Though it’s a bit over oversimplified, many folks often characterize our tradition as “legalistic.” As a Talmud-lover, I get it. Throughout my years of learning and teaching Talmud, I’ve fallen in love with the intricacies of the gemara, and how the Rabbis—and therefore we, too—create worlds through legal thinking. But for as long as I’ve been loving Talmud, I’ve struggled with the “legalism” of our tradition. Weeks, months, and years like the ones we’ve been living through demonstrate why it’s hard for me to trust anything that identifies itself as a legal project: moments like the Supreme Court’s overturning of Roe v. Wade and ruling in Oklahoma v. Castro-Huerta, the rise in anti-trans legislation this year, the brutal existence of our mass incarceration system, the legal permissions given to non-disabled folks so that they might cling to a sense of “normal” while the pandemic endures. Over and over, something happens that makes me feel powerless before the magnitude of the legal system.
“Legality” is complex, and lately I’ve been especially feeling its tyranny. This past week highlighted the daily oppressive force of law itself. Folks who have been attentive to what Benay calls “the crumble before the CRASH”—the folks who are the most harmed by the meta story we’re living in—have known for a long time about the need to prophetically build alternatives that will enable us to live justly beyond the American legal system. Dean Spade has argued for decades that there are significant and oppressive limitations to legal systems and structures, particularly as they relate to queer and trans liberation movements. He teaches that “in the face of significant resistance to conditions of subjection, law reform tends to provide just enough transformation to stabilize and preserve status quo conditions.” 1 Legal reform rarely shifts material conditions, Spade argues, and our intersectional movements for justice should take note. And that’s about adding rights! This critique doesn’t even address the issue of taking away rights, which is the newly (or perhaps differently) emboldened era of the American white Christian Empire that we find ourselves in right now.
But if I struggle so much with law, how can I be so in love with the Talmud? What’s the purpose of spending my days learning and teaching what so many think of as the “Big Book of Jewish Law?”
The more I learn, the more I believe that halakha—Jewish practice and its surrounding discourse, rooted in the Talmud—can’t possibly be understood in the same way people think about “law” in the United States. A few years ago, Rachel Rafael Neis wrote about this genre mis-match, and attempted to disentangle “halakha” from “law” as it’s conventionally understood in a Euro-American context— as being connected to a state. Halakha is not state-backed law. If when we say “law” we mean a state-backed legal system, we need a new way to explain halakha.2
Chaim Saiman also writes about the misunderstandings that can happen when we read “halakha” as “law”:
“…the modern ear hears the term ‘law’ and assumes halakhah is the Jewish version of American law, German law, or Uruguayan law: that is, a legal system established by an independent state with the authority to make and enforce its rules within the relevant territory. Halakhah, however, has not generally functioned in a specific country; it is the law of a people, not of a place, which operates outside of (and at cross-purposes with) the power structures of the state or principality where Jews have resided.”3
Halakha is about governance—about creating practices and norms that help us ground ourselves into community with accountability. But it is not about government, and, in fact, it presents itself as a system that helps us resist and transcend government regulation, operating “at cross-purposes” with existing legal institutions.
Two weeks ago marked the anniversary of the Paris Disputation, in which Louis IX and Pope Gregory IX brought a legal claim against the Talmud, attempting to convict the Talmud on 35 counts of blasphemy against Christianity (it’s worth noting that Christianity wasn’t simply a “religion,” but was the ordaining structure of the imperial state). They won their case, and their legal victory led to one of the largest known book burnings in recorded history. Over 10,000 volumes of handwritten Talmud manuscripts were burned. This devastating act took place at the hands of political leaders who used the law to destroy and subjugate the Talmud as a symbol of Jewish practice, community, and peoplehood. They used “law,” a fictitious enterprise, to enforce the norms of a select imperial minority.
But, in the end, the Talmud survives. The French monarchy surely didn’t. The Talmud, too, is a survivor of state persecution and is therefore a site of legal resistance. It is in this spirit of resistance to state rule that the Talmud embodies Jewish legal thinking and enables us to define what is good and what is just and what is, in this much larger sense, legal. And through it—like any communitarian network of mutual accountability and cooperation, for that matter—we can create new structures that resist state control and regulation.
Folks embodying transformative approaches to justice, like those attempting to bring abolitionist principles into their relationships and communities, have been forging this path for decades. Our work now is to follow them and to find within our tradition the grounding, the inspiration, and the truth that our history is one of mutual aid networks, of self-governance beyond state institutions.
Empires are designed to subjugate us. And as they do so, it is our job to stay grounded in the knowledge that the queer project of the Rabbis has always been one of resistance and refusal to relegate our autonomy to the whims of imperial rule. It’s for this reason that learning Talmud with y’all in these past weeks and months has offered me a window into feeling powerful when I am feeling powerless. When we learn, when we commit ourselves to maintaining networks of care and accountability in our communities and of our spiritual tradition, when we act in a way that operates “outside of” and “at cross-purposes with” the state, we refuse to concede our agency, and our ability to create together the material conditions that we need. May we find in halakha the inspiration we need to be ungovernable, to nurture our autonomy, and to create the systems that we need to care for ourselves and new, more liberatory worlds.
1 Dean Spade, “Intersectional Resistance and Law Reform,” Signs, Vol. 38, No. 4, Intersectionality: Theorizing Power, Empowering Theory (Summer 2013), pp. 1031-1055
2 Rachel Rafael Neis, “The Seduction of Law: Rethinking Legal Studies in Jewish Studies.” Jewish Quarterly Review 109.1 (2019): 119-138
3 Chaim N. Saiman, “Halakhah: The Rabbinic Idea of Law.” Princeton: Princeton University Press, 2018.