A flawed reconstruction of the Tannaitic study hall

A couple of people sent me this Kotzk-blog article in recent days that summarises a primary theme from Rabbi Binyamin Lau’s The Sages: the apparent friction between creative and conservative elements within the Tannaitic study hall. The blog prides itself on “uncompromising truth and intellectual independence”, a mission statement which I see as an invitation to challenge its uncritical tribute to Rabbi Lau’s account.

Chapter 46 of Judaism Reclaimed, which critiques this section of The Sages, notes that the theory Rabbi Lau (pictured, right) presents is not original research. Rather it closely adheres to a history of the sages compiled centuries ago by the Jewish-German historian Heinrich Graetz. Unfortunately for his readers, not only does Rabbi Lau fail to mention Graetz’s work, but he is also either unaware of or unwilling to engage with a comprehensive and scathing critique of Graetz’s work which takes up over 200 pages of Rabbi S. R. Hirsch’s Collected Writings (Vol. 5).

A significant element of Graetz’s account is his attempt to demonstrate that the hermeneutical creativity of the oral tradition was an innovation on the part of Hillel; an innovation which led to conflict between different groups of sages. Graetz’s suggestion, which runs counter to traditional Judaism’s view that the hermeneutical rules are of Sinaitic origin, is reproduced uncritically by Rabbi Lau who writes in his introduction:

“It was in the beit midrash of Shemaya and Avtalyon that exegesis achieved a new form. There the scholars learned how to expound verses analytically by comparing, juxtaposing, and combining texts…Hillel introduces the practical application of the exegetical principles in the land of Israel…ushers in an exciting period of creativity in developing the Oral Law…”

According to the Graetz-Lau theory, Shammai represented the old and more static traditions while Hillel championed creativity in hermeneutical interpretation and halachic development. Shammai was strict and inflexible while Hillel was lenient and innovative. This apparent tension is then imaginatively threaded through subsequent generations of Tannaitic sages, reaching its peak with the debate between Rabbi Eliezer (“the Shammaite”) and his colleagues concerning the oven of Achnai.

As our chapter shows, Rav Hirsch advances considerable challenges to the Graetz-Lau theory and its depiction of the methodology of interpreting the Torah as being a major battleground between the schools of Hillel and Shammai (and their followers in subsequent generations). Rav Hirsch’s comprehensive research demonstrates, for example, how of 280 recorded disputes between Beit Hillel and Beit Shammai, 245 of them are entirely unrelated to hermeneutical methodology. Of the remaining 35 disputes, we do not find a single example of Beit Shammai disputing the validity of a hermeneutical principle advanced by Beit Hillel; he typically accepts the validity of the interpretative rule but counters with an argument against its specific application in the scenario under discussion. If anything, the reverse is true: a Baraita in Yevamot (16a) describes how school of Shammai offered 300 dialectic arguments to support their contention over a detail of levirate marriage. These arguments nevertheless failed to dislodge Beit Hillel from their loyalty to an ancient tradition. This is also consistent with the Talmud’s comment a couple of pages earlier that it was the school of Shammai that exhibited keener halachic reasoning.

Rather than debating the legitimacy of halachic innovation versus tradition – a theory made possible only by the selective presentation of Tannaic sources – the proliferation of disputes between these two great academies was attributed by a Tosefta to students not having properly absorbed the ideas set forth by their founding sages.

Rabbi Eliezer, presented by Graetz and Rabbi Lau as a rigid Shammaite traditionalist who vigorously rejected the interpretative methodologies (or “inane deliberations”) of his colleagues, is shown to have availed himself of interpretative or logical methods of extracting halachah on no fewer than 63 separate instances. Some of the most complex hermeneutical methods are even said by the Talmud to have been championed by him.

In the infamous Akhnai debate, a dispute over whether a certain type of oven can contract ritual defilement, grows in intensity. Rabbi Eliezer repeatedly succeeds in summoning supernatural affirmations of the correctness of his position. Rabbi Yehoshua dismisses these proofs and famously declares that “it [the Torah’s interpretation] is not in Heaven.” Rabbi Eliezer’s persistent refusal to concede the argument in favour of the majority view leads to his excommunication.

