I. Origins and Dating:  What is the Connection to Talmudic Writings? 

Gershom Scholem:  Amoraic or Tanaitic Periods?

Like all other research into Jewish mysticism, Gershom Scholem’s works form the basis for contemporary scholarship. Scholem’s first goal in Jewish Gnosticism, Merkabah Mysticism, and Talmudic Tradition sought to establish the antiquity of the Hekhalot literature.  In his groundbreaking earlier work, Major Trends in Jewish Mysticism, Scholem assumed that much of this extensive corpus stemmed from no earlier than the 4^th and 5^th centuries C.E., decades after the tana’im and many of the amoraim lived (Major Trends, 57-61).  In dating this literature as post-Tannaitic, Scholem followed the lead of the 19^th-century historians H. Graetz and P. Bloch, although they dated this corpus to a much later date, the 8^th and 9^th centuries.  Nineteenth-century Jewish historians dismissed mysticism in general as peripheral to Judaism, and discarded the Hekhalot literature as a late, post-Islamic phenomenon far removed from the Rabbinic mindset (Ancient 15-16).

By the 1960s, however, Scholem concluded that the Hekhalot literature emerged in the first centuries of the Common Era, contemporaneous with the tana’im.  In claiming that these mystical works stemmed from the Tanaitic period, Scholem followed Rav Hai Gaon (969-1038), who wrote to a correspondent,

You may be aware that many of the sages were of the opinion that an individual possessing certain explicitly defined qualities, who wishes to look at the merkabah and to peer into the palaces [hekhalot] of the celestial angels, has ways to achieve this.  He must fast for a specified number of days, place his head between his knees, and whisper to the earth many prescribed songs and hymns.  He thus peers into the inner rooms and chambers as if he were seeing the seven palaces with his own eyes, and he observes as if he were going from palace to palace and seeing what is in them.  There are two mishnayot that the Tannaim have taught on this subject; they are called Hekhalot Rabbati and Hekhalot Zutarti.  This much is widely known.  (Translated in Halperin 6, emphasis added). 

Scholem did not agree that the historical tana’im actually wrote the Hekhalot literature, believing that they were pseudopigraphically attributed to central tana’im. Yet he asserted that historical, linguistic, and conceptual similarities link the Hekhalot literature and the Talmudic corpus, to the point where passages in the latter could only be understood based on the existence and knowledge of the former.

Shiur Komah & Shir Ha-Shirim 

            The dating of Shiur Komah served as one of Scholem’s central proofs of the antiquity of the Hekhalot literature.  Shiur Komah, pseudopigraphically attributed to R. Akiva and R. Yishmael, is a short work, comprised of three lists enumerating God’s organs, their names, and their measurements.  In Yosef Dan’s assessment, it represents “the fullest and most acute expression of anthropomorphism in Jewish sources,” and served as the basis for mystic depiction of God by later mystics (Ancient 64-65).  As a basis for this anthropomorphism, Shiur Komah metaphorically interprets the limbs of the lover in Shir Ha-Shirim (5:10-16) to be describing the body of God.  The author(s), who begin the work by asserting that they have seen God sitting on His throne, promise a long life in this world and the good life in the world to come to those who learn the measurements. 

            Scholem, with the help of Saul Lieberman, contended that this esoteric comprehension of Shir Ha-Shirim stems from Tanaitic times.  Writing in the beginning of third century, the early Christian theologian Origen describes how the Jews postpone teaching four texts to their children, “The beginning of Genesis, where the creation of the world is described; the beginning of the prophecy of Ezekiel, where the doctrine of angels is expounded; the end [of the same book] which contains the description of the future temple; and this book of the Song of Songs” (translated in Jewish Gnosticism 38).  The first three documents represent passages with well-known mystical interpretations, indicating that that Jews similarly understood Shir Ha-Shirim.  Scholem asserts that Origen’s statement must refer to Shiur Komah, which not only existed in his time, but was well entrenched as a fundamental esoteric teaching within the Jewish community (39-40).  Lieberman, in a Hebrew appendix to Scholem’s work, further showed that many midrashic sources, particularly in the name of R. Akiva, connect Shir Ha-Shirim to the revelation at Sinai as well as the merkavah (121-126).  Using Shiur Komah to explain many rabbinic statements, Lieberman concluded that Shiur Komah constitutes an early midrash on Shir Ha-Shirim that should be included in the rabbinic corpus.  He further documented that numerous medieval figures shared this belief.  Scholem and Lieberman thus not only proved the antiquity of these texts, but further declared that they represent a central element of classic Rabbinic thought.

Observance of Halakha and Hymnology:  Parallels to Classic Rabbinic Thought

            The fastidiousness to Halakhic observance in the Hekhalot literature further connects their authors to the Rabbinic world.  Chapter 20 of Hekhalot Rabbati asserts that one who descends to the Chariot “reads the bible and studies Mishnah, Midrash, Halakhot, and Aggadot… and fulfills all which is written in the Torah and keeps all the prohibitions of statue and judgments and law which were declared on Sinai.”  In other writings, moreover, the teachings seek to help the mystic attain perfect knowledge of the Torah, including both its exoteric and esoteric elements (12-13).  In one particularly significant passage, R. Yishmael performs an obscure course of action to recall R. Nehuniah b. Hakanah from his state of ecstasy in the palace of God.  Scholem deduced, and Lieberman later thoroughly documented (Gruenwald 241-244), that R. Yishmael’s complex maneuvers sought to avoid violating the strictest laws of purity.  These mystics clearly shared the Rabbinic belief believed that loyal observance of the legal intricacies constituted an essential prerequisite to spiritual achievement.  

            Scholem also cited strong similarities between the Hekhalot hymnology and the Talmudic tradition as further proof of their intimate connection.  The famous prayer Aleinu Le-Shabeach, which played a prominent role in the Rosh Hashana holiday liturgy since Talmudic times, appears almost in full in the text Ma’aseh Merkavah (published in Jewish Gnosticism 105-106).  Moreover, the terminology it uses to describe God, such as yotzer bereishit and moshav yekaro, appears throughout Hekhalot literature (28).  Furthermore, in Avodah Zarah 24b, a 3^rd century Palestinian amora recites a song strongly resembling the words and rhythm of Hekhalot hymns.  Based on these strong affinities, Scholem asserts, we must conclude that the Hekhalot literature stems from the early Talmudic era and grew out of a worldview in Eretz Yisrael that the Tannaim shared.

The Four Who Entered Pardes

            Scholem’s final and most famous example relates to the story of the four who entered Pardes.  In Talmudic literature, this story appears in the Tosefta, Yerushalmi, and Bavli to tractate Chagiga.  Already in his earlier work, Major Trends in Jewish Mysticism, Scholem cited this story and its parallels in the Hekhalot literature as proof of the strong correlation between the two traditions (Major Trends 52-53).  Scholem contends that the cryptic Talmudic story remains incomprehensible without studying the more developed parallels in the Hekahlot literature.  The Bavli, for example, makes numerous references to the dangers of the ecstatic journey, such as R. Akiva’s exhortation that his colleagues should not scream “Water! Water!” when seeing the marble plates.  When read through the eyes of the more descriptive Hekhalot literature, however, the detailed warnings of the dangers threatening the yordei merkavah become eminently clear.  The Talmudic stories are therefore only shorter versions of the Hekahlot versions, understandable when seen in their original context.

            Scholem’s presentation remains slightly ambiguous with regard to the order of influence in the different versions of the Pardes story.  In some places, he seems to state that the authors of the Hekhalot literature represent later mystics who understood perfectly the intent of the Talmudic tradition (Jewish Gnosticism 14, for example).  This position is slightly modified by Ithamar Gruenwald, who agreed with Scholem’s textual analysis but asserted that the words attributed in the Bavli to different sages were “were virtually taken from what already was, or was soon to become, the established Hekhalot tradition (Gruenwald 88).  However, Joseph Dan (in numerous writings) and David Halperin (Halperin 5-7) understood the assertion that the Talmudic passages represent an abbreviation or condensation of the Hekhalot tradition to reflect Scholem’s own position.  This order certainly fits for Scholem’s analysis of Shiur Komah.  Be that as it may, Scholem clearly believed that the Talmudic worldview greatly shared many mystical elements with the Hekhalot literature.

Ephraim Urbach: The Pardes Story Has Different Meaning in Talmudic Literature

Scholem’s contention that the Talmudic sages, including the tana’im, fully embraced the tradition of yordei merkavah found in the earlier Hekhalot literature, was first challenged by Ephraim Urbach.  In a 1968 festschrift honoring Scholem, Urbach argued that the Talmudic versions of the Pardes story possess an entirely different meaning than that found in the Hekhalot literature.  Urbach correctly noted that in addition to the pardes story, other Talmudic passages relate to ma’aseh merkavah, each of which must be individually analyzed to explore whether Chazal shared the ecstatic mystical experience of the yordei merkavah.

Understanding the Passage in Chagiga:  Does it Include Public Expositions or Active Mystical Experiences?

The first mishna in Chagiga (2:1) reads as follows: 

אין דורשין בעריות בשלשה ולא במעשה בראשית בשנים ולא במרכבה ביחיד אלא אם כן היה חכם ומבין מדעתו כל המסתכל בארבעה דברים ראוי לו כאילו לא בא לעולם מה למעלה מה למטה מה לפנים ומה לאחור וכל שלא חס על כבוד קונו ראוי לו שלא בא לעולם:

The authors of the mishna clearly feared not only public expositions regarding the first chapter of Ezekiel, but even wanted to limit private contemplation to a select few.  R. Yochanan b. Zakkai, in four other Talmudic texts, beginning with the Tosefta, affirms this rule, and refuses to teach anything relating to ma’aseh merkavah.  His students, however, achieved this knowledge on their own, and begin to expound on the merkavah, brining their teacher great joy.  The Tosefta (2:1-2) relates:   

הלכה א

אין דורשין בעריות בשלשה אבל דורשין בשנים ולא במעשה בראשית בשנים אבל דורשין ביחיד ולא במרכבה ביחיד אלא אם כן היה חכם מבין מדעתו.

מעשה ברבן יוחנן בן זכיי שהיה רכוב על החמור והיה ר’ לעזר בן ערך מחמיר אחריו אמ’ לו ר’ שנה לי פרק אחד במעשה מרכבה אמ’ לו לא כך אמרתי לך מתחילה שאין שונין במרכבה ביחיד אלא אם כן היה חכם מבין מדעתו אמ’ לו מעתה ארצה לפניך אמ’ לו אמור פתח ר’ לעזר בן ערך ודרש במעשה מרכבה ירד רבן יוחנן בן זכיי מן החמור ונתעטף בטליתו וישבו שניהם על גבי האבן תחת הזית והרצה לפניו עמד ונשקו על ראשו ואמ’ ברוך ה’ אלהי ישראל אשר נתן בן לאברהם אבינו שיודע להבין ולדרוש בכבוד אביו שבשמים יש נאה דורש ואין נאה מקיים נאה מקיים ואין נאה דורש לעזר בן ערך נאה דורש ונאה מקיים אשריך אברהם אבינו שאלעזר בן ערך יצא מחלציך שיודע להבין ולדרוש לכבוד אביו שבשמים

הלכה ב

ר’ יוסה בן יהודה או’ ר’ יהושע הרצה לפני רבן יוחנן בן זכיי ר’ עקיבא הרצה לפני ר’ יהושע חנניה בן כינאי הרצה לפני ר’ עקיבא

Significantly, in this version of the story, as well as the versions found in the Yerushalmi, the Bavli, and Mekhlita De-Rashbi, the students never reveal any of the content of their expositions.  Yet unlike in the Tosefta, the other versions add miraculous details to the stories.  Particularly noteworthy are the inclusions of rainbows appearing in summertime clouds as well as fire burning and angels rejoicing around the sages.  The Yerushalmi (מסכת חגיגה פרק ב דף עז ), for example, includes the following additions: 

… הלכו וישבו להן תחת אילן אחד וירדה אש מן השמים והקיפה אותם והיו מלאכי השרת מקפצין לפניהן כבני חופה שמיחין לפני חתן נענה מלאך אחד מתוך האש ואמ’ כדבריך אלעז’ בן ערך כן הוא מעש’ המרכבה מיד פתחו כל האילנות פיהן ואמרו שירה אז ירננו עצי היער…וכשנאמרו הדברים לפני רבי יהושע היה הוא ורבי יוסי הכהן מהלכים בדרך, אמרו: אף אנו נדרוש במעשה מרכבה. פתח רבי יהושע ודרש. ואותו היום תקופת תמוז היה, נתקשרו שמים בעבים ונראה כמין קשת בענן, והיו מלאכי השרת מתקבצין ובאין לשמוע, כבני אדם שמתקבצין ובאין לראות במזמוטי חתן וכלה.

            These embellished stories about R. Yochanan ben Zakai’s students clearly contain an experience of the mysterium tremendum.  Yet as Yosef Dan sharply delineated, these esoteric Talmudic teachings do not necessarily share the active mysticism found in the Hekhalot literature.  To achieve the latter, these expositions would need to include the “dynamic involvement of the mystic in the process and his ascent to the world of the Chariot” (Ancient 29).  Do these Talmudic stories contain such active mystical experiences?

Urbach decisively answered in the negative by highlighting that the types of miracles found in the later versions of the story are prevalent in other rabbinic passages unrelated to the merkavah.  In particular, the theme of singing angels and descending fire around sages signifies moments of divine revelation similar to Sinai (Urbach 2-11).  In the Bavli version of the story (Chagiga 14b), R. Yochanan explicitly claims that his students’ esoteric expositions re-enact Sinai, as he proclaims,

ואף אני ואתם בחלומי מסובין היינו על הר סיני, ונתנה עלינו בת קול מן השמים: עלו לכאן, עלו לכאן!

The embellishments found in the later Rabbinic sources confirm the revelatory and esoteric nature of the ma’aseh merkavah expositions, but contain no active mysticism attempting to descend to the Chariot.

Regarding the pardes story, Urbach again utilizes its different versions to prove minimal active mysticism around ma’aseh merkavah in the Talmudic literature.  Once again, the Tosefta (2:3-5) presents the simplest version of the story.  Following the stories about R. Yochanan ben Zakkai and his students, we read:

הלכה ג

ארבעה נכנסו לפרדס בן עזיי ובן זומא אחר ור’ עקיבא אחד הציץ ומת אחד הציץ ונפגע אחד הציץ וקיצץ בנטיעות ואחד עלה בשלום וירד בשלום בן עזיי הציץ ומת עליו הכת’ או’ יקר בעיני ה’ המותה לחסידיו בן זומא הציץ ונפגע עליו הכת’ או’ דבש מצאת אכול דייך וגו’ אלישע הציץ וקיצץ בנטיעות עליו הכתו’ אומ’ אל תתן את פיך לחטיא את בשריך וגו’

הלכה ד

ר’ עקיבה עלה בשלום וירד בשלום עליו הכתו’ או’ משכני אחריך נרוצה וגו’

הלכה ה

משל למה הדבר דומה לפרדס של מלך ועלייה בנויה על גביו מה עליו על אדם להציץ ובלבד שלא יזין את עיניו ממנו ועוד משלו משל למה הדבר דומה לאיסתרטא העוברת בין שני דרכים אחד של אור ואחד של שלג הטה לכן נכוה באור הטה לכן נכוה בשלג מה עליו על אדם להלך באמצע ובלבד שלא יהא נוטה לא לכן ולא לכן    

As Urbach notes, the Tosefta reveals minimal information about the incident.  We learn that entering the pardes[1] clearly endangers people, as the parable in the last paragraph and the fate of R. Akiva’s colleagues clearly attest.  Comparing the words הציץ וקיצץ בנטיעות to other examples of the terms in Rabbinic literature, Urbach deduces that Elisha sinned with his mouth, as the verse from Kohelet (5:5) cited by the Tosefta implies, by revealing that which he saw (Urbach 14-15).  The esoteric meaning of ma’aseh merkavah must not be revealed; hence, the Talmud never records the content of the expositions of R. Yochanan b. Zakai’s students.  Beyond these warnings to minimize and conceal these expositions, however, the Tosefta contains no hints of the ecstaticism or active mysticism.  The paltry details of this story, compared with the marvelous details found in the Hekhalot and apocalyptical literature, highlight the absence of active mysticism in the Tosefta’s traditions relating to ma’aseh merkavah.

Yet as with the case of R. Yochanan ben Zakkai’s students, the Bavli’s version embellishes the story with many esoteric details.  As noted by Scholem, the Bavli (Chagiga 14b) relates that before entering the pardes, R. Akiva warned his colleagues from proclaiming, “Water! Water!” 

אמר להם רבי עקיבא: כשאתם מגיעין אצל אבני שיש טהור אל תאמרו מים מים! משום שנאמר +תהלים ק”א+ דובר שקרים לא יכון לנגד עיני.

 Scholem cited the parallel language used in the Hekhalot to prove that the Bavli condensed the former’s version.  Urbach dismisses this hypothesis as mere speculation, arguing that water symbolizes here, as it does in Ezekiel, higher knowledge.  R. Akiva’s warning not to ecstatically proclaim “Water! Water!” represents a figurate admonition to eschew ecstatic mysticism (Urbach 17).  Here and elsewhere, the Bavli discourages active human attempts to see God, and displays no desire for extending esoteric knowledge into the realm of active mysticism.  The later Hekhalot literature, Urbach contends, usurped these Tannaitic statements and attached practical mystical significance to them (16).  Their authors, as we previously saw, remained committed members to the world of rabbinic halakha (25). To innovate and justify their new mystical theology, they transformed esoteric rabbinic teachings and appropriated major Tanaitic figures to display their ecstatic revelations.  

            Urbach acknowledges that elements of active mysticism entered into other passages in the Talmudic corpus.  He cites a few examples, including the famous story of the martyr R. Yishmael b. Elisha, who lived after the destruction of the Temple, entering the Holy of Holies and reciting a prayer before Akatriel (Brachot 7a).  Urbach believes that these stories represent a later accretion into rabbinic thought.  While the earlier tana’im vociferously opposed ecstatic mysticism, some late amoraim were drawn to such activity by the contemporaneous schools of the Hekhalot literature (Urbach 22-27).  However, this reciprocal relationship, which flourished in an era of increased use of magic and speculative powers, represents a late development in rabbinic thought.  Urbach thus concluded that the Hekhalot literature comprises a response, and not a source, to Tanaitic esoteric teachings.

David Halperin:  Evolution of Ma’aseh Merkavah Mysticism      

Following in Urbach’s footsteps, David Halperin performed the most thorough analysis of the relationship between the Talmudic sources and the Hekhalot literature.  First in his dissertation, The Merkabah in Rabbinic Literature (1980), and especially in his The Faces of the Chariot (1988), Halperin employed a dizzying array of sources to document the evolution of ma’aseh merkavah mysticism amongst the Sages.  These detailed and nuanced studies do not lend themselves to an easy synopsis, and therefore we will only present a basic summary. 

Halperin’s research focuses on the use of the merkavah in liturgy and homiletics.  In an unrelated discussion about rituals regarding the recitation of the Shema, the Tosefta (Megilla 3:28) remarks, “.הרבה דרשו במרכבה ולא ראו אותה מעולם”  The statement clearly distinguishes between delivering homilies and sensually experiencing the merkavah, testifying to a prevalent tradition of expounding on the cryptic passage from Ezekiel.  Yet elsewhere the Talmudic tradition displays a tendency to de-legitimize the public exposition of ma’aseh merkavah.  The Tosefta (Megilla 3:34) specifically mentions the merkavah chapter in a list of Biblical passages permitted to read and translate in public, indicating that some questioned the appropriateness of this chapter in the synagogue.  The mishna (Megilla 4:10), moreover, cites a dispute over whether the merkavah can be read as a haftorah, although the amoraim later accept it as a legitimate reading for the holiday of Shavu’ot (Bavli Megilla 31). 

