Common Sense Halakhah

Mi-de-Rabbanan (Rabbinic) versus mi-de-Orraita (Biblical)

2024-03-14T03:50:00.000-07:00

THESIS:

The meaning of the statement that a given law is Biblical (mi-de-Orraita) or rabbinic (mi-de-Rabbanan) is that it is a more critically important norm for life [for the human/Jewish condition] or a less critically important norm for life.

EXPLANATION:

To be sure, if the way that one was taught how to be human was via the guidance of the Biblical-Judean culture, anything strongly required for life is obviously demanded by God/Torah. There is no gap between the ancient Biblical-Judean tradition and the norms that one notices that real life demands. Nonetheless, there can be debates over the importance of a given norm. Is a given norm important enough to be equated with a Biblical law example that it parallels? Meaning, would one who taught the Biblical law also obviously intend that everyone treat the given norm just as punctiliously? If so, from the time of the Bavli Talmud onward, we express that point by stating that it is mi-de-orraita. Or is a given norm less critical that the Biblical law example that it parallels? Meaning, even if someone who taught the Biblical law would also obviously intend this given norm, would they not expect everyone to treat the given norm just as punctiliously? If so, from the time of the Talmud Bavli onward, we express that point by stating that it is mi-de-rabannan.

ILLUSTRATION (PROOF)

The best way to see this is by reviewing all the cases where rabbinic tradition correctly points out that an obligation that seems Biblically mandated from a syntactic reading of a given pasuk, is actually not what the pasuk meant -- is merely rabbinic. And the cases where they correctly point out that a norm that is not stated in the closest written Biblical law example was obviously intended by the pasuk -- such as not to accept hearsay evidence once the pasuk demands at least two to three witnesses.

The easiest way to see this, however, without reviewing all of the Talmud Bavli or my articles is to notice the laws of Shabbat.

1. The Tannaim already distinguished between violating the day of rest via serious work (מלאכה, מלאכה שיש עמה מחשבה, מלאכת מחשבת) that the Torah forbids so as not to impose labor on slaves, animals, and day laborers and violating the day of rest via less onerous work tasks and/or tasks that one can understand how a person might not easily forego for a whole day (שבות). {The meanings of these terms have been discussed in some of my publications and will not be repeated here.}

2. The Talmud Bavli (possibly the Babylonian Amoraim themselves), in turn, designates those more severe violations of the day of rest as Biblical and those less severe violations as Rabbinic.

3. Inasmuch as the Tannaim had not limited their exegetical discussions of Biblical verses to the more severe Shabbat violations but had made a commonsensical distinction anyway between severe and less severe violations of rest, the Bavli is simply expressing that distinction in its own cultural language.

4. As to why the Bavli uses that language -- from God versus from the rabbis -- that will have to be discussed in my history book.

Blood on the Doorpost and Korban Pesach: Explaining Words and Practices through Real Life

2023-01-27T04:39:00.003-08:00

שמות פרק י"ב

כא וַיִּקְרָא מֹשֶׁה לְכָל זִקְנֵי יִשְׂרָאֵל וַיֹּאמֶר אֲלֵהֶם מִשְׁכוּ וּקְחוּ לָכֶם צֹאן לְמִשְׁפְּחֹתֵיכֶם וְשַׁחֲטוּ הַפָּסַח. כב וּלְקַחְתֶּם אֲגֻדַּת אֵזוֹב וּטְבַלְתֶּם בַּדָּם אֲשֶׁר בַּסַּף וְהִגַּעְתֶּם אֶל הַמַּשְׁקוֹף וְאֶל שְׁתֵּי הַמְּזוּזֹת מִן הַדָּם אֲשֶׁר בַּסָּף וְאַתֶּם לֹא תֵצְאוּ אִישׁ מִפֶּתַח בֵּיתוֹ עַד בֹּקֶר. כג וְעָבַר יְהוָה לִנְגֹּף אֶת מִצְרַיִם וְרָאָה אֶת הַדָּם עַל הַמַּשְׁקוֹף וְעַל שְׁתֵּי הַמְּזוּזֹת וּפָסַח יְהוָה עַל הַפֶּתַח וְלֹא יִתֵּן הַמַּשְׁחִית לָבֹא אֶל בָּתֵּיכֶם לִנְגֹּף. כד וּשְׁמַרְתֶּם אֶת הַדָּבָר הַזֶּה לְחָק לְךָ וּלְבָנֶיךָ עַד עוֹלָם. כה וְהָיָה כִּי תָבֹאוּ אֶל הָאָרֶץ אֲשֶׁר יִתֵּן יְהוָה לָכֶם כַּאֲשֶׁר דִּבֵּר וּשְׁמַרְתֶּם אֶת הָעֲבֹדָה הַזֹּאת. כו וְהָיָה כִּי יֹאמְרוּ אֲלֵיכֶם בְּנֵיכֶם מָה הָעֲבֹדָה הַזֹּאת לָכֶם. כז וַאֲמַרְתֶּם זֶבַח פֶּסַח הוּא לַיהוָה אֲשֶׁר פָּסַח עַל בָּתֵּי בְנֵי יִשְׂרָאֵל בְּמִצְרַיִם בְּנָגְפּוֹ אֶת מִצְרַיִם וְאֶת בָּתֵּינוּ הִצִּיל וַיִּקֹּד הָעָם וַיִּשְׁתַּחֲוּוּ.

Based on this Biblical passage, scholars read the multi-generational practice (hukat olam) to place blood on the doorpost as an apotropaic practice – as a practice done to keep agents of harm away.^{^[1]} However, placing fresh blood on the entrance to a home attracts predators rather than protects against danger. Thus, in order to both understand what this practice means and even what the wording of this passage means, one must first turn to the seasonal context of the Paschal holiday. One must then read all the details of the Paschal sacrifice as intertwined and place them in the seasonal context. Then and only then, can one see how it makes sense to spread blood at the entrance to the home. Moreover, then and only then, can one understand how placing blood on the doorpost can sensibly relate to a declaration that agents of harm will be kept at bay.

To begin: Every spring, the Ancient Middle East celebrated an annual barley (aviv) holiday. Coming after the cropless winter, when the poor ran low and sometimes even ran out of grain, the Ancient Middle East celebrated finally having flatbread again. In the Biblical version of the holiday, the propertied persons are obligated on the Passover eve holiday to share with their dependents a Paschal-eve sacrificial meal (Exodus 12:4; Numbers 9:14) of meat and of flatbread (Exodus 12:8; 23:18; 34:25; Numbers 9:11; Deuteronomy 16:3). Meaning, the propertied are obligated to celebrate the barley harvest both by festively sharing meat with the poor and by joining the poor in eating flatbread (hag ha-matzot) – even as barley flatbread is comparatively painful to digest and is thus the bread of the afflicted (Deuteronomy 16:3^{^[2]}) poor when compared to soft wheat bread. Rather, than continue to eat their soft wheat bread and immediately feed the new barley to their animals while the poor both needed the barley and were stuck being happy with barley, the propertied were obligated to join with the poor for a week in eating flatbread – a reminder of all classes’ past enslavement and of God’s redemption therefrom (Exodus 23:15; 34:18; Numbers 9:14; Deuteronomy 16:1). In the Biblical version of the holiday, moreover, the propertied must even destroy their sourdough and refrain from creating new sourdough for all seven days (Exodus 12:15, 19; 13:7) – making it unrealistic for the propertied to eat risen bread until around a week after the Passover holiday. Furthermore, in line with that Biblical obligation on the rich to celebrate and share meat and (flat)bread with the poor, moreover, Second-Temple Judeans delayed the Barley Offering that permitted consumption of the newly-grown barley (Leviticus 23:9-11).^{^[3]} Second-Temple Judeans delayed the Barley Offering until after the shared Paschal celebration, in which the propertied shared with the poor their stored barley and wheat from the previous year. (We will discuss elsewhere the competing Second-Temple practices of delaying only until the day after the Paschal celebration versus delaying until after all seven days of the Flatbread/Matza holiday.)

Now, with that background that propertied persons share meat (an expensive food) and (flat)bread with their slaves and with their tenant farmers (ger nimol), the Biblical law of spreading blood on the doorpost makes sense. Even as blood on the doorpost attracts predators, or precisely because blood on the doorpost attracts predators, it makes sense to spread blood on the doorpost. When a whole homestead (or such) feels unified in a mutually-trusting relationship, it makes sense to spread blood at the doorway to boldly take the risk of drawing a predator and thus reaffirm the conviction that the mutually-caring group will be able to survive the harms that God brings about outside – harms that do indeed damage those homesteads (or such) that malfunction (-- which, according to these Biblical sources, malfunction because the propertied persons oppress the slaves and tenant farmers and fail to develop a strong cooperative relationship).

This sensible reason for spreading blood on the doorpost to express and reinforce the interclass unity of the homestead unit (or such), moreover, makes so much sense that later generations found an added way to express the ethics of mutual unity. Later generations ceased to eat in the homestead and ate instead in mass pilgrimage gatherings in Jerusalem (as I will discuss elsewhere). Later generations thus stopped placing blood on doorposts. Nonetheless, they continued to eat the Paschal sacrifice in pre-designated groups. And in parallel to the Biblical practice of placing blood on the doorpost and declaring that God did and would protect the ethical mutually-supportive homestead, these later generations sang Hallel/Psalms together at the Paschal celebration.^{^[4]} Moreover, it is mainly^{^[5]} because the Paschal sacrifice models anew every year an ethical relationship within each group/homestead, that later generations continued to eat the Paschal sacrifice in pre-designated groups and continued to affirm via Psalms (Hallel) that God (or: Existence's) both destroys and saves -- that God will protect them from the very harms that the Divine inflicts on the world to the harm of those who do not live in ethical mutually-supportive groups.

To close: Beyond understanding the Torah's important message here, we have now seen how to accurately understand the message of all Torah sources (in the broadest sense). First understand the real-life context of the practice. Second explain the practice to match the context. Then and only then, figure out the correct meaning of the words that a source uses to explain the practice.

^{^[1]} Greenberg M. 1976, 71 and many others).

^{^[2]} I don't know what to say about critical Biblical scholars who view themselves as academically rigorous (such as Shinan and Zakovitch 2012, 97-99) and yet read the term lehem oni as a literary explanation of the reason to eat flatbread, rather than translate the term in its agricultural context before conjecturing what other allusions the Biblical author intended.

^{^[3]} For more on the question of the date of the Barley Offering, see Ancselovits 2016, 72-73. (For the reference to Milgrom 1997, 81-89 and fn.14 in that article, one should add the earlier Ginsberg H.L. 1982, 59.)

^{^[4]} Our earliest sources are from Second-Temple times.

^{^[5]} In another work, in progress, I discuss another reason that is raised already in Second-Temple and Tannaitic sources.

