Love and Law: The Dialogical Nature of Talmudic Legal Narrative
In his landmark essay Nomos and Narrative Robert Cover argues that law should
not be conceived as a system of rules and interpretations or a set of institutions.1 Rather,
law is better conceived as a normative world, or nomos, in which legal rules and
institutions interact with other cultural forces in the production of legal meaning. This
paper utilizes Cover’s reconceptualization of the law in treating a genre of talmudic legal
writing, the legal narrative. The first section of this paper creates a theoretical dialogue
between Cover’s idea of a nomos and Mikhail Bakhtin’s preference for all things
dialogical. Bakhtin’s theoretical frame—the distinction between monological and
dialogical modes of writing—provides insight into the special character of legal
narratives and into the misinterpretation such narratives undergo within the institution of
Jewish Law, even within the Talmud itself. The second section of this paper applies the
theoretical frame established in the first section to one talmudic legal narrative found in
the Babylonian Talmud at Sanhedrin 75a.
The section of Cover’s Nomos and Narrative entitled “The Thickness of Legal
Meaning” utilizes a set of biblical texts to illustrate the extent to which legal rules do not
fully constitute the nomos.2 While Deuteronomy 21:15 insists that an eldest son must
inherit the double portion even if a younger child is more beloved, the various narratives
of Genesis repeatedly witness the selection of a younger sibling over the older. Cover
argues that the repeated narrative subversion of the legal statute does not reject the law;
in fact, the narratives draw dramatic energy precisely from the force of the law’s
expectation. Rather, the undoing of the practice demanded by the law in specific cases
Robert Cover, “nomos and Narrative” in Cover, et. al, Narrative, Violence and the Law, (Ann Arbor:
Michigan, 1993), pp. 95-172.
2
ibid., 113-120.
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illustrates the extent to which all legal statutes have boundaries in a normative world and
that other cultural forces have the ability to determine normative practice against those
statutes. By Cover’s reading, there are political, psychological and philosophical forces
that drive the events of the Genesis narratives.
My own work follows Cover’s biblical paradigm by juxtaposing talmudic legal
narratives with non-narrative talmudic legal texts. In my work on legal narratives in the
Babylonian Talmud, I argue that talmudic legal narratives embrace the reality of the
nomos where other non-narrative legal texts resist the notion of a nomos and insist on an
image of law as a flat discourse of rules and interpretations.
The distinction I make between legal narratives and non-narrative legal texts
draws energy from the work of the Russian literary theorist, Mikhail Bakhtin. In one of
his earliest writings, “Problems of Dostoyevsky’s Poetics,” Bakhtin credits Fyodor
Dostoyevsky with the invention of the polyphonic novel.3 The polyphonic novel is
distinguished from its predecessors by Dostoyevksy’s ability to withdraw from the voices
of individual characters and allow these characters to, in Bakhtin’s terms, inhabit
differing “consciousnesses.” By allowing these different consciousnesses to speak, the
novelist employs what Bakhtin calls “heteroglossia”—a simultaneous speaking in
multiple languages. The result of this authorial withdrawal and heteroglossia is that ideas
emerge from Dostoyevsky’s novels formed in the crucible of real interaction, where
Dostoyevsky’s own perspective is always in danger of giving way to those of his
characters and vice versa. Bakhtin suggests that an idea can only be considered real when
Mikhail Bakhtin, Problems of Dostoyevsky’s Poetics, tr. Caryl Emerson, (Minneapolis: University of
Minnesota, 1984) 8-16.
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it has entered into a dialogue with other ideas, when it is dialogical. In Problems of
Dostoyevsky’s Poetics, Bakhtin writes:
“The idea begins to live, that is, to take shape, to develop,
to find and renew its verbal expression, to give birth to new
ideas, only when it enters into genuine dialogic
relationships with other ideas, with the ideas of others.
