Baba Batra: are derashot genuine sources of Biblical law?

The Daf Yomi cycle this weekend reached Chezkat HaBatim – a chapter of Talmud with a reputation for its complexity as well as its fundamental Talmudic principles. One passage with a particularly important implication appears right at the start of the chapter and is cited as part of the analysis of derashot (hermeneutical deductions) in an early chapter of Talmud Reclaimed.

What is the true nature of these textual derivations which are so ubiquitous throughout the Mishnah, Talmud and Midrash? Do they represent genuine attempts to decode and uncover divine intent woven into the Torah’s text or are they more accurately regarded as “asmachtot” – rhetorical devices used to consolidate and recall laws already known via the tradition or pre-decided by the Sanhedrin?

This question has already been debated fiercely by great rabbinic scholars.

At one end of the spectrum we have the Malbim, who maintained that all rabbinic interpretations were aimed at revealing a concealed and profound depth to the Torah’s text. To this end, Malbim compiled and elucidated an impressive list that includes literally hundreds of intricate nuances within the grammar, syntax and linguistics of biblical Hebrew which, he argued, have guided the sages’ extraction of legal details from the Torah. The Malbim’s position can draw support from the apparent meaning of Talmudic text which appears to legislate details of biblical law on the basis of such derashot.

A notable example from the beginning of the third chapter of Baba Batra seeks to identify a source for the law that three years’ possession of land creates a presumption in favour of ownership. Rabbi Yochanan reports in the name of those who belonged to the Sanhedrin in Usha that this law was derived from the case of a goring ox, whose legal status – and responsibility for its owners to guard it – is altered after three instances of goring.

If this derivation was simply intended to serve as a rhetorical device or memory aid, it would be sufficient that the source and derivative both possessed the same broad legal principle: that a series of three is deemed to represent or generate a change of legal status. Numerous highly detailed and technical objections are raised, however, to the comparison between the case of the ox and that of land possession.

Ultimately the Talmud’s presumptions are upheld: those who derive the three-year presumption from the goring ox would indeed be bound by such details. The other sages however, who relied on a different source, did not consider that the details of the three-year land possession presumption was influenced by details of the ox-goring derivation. Thus the proposed scriptural source for rabbinically-legislated details of Torah law can directly be seen to influence the nature and application of those details.

In opposition to the Malbim, other rabbinic scholars such as Rabbi Dovid Tzvi Hoffman, Rabbi Jose Faur and Rav Yitzchak Rabinowitz in his Dorot Rishonim have argued that derashot are not a genuine source of knowledge. Rather, they are seen as fulfilling a pedagogical purpose in that they help to associate pre-established laws with the Torah’s text. In support of this position are lengthy lists of derashot which seem contradictory and the great degree of flexibility and discretion seemingly accorded to the sages in formulating such hermeneutical readings.

Talmud Reclaimed cites numerous case studies and arguments in support of each of these contrasting positions, noting in the process how they can both legitimately claim to be strongly sourced within the Talmud. In light of the strength of the arguments boosting each of these positions, the book attempts to plot a middle path which integrates elements of them both.

Drawing upon several examples, we suggest that the numerous examples that we explore in the book highlight the extent of rabbinic discretion in implementing these principles, it would seem that derashot cannot be seen as a rigid set of divine instructions that bind the rabbinic legislators to formulate specific details. Instead, they may be best approached as looser indications from within the text, guiding the sages in how to make use of their discretion when establishing these details of Torah law. Ultimately, however, the authority to legislate these details lies with the Sanhedrin, which can choose how to make use of the interpretative and hermeneutical principles to produce such laws. Those principles merely establish certain parameters and guidance to the Sanhedrin.

Also posted to Facebook, here.

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.

How does the Torah empower judges to interpret its laws?

The legitimacy of the sages and Sanhedrin to rule upon and interpret Torah law has been a point of controversy for over 2,000 years. Josephus describes for us the deep divide between the priestly-aristocratic Sadducees, who did not follow received traditions, and the Pharisees with their oral tradition.