The Agrarian Origins of Purim

2022-10-24T10:01:00.001-07:00

Already before Antiochus IV's persecution of the Jews, meaning that probably already back under Persian rule, the Judean populace celebrated the early-spring holiday of the fourteenth–fifteenth of the twelfth month – known as Purim (Esther 9:31) or as Mordecai’s Day (2 Maccabees 15:36^{^[1]}). The twelfth month was the month of hoeing weeds and of gathering them alongside legumes and other assorted hay crops.^{^[2]} The legumes were used to feed livestock and were eaten by the abject poor as protein substitutes for meat, fish, and eggs. The hay crops and grasses were used to feed the livestock and during times of fasting were cooked and eaten even by people. Meaning, in a year in which poor farmers cried over their starving children as they necessarily sowed much of their stored grain for the coming year (Psalms 126:5), those farmers ate grasses. And Purim/Mordecai’s Day was the populace's populist holiday for the celebrating the arrival of this new animal and desperate-people food. It was a carnival.

Indeed, the story associated with the holiday – the Book of Esther story of Esther, Mordecai, and a full pantheon of figures – is a carnivalesque story about surviving hunger. It is a story about the feasting and decadent top echelons of the Persian empire allowing the populace to exterminate one ethnic group – a phenomenon that occurs when the populace faces shortages. In parallel to the reality that poor girls get prostituted in years of famine, it is a carnivalesque story of multitudes of young women getting taken by a foreign king only for the Judean woman to become a queen. It is a wishful story of finding wealth, with the Judean woman becoming a queen who shares power and wealth with her fraternal family – even as the empire raises taxes.

^{^[1]} Inasmuch as 2 Maccabees was completed not long after this calendar change, in around 130 BCE (following Schwartz D. 2008, 11), and that there were no political events that in the interim that would have led to the creation of a holiday on this date, we can say the following. 2 Maccabee’s passing or anchoring reference to this holiday as a known event, dates this holiday to before the Zadokite calendar change.

^{^[2]} See the farming-cycle Gezer Tablet's/Gezer Calendar's depiction of the agricultural labor for the month before the barley month. For our interpretation of that depiction, see Torczyner 1946, 4; Talmon 1963, 182-187; Borowski 1987, 29; Inbar 1990, 363.

^{^[3]} After all, the Zadokites were the powerful group in their society – against which the holiday's story could be viewed as a scathing allegory. After all, the Zadokites could have argued that the Book of Esther is a late work. After all, the Zadokites could have argued that any popular holiday that does not involve Temple worship is forbidden.

^{^[4]} Vanderkam 2001b, 208.

^{^[5]} This is reflected further in the reality no copy of the Book of Esther was found among the works stored near Qumran (contra Talmon 1995, 265 and Schiffman 2007, 236 who regard that lack as a happenstance). While one could argue that the opposition to the Book of Esther was due to an ideological condemnation of Esther’s marriage with a Gentile (Eisenman and Wise 1992, 100; Kalimi 2004, 101–106), the 14 Adar date in Esther was itself problematic (Jarick 1997, 181) and more immediately relevant.

Form-Critical Reading versus Life-Context Reading: Sacha Stern misreading the 2nd Temple Calendar Dispute

2016-08-19T07:59:00.001-07:00

The following strikes me as an amazing illustration of how reading based on form and abstract logic alone rather than grounded in life and people, leads to a technical textual scholar's inability to do history (and to be aware that he is writing nonsense even as he strikes out at other better scholars):

The only way for Sacha to interpret the evidence that the calendar divide was a chasm is to read sources without context. For example, he has to misread the calendar divide in the written camp’s Pesher Habakkuk story in which the “wicked” Jerusalem High Priest arrives to cause the “righteous” community to sin on their Day of Atonement as a story in which the High Priest by happenstance caused the people to sin in some unstated sin on their Day of Atonement. He has to treat the text as a contextless entity. It is strange to read a story that omits identify a sin[1] but mentions people being forced to sin on their Day of Atonement as not meaning that they were forced to sin on their day of Atonement. That would be laughable on a rhetorical, polemical, and literary level.[2]

Similarly: he must ignore context in order to argue that the story could not have been about the calendar because calendar polemics could not have existed in a Judaism in which there existed variations between some communities’ celebrations of the lunisolar calendar’s holidays. Although that argument sounds logical, it ignores context; it ignores the fact that variations in the celebrations of the lunisolar holidays are merely minor variations of one day between communities that in any case were geographically separated from each other, while the variations between the dates of a solar and of a lunisolar calendar are blatant.[3]

Last, but admittedly least, he overlooked -- or did not know yet -- the good evidence that when the “righteous” community of solar calendar adherent describe their calendar conflict with the “wicked” High Priest they mean a political conflict of allegiance between the Sadducean – and proto-Essene – deposed “righteous” Hyrcanus II and the Pharisee supported upstart, “wicked” Antigonus Mattathias.[4]

[1] For an attempt to define the sin, see Baumgarten 1999b, 184-191.

[2] Contra ibid.

[3] ibid. In short, certain scholars err in thinking that historical conclusions and especially textual interpretations can be based on abstract logical analysis instead of analysis based on the integration of human nature and social context. All the more so, they err in using abstract logical but unrealistic options to refute historical evidence.

[4] See the brilliantly simple arguments by Doudna 2011, 259-278.

Caring about Real Consequences rather than Deducing or Moralizing

2016-06-22T09:35:00.002-07:00

Ideally, God would issue specific commands for each situation. Second best is the law.…

[R]easoning is... an attempt to fathom the will of God when he has not specifically expressed it in the case under consideration… [I]n this light… all reasoning… must be conducted with… the constant awareness that what we take as the divine will may not be it.

Michael Wyschogrod, The Body of Faith, p.188

A Speculative Historical Note on R. Meir (Maharam) of Rothenburg

2015-09-19T12:51:00.002-07:00

In an article in Netuim 19, Simcha Emannuel showed how R. Meir of Rothenburg had actually agreed to be redeemed from captivity but had died before the money could be raised. He argued that the tradition that R. Meir of Rothenburg had refused to be redeemed was merely a later story. He did not explain, however, why such a story developed.

In the 16th century Sefer Ma'seh Nissim of R. Juspa of Worms,* however, we find a slightly different version of the famous story. There the version is that R. Meir of Rothenburg refused to be redeemed for more than 500 gulden.

Based on that version, we can piece together a possible history of the story. Possibly: R. Meir of Rothenburg refused to be redeemed at the price demanded by Rudolf I King of the Romans. At some point an agreed-upon price was reached, but R. Meir of Rothenburg died before it could be collected. If that is what happened, it makes sense that a tradition developed that he had died in prison because he refused to be redeemed. For if had he not delayed being redeemed at the higher price, he would have left prison alive.

*Shelomo Eidelberg. 1991. R. Juspa, Shamash of Warmaisa (Worms). Jerusalem: Magnes Press. pp. 78-79 [hebrew], 80-81 [English].

Biblical Sources on Avoiding Cruelty as much as possible - even to animals - and on Avoiding Destroying Food Resources

2015-07-24T05:26:00.000-07:00

The Biblical Explanations of Injunctions Regarding How to Kill Animals

Each of the the first seven of the eight Biblical laws that we just listed is explicitly explained by its Biblical verse(s) as related to sensitivity to life, compassion to life, preserving resources for the sake of life, and/or avoiding disgusting behavior.

1. Basic sensitivity is required toward a slaughtered animal and the blood that spills as it gasps – the “breath”[1] of the animal (Lev. 17:10, 14; Deut. 12:23-24):

i. Such blood is forbidden to all people as beings that who also “breathe” (Lev. 17:12).[2] In the words of Genesis, even the fore-parents of all of humanity – Noah and his family – were commanded thus: You shall not eat the blood of breathing flesh. (Genesis 9:4)

ii. An Israelite who does not offer the blood to God considered a spiller of blood (Lev. 17:4) who has not atoned (Lev. 17:11; Deut. 12:27) for the necessary but problematic killing of that life (Lev. 17:11).[3] An Israelite who cannot offer the blood in the sacred center of worship, because he is traveling and hunting (Lev. 17:13) or lives at a distance (Deut. 12:20-21),[4] is required to at least let the blood spilled from a dying animal be absorbed into the ground (Deut. 12:24) or even to cover it with soil (Lev. 17:13) so that it will not be left visible until it is absorbed.[5]

In other words, even if eating meat is nutritionally necessary and thus not psychologically disturbing to most homo sapiens, the Torah views consuming the blood that pours out while the animal dies as particularly insensitive.

iii. In line with this Biblical sensitivity regarding the blood that spilled from a dying animal – to either offer the blood on an altar before eating the animal or to wait until the blood absorbed in the ground (or, at least, to leave the blood covered until it gets absorbed), it is not surprising both that Leviticus and Deuteronomy always describe killing animals by slaughtering[6] but never by the more barbaric methods of bludgeoning or decapitation.[7] It is not surprising that Isaiah 66:3 condemns those individuals who kill their cattle [more humanely] by slaughtering the cattle even as they strike fellow humans without compunction. It is not surprising that Isaiah 66:3 condemns those individuals who piously slaughter the oxen and sheep that they eat while callously decapitating their [presumably old] dogs that they discard.

iv. Eating the meat of an animal as it still bleeds or as it lies near its uncovered blood is considered so barbaric[8] a form of dark magic (Leviticus 19:26-28), of psychologically and ethically dark behavior.[9]

2. In line with the Biblical injunctions against consuming blood and the Biblical call to slaughter instead of bludgeon animals, the Torah also demands compassion toward animals, especially an animal that one is eating.

i. Deuteronomy forbids one to take the chicks, which it calls “the children”, with the dam, which it calls the “mother”: "Do not take the mother with the children. Take the children but let the mother go so that things will go well with you and you will live long" (22:6-7).

ii. Exodus and Leviticus forbid culling the newborn male calf from its bewildered “mother” cow that physically needs to nurse: “Let [firstborn cattle and sheep] stay with their mothers for the first seven days” (Exodus 22:30). "When a bull, sheep, or goat is born, he shall stay under his mother for seven days” (Leviticus 22:26).

iii. Leviticus forbids killing a bull and its “son” for the same meat-eating occasion: “A bull or a ram, you shall not kill him and his son on the same day” (Leviticus 22:28).

iv. Exodus forbids cooking a kid in its mother’s milk: “Do not cook a kid in his mother’s milk” (Exodus 23:19, 34:26; Deuteronomy 14:21).[10]

v. Leviticus 19:19 forbids yoking a bull and donkey together to plow.

vi. Multiple Biblical verses (discussed above ??) demand that animals be allowed to rest weekly, on the Day of Rest.