Halperin believes that originally the Merkavah served as a springboard for magnificent homilies about God’s revelation, particularly on the festival of Shavuot, which the rabbis attached to the theophany of Sinai.  Ma’aseh Merkavah contained an esoteric doctrine about the divinity, as the stories of R. Yochanan b. Zakkai’s students showed, and thus became most appropriate to discuss on this holiday (Halperin 14-23). The orators used the merkavah passage from the Haftorah as a springboard for their homilies (115-156).  The miraculous traditions regarding R. Yochanan b. Zakkai’s students, preserved by the amoraim in the two Talmuds, originated with these homilies.

Yet later in Tanaitic times, the rabbis, suspicious of popular use of the chapter to probe esoteric secrets, attempted to limit expositions of this Biblical chapter.  While they continued to allow it to be translated, they attempted to ban it from public reading on Shavuot.  This is the meaning of the mishna in Chagiga 2:1, which banned readings of suspect passages on popular, festive occasions (24-25).  Thus the Tosefta suppressed the miraculous stories of R. Yochanan b. Zakkai’s students to conceal popular use of these passages.  Halperin thus agrees with Urbach that the expositions of R. Yochanan b. Zakkai’s students focused on divine esoteric revelations to elite scholars, and not on active mysticism (18-19).  Yet unlike Urbach, who believed that the Tosefta version preserves the earliest and authentic tradition, Halperin believes that the miraculous elements found in the Talmuds reflects their origins as synagogue homilies. 

            Similarly, Halperin contends that active ecstatic mysticism only emerged amongst Babylonian amoraim, but unlike Urbach, believes that they used the ma’aseh merkavah itself for these purposes. The Talmud elsewhere hints to this phenomenon in its rewording of Tosefta Megilla 3:28, quoted above.  Whereas the Tosefta simply stated that many expounded on the chariot without seeing it, the Bavli (Megilla 24b) rhetorically notes that many attempt to doresh be-Merkavah but do not succeed.

סומא פורס על שמע וכו’. תניא, אמרו לו לרבי יהודה: הרבה צפו לדרוש במרכבה ולא ראו אותה מימיהם

It would seem that in amoraic times, to doresh the merkavah became a difficult task achieved only by a select few.  Most significantly, Halperin points to the additional details, such as the presence of oxen and rainbows and the warning of “Water! Water!” related in the Babylonian version of the pardes story.  These cryptic references are not polemics against ecstaticism, as Urbach claimed, but rather reflect amoraic incorporation of the mystical teachings used by the Hekhalot mystics.  In addition, the Bavli also omits certain introductory lines that transform the pardes story from an esoteric parable into a mystical ascension (34-37).  Scholem erred by grouping the entire Talmudic corpus as one organic tradition (26).  In truth, the interpretation of ma’aseh merkavah underwent a major transformation from an esoteric synagogue homily in early Tanaitic times to a mystical experience in the later Amoraic era.  Thus Halperin dedicates many chapters of his book interpreting the Bavli in light of its mystical nature.

Additional Evidence?:  The Continuing Debate

            Since no conclusive evidence exists to confirm whether the Hekhalot literature preceded or followed the Talmudic literature, a firm resolution to this debate has not yet emerged.  Ithamar Gruenwald, both in his 1980 study Apocalyptic and Merkavah Literature, as well as in his later From Apocalypticsm to Gnosticism, defended Scholem’s view.  Additional possible evidence to an earlier date stems from the strong similarities between the Hekhalot literature and the scrolls written by the Dead Sea sects in the first centuries before the Common Era.  Already in the early 1960s, when fragments of the Songs of the Sabbath Sacrifices had begun to be published, Scholem himself noted strong resemblances between the corpuses and suggested that the Hekhalot literature represent a development of the earlier writings (Jewish Gnosticism 128).  Most recently, Rachel Elior has greatly expanded this thesis, documenting the strong affinities between the two literatures in their linguistics, patterns of reference, and general spiritual outlook (Elior 233).  Elior postulates that following the destruction of the Temple, the power struggle between the priestly sects and the Sages lost its relevance, allowing the spiritual ideas of Dead Sea writings to re-emerge into rabbinic Jewish life.  The yordei merkavah elevated the rabbinic heroes R. Akiva and R. Yishmael as their main protagonists, but their spiritual outlook reflected an updated version of the myth of the angelic priests (260-264).  As such, the Hekhalot literature should be seen as an attempt to recreate the Temple service, at least in Heaven, soon after the Temple’s destruction in 70 C.E. 

However, a contrary trend in the research points to a later date for this literature.  Peter Schafer – in numerous essays and his book The Hidden and Manifest God – agrees with Urbach and Halperin that the Hekhalot literature was produced after the Tanaitic period.  Schafer contends that large strands of this corpus were composed in Babylonia, and not in Israel.  Moreover, he also believes, although more tentatively, that much of the material post-dates the entire Talmudic corpus, placing it in the late 5^th- 6^th centuries (159-160).  Nonetheless, Halperin and Schafer strongly disagree over the social status of the authors of the Hekhalot literature.  Halperin believes that the Sar Torah adjurations attempting to achieve Torah knowledge, which he places at the center of the Hekhalot literature, reflect an attempt by the uneducated masses (amei ha-aretz) to match rabbinic power with this wisdom (Halperin 429-446).  Schafer, in a 1986 published lecture, dismisses this claim as baseless speculation.  If anything can be said about their social status, he contends, we must conclude that the Hekhalot authors represent a post-Rabbinic elite seeking to use the heavenly journey and magical adjurations “to proceed to God directly or to force God down to earth” (as quoted in Davila 18).  In his 1992 book, however, Schafer hesitates to draw any direct conclusions regarding their social status, reflecting the speculative nature of such hypotheses.

Yosef Dan:  Hectic Period of Mystical Activity       

Yosef Dan has provocatively offered a third possibility regarding the relationship of the Talmudic corpus with the Hekhalot literature.  Instead of trying to determine which preceded the other, we should

“view all the material as a group of traditions that reflect a long, hectic period of mystical activity in the Judaism of the period between the first century BCE and the third century CE, during which many mystical sects developed different concepts and symbols.  Both our sources are actually random collections of some of these images and symbols, whereas most of the details and systematic presentations of the teaching of these many sects were lost” (Jewish Mysticism 304). 

The multiplicity of mystical activity, much of which is lost, would explain why we do not understand many of the symbols in the stories and the relationship between the two corpuses.  Thus, he concludes, “We should not… try to harmonize and group together the various traditions, because originally they were not connected; they were produced, independently, by different groups of ancient mystics” (304).  Yet Dan ultimately rejects this thesis as speculative and without concrete basis.  Dan notes, like many scholars, that the sources we possess seem to display different historical “layers,” which might indicate that these works were composed over a long period of time.  Yet no evidence exists indicating the actual existence of these alleged various groups of earlier mystics.  This thesis would be no more that a convenient “creation” of historians to solve this complex riddle (305).  Dan concludes that the most reasonable assessment accepts, with Urbach and Halperin, that the Hekhalot literature elaborate, interpret, and creatively follow the earlier Talmudic traditions.

II.  Historical and Cultural Background

Scholem:  Jewish Gnosticism?

 Beyond exploring the relationship between the Hekhalot literature and the Rabbinic sages, much research focuses on the historical-cultural background of its ideas.  In different writings, Scholem postulated that the Hekhalot mystics not only influenced the Rabbinic sages, but also comprised a version of “Jewish Gnosticism” parallel to the Gnostic movement that flourished in the first centuries C.E.  Scholem highlighted their shared emphasis on the dangers of the heavenly ascent, and more importantly, the similar cosmological structures in Gnosticism’s “pleroma” and the “throne world” of the Hekhalot literature (Major Trends 44).  Nathaniel Deutsch has noted that Scholem even suggested that the Merkavah mystics imposed the cosmic notion of the Gnostics into Ezekiel’s ma’aseh merkavah to hide the foreign origins of the idea (Deutsch 69).  Scholem, of course, understood that non-Jewish Gnosticism differed greatly from its Jewish counterpart with regard to the former’s dualism and antinomianism.  Nonetheless, Scholem called his monograph on the Hekhalot literature Jewish Gnosticism, Merkabah Mysticism, and Talmudic Tradition since he believed that these phenomenon were intrinsically related, and dedicated the last chapters to documenting the similarities between the “Jewish” (orthodox) sources and their non-Jewish (antinomean) counterparts.  Indeed, Scholem also compared the pardes story to New Testament passages of Paul’s ascent to heaven, arguing that the New Testament as well shared a place in this complex matrix. 

In subsequent years of scholarship, numerous scholars challenged this characterization of the Hekhalot literature.  Many problems have plagued this debate, as Nathaniel Deutch has shown, including the fact that Scholem presented his views differently in tone and substance in various works (Deutsch 1-17).  More significantly, one must first properly define the term “gnosticism,” both as a noun and an adjective.  In other words, one must seek to delineate the connection between historical Gnosticism in the first and second centuries C.E. with Christianity and Judaism, as well as explore the links in theology between within the Gnostic-type religious phenomenon.  With regard to the former, our knowledge of the origins and development of Gnosticism remain too sparse and murky to draw any definitive conclusions, despite the finds of the Nag-Hammadi library.  Yosef Dan, in his survey of the scholarship, concluded, “One cannot therefore doubt the existence of some type of a link between ancient Gnosticism and a certain part of the Jewish world (possibly the part that was assimilated into Hellenism), but we are unable to give a decisive historical definition about the roots of Gnosticism and its relationship to Judaism at the beginning of its development” (Ancient 56, emphasis added).  Dan’s cautious description is praiseworthy for its humility, yet highlights the tentative state of the scholarship.

Regarding the relationship of Jewish mysticism to phenomenological Gnosticism, a difficulty lies in defining the core characteristics of this movement.  Dan, in his attempt to describe the common theological elements of historical Gnosticism, lists four basis characteristics, but then notes, “It is difficult to find even a single historical view which clearly includes all these principles” (57-59).  He cautiously emphasizes a basic link that Gnosticism, Judaism, and Christianity all represent the products of a “religious and spiritual explosion of great power” which took place in roughly the same area in the first two centuries of the Common Era.

Heavenly Ascent?

Another problem with this question lies in the question of the centrality of the heavenly ascent in the Hekhalot literature, which Scholem used to attest to its relationship to gnosticism.  David Halperin charged that Scholem’s view was biased by his focus on Hekahlot Rabbati, which indeed highlights the yeridah le-merkavah as a central religious goal.  Yet in the rest of this literature, primacy is given to magical-theurgic adjurations to obtain command of the Torah (Halperin 384-385).  Schafer moderates Halperin’s argument, contending that both are important phenomenon but neither can be cited as the “one explanation for the entire Hekhalot literature” that is multifaceted and not uniform (Schafer 152, emphasis in original).  By minimizing the role of the ascent to Heaven, Halperin and Schafer critically damage Scholem’s definition of Merkavah mysticism as Jewish Gnosticism. 

Scholem’s thesis, of course, might be defended if one defines the religious Gnostic phenomenon more generically.  In a later writing, Origins of the Kabbalah, Scholem blurred the religious typology of Gnosticism by describing it as merely esoteric (cited in Deutsch 24).  This definition, of course, allows one to easily define historical Gnosticism and Merkavah mysticism with the same semantics, but as Deutsch points out, frustrates the entire academic project of identifying phenomenological links.  Indeed, Deustch concludes his study by arguing that research should focus less on origins and definitions, and instead treat the sources on their own terms (151).  He cites, for example, the problem of comparing the link between exegesis and experience in the different literatures, arguing that one cannot assume the same relationship in different literary genres.  Nonetheless, comparative research must be made on “the roles of myth and spirituality in both phenomenon” (152).  Unfortunately, he does not delineate how to define either of these terms to make a meaningful comparison, and one wonders why those studies as well should not treat their sources on their own terms.

Social Functions of These Practices

            A final aspect of Hekhalot research focuses on the social function of these practices and their practitioners.  As we noted above, Halperin and Schafer strongly disagree with regard to the social status of the Hekhalot authors, with Halperin asserting that they represent the uneducated masses and Schafer countering that they are post-rabbinic elite scholars.  In his introduction to III Enoch (also known as Sefer Hekhalot), P. Alexander precedes Schafer by noting that these texts point to the Merkavah mystics working in “small, closely guarded conventicles” (239). Comparing their rituals to shamansitic trances, Alexander contends that the Merkavah trances sought to boost the authority of the rabbis and attribute to them the power needed in their pivotal societal role of mediating between God and man (238-239).  The social utility of these practices, Alexander believes, helps explain how Merkavah mysticism thrived for so long.

            Like Alexander, James Davila seeks to describe the social function of the mystics using the anthropological model of shamanism.  From this perspective, he highlights the roles that hereditary and asceticism play in the mystic’s selection, the nature of their spiritual experience, and the roles they serve in their human community (Davila 306-308).  Davila’s analysis, of course, includes the Hekhalot texts, which he believes contains strands from both 3^rd-4^th century Palestine as well as 5-7^th century Babylonia.  Yet beyond examining texts, Davila importantly cites Babylonian incantation bowls from the 5^th-7^th centuries that reflect a clear affinity to Hekhalot mysticism (216-238).  From these comparisons, Davila concludes, “The religious functionaries portrayed in the Hekhalot texts… were real people, practitioners of the rituals described in the Hekhalot literature and the writers of that literature” (254-255).   He also conjectures that the writers were members of an influential guild of skilled scribes who were well educated in Bible, their own mythological traditions, and to a lesser extent, Talmudic texts (248).  Their goals were practical, aiming to assist the masses in mediating between the divine and human realms.  They assisted, on the one hand, with achieving supernatural knowledge of the Torah and acted as guides on other-worldly journeys, and on the other hand, helped protect and heal the people (255).

            Like Davila, Rachel Lesses focuses on the functional nature of these rituals, which she too views as a product of Palestinian origin that blossomed in Babylonia.  Yet unlike Davila, who highlighted the social hierarchy inherent in the literature, Lesses focuses on the “magical” nature of the merkavah rituals.  Following other philosophers of religion, who eschew the term “magic” because it is viewed as being divorced from genuine religion, Lesses terms the mystics’ services as “ritual practices to gain power “ (Lesses 55-60).  In the case of the yordei merkavah, they sought the power to bring holiness down to earth (374).  Following Rachel Elior, Lesses notes that this goal was particularly significant following the destruction of the Temple, which served as the impetus for them in trying to “keep open the channels between earth and heaven” (373).  Comparing the merkavah rituals to Greco-Egyptian adjurations, Lesses highlights the practical quality of the rituals in fulfilling human needs by forcing the angels to obey their wishes (374-378).  Scholars thus must understand the hekhalot texts not merely as literature, but rather as ritual performances that combine adjurations, asceticism, and action to achieve specific goals.   

Daphna Arbel, however, believes that we can only understand mystical phenomena through literary analysis.  The hekhalot and merkavah passages are not records of “pure, unmediated mystical experiences or revelations,” but rather comprise “a rich tapestry of theoretical literary descriptions… of first, second, or third hand pseudepigraphical testimonies of visionary experiences and revelations, which demonstrate certain mystical characteristics” (Arbel 14).  As such, their study should not use anthropological methods of studying ritual, but rather must draw primarily from literary, philological, and exegetical analysis.   Arbel’s literary analysis highlights the personal, unmediated experience of God achieved by the yordei merkavah, whose journey is described as either a mental-contemplative process, or a spiritual ecstatic-voyage (141).  Using her literary, phenomenological analysis, Arbel seeks to understand the cultural-social background of these mystics.  Highlighting their erudite knowledge, their emphasis on initiating personal encounters with the heavenly realm, and the value they attribute to recording and transmitting distinct knowledge, she postulates that these authors were “scribes, sages, and wise men associated with classes of priests and with temple traditions” (148).  This conclusion, as Arbel notes, dovetails nicely with Elior’s studies that highlighted the similarities between the Hekhalot mystics and the B.C.E. authors of the Judean Desert scrolls.

            The debate between Arbel and Lesses regarding the primacy of studying the Hekhalot texts through literary or anthropological lenses reflects the ambiguous state of research in this field.  On the one hand, it represents an advanced discussion debating the use of different cross-cultural sources and inter-disciplinary techniques to study this rich literature.  Yet at the same time, basic information such as the dating and authorship of this corpus remains elusive.  Despite all of the advances made in research since Scholem’s time, much work remains to be done.

Works Cited

 Alexander, P., “3 (Hebrew Apocalypse of) Enoch,” The Old Testament Pseudepigrapha Volume 1, ed. James H. Charlesworth, New York:  Doubleday, 1983.

Arbel, Vita Daphna, Beholders of Divine Secrets, Albany:  SUNY, 2004

Dan, Joseph, The Ancient Jewish Mysticism, Tel Aviv:  Ministry of Defense Books, 1993.

Dan, Joseph, Jewish Mysticism, Volume 1:  Late Antiquity, Northvale, New Jersey: Jason Aronson, 1998.

Davila, James, Descenders to the Chariot:  The People Behind the Hekhalot Literature, Leiden:  Brill, 2001. 

Deutsch, Nathaniel, The Gnostic Imagination:  Gnosticism, Mandaeism, and Merkabah Mysticism, Leiden: Brill, 1995.

Elior, Rachel, The Three Temples:  On the Emergence of Jewish Mysticism, Oxford: Littman Library, 2004.

Gruenwald, Ithamar, Apocalyptic and Merkavah Mysticism, Leiden:  Brill, 1980. 

Halperin, David J., The Faces of the Chariot: Early Jewish Responses to Ezekiel’s Vision, Tubingen:  Mohr Siebeck, 1988.

Lesses, Rachel, Ritual Practices to Gain Power, Harrisburg, PA:  Trinity Press, 1998.

Schafer, Peter, The Hidden and Manifest God:  Some Major Themes in Early Jewish Mysticism, Albany:  SUNY, 1992.

Scholem, Gershom, Jewish Gnosticism, Merkabah Mysticism, and Talmudic Tradition (2^nd Edition), New York:  JTS, 1965.

Scholem, Gershom, Major Trends in Jewish Mysticism, New York:  Schocken, 1946.

Urbach, Ephraim, “The Tradition about Torat Ha-Sod in the Tannaitic Period” (Hebrew), Studies in Mysticism and Religion Presented to Gershom G. Scholem on His Seventieth Birthday by Pupils, Colleagues, and Friends, ed. Ephraim Urbach et al, Jerusalem: Magnes Press, 1967. 

ארבע מדות באדם:

האומר שלי שלי ושלך שלך –                         זו מדה בינונית;

ויש אומרים זו מדת סדום;

שלי שלך ושלך שלי –                                  עם הארץ;

שלי שלך ושלך שלך –                                 חסיד;

שלי שלי ושלך שלי –                                   רשע:

 ארבע מדות בדעות:

נוח לכעוס ונוח לרצות –                              יצא שכרו בהפסדו;

קשה לכעוס וקשה לרצות –                                     יצא הפסדו בשכרו;

קשה לכעוס ונוח לרצות –                           חסיד;

נוח לכעוס וקשה לרצות –                           רשע.    

 ארבע מדות בתלמידים:

מהר לשמוע ומהר לאבד –                            יצא שכרו בהפסדו;

קשה לשמוע וקשה לאבד –                           יצא הפסדו בשכרו;

מהר לשמוע וקשה לאבד -                            חכם;

קשה לשמוע ומהר לאבד –                            זה חלק רע.

 ארבע מדות בנותני צדקה:

הרוצה שיתן ולא יתנו אחרים –                       עינו רעה בשל אחרים;

יתנו אחרים והוא לא יתן –                             עינו רעה בשלו;

יתן ויתנו אחרים –                                       חסיד;

לא יתן ולא יתנו אחרים –                              רשע.

