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 "THE LAW" AND THE LAW OF 
 CHANGE 
 
 By 
 
 NATHAN ISAACS 
 
 CINCINNATI LAW SCHOOL 
 
 REPRINTED FROM 
 
 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 
 VOL. 65, MAY AND JUNE, 1917 
 
 COPYRIGHT BY UNIVERSITY or PENNSYLVANIA 
 1917
 
 By 
 NATHAN ISAACS 
 
 CINCINNATI LAW SCHOOL 
 
 REPRINTED FROM 
 
 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 
 VOL. 65, MAY AND JUNE, 1917 
 
 COPYRIGHT BY UNIVERSITY OF PENNSYLVANIA! 
 1917
 
 "THE LAW" AND THE LAW OF CHANGE. 
 
 A TENTATIVE STUDY IN COMPARATIVE JURISPRUDENCE. 
 
 Introduction* 
 
 "The Law" let us rather say Torah. For Torah, literally 
 teaching, denotes the whole of what has been revealed to Israel 
 throughout the ages the teaching of the right way of living. 
 The rabbis of the Talmud speak of "two Torahs" : the Holy 
 Scriptures or written law, which is the foundation, and the oral 
 tradition or unwritten law, which is the development. Or: the 
 Torah explicit, and the Torah implicit. The Old Testament 
 moulded the Jew's faith, but it did not restrain his thoughts. 
 Though in theory the legal canon was closed forever, it did not 
 in fact prevent Israel from interpreting and developing its laws 
 and precepts with life-giving freedom. Post-Biblical Jewish 
 law actually went beyond Scripture. New provisions had to be 
 created to meet new conditions which could not have been fore- 
 seen. The Scribes and, later, the rabbis, for political, national 
 and natural reasons, endeavored to create, by legal fictions, by 
 equity and by legislation, a "hedge round the Torah," a "chain 
 of tradition." The "law of change" a law of nature was 
 thus obeyed by "Catholic Israel." The cry, "Back to Moses," of 
 the short-sighted Sadducees was answered by attempts to commit 
 to writing the oral law, out of which attempts the Mishnah, the 
 first post-Biblical code, was compiled, and about which, for the 
 same natural reasons, grew up the Gemara the two making the 
 Talmud, properly so called. Compiled, sifted and committed to 
 writing, it failed to answer all the questions that changed condi- 
 tions suggested. The "Responses" of the Geonim mark the 
 beginning of post-Talmudic legal activity which is still going on. 
 The "second Torah," written and still being written down, has 
 not ceased to be designated as the oral law. 
 
 As the Old Testament is a combination of precept and nar- 
 rative, so is the Talmud no mere law-book compiled by jurists. 
 
 *By Adolph S. Oko, Librarian, Hebrew Union College. 
 
 2116219
 
 4 "THE LAW" AND THE LAW OF CHANGE 
 
 Broadly, the Talmudic literature is characterized as Halakhah 
 (way of life, laws) and Haggadhah (narrative, instruction or 
 homily). We should further bear in mind that among the Jews 
 the distinction between religious and secular law was not known. 
 The division by scholars of the Mosaic legislation into moral, 
 ritual and legal laws is wholly arbitrary. Such distinctions are 
 of a comparatively late origin even in Western Europe. 
 
 Modern Old Testament scholarship sees in Biblical legisla- 
 tion not the product of one author or of one generation, but of 
 centuries. Like all law, it was a growth an expression of Israel's 
 national life. It passed through the various law-stages which 
 Sir Henry Maine observed in the historic development of Roman 
 and Indian law: from the unwritten to the written, from the 
 formal to the equitable, and so on. Maine in his Ancient Law, 
 it would seem, has deliberately avoided drawing illustrations 
 for his principle of legal development from Biblical legislation. 
 The literature on the subject that has grown up since Maine's 
 day concerns itself with the sources and the forms of Biblical 
 laws, with questions of origin and growth or, since the discovery 
 of the Hammurabi Code especially, with their relation to other 
 Semitic legislation, and is in the main the work of archaeologists 
 and Semitists, and not of jurists. From the latter we have but a 
 few monographs on special legal provisions and some occasional 
 remarks on casual analogies. 
 
 Modern study of the Talmud lags behind the critical study 
 of the Old Testament. The Talmud has been one of the prin- 
 cipal subjects of research among modern Jewish scholars. Within 
 the last fifteen years Talmudic literature has occupied Christian 
 scholars also. The principles of both higher and lower criticism 
 are now being applied to it. Of the numerous scientific mono- 
 graphs on special subjects in the Talmud, not a few are con- 
 cerned with its purely legal elements. The scientific study of 
 Talmudic law was first introduced by Z. Frankel (I846). 1 Since 
 then a considerable literature on the subject has grown up. Most 
 
 1 One earlier isolated case should be noted, however. Edward Cans' 
 Erbrecht contains a chapter entitled Die Grundsiige des mosaisch-talmudischen 
 Erbrechts, first published in the Zeitschrift fiir die Wissenschaft des Juden- 
 thums, Berlin, 1823.
 
 "THE LAW" AND THE LAW OF CHANGE 5 
 
 of it, to be sure, consists of monographs on special laws; while 
 the few works that treat of the general subject are not so much 
 concerned with the system of Talmudic law as with the pro- 
 visions of this law. Post-Talmudic or latter rabbinic law, it 
 should be noted, is a rather neglected field. Only a beginning is 
 here discernible. But neither Talmudic nor post-Talmudic law 
 has exercised the minds of legal students to any appreciable 
 degree. 
 
 Comparative jurisprudence, excepting in occasional refer- 
 ences pointing out analogies in forms and provisions, has taken 
 no account of Talmudic law. J. Kohler, the well-known German 
 jurist, may perhaps be regarded as the pioneer in this field also. 
 On the basis of Goldschmidt's German translation of the Baby- 
 lonian Talmud (in progress), Kohler published a study entitled 
 Darstellung des talmudischen Rechtes (1907). This work, how- 
 ever, does not comprise the whole of the legal portion of the 
 Talmud proper; nor does it take account of such preeminently 
 Halakhic works as the Siphre, etc. It is to Kohlers's credit, 
 though, that he is the first jurist who is not at all a Talmudist 
 to have won Talmudic law for scientific study. He "rational- 
 ized" and systematized a good part of it, and he did it with a 
 thoroughness of scientific method that does not leave much to 
 be desired. A scientific method, -however, does not of itself pro- 
 duce a science. Besides, his study is one in comparative law 
 rather than in comparative jurisprudence. 
 
 To recapitulate : of scientific studies of the whole of Jewish 
 law (Biblical, Talmudic and post-Talmudic) there are none 
 always excepting the necessarily eclectic articles in cyclopedias; 
 of monographs there are a considerable number: good, bad and 
 indifferent, adding stone after stone to the edifice; while a sur- 
 vey of the whole field in the light of comparative jurisprudence 
 seems never to have been attempted. Dr. Isaacs is thus the first 
 in the field. 
 
 The present study, written with a deeper knowledge of juris- 
 prudence than Talmudists can claim and a larger knowledge of 
 Jewish history and literature than jurists generally possess, dis-
 
 6 "THE LAW" AND THE LAW OF CHANGE 
 
 cerns the consecutive stages in Jewish "Law." The road pointed 
 out by Maine, Dr. Isaacs is the first to travel in the field of Jewish 
 legal history. 2 By bringing to bear the progressive character of 
 modern jurisprudence on Israel's experience under the "Law," 
 we gain the fruitful conception that the law-cycles are recurrent, 
 that they are universal and not limited to the "Aryan race," 
 as ethnic prejudice would assert. Our author, it should be re- 
 marked, does not think of the cycles as stratified layers, nor of 
 their recurrence as a kind of Pythagorean Apokatastasis or 
 Nietzschean ewige Wiederkunft. The recurrent cycles do pre- 
 sent an upward development : recurrent, they start from the com- 
 paratively higher order which has previously been attained. 
 
 Law changes as language changes perhaps because lan- 
 guage changes. Laws are words ; words are laws. In the begin- 
 ning there were customs, conventions words. They became 
 laws. We have codification. Codification is law (or language) 
 stereotyped, rigid, fixed, dogmatic prosaic. The experience 
 reflected in the code is of the past; and life brings new experi- 
 ences. The words acquire new meanings or shades of meanings 
 in different generations; among different individuals of the same 
 generation. "What do they mean?" becomes the vexing ques- 
 tion. Glossation inevitably follows. The scribes, the learned, 
 the lawyers, or the judges are to discern their "true" meaning 
 by a logical process of reasoning. Alas! reason soon becomes 
 pseudo-logical syllogism and sinks into mere playing with words 
 with words or laws dead or dying; with words without con- 
 
 ' While seeing this article through the press, we have come upon the foot- 
 prints of a predecessor, at least along the beginning of the road. The Jewish 
 Review (London, 1914, Vol. 4) contains an interesting article on Legal Devices 
 by Bertram B. Benas, in which the second chapter of Ancient Law is quoted 
 along with Blackstone and Dicey mainly in an effort to justify the legal 
 evasions of the law as "fictions." In commenting on the characteristics in 
 legal history pointed out by Maine, the author remarks that "many of them 
 are capable of almost complete illustration by Jewish legal history." Mr. 
 Benas, however, seeks illustrations for only two : the resort to fictions and 
 growth by response, prudentium. Without Dr. Isaacs' theory of recurrent 
 cycles it would be difficult to apply Maine's principal observation, the sequence 
 of the instrumentalities, to Jewish law. And Mr. Benas, indeed, feels called 
 .upon to explain why legislation seems to appear in the wrong place: the Jews, 
 he says, have no legislation in Maine's sense! The article, though apologetic 
 in its purpose, is well worth reading, as is its companion-piece by Rev. Isaiah 
 Raffalovich.
 
