“They come against them with the power of the Torah”: rabbinic reflections on legal fiction and legal agency

• Date: 09 December 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000050004
• Published date: 09 December 2009
• Pages: 1-17
• Author: Tzvi Novick

‘‘THEY COME AGAINST

THEM WITH THE POWER

OF THE TORAH’’: RABBINIC

REFLECTIONS ON LEGAL

FICTION AND LEGAL AGENCY

Tzvi Novick

ABSTRACT

Although rabbinic literature is often divided into the ‘‘legal’’ and the

‘‘homiletical,’’ material classified under the latter category includes many

important reflections on law and on legal action. This chapter centers on

an extended passage in the homiletical work Leviticus Rabba. I argue

that the passage conveys an implicit awareness of the dynamics of legal

fiction and legal agency in the face of an unjust law.

1. INTRODUCTION

The book of Deuteronomy (Deut 23:3) prohibits the mamzer,orbastard,

from ‘‘entering the assembly.’’ On the view deemed authoritative in

m. Yebam. 4:13, a bastard is the offspring of any sexual union punishable

by divine excision,but other definitions offered in this pericopeand elsewhere,

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e.g., t. Qidd. 4:16, are moreexpansive, and include, in particular, theoffspring

of a Gentile father and a Jewish mother.

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What Deut 23:3 denies the bastard

is the right to marry a genealogically pure Israelite. Not only the bastard but

also his direct descendants must endure this restriction: Deut 23:3 prohibits

entrance into the assembly ‘‘[even] to the tenth generation.’’

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The law of the bastard, insofar as it makes a person suffer for his parent’s

or ancestor’s sin, challenges the principle of divine justice. Many other

phenomena pose similar, often more severe challenges to this principle, but

Deut 23:3 conjoins the theological problem of divine injusticewith a practical,

ethical challenge. Because the verse introduces not a fact but a law, one that,

like most biblical laws, depends on human beings for its implementation, the

question arises: should one attempt to give force to the prohibition of Deut

23:3, or instead undertake to circumvent or oppose it?

This ethical dilemma can confront either the bastard himself or one who

knows about his status. The fact that the genealogical blemish is inherited

means that a person who is, by Torah law, a bastard will often be ignorant of

this fact. Many sources in rabbinic literature address the issue of ‘‘outing’’ a

bastard by revealing his genealogy, and although some of the cases clearly

involve individuals who knowingly conceal their status, most seem to address

the case of ignorance. The one in a position to reveal possesses special

knowledge – be it supernatural, for God (Gen. Rab. 82 [Theodor-Albeck ed.,

pp. 990–991]) and Elijah (t. ‘Ed. 3:4); scribal, in the case of the ‘‘scroll of

genealogies’’ preserved in Jerusalem (m. Yebam. 4:13); or esoteric, as among

the sages who transmit names of blemished families to their children or

students once every seven years (t. ‘Ed. 3:4) – to which the bastard does not

himself have access.

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Indeed, the very offspring of the transgressive

intercourse may himself be ignorant of his status, given that its origin lies

in an event preceding his birth. Thus, the question of whether to enforce the

law of bastards arises, as often as not, not for the bastard himself, but for the

authoritative figure in possession of the relevant knowledge.

This chapter examines an extended passage in rabbinic literature that

addresses together both the theological and ethical aspects of the bastard

problem. The passage occurs in Leviticus Rabba, a product of the second,

amoraic stratum of classical rabbinic literature, and is structured as a

homily on Leviticus 24:10–23. These verses tell the story of the son of an

Israelite mother (a Danite) and an Egyptian father who goes out into the

camp, becomes embroiled in a fight with a full-born Israelite, and

blasphemes God. The blasphemer is brought to Moses and imprisoned,

and an inquiry is made of God. Although the text does not identify the legal

question, God’s response, which opens and closes by emphasizing the

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