 ארבע מדות בהולכי לבית המדרש:

הולך ואינו עושה –                                      שכר הליכה בידו;

עושה ואינו הולך –                                      שכר מעשה בידו;

הולך ועושה -                                            חסיד;

לא הולך ולא עושה –                                   רשע.

 ארבע מדות ביושבי לפני חכמים: ספוג ומשפך משמרת ונפה

ספוג –                                                     שהוא סופג את הכל;

משפך -                                                  שמכניס בזו ומוציא בזו;

משמרת -                                                שמוציאה את היין וקולטת את השמרים;

ונפה -                                                    שמוציאה את הקמח וקולטת את הסולת.

Avot 5:11

Human beings have one of four characters:

Easy to anger and easy to appease –  his loss is paid for by his gain;

Hard to anger and hard to appease –  his gain is used up paying for his loss.^[1]

Hard to anger and easy to appease –   a pious person

Easy to anger and easy to appease -   a wicked person

שו”ת אגרות משה חלק או”ח א סימן נד

בענין ת”ח שאינו קשה כברזל לפי’ הרגמ”ה =הרבינו גרשום מאור הגולה= י”א מנ”א תשי”ז.

מע”כ ידידי תלמידי הרה”ג מוה”ר אפרים גרינבלאט שליט”א.

מה שהקשה ידידי על פירוש רגמ”ה בתענית דף ד’ בהא דא”ר אשי כל ת”ח שאינו קשה כברזל אינו ת”ח, שהוא שאינו קשה לרצות מהא דתנן בפ”ה מאבות מי”א שחסיד הוא קשה לכעוס ונוח לרצות.

הנכון לע”ד דהם שני ענינים, דבתענית איירי שיהיה קשה כברזל להיות עומד על דעתו כשהוא סובר זה לאמת לפי הדין וההלכה, שבזה אם כעס על אלו שלא רצו לעשות כדעתו, אם יהיה נוח לרצות הרי יאמרו שמה שנוח לרצות אינו מצד מעלת מדותיו אלא מחמת שמתחלה לא היה לו לכעוס שיודע בלבו שאין האמת כדעתו אך שאינו רוצה להודות בפירוש שטעה, ויבא מזה מכשול בדין זה וגם בדינים אחרים שלא יחושו להוראותיו שיאמרו שאינו ת”ח הראוי לסמוך עליו.  

ומדויק לפ”ז לשון רב אשי שאומר שאינו ת”ח, דלכאורה מה שייך זה לחכמתו והיה לו לומר שלא טוב עושה, אבל הוא משום שזהו הטעם שבזה יעשה שיאמרו עליו שאינו ת”ח ואין לסמוך על הוראותיו והנהגותיו ולא יהיה התועלת שיש בעיר מת”ח, ונמצא שבאמת הוא לגבי זה כאינו ת”ח.

וכן ניחא מה שא”ר אבא לרב אשי אתון מהתם מתניתו לה אנן מהכא מתנינן לה אבניה ברזל אל תקרי אבניה אלא בוניה, שלשון זה משמע שהוא ממש כמו שאמר רב אשי ורק שדורש מקרא אחר, והא לכאורה הוא ענין אחר לא שאינו ת”ח אלא שדרש מהקרא דאבניה ברזל שת”ח צריך להיות כברזל וידעינן רק שאם אינו כברזל אינו עושה כראוי. דבשלמא קרא דדריש רב אשי מוכפטיש יפוצץ סלע שייך לדרוש דאינו ת”ח, דהא מצייר הת”ח שהוא כפטיש משמע שאם אינו כפטיש אינו בציור ת”ח, אבל קרא דאבניה ברזל נאמר רק שהת”ח שלה מתנהגים כברזל, שמשמע רק שהוא חסרון בהנהגת הת”ח ולא שבזה מתבטל ממנו שם ת”ח. אבל הוא כדבארתי, שמה שא”ר אשי שאינו ת”ח הוא לענין התועלת לגבי עלמא שילמדו ממנו אינו כת”ח שיטעו מזה להחשיבו שאומר ומתחרט בלבו ולא בפיו ואין לסמוך עליו, וזהו גם מה שא”ר אבא דת”ח שנחשבו בונים הוא שיודעים מהם העולם איך להתנהג בדרך התורה, וזהו שפרש”י ת”ח מקיימי עולם בבנינייהו, וכשלא יקשו כברזל ויהיו נוחין לרצות להעוברין על דעתן שיטעו לחשוב שהוא מפני שהתחרט בלבו הרי לא יבנה שוב שלא יסמכו עליו להתנהג כמותו. ונמצא שאומרים תרוויהו דבר אחד אך משני פסוקים.

ומתני’ דאבות מיירי בכעס על דבר שעשו שלא כהוגן שהוא מפורסם וידוע גם לעלמא וגם להעושה שהוא מעשה רע שלא יטעו כשיהיה נוח לרצות שהוא מתחרט בלבו אלא יבינו שהוא ממדה הטובה שמתנהג משום שצריך להתנהג ברצון ונחת עם הבריות.

ועיין ברבנו יונה שם שכתב שלא אמר שלא יכעוס כלל לעולם כי לפעמים צריך האדם לכעוס לקנאת ה’ כפינחס לכן אמר קשה לכעוס שיש לו לכעוס אך בקושי הפעמים וג”כ טוב להתרצות מיד בעוד כעסו עליו ולא אחר שיסור כעסו מעליו אלא בשעת הכעס ממש הוא נוח לרצות, כי זוהי ממדת החסידות וטוב לבב עיי”ש. הרי פי’ שהכעס של החסיד הוא לקנאת ה’ כפינחס ומ”מ מתרצה מיד בשעת הכעס, והוא משום שהוא דבר מפורסם למעשה רע וליכא שום חשש במה שיתרצה מיד שיבינו הכל שהוא ממדת החסידות וטוב לבב, אבל אם הדבר אינו מפורסם לדבר רע כהא דמעשה פינחס אף שהוא ג”כ לצורך שיתנהגו בדרך הטוב, אין לו להתרצות מיד משום שאפשר אדרבה יצא מזה מכשול שלא יחושו לדבריו כמו שלא הי’ ת”ח כדלעיל.

וניחא מה שמסיק רבינא בתענית /ד/ אפ”ה מיבעי ליה לאינש למילף נפשיה בניחותא שנאמר והסר כעס מלבך, שמשמע שלא פליג על רב אשי, משום דכיון דאיירי ברוצה להנהיגם בדבר טוב שלא ידעו מעצמם ודאי אם כבר כעס אין לו להתרצות בקל כמו שא”ר אשי מטעם דבארתי, אבל מתחלה צריך למילף נפשי’ בניחותא, היינו שיבקש דרך איך להורותם ולהנהיגם בניחותא שנא’ והסר כעס מלבך, שהוא עצה שיעץ קהלת לת”ח שאף כשיש תועלת מכעסם יראו איך שאפשר להסר הכעס ולבקש דרכים אחרים להורותם בניחותא, שאם יעשו בדרך הכעס הרי לא יוכלו להסירו תיכף כדי שלא יטעו לומר שנתחרטו בלבם, ואם הי’ הכעס לקנאת ה’ לדברים מפורסמים כהא דפינחס הרי צריך לעשות זה דוקא בכעס להראות שצריך להתרגש לכבוד ה’.  

ועיין ברמב”ם מה שלכאורה יש סתירה ממש”כ בפ”א מדעות ה”ד על הא דכתב בפ”ב ה”ג בענין הכעס והלח”מ עמד בזה.

ולע”ד בפ”ב נקט הא דרבינא שכתב וילמד עצמו שלא יכעוס ואפילו על דבר שראוי לכעוס עליו, והוא כדפירשתי שלא פליג על רב אשי ובעצם ראוי לכעוס עליו שהוא לש”ש, אבל מ”מ ילמד עצמו לבקש דרכים אחרים אם אפשר והם בדברים שאין מפורסמים להעומדים שם שהוא דבר שצריך לכעוס עליו ורק שממה שכועס על זה ילמדו שיש בזה צורך. אבל בדברים המפורסמים שהוא דבר רע, הוא דבר גדול שראוי לכעוס עליו שכתב בפ”א שע”ז ג”כ לא יהיה נוח לכעוס אם אפשר שלא להרגיש שעשה בזה דבר רע אף שהוא הרגיש ויכול להסביר שהוא דבר רע דכיון דאפשר שאחרים לא הרגישו לא יאמרו שעשה זה לש”ש אבל בזה לא יהיה כמת שאינו מרגיש כלל דכיון דהרבה ירגישו יאמרו שא”צ למחות, אלא יתנהג באופן בינוני, שאם האומדנא הוא שהרבה ירגישו שראוי לכעוס עליו צריך לכעוס.

. . .

Igrot Moshe OC1:54

Regarding my dear friend’s question against Rabbeinu Gershom’s comment on Taanit 4 that Rav Ashi’s statement that “any talmid chakham who is not hard as brass is not a talmid chakham’ refers to a scholar who is not hard to appease, but Avot 5:11 says that a pious man is one who is hard to anger but easy to appease –

The correct explanation in my humble opinion is that there are two different matters – Taanit refers to one who is hard as brass in standing by his opinion when he considers it true according to the law and practice, as in such a case if he has expressed anger toward those who did not wish to act in accordance with his opinion, if he is appeased easily, they will say that his easy appeasement does not reflect his good character but rather a recognition that his original anger was unjustified, as he knows in his heart that his position was untrue, and does not wish to concede explicitly, and this will cause a stumbling block with regard to this law and with regard to other laws, as they will not be concerned for his rulings and will say that he is not a talmid chakham who can be relied upon . . .

Whereas Avot refers to anger about something that was done inappropriately, in which everyone knows, even the perpetrator, that it was evil, so they will not err when he is easily appeased and think that he regrets in his heart, but rather they will understand that it is out of good character, that one must behave with grace and pleasantness with people . . .

See Rabbeinu Yonah thereupon who wrote that it does not say that he should never get angry at all, ever, because at times a person must get angry out of zealotry for G-d, like Pinchas – therefore it says “hard to anger”, because he does need to get angry, with difficulty, occasionally . . .

 And this fits well with Ravina’s conclusion in Taanit that “Nonetheless, a person should teach himself calmness, as Scripture says ‘and remove anger from your heart’”, and the implication is that he does not disagree with Rav Ashi, because since it is discussing a circumstance in which he is trying to guide them to recognize a good they did not recognize on their own, certainly if he had already gotten angry he should not be lightly appeased, as Rav Ashi said and I explained, but initially one should teach oneself calmness, meaning that one should seek a path to teach and direct them calmly, as Scripture says “and remove anger from your heart” – this is advice from Kohelet to scholars, that even if their anger would be effective, they should look for ways of removing the anger and seek ways to teach calmly, because if they do it in the way of anger, they will not be able to remove it immediately so that others will not err and think that they have regret in their hearts, but if their anger is out of zealotry for G-d about matters that are popularly known to be wrong, such as that of Pinchas, one has to do this specifically with anger, to show that one needs to be emotionally invested in the Honor of Hashem.. . .

Analysis:  
            David Hume wrote that “Reason is, and ought to be, only the slave of the passions”.  But being the servant of multiple masters requires one to use judgment, as the wills of the masters will inevitably conflict – this argument against polytheism applies as well to the passions.  Thus it is no contradiction to Hume when Maimonides argues that the expression of emotion should be rationally regulated, as one always needs to decide which passion currently deserves expression.  I think they can push on together even beyond that and suggest that not only the expression but the experience of emotions should be regulated, although the nature of the regulatory mechanism would require negotiation.

            Some seem to suggest that Rambam actually wished to eliminate emotion entirely, and permitted only its appearance.  Rambam’s self-contradictions regarding anger leave much room for eisegesis. Against this, R. Mosheh here offers what I would call a much more mature model, in which the capacity to feel anger specifically is a religious necessity.  R. Mosheh also offers a theory of effective religious leadership that will be the focus of our learning this week.

            To resolve an apparent contradiction between Avot 5:11 and Rabbeinu Gershom as to whether being hard to appease when angry is a virtue or rather a vice, R. Mosheh posits a tiered system of community management for scholars.

a)      When there is public misbehavior, but even most perpetrators would acknowledge that their behavior is wrong, the scholar must express anger but be easily and rapidly appeased. 

b)      When there is public misbehavior and the public believes itself justified, a scholar should seek to find modes of response that do not require anger.  However, if anger turns out to be necessary, the scholar must be difficult to appease, lest the public conclude that he changed his mind and their behavior was indeed legitimate.

I suggest that Rav Moshe, in contrast to Rambam, seeks to regulate the expression of anger rather than to suppress its experience.  Rav Moshe assumes that scholars ought to feel anger at violations of Torah; however, whether to express it should be a pedagogic decision.  Thus it is necessary to respond with anger when the public misbehaves knowingly, because it is important to teach the public that they ought to be experiencing the anger that the scholar is experiencing.  If the scholar feels no anger, he is a poor role model.

            However, anger is not inherently warranted when people misbehave and cannot recognize that they are defying G-d, either because anger will be ineffective in changing their opinions, or else because anger is an appropriate emotional reaction only to defiance, or violation of the honor of G-d.  If it is nonetheless chosen for instrumental purposes, it must be sustained so that the public can recognize that the opinion is firmly held.  Sustaining anger has a cost to the scholar’s character, however, which should encourage scholar to find other pedagogic means. 

            Rav Mosheh’s underlying assumptions are that being a talmid chakham is inherently a leadership position, and that scholars must recognize that they are responsible not only for giving correct answers but for conveying them with effective pedagogy.

יוסי בן יועזר אומר: יהי ביתך בית ועד לחכמים, והוי מתאבק בעפר רגליהם, והוי שותה בצמא את דבריהם:

 רוח חיים לאבות א:ד

1. יהי ביתך בית ועד כו’ -
2. יתכן לפרש כי במ”ח דברים שהתורה ניקנית בהם, כמבואר לקמן, א’ מהם הוא המחכים את רבותיו ע”י שאלותיו החריפים וממילא רווחא שמעתתא
3. והנה הלימוד נקרא מלחמה,כמ”ש “מלחמתה של תורה”;
4. א”כ גם התלמידים לוחמים יקראו
5. וכמו שאמרו חז”ל “לא יבשו וגו’ כי ידברו את אויבים בשער
6. אפילו אב ובנו הרב ותלמידו נעשו אויבים זא”ז ואינם זזים משם כו’
7. ואסור לו לתלמיד לקבל דברי רבו כשיש לו קושיות עליהם
8. ולפעמים יהיה האמת אם התלמיד, וכמו שעץ קטן המדליק את הגדול
9. וז”ש יהי ביתך בית ועד לחכמים.
10. והוי מתאבק מלשון “ויאבק איש עמו”, שהוא ענין התאבקות מלחמה
11. כי מלחמת מצוה היא
12. וכן אנו נגד רבותינו, הקדושים אשר בארץ ונשמתם בשמי מרום המחברים המפורסמים וספריהם אתנו -
13. הנה ע”י הספרים אשר בבתנו בתינו הוא בית ועד לחכמים אלה, הוזהרנו ג”כ וניתן לנו רשות להתאבק וללחום בדברי’ ולתרץ קושיתם ולא לישא פנים לאיש רק לאהוב האמת,
14. אבל עכ”ז יזהר בנפשו מלדבר בגאוה וגודל לבב באשר מצא מקום לחלוק, וידמה כי גדול הוא כרבו או כמחבר הספר אשר הוא משיג עליו, וידע בלבבו כי כמה פעמים לא יבין דבריו וכוונתו.  ולכן יהיה אך בענוה יתירה
15. באמרו “אם איני כדאי אך תורה היא וכו’”
16. וז”ש הוי מתאבק כנ”ל אך בתנאי “בעפר רגליהם”, ר”ל בענוה והכנעה ולדון לפניהם בקרקע.
17. “והוי שותה בצמא את דבריהם” . . .  ר”ל שותה ועדיין צמא.
18. או יאמר יהי ביתך בית ועד כו’ – ואף אם אינך מבין בעצמך
19. ומשל ליכנס לחנותו של בושם שקולט את הריח
20. ואף אם אינך מבין והנך מתאבק אך בעפר רגליהם, עכ”ז תהיה שותה בצמא את דבריהם

 Mishnah Avot 1:4

Yose ben Yoezer said: Your house ought to be a meetinghouse for the sages, and wrestle in the dust at their feet, and drink their words with thirst. 

Ruach Chayyim (R. Chaim Volozhiner) to Avot 1:4

1. “Your house ought to be a meetinghouse for the sages” –

2. It is possible to explain (this by saying) that among the 48 things by which Torah is acquired, as is made clear later (in Avot Chapter 6), one of them is by adding wisdom to one’s teachers through his sharp questions, so that the content of Torah inevitably expands.

3. Now the study (of Torah) is called combat, as in the expression “the combat of Torah”;

4. Therefore the students too must be called combatants,

5. as the Sages said: “They will not be shamed etc. when they speak with enemies in the gate –

6. even a father and his son, a rav and his student, become enemies one to the other, but do

not move from there (until they love one another),

7. and it is forbidden for a student to accept the words of his teacher when he finds difficulties

with them –

8. and sometimes the truth is with the student, as when a small branch that kindles the larger –

9. and this is what is meant by “Your house ought to be a meetinghouse for the sages”.

10. “Mit’abek” is from the same root as “And a man was mit’abek with him”, which refers to

11. the hit’avkut of combat, for this is a combat of mitzvah.

12. We are situated similarly with reference to our teachers,

13. the holy ones whose bodies are in the ground but whose souls are in the exalted heavens, the famous authors, whose books are with us –

14. Now via the books which are in our houses, our house becomes a meetinghouse for those

sages, we are also commanded and given permission to wrestle and engage in combat with their words and to resolve their difficulties and not to show favoritism to any man, rather to just love the truth,

15. but with all this one must be cautious for the sake of one’s soul lest he speak with arrogance

and expansiveness because one has found a basis for dispute, and imagine that he is as great as his teacher or as the author of the book which he is challenging, rather he must know in his heart that sometimes he has not fully understood the author’s words and intent. Therefore he should take an attitude of great humility, saying “Although I am not worthy, nonetheless it is Torah etc.”

16. This is the meaning of “wrestle”, just on the condition that it is with “the dust of their feet”,

meaning with humility and submissiveness, arguing in their presence while sitting on the

ground at their feet.

17. “And drink their words with thirst” – . . . this means drink but always remain thirsty.

18. Or perhaps the meaning of “Your house ought to be a meetinghouse for the sages” (is that

that you should do this) even if you yourself do not understand (their conversation).

19. A parable: To enter the store of a perfumer, because you absorb the aroma.

20. Even if you don’t understand, and you are only engaged/even encrusted with the dust of their feet, despite all this you must drink their words thirstily.

R. Chaim Volozhiner’s translation of “mit’abek” as “wrestling” (lines 10-11), and subsequent unpacking of the wrestling metaphor, is justly famous, and generally accurately so.  My goal is largely to put this reading in the context of his full comment here, and to cast some light on a few of its lesser-known elements.

One issue that should leap out is that R. Chayyim, despite being the disciple of the Vilna Gaon, does not sharply distinguish between actual and literary teachers.  That is, he does not see it as essential for teachers to have the right of reply to their students. What is necessary is the attitude of humility, not the formal expression of it, and students are entitled – even obligated – to hold their opinions against those of their teachers even when the teachers are not present to defend themselves. It seems clear to me that the context here is practical halakhah. R. Chaim would presumably set standards of minimum competence here, and of relative competence, and I doubt that he genuinely means to forbid accepting the psak of one’s rebbe when one has relatively minor (albeit outstanding) intellectual difficulties with it, but nonetheless the rhetoric is striking.

On the other hand, R. Chaim begins by speaking of students’ contributions as valuable because they enhance the learning of the teacher, rather than independently worthwhile. They are the small twig that kindles the larger – the students’ flame, in and of itself, would just go out. Here he comes from Rav Yochanan’s description of Resh Lakish’s role on Bava Metzia 84a – “He would ask 24 challenges, and I would give him 24 resolutions, and the content of Torah would inevitably expand” – and it’s not clear that this framing applies well to dialogues with books.