 "THE LAW" AND THE LAW OF CHANGE 7 
 
 tent or meaning. Endowed with "a large and liberal discon- 
 tent," man soon speaks of "legalism," and yearns for a live 
 message. Commentation sets in. The word or the law now 
 becomes suggestive, anti-intellectual, creative poetical. Man 
 rejoices in anticipation of an endless "creative evolution." His 
 imagination is stirred only too soon to find that it is degen- 
 erating into wild fantasy. "True," he says, "the Universe is 
 strange and deep and mysterious; but reason, too, is godly and 
 something worth while." Vernunft f'dngt wieder an zu 
 sprcchen. . . . Life must be made orderly. He craves for 
 reason, for order, for fixity, for legislation. Legislation tends 
 to become codification. And the law-cycle begins anew. Law, 
 like every other natural phenomenon, we are taught, is subject to 
 the "law of change." 
 
 Original in content, Dr. Isaacs' study is not less so in out- 
 look. It establishes points of contact with present-day currents 
 of thought. It breaks new ground. Thus, among numerous 
 other things, it is implied that there was considerable likeness 
 between the development of rabbinic and Christian thought. In 
 consequence, polemics against "The Law" will now look more 
 ridiculous than ever. For, if the "hedge" of the rabbis was at 
 one time "legalism" glossation an outward form of law and 
 precept, it was such at one stage in the cycle; it became com- 
 mentation (equity) in the next. "The Law," then, taken to- 
 gether, presents a consistent, logical or, if you please, legal and 
 equitable endeavor to work out a complete guide to the living of 
 a perfect life. Further: the history of the oral tradition is beset 
 with difficulties to both the traditionalist and reformer. All 
 kinds of theories have been tried in the balance : those of Frankel, 
 Hoffman, Weiss, Halevy and Professor G. Deutsch ; and all were 
 recently found wanting by Professor J. Z. Lauterbach. Related 
 problems are the feud between the Sadducees and the Pharisees, 
 the dissension of the Judaeo-Christians, the Karaite schism, etc. 
 Again, scholars are puzzled to find anti-Pharisaic or anti-tradi- 
 tional laws in the works of Philo, of whose piety and earnest- 
 ness there can be no doubt, and in those of Josephus, an avowed 
 Pharisee. President K. Kohler, in an essay just published, dis-
 
 8 "THE LAW" AND THE LAW OF CHANGE 
 
 cerns in the Halakhah "a middle stage between Sadduceeism and 
 Pharisaism." To the students of these historical problems Dr. 
 Isaacs' principle holds out a light. Not that it attempts to solve 
 all the problems. But in the new light of his observations the 
 one current theory may perhaps be verified, the other modified 
 and the problems formulated anew. It is also highly interesting 
 to view more recent Jewish movements under the strong search- 
 light thrown by this study in comparative jurisprudence. 
 
 However, the study can safely be left to speak for itself. 
 Dr. Isaacs has earned the thanks of students belonging to differ- 
 ent schools. He neither reverts to the traditional view, nor 
 accepts unreservedly that of the critics, nor attempts a com- 
 promise between the traditional and the critical schools. Differ- 
 ences of opinion as to minor details are, of course, inevitable; 
 but since our author does not press unimportant points, they may 
 well be overlooked. They do not in the least affect the general 
 course of the argument. It is, indeed, a delightful spectacle to 
 view Jewish law as a whole, and as a connected whole; to see 
 its "reason," its unity, its soul. Truly, here we behold a "gov- 
 ernment of laws, not of men." 
 
 Adolph S. Oko. 
 
 Hebrew Union College Library, Cincinnati, O.
 
 "THE LAW" AND THE LAW OF CHANGE. 
 
 A TENTATIVE STUDY IN COMPARATIVE JURISPRUDENCE. 
 THE CYCLES OF LEGAL HISTORY. 
 
 "A general proposition of some value," says Sir Henry 
 Maine, "may be advanced with respect to the agencies by which 
 law is brought into harmony with society. These instrumentali- 
 ties seem to me to be three in number, legal fictions, equity 
 and legislation. Their historical order is that in which I have 
 placed them. Sometimes two of them will be seen operating 
 together and there are legal systems which have escaped the 
 influence of one or other of them. But I know of no instance in 
 which the order of their appearance has been changed or in- 
 verted." * 
 
 In explaining these terms, Maine draws occasional illustra- 
 tions from English legal history which had not been worked out 
 in his day and frequent illustrations from Roman law between 
 the two codes the Twelve Tables and the Code of Justinian. 
 Of his use of Roman law he says : 
 
 "Much of the inquiry attempted could not have been prose- 
 cuted with the slightest hope of a useful result if there had not 
 existed a body of law like that of the Romans bearing in its earlier 
 portions the traces of the most remote antiquity and supplying from 
 its later rules the staple of the civil institutions by which modern 
 society is even now controlled." 
 
 It is submitted that the history of Jewish law furnishes an- 
 other example that could have been used, one with a longer con- 
 tinuous development than even that of the Roman law so much 
 longer that by its study we are enabled to assign to Maine's three 
 agencies their proper positions as mere arcs in a cycle, a con- 
 stantly recurring cycle of which Maine says nothing. In fact, 
 his explanations suggest that a society that has passed from the 
 stage of custom into that of law uses one instrumentality until 
 the next comes into being; that when the cruder instrumentality 
 finally gives place to the more perfect one, the functions of the 
 cruder have been exhausted for that society. The same general 
 
 1 Maine, Ancient Law, Chap. 2. 
 
 (9)
 
 10 "THE LAW" AND THE LAW OF CHANGE 
 
 observation is true of the several modifications of Maine's theory 
 that have appeared from time to time ; I shall refer in passing to 
 two of them. Jenks would trace at least all Germanic systems 
 from caste to contract through certain progressive stages. Dean 
 Roscoe Pound, again, speaks of the stage of primitive law as 
 followed by strict law, equity, maturity of law and some fifth 
 stage upon which Europe and America are now simultaneously 
 entering. A closer inspection of Pound's stages will reveal that 
 they represent swings of the pendulum back and forth between 
 strict law and equity. 2 It is submitted, however, that the 
 periods of strict law and equity are composite and that the same 
 component parts are discernible in each recurrence, that a self- 
 repeating cycle is the result, and that Sir Henry Maine's observa- 
 tion has happily hit upon the main features of this cycle. 
 
 We need only write both at the beginning and at the end of 
 his list "codification" by which we understand a crystallization 
 of law into hard and fast rules definitely stated, to make the 
 self -repeating cycle: codification, fictions, equity, legislation, 
 codification, fictions, equity, legislation, and so on. 3 
 
 This cycle, subject to a few explanations' which follow, it 
 seems, fairly represents the characteristic trends in all legal his- 
 tories that have so far been explored and mapped out for us. 
 
 A code is given to a people or made by them it makes little 
 difference. They begin by studying the text, and no expansion 
 is possible at first unless consistent with the text. At least new 
 ideas must square outwardly with the words of the text. If they 
 cannot be squared in fact they can perhaps by resort to fictions. 
 The word "fictions" here even in the comprehensive sense in 
 which Maine uses it is too narrow. To him the expression "legal 
 fiction" signifies "any assumption which conceals or affects to 
 
 1 1 have before me the recent restatement of his theory in The American 
 Bar Association Journal, Vol. 3, pp. 58-64, January, 1917. 
 
 * No account is given here of the stage known as primitive law. Its 
 characteristics are discussed by the writers mentioned above and by many 
 others. Whatever may be true of it I do not admit that it is the only stage 
 in which religion and law are united. Jewish, Mohammedan and Hindu 
 law have never been divorced from religion, and even modern European law 
 has become isolated from religion only gradually and incompletely. One 
 would hardly call English law primitive up to 1857.
 
 "THE LAW" AND THE LAW OF CHANGE 11 
 
 conceal the fact that a rule of law has undergone alteration, its 
 letter remaining unchanged, its operation being modified." And 
 this kind of fiction he connects with primitive society and its super- 
 stitions. The making of legal fictions, however, is but one mani- 
 festation of what I may call literalism. It is the attempt to do 
 the most with the words before you. It is not so much the child 
 of the perversity of the legal mind or the superstition of primi- 
 tive man as the outgrowth of practical needs that may show 
 themselves in a very concrete way in a highly civilized society as 
 well as in a primitive community. Bound by a code, lawyers 
 become word-students whose work is marked by the elevation 
 of the letter above the spirit, a regard for the jots and tittles of 
 the law, a point of view that we may call "glossatorial." To 
 make the words fit life they may be interpreted artificially as 
 meaning something that they obviously did not mean originally. 
 Again, undue weight may be given to a peculiar turn of a phrase 
 which may have acquired a new meaning in the course of time, 
 and finally resort may be had to methods of doing things tech- 
 nically, though not actually, in order to satisfy the law. Let us 
 call the period of fictions then the period of literalism or the 
 period of the glossators, or word-students. 
 
 Long before this period ends, if it ever does end, the second 
 and third points of view may appear in fact, schools may exist 
 side by side and quarrel for many generations over the relative 
 merits of literalism and equity, but finally we see equity prevailing 
 and a second period in the modification of laws is ushered in. 
 Here, too, I wish to call attention to the fact that the designating 
 word "equity" represents but one manifestation of a whole point 
 of view, a point of view that historically follows the glossatorial. 
 It is the point of view of the student whom I shall call, for want 
 of a better word, the commentator, as distinguished from the 
 glossator. It is a point of view that is concerned with the subject 
 matter rather than the words, with the purposes of the law rather 
 than its method, its spirit rather than its letter, its principles 
 rather than its rules. It is an appeal from the text to common 
 sense, from technical rules to fundamental principles. Maine 
 suggests that :
 
 12 "THE LAW" AND THE LAW OF CHANGE 
 
 "The very conception of a set of principles, invested with a 
 higher sacredness than those of the original law and demanding 
 application independently of the consent of any external body [for 
 such consent would constitute legislation] belongs to a much more 
 advanced stage of thought than that to which legal fictions originally 
 suggested themselves." 
 
 But the chasm between the two positions is bridged when 
 we consider that the equity stage of the exaltation of general 
 principles may come gradually through a mode of study of the 
 older law whereby principles are first discovered in the growing 
 mass of rules. Glossation itself may be reduced to principles as 
 a first step. More general principles will follow. They may be 
 very indefinite they may be summarized in such catch-words as 
 "conscience," or in some vague yet potent theory of a word of 
 God or a law of nature, or in a peculiar attitude that invests 
 general practice with legal force; but when principles are dis- 
 covered and stated they will, it seems, be readily exalted above 
 the mere words, perhaps at first with the aid of such harmless 
 fictions as the omniprescience of the law-makers. The desire to 
 breathe the freer air of general principles comes to all peoples 
 who have suffered from the choking atmosphere of too many 
 particular rules. That desire is natural. The mode in which it 
 is satisfied and the extent to which it can be satisfied are of course 
 largely accidental, and will differ in different times and places. 
 So far as the growth comes through the administration of courts, 
 it is proper to call this period of growth the period of equity. So 
 far as it comes through the work of students and writers, we 
 may call it the period of the commentators, or principle-students. 
 