Rabbi Lau’s account views this event as part of an ongoing ideological rift between the schools of Shammai -- which rigidly clings to received tradition -- and Hillel, thought to be more creative and flexible in its hermeneutical interpretations of the Torah. He labels the strong stand taken by Rabbi Eliezer (the “Shammaite’’) in the Achnai episode a “classic example” of rigid adherence to tradition. In doing so, he fails to recognize that the debate is entirely irrelevant to the question of tradition versus creativity; Rabbi Eliezer does not ground his case in received tradition, nor does Rabbi Yehoshua respond with interpretative innovation based on hermeneutical rules. Rather, all parties to the dispute agree on the basic halachic principles governing the ritual impurity of vessels and are involved in a relatively minor disagreement as to how the halachah can be most logically applied to a specific circumstance. Importantly, the Gemara describes how “Rabbi Eliezer advanced all the arguments in the world”—hardly the behaviour of someone clinging doggedly to transmitted dogma.

The special significance of the Achnai case really lies in Rabbi Eliezer’s rejection of majority rule as the proper basis on which to resolve halachic disputes. The powerful implications of this rejection lead Ramban to comment that, had the Sanhedrin been fully functioning at this juncture, Rabbi Eliezer would have been tried as a Zaken Mamre (Rebellious Elder).

Readers with an interest in the history of the Tannaitic study hall are strongly recommended to include the writings of Rav Hirsch – a scholar who truly straddled the worlds of Talmudic and academic Judaism – in their attempts to reconstruct this fascinating period of Jewish history.

First posted to Facebook 16 December 2021, here.

Ketubot: virginity claims and Talmudic wisdom

This coming weekend, Daf Yomi enthusiasts will perhaps breathe a sigh of relief as they conclude the notoriously difficult tractate of Yevamot. The new terrain that they will exchange it for, however, presents the modern Talmudic student with a very different challenge.

What are we to make of sets of laws so firmly entrenched in societies so different to those in which we live? Of husbands taking their brides to court over claims that they were not virgins at the time of their wedding? Of different claims, counterclaims and virginity tests that a Beit Din may have to rule between?

As well as reflecting social attitudes and practices which are difficult to relate to in the twenty-first century, few of the laws that we analyse in this chapter are even remotely applicable in Jewish law today. Notwithstanding this, it is not only Daf-Yomists who will be wrestling with Ketubot in the coming months. The tractate lies right at the heart of pretty much any Yeshiva curriculum, with its intricate web of virginity claims and financial counter-claims being pored over and vigorously debated by all serious budding rabbinic scholars.

My upcoming book, tentatively titled Talmud Reclaimed, therefore uses this opening chapter of Ketubot as a classic case study with which to probe the nature, function and purpose of modern-day Talmud study.

First, I attempt to distinguish the core, immutable elements of Talmudic law which are understood to have been transmitted from Sinai from those aspects which would have been legislated and formulated by later sages and Courts. This latter category, according to Rambam, represents a secondary category of law, and is open to being amended by a legitimately formed Sanhedrin.

The reason why we still study the laws of Ketubot in their current form, therefore, is that no Court or set of sages since Ravina and Rav Ashi has been widely accepted as qualified to alter their teachings since the Talmudic era concluded. Nevertheless, it is valuable to be able to identify which teachings belong to each category: which Talmudic laws are understood to have been transmitted part of God’s instruction to Moshe in the desert and which are likely only still being studied because of the freezing of our oral tradition due to continued exile.

Secondly, I examine the profound wisdom which is woven into the Talmud’s treatment of these remote (and to some even offensive) legal debates. Key Talmudic axioms which affect all areas of Jewish law and important elements of Jewish legal philosophy are subtly threaded through the Talmudic tapestry of this treasured tractate.

