Rabbinic Legal Fictions

Rabbinic literature, the product of the great centers of Jewish learning in Palestine and Babylonia during the first centuries of the common era, contains numerous legal fictions. These fictions are attested in all periods and geographical centers of rabbinic literature, and they address issues of both ritual and civil law, although ritual fictions seem to dominate. In this chapter, I describe the principal characteristics of rabbinic legal fictions, analyze their legal significance, and attempt to account for their origins and development—why they were utilized in the first place, and how later fictions differ from their predecessors. One of the most prominent characteristics of rabbinic legal fictions discussed in this chapter is their frequently scholastic character, which contrasts with the practical use of fictions in other legal systems. Thus, rabbinic fictions often facilitate the theoretical analysis and explanation of the law, rather than aiming to make the law conform with desired legal outcomes. Likewise, rabbinic fictions usually do not account for exceptions to clear-cut, explicit laws of universal applicability. Rather, they emerge in the course of consolidating and generating general rules which are assumed to underlie the law.