Rabbi D. Z. Hoffman argued that this debate over transmitted tradition and judicial interpretation of the Torah was only a small part of a bigger societal rift which was caused by the introduction of Hellenist influences into the Jewish world:

By relieving [the Jews] of all obligations placed on the people by the Sophrim, they [the Sadducees] permitted a freer life and thus were more appealing to the great and powerful than the strict Phariseeism. [The Highest Court pp174-5]

Taking a step back, what can we understand from the Torah’s text itself about what it envisages to be its legitimate mode of interpretation?

We read in last week’s parashah how, in the aftermath of the splitting of the sea, God communicated a set of laws for the nation to observe. These laws, which are traditionally understood to encompass Shabbat and civil laws, appear to have occupied the people greatly. When Yitro visits the nation he observes that they were coming to Moshe “from morning until evening” in order to receive legal guidance and judgment.

Regardless of how clear and comprehensive any legal teaching may be, it will always in practice generate novel cases and borderline scenarios that trigger legitimate debate as to the correct application of the law. Torah law, like all other legal systems, therefore required a system of judicial determination in order to clarify and develop the divine law and assist its application to new situations. Near the start of the 40-year sojourn in the desert, Yitro oversaw the establishing of a hierarchical judicial system for this very purpose: to clarify and rule upon new or complex legal challenges:

And they shall judge the people at all times, and it shall be that any major matter they shall bring to you, and they themselves shall judge every minor matter…

And they would judge the people at all times; the difficult case they would bring to Moses, but any minor case they themselves would judge.

At this early stage in Jewish legal history, the presence of an authenticated prophet with a divine hotline meant that there was no question as to the authority or accuracy of the laws which were being taught and clarified at the top of this system.

Later on the Plains of Moav, however, with Moshe contemplating his own imminent death and the nation’s turbulent transition from a miraculous desert existence to a sovereign nation in Israel, it was apparent that a significant judicial adjustment would be required. At this point, Moshe presented the divine command for a supreme court of Jewish law—a Beit Din HaGadol which would replace him at the top of the desert hierarchy. Instead of difficult cases being brought to him, as had been the practice up until this point, they would now be sent to the Sanhedrin in its chambers at the Mikdash.

If a matter is impossible for you in judgment, between blood and blood, between judgment and judgment, or between affliction and affliction, words of dispute in your cities, then you shall rise and go up to the place the Lord, your God, chooses. And you shall come to the kohanim-levi’im and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment.

In the absence of Moshe’s clear divine mandate to define and elucidate the commandments, this supreme court needed to be unambiguously invested with biblical authority to rule:

And you shall do according to the word they tell you, from the place the Lord will choose, and you shall observe to do according to all they rule for you. According to the law they rule for you and according to the judgment they say to you, you shall do; you shall not stray from the word they tell you, either right or left. And the man who acts intentionally, not obeying the kohen who stands there to serve the Lord, your God, or to the judge. That man shall die, and you shall abolish evil from Israel.

On this basis, the Torah is understood to have invested this court, which replaces Moshe as the supreme legal authority, with standing both to transmit the known body of laws and to issue rulings which can further clarify and define the Torah’s meaning and legal details.

According to Rambam’s understanding, the court has jurisdiction to rule and legislate concerning any of the finer details of biblical law that were not taught explicitly at Sinai (see further in my third essay in this Judaism Reclaimed sample - https://judaismreclaimed.com/sample/). This is seemingly a consequence of the verse framing the court’s role as “If a matter is impossible (ki yipoleh) for you in judgment” – laws which are clearly contained within the transmitted meaning of the text would appear to lie beyond the court’s jurisdiction. With regard to other details of law, however, a properly constituted Sanhedrin is granted a power of hora’ah (asher yorucha) through which they can interpret and define terms of the Torah’s text in order to legitimately clarify and determine details of Torah law.

First posted on Facebook 5 February 2023, 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.

Talmud Reclaimed and grappling with a frozen halachah

When we assess the impact that thousands of years of exile have inflicted on our nation, our thoughts are understandably 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. 