It is primarily for this purpose, rather than its strange story line and depiction of women, that Yeshiva students will continue to regard Ketubot as a serious source of Talmudic wisdom.

First posted to Facebook 6 July 2022, here.

Agunot, Sanhedrin and Tisha be'Av

When we assess the impact that thousands of years of exile have inflicted on our nation, our thoughts are immediately drawn to the weighty toll of human suffering and to the loss of sovereignty over our land. What we often ignore is the grave damage which has been wreaked on the Torah—the national treasure of the Jewish people. In fact, we have become so accustomed to the Torah in its stunted exilic form that we are unable to appreciate the extent to which our relationship with it has been defined by the stagnation of halachah. The passage of over 1,500 years without a functioning Sanhedrin has led us to revere the halachic status quo to such an extent that descriptions of the court’s legislative powers, and suggestions of how these may once again be employed at an unspecified future time, are likely to provoke considerable discomfort and even whispered claims of heresy.

In the legal system envisaged by the Torah, the court was empowered to maintain and update Torah law. It was charged with doing so in a way which would maximise its relevance and applicability to each generation. This outcome was to be achieved not only by enacting various forms of rabbinic decree but also, more significantly, by drawing upon the extensive expertise and wisdom of the court’s members to legislate details of Torah law.

In a lengthy discussion on the repercussions of exile threatened in the tochachah, Rabbi Meir Simcha of Dvinsk (Meshech Chochmah) describes the dynamic role performed by the Sanhedrin of innovating (in accordance with the rules transmitted to them) in order to ensure that the Torah was suited to guide each generation according to its needs. Quoting Rambam's introduction to Mishneh Torah, he laments that one result of exile was the consequential diminution of Torah scholarship, and total loss of the Sanhedrin which therefore necessitated the fixing and recording of the Oral Law. Since the close of the Talmudic era, however, no Beit Din has had authority to issue binding national rulings or innovate any matter of Torah law. This inability to legislate, Meshech Chochmah continues, has led to a questioning of the Torah's continued relevance and application in a modern era, and is an inevitable result of the exile predicted in the tochachah.

On a theoretical level, Rambam cautiously raises the possibility of the reintroduction of a national Sanhedrin which would have the power to revisit halachic determinations of the Talmud as well as the ability to legislate in order to address some of the challenges posed to Judaism in the modern world:

It appears to me that if all the sages of the Land of Israel consent to appoint dayanim (judges) and grant them semichah (ordination), they have the legal status of musmachim and they can judge penalty cases and are authorized to grant semichah to others [thus restoring Biblical ordination]… However, this matter requires a final decision. [Hilchot Sanhedrin 4:11]

It is difficult to advise exactly how a new Sanhedrin should go about its task. On the one hand, two millennia of stagnation have left the halachic system with a long list of pressing needs, from resolving the anguish of agunot to clarifying and legislating details of Shabbat restrictions—particularly as they are to apply in a modern Jewish state. On the other hand, however, if even the Amoraim were willing to restrict their creative legislative powers out of recognition that their knowledge was inferior to that of earlier generations, would dayanim on a newly-formed Sanhedrin be expected to be similarly circumspect? In his introduction to Mishneh Torah, Rambam acknowledged that the decline of Torah knowledge was not limited to the era of the sages. Even in his own era:

At this time, we have been beset by additional difficulties, everyone feels [financial] pressure, the wisdom of our Sages has become lost, and the comprehension of our men of understanding has become hidden. Therefore those explanations, laws, and replies which the Geonim composed and considered to be fully explained material have become difficult to grasp in our age, and only a select few comprehend these matters in the proper way. Needless to say, [there is confusion] with regard to the Talmud itself…

From the perspective of today’s minimally functioning halachic system, this is a conundrum which we can only dream of grappling with. On a practical level, the far greater challenge would be creating this court in the first place – the disunity and infighting which persists among Jewish communities in both Israel and the Diaspora makes the required unanimity hard to imagine.