3. On top of the Biblical concern for how animals are killed and eaten, the Torah in these last laws and in additional laws forbids destroying food resources:

i. The Torah forbids destroying resources by killing a dam wastefully – even as one is already eating the chicks that could have had more chicks in the future but would not have survived anyway had the mother alone been eaten.

ii. The Torah forbids killing a calf before the cow’s milk production is well underway.

iii. The Torah forbids culling a herd excessively by killing both the bull/buck and any young males for the same meat-eating occasion.

iv. Leviticus 22:24 forbids castrating a bull.

v. The Torah commands that the nitrogen rich blood from a slaughtered animal be sprinkled on local altars (Leviticus 17:6) to be collected in basins or that it be used to “water” the ground outside the cities’ gates (Deuteronomy 12:15-16) in which orchards are grown (Deuteronomy 20:19-20[11]).

vi. Deuteronomy 20:19-20 forbids destroying fruit trees, a critical resource.[12]

vii. Deuteronomy 14:8 and Leviticus 11:7 forbid pig, a scavenging animal, as disgusting. Along the same lines, Isaiah ch.66 with its heavily ethical message points out that rich people’s wasteful grain offerings are comparable to eating pig and piously offering its blood on the altar (Isaiah 66:3). In a water-poor society this disgust and this comparison makes sense. Such a society forbids or at least limits raising pigs that greatly (ab)use limited water, that provide less secondary products than other husbanded animals, and that interfere with intensive agriculture.[13] Thus the Isaiah passage compares the rich who excessively offer grain to people who support the raising of pig that is disgustingly destructive of less powerful people’s food.[14]

viii. Deuteronomy 22:9 forbids a rich landowner’s (or a short-sighted poorer farmer’s) attempt to supplant society’s necessary grain fields with less critical grape vines (see Amos 5:11[15]) by having his tenant farmers growing minimal, sustenance, quantities of grain in the vineyards.

ix. Similarly, in the dry lands of Eretz-Israel, Leviticus 19:19 forbids the soil runoff that is caused when one sows mixed species that can grow with each other if they take root with sufficient soil but whose too closely spaced seeds block water absorption and damage the soil for the future.[16]

x. In light of the rarity of a meat meal,[17] it is possible that the Torah injunction against cooking a kid in its mother’s milk (Exodus 23:19; 34:26; Deuteronomy 14:21) is also an injunction against wastefully cooking a culled kid (a source of protein) with its mother’s milk (a source of protein). In contrast to hens that are killed only after they cease laying eggs and to roosters that provide no great advantage on to the homeowner, culling a calf or a kid – even a male kid – carries a tension. It is advantageous in that it leaves the mother’s milk available. It is disadvantageous in that involves the loss of a future male plow animal or of wool. Thus: the it is possible that the Torah forbids wasting milk to cook a kid – instead of turning the precious milk into cheese if one has evaluated that a kid must be killed for the sake of the milk.

4. On top of the Biblical concern both for how animals are killed and eaten and for conserving resources, Torah also requires people who wish to be holy and dignified to avoid even merely disgusting experiences.

i. Leviticus and Deuteronomy describe the consumption and even touching of rotting carcasses, of carcasses of ill animals, and of dead swarming creatures as impurifying/abominating and forbidden (Leviticus 11:20, 29-40, 41-45; Deutoronomy??).[18] Leviticus rules that a person who ate meat of an animal that died of illness or rotting meat perforce must wash away that disgusting event:

Any person who eats that which has died [on its own = of illness[19]] or has been torn [by predators] – whether he is a citizen or alien – must wash his clothes and bathe in water. He is tameh until the evening [but] then becomes pure. If he does not wash [his clothes] and does not bathe his flesh, [however,] he bears his sin. (Leviticus 17:15-16)

Leviticus rules that a person who ate of an ill animal or of disgustingly rotting meat perforce is impure.[20]

ii. Similarly, the Exodus 23:1-23:19 pericope concludes its demand to be ethical and to serve only one God with a requirement to avoid a behavior that is experienced as callous – cooking a kid in its mother’s milk:

[Ethical Laws]

[Do not worship other gods]

[Direct the agricultural festivals to God the Master

(i.e. instead of to Baal [= “master”] [21])]

[Sacrifice to God respectfully]

Do not cook a kid in its mother’s milk.

(Exodus 23:1-23:19)

The conclusion of Exodus 23:1-23:19 indicates that the proscription of cooking a kid in its mother’s milk; both are demanded in order to help shape ethical persons.

In parallel to the Exodus 22:30-23:19 pericope that we just read, adjacsent legal pericope also both opens with a condemnation of disgusting behavior and closes with a command that expresses both mercy and conservation of resources:

Anyone who lies with an animal shall be killed

[Do not worship other gods]

[Ethical Laws]

[Be respectful of God and the leadership]

[Direct the first born produce and animals to God]

Let them stay with their mothers for the first seven days; only on the eighth day shall you give it to me. You shall be my holy people. Torn flesh in the field you shall not eat; you shall throw it to the dogs. (Exodus 22: 18-30[22])

Similarly to the Exodus 22:1-23:19 pericope, Exodus 22: 18-30 opens with a condemnation of anyone who disgustingly lies with an animal and closes with a command that expresses both mercy to the cow mother and ensures that she produces milk before the calf is culled.

The parallel between these pericopes was also noticed by Deuteronomy’s reading of Exodus 22:30 and 23:19:[23] Deuteronomy 14:21 closes a list of forbidden abhorrent animals by juxtaposing these two broader proscriptions that had framed the Exodus pericopes,[24] thus showing that it considered them related injunctions that framed and laid the basis for the moral laws.

[1] Although the word “nefesh” is based on the “Akkadian ‘throat’ or ‘neck’” (Rieber 1980, 15), “nefesh” is also used to express life and breathing because breathing occurs through the throat. (For more on the various uses of “nefesh” in the ancient Middle East, see Starostin 2003.) Thus, we have no need to need to divide Biblical verses into allegedly radically different uses of the word “nefesh” to refer to a person or a life and to a throat (contra Milgrom 1998, 684). In any case: our point is to discuss the rabbinic understandings of these verses, and the continuous rabbinic understanding that eating forbidden foods abominates one’s breath is seen easily in an early Amoraic story about R. Akiva (Avot de-Rabi Natan A ch.16).

[2] Since classic halakhicists are among those people who know “with our lives, and live that knowledge, beyond anything any theory has theorized” (borrowing from MacKinnon 1996, 46; cf. Herbert Loewe in Montefiore and Lowe 1938, 286), I am not indulging in the intellectualist academic debate about the injunction against eating an animal’s blood. Academics debate whether Leviticus and Deuteronomy forbid the blood because all life was regarded as belonging to God, because blood was sacred, in order to honor the principle of life, or because God is meant to control life. Academics debate whether blood is perceived to be symbolic of life or is perceived to be life itself (Gilders 2004, 16-23). To a halakhicist, a person who focuses on the underlying experiential reality, all these positions reflect aspects or are formulations of the same phenomenon.

[3] This careful reading belies the following simplistic condemnation of animal sacrifices as reflecting an “explosively violent god… who would be willing to impose a reign of terror on his own people” (Miles 1995, 118-119) [even as it is true that the Levitical attention to sacrifices addresses a patriarchial reality (cf. Jay 1992, 94-111)]. It also belies the claim that this law of the blood is not about ethics (contra Baruch Schwartz [1997, 25] who followed the standard academic approach to ideas of confusedly identifying the semantic framing of theological statements (a symbol or belief) as the author’s experiential and purposive idea (ibid. 23).

[4] Semantically, Leviticus distinguishes between a list of domesticated animals versus hunted animals and birds. Thus some critical Biblical scholars see Deuteronomy and Leviticus as differing, with Leviticus not requiring altar-expiation for certain species and Deuteronomy exempting a person from altar-expiation on the basis of distance from the sacred space (Weinfeld 1979; Gerstenberger 1996, 237; Schwartz 1996, 25; et al). However, reading Biblical laws as contextual examples allows a more accurate reading of this passage in Leviticus. It allows a reading that accounts for the fact that Leviticus (or P) actually considers undomesticated animals no different than domesticated animals (Leviticus 11:2-3, 46 and Genesis 1:28-30; 8:17-19). If we read the Levitical law as a contextual example, we see that it is in keeping with the Deuteronomic law. The only difference is narrative; Leviticus speaks from within the idealized model of the Israelites encamped around the desert tabernacle when it discusses people killing animals for food far from the sacred center versus those that are killed within sacred civilization. Accordingly, when Leviticus describes being away from the tabernacle it describes a situation of hunting wild beasts (a term found in Genesis 7:14, 21; 8:1; 9:10 and Leviticus 5:2; 25:7) and birds. However, in practice, the application of Leviticus’ model would be to recognize the profane slaughter of domesticated animals for people who live far from the sacred center (contra Schwartz 1997, 39; et al). Thus: Leviticus and Deuteronomy merely differ in style (a common fact missed by biblical scholars – such as Schwartz 1997, 41 – who don’t read Biblical laws as contextual examples). Deuteronomy, which does not utilize the model of the idealized desert tabernacle, states its contemporary ruling in directly. A person who lives near the central sanctuary must offer his meat as a sacrifice but not a person who lives afar (Deuteronomy 12:5-9).

In fact, if we combine reading Biblical laws as contextual examples with semiotically sensitive reading we can explain why both Deuteronomy and Leviticus do not require expiation for fowl and also why Leviticus describes fowl as hunted – as is also implied in Deuetronomy 22:6-7 – although most of the fowl consumed in Biblical Jerusalem was wild fowl that was caught inside the city (cf. Borowski 1997, 158**). Deuteronomy and Leviticus considered fowl caught in the city no different than hunted fowl – as not needing expiation for their deaths – because people did not develop sympathetic identification with these birds. In fact, even “domesticated” birds such as pigeons (MacDonald 2008, 36) were neither fully domesticated nor individually recognized (m. Beiza 1:3; t. Beiza 1:10). To state this in Biblical [P] imagery: birds were created on the same day as the marine creatures, not only before people but even before the land animals – Genesis 1:20-23 (cf. b. Hullin 27b).

[**My use of Borowski’s archeological evidence to explain the Levitical law is based on the evidence for ancient Levitical laws (Kitchen 1960, 4-18 [with reservations]; Milgrom 1983, 26-28; Haran 1995, 195-196; Levine 2006, 11-23) in spite of linguistic evidence for post-exilic editing of, and Persian influence on, the final form of Leviticus (Sperling 1998, 116-119 and 1999, 373-385).

[5] Both Leviticus and Deuteronomy do not mention any atonement through pouring the blood into the earth. It is not clear to me whether no atonement is provided according to these sources or whether atonement is provided but is not discussed in light of the opposition to people sacrificing their animals to the underground demons (Leviticus 17:7; Deuteronomy 32:16-17). [Cf. the issue of libating to God (or gods) by pouring an offering directly onto the ground instead of on a central altar – Rubenstein 1994, 435-437 and fns.].

[6] For example, see Lev. 1:5; 1:11; 3:8: 3:13; 4:15; 4:24; 14:5 and Deuteronomy 12:15-16, 22-24.

[7] Slicing an animal’s throat inherently requires one to hold the animal. Holding an animal offers a better guarantee of humane slaughter than other methods that can be quick if performed precisely but have no built in motivation for precise performance.

[8] Cf. 1 Samuel 14:31-35.

[9] The connection between psychologically/ethically dark behavior and dark magic is missed by Eliav Shochetman (Shochetman 2008, 31-43).