One way of pushing this question is to focus not on the wrestling metaphor, but rather on Yose ben Yoezer’s first charge, to make one’s home the meetingplace of sages. R. Chaim understands this, in contemporary terms, as encouraging one to assemble a library. If one reads this only as the precondition for wrestling, very well, but it seems to me that the form of the Mishnah requires it to be independently worthwhile. But is there a point in assembling a library of books with which one does not engage?

This issue is perhaps highlighted by R. Chaim’s less famous alternate reading, that one should make one’s house a meetingplace for sages even if one will understand nothing of what they say, and merely be covered with their footdust, and drink their words thirstily even if uncomprehendingly.  Here he introduces the metaphor of the perfumery, but while one might argue that simply experiencing the sages in their home territory is of great value, it’s hard to say that of books.

At the same time, the mere presence of books does have an impact on the children of the house, and there is value – a value always in tension with our horror of idolatry – in having visible and tangible symbols of our values. Furthermore, books are less likely to let us down badly, especially once we have come to know them well. Upon witnessing any case of rabbinic corruption, there is a real temptation to retreat into dialogue with books.

Here is one way of expressing the tension I’m trying to convey. R. Chaim imposes a serious charge on students – they must challenge their teachers. This is what Rav Yochanan valued unto death in Resh Lakish, and when students fail this responsibility, they share the blame for their teachers’ failures.

But R. Chaim does not, at least not here, create a similarly dynamic responsibility for teachers toward students. Teachers can wait for students to challenge, and then simply react.

Students who never challenge will simply never grow. This may not be problematic when the relationship is human – it is in the nature of students, perhaps part of the definition of authentic disciplehood, to seek correction from their teachers, and everyone has the obligation to find a teacher, “aseh lekha Rav.”  But what happens when teachers prefer to see themselves as students? When rather

than opening themselves to challenges, they feel accountable only to deceased authors, and thus spend their time in one-way dialogue with ancient books? Here humility can become an impenetrable screen for arrogance, and books cannot call them to account.

Texts followed by analysis: 

Sanhedrin 63b

A beraita: “And the names of other divinities you must not mention” – this forbids a person to say to his friend ‘Wait for me next to that avodah zarah’; “it must not be heard on account of you” –  this forbids one from taking an oath in its name, or upholding a oath in its name, or causing others to take an oath in its name or uphold an oath in its name . . . “or causing others to take an oath in its name, or uphold an oath in its name’ – this supports the statement of Shmuel’s father, for Shmuel’s father said: It is forbidden for a person to make a partnership with a non Jew, lest the non Jew become liable to swear to him, and swear by his avodah zarah, when the Torah says “it must not be heard on account of you” 

סנהדרין סג:

תניא (שמות כ”ג): “ושם אלהים אחרים לא תזכירו” – שלא יאמר אדם לחבירו  ’שמור לי בצד ע”ז פלונית’; (שמות כ”ג) “לא ישמע על פיך” – שלא ידור בשמו, ולא יקיים בשמו, ולא יגרום לאחרים שידרו בשמו ויקיימו בשמו … “ולא יגרום לאחרים שידרו בשמו ושיקיימו בשמו” – מסייעא ליה לאבוה דשמואל,  דאמר אבוה דשמואל: אסור לאדם שיעשה שותפות עם הנכרי, שמא יתחייב לו שבועה ונשבע בעבודה זרה שלו, והתורה אמרה: “לא ישמע על פיך”.

 Tosafot Sanhedrin 63b

“It is forbidden for a person to make a partnership” – Said R. Shmuel (Rashbam): All the more so if it has actually come to an oath, that one must not receive it from him (i.e., one must not allow him to swear). But Rabbeinu Tam said: It is permitted to receive the oath from him rather than lose out financially, as we say on Avodah Zarah 6b: that on n a loan made orally one may receive payment from idolaters (near their festivals) because this is as if one is saving the money from them, and we are not concerned lest the idolater go and thank his divinity afterward. Even though that case (AZ 6b) is one of doubt (perhaps he will go thank his divinity), whereas this case is definite (as he must swear), nonetheless in this time all of them swear by their sacred ones (saints) but do not see enshrine them as divinities. Even though they mention among them the name of Heaven, and their intention is for something else, nonetheless this is not “a name of avodah zarah”, and also, their intent is for the Maker of Heaven. Even though they partner the name of Heaven and something else, we have not found that it is forbidden to cause others to partner, and there is no issue of “before a blind person (you must not place a stumbling block”, because the Noachides have not been prohibited to (partner the Name of Heaven and something else)..

תוספות סנהדרין סג:

אסור לאדם שיעשה שותפות – אמר ר’ שמואל: כ”ש שבועה עצמה דאין לקבל הימנו. ור”ת אומר: מותר לקבל הימנו השבועה קודם שיפסיד. כדאמר בפ”ק דמס’ ע”ג (דף ו:) דמלוה ע”פ נפרעין ממנו מפני שהוא כמציל מידם, ולא חיישינן דילמא אזיל ומודה. ואע”ג דהתם ספק והכא ודאי, מ”מ בזמן הזה כולן נשבעים בקדשים שלהן ואין תופסין בהם אלהות, ואע”פ שמה שמזכירין עמהם ש”ש וכוונתם לדבר אחר, מ”מ אין זה שם עבודת כוכבים, גם דעתם לעושה שמים, ואע”פ שמשתפין שם שמים ודבר אחר, לא אשכחן דאסור לגרום לאחרים לשתף, ולפני עור ליכא, דבני נח לא הוזהרו על כך.

Mishnah Sukkah 45a

When they left the altar (following the aravah-ritual on Hoshana Rabbah), what would they say? “Beauty unto you, altar; beauty unto you, altar.” Rabbi El’azar said: “To Him and to you, altar; To Him and to you, altar”.

סוכה דף מה.

בשעת פטירתן מה הן אומרים? “יופי לך מזבח, יופי לך מזבח”. רבי אלעזר אומר:  ”ליה ולך מזבח, ליה ולך מזבח”.

Talmud Sukkah 45b

“When they left the altar what would they say” – But they would be partnering the Name of Heaven and something else, and a beraita teaches: Anyone who combines the Name of Heaven with something else is uprooted from the world, as Scripture says: “Except to Hashem by Himself”. !? This is what the MIshnah means: (When they left the altar, what would they say?) “To Him we concede and to you we offer praise; To Him we concede and to you we offer encomia.”

סוכה מה:

בשעת פטירתן מה הן אומרים וכו’ – והא קא משתתף שם שמים ודבר אחר, ותניא: כל המשתף שם שמים ודבר אחר נעקר מן העולם, שנאמר (שמות כב) “בלתי לה’ לבדו”. !? הכי קאמר: ליה אנחנו מודים ולך אנו משבחין, ליה אנחנו מודים ולך אנו מקלסין.

             What is the halakhic status of the Doctrine of the Trinity?  This is in a certain sense a presumptuous, and in another sense a meaningless, question.  What I mean by that is that since many Christian theologians declare that the doctrine is rationally unintelligible, it is presumptuous of us to claim to understand it well enough to pass judgment on it, and since the logical positivists claimed that statements which cannot be falsified, i.e which are impervious to contradiction, are meaningless, a question about the meaning of an admittedly self-contradictory doctrine is meaningless.  Nonetheless, the question undoubtedly has practical halakhic ramifications of great import, such as whether one has to die rather than verbally assent to the doctrine, and therefore we have no choice but to address it.

            I don’t wish to approach it from the perspective of contemporary psak here, however, but rather to understand the seminal position of “the Tosafot on the daf”.  So I won’t engage with the many different Christian self-understandings of this issue, and will largely ignore the numerous variant formulations found in the various Tosafists.  I also need to acknowledge that the meaning of Tosafot is debated by a remarkable list of the great acharonim, as well as contemporaries, and that I can only write here, in standard rabbinic idiom, ואני הנראה לעניות דעתי כתבתי – acknowledging that others greater than I have said otherwise (and likewise), I have written what seems true to my impoverished intellect.  Finally, I need to thank my friend and long-ago chavruta Rabbi Yaakov Genack, who researched this sugya with me at great length in YU when we were “doing Avodah Zarah together”. 

              The immediate halakhic queston before Tosafot is the ban stated by Shmuel’s Father (Sanhedrin 63b) on forming commercial partnerships with ovdei avodah zarah (whether this position reflects a Talmudic consensus, or a minority position, is not our issue here) on the ground that

1. a partnership disagreement may generate a requirement to take an oath, and
2. an oveid avodah zarah partner would presumably swear by his own divinity, and
3. there is a Biblical prohibition against being the cause of someone else mentioning the name of “another god”.  (There are of course contextual limits to that prohibition, but for our purposes, all that need be said is that an oath certainly falls within them.)

Rashbam reasonably deduces that a fortiori one may not require an oveid avodah zarah to swear to one even when imposing such a requirement is financially advisable, but Rabbeinu Tam permits this. 

Rabbeinu Tam’s initial basis for doing so is by analogy to a Talmudic permission to accept repayment of loans made without a receipt to ovdei avodah zarah near avodah zarah festivals, despite the risk that this will cause them to commit avodah zarah when they thank their god(s) for enabling them to remove their debt – this suggests that one can risk causing avodah zarah by ovdei avodah zarah in order to avoid financial loss.

This argument, however, is not seen as compelling, as here the issue is not a risk of avodah zarah, but rather a certainty that the oath will be taken.  (This rejection itself may be challenged as follows: The plaintiff in a lawsuit always requires the defendant to take an oath in the hope that the defendant will choose to concede rather than commit perjury; thus while it is certain that the oveid avodah zarah will swear by his god(s) of he swears, it is not certain that requiring him to swear will result in him doing so, and the Jewish plaintiff would much prefer, for reasons unrelated to halakhah, that he choose not to do so.  But Tosafot does not take this route.)

The alternative ground then offered is that Gentile contemporaries swore by the names of “their holy ones” (very likely saints, although in alternate versions it may refer to the Bible), and the do not see these holy ones as divine in a way that makes halakhah regard them as names of other gods.

This ground, however, is not sufficient, for two reasons:

A. 

Gentile oaths also referred to the Name of Heaven, and by this they seemingly intend something other than the God we worship (at least the Trinity; in Rabbeinu Yerucham’s version, “their intended referent is Yeshu haNotzri”). 

Two responses are offered to fill this gap:

1. The Name of Heaven, even when used to refer to “another god”, does not constitute a “name of another god’, and therefore causing someone to use the Name in that sense is not a violation of the prohibition against causing the mention of the name of another god (This is a somewhat troubling argument, as it seems hard to think of a clearer instance of literally being ‘mechallel shem shomayim”, desacralizing the Name of Heaven.)
2. While Gentile contemporaries have a different theology than we do, their intended referent when using the Name of Heaven is the One Who Made Heaven.  This is close enough to our conception of G-d that causing someone to use the Name of Heaven in that sense is not a violation of the prohibition against causing the mention of the name of another god.  (What remains unclear is whether causing someone to use a name other than the Name of Heaven, e.g. “Fred”, with the same meaning, e.g “the One Who is Three who made Heaven”, or “the human incarnation of the divine”, would also not violate this prohibition)

B.  

Granting that we can understand Gentile contemporaries as using the Name of Heaven in their oaths to refer to a god who is at the least not wholly other than G-d, and that their references to “their holy ones” in the same oaths are halakhically not references to gods, there seems no way to deny that they are swearing by the Name of Heaven and “their holy ones” simultaneously, and a beraita (Talmud Sukkah 45b) bans statements that refer to G-d and anything else equally, even if G-d is referred to only by pronoun.  (As cited in the name of Rabbi Shimon bar Yochai on Sanhedrin 63a, the ban refers as well to including G-d and something else in a collective pronoun.  Again, this prohibition has contextual limits, but Tosafot assume that the taking of an oath falls within those limits.)

Tosafot’s response to this is that

a.  while the prohibition against the “names of other gods” applies both to mentioning them oneself and to causing others to mention them, the prohibition against referring to G-d and anything else equally applies only to doing so oneself.

b.  Furthermore, that prohibition applies specifically to Jews, and not to Gentiles.  Therefore, there is also no issue of causing a Gentile contemporary to sin by taking an oath by G-d and something else, even though it is forbidden to cause Gentiles to sin (as stated explicitly on AZ 6b and elsewhere in the Talmud), and even causing a Jew to take the same oath would be causing that Jew to sin. 

It should be evident that this last response says nothing whatever about the Halakhic status of belief in the Trinity – it refers specifically to statements that refer to G-d and other things equally even when it is obvious that the stater does not see those other things as divine.  In another context I have pointed out, as has Dr. David Berger, that it is actually the second response to A above that is more relevant to the issue of the Trinity.  The question, as I noted above, is whether the claim that using the Name of Heaven in a Christian sense does not constitute using a “name of avodah zarah” entails that believing the Christian understanding of G-d does not constitute Avodah Zarah; in other words, when Rabbeinu Yerucham says that the first statement is true even when the Name of Heaven refers to Yeshu HaNotzri, would he necessarily say that one could cause someone to swear by the name Yeshu haNotzri? 

It seems to me that the answer in Tosafot is likely yes, as to be effective Tosafot’s final argument regarding “lifnei iver” must also be true with reference to avodah zarah as such; in other words, he must hold that causing a Gentile to swear by the Name of Heaven, understood in a Christian sense, is not an act of worshiping Avodah Zarah.  This would presumably not be true if one intended the Name of Heaven to refer to a minor (or major) member of the Roman pantheon for instance. 

            In another context I seek to demonstrate¹ as against Professor Halbertal, that Meiri’s understanding of Christianity is mischaracterized as radical; it is actually identical with that of Tosafot as described in the preceding paragraph.  I also note more tentatively, in the name of the Seder Mishnah, that this position may even be shared by Maimonides, as he always derives the prohibition against belief that G-d is divisible from the verse “Shema Yisroel”, which presumably applies only to Jews.

            A few points in conclusion: 

1. The halakhic position that belief in the Trinity is avodah zarah for Jews but not for Gentiles is highly attractive practically, and in some senses morally, and adopted by many post-medieval decisors, but I cannot find any medieval basis for it.  This of course raises fascinating issues in terms of psak.
2. As noted trenchantly by Rav Yehudah Herzl Henkin, the claim that belief in the Trinity is not avodah zarah for both Jews or Gentiles does not mean that Christian practice for both Jews and Gentiles.  Certainly Maimonides states explicitly that Christianity in all its forms is avodah zarah, despite the cogent argument from Seder Mishnah cited above.  It also seems to me clear that Tosafot believed that conversion to Christianity was yehareg v’al ya’avor, and I find it very hard to believe, in the absence of an explicit contrary statement, that Meiri thought otherwise. 

What I think has generated confusion is the tendency to translate avodah zarah as “idolatry”, i.e. as the worship of false gods in place of the One True G-d.  A better halakhic definition is “the worship of anything other than the One True G-d”  (In another context I have argued for an even more precise definition that accounts for the permission to serve human beings in manners that would be forbidden as worship with regard to other things, ואין כאן מקום להאריך.)  This can be seen from Nachmanides’ understanding that the paradigmatic case of avodah zarah, the sin of the Golden Calf, was worshiping it as a representative of the true G-d, and from Maimonides’ argument that the original avodah zarah was the worship of the stars etc as the intermediaries between G-d and humanity.  Thus, for instance, genuflecting before, or burning incense before, statues of human beings may be avodah zarah even for someone (Jew or Gentile) who does not believe those statues to be anything more than symbols of the One True G-d.

It is necessary to state, and emphasize, in conclusion that as understood above Meiri stands for the critical position that the commission of acts of technical avodah zarah, and belonging to a religion that regularly requires such acts, does not remove a Gentile from the status of “bar dat”, of civilized person, to whom essentially all the moral obligations one has toward Jews apply equally,  This is actually more radical, and has more universalist implications, than understanding his tolerance as rooted in a particular understanding of Trinitarianism, although I tend to argue that even in this reading Meiri is not all we need to develop a Halakhah that genuinely acknowledges the tzelem Elokim of every human being.  But Meiri certainly takes us a long way in the right direction.

1. Editor’s Note:  This is a referrence to an as-of-yet unpublished paper by Rabbi Klapper initially given at the 2007 AJS conference.  You can read an unauthorized summary here.  An audiotape of the basic ideas can be found here.

The Angel’s Oath:  The Relationship of Hazal to the Platonic Doctrine of Recollection

by David C. Flatto

Whereas balei mussar and machshava dramatize the great clash between Judaism and Hellenism (which serves as the background to the holiday of Hanukka), Jewish historians go to great lengths to demonstrate the degree to which Second Temple Judaism was influenced by Hellenism (including the Hasmonean dynasty).  Both of these perspectives contain elements of truth.  A study of the respective attitudes, creeds, and ideologies of Jews and Greeks reveals clear disparities and striking similarities.  A third kind of relationship between Jewish and Greek ideas also exists: where their respective approaches seem to overlap, but, upon closer scrutiny, diverge in significant ways.  Here the encounter between Judaism and Hellenism is especially important for appreciating the Torah’s values, as the foil of Hellenism helps deepen one’s understanding of what is distinctive about Jewish thought. 

*  *  *

Let me try to demonstrate this by revisiting a legendary Talmudic passage describing the fetus studying Torah: Bavli Niddah 30b.[1]  The passage begins with R. Simlai’s teaching depicting the fetus positioned in the mother’s womb:

R. Simlai delivered the following discourse: What does an embryo resemble when it is in the bowels of its mother? A folded writing tablet.  Its hands rest on its two temples respectively… A light burns above its head and it looks and sees from one end of the world to the other, as it is said, “Then his lamp shined above my head, and by His light I walked through darkness (Job 29).”  … And there is no time in which a man enjoys greater happiness than in those days, for it is said, “O that I were as the months of old, as in the days when God watched over me (Job 29)”…

After initially comparing the fetus’ posture to a writing tablet, the Talmud proceeds to employ fantastic language to describe the extraordinary illumination and bliss of the period of gestation.  In the continuation, the passage cites the famous legend about the fetus studying Torah from the angel:

It is also taught all the Torah from beginning to end, for it is said, “And he taught me, and said unto me: Let thy heart hold fast my words, keep my commandments and live (Proverbs 14),” and it is also said, “When the converse of God was upon my tent (Job 29)”…

Just as light exposes the fetus to a world-spanning view (“from one end of the world to the other”), so an angel elucidates the entire Torah to the fetus (“from beginning to end”).  Ensconced within a hallowed chamber, the fetus achieves a perfect apprehension of the Torah. 

The utopian existence which the fetus enjoys while in the womb is shattered when it is expelled from inside.  Abruptly, the epiphanies of gestation are lost in the trauma accompanying childbirth:

As soon as it sees the light, an angel approaches, slaps it on its mouth and causes it to forget all the Torah completely, as it is said, “Sin coucheth at the door (Gen. 4)”… 

Once having mastered the entire Torah, the newborn loses all knowledge, and now has to begin the process of “retrieval’ of prior wisdom.  In a beautiful account of this process, Rabbi Soloveitchik helps characterizes the nature of this learning:[2] 

R. Simlai wanted to tell us that when a Jew studies Torah he is confronted with something which is not foreign and extraneous, but rather intimate and already familiar, because he has already studied it, and the knowledge was stored up in the recesses of his memory and became part of him.  He studies, in effect, his own stuff.  Learning is the recollection of something familiar.

 The formulation in the last sentence evokes the classical Platonic doctrine of recollection, as Rabbi Soloveitchik notes in the proximate footnote:

One is reminded, by sheer terminological association, of the Platonic doctrine of anamnesis.