As mentioned above, the re-establishment of a Sanhedrin in order to address the many challenges of Jewish law which have arisen in the past 2,000 years would require the acceptance of all sages in Israel. Jewish tradition teaches us that the Second Mikdash was destroyed, and the nation sent into exile, as a result of baseless hatred. It is perhaps fitting therefore that, in order for our nation to repair the damage that exile has inflicted on our system of halachah, we must find a way of uniting to universally approve and empower a body to make new and authoritative rulings on Torah law.

Our reaction to all-too-common scenarios in which halachah is unable to respond to modern challenges – and our witnessing of those suffering as a result – should not be restricted to shrugging our shoulders hiding behind our inability to amend rigid ancient rulings. Until we, as a nation, are prepared to set aside the petty squabbles and superficial differences through which we have become accustomed to defining our Judaism, we will be unable to appoint a new Sanhedrin and Jewish law will remain in its stultified exilic state. For me personally this is an important part of the tragedy of the destruction and exile which we mark on Tishe Be’Av. For agunot it is a tragedy which haunts their every living moment.

As we plead each day in the Shemoneh Esrei: 

“Restore our judges as in earlier times…and remove from us sorrow and groaning”

First posted on Facebook 7 August 2022, here.

A Rosh Hashanah showdown in the Holy Land

Anyone witnessing the wide-eyed panic of Israeli shoppers in the Machane Yehuda market last week would have been quickly reminded of the fact that a two-day celebration in the Holy Land is a relatively rare occurrence. While Jews living in the Diaspora are accustomed to repeating festive days on account of an ancient calendrical doubt whose results remain enshrined in Jewish law, this phenomenon was never instituted for Jews in the Land of Israel – except that is for Rosh Hashanah.

Or was it?

In the course of my recent research into the formation and authority of the Babylonian Talmud, I came across a fascinating passage contained in the Me’or Hakattan commentary of Rabbi Zerachyah Halevy. Reviewing the Rif’s codification of the Talmudic ruling that Rosh Hashanah must be observed for two days – even in the land of Israel – Rabbi Zerachyah notes that this law was not observed in Israel throughout the Geonic era.

The calendar had always been within the jurisdiction of the original Sanhedrin that sat in the land of Israel, an institution which ceased to exist only with the migration of Jews to Bavel in the fourth century. Perhaps for this reason, the attempt by Babylonian sages to impose a second day of Rosh Hashanah upon the community in Palestine was resisted so strongly, even though this ruling was apparently formalised within the Babylonian Talmud. Rabbi Zerachyah recounts how Rav Hai Gaon attempted unsuccessfully to convince Palestinian communities to observe a second day of the festival in accordance with his understanding of the Babylonian Talmud, but that they had only finally acquiesced to the two-day observance rule in “recent” times at the persuasion of rabbis from Provence. [Rabbi Zerachyah lived circa 1115 to 1186. Rav Hai Gaon lived from 939-1038 CE.]

Ran in his commentary to this ruling of the Rif points out that both sides of this dispute could be seen as legitimate interpretations of the Babylonian Talmud which only rules concerning an era in which the Sanhedrin fixed the calendar according to witnessed sightings of the new moon. Nevertheless, the matter evidently evolved into a question of authority between the Babylonian Geonim and their understanding of the Talmud and the Palestinian community who wished to maintain their tradition of celebrating for one day only.

A further ancient practice of the Palestinian-influenced communities which ceased at around this point was the triennial cycle of Torah reading. The triennial cycle was the practice in Israel, whereas in Babylonia the entire Torah was read in the synagogue in the course of a single year. As late as 1170, Benjamin of Tudela recounted how Egyptian congregations took three years to read the Torah.

