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.

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.

Why does Talmud Bavli enjoy halachic supremacy over Yerushalmi?

The Babylonian Talmud has enthralled and frustrated millions of dedicated students since first being published in 6th century Sura. Its apparently chaotic and challenging accounts of rabbinic debates over Jewish law have long formed the primary resource for subsequent scholars seeking to determine halachic rules and principles.

Often overlooked, however, is the Bavli’s older sibling compiled over a century earlier in the land of Israel. As Talmud Reclaimed explores, standard halachic tradition has long been based on the principle of the supremacy and binding nature of legal conclusions of the Babylonian Talmud – even if there are significant variations in the methodologies of how such conclusions are to be determined and implemented. While the Yerushalmi has not traditionally been accorded the same binding authority as the Bavli, neither has it been totally ignored and absent from the halachic process – even those who profess loyalty to the Bavli can sometimes be seen to have relied on the Yerushalmi too.

The uncertain status of the Yerushalmi and its mysterious overshadowing by the Bavli can be traced back to its earliest years. While its authorship is widely attributed to the first generation Amora, Rabbi Yochanan, what exactly was its authority? Was it approved by majority or collective of Palestinian scholars? Might it even have been approved by the Sanhedrin which was still sitting, albeit in limited and persecuted form, in the Land of Israel?

What is fascinating to note is that, while the Babylonian Talmud records numerous Palestinian voices and traditions within its pages and accords them great respect – often elevating their interpretations and traditions over those of its own sages – no mention is made at all of the existence of a Talmud from the Land of Israel. Given the great reverence with which the Bavli treats Rabbi Yochanan, the author of the Yerushalmi, why does it omit mention of his magnum opus? It is difficult to imagine that Babylonian rabbis were entirely unaware of this work.

One theory that has occurred to me is that it is actually inaccurate to refer to our Talmud as “Babylonian”. It is not only that Rabbi Yochanan is revered in the Bavli – he is one of its most frequent contributors. Together with Reish Lakish and other Amoraim from the Land of Israel, he ensures that there is a strong Palestinian voice and influence in almost every major discussion within the Bavli.

An important shift took place within the Talmudic world of Bavel during its 3-4th generation, as intense persecution shuttered the academies and courts within the Land of Israel sending its revered rabbis and considerable scholarship into Babylonian exile. This shift meant that fourth generation Babylonian sages, such as Abaye and Rava, now had the benefit of a vast array of traditions and interpretations that had not been available to their predecessors. As a result of this new information, a principle of halacha kebatra’i (law follows the latter authority) was introduced. Also from this generation, the Bavli no longer links rabbinic teachings back to earlier generations of Babylonian scholars as it did previously (e.g. Amar Rav Yehuda amar Rav) – seemingly because the pool of scholarship and traditions now meant that later generations were standing on the shoulders not only of their Babylonian predecessors, but of those of their Palestinian counterparts too.

In short, the later generations of Babylonian Amoraim, from Abaye and Rava through to Ravina and Rav Ashi who compiled the Talmud, represented the fruits of a joint tradition from Bavel and Eretz Yisrael. They sought to weave together and tease out the most authoritative, logical and practical traditions and interpretations and formalise them within the Babylonian Talmud. If this is true, it is not that the Yerushalmi was ignored – anymore than Rav and Shmuel were ignored. But that they were component parts of what was to become an all-encompassing compilation of the Oral Tradition.

Sherirah Gaon accords binding authority to the rulings of the Babylonian Talmud on account of the supremacy of Rav Ashi’s academy having been accepted by all other rival academies, an acceptance which Rav Elchanan Wasserman (among others) understands to have given it a quasi-Sanhedrin status. If we are correct in viewing the Yerushalmi as having been subsumed within Babylonian scholarship then it is far easier to deem Ravina and Rav Ashi’s Court to have represented some kind of National Rabbinic Authority. Independent historical sources from this era are hard to come by (some are analysed in Talmud Reclaimed), but it seems reasonable to suggest that at Rav Ashi’s time there was scant serious scholarship outside of Bavel which could challenge his authority.

By the time we reach the Geonic period we see a resurgence of Jewish communities and scholarship in the Land of Israel, and evidence of strong clashes between them and their Babylonian counterparts. While many of the divergences between Babylonian and Palestinian practice were limited to legitimate differences in minhag (such as prayer liturgy and triennial cycle of Torah reading), we also find disputes over halachic matters such as the observance of second day of Rosh Hashanah. The most high-profile and threatening “rebellion” against Babylonian authority came with an attempt to make significant changes to the Jewish calendar – an attempt which was forcefully defeated by Saadiah Gaon.

Ultimately, even Rambam and Rif, two powerful halachic authorities who prided themselves on their links to Babylonian Geonim, were openly prepared to draw upon Yerushalmi interpretations as long as these were not explicitly contradicted by later rulings of the Bavli. As the Rif stated at the end of his commentary to Eruvin, the reason for this is halacha kebatra’i. As with the teachings of early Babylonian Amoraim, the combined Yerushalmi-Bavli tradition woven together by Abaye and Rava through to Rav Ashi was taken to be superior to each of its individual component parts. A truly national Talmud.

For more information visit www.TalmudReclaimed.com

First posted on Facebook 24 December 2023, here.

Sepharadi and Ashkenazi Talmudic methodologies compared

 Here is a recording of my Shiur last night regarding the contrasting Talmudic and Halachic methodologies of Sepharad (Rambam, Rif and Geonim) on the one hand, and Ashkenaz -- represented by the Baalei Tosafot on the other.

First posted on Facebook 11 January 2024, here.