 The possibilities of growth by glossation and commenta- 
 tion, by fiction and equity, are exceedingly great far greater 
 than the layman would suppose but there is a limit to what can 
 be done with an old code. When the breaking point is reached, 
 additions and modifications are generally made by legislation. 
 Here again I must warn against too narrow a use of the word. 
 The kind of change that we are now considering is not neces- 
 sarily connected with a legislature. It may be conscious or un- 
 conscious. Maine suggests that legislation necessarily derives 
 its authority from an external body or person. But I prefer to 
 use the term with especial reference to the fact that in this kind
 
 "THE LAW" AND THE LAW OF CHANGE 13 
 
 of law obligatory force is independent of general principles. It 
 may be judicial legislation parading under a thin disguise. It 
 may simply be the tacit recognition of new customs. The point 
 is, it is the enforcement of rules alongside of the old code with- 
 out the pretense that they are to be found in the old code. And 
 when a code becomes overburdened with new matter of this kind, 
 what is more natural than the adoption of a new code? 
 
 We must distinguish here between a code and practice books 
 such as the abridgement (a selection) which is apt to appear in a 
 glossatorial period, the summa (a summary) which is apt 
 to appear before, and the digest (an analytical compilation) of 
 decisions which is apt to appear after a commentatorial period. 
 These may serve as preparatory works for the codifier. Indeed, 
 the digest may be a pandect, an all-container, and eventually may 
 become a code. But in themselves these books are not codes.* 
 The distinguishing mark of the code is that a people accepts it 
 probably very gradually as the correct, authoritative statement 
 of its corpus juris. When this stage is reached, we are ready for 
 another revolution of the cycle. In other words : every "Moses," 
 every codifier, is followed by a "Joshua," a faithful disciple who 
 departeth not out of the tabernacle, and "elders" who expound, 
 by "prophets" who expand and by an "assembly" which makes a 
 "hedge around the law," or some other kind of statutes and 
 finally codifies again. 5 Or more technically the sequence may be 
 illustrated in a table : 
 
 Codification 
 Glossation 
 
 (word-study and fiction) 
 Commentation 
 
 (principle-study and equity) 
 Legislation 
 Codification 
 
 4 Many Jewish works of this nature are popularly called codes (cf. Jew- 
 ish Encyclopedia, s. v. Codification of Law), but their failure to be generally 
 adopted precludes them from the concept as used here. Thus Alfasi's sole 
 object was to make an "abridgement"; that of Maimonides. the philosopher, 
 was to "summarize" ; that of Asher ben Jehiel and his son Jacob ben Asher 
 was to "digest" the innovations of their time. See below.
 
 14 "THE LAW" AND THE LAW OF CHANGE 
 
 ILLUSTRATIONS. 
 
 Before attempting to review Jewish experience under the 
 "Law" in the light of this theory it may be well to illustrate the 
 theory itself by the merest suggestion of its applicability to the 
 two leading systems of law current in Europe and America today 
 the Roman-continental system and the Anglo-American 
 system. 
 
 A. Roman-Continental Law. 
 
 Roman law between the Twelve Tables, its first great code, 
 and the famous code or culmination of attempted codes that bear 
 the name of Justinian, represents a perfect cycle, the cycle on 
 which Maine bases his observation. This period sees the strict 
 law and fictions of the Republic, the equity of the praetors and, 
 finally, the legislation of the later emperors. Between Justinian 
 at one end and the series of nineteenth-century codifications of 
 continental Europe from the Code Napoleon to the Bilrgerliches 
 Gesetzbuch at the other, a second cycle is discernible. The first 
 post-Justinian jurists were glossators uncritical acceptors of 
 the text till the rise of the school at Bologna; critical thereafter, 
 but glossators nevertheless. Their work ended with the great 
 glossator, Accursius. His followers were the commentators or 
 Bartolists, whose chief work was to adapt the Roman law to the 
 local and temporal conditions in which they found themselves. 
 The sum total of several centuries of this kind of work was the 
 making of a series of national legal systems based on custom 
 with Roman law as the mere background, first as Roman law, then 
 as natural law. At least we can approach the meeting point of 
 Roman law and the Leges Barbarorum from this angle without 
 riding "an academic theory to death." 6 There comes a time in 
 
 * Cf. the opening sentence of the Mishnah Tractate, 'Abhoth: "Moses 
 received the Torah on Sinai, and handed it down to Joshua ; Joshua to the 
 Elders ; the Elders to the Prophets ; and the Prophets handed it down to the 
 men of the Great Assembly. They said: '. . . Make a hedge around the 
 Torah.' " 
 
 8 The other approach, through the "Barbarian Laws," is in current Ger- 
 man writings the more popular. It is reflected in England in Jenks, Law and 
 Politics in the Middle Ages.
 
 "THE LAW" AND THE LAW OF CHANGE 15 
 
 each country when the national element speaks through legisla- 
 tion and finally comes codification hastened in some countries by 
 Napoleon, retarded in Germany by Savigny and his school. 
 Modern continental lawyers with their codes in their hands are 
 essentially glossators. 
 
 B. Anglo-American Law. 
 
 The history of Anglo-American law is parallel. 7 Two cycles 
 are discernible with the year 1290 in the reign of Edward I, the 
 English Justinian, as the turning point. The code or crystalliza-. 
 tion was the series of writs into which one's case had to fit or 
 perish. The last futile efforts to extend the list had been made 
 in the early years of Edward's reign through a series of famous 
 statutes. For one hundred years before Edward's day the method 
 of making the law grow was by deliberately making new writs 
 for new cases on the basis of a general principle : no wrong with- 
 out a remedy. We may call this without undue violence a period 
 of growth by equity. 8 Still earlier and back to the Norman Con- 
 quest in spite of a strong pretense of the Norman kings to give 
 back the laws of Edward the Confessor, that is the Anglo-Saxon 
 crystallized customs, there were constantly being introduced re- 
 forms on the basis of fictions especially the fiction that the 
 king's peace was invaded in all cases of interference with pos- 
 session. Since 1290 a shower of handbooks of the law, and the 
 early Year Books show the lawyers grappling with word-prob- 
 lems in the writs and using fictions to make the law applicable. 
 "Damnum absquc injuria" delights the technical judges of the 
 Year Books. Soon equity came on the scene. Passing by its early 
 beginnings in the fourteenth and fifteenth centuries we find it the 
 
 1 The cycles in Anglo-American law are fully worked out in the Introduc- 
 tion to the author's forthcoming book of Select Cases and Documents Illus- 
 trative of Anglo-American Legal History. 
 
 8 Jenks has noticed the puzzling fact puzzling unless two cycles are rec- 
 ognized in English legal history that "there is, in fact, a greater resemblance 
 between the register of writs and the praetor's edict, with its list of formulae, 
 than between the edict and the vague processes of the early days of equity." 
 30 Harv. L. Rev. 16 (Nov. 1916). In view of this very just observation, I 
 regret that I am unable to follow Dean Pound in his description of the whole 
 period between the Norman Conquest and the equity of the chancellors as a 
 period of "strict law."
 
 16 "THE LAW" AND THE LAW OF CHANGE 
 
 chief instrumentality in the development of the administration of 
 justice in the 1500*5 and 1600' s. The 1700*5 show it in the 
 process of hardening and in 1801, when Eldon comes into power, 
 it is so well defined that it has ceased to be useful as a means of 
 making new law. The iSoo's witness the application of the 
 third instrumentality, legislation. We have been deluged with it 
 in England and America and today we are seeking refuge in 
 codification. Many parts of our law are already codified. What 
 becomes of these codes? Will a new cycle begin? Perhaps the 
 best answer may be had by reference to a branch of law that was 
 the first to be codified in America antedating the period of gen- 
 eral codification for peculiar political reasons by a century or 
 more. I refer to constitutional law. The great constitutional 
 decisions of the last century are largely glossatorial. What is 
 interstate commerce ? What is a jury ? What is the true meaning 
 and extent of the doctrine of liabeas corpus? What is a postal 
 road? What is due process of law? What is meant by the im- 
 pairment of the obligations of contracts? What is an ex post 
 facto law? What are the privileges and immunities of citizens? 
 The difficulties incident to the amendment of the constitution 
 have even driven us in recent times to the making of some new 
 fictions. One of the boldest fictions ever perpetrated was made 
 in 1844. 9 It is the wholly gratuitous presumption that all of the 
 members of a corporation are citizens of the state in which the 
 corporation was organized, invented solely to bring certain cases 
 within the constitutional phrase, "between citizens of different 
 states." Has not the whole college of presidential electors be- 
 come a mere fiction? In addition, the constitution has been sub- 
 mitted to stretching by the giving of a very liberal meaning to 
 certain limited terms another variation of the use of fiction. 
 Thus in time it became inevitable that Congress should have some 
 control over trusts, over telegraphs, over white slavery, whether 
 commercialized or not; over food and drugs, over meat inspec- 
 tion, over the length of working days and innumerable other 
 subjects and all of these powers have been assumed and justified 
 
 See Louisville, etc., R. Co. v. Letson (1844), 2 How. (U. S.) 497; L- 
 Ed. 353; cf. Harlan, J., in Blake v. McClung (1898), 172 U. S. 239, 259-
 
 "THE LAW" AND THE LAW OF CHANGE 17 
 
 by a single clause: "The Congress shall have power ... to 
 regulate commerce . . . among the several states." 10 
 