My only quibble with this formulation is that the similarity here is far greater than a terminological coincidence, and cuts to the essence of the underlying idea.  Both Plato and Hazal assume that in a pre-natal state a person had a perfect conception of the truth (or the forms), which was severely eroded at the moment of birth.[3]  Therefore, learning consists in a lifetime attempt to restore this prior knowledge.  Indeed, other Jewish studies scholars dating back to the nineteenth century have noted this profound parallel between Hellenistic and Rabbinic thought.  In Ephraim Urbach’s words:[4] 

In the motif of the unborn child’s knowledge of the Torah and his forgetting it upon being born, scholars, since Jellinek, have discerned the άναμνησις of the Platonic myth… 

In all, Athens and Jerusalem share an essential view of pre-natal life,[5] the idealization of pre-natal knowledge, and especially the characterization of study as retrieval.[6]

*  *  *

Yet despite these profound resemblances, the core conceptions of Greek and Rabbinic thought are actually dramatically different—a point which only becomes apparent by focusing more carefully on this same foundational myth.

To appreciate this distinction, it is worth briefly pondering the Platonic doctrine of recollection.  The essence of this Platonic idea is relatively straightforward:[7] Plato posits that the psyche or soul has pure apprehensions of the ideal forms.  Once the soul is imprisoned within a physical frame, this perception is severely impaired.  A human being can only perceive a shadow of the ideal forms, and must utilize his rational faculties to try to transcend these limits, and acquire a greater understanding of the truth.  This process is repeated in successive incarnations until man succeeds in permanently acquiring a lasting apprehension of the truth.  Thus, the process of recollection aims to comprehend the truth by rising beyond the limits of temporal life, and escaping the trappings of the human existential condition.[8]

At first blush, Hazal would seem to echo this idea by describing the fetus’s tenure in idyllic terms that surpass a person’s life experience, “And there is no time in which a man enjoys greater happiness than in those days…”  Having previously mastered the entirety of Torah, a human will tirelessly strive to approximate his prior wisdom, evidently aiming to heal the rupture of entering a human form.  Moreover, the biblical verses from Job which are a subtext to this Talmudic passage seem to reflect precisely this sentiment.  Of course earlier in this biblical book (chapter 3) Job bluntly curses the day of his birth, and according to Hazal’s daring reading of Job 29,[9] he again expresses a similar yearning to return to a pre-natal existence (not just the days of youthful innocence, which is the simple sense of the verses). 

But the Talmud’s invocation of verses from Job—voicing a cry of tragic suffering—surely is grounds to pause.  For Job’s desperate mindset can hardly be thought of as representing a paradigmatic attitude.  Likewise, a closer reading of this passage points away from Job’s sentiments, and its Platonic resonances.   

A seeming inconsistency in the Talmudic description of the fetus provides an important hint along these lines.  While the thrust of the passage underscores the all-inclusive knowledge of the fetus, the initial characterization of the fetus in the passage suggests otherwise.  The opening lines compare the fetus to a folded writing tablet, or ledger (unlike, e.g., Mishnah Avot 3:16 which refers to an open writing tablet),[10] a tabula rasa which has yet to be opened for inscription.[11]  Within the womb, the fetus is a fresh ledger with no content.  Considered alongside the continuation of the passage, with its depiction of the fetus mastering Torah and wisdom, this portrayal makes little sense.  Why is the ledger folded and blank, rather than open and thoroughly scrawled with Torah content?  On closer inspection, these two images are reconcilable, and revealing.  For the notion of a ledger is used in rabbinic literature to describe the record of a human being’s deeds.[12]  Since the fetus in utero lies in a pre-natal state, this is necessarily empty.  In contrast, the child’s wisdom bank is full to capacity.[13]

The dichotomy between knowledge and action is crucial for perceiving the deeper message of this Talmudic account of the fetus.  It affords the key to understanding the decisive, concluding lines of this passage, describing the final interaction between the angel and the fetus immediately prior to birth:

It (=the fetus) does not emerge from there before it is made to take an oath… What is the nature of the oath that it is made to take? Be righteous, and never be wicked…

Administered at the culmination of the angel’s tutelage, the oath presumably epitomizes the main charge to the emergent newborn.  Nevertheless, the oath’s curious formulation is far from obvious.  Against the backdrop of the angel’s intensive Torah instruction which has just been erased, one would imagine an oath to adjure the newborn to resume his Torah study.  Something along the lines of, ‘Be wise, and never be foolish.’  Instead, the baby is charged to be righteous, not wicked.  In a deliberate shift, as the baby prepares to enter the world, the angel emphasizes a distinctive goal.  The ultimate lesson of the angel focuses on acting righteously, rather than on mastering Torah knowledge, as this constitutes the newborn’s supreme task.[14]

Moreover, this cardinal assignment is only possible outside of the womb.  Notwithstanding the utopian image of life in the womb—where illumination, wisdom and happiness are achieved—the purpose of life cannot be accomplished in the womb.[15]  For one thing that one cannot be inside the womb is righteous; or wicked for that matter, either.  These latter epithets are only assigned based upon how one lives—one’s concrete actions, in the face of moral choices—after exiting the womb.  As the Talmudic passage underscores by citing Genesis 4:7 (“as it is said, sin coucheth at the door…”), weighty moral hazards await the fetus outside the womb.  But only when navigating in such a landscape, can a person prevail and achieve righteousness or wickedness.  After immersing the purified soul in the well of Torah, the newborn is properly oriented to successfully engage in a world full of challenges, and adhere to his oath of righteousness.

Thus, the focus of the rabbinic legend of the fetus is not to highlight perfection within the womb, but the challenging call that beckons beyond it.  For human beings were essentially created for the precious, if formidable, mission that only begins after departing the womb.  Unlike the Platonic ideal of escaping the prison of the body in order to achieve transcendent contemplation, the Rabbinic ideal anticipates an inspired, but pulsating, human being, leading a righteous life of worldly actions.

[2] Rabbi Soloveitchik— “Redemption, Prayer, Talmud Torah” (Tradition 17:2,  p.69).

[3] For the Platonic doctrine, see Meno 80-86, Phaedo 66-76, Phaedrus 247-250 and the Republic, Books 5, 7 and 10.

[4] Ephraim E. Urbach, The Sages (p.246).

[5] For other conceptions of pre-natal life, see the recent collection of essays in Vanessa R. Sasson and Jane Marie Law, eds., Imagining the Fetus: The Unborn in Myth, Religion, and Culture (brought to my attention by Menachem Butler).

[6] Afterwards Urbach notes the position of Yitzhak Baer, who likewise recognizes the Platonic notion, but questions the physicality of the Talmudic description.  See also Urbach’s subsequent analysis on pp.246-48 which notes certain important differences between the Greek and Jewish images of pre-natal life.    

[7] Obviously I am simplifying a topic that has received much examination in classical scholarship (a useful volume that summarizes much scholarship is Richard Kraut (ed.), The Cambridge Companion to Plato).  Still, as a general statement, I hope that my characterization is sufficiently accurate and helpful. 

[8] The Romantic poets spoke of the “eclipsing curse of birth.”  See Simon Blackburn, Plato’s Republic: A Biography (p.109).

[9]  “¹Job again took up his discourse and said: ²‘O that I were as in the months of old, as in the days when God watched over me; ³when his lamp shone over my head, and by his light I walked through darkness; ⁴when I was in my prime, when the friendship of God was upon my tent; ⁵when the Almighty was still with me, when my children were around me…”

[10] On the nature of the pinkas or pinax, see Menahem Haran, “The Codex, the Pinax and the Wooden Slates,” in Tarbiz 57 (pp.151-164), and Catherine Hezser, Jewish Literacy in Roman Palestine (pp.127-130).

[11] See Aristotle’s De Anima, Book 3, Chapter 4.  In a sense, then, the Talmudic passage collapses two Greek ideas that are irreconcilable as epistemological ideas, but can be harmonized along other lines.  See below.

[12] See, e.g., Mishnah Avot 3:16, Bereshit Rabbah 81:1 and tShabbat 1:13.

[13] This reading seems preferable to two less attractive alternatives: the first being that the folded writing tablet connotes a tablet that has been completely inscribed and folded; the second being that, while the folded writing tablet does connote a blank tablet, this merely reflects the initial state of the fetus, before learning Torah from the angel. 

[14]Study is greater, for it leads to action.  See Bavli Kiddushin 40b.

[15] This understanding of the Talmudic passage allows the rabbinic conception to better accord with the biological reality wherein fetal life is preparatory for human life outside of the womb.

Conflicting Interpretations of the Talmud as Conflicting Needs in Society

Baba Batra 5a, 7b-9a[1]

Guest Post

by Daniel Roth

I. Introduction

Gemara be-iyun, or the traditional in-depth study of the Talmud practiced in advanced Jewish learning institutes around the world, is widely regarded as the study of the Babylonian Talmud together with its Rabbinic interpretations (Rishonim, Achronim) not for the sake of understanding the halakhah. The question is: what is the purpose of such in-depth Talmud study?  Or, put differently, how might the student of such in-depth Talmud study perceive his or her endeavor?   Some students have perceived themselves as Talmudic mathematicians or physicists, seeking to define the underlying conceptual principles behind the Talmudic laws.[2]  Others have perceived themselves as Talmudic historians or archeologists seeking to uncover the various layers of the Talmudic text and the development of the halakhah that was to follow over the course of history.[3]  We would like to add a third perspective:  That  the student of the Talmud perceives him or herself as a mediator, seeking to understand the various needs and interests behind the conflicting interpretations of the Talmudic text, and to be able to relate those same eternal dilemmas back into her or his own reality.[4] 

When the student, thinking like a mediator, opens up a page of Talmud and hears the conflicting voices of the Rabbis regarding how to read a particular line in the Talmud, he or she first attempts to listen carefully to how each side presents its case.  Once all the possible positions have been presented and heard, she or he then proceeds to explore what may be some of the underlying interests or needs motivating each textual interpretation.  Finally, the student attempts to translate these rabbinic debates over conflicting needs and interests back to his or her own society which may be dealing with similar conflicts.  Therefore, the goal of in depth Talmud study, from this perspective, is both to understand the text through real life, and real life through the text.

This article seeks to present what “Talmudic Mediation” might look like through exploring five discussions of conflicting rabbinic interpretations of specific Talmudic lines from the first chapter of Babylonian Talmud Baba Batra.  Each of these discussions will be analyzed by relating to the following questions: 1. what are the different rabbinic interpretations or positions regarding a particular Talmudic statement?  2. What might be some of the conflicting needs and interests motivating these different interpretations?  3. What might be considered similar conflicts in our society today?    

II. The Needs of the Periphery versus The Needs of the Center:  

The question of the needs of the periphery versus the needs of those in the center comes up in the Talmudic discussion on taxes, found in the Babylonian Talmud (B.B. 7b).  The Mishnah (B.B. 1:5) there states:

The Talmud (7b)[5], commenting on this Mishnah, cites two versions of R. Eleazar asking R. Yochanan how this tax for the town wall is collected: 

The Talmud raises three possibilities of how the tax for the town wall should be collected:  1. Shevah mamon, meaning that one pays according to their relative wealth; 2. Shevach bney adam, meaning that each person pays a flat rate; or 3. Kiruv Batim, meaning that each person pays according to their proximity to the town wall.  The first two possibilities are recognizable within our society today (“progressive” and “regressive” taxes), and within other Rabbinic texts.[6]  However, the third possibility, kiruv batim, which is also the position accepted as the halakhah, is unfamiliar. Three Rabbinic interpretations have been offered as to how to understand how kiruv batim works. 

Rashi (c.v. kiruv batim) explains:

According to Rashi, the closer one lives to the wall, and the more he needs and benefits from its protection, the more he must pay for it.  This interpretation, which suggests that the more one is in danger, the more he must pay for his protection, was contested by other Rishonim, and two alternative explanations were offered.   Rabbenu Tam, (R. Yackov b. Meir, Rashi’s grandson), is quoted as saying:[7]

Rabbenu Tam here argues that the principle of kiruv batim is only a secondary consideration, while the primary one is shevah mamon (according to the wealth of each individual), and therefore a poor person will never end up paying more than a rich person.[8] 

A third explanation was raised by the Rama (Rabbi Meir HaLevi Abulafia). The Ramah rejects the explanations of Rashi and Rabbenu Tam and wrote in one part of his lengthy discussion on the topic:

The Ramah rejects Rashi’s notion that kiruv batim means the closer one lives to potential danger the more one has to pay, for if this was the case, the only criteria would be the wealth of the citizens of the town.  He also rejects any possible reading combining kiruv batim with shevach mamon (Rabbenu Tam) since they are portrayed in the Talmud as two separate options.  Rather, according to the Ramah, the reason why the person living closer to the wall must pay more is because he has caused the wall to be expanded in its circumference, therefore causing an increase in the wall’s overall cost.  The principle of kiruv batim is therefore that the more one causes an increase in expenses, the more one must make up for the difference.  The problem with the Rama’s interpretation is, however, that, in most situations the closer one lived to the wall, indeed the more one was exposed to danger, and therefore need the wall to protect them, and they should not be considered as causing additional unnecessary expenses to the town.

This difference of interpretation regarding kiruv batim may be understood in various ways.  It may be understood as being motivated by possible differences in interpretive styles and historical realities[9], or as opposing conceptual understandings of the law[10], or, we may suggest, as reflecting conflicting group needs and interests in society. Understood this way, Rashi presents the principle of kiruv batim as promoting the interests and needs of the residents of the center of the community, who live further away from danger.  The closer one lives to an area full of risks and dangers, the more one must pay for his own security.[11]  It is unfair to obligate those who do not live in such an area of danger to contribute equally as those who do.  For example, if one lives in an area that is hit by tornadoes, the residents of the area may be expected to pay more taxes for their protection than those who do not live there.

Rabbenu Tam agrees with Rashi’s basic understanding of kiruv batim as the closer one lives to danger the more they must pay for their own protection,  yet he seems to disagree with Rashi in seeing this principle as standing alone, and suggests it is secondary to the principle of progressive taxation.  This position seems to be promoting the interests and needs of the poor and the weak in the society, those who have not chosen to live in a dangerous area.   For example, a person who lives in an area where there are many tornadoes might be too poor to move to a less dangerous area, and it would be very unfair to obligate him or her to pay more for living in a dangerous area.  This point is strengthened when combined with the possibility that the area in question is strategically essential to the welfare of the rest of the town, for if they did not live near the wall, and the dangers from outside, someone else would have to!   

The Rama understands kiruv batim as having nothing to do with proximity to danger, but suggests that the further one lives from the center, the more it costs to include him in the wall, and that is why he must make up the difference.   This principle may be found  in a case where a person lives far away from the rest of the Jewish community, yet insists that he be included in the eruv; he may be expected to help pay for the difference of its expansion.   The Ramah here is promoting the interests of both the residents of the center and of the endangered periphery by differentiating between two cases.  In a case where there is no danger to be spoken of, we protect the interests of the residents of the center, by charging more to those who chose to live further on the periphery.  However, in the case when there is more danger to some than others, we do not apply the principle of kiruv batim at all, rather only the principle of shevach mamon, where the wealthier pay more than the poor. 

 In today’s society we find similar disagreements in regards to the relationship between the periphery and the center.  Are the residents of a periphery area, living in relative danger, perceived as a financial burden on the rest of society, and should they therefore be held more responsible for their own enhanced security needs, along the lines of Rashi’s comments?  Or, are they there because they cannot financially afford to leave and settle in the less dangerous center, and therefore should they be supported by the residents of the center along the lines of Rabbenu Tam or the Rama?  Perhaps, they, by living where they do, are protecting the vital interests and needs of the center, and therefore should benefit from the support of the center, along the lines of richuk batim (the further one lives from the periphery the more they should pay)?  

III. The Needs of the Orphans versus The Needs of the Community:  

Two separate Talmudic discussions that relate to the question of the needs of orphans versus the needs of the community will be presented here.  The first discussion, in Baba Batra (5a-5b), discusses whether or not we believe a person who claims to have repaid his debt within the allotted repayment period.  The Talmud concludes this discussion with the following ruling: 

The Talmud rules in favor of Resh Lakish, who held that one is not believed to have paid back his debt within the given time.  However, the Talmud does not suffice with this ruling, and adds that if a man who borrowed money dies within the time allotted for repayment, the lender may collect his debt from the borrower’s orphan children, even without the usually required oath, since there is no suspicion at all that the borrower paid back his loan within the time before he died.[12]   The question debated by the interpreters of the Talmud was: which orphans is the Talmud referring to here? 

The early codifiers of the Halakhah, such as the Rif and the Rambam (Hil. Malveh 14:1) make no distinction between types of orphans, and one may assume that the law applies to all types.  This opinion, however, was challenged by Rabbenu Tam and his followers, such as his brother the Rivam (R. Yitzchak b. Meir), and their nephew the R”Y HaZaken (Rabbenu Yitachak bar Shmuel from Danfour).[13]  According to them, the Talmud here is referring to mature orphans only, however if the orphans are young, a lender is not allowed to collect his debt until they come of age.   This opinion, while initially spreading to later Spanish scholars, such as Rabbenu Yonah of Gerondi, was later rejected by the Rosh (R. Asher b. Yehiel), whose opinion was codified into law by his son, the Tur (R. Yaaacov b. Asher), and the Shulkhan Arukh, leaving the Halakhah as it was initially understood, that one may collect a debt even from young orphans.

            The roots of the debate over which orphans a debt may be collected from, may be understood in different ways.  It may be as a result of textual questions over how to interpret our text in light of others[14], or over how to understand formal legal concepts[15], or, once again, over how to balance conflicting needs in society.  On one hand, those who hold, like Rabbenu Tam, that one is not allowed to collect the debt from young orphans when their father passed away within the repayment period are promoting the interests of the orphans, who are undoubtedly a population that cannot speak up and protect its own interests.   It is, therefore, the responsibility of the law to protect their interests and not to allow them to be oppressed, as the prophet Jeremiah (6:7) warns “גר יתום ואלמנה לא תעשקו” (“Do not oppress the stranger, the orphan and the widow”).  On the other hand, those commentaries who hold that one is allowed to collect their debt even from young orphans, are not against protecting the rights of vulnerable orphans, but rather, are concerned for the general welfare of the lending market and society at large, or in Rabbinic terms “כדי שלא תנעל דלת בפני לווה” (“in order that the door shall not be locked in front of borrowers.”).   The more exceptions there are to the obligation to repay a debt, the less willing the lender will be extend another loan and society as a whole will suffer.[16]

A good illustration of the possible tension between the conflicting needs of the weaker orphan population and the community at large may be found in the Sefer HaTakanot (book of enactments) of the Spanish-Portuguese community in Morocco in 1494, just some two years after many of the community’s members’ expulsion from Spain.  

From this historical accounting of enactments, we may learn two things.  First, the tradition of the community, up until then, seems to have been not to collect the debt from young orphans.  Second, given the extremely challenging times, this community was undoubtedly going through, there was a need to make a new enactment to protect the needs of the community at large, “in order that the door not become locked in front of the borrower.”

A second example of conflicting needs between orphans and the rest of the community appears alongside the Talmud’s (B.B 8a) discussion of the taxes levied on the Rabbis.  Towards the end of the discussion the Talmud states:

The orphans, according to the Talmud, only have to pay taxes for things from which they benefit security directly.  The question debated by the interpreters of the Talmud is:  which taxes provide orphans with security, and which do not?  The R”Y Migash interprets the general principle in a very limited way, very much along the lines of R. Papa’s statement above:    

This interpretation of the R”Y Migash was soon contested by the next great Spanish scholar, the Ramah, who writes as follows: 

 According to the Ramah, orphans are obligated to pay taxes not only for those services that provide immediate protection, but also for all taxes paid to the (non- Jewish) king, since his protection is the most important of all.   A later formulation of the same opinion as the Ramah was expressed by the Rosh (Piskey HaRosh 29), who seems to perceive taxes paid to the king as more of a protection from the king than protection by the king. [19]    

     This debate regarding the interpretation of the Talmudic “general principle” that obligates orphans only on matters from which they benefit in personal security, does not have to be seen as strictly a matter of textual interpretation[21], as a change in historical realities[22], or as a conceptual legal question[23], but may reflect the tension between the need to protect the interests of the weak, in this case the orphans, versus the need to protect the interests of the society at large.  The less the orphans pay in taxes (R”Y Migash), the more the rest of the community must bear the brunt; the more the orphans pay (Ramah, Rosh), the less the rest of the community needs to make up the difference.  The question in debate is, therefore, how much financial responsibility should the community take upon itself in protecting the interests of the weaker orphans?    