Human thought “becomes genuine thought, that is, an idea,
only under conditions of living contact with another and
alien thought, a thought embodied in someone else’s voice,
that is, in someone else’s consciousness expressed in
discourse. At that point of contact between voiceconsciousnesses the idea is born and lives.” 4
Over the course of his lifetime, Bakhtin continued to develop his notion of the
dialogical, and by the time he wrote his essay “Discourse in the Novel” Bakhtin had
decided that the dialogical nature of ideas was not Dostoyevsky’s invention, but was a
fundamental feature of language and of life.5 Human interactions are always
overdetermined, partaking simultaneously in the multiple discourses of psychology,
sociology, economics, philosophy, theology, science, and the list could go on. Similarly,
linguistic meaning is always on a broad level negotiated through these various discourses.
In light of this new realization, “Discourse in the Novel” recalibrates the distinction
between monological and dialogical meaning as a stylistic distinction between the Poet
and the Prosewriter. The poet works within a strict genre of writing—poetry—and
imposes a monological frame on the dialogical reality of language and life in an attempt
to totally subsume language and life to its project—to control all unitary meaning. The
prose writer, by contrast, does not impose a strong monological frame on dialogical
language, but allows that language to flourish and construct meaning dialogically.
4
Problems, 88.
Mikhail Bakhtin, The Dialogic Imagination, tr. Caryl Emerson and Michael Holquist, (Austin: University
of Texas, 1981), 259-422.
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I map Bakhtin’s distinction between monological and dialogical modes of writing
onto talmudic literature in two ways. First, with respect to the building blocks of talmudic
legal discussions, I distinguish between the attributed statements of law and the
dialectical arguments between differing rabbis on the one hand, and legal narratives on
the other hand. The non-narrative legal texts of the Talmud work within a strong legal
genre of writing which like Poetry attempts to create meaning entirely within one
language—the language of law. Because life and language are inherently dialogical, the
writing of such law is always a metonymy for life and language, with considerable
variance between the heteroglossia of lived life and the unitary language of law. But legal
narratives as prose narratives do not similarly limit life’s natural heteroglossia. They
empower discourses outside of the legal rules and describe scenarios in which the rules
are trumped by those other discourses much like they are in the legal narratives of the
book of Genesis.
The second way I apply Bakhtin’s distinction is in treating the reception that legal
narratives receive within the history of Jewish law. While the narratives themselves are
dialogical, empowering multiple languages in the development of their idea, the frame in
which they are read is more often than not a monological frame that wants to turn these
legal narratives into viable legal precedent by limiting their dialogical qualities and in
effect rewriting them as statutes. This process of transforming legal narratives into
monological legal texts that work within the system of legal rules begins already in the
Talmud itself. The Talmud is a unique work of literature that broadcasts its own layered
construction in which tannaitic texts are interpreted by Amoraim and amoraic materials
are interpreted by the Talmud’s anonymous editorial voice, often referred to as the Stam.
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It is my contention that the Stam is a reader who imposes a strong monologizing frame
upon the earlier sources recorded in the Talmud. While this imposition certainly has
ramifications for non-narrative texts, it is within the interpretation of talmudic legal
narrative that the Stam’s efforts are akin to forcing a square peg into a round hole.
I will illustrate both the inherently dialogical nature of talmudic legal narrative
and the clash between such narratives and the Stam by utilizing an example from
Sanhedrin 75a.
R. Yehudah said in the name of Rav
[There is] a story of a man who placed his eyes on a
woman and his heart filled with black bile.
And they came and asked the doctors,
and [the doctors] said “he has no treatment unless she has
intercourse [with him].”
The sages said, “Let him die, but she will not have
intercourse with him.”
[the doctors said] “She should stand before him naked,”
[the sages said] “Let him die, but she will not stand before
him naked.”
[the doctors said] “She should converse with him from
behind a barrier,”
[the sages said] “Let him die, but she will not converse with
him from behind a barrier.”
The story is a dialogical one both on the level of its plot and on the level of its
underlying poetics. The plot is undeniably dialogical in the sense that it contains a
dialogue between two voices or consciousnesses—the voice of the rabbis and the voice of
the doctors. Though the story ultimately favors the rabbis, it enables the reader to
recognize a clash here between two social practices—the practice of medicine for which
the man’s bodily survival is paramount and the practice of rabbinic law for which the
soul is of utmost importance.
