Talmudic Mediation: Conflicting Interpretations of the Talmud as Conflicting Needs in Society

Talmudic Mediation

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:

One [who dwells in a town] is compelled [to contribute towards the cost of building] a wall for the town.

כופין אותו לבנות לעיר חומה

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: 

R. Eleazar inquired of R. Yohanan: “Is the tax for the town wall collected according to shevach mamon (the wealth of the individual) or according to shevach beney adam (a fixed tax on each individual).”  He replied, “It is collected according to shevach mamon, and you my son, fix this ruling firmly in your mind.  According to another version: R. Eleazar asked R. Yohanan, “whether the tax for the town wall was collected according to shevach mamon (the wealth of the individual) or according to kiruv batim (the relative proximity of the individual to the town wall)?  He replied, “It is according to kiruv batim, and Eleazar my son, fix this ruling firmly in your mind.”

בעא מיניה ר’ אלעזר מר’ יוחנן: כשהן גובין לפי שבח ממון הן גובין או לפי שבח בני אדם הן גובין? אמ’ ליה לפי שבח ממון הן גובין ואלעזר ברי קבע בה מסמרות.   איכ’ דאמרי בעא ר’ אלעזר מר’ יוחנן כשהן גובין לפי שבח ממון הן גובין או לפי קרוב בתים הן גובין? אמ’ ליה לפי שבח (ממון הן גובין)[קרוב בתים הן גובין] אלעזר בני קבע בה מסמרות.

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:

A house that is closer to the wall needs the town’s wall more than (someone who lives) further.

בית הקרוב לחומה צריך לחומת העיר יותר מן הרחוק.

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 interpreted: and poor inhabitants who live close (to the wall) give more (taxes) than poor inhabitants who live further (from the wall).  And so rich inhabitants who live closer to the wall give more than the rich who live further away.  However, rich inhabitants who live further away give more than the poor who live closer, since according to shevach mamon, they also collect.

פירש ר”ת ונותנין עניים קרובים יותר מרחוקים וכן עשירים קרובים יותר מעשירים רחוקים אבל עשירים רחוקים נותנין יותר מעניים קרובים דלפי שבח ממון נמי הן גובין.

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:

אלא מסתברא דכי גבינן לקירוב בתים לאו משום קורבא דהיזקא הוא, דאי מהאי טעמא, שבח ממון עדיף.  אלא היינו טעמא, משום דבתי בראי דמקרבי לחומה גרמי להו לבני מתא היקפא יתירא בבניין החומה, שלפי קירוב הבתים לחומה יהיה מרחקם מטבור העיר.  והדבר ידוע, שעל פי מרחק הקו מן הטבור ירבה הקו הסובב אותו ונמצא שהבית הקרוב לחומה לפי מרחקו מן הטבור יתר מחבירו הוא גורם לעיר היקף מרובה יתר מחבירו. אמטון הכי, גבינן מינייהו לפי קירוב בתים, ולא חיישינן לשבח ממון ולא לשבח נפשות.

Rather it is reasonable, that when we collect according to kiruv batim, it is not because of proximity to danger, for if it was for this reason, shevach mamom would be preferred. Rather, this is the reason, because the houses that are further out, closer to the wall caused the people of the town an extended circumference in the building of the wall, that since the proximity of to the wall, it will be further from the center of the town.  And it is known, that according to the distance of the line from the center, the line that surrounds it gets larger, so it is that the house that is closer to the wall, according to the distance from the center more than his fellow resident, he is the cause of the city limits being larger than his friend. Because of this, we collect from the residents according to kiruv batim, and we are not concerned with shevach mamon or shevach nefashot.

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: 

והילכתא כריש לקיש. ואפילו מיתמי.  ואע”ג דאמר מר.  הבא ליפרע מנכסי יתומים לא יפרע אלא בשבועה.  חזקה לא עביד איניש דפרע בגו זימניה.

The law is as stated by Resh Lakish, and [the ruling applies] even to orphans, in spite of what has been laid down by a Master, that one who seeks to recover a debt from the property of orphans need not be paid unless he first takes an oath, because the presumption is that a man does not pay a debt before it falls due.

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.  

And so we continue to enact: In order that the door not be locked in front of borrowers, the lender may collect his full loan from young orphans.