 Similar debates to both of these Talmudic discussions on the needs of the orphans versus the needs of the community may be found in our society today.  There are those who argue strongly for more tax exemptions (and financial aid) for the weaker segments of society (such as the elderly), and there are those who will argue in favor of limiting such exceptions, thereby strengthening the economic and physical security of the whole community. 

IV. The Needs of the Poor versus The Needs of the Community:   

The Talmud in Baba Batra (8a) brings a beraita that discusses the degree to which the townspeople can use money raised for the poor for purposes other than those for which it was originally intended:   

According to the beraita, the townspeople can change funds for the soup kitchen into the charity fund and the charity fund into funds for the soup kitchen, but what exactly does the additional phrase “whatever purpose they choose” refer to?  Can they really use this money for any function, or are there certain limitations?   This beraita is later quoted again later in the Talmudic discussion that brings a story about Abayeh’s teacher, Rabbah:

The question the interpreters of the Talmud ask is: what was wrong with sitting on the mats in the first place?  Rashi explains: 

 Rabbenu Tam, following in his grandfather Rashi’s footsteps, notes that the townspeople can even use the money raised for the poor for other community functions that might only be considered “optional”.

According to this interpretation, the townspeople can use money raised for the poor for just about whatever purpose they choose, because the donors contributed with the intention that the townspeople would distribute the money at their discretion.  However, this opinion was contested by other medieval scholars, such as the Ramah, who argued that the money raised for the poor must only be used for the poor.[24]  

 This disagreement between Rashi and Rabbenu Tam, on the one hand, and the Ramah, on the other, does not need to be understood as the result of textual differences[25], nor of conceptual legal differences[26], but possibly as a result of differing sets of priorities in dealing with conflicting social needs in society. 

            Today, similar debates may be found with regard to budget cuts.  Should the government be allowed to use money allocated for the Ministry of Social Affairs in order to increase, or maintain, the defense budget, along the lines of Rabbenu Tam?  Or perhaps, these special needs should be, to a certain degree, considered “untouchable”, and any attempt to cut funds allocated to the poor should be regarded as stealing from them, as the Ramah writes.  

V. The Needs of the Poor of the town versus the Needs of the Poor from outside:

The Talmud cites another recollection of Abayeh regarding his rabbi, Rabbah.    

According to Abayeh, Rabbah at first used to keep a separate purse for the poor of the town and the poor from outside the town, and later switched over to one purse for both, making a stipulation with the town’s people that allowed him to do so.  The question the Rishonim ask is: what is the relationship now between the poor of the town, and the poor from outside the town, once there is only one purse (or budget) for the two of them?  Which group stands to gain, and which to lose?  The commentary attributed to Rabbenu Gershom interprets this new reality as follows:   

According to this interpretation, the combining of the two purses into one, seems to play to the advantage of the poor of the town.  They now have first preference over all money raised, and only after their needs have been met, can the poor from outside come and receive charity.  

 A seemingly alternative interpretation is offered by Rashi:  

 According to Rashi’s interpretation, there is no preference to the poor of the town over the poor of the world, rather they are considered equal, and whoever comes first to the distributer of the charity may stand to benefit.  This interpretation sees the transition from two separate funds to one fund as possibly playing to the advantage of the poor from outside the town, since their rights are now equal to those of the local poor, and there may even be more funds available to them than before.

  Here too, the difference of interpretation between these two commentaries can be understood as the result of close textual readings or different conceptual legal understandings, yet it may also be understood as reflecting a difference in values. One interpretation (R. Gershom) promotes the interests and needs of the local poor, and the other (Rashi), promotes the interests and needs of the poor from outside the town.  

            In Today’s society, for example, combining two charities into one may increase exposure and giving, cut out unnecessary overhead, and allow for more funds to go to the end recipients (along the lines of Rashi’s interpretation).  Alternatively, sometimes combining two separate charities may be to the detriment of the potential recipients, leaving less for them than had originally been prior to the merger (in line with Rabbenu Gershom’s interpretation).  

VI. The Needs of Poor Torah Scholars versus the Needs of Poor non-Torah Scholars:

Another Talmudic law that relates to the conflicting financial needs of various groups comes up as the result of the story told of Rabbi Yehudah HaNasi, mentioned earlier, amidst the discussion on taxes (8a).

 This story about Rabbi Yehudah HaNasi initially not wanting to give provisions to poor non-Torah Scholars in a time of famine,  has been discussed and analyzed by several scholars, from historical[27], literary[28] and philological aspects.[29]   The question challenging the classic rabbinic interpreters of this story was of more of a legal nature: When do we give charity to a poor non-Torah Scholar, and when do we not?  According to the Ramah, we give charity to a non-Torah Scholar, as long as he has good derech eretz, but if he lacks even this, we do not give him charity at all. [30]  Another opinion offered by the Ritvah proposes that we give him charity only if it is an absolute matter of life and death, however, if he could go to another town and receive charity there, this would be preferred.[31]  A third interpretation was offered by R. Yosef Karo (Shulkhan Arukh Yoreh Deah 251:11), who cites our story in the context of the laws of whom to give charity to and who not to.  He writes as follows:

            The Shulkhan Arukh here presents the dilemma in a totally different light than the two previous commentaries.  According to him the question of giving charity to a non Torah Scholar, is not dependent on what kind of am ha’aretz he is (Rama, one with good deeds or not) or only a matter of how desperate is he (Ritva), but rather, primarily a question of priorities when there are limited resources.   He describes three different scenarios:  1. There are very limited resources, and one has to chose between giving to a Torah Scholar or giving to an am ha’aretz, one must give to the scholar.   2.  There are no limits of resources; one must give also to the am ha’aretz.  3.  There is only a doubt whether giving to an am ha’aretz, who is also dying of starvation, may come on account of the resources needed by a Torah Scholar later on, one must give to the am ha’aretz.   This interpretation of the Shulkhan Arukh, seems to stem not only out of a close reading of the Rabbi Yehudah HaNasi story, which takes place in a time of famine, but also out of his understanding situations of conflicting needs between different groups in society.  It is important to help Torah Scholars and non-Torah Scholars, but when there is a conflict between these two groups, one must prefer the needs of the Torah scholars. 

             In today’s society, the topic of the “other”, the one who does not share our common identity or values, yet is part of our society and dependent upon us, comes up often.   The question is do we look at this other, whoever she or he may be, and decide whether they are deserving of our financial help based upon their basic loyalty to our values (they too have derech eretz, even if they do not know Torah)?  Do we begrudgingly agree to help him or her only when her or his situation is so dire that it is a matter of life or death, or do we try to help him or her as much as we can, so long as this help does not come at the detriment of our own primary interests and needs?   

VII. Conclusion:

This article attempted to demonstrate a few brief examples of an approach to in depth Talmud study that may be referred to as “Talmudic Mediation.”  This approach seeks to challenge the student to relate to the vast number of Talmudic debates as a mediator would,  first, listening to all of the various positions, and then seeking to identify the needs and interests behind those positions.  This engagement with complex and conflicting group needs in the Talmudic text should assist in the student’s transformation and growth in to being a more sensitive and capable mediator of similar conflicts in her or his society and lives today. 

            It is our belief that just as we attempted to demonstrate this approach on several topics, relating to matters of civil society as they are found in Baba Batra, we can apply it to other discussions throughout the Talmud.  It is our prayer, that through serious in-depth study of the Talmud, we can come a little bit closer to fulfilling Rabbi Chanina’s tall order that תלמידי חכמים מרבים שלום בעולם (“Torah Scholars increase peace in the world.”)  

* Rabbi Daniel Roth is the Director of the Advanced Scholars Program (Kollel) and Coordinator of the Peace and Conflict Track (Rodfei Shalom) at the Pardes Institute of Jewish Studies in Jerusalem.

[1] I would like to extend my deep gratitude and thanks to to all the participants in the Pardes of Kollel of 5769 who helped assisted me in thinking through many of the ideas presented in this paper.  In addition, I thank Livia Levine and Debbie Jacobson-Maisels, who carefully reviewed and submitted important comments to this paper.  Very special thanks to my ezer kenegdi Leora Kesten-Roth, for all her hard work in editing this paper. I would also like to thank Rav Elisha Ancselovits who first inspired me to connect the principles of mediation together with the in–depth study of Talmud.     

[2] See, for example, Rabbi Herschel Schachter’s description of Rabbi Joseph Soloveitchik’s method of in-depth Talmud study:   ”He (Rav Soloveitchik) would say that in physics, the physicist looks around in the world, and sees a number of phenomena.  The physicist’s job is to figure out the formula that will explain them.  Similarly, in halakha, there are thousands of dinim.  It’s like a jungle full of dinim.  The proper derekh is to try and figure out the underlying rule.”  From, Ari Lamm, “Torah is not Just a Collection of Dinim: An Interview with Rav Herschel Schachter”, Kol

HaMevaser Nov. 5^th, 2007.  The interview can be found at: http://media.www.yucommentator.com/media/storage/paper652/news/2007/11/05/KolHamevaser/Torah.Is.Not.Just.A.Collection.Of.Dinim.An.Interview.With.Rav.Herschel.Schachter-3079257.shtml See also Rav Soloveitchik’s book Halakhic Man [at pp 18-19], where he also refers to the imagery of the mathematician.

[3]See, for example, Prof. Shamma Friedman.  “The Talmud Today” http://www.atranet.co.il/sf/talmud_today.pdf

[4]  Regarding the importance of identifying needs and interests by the mediator, see John W. Cooley (2006).  The Mediator’s Handbook.  The National Institute for Trial Advocacy.  P. 223:  ”Many of the principles of good mediation are the same as those of good negotiation.  Chief among them is the principle of identifying all party’s underlying needs and interests.”

[5] The Hebrew text is from ms. Hamburg.

[6]  See Tosefta Baba Metzia 7:13 (T.B. Baba Kamma 115b):  שיירה שהיתה מהלכת במדבר ונפל עליה גייס וטרפה מחשבין לפי ממון ואין מחשבין לפי נפשות.  אם שלחו טייר לפניהן אף מחשבין לפי נפשות ואין משנין ממנהג הולכי שיירה.

[7] Tosefot B.B. 7b c.v. Lefi Kiruv Batim:

[8] Similar interpretations were offered by several other Rishonim.  See for example the comment of the R”Y Migash (R. Yosef Ibn Migash) that reads kiruv batim as “also” kiruv batim, but first we check to see how much money everyone has, as he writes “הא למדת ששבח ממון הוא העיקר” (“You learn that shevach mamon is the primary criteria.”)

[9]  Rashi is interested in the “simple” reading of the Talmudic text, therefore explains kiruv batim more literally.  The R”Y Migash, who holds like Rabbenu Tam and other Rishonim, read kiruv batim as being a secondary criteria because they are interested in a more “global” interpretation, that take in to account the Talmudic discussion in B.K. 116a.  The Ramah, who lived in the period of the Reconquista in Spain, may have been motivated by particular historical realities as a result of many new towns and cities being built. 

[10]  What is the nature of the tax for the town wall?  The R”Y Migash and Rabbenu Tam might see it as more formal municipal tax, while Rashi and the Rama might see it as more of a private or neighborhood tax.     

[11]  A possible proof that this reading is the simplest reading of the Talmud was mentioned to me by my colleague Haggai Reznikoff, who pointed out that the same principle of those who need more security pay more than those who don’t, is featured in the subsequent Talmudic discussion (7b-8a) relating to the principle of רבנן לא צריכי נטירותא (“the Rabbis do not need security”), since the Torah protects them.  This underlying assumption behind this principle, like that of kiruv batim, is that those who don’t need security don’t have to pay for it.  See further Noah Moline’s article “The Torah is their Protector”, in this journal.  Also, note that only R. Moses Feinstein, cited there, interprets the Torah of the Rabbis as not only protecting them but also the community at large.  For further discussion on this idea see Talmud Yerushalmi Hagigah 1:7 (76:3) that identifies the Rabbis as the true protectors of the town.  

[12] See Rashi ad loc.

[13] See the discussion in the  Ginzberg ms. of Tosafot brought in ליפשיץ, יעקב הלוי (1985).  תוספות כתב יד גינזבורג 186.  למסכת בבא בתרא (אוסף).  נסים –ראשונים ואחרונים (תשמ”ה) כז-סח..

[14] For a comprehensive summary of the textual considerations and proofs brought by the opposing Rishonim, see the Rashba ad loc, who cites the parallel Talmudic discussions in Baba Batra (174a), and Erchin (22a)

[15]  Conceptual legal questions may arise regarding the nature and scope of the chazaka that one does not pay back his loan with in the given time,  or in regards to the nature of the shevua (the oath) that the lender normally has to take before collecting from orphans.

[16] See further the discussion in T.B. Gittin 50b that seems to imply that the principle of כדי שלא תנעול דלת בפני לווין, does not apply in regards to orphans. 

[17]ש’ בר –אשר (עורך) יהודי ספרד ופורטוגאל במרוקו. ספר תקנות. ירושלים תשנ”א.  .  Thank you to my teacher Prof. Moshe Rosman exposing me to this source. 

[18] Our translation (based on the Soncino translation) follows the printed edition of the Talmud.  However, all other manuscripts and many other Rishonim read נטירותא (security) instead of הנאה  (benefit).  See Dikdukey Sofrim here note פ. 

[19]  See the discussion in B. Septimus (1982), Hispano-Jewish Culture in Transition:  The Career and Controversies of Ramah.  Cambridge, Mass.  Pp. 12-13, who relates the change in tone to historical differences between the Ramah’s time to the Rosh’s time in Christian Spain. 

[20] Translation is by Septimus p. 13.   

[21] i.e. What is the exact relationship between R. Papa’s statement and the general principle?  Is the general statement simply ‘defining’ what R. Papa already said (R”Y Migash), or is it adding something new (Rama, Rosh)?    

[22] See the discussion in Septimus above.

[23] For example, what is the nature of the disputed taxes?  What is the nature of the orphan’s exemption from taxes?

[24]  See also the R”Y Migash here who expressed the same opinion. 

[25] The Ramah, in his discussion on Abayeh, also seems to have had a slightly different version in his Talmud that read אציפי דבי כנישתא בבי מדרשא (on the mats of the Synagogue in the Bet Midrash).  From this he learns that, similar to changing the charity into the soup kitchen, one may also change mats for the Synagogue to be mats for the Bet Midrash, however not more of a change than this. 

[26] For example, when does charity enter into the possession of the poor?  Is it at the moment it is collected for the purpose of charity (Rama), or is it only at the moment it is distributed, since there is no such thing as a collective acquisition of charity, and therefore no concern of theft (Rashi, Ramah)?   

[27]    See E. Oppenheimer (2007) א. אופנהיימר (2007). ר’ יהודה הנשיא, מרכז זלמן שזר לתולדות ישראל, ירושלים.  עמ’ 93- 103 “התמורה ביחסו של רבי לעמי הארץ.”   He suggests that Rabbi was initially against the amey ha’aretz, and later this would change to a more positive attitude as a result of being connected to many wealthy amey ha’aretz, as well as less of a chance that this would endanger the Torah in his time period, therefore there was less of a need for an antagonistic relationship.  (He seems to understand that our story comes after the story immediately following it in the Talmud).

[28] Y. Frankel (1996). דרכי האגדה והמדרש  Pp. 268-270. Frankel relates to the question of Rabbi’s change in behavior from the beginning of the story to the end as being due to understanding R. Yonatan’s criticism of him that Torah Scholars should not be benefiting from their Torah Knowledge.  He also discusses the use of costume used by R. Yonatan in the story, disguising himself as an am ha’aretz.  See also T. Fientuch (2004) פינטוך, יונתן.  (תשס”ד) מעשי חכמים והסוגיות המכילות אותם בב”ב א-ג. עבודת לשם תואר מוסמך, אוניברסיטת בר אילן.  עמ’ 106-121.   

[29] Wald, S. (2006) ולד, שמואל יוסף. (2006).  “שנאה ושלום בתודעה הרבנית.  עיונים בבבלי בבא בתרא ח ע”א.”  שלום ומלחמה בתרבות היהודית (תשס”ו) 35-65. .  Wald relates to the textual ‘history’ of this story and the story following it, claiming that in its original state Rabbi was not as antagonistic to amey ha’aretz, but, as a result of later redactors the story and its message changed.   

[30] B.B. 7b ולענין הלכתא אפילו בידוע שהוא עם הארץ חייב לפרנסו…. ודוקא בעם הארץ שאינו לא במקרא ולא במשנה אלא שישנו בדרך ארץ ובמצות, אבל היכא דליתיה בדרך ארץ ולא מצות אסור לפרנסו כל עיקר

[31] B.B. 7b ועמי הארץ אל יכנסו.  אמרינן התם כל אדם שאין לו בינה אסור לרחם עליו, שנאמר כי לא עם בינות הוא על כן לא ירחמנו עושהו, ולפי שהפורענות בא לעולם בשבילם.  ומיהו כשימצא במקומות אחרים ואפילו בעיר אחרת ולא ימות ברעב. הא לאו הכי מצוה להחיותו וקרי ביה ‘וחי אחיך עמך’, כל היכא שאינו מין או משומד. 

by Shlomo Brody

Introduction:  The Proliferation of Halakha Handbooks

One of the most important developments in halakha over the past couple of decades is the proliferation of halakha handbooks.  Following the model of Shemirat Shabbat Kehilchata, dozens of books, in many languages, have appeared to give clear and concise guidance in almost every area of halakha, from tefilla to pidyon ha-ben.

Given the influence of these works, it behooves us to examine the costs and benefits of this genre.  On the one hand, they provide a tremendous service in providing easy-to-use guidance for many complex areas of law.  This genre has helped “democratize,” moreover, people’s access to halakha and empower them with the knowledge necessary to fully observing halakha. 

On the other hand, these books, perhaps to gain the haskamot of more gedolim and become accepted by a wider audience, tend to err on the stringent side, especially in cases of makhloket poskim.  This might be reasonable given their agenda, but I hope that discerning readers know that they should consult with their posek in cases of doubt or sha’at dechak.   

Another potential impact, which I tend to view negatively, is that many poskim today do not end up writing full-length treatments of given topics, which are then published in an organized fashion, but instead give psakim that are quoted in these books (sometimes without full argumentation, even in the footnotes).  This makes it difficult to understand their reasoning, and moreover, deprives us of important literature.  In a few cases, seforim are now being written to collect the psakim given for these handbooks – see many of the entries in Halichot Shlomo of R’ Shlomo Zalman Auerbach, for example.   

The impact of this genre deserves greater treatment.

Halakha Ve-Ein Morin Ken –

One interesting application of this phenomenon is the judicial principle of “Halakha Ve-Ein Morin Ken,” a principle which dictates that poskim should not publicize certain laws or ruling because they will be abused or belittled.   This concept, which comes up in Shabbat 12b, Menachot 36b, and in many other places, is a remarkable statement that poskim must take into account how their ruling will be understood.  Furthermore, it also creates a situation where poskim might rule one way in a private, more-controlled environment, and rule differently in the public sphere.  For more information on this concept, see this shiur by Rav Yoel Amital, but as with all matters of halakhic process, one should really consult the writings of Maharatz Chajes on this topic (See Kol Kitvei Maharatz Chajes, Vol 1, p. 217-221).    

