Sifra and Sifre

Legal midrash on Leviticus, Numbers, and Deuteronomy.

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"'Justice you shall pursue.' How do we know that one who is acquitted by the beit din [court] cannot later be convicted? The text says, 'Justice, justice you shall pursue.' How do we know that one who is convicted can go back to court to be acquitted? The text says 'Justice, justice you shall pursue.'" (This midrash equates "justice" with acquittal, and therefore argues that one may go out of the way to pursue acquittal, but not conviction.)

The midrash  continues with an explanation of the word "pursue":

"Another interpretation: 'Justice, justice you shall pursue.' Pursue a beit din [court] that rules well..."

Finally, the midrash  wonders why this commandment, to pursue justice, is one of the few biblical commandments whose promised reward is long life:

"'In order that you may live and inherit the land.' This teaches that one who appoints appropriate judges brings life to the people of Israel and returns them to their land, and prevents them from falling to the sword (Sifre Devarim pisqa 144:20)."

Through a close reading of a single biblical verse, this midrash derives two legal principles: Jewish law allows for appeals but not for double jeopardy; and one is obligated to seek out a just court. The midrash also makes a homiletic point about the importance of appointing good judges, who, according to this text, may be responsible for the life or death of the community.

Midrash and Mishnah

Sifra, Sifre Bamidbar (Numbers), and Sifre Devarim (Deuteronomy) were probably all compiled around the third century, though all three also show evidence of later additions and edits. Given that these midrashim belong to roughly the same era as the Mishnah, the first layer of the oral law, generations of scholars have struggled with difficult questions about the relationship between the Mishnah and the midrash. Identical laws often appear in the Mishnah and in the midrashim. For instance, like the midrash cited above, the Mishnah permits legal appeals but prohibits the retrial of one who has been acquitted (Sanhedrin 4:1). The Mishnah, however, states this law without reference to a prooftext. The question of which text came first becomes a chicken and egg puzzle: Does the Mishnah record simplified versions of laws previously derived through midrash? Or does the midrash attempt to find biblical proofs for laws already recorded in the Mishnah?

This question is ideological as well as scholarly. According to tradition, God gave both the written law and the oral law at Mount Sinai. In this view, the oral law is no less divine than the Torah, and disobeying a mishnaic law carries the consequences of disobeying Torah law. Those who argue that the Mishnah precedes the midrash sometimes wish to maintain the status of the Mishnah as divinely revealed. Midrash, then, becomes a human attempt to connect the divine oral law to the divine written law, rather than a human effort to derive new laws or clarifications of laws from the biblical text. On the other hand, those who believe that the midrash preceded the Mishnah effectively argue that the early rabbis innovated new laws through the interpretation of biblical text. This latter approach transforms the Mishnah from a record of the divine oral law given at Mount Sinai to a summary of laws that the rabbis teased out of biblical text.

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Rabbi Jill Jacobs

Rabbi Jill Jacobs is the Executive Director of Rabbis for Human Rights-North America. She previously served as the Rabbi-in-Residence for the Jewish Funds for Justice.