It would seem that Babylonian authority over communities in Palestine was a sore and contentious point. During the early generations of Amoraim, scholarship and academies in the land of Israel had rivalled and perhaps even eclipsed those of Bavel, with its sitting Sanhedrin and Yerushalmi Talmud which was produced by Rabbi Yochanan in the 4th century. Subsequent religious persecution led to a significant wave of migration to Bavel and with it the inclusion of numerous Palestinian voices and rulings in the Babylonian Talmud. Nevertheless, Jews in the land of Israel for centuries to come did not fully accept the notion that they were bound by the conclusions of the Babylonian Talmud rather than its Palestinian counterpart. They seem to have maintained that the two Talmuds bore equal legal force, since each represented a legitimate representation of the same underlying oral tradition. This was the situation until the establishment of the caliphate in Baghdad in the eighth century, when Abassid Babylonia became the centre not only of Arabic but also of Jewish culture. From then on, the influence of the Babylonian Talmud gradually began to overwhelm that of the Palestinian Talmud.

Ultimately, the Crusades thoroughly weakened the Jewish community in the land of Israel. This, coupled with a sustained campaign on the part of students of the Rif, appears to have ended whatever resistance had remained to the universal acceptance of the Babylonian Talmud as an exclusive binding source of Jewish law. However, the existence of a precise historical point at which it could be deemed “universally accepted by all of Israel”, as Rambam maintains in his introduction to Mishneh Torah, is a matter which might be subject to some debate.

First posted to Facebook 28 September 2022, here.

Kiddushin: are the rabbis in control?

One of the primary themes of my upcoming Talmud Reclaimed (currently being printed) is an effort to analyse and delineate which parts of the Talmud are understood to represent core Sinaitic material, and which laws are subsequent legislative additions by the Sages and Courts.

What’s the big deal you might ask?

Well one small case study, which features in the Daf Yomi’s commencement of Kiddushin today, demonstrates the immense implications of how we categorise Talmudic laws.

An illustration of these far-reaching implications can be found in Rambam’s rulings concerning the laws of marriage. The standard text near the start of his Hilchot Ishut describes three possible methods through which a marriage can be effected:

Through the transfer of money, through the tansfer of a formal document and through sexual relations. The methods of sexual relations and formal document have their origin in the Torah, while the method of transfer of money is rabbinically legislated [divrei soferim]

While it seems clear that Rambam regards the method of money transfer as a rabbinically-legislated detail of Torah law, an alternative version of the text’s conclusion features in Rabbi Yosef Kapach’s edition of Mishneh Torah, replacing divrei soferim with “the effectiveness of all three have their origin in the Torah”. This version, which can be found in certain manuscripts, was claimed by both Meiri and Rambam’s own son, Rabbi Avraham, to have been written after Rambam retracted his earlier position towards the end of his life.

The method of creating marriage by means of money transfer appears in the Talmud (at the start of Kiddushin) to be created hermeneutically by means of a gezerah shavah. Does this mean the sages in the Talmud were actually creating a new hitherto unknown method of forming marriage or are they merely identifying a scriptural source for a transmitted Sinaitic tradition?

Rambam’s position on the matter depends on which manuscript of Mishneh Torah is assumed to be authentic.

Rambam’s retraction, which views the gezerah shavah merely as a convenient aide-memoire for a previously known Sinaitic tradition, demonstrates the general complexity involved with trying to identify those apparently hermeneutical derivations which are actually consolidating laws that were transmitted through the tradition.

The practical implications for a future Sanhedrin of whether the standard version of Mishneh Torah or its claimed revision is the correct version are enormous. If the method of money-transfer is understood to be of purely biblical origin, this would place it beyond the reach of the Sanhedrin’s legislative powers. Significantly, however, if the method is to be identified as a rabbinically-legislated detail, this would suggest that the sages have legal authority to innovate novel formulas through which marriage could be formed. Such an innovation could, in theory, pave the way to an entirely different approach within Jewish law to marriage, divorce and help to address agunah issues.

Further questions present themselves: If the sages really do possess so much power to legislate details of Torah law through a Sanhedrin-type body, do laws that they create become fully-fledged biblical laws in the same way as those received at Sinai? To what extent can such laws be said to reflect God’s will and further His intent behind those commandments?