[10] It is difficult to read the verse as stating “you shall not boil a young goat which is at its mother’s milk” (Schorch 2010, 123). Admittedly, one might consider arguing that Biblical cultures, which in all written layers milked their female cattle and sheep, kept calves alive for a year so that the cows would continue to produce milk (on this issue in milk production, see Amoroso and Jewell 1963, 126-137). Indeed, this could be supported by an ancient source describing the ritual eating a year old lamb (Exodus 12:5). However, such reading would conflict with Biblical laws that that permitted culling calves after seven days (Exodus 22:29 and Leviticus 22:26); these laws suggest that a cow’s milk production was maintained after the first few days in spite of culling just as it is in the Middle East today – let alone goat’s milk if only one kid is killed out of a mother’s possibly two or three kids (Niemann 2013, 145). Thus, it seems more accurate to interpret this legal passage in line with the other more contemporaneous Biblical laws, as permitting the removal of the kid from its mother’s teat. Furthermore: reading the passage as referring to an injunction against cooking a kid in its mother’s milk is in line with the evidence of all the later post-Biblical traditions. Only textual scholars who ignore historical questions of how a supposed erroneous unanimous reading would have arisen in a living culture can overlook this last piece of evidence.

Similarly, other scholars (such as Zev Farber [n.d.]) have focused on Exodus 34:26b to read this law as a law that originally had nothing to do with cooking/eating and had no connection to the injunction against eating a torn animal carcass. They view Deuteronomy 14:21’s injunction against cooking a kid as a creative misreading of the original Exodus injunction. From a critical perspective, however, such claim fails on two basic points:

1. Since Exodus 34:18-26 is a later reworking of Exodus 22:31-23:19, one should turn to the latter pericope with its complete literary context to discuss the meaning of the injunction.

2. Since Exodus 34:18-26’s rewording is also influenced by late Deuteronomic and Priestly sources (Gesundheit 2012, 165), Exodus 34:26b aso knew Deuteronomy 14:21’s understanding that the injunction is against cooking/eating.

Most problematically, however, these scholars have also failed to realize that Biblical “ritual” laws reflected a group’s living practice as opposed to being ephemereal texts that could simply be misinterpreted.

[11] Cf. m. Yoma 5:6 (and m. Midot 3:2).

[12] These practical considerations are still not discussed in recent critical Biblical scholarship (such as Owens 2010, 25).

[13] Hesse and Wapnish 1998, 125-126.

[14] Hesse and Wapnish 1998, 125-126.

[15] Coote 1981, 33-34. Compare Hosea’s condemnation of both extravagant wearing of wool and linen and extravagant drinking and growing of wine (2:10-15) and Amos’ condemnation of the rich who let the poor fail as they drink wine excessively (6:4-7).

[16] In line with this injunction being a problem only in dry climates, the Tannaim ruled that it does not apply outside Eretz-Israel (m. Kiddushin 1:9) or not Biblically (m. Orla 3:9).

[17] Exodus 16:12; 2 Samuel 12:1-5; Amos 6:4; Daniel 10:3.

[18] For a discussion if which dead animals Levitcus forbade but not view as impurifying, see Milgrom 1992, 107-111 and Milgrom 1998, 681-683.

[19] In the wild in which predators seek out weak animals, an herbivore that dies “naturally” does not do so out of old age. Even as regards farm animals: since owners do not inefficiently feed the animals when the animals grow old, an animal that dies “naturally” does not simply die of old age. That being the case, such dead animal is viewed as having died of illness.

[20] Exodus 16:12; 2 Samuel 12:1-5; Amos 6:4; Daniel 10:3.

[21] This word play was already noticed by Cassuto (1953, 211).

[22] Exodus 22:29 and 22:30 are read together in light of Ezekiel 44:30-31.

[23] Deuteronomy presents itself as Moses’ repetition and paraphrasing of earler Biblical laws, as later than the Exodus pericope. Similarly, critical Biblical scholarship dates these Exodus verses are part of the earlier Covenant Code – even those scholars who date the code to the Neo-Assyrian period [Wright 2009, 356-358].)

[24] Because David Daube did not notice this framing, he erroneously distinguished between the Exodus and Deuteronomy injunctions against cooking a kid in milk (Daube 1947, 84).

Hilkhot Niddah: Laws to Curtail or Laws to Guide Toward Beautiful Love and Sex

2015-01-26T03:23:00.001-08:00

In reading this NY Times article, I was struck by a passing point in the article about Hilkhot Nidda. Something is off when we think that we need to strive for good sexuality and relationships in spite of Nidda. We are learning Hillhot Nidda this year in The Pardes Institute of Jewish Studies Kollel and the Yeshivat Maale Gilboa kollel and are seeing that the Halakhot and even the classic Halakhic discussions are about the ethics and desire of relationship with the aesthetic (tum'a) serving merely as a merging of limbic psychology with the ethical. This problem of misunderstanding Halakha as abstractions and thus failing to learn them as ways of seeing how to be human is true for all of Halakha, but pots and pans do not generally get in the way of experiencing our human selves as much as does treating certain halakhot as abstractions.
http://www.nytimes.com/…/magazine/the-orthodox-sex-guru.html

shiurim - halakha le-Moshe mi-Sinai?

2014-08-03T03:29:00.000-07:00

The Rules of Quantities

In my upcoming book, I show that Tannaitic through early Medieval Byzantine Halakha treated no lived norms as Divine fiats. Here, I will briefly address the existence of another area of law that apparently has been treated as ontologically real and unresponsive to changed conditions. These are the rules of quantities. These include rules regarding the quantities of food that one must eat or must avoid. Although these rules are never declared fiats, Amoraic declarations that the traditions of quantities are ancient traditions that go back to Sinai[1] could lead one to think that these rabbis approached the rules of quantities as non-contextually dependent. It is true that there were sages who posited that a contemporary Sanhedrin is the body that always establishes the contemporary quantities.[2] Nonetheless, the former Amoraim seemingly would consider measurements to be Divine fiats.

That distinction between Amoraic approaches, however, is simplistic. Even the Babylonian Amoraim who stated that quantities were Sinaitic learned the earlier Tannaitic debates over the legally significant quantities for different prescriptions or commandments.[3] Thus even the position that the rules of quantities are Sinaitic took into account the fact that the quantities were debated. Accordingly, their ideological statement that all the quantities are from Sinai, cannot exclude the realization that quantities are contextual and experiential since there are no other bases for debating the different quantities of food that one must eat or must avoid for various mitzvoth and proscriptions.

The modernist Orthodox Talmudist and historian R. Zvi Chajes (Galicia, 1806-1855) offered an explanation to the question of how measurements could have been viewed both as Sinaitic and as debatable. He suggested that the possible sizes (such as the sizes of an olive, date or egg) are Sinaitic but that human sages decided which measurements to apply to each issue on the basis of the experiential considerations that underlie each issue.[4] In Saussarian terms, [5] Chajes’ explanation assumed that there is a Sinaitic cultural langue of Halakhic sizes within which humans have decided the Halakhic parole of how to play out the range of sizes.

However: although Chajes’ explanation complements this book’s finding that Tannaim through Amoraim treated norms as context dependent, the explanation needs improvement in light of Mishnaic counter-evidence. The Mishna both records that Tannaim debated the precise size of some of the designated measurements[6] – such as the size of an olive. They even argued that the size of a designated measurement – such as the size of an olive – is not consistent; it differs for different Halakhic issues. [7] Thus: although the Tannaim utilized the sizes of real objects, they did not have a fixed list with fixed definitions; they simply explained their positions against the available background of produce and body parts. In short, even the langue was both vague and debated.

A better explanation of the Mishnaic evidence and one that more accurately reflects how quantities become decided historically is the explanation offered by a contemporary Sanz-Klauzenberg hasid, R. Yaakov Meir Weider. He suggests that it was only the basic and shared understandings of an issue that Amoraim viewed as Sinaitic. For example, all Tannaim agreed that a sukka dwelling booth must be at least large enough for an individual to live in it – since the whole idea of a sukka is to “dwell” in a temporary hut. That understanding was viewed as being Sinaitic. Amoraim differed only over whether the definition of “large enough for an individual to live in” need include a table.[8] This explanation not only better fits the Tannaitic evidence on this issue, which we just mentioned. Rather, it is line with this book’s finding that since Tannaitic through Amoraic Halakha was based on understanding norms contextually so were there debates always around shared concerns; in a living culture, there is a great degree of a shared sense of what a practice is about in spite of minor differences of emphasis that can lead to debates regarding the shared practice. More importantly for this book’s thesis, Weider’s explanation suggests that rabbinic sages would compare the example of the practice that they had received with contemporary conditions.

Neither explanation can be proven. However, this last explanation is more likely in light of the fact that it both explains how an Amora could consider measurements to be Sinaitic even as measurements are debated and complements our other findings on Tannaitic through Amoraic law as contextual law. Moreover, in the next volume of this work we will see that this was the approach of leading rabbis in the modern period. We will see that seeming rabbinic distortions of the traditional measurements in the modern period were new phrasings of these traditional and continuous human considerations. Thus: it would not be surprising was this the case during the Tannaitic through Amoraic periods, too.

(These are my preliminary thoughts.)

[1] Rav in b. Sukka 5b; R. Yohanan in y. Pe’a 1:1 and b. Yoma 80a.

[2] R. Hoshaya in y. Pe’a 1:1 along with R. Yona and R. Yossi.

[3] For example, see m. Beitza 1:1; baraita b. Beitza 7b; baraita b. Yoma 79b.

[4] Novella MaHaRa”Tz Hayyot, Yoma 80a.

[5] Saussure 1966, 14.

[6] m. Kelim 17:6, 10.

[7] m. Kelim 17:9-10 et al. This is aside from the fact that different parts of the country indicated different sizes/volumes via the same terms (Sifrei Zuta, Bamidbar 15:19).

[8] Weider 1994, 43-45. Note: As a Sanz-Klauzenberg Hasid, R. Yaakov Meir Weider probably borrowed this explanation from R. Yekutiel Halberstam (1904-1955) – the posek and rebbe of the Sanz-Klausenberg Hassidic dynasty who offered this explanation only as regards those Amoraim who held that the measurements are not Sinaitic (Responsa Divrei Yatziv OH 262:3).

Hukkim and the Midrash on Korah (selection from chapter of my book draft)

2014-06-17T09:23:00.000-07:00

(selections from)

Chapter Five: Wise Hukkim

and

The Byzantine Sermonic Ideology of a Solitary Divine Fiat

Elisha Ancselovits

…

B. The Sifra’s Distinction Between Particularistic and Social Laws

Theoretically, this chapter showing that Tannaim did not believe in inexplicable Divine fiats should be unnecessary. We should be able to simply point out that most Tannaitic commentary followed late Second Temple sources[1] in viewing the Biblical words “hukkim” and “mishpatim” as synonymous designations for “laws”.[2] We should be able to simply point out that even the merely two Tannaitic elaborations on the word hukkim also discuss laws that are explicable:

In one version of R. Yehoshua’s elaboration on Exodus 15:26, the Biblical word hukkim is translated as the additional norms implied by the Torah’s legal examples.[3] This version parallels the words of a Sifra editor whom we quoted in an earlier chapter (II-E3): “‘All the hukkim (statutes)’ – these are the midrashot (exegeses)” (Sifra Shemini 1:9). It parallels the late Second Temple sources that designate the righteous teacher of the law who pointed additional norms implied by Biblical laws by the title of me-hokek (CD 6.7-8). (In another version, the order is changed and R. Yehoshua followed the broader trend of reading the Biblical word hukkim as simply halakhot.[4])

The other elaboration – that of R. Eleazar haModa’i[5] and a Sifra editor[6] – referred to a local Biblical use of word hukkim that discusses “rules forbidding taboo sexual relations.” Sexual taboos were viewed as common sense: the first generation Amora, Shmuel, pointed out that these sexual taboos were decreed to all of humanity from its inception (b. Sanhedrin 60a) while his contemporary, Rav, taught that a Noahide must be willing to sacrifice his life in order to avoid these taboo sexual relations (b. Sanhedrin 57a); Rav and Shmuel explicitly claimed – in rabbinic terminology – that the taboos should be obvious to all people.