There is, of course, something ironic about putting in writing halakha ve-ein morin ken laws.   Once they are written down, they lose some of their esoteric nature, since they now become accessible to anyone who can read the work.  While perhaps in earlier eras, manuscripts were guarded tightly, this is certainly not the case with modern printing.  (In general, this trap applies to all esoteric teachings – if you want to preserve it, you need to write it down, since oral transmission is too hazardous; but once you write it down, it loses some of its esotericism.  For more on this, see Moshe Halbertal’s Concealment and Revelation)

The Rav and Kraft Cheese

Rav Soloveitchik zt”l offered an interesting solution to this conundrum to explain his opinion with regard to consuming Kraft cheese and other “gevinat akum” (non-Jewish cheese).  As is well known, the Rav, following the Rama (YD 115:2), ate Kraft cheese when no or little Jewish produced cheese was available, since the curdling process of the cheese was not done inside an animal-skin sac.  It has been reported in Rav H. Schechter’s Me-Peninei Ha-Rav (p. 153-154) however, that while the Rav told his talmidim in shiur of this leniency, he would not publicize it to ba’al ha-batim (lay people) who asked him this question, as he considered it to be a case of halakha ve-ein morin ken be-rabim, since it went against the psak of the Shulchan Aruch.  One talmid, however, questioned the Rav’s logic, as he had already publicized the heter in shiur.  The Rav responded by quoting a kulah found in Rashi’s Talmud commentary (Ta’anit 13a) in which Rashi would allow work to be done on Tisha Be-av night, but asserts that this kulah should not be publicly spread.   

כשאמרו אסור [במלאכה] – גבי תענית צבור לא אמרו אלא ביום, אבל בלילה מותר, מהכא משמע דבלילי תשעה באב מותר במלאכה ואין ביטול אלא ביום, אבל אין מפרסמין הדבר.

Rashi, the Rav noted, was of course publicizing this kulah by writing it in his commentary, but apparently felt that anyone who would be learning gemara and his commentary should be considered one of the “tznuim” who be trusted to use the heter appropriately.  Similarly, his learned and committed talmidim could be trusted with the Kraft cheese heter, but it was inappropriately to announce it publicly.  In other words, those (elite?) who can learn the heter inside the seforim can be trusted, while others cannot. 

If this is indeed the correct distinction – that we can publicize the lenient halakha to the learned who have access to the mekorot  – then how does this work with contemporary halakha handbooks?  On the one hand, one might assume that anyone is opening the book must care about halakha, and therefore could be trusted with the kulah.  On the other hand, the fact that they are resorting to a halakhic handbook might indicate that they are not learned enough to find the kulah inside primary sources, and therefore perhaps are not trustworthy enough.  To a certain extent, this relates to the basis of the “heter” for those who can learn the sefarim:  does their trustworthiness stem from their erudition, or their effort in learning the sources?  (Or to put it lomdishe terms:  Is their learning a sibah for the heter, or just a siman for their loyalty to halakha?)

Two Contemporary Examples:  Pregnancy & Niddah and Shabbat & Koraya

Two sources indicate different directions on this matter.

The first stems from a teshuva of Rav Moshe Feinstein regarding the necessity of pregnant women to separate from their husbands on their scheduled onah day within the first 3 months of pregnancy.  While the gemara assumes that it taken 3 months of pregnancy until we can assume that a woman is mesuleket damim and will not see blood, contemporary science can clearly determine at an earlier stage that a woman is pregnant and will not menstruate.  In a couple of teshuvot, Rav Moshe clearly paskened, against some early acharonim, that we recognize that “nature has changed” (hishtanu ha-teva’im) and that therefore a pregnant woman in her first trimester can indeed follow her doctors and assume that she will not menstruate. 

שו”ת אגרות משה חלק יו”ד ג סימן נב

א’ הנה בדבר אשה שכבר ברור שהיא מעוברת ע”י הרגשתה בעצמה באופן ברור או ע”י בדיקות הידועות לרופאים אבל עדיין לא עברו ג’ חדשים שלא הוכר עוברה, ודאי דמדינא דגמ’ דוקא אחר שעברו ג’ חדשים היא בחזקת מסולקת דמים כמפורש בגמ’ בנדה דף ז’ במתני’ לענין דיין שעתן שהוא משיודע עוברה ומפורש בברייתא בדף ח’ סומכוס אומר משום ר”מ ג’ חדשים ומטעמא דאר”ז דהוא משום דראשה ואבריה כבדין עליה, וכן גם איפסק בש”ע /יו”ד/ סימן קפ”ט אבל הוא מהדברים שנשתנו הטבעים זה איזה מאות שנה שתיכף משנתעברה פסקו דמיה, וידיעת רוב הנשים וכמעט כולן שחושבות ירחי עיבורן משעת הפסקת ראיית הדם בזמן וסתן בערך, וגם סומכין ע”ז לדינא להרבה ענינים

However, when Rav Shimon Eider asked him about this question while writing his halakhic handbook to Hilchot Nidah, Rav Moshe ruled stringently!

שו”ת אגרות משה חלק יו”ד ד סימן יז

תשובה זו נכתבה להרה”ג ר’ שמעון איידער שליט”א, שבשעה שכתב את ספרו באנגלית על הלכות נדה שאל את מרן זצ”ל כמה שאלות, וזה אשר השיב לו מרן זצ”ל.

… נמצא שבעצם אין טעם להחמיר לחוש לשמא ראתה במעוברת בזמננו, גם קודם הכרת העובר, כי ליכא שום ראיה לזה, ואדרבה איכא ראיה שאין להחמיר אלא בראתה. אבל מ”מ למעשה, כיוון שרעק”א מסתפק בזה ובאב”נ כתב בפשיטות שאסור, אין להקל… ובספרו צריך כתר”ה לכתוב בלשון הזה, מעוברת קודם הכרת העובר צריכה לבדוק כשהגיע זמן וסתה.

Why did Rav Moshe instruct Rav Eider to pasken this way in his book?  The editors of Igrot Moshe (volume 8) promptly explain:

(מרן זצ”ל הוסיף על – פה, שהטעם שצריך לכתוב כך בספר קיצורי הלכות נדה באנגלית, הוא שהספר נכתב גם עבור בעלי תשובה, שאינם רגילים בדרכי הגמרא והפסק. ועניין שינוי הטבעים – הגורם לשינוי ההלכה – יהיה מוזר ובלתי מובן עבורם. עם זאת פסק מרן תמיד, בבירור, כמו שביאר לעיל, שאין מעוברת צריכה לחשוש לווסת, מן הרגע שנתברר עיבורה על ידי בדיקה רפואית. וע”ע באגרות יורה דעה חלק א’ סימן צ”ז ענף ב’, ואבן העזר חלק ב’ סימן ה’)…

In other words, Rav Moshe did not believe that one could publicize this heter to the unlearned, who were not familiar with the ways of gemara and psak, and who would be confused by the concept of hishtanut ha-tevaim.  But those who were in the know, or alternatively, came to ask him for an oral psak, would certainly be told that they could be mekil, as Rav Moshe indeed ruled in his other teshuvot.  Rav Moshe, it appears, distinguished between primary sources and halakhic handbooks, the latter of which was included in works to which the principle of halakha ve-ein morin ken still applied.

A contrasting viewpoint, however, seems to be taken by Rabbi Dovid Ribiat in his 4-volume  The 39 Melachos.  This is a very good book that provides both background explanations to each melacha as well as practical applications.   While discussing the prohibition of koraya (tearing), Rabbi Ribiat explains that cutting rope or cords cannot violate koraya, since this melacha is only violated with materials that are sown or glued when torn, as opposed to rope or thread that is repaired by tying ends with a knot.  As such, “One may cut the string of plastic threat connecting price tags and the like to a new garment, if he forgot to do so before Shabbos” (Vol. 3, p.828).   He then goes on to write,

“However, these halachos should be applied discreetly, and not in the presence of unlearned persons who are liable to develop a lax attitude toward Shabbos restrictions when witnessing leniencies…  Persons who are not well versed in these halachos incorrectly perceive that cutting string is a Shabbos desecration, and one must be circumspect before applying this well-founded but poorly-understood leniency.”[1]

There a number of differences between the case of Rav Moshe and Rabbi Ribiat.  The former is dealing with the complex legal concept of hishtanut ha-tevaim, which relates to the nature of the halakhic process, while the latter is dealing with a complicated halakha that operates within common halakhic reasoning.  One might further argue that whereas Rav Eider’s books were “first-generation handbooks” which encountered a less traditional population, Rabbi Ribiat is writing for a more committed audience. 

I’m not sure that these distinctions are sufficient to explain the different approaches.  In any case, they clearly exemplify the ways in which the nature of pesikat halakha changes in an era of halakha handbooks intended for a wide audience. 

If anyone has more examples of this phenomenon, I’d appreciate you sending them to me.

שולחן ערוך יורה דעה סימן רמב סעיף י

יש מי שכתב שאסור לחכם להתיר דבר התמוה שנראה לרבים שהתיר את האסור

Kosher in R' Yose Ha-Galili's Locale

Minority Views and the Role of the Mara de-Atra¹

By Nathaniel Helfgot

 There is a tannaitic dispute regarding which aspects of the performance of a circumcision push aside the Sabbath restrictions: R. Akiva maintains that only actions that could not be prepared before the Sabbath are permitted to be done for a circumcision on the Sabbath; in contrast, R. Eliezer posits that one may even chop wood on the Sabbath to prepare coals necessary to later fashion the knife for the actual incision (Shabbat 19:1). The halakhah is in accord with R. Akiva (Shabbat 133a) and yet, the Talmud notes, quite positively in fact,² that “In R. Eliezer’s locale, they would chop wood on Shabbat to make coals to fashion iron instruments (for circumcision)” (Shabbat 130a).  In a similar fashion, the Talmud mentions the dispute as to whether the rabbis extended the prohibition of eating milk and meat beyond the biblical parameters (Shabbat 130a).

The majority view that became normative halakhah is that the co-mingling of chicken and milk was forbidden by the rabbis as a protective fence. In contrast, R. Yosi the Galilean rejected this extension (Shabbat 130a). The Talmud thus states:  “In the locale of R. Yosi the Galilean, they would eat chicken and milk together” (Shabbat 130a). The Talmud thus affirms that though the majority, and even consensus, psak amongst the Jewish people had ruled in a certain issue in one fashion, the inhabitants of the locale of a dissenting authority were fully entitled to continue to maintain and practice their lenient behavior. This Talmudic statement is a sharp affirmation of the power of the local authority, the mara de-atra, to have full control and autonomy over the halakhic practices and customs in his bailiwick.³ 

Expansion of the Principle by Rashba

 This Talmudic statement is cited and expanded in a number of responsa literature of the middle ages. Rashba, in a seminal responsum (Vol 1:253) makes it clear that the Talmudic statement as to locale should not be understood restrictively to those actually alive at the time of this authority’s life or who actually live in the locale of that particular rabbi. Rashba mentions that any community that has consistently adopted for itself the rulings of a specific authority, such as the rulings of R. Yitzchak Alfasi or Maimonides, is fully entitled to continue following those rulings even when they fly in the face of majority or consensus practice that is common amongst the rest of the Jewish community. This ruling of Rashba moves the concept beyond the limitations of specific time and place and makes the ideological and halakhic affiliation with a particular authority’s rulings at the center of the mandate.  One can plausibly extend this concept beyond the boundaries of any reference to geographic area as well. Once one claims that the concept of following the view of an individual scholar extends beyond his death or his actual place of domicile, the road is clear to an expansive reading of this notion.⁴ Thus, a Belzer Chasid who lives in Capetown, South Africa or a transplanted Washington Heights yekke who was a member of Kehillath Adath Jeshurun  and was now living in San Jose could continue to follow the practices and psakim that they felt loyalty to, in their day to day life.⁵

It is important to note that there were and continue to be dissenting voices who took issue with the broad ruling of Rashba and sought to limit the role of reliance on solitary views of the local rabbi or one’s rav muvhak in post-Talmudic settings.  R. Yosef B. Lev, for example, in a responsum, explicitly claims that

This principle was only operative in their era when each city and city had one rabbi who taught them all of their Torah…thus each city was obligated in the honor of their rabbi.  However, in our day and age, all the various rabbis and poskim from whose waters we drink are considered our rabbis, and, thus, we must follow the stringent view in area of dispute in biblical law.⁶

Basis for Mara De-Atra’s Authority

It is interesting to note that the rationale given by R. Yosef B. Lev for the principle of relying on the mara de-atra is respecting “the honor of their teacher- kevod melamdam.” If one bases the entire structure of the authority of mara de-atra on that logic, it would appear that there is great room to limit its application when, indeed, Jewish society is at a point when a plethora of rabbinic tomes have been written and are accessible to rabbis and laypeople throughout the world. Respect for rabbinic authority and the views of the bearers of the tradition should extend beyond the orbit of one’s local authority to encompass a wide swath of poskim.⁷

It would appear, however, the rationale for the authority of and the license to rely upon the view of one’s mara de-atra is rooted in much broader grounds. First, it is questionable if the conflict between the view of a local authority and others rabbinic voices, contemporary or not, really rises to the level of a “majority versus minority” debate. Hazon Ish, following in the footsteps of previous rabbinic authorities, claims that given that, in most circumstances, the mara-de-atra and those who took a differing viewpoint did not engage in dispute face-to-face there is no issue of majority rule: 

There is no concept of majority and minority when the scholars debating an issue are from differing eras or [are contemporaries] living in different locales. In a country where most of their Torah is based upon one rabbinic authority and his students and their students, they may follow the view of their rabbi even if the majority disagrees with them. And, in later generations, when specific books of the rabbis took up the lion’s share of the work of passing on the Torah to the present generations…they became the rabbanim hamuvhakim- primary teachers- of the generation and, in any area where there is a dispute, it was left to each scholar to determine whether to be stringent or to rely on certain well- known specific minority voices and follow them.⁸

Secondly, it would appear that the more cogent explanation for the authority of mara-detra is not based solely upon kevod melamdam but rather on the notion of haskamat ha-tzibur or yahid-the acceptance of the binding nature of this rabbi’s authority by the community or the individual.  Rabbi Yosef Karo, in a celebrated passage, points to this concept as the basis for the unique authority of the Talmud throughout the entire Jewish people.⁹ Similarly, one can argue that this is the basis for the concept of one’s obligation and license to follow one’s mara de-atra, broadly conceived, both stringently and leniently. Indeed, Rashba, in the responsum cited earlier, speaks of the countries that follow the rulings of the Rif or Rambam as “asu gedolim eilu kerabam,” which implies the notion of acceptance of the authority as the key underlying the principle.¹⁰

Different Authorities for Different Areas of Law

 A final point which requires more exploration is the possibility of having more than one authority upon whom one relies for psak in various areas of Jewish law.¹¹ Rashba and others clearly speak of “a place where they are accustomed to do all their actions based upon the rulings of one of the great poskim…places which are accustomed to do all their actions based upon the writings of the Rambam,” indicating that one has committed himself to following the rulings of this authority consistently.¹² At the same time, it can be argued that there still would room for multiple sources of authority, each having its own independent claim of adherence based on the model of haskamat hatzibur or yahid. This move is predicated on comparing the notion of the adherence to one’s authority or the concept of mara de-atra to the notion of the special respect due the rav muvhak- one’s primary teacher. In defining the category of rav muvhak and the concomitant honor due him, Maimonides and others speak of “rabo shelimdo rov hokhmato”- the teacher who taught him most of his knowledge. R. Yosef Karo, discussing the halakhah that a student must receive permission from his teacher before assuming the mantle of horaah, speaks of the requirement to receive permission- “mikol rabotav hamuvhakim”- from all his primary teachers.”¹³ Rema was troubled by this formulation and writes “the term here muvhakim should not be construed to mean [as it does elsewhere] ‘the teacher from whom one learned most of his knowledge’ for it is impossible that one can then have multiple rabanim muvhakim!”¹⁴  R. Shabtai Kohen in his comments there takes sharp issue with Remah and writes:

What Remah has written that one cannot have multiple “primary teachers” is incorrect for we find that Rashi, at the close of the second chapter of Bava Metzia, interpreted the phrase- rov hokhmato-‘whether referring to his teacher in Bible [from whom he learned most of his biblical knowledge], whether referring to his teacher in Mishnah or his teacher in Talmud’ … thus one can say that this person acquired most of his biblical knowledge with one teacher, and most of his knowledge of Mishnah with another person, and  most of his knowledge of Talmud from another person, and most of his knowledge of Midrash and agaddot from another, and most of his knowledge of Kabbalah from another.¹⁵

R. Kohen writes explicitly as to the reality of having various primary teachers in distinct areas of Jewish learning.  Logically, there should be no reason not to extend this concept to having various primary teachers in distinct sub-sections within one general area of Torah. Thus, one might have a primary teacher for the practical study of Hilkhot Niddah, while having had a different primary teacher for the analytical study of Talmud or issues dealing with writing Gittin. If that be the case, there certainly would be room to see a community or an individual taking upon themselves a multiplicity of authorities with regards to various areas of halakhah in which they needed direction and guidance. Choosing the various authorities might be based upon the recognition that different scholars have different areas of expertise. Moreover, depending on the circumstances various halakhic decisors may have greater or lesser appreciation of the unique circumstances of that community share in the world-view and realty of that community or individual or be otherwise more qualified to rule in a particular subset of halakhah.

1. Below is one section of a lengthy essay on the role of Minority Opinions in Horaah that I am preparing for publication later this year.
2.  R. Yitzhak noted that the townspeople who followed the ruling of R. Eliezer, their local authority, lived long lives (Shabbat 130a).
3. The Talmud here does not, nor in the parallel sugyot, explicitly discuss the relationship of this concept to the halakhah of zakein mamrei which severely limits the autonomy of the individual authority. It would appear to this writer that the concept here of the full autonomy of the mara de-atra exists in the absence of any formal ruling by the Great Court in Jerusalem one way or the other. In instances when that court had definitively ruled on a subject there would be no room for the individual authority to continue to preach and advocate the practice of his contrary ruling. In the absence, however, of that specific body ruling on the subject the individual authority and the inhabitants of his locale would be fully entitled to continue following his rulings even in the face of consensus or the explicit statement of the Talmud to the contrary.
4. See the remarks of my revered teacher, R. Aharon Lichtenstein, Leaves of Faith: The World of Jewish Living, vol. 2 (Jersey City, NJ: Ktav, 2004), 286-292.  It is interesting to note that R. Ovadiah Yosef uses the expansive concept of mara de-atra as articulated in the passage in Shabbat (130b) and Rashba to buttress the binding nature of the pesakim of R. Yosef Karo upon all sefaradim and on all inhabitants of Erez Yisrael.  See, for example, his comments in Yehave Daat, Vol. 5: 213-214.
5. It would seem, however, that public manifestations of a practice that fly in the face of the accepted custom of a specific town or in our contemporary contexts, synagogue would not be sanctioned. Such actions  would contradict the principles outlined in the fourth chapter of Pesahim that require one who moves to a new locale to accept the public practices of the community in which one is now residing, especially when public actions to the contrary would cause discord and strife.
6. Responsa Mahari B. Lev, Vol 1:75.
7. The more one builds the concept of mara de-atra of the concept of kevod melamdam there would great room to limit the license to rely on his solitary rabbinic voice only to his lifetime.
8. Hazon Ish , Yoreh Deah, 150:8. For further discussion, see R. Elisha Aviner, “Kelalei Horaah be-Halakhot Mesupakot” Maaliyot #19: pp.158-162
9. Kesef Mishnah, Hilkhot Mamrim 2:1.
10. One can argue that, in a case when the actual rabbi is alive and we are speaking about an actual townsperson, both the concept of kevod rabo and the notion of tacit acceptance of his authority is in play, while after his death or the more expansive notion is operating only on the premise of acceptance of his authority. This nicely explains Rashba’s later comment in that responsum that, if a later scholar in a subsequent generation who is worthy of deciding halakhic matters rules against the practice of that community that had been based on the rulings of R. Alfasi or Rambam, for example, they should follow the ruling of the contemporary psak “for the scholars[ upon whom they relied] are not their actual teacher, for in the face of their actual rabbi, if they did not follow his ruling, they would be showing disregard for his honor.”
11. See R. Aviner,  “Kelalei Horaah be-Halakhot Mesupakot,” 163-165.
12.  How far this notion of consistency applies is a bit of an open question.  See, for example, the important remarks of R. Lichtenstein, Leaves of Faith, vol. 2, 286-292.
13.  Shulhan Arukh, Yoreh Deah 242:7.
14. Gloss ad loc.
15. Siftei Kohen, Yoreh Deah 242:12.

by Daniel Reifman

Teachers of Halakhah are often torn between conflicting agendas: on the one hand, to ensure that students have mastered all the laws relevant to contemporary observance, on the other hand, to familiarize them with a sense of the background—both the history and reasoning—that informs what we practice.  Throw in the fact that most day schools accord less time for Halakhah than for other Judaic studies subjects, and it’s no wonder that the one of the central purposes of education—to engage our students’ critical faculties—is often overlooked. 