וכן אנו מוסיפים לתקן:  מפני שלא תנעול דלת בפני לווין, שיגבה המלווה כל חובו מן היתומים אפילו קטנים, ואף אם הגיע זמן הפירעון בחיי אביהם.[17]

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:

R. Papa said: For the repair of the walls, for the city guard, and for the keeper of the armory, even the orphans have to contribute, but the Rabbis [do not, since they] do not require protection.  The general principle is that even orphans have to contribute for any public service from which they derive benefit (security)[18].

אמר רב פפא: לשורא ולפרשאה ולטרזינא – אפילו מיתמי, אבל רבנן לא צריכי נטירותא.       כללא דמילתא: כל מילתא דאית להו הנאה מיניה – אפילו מיתמי.

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:    

“The general principle is….”:  Like the repair of the walls, the city guard, and for the keeper of the armory, they derive security from, we obligate the orphans to pay.  However, something that does not have any benefit (for the orphans) such taxes to the king (poraniot) and extortions (arnonot), we do not obligate them.

כללא דמילתא:  כגון- פרשא ושורא וטורזינא דאית להו בהו נטירותא רמינן עלייהו [אבל מידי דלית בהו הנאה כגון פורעניות וארנונות לא רמינן עליהו].

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

“כללא דמילתא: כל מידי דאית להו ליתמי נטירותא מיניה רמינן עלייהו” והוא הדין למסין וארנונות וכיוצא בהן.   דכולהו מידי דאית להו נטירותא מינייהו נינהו כדברירנא לעיל.   ועוד דלא גרע מלכא מפרשא וטורזינא דודאי נטירותא דמלכא עדיפא.

“The general principle is….”  And this is the case as well for other taxes and extortions (arnonot).  For all taxes that (the orphans) derive security from (they are obligated to pay) as we explained above.  And more so, (payments to the) King, are not any worse than a city watchman and the keeper of the armory, since for sure the protection of the Kings is preferred.

 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]    

It seems to me that all types of taxes must be considered defense expenditures.  For it is they that preserve us among the gentiles.  For what purpose do some of the gentile nations find in preserving us and allowing us to live among them if not the benefit that they derive from Israel in that they collect taxes and extortions from them?[20]

מיני מסים מידי דנטירותא נינהו כי הם השומרים אותנו בין העכומ”ז. כי מה תועלת יש לקצת עוכמ”ז בנו לשומרנו ולהושיב אותנו ביניהם אלא בשביל הנאה שניאותין מאת ישראל לגבות מהן מסין וארנונות.

     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:   

The townspeople, however are at liberty to use the soup kitchen like the charity fund and vice versa, and to apply them to whatever purpose they choose.

ת”ר….ורשאין בני העיר לעשות קופה תמחוי ותמחוי קופה ולשנותן בכל מה שירצו

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:

אמ” אביי: מריש לא הוה יתיב מר א()[צ]יפי דבי כנשתא. כיון דשמעה להא דתניא “ורשאין בני העיר לעשות קופה תמחוי ותמחוי קופה ולשנותן לכל מה שירצו” הוה יתיב.

Abayeh said:  At first the Master (Rabbah) would not sit on the mats in (of) the Synagogue, but when he heard that it had been taught that the ‘towns people’ can apply it to any purpose they choose’, he did sit on them.

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

Mats of the Synagogue: because they were purchased by money from the charity (raised for the poor).

מחצלות של בית הכנסת משום דמזבני להו ממעות הקופה.

 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”.

ולשנות’ לכל מה שירצו – נראה לר”ת דיכולים לשנותו אף לדבר הרשות…. וכן היה ר”ת נוהג לתת מעות הקופה לשומרי העיר לפי שעל דעת בני העיר נותנים אותם.

It seems to Rabbenu Tam that they can change it (the money raised for the poor) even for something which is only optional…. And so Rabbenu Tam used to give money raised for charity to the town’s watchman, since the (the money raised for the poor) was given with the consent of the town’s leaders (to do with it what they please).

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]  

And this that we learned in the beraita: ‘and to change it to whatever the townspeople want’ – (means) it is for the needs of the poor. And this comes to teach us that you should not say for charity and for food, we can change one to the other, since both of them were collected for the purpose of food, and what is the difference if they are for the poor of the town or for poor from outside the town, however for clothing, a place to live, and a bed and sheets and the like, that are not for food, I may say no.  This comes to teach us that we are allowed to change the money raised for the poor for whatever the (townspeople) want for the needs of the poor.  However, for matters that are not for the sake of the poor, they do not have permission at all, because this is robbing from the poor.