However, in spite of the evidence that the Tannaim had no concept of inexplicable Divine fiat,[7] the following misread midrash makes this chapter necessary.

A Sifra midrash distinguishes between the Torah’s social laws that are common to many cultures and the Torah’s particularistic laws:

“You shall fulfill my judgments" (Leviticus 18:4)

These are the matters that are written in the Torah which, had they not been written, would obviously have to be written: theft, sexually taboo relationships, alien worship [i.e. idolatry], cursing the Name, and murder. Had they not been written, they would obviously have had to be written.

[“and observe my hukkim” (Leviticus 18:4)]

These are the matters which one’s evil inclination and the idolatrous nations of the world retort against: the consumption of pig, the wearing of mixed fibers, the release of a levirate wife, the purification of the leper, and the goat that is cast out. Because the evil inclination and the idolatrous nations of the world retort against them, it teaches:

"I, the Eternal” (Leviticus 18:5) decreed [them];

you have no right to retort against them.

(Sifra, Aharei Mot 9:13:10)[8]

In light of the fact that the defense of the particularistic norms is: “I the Eternal decreed; you have no right to retort against them”, academic scholars have understandably misread the midrash as stating that hukkim are inexplicable Divine fiats.[9]

We will now see, however, that a reading of the whole midrashic passage – instead of merely these two paragraphs – clarifies the meaning of God’s response in the midrash. We will first see that the Sifra responded to Hellenistic critics of Jewish Law by arguing the opposite – that all of the Torah’s laws are the most ancient traditions and wise practices. This was in line with earlier sources that translated hukkim as ancient (Targumim[10]) and righteous (Septuagint and Philo[11]) norms – δικαιωματα. We will then see that it was only against Pauline Christians who claimed to be believers in God and yet retorted against His decrees[12] via Biblical verses that the midrash passage added a further argument. We will see that the midrash’s closing argument rebukes Pauline ideology that justified dismantling Biblical Law to match current Gentile practice for the supposed fulfillment of the Torah. Instead of arguing for Divine fiat, the midrash rebuked Pauline ideology by aptly citing the closing words of the Biblical command to avoid being drawn after the bad norms of another culture (Leviticus 18:2-4): “I the Eternal” decreed.

The midrashic passage begins with a response to the claim by politically hegemonic Hellenes that Gentile norms are ancient wise traditions[13] (conventions) while particularistic Jewish religious norms are excessive and unnecessary. The midrash responds both by arguing that Torah norms are superior to Hellenistic cultural norms in being more ancient and wiser since they come from God and by condemning as problematic sexual practices and cruel practices long condoned by Hellenistic cultures. First it condemns Hellenistic practices:

[I the Eternal am your God. You shall not imitate the practices of the land of Egypt in which you dwelt, or of the land of Canaan to which I am bringing you; in their hukkim you shall not walk. My rules you shall observe, and my hukkot you shall follow: I the Eternal am your God. You shall keep my hukkot and my judgments, through the observance of which a man shall live: I am the Eternal. (Leviticus 18:3-5)]

"You shall not imitate the practices of the land of Egypt […] and the practices of the land of Canaan”

Could this mean that they [the Israelites] should not build such buildings or plant such plants as they do, therefore it says:

"In their hukkim you shall not walk"

I [God] did not speak except in [regard to] hukkim that are legislated/engraved[14] [i.e. ingrained] for them, for their fathers, and for their grandfathers.

What would they do? A man would be married to a man and a woman to a woman, a man would marry a woman and her daughter, and a woman would be married to two.

Therefore it says: "in their hukkim you shall not walk". …

What did [Scripture] come to teach in saying: "And in their hukkim you may not walk" (Leviticus 18:3)?

That you should not walk in their cultural norms – in things that have been legislated/engraved[15] (i.e. ingrained) for them (i.e. ancient conventions), such as theaters, circuses, and gladiator arenas….

Then the midrash argues for the sagacity and hoary authority of Jewish cultural practices:

Lest you say, 'They have hukkim (i.e. ancient conventions) and we do not have hukkim', it comes and teaches us:

"My laws you shall observe and my hukkim you shall maintain to walk in them; I am the Eternal your God" (Leviticus 18:4).

The evil inclination can still hope to denigrate and say that theirs are better than ours, so it comes to teach us:

"[I have taught you hukkim and judgments….] Maintain them and do them, for it is your wisdom and your insight" (Deuteronomy 4:[5-]6).

(Sifra, Aharei Mot 9:12:8)[16]

The midrash responded to the Hellenistic claim of cultural superiority by asserting first that the Jewish norms (hukkim) are the truly ancient norms in coming from God and second that they are the truly wise norms that come from God.

In light of the midrash's argument that hukkim are the hoariest and wisest laws, the end of this midrashic section (which we saw above) cannot be read as a claim of inexplicable Divine fiat. A claim of inexplicability would contradict the midrash passage’s argument. In fact, a review of the linguistic and historical evidence reveals that the concluding argument is an additional response directed to Pauline Christians who claimed that God and Tanakh do not want ritual norms actualized in practice. The midrash’s conclusion argues that the God of Tanakh whom these Pauline Christians claim to accept forbids them to reject his norms even when some people argue that the norms are wrong or nonsensical.

We have three points of evidence for the fact that the midrash’s conclusion was directed against Pauline Christians:

a. One: the conclusion rebukes a group that both accepted God and Tanakh and yet attacked Halakhic Judaism on these five particular ritual norms: (1) the consumption of pig, (2) the wearing of mixed fibers, (3) the removal of a levirate wife, (4) the purification of the leper, and (5) the goat that is cast out.

b. Two: A later midrashic editor on a similar list by R. Levi of Tiberias[17] (a third century Eretz-Israel Amora) wrote that the problematic common trait of these laws is that the Torah itself appears to uphold these laws inconsistently.[18] This is a characterization that readily applies to the Sifra’s list, too (including the law of purification of the leper[19]). However, this characterization does not explain why this group attacked the Biblically consistent proscription of pig and why it ignored other Biblical laws that appear to be inconsistent.[20] We, therefore, realize that this group’s ideology must have both attacked these specific four specific laws as inconsistent and attacked the injunction against consuming pig although it is not inconsistent.

c. Third: The Sifra identified this ideological position as shared both by some Jews’ evil inclinations and by idolatrous gentiles while another Tannaitic source identifies those Jews who attack Biblical legal contradiction as Epicureans.[21] However: although Epicurean ideology did deny piety through ritual[22] and Tannaim did describe Epicurean attacks on Biblical legal inconsistency, this midrash’s citation of God’s response does not seem to be directed at Epicureans. Citing God’s response that nobody has a right to retort would be a very weak midrashic move against Epicureans. It would not be an inconceivable move,[23] but it would be unlikely. However, Christians were often linked with Epicureans in the second century CE of the Roman Empire.[24] In fact, R. Yohanan of Tiberias explicitly applied the Tannaitic call for diligent defense against Epicurean charges of Biblical legal inconsistencies to Christians.[25]

These three points of evidence reveal that the midrash was directed against Pauline Christians. Pauline Christianity was heavily identified with Gentiles[26] of “the idolatrous nations” but also included Jews[27] misled by “the evil inclination”.[28] Furthermore: as we will now see, Pauline Christianity of the Tannaitic through Amoraic period challenged these five specific laws as irrelevant and inconsistent.

Three of the laws referenced in the midrash were attacked by Pauline Christianity as irrelevant:

a. The first law in the Sifra’s list is the injunction against the consumption of pig. Jews and Romans/Hellenists alike were conscious of the cultural distinction between Jews who’s Torah forbids the consumption of pig and Romans who celebrated the consumption of pig.[29] The tension over this issue is highlighted by the fact that although the pig is listed explicitly in the Torah as a forbidden animal, another Sifra passage (Shemini 6:7) bothered to justify the proscription of pig: in response to those Jews in the hegemonic Roman and Hellenistic culture who argued that the fact that a pig is hoofed similarly to other kosher animals should suffice to make it acceptable, that Sifra passage pointed out that a kosher animal must also be a true (herbivore) ruminant as opposed to a (resource destructive) omnivore pig. (We will see more on the Biblical and rabbinic opposition to pig as a destructive animal, below ??). Similarly, R. Eleazar b. Azarya described even some observant Jews who were uncomfortable with stating that pig is forbidden and preferred to say, “I don’t want to eat pig”.[30] In line with this reality, our Sifra passage, responded to an even more religiously significant challenge to the injunction against eating pig than the fact that some sinful Jews ate pig or were embarrassed over the fact that they avoided pig; worse than the mere reality that some of the more Romanized Jews ate pig[31] was the ideological challenge of the Pauline church of the “idolatrous nations” that invalidated both the Jewish ethical practice (as discussed below ??) and cultural marker of avoiding pig.[32] For example, the late first century–early second century CE Epistle of Barnabas[33] claims that the Biblical injunction against the consumption of pig is only an allegorical injunction against associating with disgusting people.[34]

Faced with a Christian challenge to the legitimacy of the Biblical law forbidding the consumption of pig, this Sifra midrash did not merely assert that the Jewish ritual norms (hukkim) are the only truly ancient traditional and wise human norms that come from God. Rather, it also rebuked those Gentile Christians and Jews to whom the Tannaim could not communicate the norm’s wisdom as they saw it because these people were not inclined to seek Biblical Law’s wisdom in permitting herbivores alone.[35] The midrash rebuked those Pauline Christians as having no right to ignore the fact that God Himself forbade pig.[36]

b. The fourth law in the Sifra’s and the parallel Amoraic midrash’s list is the purification ritual – whether of sprinkled blood or of muddy ashes.[37] The Sifra lists purification of the cured leper, a person who had successfully repented of a sin that had caused him this severe illness.[38] The Amoraic midrash lists purification of the person who had ended the first week of impurity over human death (a phenomenon also attributed to sin – Genesis ch2). These purification rites, that were explicable to the Tannaim (as we will see below ??), were attacked by Gentile Christians: Not only did the first century CE Epistle to the Hebrews[39] declare that Jesus’ death and blood sprinkles the repentant believer and immerses him in pure water. Rather, the Pauline Epistle to the Romans[40] [and the Epistle to the Hebrews[41]] even imply or can be read to imply that Jesus’ blood had replaced the need for a red heifer.[42] More significantly, contemporary Christian sources such as the Epistle of Barnabas[43] declared explicitly that the Biblical commandment of purification via a red heifer is a prophecy of Jesus’ coming and not a ritual commandment.