 I shall digress a moment to draw a further illustration from 
 the interpretation of the Constitution of the United States. It 
 will serve as a close-up picture of the first stages in the post- 
 morten history of a code. First it will suggest the necessary 
 incompleteness of all codes even at the time of their writing, and 
 the manner of filling them out by drawing from "common law." 
 It was far from the minds of the draughtsmen of the constitution 
 to enact unwritten English law into the United States Constitu- 
 tion. Indeed, Jefferson, who was of one spirit with many of 
 them, advocated an act forbidding the citation of English cases. 
 At least two of the United States passed such acts. Nevertheless, 
 when courts were confronted with such questions as: what is 
 habeas corpus, what is a jury and so on, what could they do? 
 They had to fall back upon English decisions antedating the con- 
 stitution in other words, they had to read the common law into 
 the constitution. And this was right for what else could have 
 been meant by such words, if not what the English law had de- 
 fined them to be? If you adopt the language of a country, you 
 tacitly adopt its law. A study of the part that language plays 
 in the psychosis of a people would take me too far afield. I shall 
 only call attention to a few coincidences. If you draw a lan- 
 guage map of the world you have a law map. The 
 countries speaking English America, Canada, South Africa and 
 Australia have essentially English law. The part of Can- 
 ada where the French language is just dying out is witnessing 
 the simultaneous demise of French law. The countries of South 
 America that speak Spanish are governed by Spanish 
 codes. The countries that speak languages based on the Latin 
 have laws based on the Roman code. In mediaeval France the 
 line that divided the land where "oc" meant "yes" from the land 
 where "oui" [oil] meant "yes" also separated the country of the 
 written law from the country of the oral custumals. Lastly, the 
 Pilgrim Fathers wanted to adopt the law of God from the Bible, 
 but before they knew it they had imported with such words as 
 
 " Article I, Sec. 8.
 
 18 "THE LAW" AND THE LAW OF CHANGE 
 
 sheriff, will, heir, chattels, county and a thousand others the 
 English institutions that they had meant to avoid. The relation 
 between language and law is deep-rooted and wonderfully subtile. 
 But to return to our subject to interpret a code written in any 
 language one must know the common law of the land whence the 
 language came. Reverting to our study of the periods in the 
 vicissitudes of a code, I may add that this common law is more 
 important in a glossatorial period than in a commentatorial or 
 equity period, and that it gradually loses its force in a statutory 
 period. 
 
 JEWISH LAW. 
 
 We are now ready to apply these principles to Jewish law. 11 
 The first cycle, that which led to the completion of the Old Testa- 
 ment of the Bible, is not easy to approach. If modern scholarship 
 has removed the warning, "The place whereon thou standest is 
 holy ground," it has at the same time substituted another, "Dan- 
 ger Zone." 12 Without attempting to date any "documents," 
 
 11 In the transliterating of Hebrew the scheme used here is that which I 
 employ throughout the new International Standard Bible Encyclopedia. I 
 am also using the abbreviations of book names found in that work. 
 
 " It seems to me that Maine stopped short of using the Bible for illus- 
 trative purposes because of the first of these warnings. Mr. Oko, however, 
 to whom I wish to acknowledge my deep indebtedness for innumerable sug- 
 gestions, is inclined to suspect him of having feared the second. 
 
 [That Maine in his Ancient Law should not have drawn illustrations for his 
 principle of legal development also from Biblical legislation, is more than pass- 
 ing strange. That he had more than a "bowing" acquaintance with Biblical 
 law may be inferred from his discussion of the primitive operation of Wills 
 (Ancient Law, 5th Ed., p. 197), and of the modern history of crimes (Ibid., 
 P- 397)- J- D- Michaelis' Mosaisches Recht (1770-75), a work not devoid of 
 merit, was accessible to Maine in an English translation under the title Com- 
 mentaries on the Laws of Moses (4 Vols. ; London, 1814), a title, as the 
 translator, Rev. A. Smith, explains, suggested by the analogy of this work 
 to that of Blackstone. It should also be noted that a decisive inroad of Ger- 
 man theological scholarship into England had already been made three 
 decades before Ancient Law was first published (1861) : Milman's History 
 of the Jews appeared anonymously in 1829. The liberal dean insisted that 
 the Bible should be studied like any other historical book. Further, the text 
 of the Old Testament was much studied in England towards the middle of 
 the nineteenth century witness the remarkable volume of Essays and Re- 
 views (1860), the work of Bishop Colenso on the Pentateuch, and that of 
 Dean Stanley. The trend of the times is likewise reflected in the appearance 
 (1862) of the anonymous translation of Spinoza's Tractatus Theologico- 
 Politicus by the London physician Robert Willis a work, in which the com- 
 posite nature of the Pentateuch was pointed out for the first time and in 
 which several results of modern Old Testament scholarship were anticipated 
 It is quite possible that Maine simply refrained from using freely the Biblical 
 knowledge of his day for secular learning for fear of being dragged into con-
 
 "THE LAW" AND THE LAW OF CHANGE 19 
 
 without participating in the controversies that are still the battle- 
 ground of specialists, one may venture to survey the general legal 
 tendencies of Old Testament times. For after all the Biblical 
 codes, whenever and by whomever they were reduced to writing, 
 are legal codes, subject in the hands of men to the ordinary vicis- 
 situdes of codes a fact too generally overlooked by radical and 
 conservative alike. We must remember that as codes they are 
 incomplete statements of the law of a people, and that they are, 
 like the Constitution of the United States, based on a common 
 law, that they call for interpretation, and that through interpre- 
 tation they grow. 13 
 
 Biblical common law the common law of the Hebrews 
 may need a little elucidation. Let us take a few examples. In 
 the first place Biblical law provides for a refuge from the avenger 
 of blood. 14 Where does it tell what an avenger of blood 
 is? Nowhere. Everybody is presumed to know that part of the 
 common law and it is not repealed, only mitigated. Again, no 
 mention is made in Biblical law of the rights of sons to inherit, 
 but assuming that everybody knows that principle, the Biblical 
 language 15 becomes clear. It provides rules of inheritance in 
 case a man die and have no son. More particularly the peculiar 
 rules of primogeniture of the Hebrews the giving of a double 
 portion to the first-born are nowhere laid down; they are pre- 
 
 troversy. We must remember that from 1860 to 1864 English academical and 
 clerical obscurantism was much agitated by the publication of Essays and 
 Reviews, by the Colensp "heresy," and finally by the tremendous interest 
 aroused by Darwin's Origin of Species (1859). "Maine," Sir Frederick Pol- 
 lock tells us, "was generally averse to controversy." A. S. O.] 
 
 13 Since writing this paper I have been interested to learn that the "con- 
 suetudinary" laws presupposed in Biblical legislation were recognized by 
 Michaelis one hundred fifty years ago. (Commentaries on the Laws of 
 Moses, Book I, Art. III.) Michaelis uses two of the illustrations above and 
 adds that of divorce, which is checked, though nowhere specifically author- 
 ized. Its authorization is in the common law. (Dt. 22 19, 29; 24 1-4, AV and 
 RV are here misled by the paraphrase in Mt. 6 31, and Michaelis is right, cf. 
 Jew. Pub. Soc. translation; Jer. 3 I.) Michaelis fails to see in Jewish tradi- 
 tion an outgrowth of this "consuetudinary" law. Consequently some of the 
 conclusions he draws from his find differ radically from the present author's. 
 Michaelis' readiness to draw upon popular accounts of contemporary Arabic 
 culture for illustrations of the Bible contrasts strangely with his utter inability 
 to see the more obvious illustrations in Jewish history. 
 
 14 Nu. 35 9-28 ; Dt. 19 i-io. 
 u Nu. 27 8-II.
 
 20 "THE LAW" AND THE LAW OF CHANGE 
 
 sumed to be known in the discussion of the illegality of the trans- 
 ferring of the birthright of the child of one wife to the 
 child of another. 16 The levirate law is recited in the Biblical 
 codes, 17 but more attention is paid to the haligah, or the formula 
 for its evasion, than to the old custom itself. 18 Now we find 
 traces of all of these institutions and many others in the stories 
 of the patriarchs where they have all the earmarks of common 
 law or custom. There is the vendetta in the relations between 
 the sons of Jacob and the men of Schechem. 19 Inheritance and 
 primogeniture run through the stories of the patriarchs. The 
 levirate is illustrated in the story of Judah and Tamar. 20 In 
 short, strange as it may seem to the layman, to the jurist there 
 is nothing remarkable in the Talmudic notion that before the 
 days of the written law, Abraham, the Hebrew, observed the 
 oral Torah, the common law of the Hebrews. 21 But we need not 
 center our attention on the peculiar institutions of the Hebrews 
 to see the significance of their common law in the interpretation 
 of the Hebrew codes. Every Hebrew word, in even the simplest 
 of sentences, carries with it its bit of Hebrew common law. Ba- 
 sukkoth tcsh e bhii - - in booths shall ye dwell. 22 What is a 
 sukkahf How high may it be and still be a sukkahf How low? 
 Of what materials may it be made? How may it be covered? 
 What part of its wall space may be open without doing violence 
 to the denotation and the connotation of the term as understood 
 when and where the code was made ? 23 The term had some 
 connotation at the outset in other words, there was on these 
 points a halakhah l e Mosheh misSlnai or, in English, a custom 
 from a time that the memory of man runneth not to the con- 
 trary. And the questions are legitimate, legal and logical in a 
 
 * Dt. 21 16, 17. 
 "Dt. 25 5,6. 
 18 Dt. 25 7-10. 
 " Cf. also Gen. 9 5. 
 20 Gen. 23. 
 
 " See commentaries on Gen. 26 5, "because Abraham obeyed my voice, 
 and kept my charge, my commandments, my statutes, and my laws." 
 M Lev. 23 42. 
 " Cf. Mishnah, Sukkah I. I.
 
 "THE LAW" AND THE LAW OF CHANGE 21 
 
 glossatorial study. One source from which to draw the answers 
 would be the opinion of persons who have retained the traditions 
 of the language. The practical interpretations of men in differ- 
 ent districts would also be relevant. In like manner the learning 
 of the various kinds of labor prohibited on the Sabbath resolves 
 itself into what is m e la'khah (labor) and the ' abhoth m e la'khah 
 (principal divisions of labor) of the society in which the law was 
 declared or in which it grew up are proper subjects for the con- 
 sideration of the glossator. 24 
 
 A. The Biblical Cycle. 
 
 Just how long the interpretation of Biblical law was bona 
 fide explanation of what passages originally meant and nothing 
 more, it is hard to say. Tradition tells us that Moses himself 
 began the process of expounding, 25 and Joshua is supposed to 
 have continued it as his faithful disciple. 26 I have already sug- 
 gested an explanation in the light of comparative jurisprudence 
 of Jewish tradition's famous account of itself. It is significant 
 that from a host of possible claimants, including kings and 
 priests, it recognizes as its true bearers only men who character- 
 ize the normal stages of legal development. 
 
