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.

Sanhedrin, death penalty and criminal law

Yesterday’s Torah reading included an instruction that “The congregation shall protect the murderer from the hand of the blood avenger”. This phrase – vehitzilu ha’eidah – has become strongly associated with the requirement in capital cases for procedural rules to be tipped in favour of the defendant (see Sanhedrin chap. 4).

The most astonishing statement on the subject comes from Rabbi Akiva, who is not satisfied merely with tipping the scales in favour of the defendant but goes so far as to say that “Had we been on the Sanhedrin, no-one would have been killed”.

We are left asking ourselves how such a criminal justice system could operate. Is Rabbi Akiva suggesting that murderers and dangerous criminals should roam free? After all, there is little evidence of custodial or other sentences being used by a Sanhedrin.

Judaism Reclaimed approaches this question based on an essay by Rabbeinu Nissim in Derashot HaRan, which explains that the Jewish criminal system overseen by the Sanhedrin was intended to function alongside a regular government that maintained law and order (this has been discussed in a previous post here).

I was recently revisiting the question of whether Rabbi Akiva’s apparent opposition to the death penalty should be viewed as a mainstream Jewish position, as an exceptional protest against the majority opinions or perhaps as a localised reaction to specific phenomena. It may be necessary to read Rabbi Akiva’s statement in the context of the political and religious dynamics which prevailed in the Tannaic era, as well as other Talmudic teachings.

In particular, Jewish tradition teaches that the Sanhedrin voluntarily moved out of their Temple chambers in order to avoid having to hand down capital sentences. But why would the Sanhedrin have moved out of its Temple chambers so as to avoid punishing murderers? Is this not a dereliction of their duty?

There are insufficient historical sources of earlier Second Temple period to make a definitive assessment, but from accounts of death penalties carried out by Shimon ben Shetach and Yehudah ben Tabbai over a century earlier, it doesn’t seem like earlier courts shared Rabbi Akiva’s reticence for the death penalty.

I recently found a fascinating suggestion made by Rabbi David Zvi Hoffman – somewhat based on Josephus’s account of the political dynamics of the period. According to Rabbi Hoffmann, this course of action was taken by the Court in response to Roman attempts to control and subvert it so that Rome could secure conviction of its own enemies:

Often the most zealous patriots had to be sentenced as robbers and murderers, and the members of the Synedrium then only served as puppets for the Roman power. Thus, as a rule, the Pharisees were then opposed to a death sentence.

It was not only the Romans who pressed the Sanhedrin to hand down convictions. Writing in his Antiquities[20:9], Josephus informs us that the Sadducees, who rejected the rabbinic tradition of the Pharisees, were therefore “very rigid in judging offenders” and therefore displayed a greater enthusiasm than other Jewish sects when it came to convicting those accused of crimes. This was significant because – according to Rabbi Hoffmann – the Romans were promoting Sadducees into the court during this period -- perhaps for the specific purpose of more easily securing convictions for their opponents. The murderous nature of the years leading up to the destruction of the Mikdash, coupled with Roman interference in the running of the court, certainly provides a plausible reason why the Sanhedrin should have felt the need to exile itself, even though that meant having to surrender its authority to hand down capital cases.

These reasons – together with the Sadducees’ apparent enthusiasm for securing convictions in capital cases – may also explain why Rabbi Akiva and his colleagues sought to place such insurmountable legal obstacles before zealous prosecutors. A Mishnah in Sanhedrin provides an eyewitness account by Rabbi Elazar bar Tzadok of an execution which took place in the closing years of the Mikdash era, the details of which did not conform with the law as understood by the rabbinic tradition. When the question was raised as to how the Sanhedrin permitted such an execution to take place, the Talmud answers that it was conducted by a court of Sadducees.