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But there are other ways in which the story is dialogical. It is dialogical within the
law itself, since there is a conflict in law between saving a life and adhering to the
prohibitions. Furthermore, there is a gendered power structure within the story that
conceives of the rabbis and doctors as patriarchal controllers of the anonymous woman’s
sexuality with the power to permit her to the anonymous man. In fact, there are so many
issues within the story, that the hortatory rabbinic refrain “Let him die” hardly seems
worthy of the weightiness of the dilemma.
A linguistic clue suggests that we approach this story from the perspective of
Greco-Roman culture. The word that describes the man’s lovesickness—‫—טינא‬is
ordinarily translated as clay and in this usage the phrase is taken as a metaphor meaning
that the man’s heart was heavy. This word ‫טינא‬, though, is synonymous with the Hebrew
word ‫ טיט‬or pitch, and can refer to a black tar. As such, the usage here need not be
metaphorical, but physiological. According to the humoral theory of medicine regnant in
the Greco-Roman world, love sickness was the result of an excess of black bile on the
heart or μελαϊνα χολή (the basis for our term melancholia). The text diagnoses the dying
man with the Greco-Roman physiological malady known as lovesickness.
The tale type of the clash between spiritual and physical advisors over the dying
body of a lovesick person was a trope of Greco-Roman narratives. Mary Wack highlights
the dialogical qualities of the trope:
The disease of love, which afflicts both the body and the
spirit of a patient caught in a matrix of social and ethical
relationships, lay in a cultural zone intersected by the
discourses of medicine, literature, natural philosophy,
mysticism, pastoral theology and didactic literature….In this
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site of contestation priest and physician vied for professional
territory.... 6
Bakhtin argued that languages, like ideas, only come into being through the kinds
of intersection enabled by these stories. In “Discourse in the Novel” Bakhtin writes:
Languages in heteroglossia, like mirrors that face each
other, each reflecting in its own way a piece, a tiny corner
of the world, force us to guess at and grasp for a world
behind their mutually reflecting aspects that is broader,
more multi-leveled, containing more and varied horizons
than would be available to a single language or a single
mirror.7
But the rabbis of the Talmud are not interested in Bakhtin’s dialogical insight.
They each look to this legal narrative as an instance of legal precedent, and are troubled
by the way the dialogical narrative does not fit within the monological precedential
framework of legal rules.
Jewish law famously requires martyrdom of its practitioners for three and only
three cardinal sins. The clearest iteration of this principle is cited by the Talmud within
the same talmudic discussion only two pages earlier at Sanhedrin 74a:
R. Yohanan said in the name of R. Shimon ben Yehozadaq:
They counted up and concluded in the attic of Beit Nitzeh
in [the city of] Lod: “All biblical sins, if they say to a man,
“Violate and you will not be killed,” he should violate and
not be killed, except for idolatry, illicit sex and murder.”
Because of the premium placed on Jewish life in rabbinic law, there are only three
cardinal sins—murder, idolatry and illicit sex—for which one is required to choose
bodily death in order to save one’s immortal soul. While our story is about illicit sex, the
sexual encounter it describes does not meet the legal definition of a sex act that would
6
Mary Frances Wack, Lovesickness in the Middle Ages, (Philadelphia: University of Pennsylvania Press,
1990), 7.
7
Bakhtin, Dialogic, 414.
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require death. For starters, only a sex act that is biblically forbidden—sex with an
immediate relative, homosexual sex, or sex between a man and a married woman—
constitutes the cardinal sin of illicit sex. If the female protagonist of our story is
unmarried, as it would seem, the prohibition on the sexual relationship between the
putative lovers is rabbinic, at best, and therefore does not mandate death. Furthermore,
the legal discourse regarding the cardinal sin of illicit sex contains no other texts which
extend the definition of such an act from its primary definition—intercourse. Rabbinic
legal discussions are not shy about vivid, graphic discussions that define sexual
intercourse in a specific unequivocal manner. But our story extends the cardinal sin to
include various sexual encounters—his gazing at her or hearing her voice—that fall far
short of intercourse. In short, then, our story is substantively at odds with legal precedent
both because its two primary actors are not biblically prohibited to each other, and
because the sex acts prescribed as cures do not qualify as acts that justify martyrdom.