 24 The sacredness attributed to the Bible prevented Jewish law from being 
 anything but glossatorial for a long time. Indeed the glossatorial form runs 
 through Hebrew legal literature for many ages ; thus the halakhic Midhrashim 
 interpret Biblical law, the Gemara interprets the Mishnah. But if this glossa- 
 torial form reveals the beginning of Jewish legal science, even if it points 
 out a predominant feature in it, it must not be taken as an indication that 
 Jewish legal learning remained glossatorial in spirit through all these ages. 
 Indeed one of the logical weaknesses of Jewish jurisprudence from a modern 
 point of view is the very practice that gave it its strength in the past it is 
 the attempt to base the new code on the older ones, where the basis of the 
 new may be independent of the terms of the old, and just as solid. Thus, 
 "Thou shalt not scathe a kid in its mother's milk," were it repeated ten times 
 instead of three would not suggest anything like the Jewish practice to the 
 modern jurist. Undoubtedly the Jewish practice is based on very ancient 
 tradition. Yet the ancient lawyer who recited that practice, when asked for 
 an authority, did what a modern lawyer frequently has to do when he has no 
 case on all fours with the case at bar: he cited an instance not exactly in 
 point, but one showing a clear tendency in the same general direction. If 
 one of his followers thereafter writes the accepted law in the form of an 
 annotation on the old code, he leaves the impression that the practice is 
 derived solely from the passage cited, a decidedly puzzling impression. "Queer 
 proof assumes the guise of queer inference." 
 
 26 Dt. i 5, where the Hebrew be'er means "to explain" ; cf. Josephus, 
 Contra Apionem, II. 17. 
 
 ** Mishnah, 'Abhoth, I. i ; Maimonides, Mishneh Torah, Introduction.
 
 22 "THE LAW" AND THE LAW OF CHANGE 
 
 It is remarkable, moreover, that the tendencies suggested 
 are borne out by such other evidence as we have of the times 
 covered. Thus, the pre-prophetic age cannot be dismissed as a 
 codeless period. It is a period of literalism. Joshua and Jeph- 
 thah must live up to the letters of their promises, no matter how 
 repugnant their deeds to the spirit. Even the great Samuel does 
 not tell us that the spirit is greater than the letter, but on the 
 contrary: "Hath the Lord as great delight in burnt offerings 
 and sacrifices as in obeying the voice of the Lord? Behold, to 
 obey is better than sacrifice and to hearken than the fat of 
 rams." 27 This archaic pronouncement might serve as the motto 
 of a glossatorial school. In the same period fictions are already 
 rife for example, the fictitious or symbolic transfer or sale 
 necessary to bind a bargain in the story of Ruth, and the fiction 
 by which a tribe is saved from extinction. 28 In the days of the 
 early kings, David's worst enemies cannot be dealt with 
 by Solomon without a technical charge against them. 29 Solomon 
 is told to act according to his wisdom in this matter, and the 
 essence of legal hokhmah in his day seems to be to make the 
 words of the law do more than was originally intended. In no 
 other sense was the famous judgment of Solomon hokhmah. 
 The pre-prophetic period is a literalistic period; the prophetic, 
 one of equity. "What doth the Lord require of thee, but to da 
 justly, and to love mercy, and to walk humbly with thy God?" 31 
 Isaiah's ideal ruler "shall not judge after the sight of his eyes, 
 neither decide after the hearing of his ears; but with righteous- 
 ness shall he judge the poor, and decide with equity for the meek 
 of the land." 32 The spirit of the prophets is clearly a spirit 
 which our observation of other systems would place in time after 
 the growth of formal law, and here is a new factor with which 
 some of the theorists on the subject will have to cope. 
 
 At the end of the prophetic period a catastrophe helped the 
 
 ** i S. 15 22-24. 
 
 28 Ruth 4 7 ; Jgs. 21 16-23. 
 
 " i K. 2 6, 36-46. 
 
 " i K. 3. 
 
 * Mic. 6 8. 
 
 M Isa. ii 3, 4.
 
 "THE LAW" AND THE LAW OF CHANGE 23 
 
 transition from equity to legislation. The Exile forced the 
 people into a conscious readjustment of their lives. And it is not 
 surprising that at the Return a great period of legal reconstruc- 
 tions set in. So many statutes or Takkanoth could be traced by 
 tradition to Ezra and his associates 33 that anonymous statutes 
 were in general popularly attributed to the men of this time. These 
 were the men who said, "Make a hedge around the Torah." 34 And 
 with Ezra the canonization of the Bible the authoritative repos- 
 itory of the law begins. We have a new codification and even 
 while it is in progress a new period of literalism sets in. 
 
 B. The Mishnah Cycle. 
 
 The next cycle, that between the Old Testament canon and 
 the Mishnah, is better known to us for its political and religious 
 history than for its legal development. It is the period of the 
 Second Temple, of the Maccabees, of the birth of Christianity. 
 of the Wars of the Jews, of the destruction of the Temple and 
 of the dispersion of the Jewish people. These great events did 
 not pass without influencing the development of Jewish law, but 
 the period furnishes a remarkable instance of how the common 
 people's law takes its natural course in spite of catastrophes. We 
 are told that Simeon the Righteous, the last of the Men of the 
 Great Assembly, was followed by Antigonus of Soko and he by 
 Zughoth, "pairs," who through four generations conserved the 
 traditions to the days of Hillel and Shammai. Four generations 
 of Tanna'im (tannaim, "teachers," a title in this period), the 
 schools of Hillel and Shammai, carry on the tradition until the 
 next codification, the Mishnah. Though very little has been 
 written of the steps by which this law grew and for this reason 
 I shall study the period more fully than the others we have suffi- 
 cient evidence to support the view that glossation (including 
 fictions), commentation (including equity) and legislation, so far 
 as it appeared, followed each other in the usual order. 
 
 * Ten in one place, Babha' Kamma, 82 a. 
 
 "A Biblical justification for legislation was found in Dt. 17 9.
 
 24 "THE LAW" AND THE LAW OF CHANGE 
 
 Of the first step, the verbal expounding of the Bible, we have 
 several kinds of evidence. The reading of the Torah and the 
 explaining of passage by passage in the synagogue is supposed 
 to go back to Ezra. 35 This method of the study and application 
 of the law to which the name of Midrash (mid hrash, from darash, 
 "to expound") has been given is, according to a very old reliable 
 tradition, to be ascribed to the pre-tannaitic period. Sherira 
 Gaon in his famous letter on the history of tradition expressly 
 says that the rnidrashic method preceded other methods of study. 
 Traces of it are to be found in the Bible. Glossations must have 
 become quite complicated very early indeed, for in the period ot 
 the Zughoth there had already grown up opposition to it. What 
 were the Sadducees who gave Simeon ben Shetah so much 
 trouble but Jews with Hellenistic leanings, who, though accepting 
 the Bible, rejected the tradition that pretended to interpret every 
 letter of it? What were the early Christians but protesters 
 against the Scribes and Pharisees, who held to every jot and tittle 
 of the law, who tithed mint, anise and cummin, who made fine 
 distinctions between swearing by the temple and by the gold of 
 the temple and against the lawyers also, who, while lading men 
 with burdens grievous to be borne, seemed to leave the command- 
 ment of God to hold fast the traditions of the elders? 3e 
 
 Besides Sadduceeism and Christianity, there was a third 
 form of reaction against the literalism, the glossation that 
 marked the period of the Zughoih: it was that of the main bodv 
 
 " Neh. 8 1-18. 
 
 "I refer here only to "the early Christians," the small community that 
 existed as a sect among the Jews before it developed into a church. For the 
 persistency of the trend in human nature which our cycles represent is illus- 
 trated again in the history of the canon law of the Roman Catholic Church. 
 Between the New Testament and the closing of the Corpus Juris Canonici in 
 the work of Jean Chappuis in 1500, there is discernible first the period in 
 which the church fathers and the early councils were busy interpreting such 
 matters as the effect of such texts as Acts n and 15 on the law, or the 
 proper date for Easter or day for the Sabbath, a glossatorial period. Then 
 comes a period of the growth of local customs and usages and their expression 
 in local councils, a period in which natural and divine law or equity is per- 
 haps the dominant guiding principle. The attempts to collect the decisions 
 from all parts of the world and to extract general principles from them, from 
 Dionysius Exiguus to Gratian's Concordantia Discordantium Canonum, belong 
 here rather than under codification, and indeed they have never been recog- 
 nized in the Catholic Church as codes. From Gratian to the close of the 
 Corpus Juris Canonici, there are Extravagantes, the five compilations sum- 
 marized by Raymond of Pennaforte for Gregory IX (1234) and the Liber
 
 "THE LAW" AND THE LAW OF CHANGE 25 
 
 of Israel. Glossation was to be softened by fiction under the 
 influence of Hillel and fiction was to be followed by equity in the 
 School of Hillel. 
 
 Let us look at the most famous fiction of this period, the 
 Prosbul (7r/3oo-/3o\?;), a fictitious assignment of a debt to the court 
 in order to toll the bar of the Biblical statute of limitations. In 
 the Mishnah 37 we read : 
 
 "The Prosbul ... is one of the things that Hillel, the Elder, 
 instituted. Seeing that the law which prescribed the release of all 
 debts every seventh year 38 brought about the harmful consequence 
 that people refused to loan one another and thus violated what 
 was written in the law, namely, that a money loan should not be 
 withheld because of the approach of the sabbatical year 88 Hillel 
 instituted the Prosbul." 
 