There appears to be considerable evidence, therefore, that the approach to the death penalty exhibited by the Tannaitic sages in Rabbi Akiva’s Mishnah represents a reaction to the exigencies of their troubled era. This still leaves us with a question: what attitude to prosecution of criminal and capital cases might the Sanhedrin have exhibited in less fraught times? Would they have delegated the maintaining of law and order mostly to non-Sanhedrin governmental courts, as the Derashot HaRan suggests, or would they have retained a role in convicting criminals?

Returning to analyse Rabbi Akiva’s statement, the Gemara understands that this avoidance of the death penalty would have been achieved by setting the standards of required evidence so high that it would have been practically impossible for witnesses to answer questions. What emerges from this passage (as well as elsewhere in the Gemara) is that the Sanhedrin enjoyed a great deal of discretion in terms of how it interrogates witnesses and assesses the level of evidence which must be met to secure a conviction.

The Chazon Ish explicitly includes evidential evaluation among the category of legal details which the Torah delegated to the Sanhedrin of each generation to determine based on its own understanding and in accordance with the social and political realities of the nation at that time. Importantly, this means that different courts can resolve this question differently at various points in Jewish history and set the evidential requirements in recognition of the particular needs of their own generation. We should not imagine, therefore, that the hyper-restrictive statements concerning the death penalty which the Mishnah expresses in the first chapter of Makkot necessarily reflect how the court should function under normal circumstances.

First posted on Facebook 31 July 2022, here.

The Sanhedrin: a priestly prerogative or a free-standing judiciary?

The political system of ancient Israel is often lauded for its separation of powers, with a monarchy, priesthood and judiciary each functioning within distinct parameters of responsibility and power. What do we make then of the verse that we will read shortly on Simchat Torah – in connection to the priestly prerogative of the Levites: “They shall rule upon Your laws to Jacob, and [upon] Your Torah to Israel”?

These kohanim, we have already been told, sit in judgment as part of the supreme judicial Court at the Temple: “And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment” (Deuteronomy 17:9).

The book of Leviticus adds – as part of its prohibition on kohanim performing their priestly activities while under the influence of alcohol – the requirement that they “instruct the children of Israel regarding all the statutes which the Lord has spoken to them through Moses” (Leviticus 10:11). The prophet Ezekiel (44:24) takes this theme further: “They shall stand in judgment; they shall adjudicate … according to My laws…”.

Based upon these sources, interpreting and ruling upon matters of Torah and judging the people is clearly a function of the priesthood—but this is precisely the sort of role that, the Mishnah and Talmudic sources suggest, was fulfilled by the Sanhedrin as judicial institution that was independent of formal priestly involvement.

Historically, what evidence is there of a connection between the Sanhedrin and Kehunah?

It is hard to reach any definitive conclusion concerning the first Temple period. Aside from Ezekiel's instructions to the kohanim to perform judicial functions, we find that Jehoshaphat established in Jerusalem “judges of the Levites and the priests and of the chiefs of the fathers' [houses] of Israel, for the judgment of the Lord and for quarrels”. This seems to reflect the Torah’s view that the priests did play an important role in the judiciary.

During the early years of the second Temple, when Israel was controlled by Persia and Greece, historical sources suggest that political and religious power of the Jewish settlement – including the judiciary – was controlled by a priestly “gerousia” body. Josephus, himself a kohen, presents the court system as a primarily priestly institution. The rabbinic tradition meanwhile describes great scholars called “Eshkolot” who presided over the system of Torah teaching from the time of Moshe until Yose ben Yo’ezer , a rabbi of the early Maccabean period – but the identity and tribe(s) of these scholars are not clear. What may be significant, however, is that the judicial body charged with interpreting the Torah and overseeing its application underwent a change at the time of Yose ben Yo’ezer.

