To Conrad Arensberg (11 July 1953)

Dear Connie,

[…] [105] [106]

[107] The Old Testament strictly prohibited gain on transactions; the Mishnah rigidly extended this prohibition to all transactions such as the Old Testament had not yet envisaged; the Talmud, on the contrary, maintains the semblance of law enforcement while actually making gainfulness possible (within reasonable limits). The Mishnah is dominated by the spirit of the Law; while the Talmud is an enforcement of this letter.

The study of the Mishnah repays the student of economic institutions antiquity manyfold. It was the law book of the religious community of a non-commercial character yet having occasional dealings sub as are unavoidable even under primitive pastoral and peasant conditions. It does therefore not vise at commercial laws, but at moral laws, including those regulating occasional transactions. The dominant concern is the exclusion of gain. All this was developed in the Mishnah out of one or two references in the O.T. to equivalency exchange as the result of tribal reciprocity behavior. The so called prohibition of usury was a universal prohibition of gainfulness in transactions. Since the spirit of the Talmud was contrary to the Mishnah, on which was based, the enormously informative material contained in the Jewish law books has not until now received any scientific attention on the {pat} of the economic historian. Especially in regard to the institution of interest, the Babylonian law and practice is most confusing and obscure, which explains why the discovery of the cuneiform business practices has not contributed at all to the clarification of the vexed question of the prohibition of usury. In the Mishnah even the use of money as a 'standard' is employed to ensure the avoidance of gain; a woman bread is enjoined to note its silver price and to accept only bread to the same value in repayment otherwise he might fall in the sin of 'usury'. This principle, as we will see underlay Babylonian legislation and can be shown to have survived in Aristotle's notions on money which he describes as a device for keeping exchange equivalent; in the sense of banning all notion of gain from trade as a 'natural' means of maintaining self-sufficiency.

[…] [108] The main instance of the establishment of equivalencies by law is the Law of Eshnunna Art. 2 But similar equivalencies are known from the Nuzi. […] …found in the Code of Hammurabi, and frequently, in the tablets. Aristotle explained the institutions as deriving from the increase in size of the primitive family, the members of which are forced to settle separately. At this … […] In the Nicomacheen Ethics BK.v. Aristotle deduces the equivalencies from the status of the various sections of the population, and says the equivalency must be such as to be proportionate to their status. In another passage, he emphasizes that one of the partners only is interested in any concrete case: the one who happens to lack something and appeals to the other for supplying him with it.

Letter Informations

KPA: 49/01, 105-109