13. THE SPIRIT OF RABBINIC LEG ISLATION. In Deut. iv, 2, Israel was told: *Ye shall not add aught to the word that I command you, nor shall ye diminish aught therefrom.* In the course of time, however, many new laws unavoidably crept in, along with new outward conditions, habits of life, tastes and beliefs; aside from relapses towards the old Babylonian statutes, forming a kind of common law for all Semitic Asia.
The For lack of an elective body wielding undisputed authority, with the early disuse of the sovereign assem blies of all Israel known from the book of Judges, the law-making power rested only with the learned men, who were wont to interpret and apply the existing laws, that is, with the judges. These 'sat not only in civil and crim inal cases but also passed on all questions of morals, ritual, and doctrine, for state and church were one, After the death of Herod, it seems, any man learned in the law began to be called "rabbi" or Master); but the rabbi's office and spirit fell to Ezra and his companions. The leading scribes from their time down to Simeon the Just were comprised under the vague name of the "Great Syna gogue." Of their names and activity hardly anything is known with certainty; but there were ascribed to them these maxims (Mishnah Aboth, i, 1): "Be slow in judgment, raise up many disciples; make a fence around the law.* The last maxim led to many additions to the divine commands; for the rabbis narrowly con strued the verse forbidding additions or dimi nutions thus: whenever the law names so and so many things to be used for one purpose; for instance, four paragraphs in the phylactery (Ex. xiii, 9, 16; Deut. vi, 8; xiii, 18), you must not use one more nor one less than this num ber. The grouping of the three maxims shows that the same men were judges, religious teach ers and law-makers.
Making of New New laws were worked out mainly by a bold interpretation of the Torah (Pentateuch), which when accepted by the people became part of the traditions or of the oral law. This was carried down the ages by word of mouth from teacher to pupil or in the remembrance of judicial decisions until toward the beginning of the 3d century it was written down in the Mishnah, the com mentaries on Exodus and Leviticus and in the Aramaic version (Targum) of Onkelos. The Mishnah in turn became the text of the later discussions of the Talmud (see article THE TALMUD in this section), and this whole mass of religious and juridical lore proved the starting point for •the rabbis of later ages. Many of the new rules were avowed innova tions, bearing the name of "Gezeroth" and of "Taqqanoth" (prohibitions and institutions).
Scope and The drift of rab binical legislation ran always along four lines: the desire to set up a "fence" or outworks around the law; to render it more humane, fitted for a higher culture; to create a more rational and spiritual worship of God than that of the sacrificial altar; in times much later than the Talmud to adapt the Jews to the demands of their non-Jewish neighbors. It is to be understood, however, that the Talmud itself lays the groundwork for such concessions. The 'fence" was sometimes thrown around a moral prohibition, such as that against receiv ing usury from fellow-Israelites; but it was mainly directed to ritual observances, such as Sabbath rest and abstention from forbidden foods. The rabbis frankly declared that cer tain acts, if done on the Sabbath, constitute 'work" in the scriptural meaning, while other acts, although not capitally sinful as work, should be avoided, as they would lead to sinful work. Thus to bake or cook any food on the
Sabbath is a scriptural sin; to eat anything on the Sabbath cooked or baked by a Jew, or even by a non-Jew at a Jew's request, is forbidden by the scribes. Again, the law forbids the eating of but adds, °Thou shalt pour it on the earth like water"; which indicates that only blood which can be poured out, not blood which can be drawn from the flesh by artificial means, is scripturally forbidden. Yet the rabbis pre scribed a course of salting and watering the flesh of mammals and fowl, although these had been bled to death in the act of slaughtering. They feared that the taste of the inhering blood once acquired might tempt the people to eat also the flowing blood. In like manner, the prohibition of leavened food on the Passover was surrounded by many minute rules which were avowedly not demanded by the true mean ing of the text: for example, that against the use of 'Median strong drink," that is a fer mented infusion of barley. On the strength of the command (Num. xxxi, 23) for cleansing the captured utensils of the Midianites the use of dishes which have been employed for for bidden food, unless they have first been appro priately cleansed, is prohibited. Earthenware. thus defiled cannot be cleansed, but must not be used at all. Thus the dietary laws of the Jews address. themselves as much to the kitchen utensils as to the stomach. The thrice written words: 'Thou shall not seethe the kid in his mother's milk" were construed 'thou shalt not cook, eat or use flesh in milk." While admit ting that fowl's flesh is not within this wider scope of the prohibition, as its mother gives no milk, the rabbis nevertheless told the faith ful that the flesh of fowl must also be kept out of touch with milk or cheese. The task to keep flesh and milk and the dishes for each apart is quite an obsession to observant Jewish housewives. The desire to bring humanity into the law and the ministrations of justice was shown by construing 'eye for eye, tooth for tooth," etc., into a rule under which the assail ant must pay in money both for the loss of earning capacity and for the pain inflicted; while damages for the affront were deduced from Deut. xxv, 12, which hard-sounding verse was held to signify this and nothing more. The Mishnah may have been right in its construc tion of °eye for eye," but rto change the ampu tation of a woman's hand into a rule that awards a solace in cash for the disgrace of a whipping is judicial legislation of the bold est type; but it was evidently borne out by ancient custom running back to the code of King Hammurabi. In the cause of mercy the rabbis taught that a man condemned to ston ing should be thrown headforemost on a large stone; one condemned to be burned should have hot lead poured into his throat at the moment of being strangled. The penalty of death or of 40 stripes (at least for ritual offenses) was to be adjudged only when the culprit had been previously warned of the 'sinfulness of his act; and criminal proceedings were beset with such technicalities as to render conviction almost impossible. The position of women, both as wives and daughters, was much more favor able, the power of the husband and father much more restricted, than if the text of the Pentateuch alone had been regarded. Thus at the age of 12 years and a half a girl was termed' 'mature" and thenceforward freed from the father's control. The law for maintaining and endowing orphan daughters put them in a ma jority of cases in a more favorable position than the sons and heirs.