 Hillel in thus making the law respond to the needs of a com- 
 munity that was passing from agriculture to commerce did not 
 deviate from the letter of the law. The institution is based on a 
 peculiar stressing of words in the Bible, "That which is thine 
 with thy brother thine hand shall release." 40 The attitude of 
 later generations to the Prosbul is suggestive: Samuel of the 
 first generation of Babylonian Amoraim, disliked it, whereas 
 Rabbi Nahman, of the third generation, the fiction period of the 
 next cycle, wished to extend it. 41 
 
 Sextus of Boniface VIII (1290), the Clementinae (1314-1317). the Extrava- 
 gantes of John XXII and Extravagantes Communes. These Extravagantes 
 which precede the final crystallization of the law correspond with what wf 
 have called legislation. Upon the code follows the period of literalism that 
 countenanced the wholesale sale of indulgences. By a queer irony the 
 church that had its birth in a revulsion against literalism was now faced by 
 a kind of new Sadducees who demanded a return to the old text, freed fron 
 tradition. For them the Bible had to be translated and popularized and fifteer 
 centuries of history forgotten. It is interesting to note, too, how Protestan* 
 theology persists in describing Catholicism as it was at the time of th 
 schism, wholly literalistic, just as Christianity in general describes Judaism 
 though in each counter-reformations have set in and the cycles have con- 
 tinued turning on their ceaseless course. "As time goes on." says Professor 
 Auguste Boudinhon, in speaking of the interpreters of the Corpus Juris 
 Canonici of this period (s. v. Canon Law, Enc. Brit, nth Ed.), "the works 
 gradually lose the character of commentaries on the text, and develop into 
 expositions of the law as a whole." It will hardly be necessary to remind the 
 reader that Protestantism itself has not escaped institutionalization. 
 
 17 Mishnah, Sh^bhl'lth, X. 3. 
 
 "Dt. 15 12. 
 
 *Dt. 159-11. 
 
 40 Dt. 15 3- 
 
 "Gittln, 36 b. For another of Hillel's institutions showing a like tend- 
 ency, cf. Mishnah, 'Arakhln, IX, 4 on Lev. 25 30 as to the sale of houses.
 
 26 "THE LAW" AND THE LAW OF CHANGE 
 
 A better illustration of what can be done by fictions is fur- 
 nished by 'Erilbhin of several kinds, of "boundaries," of 
 "courts," of "cookery" all of them fictitious means. The first, 
 that of f'humln or boundaries causes a man's home to be at any 
 spot he may designate in advance so that he may move about in 
 a circle of two miles around this point on the Sabbath. The sec- 
 ond, of haferoth or courts, makes a fictitious unit out of a group 
 of households so as to permit transportation on the Sabbath in a 
 place that would otherwise constitute numerous domains instead 
 of one domain. The last, of tabhshilm or cookery, constitutes a 
 fictitious nucleus of the Sabbath meal when a holy day falls on 
 Friday, so as to permit cooking on the holy day for the Sabbath ; 
 for, while it is improper to prepare the Sabbath meal on the holy 
 day, there is no objection to the making of additions to a meal 
 already technically prepared. In addition, there is the simple 
 'crubh, the fictitious completion of an enclosure by extending a 
 pole or drawing a cord across the unfenced part of the boundary 
 of a street or court in order to make an enclosure of it and make 
 transportation on the Sabbath within it permissible. The origin 
 of 'Erubhm is not easy to trace. I am discussing them as fictions 
 of the pre-Mishnah cycle because they were firmly established in 
 the Mishnah and we know that the followers of Zadok and 
 Boethius, the Sadducees, fought against them 42 as Sabbath dese- 
 cration. Later Talmudic writers, however, ascribe to them even. 
 greater antiquity, connecting the creation of these fictions with 
 the name of King Solomon. It is not inconceivable that some 
 parts of the fiction date back to the literalistic period that pre- 
 ceded the great equity prophets. 43 
 
 I have drawn illustrations of the modification of law with- 
 out deviating from the letter, from the laws of human relations 
 (ben 'adham la-habhcro) and also from the religious law (ben 
 'adham la-wakom). Now I shall show how technicality was used 
 to mitigate the criminal law. The harshness of the criminal law 
 of the Hebrews has frequently been commented on by critics 
 and apologists. Here, as in English law, the humanity of the 
 judges caused them to indulge in technicalities. The Bible says : 
 
 " Mishnah, 'Erubhin, VI, 2. 
 
 "Cf. Isa. i 13; Jer. 17 21-27; Ezk. 20 12-24.
 
 "THE LAW" AND THE LAW OF CHANGE 27 
 
 "At the mouth of two witnesses or at the mouth of three wit- 
 nesses shall a matter be established." 44 This condition, say the 
 rabbis, is not fulfilled if the witnesses differ in their stories in 
 the smallest detail. Again, take the case of the "son, stubborn 
 and rebellious." The Bible condemned him to death. But the 
 rabbis stretched every point in his favor. On the basis of Bib- 
 lical verses they insisted upon numerous details that had nothing 
 to do with the culpability of the rebellious son. Thus : 45 
 
 ". . . he is not declared a son stubborn and rebellious until 
 both parents desire it. If one of them is broken-handed or lame or 
 dumb or blind or deaf he is not declared a son stubborn and rebel- 
 lious, as it is said 'Then shall his father and his mother lay hold on 
 him,' 4 * which is impossible if they be broken-handed ; 'and bring him 
 out,' which is impossible if they be lame ; 'and they shall say,' which 
 is impossible if they be dumb ; 'this, our son,' which is inapplicable 
 if they be blind ; 'he will not obey our voice,' which is inappropriate 
 if they be deaf." 
 
 In general, capital punishment even for murder was so 
 abhorrent to the rabbis that its infliction was to be prevented by 
 all legal means. A court that condemned more than one man in 
 seven years, or according to others seventy years, was deemed 
 "murderous." And two learned teachers, Tryphon and Akiba. 
 openly avowed that no one would ever have been condemned t< 
 death by a court had they been members. 47 
 
 Hillel, in whom we have found the tendency to develop the 
 law, did not stop with fictions. Though his teachers, Shemayah 
 and Abtalion, were glossators, 48 in him was realized the true 
 spirit of equity. There is a Talmudic story of a scoffer who asked 
 Hillel's contemporary, Shammai, to teach him the whole Torah 
 while standing on one foot. Shammai, the glossator, could only 
 express his indignation. Hillel, the commentator, could easily 
 extract the spirit from the letter and in a moment he summarized 
 the law : "Do not do unto others what you would not have them 
 do unto you." 49 Among the principles that this commentator 
 developed were his seven rules for the guidance of glossators. 
 
 44 Dt. 19 15; cf. ib. 17 6. 
 
 ** Mishnah, Sandhedrin, VIII, 4. 
 
 44 Dt. 21 19, 20. 
 
 41 Mishnah, Makkoth, I, 10 et passim; see 12 Jew. Encyc. 34 b. 
 
 41 "DarshOtrim" P^sahim, 70 b. 
 
 ** Shabbath, 31 a.
 
 28 "THE LAW" AND THE LAW OF CHANGE 
 
 It is, of course, not easy to summarize in a single sentence 
 all the differences between the Schools of Hillel and Shammai. 
 The strictness of the Shammaites is generally contrasted with 
 the leniency of the Hillelites. 50 One writer, 51 after rejecting 
 various proposed solutions, says: "In all laws enunciated by 
 these schools on the basis of the derashic method, the Shammaitic 
 school leans to a more literal interpretation of the Biblical texts 
 than does that of Hillel." In the few words of the founders of 
 these schools that have been preserved, it is not surprising to hear 
 Shammai urging us to "definiteness" in learning, and Hillel tell- 
 ing us to love people and bring them near to the Torah. And in 
 the ultimate acceptance of the views of the school of Hillel by 
 catholic Israel, we see the prevalence of equity over strict law. 
 
 Occasionally interpretation based pretty clearly on an ob- 
 served difference between theory and practice completely re- 
 verses a Biblical text. Take the lex talionis. The Bible says: 
 "Eye for eye, tooth for tooth." The Mishnah tells us that this 
 means damages, payable in money. 52 Undoubtedly it was so in- 
 terpreted, but the origin of the substitution seems to have been 
 the influence of the judge on the plaintiff. It is equity mitigating 
 the law. 
 
 Or take divorce. Biblical divorce law is one-sided. The 
 Mishnah adds to the Biblical restrictions certain others and miti- 
 gates the harshness of the divorce law by throwing technicalities 
 in the husband's way. The formalities in arranging, writing, 
 attesting and delivering the "get" (bill of divorcement) are made 
 so burdensome that rabbinic aid is absolutely needed. 53 It was 
 made the duty of the learned man consulted to do all in his power 
 to effect a reconciliation of the parties unless a sufficient ground 
 for divorce were found. And though the Bible gave the hus- 
 band the power to divorce his wife, and the wife no correspond- 
 ing power, the Mishnah provided that in certain cases the hus- 
 band could be compelled to write his wife a bill of divorcement. 
 
 It is idle to speculate as to what Jewish law would have been 
 had Jewish national life continued uninterrupted from without. 
 
 "3 Jew. Encyc. 115. 
 
 11 Auerbach, Obligationenrecht, p. 72. 
 
 u Cf. Babha' Kamma' 84 a. 
 
 " Cf. Kiddushin, 6 a.
 
 "THE LAW" AND THE LAW OF CHANGE 29 
 
 The destruction of the Temple, the removal of the Synhedrion 
 from Jerusalem to Jabneh and the taking up of the administra- 
 tion of the law without a government entailed new problems, 
 some of which were met, strange as it may seem, by legislation, 
 by pronouncements from those men who by general consent 
 were entitled to be heard. The chief problem, how to preserve 
 the law, could be met in the long run only by codification. Two 
 types of men were doing this work, types that were destined to 
 become more clearly differentiated as time went on: the law- 
 conservers and the law-improvers. Johanan ben Zakkai at this 
 time called one of his students a cemented cistern that loses not 
 a drop and another a spring that gets stronger and stronger as 
 it flows. The great law conservers were Simeon ben Gamaliel, 
 who laid the foundations for further building in Palestine, and 
 Eliezer ben Hyrcanus, who boasted that he never taught what he 
 had not heard from his teacher. The great law improvers were 
 Rabbi Eliezer, son of Arak; Akiba and Rabbi Meir. Rabbi Judah 
 the Prince, combined their traits. 
 