I admit that encouraging students to think critically about the halakhic process presents certain challenges, not the least of which is the risk of undermining students’ respect for that process.  Yet I would suggest that such concerns reflect our fears as educators more than our students’ actual experiences.  Taught with appropriate restraint, such an approach to Halakhah can engender a sense of respect for the halakhic process by allowing students to engage with the material on their own terms. 

The following is an example of this approach as applied to the topic of shehiyah—leaving food on the fire from Friday afternoon into Shabbat, an activity the Sages restrict in certain circumstances.  My primary goal is simply to get my students thinking about the reasons behind rabbinic prohibitions, but ultimately I also want to question the assumption that we can always know exactly why such prohibitions were enacted.

 The debate between Beit Shammai and Beit Hillel

I introduce the topic of sheyihah by placing it within a broader framework of melakhot (prohibited actions) that are set into motion late on Friday afternoon.  This issue is the subject of a prominent debate between Beit Shammai and Beit Hillel, as recorded in Mishnah Shabbat 1:5-9: 

בית שמאי אומרים: אין שורין דיו וסממנים וכרשינים אלא כדי שישורו מבעוד יום; ובית הלל מתירין.  בית שמאי אומרים: אין נותנין אונין של פשתן לתוך התנור אלא כדי שיהבילו מבעוד יום, ולא את הצמר ליורה אלא כדי שיקלוט העין; ובית הלל מתירין.  בית שמאי אומרים: אין פורשין מצודות חיה ועופות ודגים אלא כדי שיצודו מבעוד יום; ובית הלל מתירין.

…ושוין אלו ואלו שטוענים קורות בית הבד ועגולי הגת.

Beit Shammai rule: ink, dyes and vetches may not be steeped unless they can be dissolved while it is yet day; but Beit Hillel permit it.  Beit Shammai rule: bundles of wet flax may not be placed in an oven unless they can begin to steam while it is yet day, nor wool in the dyer’s kettle unless it can assume the color [of the dye]; but Beit Hillel permit it.  Beit Shammai rule: traps for wild beasts, fowls, and fish, may not be laid unless they can be caught while it is yet day; but Beit Hillel permit it.

…and both [schools] agree that the beam of the [oil] press and the rollers of the wine press may be loaded [right before Shabbat].

Before proceeding to the Talmud’s explanations of the machloket (halakhic debate), I ask my students to consider whose opinion seems more intuitive.  Typically students are quick to realize the logic behind Beit Hillel’s position: an action completed before the onset of Shabbat cannot constitute a violation of Shabbat, even if its effects extend well past sundown.  The difficulty then, lies in explaining Beit Shammai’s position.  I further ask my students to consider why Beit Shammai concedes in the cases of the oil and wine presses, and why the following mishnah (1:10) records no objection from Beit Hillel:

אין צולין בשר בצל וביצה אלא כדי שיצולו מבעוד יום…

Meat, onion[s], and egg[s] may not be roasted [right before Shabbat] unless they will get roasted while it is yet day…

Here, too, is a melakhah that is set in motion before the onset of Shabbat, yet the ruling is presented anonymously—presumably placing it outside the scope of the machloket.

The Talmud Bavli, we should note, doesn’t directly address any of these questions.  Only in the process of explaining a parallel beraitha (in which Beit Shammai and Beit Hillel debate a further series of cases in which an action done before Shabbat has effects that continue into Shabbat) does the Bavli (18a) raise the issue of shevitat keilim—the notion that one’s utensils must also not “participate in” melakhah on Shabbat—and then suggest that this is the underlying basis of the machloket.  But this explanation doesn’t fit neatly with most of the mishnah’s cases (as students are quick to point out), nor does it account for the cases in which Beit Shammai and Beit Hillel do agree: loading the weights of an oil or wine press—which all agree is permissible—and placing food on the fire to roast—which all agree is prohibited.¹ Indeed, the Yerushalmi—which parallels part of the sugya in the Bavli—makes no mention of shevitat keilim in this context.

The Tosefta’s version of the debate 

Instead of focusing on the Bavli’s explanation of the machloket, I follow up our discussion of the Mishnah by showing my students the Tosefta (Shabbat 1:9), which presents the machloket between Beit Shammai and Beit Hillel in dialogue form:

אמרו בית שמאי לבית הלל: אין אתם מודין שאין צולין בשר בצל וביצה בערב שבת עם חשיכה אלא כדי שיצולו?  אף דיו סמנין וכרשנין כיוצא בהן.

אמרו להן בית הלל: אי אתם מודין שטוענין קורות בית הבד ותולין עגולי הגת ערב שבת עם חשיכה?  אף דיו סמנין וכרשנין כיוצא בהן.

 אלו עמדו בתשובתן ואלו עמדו בתשובתן, אלא שבית שמאי אומרים: “ששת ימים תעבד ועשית כל מלאכתך” [שמות כ:ט] – שתהא כל מלאכתך גמורה; ובית הלל אומרים: “ששת ימים תעשה [מעשיך]” [שם כג:יב] – מלאכה עושה אתה כל ששה.

Beit Shammai said to Beit Hillel: Don’t you admit that one may not roast meat, an onion, or an egg on Friday afternoon immediately before nightfall unless they will get roasted [before Shabbat]?  Likewise ink, dyes or vetches [may not be steeped immediately before nightfall].

Beit Hillel said to them: Don’t you admit that one may load the beams of the oil press or suspend the rollers of the winepress on Friday afternoon immediately before nightfall?  Likewise ink, dyes or vetches [may be steeped immediately before nightfall].

These stood by their answer, and these stood by their answer; but Beit Shammai said: “Six days you shall labor and do all your work” [Ex. 20:9] — that all your work should be complete; and Beit Hillel said: “Six days you shall do [your work]” [Ex. 23:12] — you may do work all six [days].

Unlike in the Mishnah, where the cases in which Beit Shammai and Beit Hillel agree appear almost as an afterthought, in the Tosefta they form the crux of the debate.  Each side makes its case by citing an accepted precedent, and the machloket revolves around the issue of which precedent is more relevant to the case of steeping dye plants right before Shabbat.  What does seem like an afterthought in the Tosefta is the derashot (textual inferences) that Beit Shammai and Beit Hillel cite as the basis for their positions.  Rather than presenting the derashot as part of the dialogue, the Tosefta cites them only after noting that neither side yielded its stance.  What the Tosefta implies, then, is that neither side could fully articulate why the other’s side precedent isn’t relevant.

A basic model of legal reasoning:   Rav Moshe and the Chazon Ish

I find the Tosefta’s version of the machloket an interesting teaching tool on two levels.  First, I use it to illustrate to my students one of the most fundamental forms of legal reasoning.  Given a question about any halakhic issue, we can construct a test case on either side of that issue by finding two known precedents, one of which is prohibited and the other permitted.  Having set up such a framework, we can formulate any halakhic conclusion about the case in question simply as a choice to use one of the precedents over the other.  Particularly for students not trained in abstract Talmudic reasoning, this model can be a simple and effective way to frame complex halakhic issues.

For example, consider the debate between two 20^th-century poskim (rabbinic decisors), the Chazon Ish (R. Avraham Yeshaya Karelitz) and R. Moshe Feinstein, regarding the use of a blech to leave food on the stovetop into Shabbat.  R. Moshe Feinstein (Iggerot Moshe O.H. 1:93) rules that covering the burners with a blech (metal sheet) permits one to leave food that is not fully cooked (such as a cholent) on a stovetop into Shabbat, a point disputed by the Chazon Ish (O.H. 37:11).  Their debate centers around the Mishnah’s ruling (Shabbat 3:1) that one may leave a stew on a kirah (a type of ancient oven) into Shabbat if the coals in the oven have been banked (i.e., covered) with ash.  What about a case in which the coals (or the equivalent heat source) have been covered with something else, such as a sheet of metal?  Here we find conflicting implications from the medieval commentators.  On the one hand, Mordechai (Hagahot Mordechai Shabbat ch. 3) states that covering the opening of the oven with an empty pot is the equivalent of baking the coals.  On the other hand, Rashi (Shabbat 37a, s.v. גבה) implies that one is required to bank the coals even if one places the stew atop the cover (כיסוי) of the oven.  The practical difference between an empty pot and the oven’s normal cover would seem to be negligible, and it’s tempting simply to chalk up this apparent conflict to a simple difference of opinion between Rashi and Mordechai.  However, since both of their rulings are accepted by later authorities, we are forced to say that the two scenarios—placing a stew atop an empty pot vs. placing the stew atop the oven’s normal cover—are halakhically distinct.  Here, then, are the conflicting precedents that inform the use of a blech.  The debate between the Chazon Ish and R. Feinstein can be framed as a question whether a blech is more comparable to an empty pot or to an oven cover.

But in order for this model of legal reasoning to be effective, we need first to be able to articulate the difference between the two precedents in conceptual terms: Given two such similar cases, why is it that one is permitted and the other prohibited?  It’s this conceptual formulation that allows us to categorize the case in question as being more similar to one precedent or the other.  In the case of the blech, both the Chazon Ish and R. Feinstein agree that the difference between Rashi’s ruling and the Mordechai’s ruling stems from the need for a shinui (irregular procedure) in order to leave food on the fire.  Placing food on top of an empty pot is considered a shinui because one would not normally cook this way, unlike placing the food on top of the oven’s normal cover which might be done even during the week (at least in the context of the type of oven referred to in the Mishnah).  The Chazon Ish and R. Feinstein disagree about whether placing the pot atop a blech is or is not considered normative cooking practice.

Precedents with no clear rationale

The problem we face in the case debated by Beit Shammai and Beit Hillel—preparing a dye solution right before Shabbat—is that neither side can explain the difference between the two precedents.  Why should loading the weights of an oil or wine press right before Shabbat be permitted when the equivalent case of cooking—placing meat on the fire right before Shabbat—is prohibited?  This is not to say that there is no way of explaining the difference between these cases, only that in the Tosefta’s version of the machloket, neither side is able to articulate a cogent distinction.  Faced with an irresolvable conflict between two precedents, their machloket over a third case ends in a stalemate: אלו עמדו בתשובתן ואלו עמדו בתשובתן. 

Of course this analysis only begs the question: If no one can explain the reasoning behind these precedents, why are they valid arguments?  Here, then, is the second point I impart to my students: as much as we like to assume that Halakhah flows in smooth and coherent fashion from a fixed set of principles, we must acknowledge that often practice takes on a life of its own.  This is true not only with regard to practices that we categorize as minhagim (customs), but even—as in this case—with regard to practices that have the force of gezeirot (rabbinic edicts).  The Tosefta’s language suggests that by the time of Beit Shammai and Beit Hillel’s debate, these rulings—to load the weights of oil and wine presses right up until Shabbat but not to begin roasting food right before Shabbat—were sufficiently ancient for the original reasoning behind them to have been forgotten.  Moreover, it would seem that the two practices weren’t perceived as being in conflict until Beit Shammai and Beit Hillel considered a set of similar cases, such as preparing a dye solution right before Shabbat; only then did the underlying conceptual issue come to the fore, and with it an irresolvable contradiction.

Conclusion

Although this sugya provides particularly clear examples of rabbinic prohibitions which lack clear rationales, I would suggest that this phenomenon is far more widespread than generally acknowledged.  Following the approach I have outlined here, I recommend that in cases like these we trust our students’ intellectual curiosity, giving them the freedom to question accepted interpretations, then empowering them with the tools to seek out alternatives.

1. The Bavli (18b) also suggests a reason that Beit Hillel would concede to Beit Shammai with regard to leaving foodstuffs in the oven from Friday afternoon: שמא יחתה בגחלים — “lest one come to stoke the coals”.  But like the idea of shevitat keilim, the concern that one might come to stoke the coals emerges only in the Bavli’s analysis of a beraitha.  Only in the medieval commentaries do we find this explanation used to account for Beit Hillel’s concession to Beit Shammai in mishnah 1:10.

  Is Halakah Insensitive to Non-Jews? The Case of Fraud

By Gidon Rothstein

 Certain prohibitions lead to the understandable conclusion that Jews do not care about non-Jews, although in at least some cases that conclusion is false.¹ One example is the prohibition of אונאה, of overcharging (or the rarer undercharging) for merchandise.  Bechorot 13a notes the Torah (ויקרא כ”ה:י”ד)’s use of the word עמיתך, your friend or colleague, and asserts that Jews are only obligated to return fraudulent charges to a fellow-Jew.²

The quick impression, that the Gemara allows defrauding a non-Jew, bothered R. Baruch haLevi Epstein, author of Torah Temimah, in his commentary to that verse in Leviticus.  He appends a long note to his citation of the Talmudic comment, marshaling earlier sources to suggest that this rule only applied to non-Jews of the time of the Talmud, who lacked any meaningful legal system or morality.  The non-Jews of his time, he argues, would have to be treated differently and better.

While sharing the Torah Temimah’s discomfort with the implications of the Talmud’s statement, his solution does not satisfy, for two reasons.  First, as a matter of history, it is not clear that the legal system of the Persians and Romans with whom Hazal would have been acquainted was so significantly more deficient than the one in place in late 19^th century Russia, 20^th century Germany, or the twenty-first century US.

 The Scope of the Obligation

More troubling, however, is that Torah Temimah’s understanding of the Gemara does not fit well with other Talmudic statements about אונאה.  One quick example is the case of הקדש, the Temple treasury, where the Talmud also rules that the laws of אונאה do not apply.  Since the verse says איש את אחיו, [do not defraud] each of you his brother, Baba Metsia 56b excludes הקדש from these laws.

The implication that overcharging הקדש is permissible suggests we have misunderstood foundational aspects of the mitzvah.  Ramban, in his commentary on the Torah, argues that the Torah prohibits defrauding anyone, including the Temple and all other transactions exempted by the Talmud (he does not explicitly mention non-Jews).  Rambam, in his commentary to mKelim 12;7, similarly denies the permissibility of cheating anyone, and explicitly mentions idol-worshiping non-Jews.

Ramban instead suggests that Hazal relied on these verses to add an extra obligation in the case of overcharging, that of returning the improperly accepted money and/or reversing the transaction completely.  It is only these aspects of אונאה law that are limited to a “friend” (one who reasonably keeps mitsvot), movable property (which the Torah describes as being bought “from the hand of your friend”), and non- הקדש.

Ramban’s idea suggests that the Torah here is establishing an added level of morality for our interactions with those with whom we are closest.  Dishonesty is prohibited everywhere and with everyone; the obligation to rectify this particular kind of dishonesty, Ramban implies, only comes into play within close personal relationships, with those we consider brothers and friends.

Movable Property as the Vehicle of Social Interaction

His idea also explains the inference that leads the Gemara to limit אונאה to transactions involving movable property.  The verse says או קנה מיד עמיתך, or purchase from the hand of your friend, and the Gemara says דבר הנקנה מיד ליד, something sold from hand to hand.  This can be read many ways, but in light of this Ramban, I suggest the Talmud means it is in such transactions that the personal element is highlighted, in that it is being bought “from hand to hand,” from person to person.  Precisely when directly facing a fellow-Jew, dealing with him personally, the obligation to avoid any dishonesty acquires additional stringency.

Rather than permitting discrimination, the Torah is laying out ways in which Jews ought to treat each other like family, regardless of how close they are or how well they know each other.  The laws of אונאה, in this reading, teach us less about how to avoid immorality or cheating in business—those תועבות ה’, abominations to God, are announced by other verses—than how to experience a full אהבת ישראל.

Usury Revisited: It’s Not a Sign of Jewish Cruelty to Non-Jews

Another monetary commandment that seems at first glance to codify an ordinary morality is the prohibition against taking interest.  We might assume, as most readers of the Torah have, that the Torah is telling us that interest is wrong, that we should lend others out of the goodness of our hearts without regard to the opportunity cost involved (as Christians certainly assumed when they prohibited themselves from lending money at interest). 

A disagreement between Rambam and Ramban offers reasons to suggest otherwise.  Rambam in his ספר המצוות, מצוה קצ”ח, Book of Commandments, Commandment 198, codifies an obligation to lend to non-Jews at interest as well as to forcefully collect loans from non-Jews.  Ramban disagrees³ and reads the Torah as permitting acting in that way towards non-Jews, not requiring it.

Rambam’s language, particularly in the mitzvah of taking interest, does sound like he sees it as an obligation to damage the non-Jew, in contrast to how we would treat a fellow Jew.  That damage, however, may be the purely monetary one of being required to pay more than what he borrowed.  If so, we can suggest that Rambam saw the positive commandment as directed at differentiating our treatment of Jews and non-Jews.  From Jews, whom we need to see as brethren, we may not take interest; from non-Jews we must.

That “must” might still be a sign of antipathy, but for the fact that the same rules apply to גרי תושב, converts to adherence to Noahide law.  These last are people whom we are required to support should they become impoverished,⁴ making it unlikely that we would also have an obligation to treat them, monetarily, in a morally deficient manner.

 It seems more plausible to suggest that the obligation to lend at interest assumes the acceptability of the act, with the exception of relatives.  To make that point, the Torah not only prohibits it between Jews but institutes it with non-Jews, to make clear that the only reason we do not act this way towards Jews is that they are family.  Ramban, who saw no such obligation, could either have held that taking interest was inherently flawed but that the Torah allowed treating non-Jews that way, or he could have held that the Torah, once having limited the prohibition to Jews, saw no need to emphasize the family aspect of the mitzvah by requiring lending to non-Jews at interest.

These two cases raise a question we can ask each time Jewish law differentiates Jews from non-Jews.  In such cases, is the Torah demanding a higher morality of our treatment of Jews, by virtue of our ties of blood and family, or is the Torah legislating ordinary morality in how we treat Jews and permitting a less than desirable mode of conduct towards non-Jews?  The answer could only be built up from a complete survey of the relevant examples, but would then allow greater understanding of how Jewish law understood the ideal for how Jews relate to non-Jews, in specific and in general. 

1. A complicated sub-question here is how we distinguish between idol-worshipping non-Jews and ordinary non-Jews, a question made more difficult by our current inability to accept גרי תושב, non-Jews who officially declare themselves accepting of halachah’s view of how they should live their lives.  See, e.g., Maimonides’ Laws of Idol Worship 10;9.  I hope to address some aspects of that issue in a future post.
2. Baba Metsia 59a further restricts that to one who is fully observant; the question of how we halachically experience lack of observance in other Jews is another topic for a future post.
3.  In his glosses on the sixth Introductory Principle Rambam offered to explain his enumeration of mitsvot.  There is a technical element here, in that Rambam and Ramban disagree as to  how tradition understood the original verse, but that is too complex a topic to discuss here.
4.  See, e.g., Rashi to Vayikra 25;35.