Once again – given these challenges to the legitimacy of this biblical law – the midrash not only asserted that the Torah norms (hukkim) are the only truly ancient and wise norms, in coming from God. Rather, the midrash further asserted that even the wisdom-challenged Christians have no right to tamper with God’s decrees.

c. The fifth law in the Sifra, the law of the Yom Kippur scapegoat, finds similar explanation. A common Christian claim,[44] found for example in the Epistle to Barnabas[45] and drawing even on Matthew,[46] was that Jesus was the ultimate scapegoat who replaced the need for such sacrificial atonement. Once again, the midrash responded to this explicable ritual by asserting that Christians do not have a right to tamper with God’s law.[47]

Thus far, we have seen that three of the five commandments for which the midrash offered the response of Divine Decree were unnecessary under Pauline theology and a challenge to the Gentile ideology that Jesus’ person had replaced these practices. We will now see that the other two laws rankled Gentile Christians even further and were condemned as inconsistent:

a. As regards the critique of the law of levirate release,[48] Greek and Roman societies – and thus Pauline Christians – were officially monogamous[49] and had no levirate ties. Thus, not only those Middle Eastern Pauline Christians who opposed marriage[50] but even those Gentile Christians who allowed marriage for the laity[51] were astounded by remarriage[52] and especially by marriage between a man and his (Biblically forbidden) sister-in-law.[53] Accordingly: it is not surprising that in spite of Deuteronomy’s explicit statement that a man’s levirate marriage with his childless brother’s wife was for the sake of the dead brother‘s memory,[54] Gentile Christians ridiculed a claim that a man could have a marital tie with a woman who had been forbidden to him as a relative and would still have been forbidden to him as a relative had the brother died with children.[55]

b. The proscription against wearing clothes of expensive linen in which high quality wool is woven[56] so that the linen clothes can be dyed or wearing expensive and dyable silk and sea silk[57] challenged Roman values. Roman ideology, in contrast to Biblical and rabbinic ideology that permitted only wearing cheaper dyed wool clothes and plain linen clothes[58], valued class and wealth distinctions in dress – such as the upper classes wearing dyed linen and even silk.[59] However, the rabbis did not merely forbid such fancy clothes and condemn men who dressed up in fancy red wool togas with with fancy adornment shields on the holidays.[60] Rather, Deuteronomy and the Tannaim challenged Roman cultural values further by pushing for high class equalization in dress; Deuteronomy and the Tannaim expected every Jewish citizen to wear the same expensive dyed stripes of status on their cloaks – a merely woolen thread died with expensive Tyrian blue on each corner of one’s himation [Greek], pallium [Latin], or tallit [Aramaic].[61]

Since these equalizing forms of dress[62]conflicted with Roman ideology,[63] opponents not only ridiculed the Biblical proscription against wearing linen in which dyeable wool was woven[64] but also ridiculed it as inconsistent with the obligation to add blue wool fringes dyed with expensive Tyrian blue.[65] As the midrashic editor of R. Levi’s list (above) explicitly stated, the injunction against wearing linen garments into which dyeable wool had been woven was ridiculed as inconsistent with the fact that Dueteronomy obligated Tyrian blue woolen fringes on all cloaks – including linen cloaks.[66]

That the obligatory blue fringes mark of equality rankled those rich Jews and Christians who shared the Roman ideology finds further support from a midrash that commented on the Biblical rebellion of Korah and various renowned Israelites and Levites.[67] The Biblical passage easily reads as a story of rebellious aristocrats who claim contradictorily that leadership should be transferred away from the failed leader[68] Moses, who had grabbed power away from the Israelites who are all holy,[69] and that leadership should be granted to another individual or class.[70] Thus: just as earlier Jews had recognized this story as the story of demagogues who try to come to power via democratic claims,[71] the following midrash presented Korah as a type of demagogue. It presented Korah as arguing that instead of having to wear fringes dyed with Tyrian blue he and his followers should be allowed to adopt the High Priest’s aristocratic garment of Tyrian blue (Exodus 28:31-32) with no fringes. This claim by the rich of the right to distinguish themselves from the rank and file commoners by wearing aristircratic garments of Tyrian blue (without equalizing fringes) was a very Roman claim.[72] Similarly: this midrash’s Korah argued that the rich should also be allowed to distinguish themselves from the poor as the Roman rich copied the aristocracy – through owning personal libraries of the classics[73] – and freeing themselves from the commoners’ minimalist door-scroll (mezuza):[74]

Korah challenged Moses: What is the law regarding a himation that is completely dyed with Tyrian blue?

[Moses] answered: It is obligated in fringes.

[Korah] replied: If the fact that the whole garment is dyed Tyrian blue does not suffice, will four threads do so?

[Korah challenged Moses:] What is the law regarding a house full of [Biblical] scrolls?

[Moses] answered: It is obligated in a mezuzah.

[Korah] replied: If [a whole scroll of] 275 sections do[es] not exempt the house, one section will do so? You were not commanded regarding these matters but rather made them up yourself. …

When Moses relayed: “And they shall add a thread of Tyrian-blue to the corner fringes”, Korach ordered two hundred and fifty Tyrian-blue himations and those same [two hundred and fifty] heads of synhedrons [a Greek name for political and friendship alliances] that rose against Moses wrapped themselves in them.

(Bamidbar Rabbah, chapter 18 – and parallels)

According to this midrash, Korah tried to upturn these equalizing rule by claiming that God never told Moses and Aaron that all Jews must wear equalizing fringes and have an equalizing minimalist mezuzah on their doors – in the same way that wealthy non-aristocratic Romans claimed the legitimacy to arrogate equivalent status for themselves[75] in distinction from the less wealthy and the poor.[76]

The Pauline Christians in our Sifra midrash parallel this last midrash’ contemporary versions of Korah. They both argued against the inconsistency of the rule of wearing dyed woolen threads. They both favored the right to wear expensive Tyrian blue cloaks. In response, this last midrash exposed the rich people’s claim of equality with the aristocracy as a cynical attempt to become upper class. In response, our Sifra midrash had God rebuke them. This battle is even reflected in Tannaitic Halakha. Tannaim forbade extravagantly expensive real silk and sea silk less severely than dyed linen;[77] these materials were less relevant to social tensions since they were out of reach to any but select people in the Roman Empire.

In short: all five of the commandments listed in this midrash were not viewed as inexplicable by the rabbis themselves. Rather, these commandments challenged Roman Hellenistic Christian theology and mores, and so these commandments became viewed by Pauline Christians as self-contradictory.

The Sifra responded to these Pauline claims to subvert the Bible from within the Bible by rebuking those who arrogantly tamper with God’s law. The Sifra responded to the Pauline challengers of these Biblical laws, to those people who “know Him but deny Him” (t. Shabbat 13:5) in the name of “a Son who has been made perfect forever” [Hebrews 7:28], by labeling these Christians “idolatrous nations” and Jews led astray by “the evil inclination”. [78] The Sifra pointed out that the God that these people allege to accept had decreed these laws:

[Although] the evil inclination and the idolatrous nations of the world refute these practices, the verse [itself] teaches: "I the Eternal” decreed it; you have no right to refute them [i.e. the Eternal laws].”

At no point, however did the Sifra reject its own claim that those people who are not led astray by the evil inclination can indeed see the wisdom of these hukkim, these most hoary of norms. The Sifra’s insider position to Jews (above) was: “it is your wisdom and your insight.”

…

[1] For example, see the use of the word mishpatim in 1QS 6.6-8, CD 7.7-8, CD 14.7-8 and of the word hukkim in 1QS 10.10, CD 4.7-8, 1QSa 1.7 (sources that are all juxtaposed for a different point in Fraade 2011, 50-55 and notes).

[2] Sifrei Bamidbar Korah #119; et al.

[3] Mechilta, Yitro – Parsha 2.

[4] ??.

[5] Mechilta, Yitro – Parsha 2 (and Mekhilta, Beshalah – Parsha 1).

[6] Aharei Mot 9:13:22.

[7] A variant claim is the claim by early Amoraim, that hukkim are those laws that demand loyalty to the laws of nature (y. Kilayim 1:7; cf. Shmuel in b. Kiddushin 39a = b. Sanhedrin 60a).

[8] Cf. baraita b. Yoma 67b and parallels.

[9] Kadushin 1964, 44-45; Ross 1992, 202 n.16; Fine 2003, 189; et al. Cf. Novak 1997, 62.

[10] For example: the Targumim to Leviticus 18:4 and Deuteronomy 4:6-8. A variation of this definition of hukkim as ancient cultural norms is the definition of hukkim as the hoary holidays (Exodus Rabba [Vilna] 15:25) and Shabbat (Midrash Aggada [Buber] 18:20), an understanding that is attributed as far back as the first generation Eretz-Israel amora, R. Yohanan (Shir haShrim Rabba [Vilna] Parsha 1).

[11] As noted by Harry Wolfson (1947, 335).

[12] Cf. t. Shabbat 13:1.

[13] For some Greek and Roman sources on trusting ancient laws, see Zlotnick 1988, 139-143.

[14] This is presumably a play on Hellenistic pride in the laws of Solon.

[15] This is presumably a play on Greek pride in the laws of Solon.

[16] And parallels.

[17] R. Yehoshua of Sakhnin said in the name of [his teacher] R. Levi: The evil inclination refutes four matters, and in all them it is written “hukka”:

a. a brother’s wife (Leviticus 18:5, 17),

b. the [wearing of] mixing fibers (Leviticus 19:19),

c. the goat that is cast out (Leviticus 16:26-29),

and

d. the [red] heifer (Numbers ch.19).

(Pesikta de-Rav Kahana, 4; and parallels)

[18] A brother’s wife from: “Do not uncover the nakedness of your brother’s wife” (Levitcus 18:17). [Yet] it says “her levirate shall have sex with her” (Deuteronomy 25:5). In her life she is forbidden to him, [but] if he dies without children she is permitted to him?!

And hukka is written therein: “You shall keep my hukkot and my judgments, through the observance of which a man shall live” (Leviticus 18:5).

[The wearing of] mixed fibers from: “Do not wear adulterated, [wool and linen together]” (Deuteronomy 22:11). [Yet] a linen garment with tzitzit [blue woolen fringes] is permitted?!

And hukka is written therein: “You shall keep my hukkot” (Leviticus 19:19, immediately preceding the Levitical parallel to Deuteronomy 22:11).

The goat that is cast out from: “He who sends off the goat to Azazel must wash his clothes [and bathe his flesh in water in order to reenter the camp],” (Leviticus 16:26). [Yet] it expiates others?!

And hukka is written therein: “This shall be for you an eternal huka“ (Leviticus 16:29).

[The red] heifer from that which we learn: “All who deal with the heifer[‘s ashes’ preparation], from beginning until end impurify their priestly vestments” (m. Para 4:4). [Yet] it purifies the impure?!

And hukka is written therein: “And this is the huka of the Torah [regarding human death]“ (Numbers 19:2).