Judaism Reclaimed cites Rabbi Meir Simchah of Dvinsk’s Meshech Chochmah commentary to the Tochecha passage of rebukes and curses that we read yesterday. Explaining the words “I will break the pride of your strength [ge’on uzchem]”, the Meshech Chochmah understands this to be a reference to the Sanhedrin – the supreme court which was empowered to interpret the Torah, and to innovate and institute decrees in order to make the Torah’s core teachings more relatable to the needs and realities of each generation. In the legal system envisaged by the Torah, the Court was empowered to maintain and update Torah law in accordance with the rules transmitted to them.

As explained by the Rambam in his introduction to the Mishnah, the Oral Law consists of two categories. The first category is a core of transmitted teachings which convey the Torah’s primary intentions, and are understood to have been transmitted intact throughout the generations from Sinai. This core, explains Rambam, lies beyond the scope of judicial interference and reinterpretation or rabbinic dispute. The second category, by contrast, is made up of finer details of the commandments and was delegated to the sages to legislate through the Beit Din HaGadol. These details of biblical law – even once legislated – could be revisited by a future court if it considered that the Torah could best be interpreted differently, or that the needs and realities of the nation had evolved.

But how are we to know which Talmudic laws belong to which category? Long intricate passages and chapters of Talmud debate numerous details of biblical laws. Surely it is crucial for us to know which of these are understood to represent God’s eternal word and which were subsequently legislated additions?

Which laws would be within the legitimate scope of a new Sanhedrin to revisit and potentially amend or repeal? This is particularly important for the modern student of Talmud for whom numerous passages seem to be entirely at odds with current social and ethical values. When are we required to accept these teachings nevertheless as the immutable word of God and when is it legitimate to suggest that, had Ravina and Rav Ashi been compiling the Talmud in the 21st century, certain chapters would have been unrecognisably different from the Tractates in front of us today? And if we are to suppose that certain passages are primarily a reflection of social reality and values from a very different society, how are we supposed to approach the task of studying them in today’s world?

Shockingly, such questions are almost entirely absent from standard Talmudic curricula today. Yet these are questions that the sages of the Mishnah and Talmud were acutely sensitive to – and occupied not only their thought but also that of earlier generations of Talmudic commentators.

My upcoming Talmud Reclaimed: An ancient text in the modern era (which goes to print in a couple of months) seeks to tackle these questions along with many others, showing how they were approached by our greatest sages.

We pray daily for a restoration of the sort of Supreme Sanhedrin Court which we possessed as a nation in ancient times. While present day politics and factional infighting makes such a vision appear distant, at the very least we can prepare the ground for a new Court by focusing our study of Talmudic law around a recognition of these two very different categories that run through its Tractates and asking ourselves what scope a duly empowered Court would have to revisit many of its conclusions.

First posted on Facebook 14 May 2023, here.

Baba Kama: integrating halacha and Talmudic wisdom

One chapter of Talmud Reclaimed explores the complex relationship in Talmud study between the twin goals of determining practical halacha on the one hand and internalising Talmudic wisdom on the other. The chapter demonstrates how what was once an integrated and mutually beneficial approach to Talmud study has become increasingly bifurcated in recent centuries.

The pages which are currently being studied in the Daf Yomi cycle provide perfect examples of how the Talmud combines these two key tasks within its investigations and debates, which seek to clarify not only the practical laws which govern various forms of damage, but also their underlying conceptual characteristics. Tomorrow’s daf analyses aish – the heading of liability which governs damage to property caused by fire (or other wind-borne items that can inflict harm). The Torah imposes basic liability on a person who is responsible for a fire which causes damage to the property of another:

If a fire goes forth and finds thorns, and a stack of grain or standing grain or the field be consumed, the one who ignited the fire shall surely pay

Not satisfied with stating the practical laws which emerge from this verse and deriving the finer details of this form of liability, the Gemara presents a dispute between two early Amoraim from the Land of Israel which revolves around its underlying nature.