A Mishnah in Avot (1:4) describes Yose as a student of Antigonus of Socho. It was in Yose’s generation that, according to rabbinic tradition, the religious battle between Pharisees and Sadducees arose and intensified. The Hellenist-influenced Sadducees, who rejected the oral tradition, dominated the priestly and aristocratic classes. Yose, praised in Chagigah (2:7) as “a pious one of the priests” stood firm against the Sadducee challenge but he and his supporters remained in a minority among the priests. It would seem likely that this led the Pharisees, who controlled the Court, to detach the Sanhedrin entirely from the priesthood and establish it as a distinct judicial body.

Thus students of the Mishnah and the oral tradition learn of a judicial institution which is fully independent of and even suspicious of the priesthood. The first chapter of Yoma, teaches that Court representatives would instruct a Kohen Gadol on how to perform the Yom Kippur ceremony before requiring him to swear to conduct it in the manner of the Pharisees rather than the Sadducees. We also find a pointed comment (Horayot 3:8) that a mamzer scholar is more worthy than an ignorant high priest!

Several further Mishnayot describe how various rituals were designed by the Court to demonstrate an open rejection of Sadducee teachings. Thus the harvesting of the Omer on Shabbat was accompanied by pomp and publicity (Menachot 10:3) and the Red Heifer ceremony was carried out in a legally non-preferable manner in order to publicly reject the Sadducee position (Para 3:7). Given the existential threat that the Sadducees were believed to have posed to the transmitted oral tradition, it is not surprising that the Sanhedrin was removed from the Sadducee-dominated priestly grasp.

The Sadducees neither recognised nor wished to participate in a Court which was not based upon the Kehunah – a matter which they understood to be required by the Written Torah. Meanwhile, Josephus ignored the shift in judicial dynamics, perhaps regarding the Pharisees’ move as a temporary suspension of the priestly prerogative rather than a permanent change.

Perhaps the most powerful sources which indicate a strong priestly involvement in the Sanhedrin during the late Second Temple period are found in the New Testament, with the Gospels providing accounts of the trial of Jesus at the Sanhedrin – a trial which was apparently presided over by the High Priest. While some historians consider such sources as being in direct contradiction to the rabbinic tradition, Dr Hugo Mantel (Studies in the History of the Sanhedrin) collects an impressive array of scholarly opinions which reject this claim.

Among the arguments that he advances, Mantel demonstrates that none of the charges that Jesus was recorded as having faced were capital offences that would have been tried by the Sanhedrin, and that there exists no record of the Sanhedrin charging or sentencing to death any member of the numerous branches of Judaism that the Pharisees regarded as heretical. The New Testament sources point instead to Jesus’s crime and trial as having been primarily a political offence for a crime of rebellion against Rome. This would explain why the trial is described as taking place in the High Priest’s residence (rather than in the standard Sanhedrin chambers), and with numerous Sadducees participating in the judgment. Seeing Jesus’s trial in the context of a political rather than religious offence would also make it easier to understand why the Court handed him over to non-Jews for execution in a manner which is biblically prohibited for a Sanhedrin to perform (Deuteronomy 21:23). Both Mantel and Josephus are in agreement that the Court that tried Jesus was not therefore the Great Sanhedrin of the Pharisees, but rather a separate political body which was appointed by and under the auspices of the Roman rulers.

For their part, the sages could not ignore the overwhelming biblical association between the priesthood and the judiciary. However, they understood that such an association was an ideal to which the Court should aspire rather than a mandatory requirement: “It is a mitzvah for there to be priests and Levites in the Supreme Sanhedrin, as Deuteronomy 17:9 states…[but] if appropriate ones are not found, it is permissible for all the judges to be Israelites” (Rambam, Hilchot Sanhedrin 2:2 based on Sifre). The non-priestly judiciary which Moshe established in the desert, and Ezra’s Great Assembly, would seem to support this more flexible interpretation.

The aristocratic Sadducee movement, with its strong Temple focus and lack of a flexible oral tradition, was unable to adapt to the new post-destruction reality, and ceased to exist altogether at that point of Jewish history. Looking to the future, when the opportunity arises for a new Sanhedrin to be formed, we will be left to determine the extent to which it should be a priestly body – as the biblical texts appear to advise – or whether we will preserve the sages’ shift towards a fully independent Court.