 So long as possible, codification and ossification were de- 
 layed by the wholesome instinct of the people. The recording of 
 halakhoth was understood to be forbidden. 54 But the danger ot 
 forgetting the oral Torah seems to have overcome the prejudice 
 and after several generations of formulation of the tradition in 
 succinct sentences by the schools, a kind of legislation, if you 
 please, there finally appeared the Mishnah, a redaction of several 
 private compilations by Rabbi Judah, the Prince. 
 
 C. The Gemara Cycle. 
 
 In the four centuries that intervene between the closing of 
 the Mishnah and the completion of the Gemara (g e mara r , mean- 
 ing either "teaching" or "completion"), the great annotation and 
 commentary to the Mishnah, two periods stand out: the period 
 of Palestinian supremacy and the period of Babylonian suprem- 
 acy. After the first generation of Amoraim ('amdra'lm, "dicta- 
 tors" the title of distinction in this period), Rab and Samuel and 
 Hanina bar Hama a very great glossatorial interpreter had 
 passed away, it seems that the two theories of juristic study that 
 
 14 Gitfln, 60 b ; cf. Temurah, 14 b.
 
 30 "THE LAW" AND THE LAW OF CHANGE 
 
 had co-existed in pre-Mishnaic days were contending for the 
 upper hand. I should call the one literalism and the other com- 
 mentation ; but the devotees of the two tendencies were soon nick- 
 named in a manner that shows that the tendencies were distinctly 
 felt: "Sinai," the Mountain of the Torah, and " 'Oker harim," 
 Uprooter of Mountains. By "Sinai" was meant the man with the 
 power of acquiring learning from his teacher and of transmitting 
 it. Such a man was only unconsciously or accidentally a law 
 improver. By "mountain-uprooter" was meant the man who 
 could do original. work, whose chief business it was to improve 
 the law. In Palestine there was a strong tendency to prefer the 
 Sinai perhaps because, after all, the great task that confronted 
 its school at the outset was the collection and codification of the 
 law and then its promulgation. 
 
 So long as the Palestinian school was supreme it was domi- 
 nated by the spirit of Rabbi Simeon ben Gamaliel, who had 
 fought valiantly for the theory that Sinai is better, 55 and his 
 method of study stifled the casual 'ok e re harim, the mountain 
 uprooters. Rabbi Meir felt out of harmony with his times, and 
 indeed he was a genius born a century too soon. Another of his 
 contemporaries is said to have milled much grain and to have 
 produced but little meal. In Babylon, however, the traditions 
 had always been freer. There the teachers had no such responsi- 
 bility as had been assumed in Palestine. Perhaps the reforming 
 tendencies of Hillel are not unconnected with his Babylonian 
 education. 56 At any rate, in the times of which we are now 
 speaking the differences between the Babylonian and Palestinian 
 schools had become remarkable. An instance or two will serve 
 as proof. Zeera, in the third generation of Gemara scholars, as 
 the story goes, on deciding to leave Babylon for Palestine, had 
 to evade his teacher (Rabbi Judah ben Ezekiel, the Sharp- 
 witted), and before starting determined to spend a hundred days 
 in fasting in order to forget the dialectic method of instruction 
 
 "HdrZydth, 14 a. 
 
 M An interesting story in this connection is recorded in the Palestinian 
 Talmud, P^sahlm, Chap VI. Hillel, some time after his arrival in Pales- 
 tine was asked a question. He gave a clear answer and argued all day to 
 prove his point, but he was laughed at. Finally, in despair, he cited his teach- 
 ers as authorities for his position. Thereupon, according to the rather sud- 
 den statement of the narrator, they made him president of the Synhedrion.
 
 "THE LAW" AND THE LAW OF CHANGE 31 
 
 of the Babylonian schools, that this might not handicap him in 
 Palestine. 57 In the same generation (in the early 300*5), we are 
 told, 58 a vacancy occurred at the head of the Babylonian school 
 of Pumpadita Pumpadita, where they try to pass the elephant 
 through the needle's eye in their dialectics. Two candidates 
 were being considered Rabbah bar Nahmani, greatest of the 
 Mountain Uprooters, 59 and Rabh Joseph bar Hiyya, a Sinai. 
 Messengers were sent to Palestine to ask which the Palestinians 
 recommended. Of course, they preferred the Sinai but out of 
 deference to Babylonian tendencies, no doubt, he retired in favor 
 of the 'Oker Harnn. From this time on we see the Babylonian 
 school wresting the supremacy from the Palestinians. Auerbach, 
 remarking on this strange phenomenon, shows 60 that we know 
 of no political or other external conditions capable of explaining 
 the downfall of the Palestinian school, and concludes: The one 
 inherent cause was the faulty method that had been prescribed 
 for the study of the law in Palestine for all time to come by 
 Rabbi Simeon ben Gamaliel. In other words, the Sinai now gives 
 way to the mountain uprooter, the word student to the student 
 of underlying principles; glossators are followed by commenta- 
 tors. 
 
 The next generation, that of Abaye and Raba bar Joseph, is 
 the greatest creative period of the Gemara in Babylon whereas 
 in Palestine the Gemara is beginning to close its career. It is a 
 period of growth by analogy, a period of formulation of princi- 
 ples, a period in which not the words of the Mishnah, but only 
 the contents are accredited with legal force in a word, a period 
 of equity. The dissertations of Abaye and Raba bar Joseph led to 
 many new decisions and rulings. With the exceptions of Rab 
 and Samuel, we have more disputations of these teachers and of 
 their immediate predecessors, Rabbah and Rab Joseph, than of 
 any other pairs. Theirs is the greatest period in the development 
 of the civil law. It would be interesting to examine their addi- 
 tions to the body of the law, but this study would take us too far 
 
 Bahb&' Metfd', 85 a. 
 At the end of Hdr&yoth. 
 BerHkhOth, 64 a. 
 P. 102.
 
 32 "THE LAW A\ J D THE LAW OF CHANGE 
 
 afield. A cursory examination suggests that the period witnesses 
 a progress from status to contract. 61 Thus bailees are classified 
 in accordance with the peculiar circumstances of the bailment to 
 a greater degree than had been done in the Mishnah. 62 In fact, 
 sub-classification on the basis of peculiar circumstances and 
 implied conditions may in general be considered the method of 
 the Babylonian schools at the height of their creative work. 
 
 After a generation or two of this work, the bulk of the law 
 becomes too great for human memory to carry and then Rabbi 
 Ashi (372-427) begins to reduce it to writing. His task is car- 
 ried on by Rabina (d. 500) and finally closed within another 
 century by men who are no longer "dictators," but mere "sug- 
 gesters (sabhoralm). Their work, the Gemara, was not a code 
 either in form or in its object. It was rather a digest of what 
 had gone before. It has generally been recognized in Jewry 
 that decisions cannot be based on the Gemara alone. It is full of 
 the material out of which laws can be formulated, but it stops 
 short of formulation. And yet it was a great step in the direction 
 of codification. By the adoption of certain rules as to whose view 
 shall govern in each class of cases, for practical purposes a digest 
 can be made to do the work of a code and such principles were 
 adopted by the successors of the "suggesters," the "excellencies" 
 or the Geonim (g e 'onim, plural of gaon). Q3 The geonim did 
 not hesitate to add to the substance of the law by a quasi-statu- 
 tory method. To make fictions on top of the Talmudic fictions 
 would surely have been "to eat bread with bread." Consequently 
 where changes were demanding attention in this epoch legislation 
 was needed and used. Takkanoth and g e zeroth and her ems in 
 a word, statutes, were promulgated in these times. The best 
 known, though perhaps not the best authenticated, were those 
 
 * Is not this kind of progress a mark of commentatorial periods rather 
 than a continuous factor in the history of law? Cf. Pollock's Note L, to 
 chapter 5 of Maine's Ancient Law, where reference is made to "the reaction 
 against this doctrine which we are now witnessing." The phrase "any pro- 
 vision in any contract to the contrary notwithstanding" is becoming quite 
 
 n Bahba' Metfa', 94 b ; Bahba' Kamma', 56 b. 
 
 ** In adopting these rules they followed the precedent of the Gemara 
 itself in dealing with undecided disputes in the Mishnah.
 
 "THE LAW" AND THE LAW OF CHANGE 33 
 
 popularly attributed to one who was not himself a gaon, Rabbenu 
 Gershom, about the year 1000, prohibiting polygamy and regu- 
 lating divorce. But under the Geonim gradually, almost imper- 
 ceptibly, the feeling spread among the Jews of the world that 
 their law was completed, crystallized, or, in the word that I have 
 here adopted, codified. 
 
 D. The Post-Talmudic Cycle. 
 
 The Geonim were to the Talmud what the Scribes had been 
 to the Bible. They closed it. They legislated or made a hedge 
 around it. They made it a code for the people and closed a cycle 
 in the evolution of Jewish law but they also began a new cycle by 
 their undertaking of the work of interpreting the Talmud. They 
 were near in time and in spirit to the last of the makers of the 
 Talmud. They spoke the same language, lived in the same coun- 
 try, taught in the same schools. Consequently who could speak 
 with greater authority than they on doubtful questions as to the 
 meaning of the latest codification? Several of the Geonim de- 
 voted their attention to the exposition of special parts of the law. 
 One, Zemah ben Paltoi (ca. 872) composed a lexicon. Sherira 
 Gaon, whose letter on Jewish tradition we have already men- 
 tioned, wrote annotations to explain many difficult terms. Other 
 manifestations of a period of strict law are also apparent. There 
 is even a revolt against the entire traditional law. It is that of 
 the Karaites, bearing a marked resemblance to the reaction of 
 the Sadducees of the next preceding glossatorial period. 64 The 
 typical handbook for such a period, the "abridgement," appears 
 in Alfasi's work (1013-1103), popularly called the Little Tal- 
 mud. 65 The approach of a period of principle study is foreshad- 
 owed by the appearance of a summa, the famous Mishneh Torah 
 of Maimonides. This great philosopher, though seeking princi- 
 
 ** Another type of reaction that frequently follows glossation, is mysti- 
 cism. Corresponding to the Essenes and Judeo-Christians of an ealier day 
 and the Hasidim of later times, we find the Kabbalists developing their 
 theories at the close of the Gaonic period. 
 