Liability for aish, explains Rabbi Yochanan, is mishum chitzav: belonging to the category of obligations that are imposed upon an individual by virtue of that person’s own act. Thus, in the same way as one is personally culpable for damage done by an arrow that he shoots, so too is the harm that results from a fire attributed directly to the person who negligently permitted it to spread into a neighbour’s property. 

A second opinion, that of Resh Lakish, considers instead that aish mishum mamono: liability for permitting a fire to spread out of control is more akin to failing to prevent one’s animals from causing damage to another person’s property. According to this opinion, one is not personally liable for fire damage, but only vicariously liable as owner of the property. The Talmud demonstrates that neither category is a perfect fit. The comparison of fire to an arrow is tenuous, since the damage that an arrow inflicts is caused directly by the human force which propelled it while a fire damages by burning rather than through human energy. Likewise, the comparison with damage inflicted by one’s property is challenged since, unlike livestock, fire is not considered to be something that one can acquire and own.

Despite acknowledging the substantial difficulties involved in fitting aish into either of these pre-existing categories of liability, the Talmud, is not prepared simply to record and clarify the law of fire as requiring compensation by the person who is responsible for its damage. Rather it insists that this apparently free-standing biblical law be conceptualised and then categorised in such a manner as to conform with broader principles – even if this requires an inelegant extension of the existing chitzov or mamono precedents.

This sort of attempt to analyse the underlying nature of laws and then to arrange them accordingly is one of the basic techniques that Brisk would later develop and popularise. At the conclusion of our passage from Baba Kama we even find one opinion adopting a trademark Brisk maneouvre of trei dinei, suggesting that liability for fire contains features of both chitzav and mamono, each one explaining legal details of aish that the other cannot.

Moving to a second example, which was studied in the daf earlier this week, it would seem that later Amoraim go out of their way to demonstrate the extent to which Jewish law applies its analytical principles consistently throughout the Talmud, deliberately clarifying practical laws on the basis of non-practical precedents:

Rava said: Whatever causes ritual contamination in [the activities of] a zav will in the case of damage involve full payment, whereas that which in [the activities of] a zav would not cause ritual contamination, will in the case-of damage involve only half damages.

The laws that determine the situations in which a zav causes defilement distinguish between scenarios where he was in physical contact with an object or person, and thereby contaminates it, and those where he throws an object and causes it to hit another. In this latter case, even though his force (kocho) makes an impact upon the second object, he does not cause it to become defiled. A zav can only transfer contamination through actual physical contact – even if this contact is quite remote, as occurs when the wagon in which he is sitting runs over an object. In the passage quoted above, Rava teaches that the laws of damages similarly distinguish between cases in which one’s animal causes damage by means of direct contact with the damaged object (where full compensation is payable) and where it causes a pebble to launch and thereby cause damage (where only partial compensation must be paid).

A parallel passage in Avodah Zarah (60b) sees Rav Ashi use the very same legal framework that governs the zav as a means of explaining the laws of yayin nesech – wine which, having been touched by an idolator, thereby becomes prohibited. Rav Ashi teaches that any wine with which an idolator comes into contact, even remotely, is subject to this prohibition. By applying the analogous case of the laws relating to the zav, he excludes from the scope of the prohibition a situation in which an object is thrown at the wine by an idolator. Significantly, the laws in these two highly practical areas of law are not taught independently. Rather, the later Amoraim identified Tannaitic precedent for how Jewish law defines the concepts of contact and force, even though that precedent is from an area of law which was no longer of practical concern even in the Talmudic era.

In building the laws of damages and the permissibility of certain wines upon a foundation of remote laws of ritual contamination, Rava and Rav Ashi can be seen as conveying a clear message: that the Talmud and its laws are one interrelated organic body which share the same underlying conceptual principles. Not only the commandment of Torah study but also the process of properly comprehending and determining practical law therefore require familiarity and expertise in all areas of the Talmud, not merely those of obvious practical relevance to contemporary Jewish society.

For more information visit www.TalmudReclaimed.com

First posted on Facebook 23 November 2023, here.