just when he exercises mercy.
- Scholarship is only now beginning to address the history of rabbinic ideas of justice in such systematic fashion. See, e.g., David Kraemer, supra note 3.
- For a terse review of the methodological debate, see Daniel Boyarin, Intertextuality and the Reading of Midrash (Bloomington: Indiana University Press, 1990), pp. 13–14.
- See Lamentations Rabbah, S. Buber, ed. (Vilna, 1899), pp. 25–28.
- For an English translation, see David Stern and Mark Mirsky, supra note 7 at 47–57.
- See Shaye J.D. Cohen, “The Destruction: From Scripture to Midrash,” 2 Prooftexts 18 (1982)(describing the theology of Lamentations Rabbah).
- Sifre on Deuteronomy, Piska 49.
- The fullest scholarly treatment of this subject remains that of A. Marmorstein, “The Old Rabbinic Doctrine of God,” II., Essays in Anthropomorphism (1920; reprint, New York: Ktav Publishing, 1968). Marmorstein posits two distinct rabbinic schools, that of Rabbi Akiva who interpreted biblical anthropomorphisms literally, and that of Rabbi Ishmael, who followed an “allegorical” or “rationalistic” approach. He argues that the former gained ascendancy in the amoraic period. It is unclear, however, whether the debate between the two schools concerned the issue of anthropomorphism as opposed to exegetical technique.
- For a daring argument that the Bible and the early midrashic rabbis conceived of God as a male with a veiled phallus, see Howard Eilberg-Schwartz, God's Phallus (Boston: Beacon Press, 1994). See also Elliot R. Wolfson, Through a Speculum that Shines: Vision and Imagination in Medieval Jewish Mysticism (Princeton: Princeton University Press, 1995) (tracing visions of the body of God in the high middle ages to the earlier midrashic traditions of divine corporeal seeings); Jacob Neusner, The Incarnation of God: The Character of Divinity in Formative Judaism (Philadelphia: Fortress Press, 1990).
- Halbertal and Margalit, supra note 3 at 72.
- For an elegant exposition of the literary “character(s)” of God in midrash, see Stern, “Imitatio Hominis,” supra note 3.
- For excellent summaries of the treatment of anthropomorphism both within rabbinic and scholarly circles, see Marc Saperstein, Decoding the Rabbis: A Thirteenth Century Commentary on the Aggadah (Cambridge: Harvard University Press, 1980), pp.1–20; Stern, “Imatatio Hominis,” supra note 3.
- David Stern and Mark Mirsky, Rabbinic Fantasies, supra note 7 at 7.
- For a provocative account of the significance of wordplays in midrash, see Howard Eilenberg-Schwartz, “Who's Kidding Whom?: A Serious Reading of Rabbinic Word Plays,” LV/4 Journal of the American Academy of Religion 765 (1988).
- David Stern, Parables in Midrash: Narrative and Exegesis in Rabbinic Literature (Cambridge: Harvard University Press, 1991), p. 159.
- The entire narrative, with its uplifting coda, is included only in Sephardic manuscripts of the midrash. Therefore, it is difficult to tell whether the last part of the narrative is a later accretion or an integral part of the midrash. I shall treat the narrative as a unity. Indeed, as will become clearer below, (see notes and accompanying text) I believe that the text as a whole must be read in tandem with the chapter from Jeremiah to which the conclusion of the midrash refers.
- See discussion and citations in Suzanne Last Stone, “The Transformation of Prophecy,” 4 Cardozo Studies in Law and Literature 167, 168 (1992).
- The shorter version of the midrash ends here. see Buber's edition of Lamentations Rabbah, p. 28, n.23.
- Resnik, supra note 10 at 87.
- See Kraemer, supra note 3 at 146; Stern, “Imitatio Hominis,” supra note 3. Stern's analysis stimulated several of my thoughts about this narrative. Nonetheless, I read this narrative quite differently from Stern, who rejects the idea that the narrative is a discourse about the abstract attributes of justice and mercy. Stern offers, instead, a psychological interpretation, arguing that this narrative is a reflection of the “deepest feelings Jews felt in the aftermath of the Destruction—extreme guilt, on the one hand (as though the catastrophe had been entirely deserved on account of their great sins), and extreme self-pity, on the other (as though the catastrophe had been wholly undeserved, since it far exceeded any transgression they could have committed to warrant such punishment).” Stern, at 166. In Stern's view, these feelings of self-pity lead to the characterization of God as a “heartless despot” who is forced by Rachel “to recognize His ‘justice’ for what it really is—vanity and petty jealousy.” Stern, at 168.