The Talmud follows its citation of the story with the positions of various rabbis
who struggled with the problematic relationship between the story and legal precedent.
By my reading, these rabbis and the Stam who is responsible for arranging their positions
and commenting upon them attempt to turn the dialogical narrative into monological law.
The first set of rabbis debate whether the story’s female protagonist was married.
One of the rabbis marries off this character because that at least makes the putative
relationship between the lovers a cardinal sin, even if the sexual interactions proposed as
cures do not meet the threshold of martyrdom. The other rabbi does not marry her off,
presumably because such an important legal fact would have been mentioned in the story.
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The Stam follows this debate by questioning the rabbi who asserted that the
woman was unmarried; if she is unmarried, it is once again difficult to make the story
cohere with legal precedent. The Talmud now cites two later rabbis who argue that the
rabbis require the man’s death for social reasons—one because of the shame that would
attach to the woman’s family over her participation, and the other in order not to send the
message that Jewish girls can be prostituted in this manner.
While at first glance it appears that both of these positions dialogically empower
forces outside the legal rules—the forces of family shame and patriarchy, respectively—I
argue that these outside forces are coopted as exceptional precedents that are incorporated
into the language of legal precedent. Bakhtin notices the same phenomena with respect to
poetry. In “Discourse and the Novel” he writes:
Nevertheless, heteroglossia (other socio-ideological
languages) can be introduced into purely poetic genres,
primarily in the speeches of characters. But in such a
context it is objective. It appears, in essence, as a thing, it
does not lie on the same plane with the real language of the
work: it is the depicted gesture of one of the characters and
does not appear as an aspect of the word doing the
depicting. Elements of heteroglossia enter here not in the
capacity of another language carrying its own particular
points of view, about which one can say things not
expressible in one’s own language, but rather in the
capacity of a depicted thing. Even when speaking of alien
things, the poet speaks in his own language. To shed light
on an alien world, he ever resorts to an alien language, even
though it might in fact be more adequate to that world. 8
After reviewing a technical solution to the problem (she is married) and then
expanding the reach of the law (through social means), the Stam now asks after the
seeming callousness of the rabbis: even if one grants that the sexual cures are illicit, why
8
Bakthin, The Dialogic Imagination, 287.
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do the rabbis not suggest a legal relationship—that the couple marry? The Stam answers
its own question by citing a statement from R. Yizhaq.
That would not settle his mind because of R. Yizhaq.
For R. Yizhaq said from the day of the destruction of the
temple the flavor of intercourse was taken and given to
sinners as it is written, “Stolen waters will be sweet and
hidden breads will be pleasant.”
With this answer, the Stam finally submits to the story’s dialogical nature and
provides a response that dialogically solves the problem. The reason the man must die is
not legal but psychological. The rabbis cannot provide the dying man with his solution
because their sanction removes the very nectar of his antidote—it is outside the domain
of legal rules. His cure does not require the physical sex act, but sexual pleasure that R.
Yizhaq claims is only available in sin. The rabbis are powerless because the law by
definition can never sanction sin and it is the very illegality of the act that constitutes its
palliative property. This answer constructs a dialogical nomos in which the languages of
psychology and law intersect as irreconcilable forces, creating a paradox that renders the
rabbis powerless—if they help the man, the act would be legal and have no effect, while
if they stand by and do nothing, the same result transpires. Space does not permit a
thorough critique of the Stam’s answer and the way it misses the point of the story’s
poetics, mistaking a story about rabbinic power for a tale of powerlessness.
Robert Cover derived his notion of the nomos from Jewish legal texts, and Cover
has been critiqued for idealizing Jewish Law as a nomos.9 As my reading of this story
demonstrates, there is certainly a monologizing force that constructs Jewish Law as a
positivist legal system. But there are also other texts—legal narratives among them—that
Suzanne Last Stone, “In Pursuit of the Countertext: The Turn to the Jewish Legal Model in Contemporary
American Legal Theory.” Harvard Law Review 106 (February 1993): 813-894.
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embrace the notion of a nomos. In short, there is a dialogue within Jewish Law between
those texts that construct law monologically and those that, in seeing law as a metonymy
for life, resist the impulse to impose strong limits on the dialogical essence of life.
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