 " The Halakhoth Gedholoth of this period were the results of an attempt 
 to rearrange the material in the Talmud for practical purposes.
 
 34 "THE LAW" AND THE LAW OF CHANGE 
 
 pies, was not far from the glossator in spirit, nor above the mak- 
 ing of fictions. Thus he says : There are things resembling usury 
 that are allowed, e. g., a man may buy at a discount bonds 
 belonging to his neighbor; a man may give his neighbor a dena- 
 rius, on condition that he lends 100 denarii to a third person; A 
 may give B a denarius to induce C to lend him (A) 100 denarii. 86 
 This is hardly the spirit of those commentators from whom he 
 had learned to condemn, though not always to prohibit, the "dust 
 of usury" and the "appearance of usury." 67 
 
 All the purely glossatorial work of this period was sum- 
 marized and superseded by that of Rashi. Rashi (1040-1105) is 
 the Accursius of the Jews his is the last word on the possibility 
 of the method of the glossators but his grasp of all parts of 
 the Torah at once is so great that he rises to the height of a com- 
 mentator in spite of his purely glossatorial form. He is immedi- 
 ately followed by a school of men whom we may well call com- 
 mentators in the technical sense. 
 
 The Tosaphists of the twelfth and thirteenth centuries have 
 been compared to the writers of Dissensiones to the Roman code 
 during the first quarter of the twelfth century C8 The very word 
 Tosaphoth (though its particular application is doubtful) sug- 
 gests additions rather than mere explanations. The method of 
 the Tosaphists is to select points and deal with all of their ramifi- 
 cations in little essays, rather than to give a continuous explana- 
 tion of the legal text before them. Rashi's own son-in-law and 
 grandsons were the first of the Tosaphists. 69 
 
 It is a mistake to suppose that the work of the glossators 
 and commentators was purely academic. Jewish law was con- 
 stantly being applied to life and still is and being developed 
 by pos e kim, whose decisions and responses have added a great 
 deal to the bulk of the law. Of course, they adhered as closely as 
 possible to the letter of the transmitted law but as time went 
 
 "Mishnah Torah, Book XIII, Malweh, Chap. V, Sec. 14. 
 '/&. Sec. 15. 
 ** 12 Jew. En eye., p. 202. 
 
 * In the printed editions of the Babylonian Talmud Rashi and the 
 Tosaphoth are arranged as a framework around the text of each page.
 
 "THE LAW :> AND THE LAW OF CHANGE 35 
 
 on and the occupations, locations and conditions of the bulk of 
 the Jews were completely changed, they had to use a good deal 
 of common sense in drawing analogies from the received law. 
 Where judges are forced to use their common sense in this way 
 equity flourishes. The fact that Jews were living under widely 
 different conditions in different countries led to the development 
 of local minhdghlm (customs), 70 just as national elements were 
 to be mingled with the catholic elements of Roman law in the 
 period that I have called an equity period. It was only a ques- 
 tion of time till dissatisfaction would arise in some systematic 
 minds over the indefiniteness of this condition. Indeed, quite 
 within the days of the Tosaphists were heard rumblings of the 
 discontent. Perhaps for the embodiment of this we should look 
 to Asher ben Yehiel, and to his son Jacob. Jacob ben Asher (d. 
 1340) drew the plans and laid the foundation for the next code 
 but liis works, the Tiinm, are not the great code, they are only a 
 digest a digest, it is true, which takes cognizance of much new 
 matter but not all of it by any means, for new matter was being 
 rapidly produced even while Jacob was compiling what he had 
 before him. In course of time this new matter led to the making 
 of a digest that was to become a code the Shulhan 'Arukh 
 (Prepared Table). In one sense this famous work of Karo 
 (1488-1575) is nothing but a revision of the Tiirlm. But in 
 another sense it is a code in which the lacunae of the older digest 
 are filled in by a peculiar substitute for legislation, 71 a substitute 
 that had been twice resorted to in the history of Roman law the 
 counting of hands among highly respected writers of the past. 
 Karo gives a vote each to Maimonides, Alfasi and Jacob ben 
 Asher on all doubtful matters and objectively records the results. 
 It is significant that even this objective method did not please tha 
 German and Polish Jews. It failed to take cognizance of the 
 
 It is of course beyond the scope of the present study to investigate the 
 sources of particular legal ideas, for example suggestions borrowed from 
 other systems of law. It is hoped, however, that an understanding of the 
 inner continuity of Jewish law will be helpful in the study of external in- 
 fluences. 
 
 "For true legislation in the period see article on Takkanah, in n Jew. 
 Encyc., p. 669.
 
 36 "THE LAW" AND THE LAW OF CHANGE 
 
 customs, the decisions and the writings that had become a part of 
 their law. So Rabbi Moses Isserles, a younger contemporary of 
 Karo, proceeded to revise his work for the benefit of the northern 
 Jews. He modestly characterized his contribution as a cloth for 
 the table that Karo had prepared. But this table covered with 
 the cloth perhaps concealed by it soon was recognized by cath- 
 olic Israel as its code. 
 
 E. The Present Cycle. 
 
 The definiteness which now marked the law of the Jews once 
 more turned the attention of its practitioners and teachers to 
 glossation. Not only were three great annotations produced 
 within a century, those popularly known as the Bah, 72 the Taz, T:J 
 and the Shakh, 74 but also the whole spirit of Jewish scholarship 
 became the technical spirit of glossation. The tool that scholars 
 were to use for nearly three centuries was by a strange coinci- 
 dence fashioned almost simultaneously with the Shulhan 'Arukli 
 itself. I refer to the pilpul. Rabbi Jacob Pollak (d. 1541) and 
 particularly his pupil, Shalom Shakna ben Joseph (1510-1558), 
 father-in-law and teacher of Rabbi Moses Isserles (1520-1572), 
 are credited with the invention of the hair-splitting methods of 
 the modern pilpul. The word, which means "pepper," might 
 suggest a sharpening of wits of the kind that we have found 
 among the mountain-uprooters of old, who were also pilpulists 
 in their way. But unfortunately these modern pilpulists did not 
 address themselves to big principles. They did work out a few 
 petty fictions to adapt the law to their life, notably the fictitious 
 sale of unleavened bread on the Passover and the fiction by which 
 a rabbi can be paid. Legally a rabbi should receive no pay for 
 his services, but by the fiction he has some other means of sup- 
 port and is supposed to be paid for time taken from his regular 
 
 "Bayith Hadhash, 1640. 
 " Tare Zahabh, 1646. 
 
 T4 Siph e the Kohen, 1646. Two abridgements have in the last century 
 achieved as wide circulation, those of Abraham Danzig and of Solomon Ganz- 
 fried. The work of the former is almost a summa; that of the latter rather 
 a text-book.
 
 "THE LAW" AND THE LAW OF CHANGE 37 
 
 work for the needs of the community. But in general the teach- 
 ings of the pilpulists we can still hear echoes of them were 
 clever, wonderfully clever, disputations, rich in words, woefully 
 poor in principles. Clever for cleverness' sake. Whatever good 
 there had been in the method in the beginning, it had. long been 
 over-ripe and rotten in the eighteenth century, when newer 
 growths began to crowd for its place. 
 
 The reactions against the modern Scribes have been differ- 
 ent in different parts of the world. The Reform in Germany and 
 Hasidhism'in southern Russia, different as they are in externals, 
 arc alike protests against exaltation of the letter; and finally 
 a third movement opposed to both of these is also a mark of the 
 progress from the glossatorial to the commentatorial stage, from 
 the stage where growth is by fiction to the stage where growth is 
 by equity. Rabbi Elijah of Wilna was opposed to the pilpul 
 and substituted a method of teaching that looked to the sense 
 rather than the words. I quote Mr. J. D. Eisenstein : 75 
 
 "The Reform movement on the one side and the ensnaring 
 hasidic tendencies on the other caused the pupils of the Wilna Gaon 
 to deliberate how they might preserve the true Jewish learning and 
 perpetuate the method and style of study inaugurated by the Gaon, 
 who was rather opposed to the pilpul and hillukim [disquisitions] 
 as practiced in the Yeshibot of Poland. With this aim Rabbi Hay- 
 yim the chief disciple of the Gaon, organized in 1803 the celebrated 
 Yeshibah [Rabbinic school] at Volozhin." 
 
 The significance of Elijah ben Solomon, the "gaon" of 
 Wilna, is just coming to be understood. Never having studied 
 at any Y e sliibhdth, never prejudiced by the perverted methods of 
 study then in vogue, he escaped casuistry. His pupils had to pur- 
 sue the same plain and simple methods of study that he followed. 
 Though he himself founded no school, his lessons were gradu- 
 ally learned by the Jews of the world. Volozhin became the 
 model of the Y e shibhoth of Poland and surrounding countries, 
 of Palestine and of America. One or two instances of the mod- 
 ernizing tendencies of these Y e shibhoth may be interesting. The 
 Y e shibhah of the late Rabbi Reines of Lida included modern 
 
 " 12 Jew. Encyc. 598, s. v. "Yeshibah."
 
 38 "THE LAW" AND THE LAW OF CHANGE 
 
 subjects in its curriculum, as does Y e shibhath Rabbi Isaac Elha- 
 nan, of New York. Meanwhile, the neo-orthodoxy of western 
 Europe and America has been occupied with a restatement of its 
 whole position, in which equity surely predominates over pilpul. 
 Even Rabbi Isaac Elhanan Spektor, the late leader of modern 
 Russo-Polish orthodoxy and a supporter of the Volozhin Yeshi- 
 bhah, joined hands with the movement in the West, when he 
 urged Samson Raphael Hirsch, the father of neo-orthodoxy, to 
 write his "Uber die Bcsiehung des Talmuds zum Judenthum." 
 
 To go further would be to tread the halls of living men or 
 even to pierce the veil of the future. I shall do neither. Even 
 if it were possible, it would be irreverent to gaze with too curious 
 an eye upon the mystery of the continuity of Jewish life through 
 the adverse ages or upon the related mystery of the continuity 
 of any people's law as an expression of its own national life and 
 
 aspirations. 
 
 Nathan Isaacs. 
 
 Cincinnati Law School.
 
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