- See Yohanan Muffs, “Who Will Stand in the Breach?: A Study of Prophetic Intercession” Love and Joy: Law, Language, and Religion in Ancient Israel (Cambridge: Harvard University Press, 1992), pp. 16–24.
- Id., at 17.
- Gordon M. Freeman, The Heavenly Kingdom: Aspects of Political Thought in the Talmttd and Midrash (New York: University Press of America, 1986), p. 28. See also A. Marmorstein, The Doctrine of Merits in Old Rabbinical Literature (New York: Ktav, 1968), pp. 14–29.
- Mishnah Sotah 5:5. Cf, Talmud bavli, Yevamot 64a; Talmud Bavli, Sukkah 14a; Genesis Rabbah 44:5; Song of Songs Rabbah 1:14.
- Rabbinic thought veers between a corporate conception of divine justice and an individualist conception. The corporate conception tends to bypass the problem of theodicy by conceding that individuals may suffer unjustly. On the corporate level, the scales are balanced, however. David Kraemer has argued that the corporate conception is ancient. The rabbinic innovation consists in placing the individual at the center of the discussion of divine justice. see Kraemer, supra note 3 at 160. Nonetheless, as he also notes, the Babylonian Talmud sometimes reverts to the corporate model in offering solutions to the problem of justice. See id
- See Freeman, supra note 46 at 29.
- For a succinct summary of the tensions, see Solomon Schechter, Aspects of Rabbinic Theology (New York: Schocken Books, 1961), pp. 170–98.
- See Urbach, supra note 26 at 497.
- On the relationship between Christianity and the rabbinic doctrine of merits, and in particular, the merit ensuing from the sacrifice of Isaac, see Shalom Spiegel, The Last Trial: On the Legends and Lore of the Command to Abraham to Offer Isaac as a Sacrifice (Vermont: Jewish Lights Publishing, 1993), pp. 77–120.
- For a fuller account, see Marmorstein, supra note 32.
- See id.
- Daniel Boyarin pointed the way to this interpretation by showing how this metaphor operates in another midrash centering on the name Rachel. see Daniel Boyarin, Carnal Israel: Reading Sex in Talmudic Culture (Berkeley: University of California Press, 1993), pp. 151–55. I discuss Boyarin's interpretation of the latter midrash in the text accompanying notes infra.
- Talmud bavli, Ketubot 63. see Boyarin, Carnal Israel supra note 55 at 154.
- See Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Clarendon Press, 1985), p. 337.
- See Boyarin, Intertextuality, supra note 28 at 26.
- Genesis Rabbah 71:3 (Theodor Albeck, ed.), p. 824. But note Albeck's critical variants, which attribute this interpretation to Rabbi Shimon ben Yochai.
- See Genesis Rabbah 82:10 (Theodor Albeck, ed.), p. 988 and variants listed in the critical apparatus.
- See the discussion in Urbach, supra note 26.
- Halbertal and Margalit, supra note 3 at 10.
- Id., at 30.
- Id..
- Id., at 33.
- Id., at 34.
- Halbertal and Margalit, supra note 3 at 257, n. 19.
- See the discussion infra.
- Stern, supra note 3 at 163.
- Stern's objection to viewing Rachel as the prototype of a feminized divine attribute of mercy stems largely from methodological concerns. He is inclined to discount the idea that the rabbis had any pre-existent and stable conceptions of God's nature that functioned as typologies in their interpretations. Instead, he argues that God, as a character in midrash, is conceived along nominalist rather than essentialist lines. He is a “name, a moniker for a locus of functions,” and his depiction is determined by “ad hoc exigencies, exegetical requirements, and particular ideological desires.” Stern, supra note 3 at 157.
- Caroline Walker Bynum, Jesus as Mother: Studies in the Spirituality of the High Middle Ages (Berkeley: University of California Press,1982), p. 134.