(Pesikta de-Rav Kahana, 4; and parallels)

[19] The Sifra is an Akibean Midrash and apparently ruled that a pure person who was sprinkled by the blood and water that is meant to purify the leper becomes impure himself (see R. Akiva’s ruling in Sifrei Bamidbar, Hukkat #129).

[20] See: Sifrei Devraim, Ki Tzetze #233; Mekhilta, Yitro #7.

[21] “R. Eliezer/Eleazar says: Be diligent in studying Torah and know how you will respond to an Epicurean [by showing that the words of Torah do not contradict ]” (m. Avot 2:14; [Avot de-Rabi Natan A ch17, B ch30]).

[22] Gill 1995, 81.

[23] For midrashim that read God in the Pentateuch as addressing atheists, see Sifrei Devarim 329:39; Sifrei Zuta 15:3; et al.

[24] Gilad 1995, 9 and n. 16.

[25] Lekah Tov – Pesikta Zutatra, Exodus 25. R. Yohanan pointed out that the Jewish critics are even worse and greater fools; the Jewish ones believe that a child can be born out of a woman’s own urine – paralleling the belief that when Abimelech was punished for taking the matriarch Sara, God sealed not only the wombs but also the urine of all the women of his household (cf. the Armenian commentary to Genesis attributed to Ephrem the Syrian [1998, 105]).

[26] In fact, “Tacitus mentions Christians but… do[es] not describe them as types of Jews" (Goodman 2007, 35).

[27] I realize that although current scholarship on Early Christianity focuses on the facts that some Jewish-Christian (i.e. ritually observant) groups were actually composed of people who were Gentiles by birth (Taylor 1995, 27-29; et al) and that many Jews who were Christians were ritually observant members of the observant Jewish majority (Boyarin 2003, 288-289; et al) current scholarship has not discussed the fact that some “Pauline” Christians were Jewish. However, the personal examples provided both by Jews such as Paul, Barnabas, and John [and Stephen?] and by this midrash suggest that there were Pauline Christian (or Gnostic, etc) Jews who rejected Halakha – even before the fourth century Nazarene “Jewish Christians who rejected the ritual legislation of the Bible” (Finkel 1981, 244). [In spite of the divisive effect of the Great War between Jewish and Gentile Christians (Tomson 2003, 7), this evidence holds.]

In any case, Christian history is not my field, and I am aware of the great need for careful historical research on the various streams of Jews who believed in Jesus in some manner (as argued by Mimouni 1998, 472).

[28] This midrash could be read as also referring to Samaritan Christians if some of the latter denied the validity of Biblical laws just as figures such as Abiyyah and Dosa had done – similarly to Samaritan followers of Simon of Gitta and other Samaritan Gnostics. (On Samaritans and Christianity, see the sources collected in Pummer 2002. On Samaritan sects in general, see Isser 1999, 576, 582-590 [and Isser 1976].) However, further research would be necessary to show that the Sifra's editor would bother responding to heretical Samaritans.

[29] Tacitus Histories 5:4; Juvenal Satires 14:97; Abot de-Rabi Natan A ch.4; Bamidbar Rabba 20:21; Midrash Tannaim, Devarim 14:7; and the wide range of sources referenced in Hadas-Lebel 2006, 517-521; Rosenblum 2010a, 95-110; and Rosenblum 2010b, 51-58.

[30] Sifra Kedoshim 10:22. In order to understand why a Jew could also be embrassed to state that certain Biblically proscribed sexual unions are forbidden (ibid), see Sifra Aharei Mot 9:8.

[31] For archeological evidence, see Lev-Tov 2003, 431.

[32] For sources on the significant cultural valence of avoiding pig, see: Feldman 1993, 167-170.

[33] Chapter ten.

[34] I do not know whether there was any continuity there was between these Jews and the extreme allegorists described by Philo (On the Migration of Abraham #89-91) even as it is true that the outstanding Christian allegorist, Origen (185-254 CE), was Alexandrian.

[35] As we will see below: the reasons supported by the archeological data, that some societies oppose the consumption of and thus the rearing of pig, are pigs’ great (ab)use of water, the wastefulness of raising pigs – which provide less secondary products – in comparison to other husbanded animals, pigs’ interference with intensive agriculture, and the destructiveness of pigs under certain agro-pastoral and architectural conditions (Hesse and Wapnish 1998, 125-126). However: in spite of Christian recognition that pig herds or sounders can act “crazy” (Mark 5:11-14; Matthew 8:30-32; Luke 8:32-33), it would be nigh impossible to communicate those ethico-economic considerations to a group that accepted as ethical the structure of Roman-Hellenistic society; that would be similar to firm believers in the ethics of a capitalist society and firm believers in the ethics of a socialist society communicate trying to communicate with each other.

[36] Compare a “Jewish-Christian” critique of the Gentile Churches as people who distorted Jesus’ message so that they may eat pig like the Romans (Pines 1968, 263, 267).

It is possible that the Midrash was not only responding to a gentile critique of Jews’ avoidance of pig. It may also have considered pig an emblematic metaphor of gentile Christians – as people who merely claim to obey the God of the Torah but eat indiscriminately just as the pig claims to be kosher due to its split hooves but does not chew its cud.

[37] And bodily immersion.

[38] Milgrom, Leviticus 1-16, 820-823; Klawans 2000, 98-104; Luke 17:19.

[39] 10:10-22.

[40] 6:4-13.

[41] 9:11-28. Cf. Hebrews 2:14-17.

[42] Although Mary Schmitt has shown that Hebrews does not deny the Law and actually forbids abandoning the Law except for the Aaronide priesthood, it seems clear to me that Hebrews has no eschatalogical vision of renewed sacrifices (contra Schmitt 2009, 200-201).

[43] 8:1-10. For a discussion of this passage, see Helyer 2002, 488-490.

[44] Paget 1994, 138-139; Baumgarten 2002, 213-214.

[45] Chapter seven.

[46] Chapter twenty-seven. This reading of Matthew is strengthened if chapter twent-seven was directed to pagan cultures in which a scapegoat would be a criminal or if it reflects a Jewish (non-rabbinic) approach that still understood that the goat was meant to be taken into the desert and killed by a criminal. (On that being the original Biblical intent, see Westbrook and Lewis 2008, 417–422.)

[47] There were other, parallel, Eretz-Israel Amoraic responses – such as positing that reciting the verses of an atonement sacrifice can replace offering it (b. Taanit 27b).

[48] Admittedly, it might be tempting to read this critique as an allegorical allusion to a Christian argument that God could not reclaim the Jews just as a man cannot reclaim his released levirate wife (b. Yevamot 102b; Cohen 2010, 81-82) – a claim that would parallel the later argument by Origen (commentary to Matthew Bk14 ch19) that God had permanently divorced adulterous Israel. However, we will now see that a more accurate explanation of this critique, one that would be in line with the critiques of the three laws discussed above, is that it was a critique of actual levirate ties.

[49] For an explanation of the phenomenon, see Scheidel 2009, 283, 288-289.

[50] For that phenomenon, see Voobus 1951, 16-34, 53-54; Murray 1982, 6-9; et al.

[51] Much of this debate became expressed most clearly only as Christianity became increasingly entrenched and a language of political debate in the fractured Roman Empire. It was the Council of Gangra (362 CE) and the trial of the bishop Priscillian (385 CE) that first punished as heretical the call for universal celibacy, even as (Pope) Siricus of Rome defrocked married priests (387 CE) following the public recommendation of the Roman synod (386 CE) and the earlier similar decisions of the synods of Elvira (circa 306 CE) and of Ancyra (314 CE).

[52] For example: see Tertullian’s opposition to widows remarrying in To His Wife 1:7; Exhortation to Chastity ch9; and Monogamy ch9.

[53] For example, see Tertullian, Monogamy ch7 and compare Athenagoras, Embassy for the Christians ch33. [Although Roman Law explicitly forbade all people to marry a sister-in-law only in 312 CE (Codex Theodosianus 3.12.2 [Grubbs 2002, 162]), it had already ruled against this phenomenon somewhat by forbidding bigamy in 285 CE (Falk 1966, 6).]

[54] Deuteronomy 25:5-10. This is reinforced by further Biblical parallels as pointed out by Goodman 1993, 193 n.62.

[55] Note: there were some Tannaim who were of a somewhat similar opinion. They ruled that levirate release is the expected default standard and that levirate marriage is permitted only to those who act out of purity and not lasciviousness (t. Yevamot 6:9; baraita b. Yevamot 39b).

[56] To the exclusion of coarse wool, such as goat or camel wool (m. Kilayim 9:1).

[57] m. Kilayim 9:2. Sea silk was also known as sea wool. [Yehuda Feliks translates the word in a different context as scrap of real silk (Feliks 1982, 244).]

[58] On linen as a garment of richer people, see Ezekiel 16:10-13, Isiah 3:18-24, m. Taanit 4:8, et al. In general, the Tannaim looked askance at a man who wore even plain linen cloaks (y. Sanhedrin 2:8).

[59] Conti 2003, 182; et al.

[60] Sifrei Devarim, Re’e 81:30.

[61] Deuteronomy ch.12; (Numbers 15:39;) Sifrei Bamidbar #115; et al.

[62] Compare m. Sanhedrin 4:5.

[63] For example: see Parkin 2006, 77-79.

[64] For example: Matthew (23:1-5) and Justin (Dialogues ch.46).

Admittedly, it would be tempting to read the Christian attack on the injunction against wearing mixed species as a roundabout allusion both to the idea found in the first century CE Pauline Epistle to the Romans – that the gentiles are validated as tree grafts [forbidden by Jewish law (m. Kilayim 1:4,7; t. Kilayim 1:10)] onto the original olive tree of Israel from which the unbelieving Jews are being lopped off [Romans 11:16-25 cf. 10:19-21]), and to the late first-century CE Ephesians (2:15) idea that Jesus mixes the species of that are separated by a mehitza [cf. m. Kilayim 4:3-4; t. Kilayim ch.4], i.e. the mixed species of gentiles and Jews [see Derekh Eretz, Arayot #11; cf. Jubilees ch.30]). However, we are now seeing that a more accurate explanation of the subject of this attack, one that would be in line with the Christian critiques of the three laws discussed above, is the actual norm of wearing mixed species.

[The rabbis countered the Christian claim of Gentile connection to Abraham (Galatians 3:29 through Tertullian, De Momogamia ch.6) in other ways, such as by claiming that God acquired the people of Israel (Mekhilta, Beshalah – Parsha 9) and by claiming that the patriarch Jacob survives along with the seed of Jacob (R. Yitzhak, a third century CE Eretz-Israel Amora [b. Ta’anit 5b]).]

[65] This anti tassels position is glossed over by Fine (2013, 25) who refers to Shaye Cohen but ignores the fact that Cohen does cite some sources about some Jews having a distinctive dress of tassels (Cohen 1999, 33-34).

As for why phylacteries are not found in this list: although Matthew (23:1-5) and Justin (Dialogues ch.46) condemned both tzitzit and phylacteries as “overly” pious, phylacteries would not have been a defensive point of debate with Christians. Not only did Christians continue to wear Biblical-text amulets (Skemer 2006, 35-36 and n.46) but Tannaim also maintained the Second-Temple norm of painting tefillin in simple black* and condemned anyone who wore expensive gold painted tefillin as a superficial show off (m. Megilla 4:8). Amoraim stated even more forcefully that Judaism had always invalidated tefillin painted in any but the cheap color black (y. Megilllah 4:9).

