The rhetoric of obligation and prohibition in the Mishnah

• In Event: Rabbinic Pieties

Abstract

Islamic legal jurisprudence (fikh) classifies actions into five categories. On the one hand (1) some actions are required or obligatory (fard, wadjib); one who performs them is rewarded by God and one who fails to perform them is punished by God. On the other hand (2) some actions are prohibited (haram); their performance incurs punishment. In between the obligatory and the prohibited are three sorts of actions: (3) some actions are not obligatory, hence not punished if omitted, but are nonetheless meritorious (mandub), proper, and customary (sunna), hence rewarded; (4) some actions are not prohibited, hence not punished if performed, but are nonetheless improper or reprehensible (makruh). In the middle are (5) actions which are morally neutral or indifferent (mubah), whose performance or omission yields neither guilt nor reward. In sum, the Islamic system contains not only the binary categories of “must” (1) and “must not” (2), but also the interstitial categories of “should” (3) and “should not” (4).
In contrast the legislative system of the Torah, and of works written in the style of the Torah (e.g. the Qumran Temple Scroll), is overwhelmingly binary: “thou shalt” and “thou shalt not.” Even when the Torah speaks casuistically (“if such and such is the case, then the law is so and so”), its binary character is evident. The Torah’s legislation, and as far as I can see the legislation of the Qumran scrolls, does not know “should” and “should not.” An action is either required or not, prohibited or not; the system is binary, there are no interstitial categories.
Scholars have long noted that the Mishnah’s legal rhetoric is completely different from that of the Torah. The Mishnah never commands; it never speaks in the imperative. “Thou shalt” and “thou shalt not” do not appear anywhere in the Mishnah. Even constructions such as “a person is obligated (hayyav or tsarikh) to do x” or “a person is prohibited (asur) from doing y” occur relatively seldom. Instead the Mishnah is much more subtle. It legislates via participles. “One does x,” or “We/they do y” (more literally we might translate “One is doing x” and “We/they are doing y”), or in the negative “one does not do x” or “we/they do not do y” (more literally we might translate “one is not doing x” or “we/they are not doing y”).
The Mishnah’s legal rhetoric differs from that of the Torah by its avoidance of the imperative, its use of the participle, and by the presence of numerous interstitial categories between the prohibited and the obligated. No binary system here, and this in spite of the fact that the classic form of mishnaic debate is the presentation of two opinions (permitted vs. prohibited; obligatory vs. not obligatory, pure vs. impure, liable vs. not liable, effective vs. ineffective, etc.). The Mishnah has numerous ways of saying that some actions are desirable (“should”) and others are not desirable (“should not.”) The Mishnah also assume the existence of various categories that problematize the simple binaries of the Torah’s system: a law of Torah origin can be contrasted with a law of “the scribes,” a rule that applies before the fact might differ from a rule that applies after the fact, the minimal amounts (size, weight) required to fulfill or violate a given law can differ or be the subject of dispute, some actions are not sinful but are not effective, and others.
In sum, whereas the priestly authors of the Qumran scrolls maintained the Torah’s binary legal rhetoric, the sages did not; they created a non-binary legal rhetoric which, while not as systematic as that of Islamic fikh, nonetheless is closer in conception to it than it is to the binary rhetoric of the Torah.

Author

• Shaye J. D. Cohen, Harvard University