First posted to Facebook 15 August 2023, here.

A time to light? Are we authorised to amend Talmudic law?

Visitors to Jerusalem typically react with equal measures of frustration and endearment at its unique charms and idiosyncrasies. One local custom which pertains specifically to Chanukah relates to the time of lighting; while the majority of the Jewish world lights Chanuka candles at nightfall, many Jerusalemites follow the position of the Gra and therefore start lighting immediately at sunset – approximately half an hour earlier.

As I show in my new Talmud Reclaimed, what might at first glance be regarded as a minor dispute in fact embodies two different legal philosophies and methodologies which separated leading medieval Jewish Halachists.

This dispute regarding the latest time for performing the commandment of lighting the Chanukah lights provides a perfect example of the different approaches taken by the Maimonidean and Tosafist schools to extrapolating Jewish law from Talmudic sources. Chapter 6 of Talmud Reclaimed explores these differences in detail, with Rambam, Rif and the Geonim typically relying on a stricter and more literal reading of Talmudic sources in contrast to the relatively freer approach of the Tosafot who permit themselves to incorporate more of their own rationalisations into the halachic process. The case study below is based upon an accompanying Appendix which explores 30 relevant case studies.

The Talmud (Shabbat 21b) states that the time for lighting is from sunset until the time that people have left the marketplace. Rif and Rambam take the duration of this window of fulfilment of the commandment to be approximately half an hour. Once this time has elapsed, the Talmud tells us, there is no longer an obligation to light (and, as a corollary, any blessing over the lights after this time may be biblically prohibited as a berachah levatalah,a blessing in vain).

Rambam records this Talmudic conclusion into his laws of Chanukah (4:5):

Should one forget, or even if one purposely did not light at sunset, one may light afterwards until there are no longer any passers-by in the marketplace. How long a duration of time is this? Approximately half an hour or slightly more than that. Should this time pass, one should not kindle the lights.

Tosafot however, take a very different approach to this law, assessing how it should apply within the context of the realities of post-Talmudic Jewish life. Since the Jewish people went into exile following the destruction of the Second Temple, the commandment of Chanukah lights has largely been performed indoors for the benefit of the members of the household. Accordingly, Tosafot understand, there is no longer any reason to limit the time of lighting to when passers-by can see them.

Rambam’s strict methodology of recording simple Talmudic conclusions does not permit him to make this innovative alteration to the Talmudic rule, even if he thought it logical to do so. Like Rif before him, Rambam interprets the Talmud’s phrase “until there are no longer passers-by in the marketplace” to represent a specific measure of time after sunset rather than making the time span for fulfilling the commandment practically dependent on the actual presence of passers-by by to witness the lights. In this he is supported by the use of the identical phrase elsewhere in the Talmud (Menachot 36a), regarding the law of wearing tefillin after sunset – a commandment which is wholly unconnected to the publicising of a miracle to passers-by. The Talmud’s specification that the commandment must be fulfilled during the half-hour following sunset may instead be explained as requiring a time that is dark enough for the lights to be noticed, but not so dark that they can be mistaken for regular night-time lights (see Yerei’im and Maharam MiRottenberg).

Talmud Reclaimed argues that the vast contrast in the methodologies and legal philosophy of these schools of medieval scholars is the primary cause of varying halachic practices between Ashkenazim and Sephardim to this very day.

Ironically however when it comes to Chanuka lighting times in Jerusalem, it is the Ashkenaz communities who are most likely to adopt the stricter Talmudic reading of Rambam and Rif to light at the earlier time, while Sephardim follow the more flexible Tosafist approach. This is because Jerusalem custom is in line with the Gra (who was often more Maimonidean in his halachic methodology), while the majority of Sephardim follow the Shulchan Aruch’s ruling which embraces a later time for lighting.

For more information about Talmud Reclaimed: An Ancient Text in the Modern Era visit www.TalmudReclaimed.com.

First posted on Facebook 10 December 2023, here.