והדקתני “ולשנותן לכל מה שירצו” – לצורך עניים הוא.  והא קמ”ל דלא תימא קופה ותמחוי.  הוא דמשנינן להו להדדי דתרוייהו לשם מזונות הוא דאיגבו ומה לי עניי העיר ומה לי לעניי עולם, אבל לכסות מדור ומטה ומצע וכיצוא בהן דלאו צורך מזונות הוא אימא לא.  קמ”ל דרשאין לשנות לכל מה שירצו משאר צרכי העניים.  אבל לדברים שאינן לצורך עניים לית להו רשותא כלל מפני מפני גזל עניים.

 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.    

ואמ’ אביי: מריש הוה עביד מר תרי כיסי: חד לעניי מתא וחד לעניי עולם. כיון דשמעה להא דאמ’ שמואל לרב תחליפא בר אבימי עביד חד (ט:א) ואתני, איהו נמי עביד חד ומתני.

Abayeh also said:  At first the master (Rabbah) used to keep tow purses, one for the poor from outside and one for the poor of the town.  When however, he heard of what Samuel had said to R. Tahalifa b. Abdimi, ‘Keep one [purse] and make a stipulation,’ he also kept only one purse and made a stipulation.

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:   

ואתני: אם יצטרכו העיר שיהיו לעניי העיר ואם לאו שיותירו על עניי העיר שיהיו לעניי כל אדם.

“And made this stipulation:” If the town needs the money for the poor of the town, and if not, that (the money) left over from the poor of the town should go to any poor person.

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:  

“ואתני: מתנה עם הצבור לחלקם לכל הבא.

“And made this stipulation:” He made a stipulation with the community to give the charity out to whoever comes.

 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).

ר’ פתח אוצרו בשני בצרות. אמ’ יכנסו בעלי מקרא ובעלי משנה ובעלי תלמוד ובעלי אגדות והלכו’ ועמי הארץ אל יכנסו. דחק ר’ יוחנן בן עמרם ונכנס. אמ’ ר’ פרנסני. אמ’ לי’ קרית אמ’ ליה לאו אמ’ ליה שנית אמ’ ליה לאו ואלא במאי אפרנסך? אמ’ לי’ פרנסני ככלב וכעורב. פרנסיה. לבתר דנפק (אמ’ ר’) יתיב ר’ וקא מצטער אמ’ אוי לי שנתתי פתי לעם הארץ. אמ’ לפניו ר’ שמעון בר’ שמא יונתן בן עמרם תלמידך שאינן רוצה להתגאות בכבוד תורה. בדקו ומצאו כדבריו אמ’ ר’ יכנסו הכל.

Rabbi once opened his storehouses in a year of famine.  He proclaimed, “Let those enter who have studied the Scripture, or the Mishnah, or the Gemara, or the Halakhah, or the Aggada, however, the amey ha’aretz (the ignorant) shall not come in.” R. Yonatan ben Amram pushed his way in and said, “Master, give me food.”  He said to him, “My son have you learned Scripture?”  He replied, “No.”  “Have you learned the Mishnah?”  “No.”  “If so,” he said, “then how can I give you food?” “He said to him, “Feed me as the dog and the raven are fed.”  So he gave him some food.  After he went away, Rabbi sat and mourned to himself, “Woe is me that I have given my bread to a man without learning?”  R. Shimon the son of Rabbi, and said to him, “Perhaps it was R. Yonatan ben Amram, your student, that did not want to derive material benefit from the honor paid to the Torah.  Inquires were made and it was found to be so.  Whereupon, Rabbi said, “All may now enter.”

 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:

רבי שהיה מצטער שנתן פתו לעם הארץ, משום דהיו שני בצורת ומה שהיה אוכל עם הארץ יחסר לתלמיד חכם, הא לאו הכי חייב להחיותו. אם בא לפנינו מת ברעב, חייב להחיותו אע”פ שהוא ספק אם יחסר לתלמיד חכם אחר כך.

Rabbi, who was upset that he gave his bread to an am ha’aretz, because it was during a time of famine, and whatever an am ha’aretz would eat, would be lacking from the Torah Scholar.  If this was not the case, it would be an obligation to feed him.  If he comes before us dying of starvation, (we) are obligated to preserve his life, even if there is a doubt that this will come on account of a Torah Scholar later on.

            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.”)  

 

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* 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. 

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