- Id..
- Id., at 154.
- Id., at 167.
- Halbertal and Margalit, supra note 3 at 34.
- See Genesis 29–30.
- See Genesis Rabbah 74: 19 (Theodor Albeck, ed.), p. 863.
- Genesis 30: 21–22.
- See Talmud Bavli, Berakhot 60a; Midrash Tanhuma (Buber, ed.), p. 79. This midrash is beautifully explicated by Geoffrey Hartman, supra note 8.
- Boyarin, Carnal Israel supra note 55 at 134.
- Id..
- The Babylonian Talmud relates that Rabbi Akiva was originally the shepherd of Kalba Savua and married his master's daughter, despite Kalba Savua's objection. His wife sent him to sit in the study halls to learn Torah, which he did for twelve years. On his return, he overhead his wife's response to a rogue who denigrated Akiva for leaving her a grass widow. Akiva'a wife retorted: “If he were to follow my wishes, he would remain for another twelve years.” Akiva immediately returned to the study halls for another twelve years, emerging as an illustrious scholar. And Akiva later tells his students that all his accomplishments are due to Rachel.
- As with our narrative, the name Rachel is a root metaphor of the Akivan narrative, generating a host of pastoral images and references within the narrative that describe Akiva as the shepherd and Rachel as the beloved ewe lamb, a common biblical metaphor for a love relationship. And when Rachel's daughter follows her example in marriage, the Talmud declares: “ewe follows ewe.” Id., at 151–54. (The root metaphor of the ewe and its association with the figure of Rachel is thus conventional. It is a concept current in the culture that is progressively elaborated in different narrative contexts. Cf., Frank Kermode's discussion of the “primitive fable” in The Genesis of Secrecy [Cambridge: Harvard University Press, 1979].) The story also recalls Jacob's romance with Rachel. There, too, Jacob is a shepherd of Laban, who opposes his marriage to Rachel. Jacob must work first seven years and then another seven to win Rachel's hand. Finally, Jacob's name, Ya'kov, is an “almost perfect anagram” for the Hebrew Akyva. Boyarin, Carnal Israel supra note 55 at 153.
- Moshe Idel points to a midrashic text that assigns the two names of God (the tetra-grammaton and elohim) associated with the attributes of justice and mercy to the two cherubim on the ark of testimony. One talmudic tradition portrays the two cherubim as male and female. Medieval kabbalistic sources explicitly equate the male and female cherubim both with the two names of God and with the two attributes. These kabbalistic texts, Idel argues, may preserve an earlier rabbinic tradition, one indirectly attested to by Philo, who also equates the two cherubim with the two divine attributes, which he describes as the creative and the royal. see Moshe Idel, Kabbalah: New Perspectives (New Haven: Yale University Press, 1988), pp. 128–136.
- Indeed, Goitein understands the particular name of God known as the tetragrammaton, which Philo and later kabbalistic sources assign to the attribute of strict justice, as meaning jealous. S. Goitein, Iyyunim ba-Mikra (Tel Aviv: Yavneh Press, 1957), pp. 318–331, quoted in Halbertal and Margalit, supra note 3 at 256 n. 17.
- Genesis Rabbah 8:3.
- See the discussion in Halbertal and Margalit, supra note 3 at 18–20.
- See, e.g., Talmud Bavli, Megillah 14b.
- Talmud Bavli, Yevamot 79a (“this nation is known by three characteristic features; they are merciful, chaste, charitable”).
- Talmud Bavli, Yevamot 79a.
- Schroeder, supra note 11 at 1170.
- Id., at 1136.
- See Elliot R. Wolfson, “Woman—The Feminine as Other in Theosophic Kabbalah: Some Philosophical Observations on the Divine Androgyne,” The Other in Jewish Thought and History: Constructions of Jewish Culture and Identity, Laurence Silberstein and Robert L. Cohn, ed. (New York: New York University Press, 1994).
- See id See also Schroeder, supra note 11 at 1143–44 (showing that in medieval Europe, feminine-relationalism and the masculine-individuality stereotype was to a large extent reversed).
- Wolfson, supra note 92.
Law & Literature
Volume 8, 1996 - Issue 1: A Commemorative Volume for Robert M. Cover