First posted on Facebook 26 September 2021, 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.

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.

Could the Sages completely change the meaning of a Biblical verse?

One of the primary questions dealt with in Talmud Reclaimed is the extent to which the sages and Sanhedrin were empowered by the Torah to legislate and amend aspects of biblical law. Yesterday’s Torah reading contained a fascinating case study which suggests that the sages were delegated so much legislative power that they could even, on occasion, alter the meaning of seemingly explicit verses. 

The passage in question concerns details of which burials of family members a kohen (priest) may attend in spite of the overarching prohibition against his becoming ritually impure. Initially, it would seem, the Torah viewed the wife’s burial as being the primary responsibility of her father and family in which she was raised. As social realities and values changed, the sages via the Sanhedrin were pressed to apply Torah law to the new circumstances (see R’ Amnon Bazaq Nitzchuni Banai, Hebrew, for more details).

The verses read:

“Let none [of you] defile himself for a dead person among his people except for “she’ero” who is close to him: his mother, his father, his son, his daughter, his brother…[But] a husband shall not defile himself [for a wife] among his people, “lehechalo.”

In his commentary to this passage, Ibn Ezra notes that the basic meaning of the word she’ero is an umbrella term which covers all close relatives for whom a kohen may become involved in their burial, even though he will become impure by doing so. Meanwhile, the final clause appears explicitly to exclude a wife from this list of close relatives.

However, continues Ibn Ezra, the sages have transmitted to us that a kohen must bury his wife despite the fact that he will contract ritual impurity by doing so. In order to do this, he continues, they reread she’ero to mean “wife” [i.e. his specific close relative] – who is now included in the list of exceptional relatives whom a kohen is obliged to bury. Most significantly, in the final clause, the sages “annulled the original meaning” of the verse in order to interpret it to be teaching that the only sort of wife for whose burial a kohen should not make himself ritually impure is one whom he was forbidden to marry in the first place.

Ibn Ezra indicates that this technique of altering the meaning of a verse, which he understands to have been the case with she’ero, is one that the sages employed on numerous occasions – further potential examples of this phenomena are analysed elsewhere in Talmud Reclaimed.

Rambam by contrast, while accepting the ability of the sages to amend Torah law, does not seem to embrace the suggestion that they could so radically alter the meaning of a verse. Rather, writing in Hilchot Avel (2:7, see Radvaz) he appears to follow the Talmud’s explanation that the sages (via the Sanhedrin) legally categorised a wife as a form of met mitzvah – abandoned corpse – that even a kohen would be permitted to bury. The husband as the sole inheritor was then required to take responsibility for burying her. Rather than changing the meaning of the verse, Rambam preferred to stretch the limits of existing legal exceptions to work around the Torah’s initial position which prohibited the kohen from burying his wife. 

Whether this shift involved the Sanhedrin assigning a new meaning to the verse as Ibn Ezra argues, or significantly extending the scope of met mitzva as Rambam rules, do we have a way of knowing when this change might have taken place? 

Unfortunately we have received few if any of the court records from early generations of the Sanhedrin. However a verse from Yechezkel, read in yesterday’s Haftarah seems to provide some insight here. 

Reviewing a number of the priestly laws, Yechezkel paraphrases our parasha’s verse stating: 

“To no human corpse shall they come to defile themselves, except to father and to mother and to son and to daughter, to brother and to a sister who has had no husband, shall they defile themselves.” (44:25)

No mention at all is made of a husband’s obligation – or even permission – to bury his wife. This implies that the change would have taken place during the Second Mikdash period. 

More about Talmud Reclaimed: An ancient text in the modern era can be found at www.TalmudReclaimed.com.

First posted on Facebook 19 May 2024.