“Halakhah” before the Rabbis: The Historiography of an Anachronism

For nearly a half-century, scholars of Ancient Judaism have referred to various regulations of the Second Temple period (e.g., Qumran and Samaritan literature) with the term “Halakhah,” despite the fact that this term doesn’t appear until the onset of rabbinic literature centuries later. At times, scholars are self-aware of the anachronism involved, but choose to use the term nonetheless (something far rarer in the case of biblical law).

A parallel phenomenon exists in the study of the New Testament and early Christianity, where some scholars have used the term “Halakhah” in describing the norms that Jesus adhered to. Whether to use this term or not reflects positions in the debates over “how Jewish was Jesus?” and “how anomalous was Christianity’s emergence of out of Second Temple ‘common Judaism’?” The implications extend beyond historical scholarship into fundamental questions of theology. While the scholarly consensus today has embraced a “more Jewish” Jesus, this remains a fraught question for many scholars.

What is at stake in these debates about the term Halakhah? As “Halakhah” is often translated as “Jewish Law,” use of the term marks certain fields or corpora as “Jewish.” Using the term “Halakhah” in ancient Judaism therefore serves to mark these texts as pre-rabbinic (i.e., part of a line of development that leads to rabbinic literature), with all the theological implications that entails. This is in contrast to a reading that sees these texts as pre-Christian. The stakes of this issue were especially high towards the end of the 20th century, as the scholarly balance of power shifted from scholars studying the Second Temple period as a precursor to the New Testament to those studying the Second Temple period as a precursor to rabbinic literature. This terminological dispute served as a new front in both the age-old battle over which religion “rightfully inherits” the Hebrew Bible and in intrareligious disputes, with (non-)deployment of the term “Halakhah” emerging as a powerful weapon.