Furthermore, a dominant Tannaim and Amoraic position forbade wearing the head-tefillin outdoors (m. Shabbat 6:2 – when the whole chapter is read in its original not Shabbat-specific context of proper and improper outdoor dress for men and for women) – although, outstanding individuals were allowed to and respected for wearing tefillin everywhere (b. Taanit 20b; baraita b. Sukka 29a). At the very least, wearing tefillin was opposed on the days of public rest and mingling – Sabbaths and holidays (Mekhilta, Bo parsha 17; Mekhilta de-Rashbi 13:10; y. Berakhot 2:3 = y. Eruvin 10:1; and b. Menahot 36b). [However, here too, some rabbis did wear tefillin even on these days – y. Berakhot 2:3 = y. Eruvin 10:1.]

* For black tefillin boxes at Qumran, see Schiffman 1994b, 306-307 (and internet sites such as slides 23-25 at University of Pennsylvania’s http://www.sas.upenn.edu/~jtigay/nelc150slides).

[66] “[The wearing of] mixed fibers from: “Do not wear adulterated, [wool and linen together]” (Deuteronomy 22:11). [Yet] a linen garment with tzitzit [blue woolen fringes] is permitted?!” (Pesikta de-Rav Kahana, 4; and parallels).

In truth: some Tannaim forbade wearing Tyrian blue tzitzit on linen graments. They thus forbade wearing linen cloaks (m. Eduyot 4:10; Midrash Tannaim on Deuteronomy 22:12; Masekhet Tzitzit 1:2; baraita b. Berkahot 54b; baraita b. Nidda 70b; and compare the y. Sanhedrin 2:8 tradition that some Tannaim looked askance at a man who wore even plain linen cloaks). However, Christian opponents would not have been interested in discussing or even noticing the “consistent” (albeit extreme) position.

[67] Numbers 16:1-50. For our purposes, we have no need to discuss whether this is one story or multiple stories.

[68] Numbers 16:1-4, 12-14, 21-34.

[69] Numbers 16:3.

[70] Numbers 16:5-11, 15-19, 35.

[71] Cf. Josephus Antiquities of the Jews (chapter 4) with Plato’s Republic (Books 8-9), and see other sources in Feldman (1998, 389-391).

[72] For example: see Reinhold 2002, 30.

[73] Regarding private libraries in Roman society see Feldman 1996, 220. For archeological evidence on private libraries in Eretz-Israel Jewish society see Popović 2012, 567-570, 573-576.

[74] The rabbis preferred public study houses and such privately owned study structures as were made accessible to the public (Hezser 1997, 200-213) – similar to the archeologically discovered privately owned synagogues made accessible to the public (Foerster 1992, 300-301; Schwartz 2001, 233-234) [comparable to the early Christian domus ecclesia].

[75] Reinhold 1971, 275-302.

[76] Cf. Luke 16:19-26.

A different, imposed, interpretation of this midrash was offered by Rav Soloveitchik (2005, 21-22) who overlooked the historical and even Biblical-narrative context of the Midrash in keeping with the fact that the “the Brisker constructs his legal world to emphasize that halakha stands outside of time and space” (Saiman 2005, 83; cf. Rosensweig 2005, 118; et al). Due to the surprisingly similar widespread academic consensus to engage in the history of abstract ideas and laws as if ideas and laws must first be defined independently of context, Christine Hayes reached the same imposed reading (Hayes 2011, 134).

[77] m. Kilayim 9:2.

[78] A similar designation of these Jews as fools or wicked may exist in a famous Eretz-Israel sermonic text, the Passover-Haggadah/Talmud-Yeushalmi discussion of the wicked/foolish son – if that text was, indeed, a response to Christian ideology (as argued by Yuval 1999, 107).

Bankrupt Cities

2013-11-15T04:56:00.000-08:00

Here are some quick Friday thoughts on ethical issues of bankrupt cities:

There seem to be two main issues: How to work out who gets what monies from the city (similar to the issues of a company going bankrupt) and which if any assets the city has the right to retain.

Here are my 4 thoughts - just initial thoughts:

1. First discussion (of two) of debtor's obligation:

According to Mishna Arakhin 6:3-4, a debtor retains the right to basic necessities of survival (a roof and bed etc) and of generating income (tools of his trade if he must own his own in order to work).

Based on this model, what if anything does the right of retaining basic necessities mean for a group of people (as in a city)?

We have m. Megilla's references that a sefer Torah and a beit knesset are basic. Does that mean even in the face of debt? Actually, we have a history of Halakha of defaulting communities (Vaad ha-Kehilot of Poland and Lithuania; some famous kupot/kollelim of Yerushalayim). I have never looked into the Halakhic rulings but I recall that some exist.

2. As regards multiple creditors and Detroit, how should limited money of default be divided fairly?

a. One angle on the issue is to view everyone owed money as in the same mess and ask what to do now. Do we (society) wish to divide the money equally [obviously no more to anybody than he is actually owed] so that each party gets minimally the same amount to help them survive and move on in life from this point forward? OR do we wish to divide the losses proportionately since each party had made decisions/set up their life in reliance on future repayment of a certain sum of money and so each party's damage depends on the proportion lost?

The matter is debated in Halakhic history.

a-1. First, let's see how m. Ketubot 10:4 plays it out. In this mishna one person is owed 100, another 200, and a third is owed 300. In this case, the two concerns are balanced:

מי שהיה נשוי שלש נשים ומת

כתובתה של זו מנה ושל זו מאתים ושל זו שלש מאות

ואין שם אלא מנה - חולקין בשוה

(75 =) היו שם מאתים - של מנה נוטלת חמשים, של מאתים ושל שלש מאות שלשה שלשה של זהב

(150 =)היו שם שלש מאות - של מנה נוטלת חמשים ושל מאתים מנה ושל שלש מאות ששה של זהב

וכן ג' שהטילו לכיס פיחתו או הותירו כך הן חולקין:

First case: everyone gets the same amount - 33.3 + 33.3 + 33.3 - and the losses are very disproportional. The concern seems to be that everyone has an equal right to receive the same share of the sum needed to move forward in life. Losses are ignored.

Second case: The smallest sum creditor gets half of his money with the others also getting the same sum and more. The others then divide the difference equally. 50/100, 50+25, and 50+25. The concern seems to be to balance between granting everyone the same sum but only up to half of the debt. Anything beyond half goes to the parties that are owed more money

Third case: Everyone get the ideal (in this type of case) - half of the money that they were owed: 50/100, 100/200, 150/300.

a-2. The Geonim, however, say that everyone gets their proportion (referenced in Rambam malveh ve-loveh 20:10).

For those who prefer concrete numbers:

If only 100 were available, it would be approximately: 16+/100, 32+/200, 48+/300.

a-3. Rambam says that the money is divided so that each smaller party gets as much as up to their whole debt and not just half - and only then is the rest divided equally (malveh ve-loveh 20:7). The position codified in the Rambam prioritized giving everybody equal footing to move forward [obviously not beyond the money a party was owed]

For those who prefer concrete numbers:

If only 100 were available: 33.3/100 + 33.3/200 + 33.3/300

If 300 were available: 100/100 + 100/200 + 100/300

If 400 were available: 100/100 + 150/200 + 150/300

If 500 were available: 100/100 + 200/200 + 200/300

b. A problem with this analysis, however, is that although it can express values and is great for the classroom, it seems to ignore the intuition of greater damage to workers than to banks. It is true that big lenders need to be appeased so that they will lend to and service cities in the future (she-lo tin'ol delet), but we seem to be missing an attempt to balance that and the workers' more severe need. Anybody who has actually done business will realize, however, that it is also possible that a contractor and his employees or heavy bond holders etc will go under due to the canceled debt.

So let us clarify what underlies that intuition if it does make sense. The intuition that workers deserve money more than the banks deserve the money seems to come from two related considerations: Banks tend to evaluate their risks well, and banks can absorb the loss.

Although this is not always true (Enron etc etc), one basic reason that it seems to be true is because banks banks try to protect their loans. So, we possibly should distinguish between liens (which also facilitate loans - she-lo tin'ol delet) and other monies owed. In Halakha: when it comes to liens, first creditors collect first on the assumption that later creditors knew that they had less powerful liens. Notice that this is not an issue of the mess of debts owed later but of acquiring rights/guarantees at the time of the initial loan. According to this reasoning, banks have the upper hand as regards mortgaged but not as regards unprotected debt.

c. That is still problematic, however, because we have not discussed who we think deserves the money:

A libertarian will say that workers overdrew on the city's resources and brought about their own ruin. A liberal will say that the banks cooperated with the city's rich (and the suburbians) to drain the city and brought about the end of their own party.

A non-ideological analysis, however, would more simply recognize that each side's responsibility grew as the situation worsened:

1. Imagine that I am a worker who fights for a more pay while facing a rich city. No reason to avoid that. Imagine that I am a bank lending to a rich city suffering cash flow problems or a temporary income shortage. I similarly lend them money to our mutual advantage.

2. Now, however, imagine that I am a worker who demands higher wages as the city is slowly spiraling to ruin. Imagine that I am a banker lending for the profit of drawing interest until the debt collapses.

Well, aside from mekorot forbidding trying to destructively drain another person economically, civil law Halakha has a response to that. Liens. This time liens against future property:

1. Under Western capitalist arrangements in which debts are liens against property that will exist at the time of collection, Halakha would reflect the issue of responsibility. In collecting from city assets - building, paintings, etc - an earlier contract (whether loan or employment, including retirement funds etc) takes precedence over a later contract.

Thus, our earlier discussion of how much money to fairly give each debtor would apply only to monies left at the city's demise.

THIS DISCUSSION COULD BE NUANCED but I will stop it here.

3. Second discussion (of two) of debtor's obligation:

What about the city's residents, however? What are they supposed to do? True, they (or their elected officials) made bad decisions but those bad decisions were also in part due to the creditor's past demands.

Here the Halakhic discussion gets messier and more interesting.

What does ribbit mean as regards cities?

What does ribbit mean as regards cities and destructive clauses [not just interest]?

What does asmakhta mean as regards cities' contracts?

Is the argument that asmakhta is not applicable to shetarot relevant to shetarot signed by officials who don't pay the price for the commitments they made on behalf of others? [cf. m. Bava Mezia on a father hired farmhand making a deal for himself and his minor child versus himself and his adult dependents]

Since it is late on Friday here, I will not expand these further.

4.There is only point that I would add out-of-the-box. It begins with technical info (a) and then I state the argument (b).

Technical background:

a. Halakha has recognized the right to bankruptcy

In Tanakh it is either every seven years (Sefer Devarim) or fifty years (Bahar).

Among Tannaim, the right was originally maintained - except as regards property that had been placed in lien (i.e. land and pawns).

Even when Halakha later allowed for permanent debts against a debtor's person, it allowed it only for purely commercial loans (such as loans in which the debtor had some assets and the documents were drawn up and deposited in the city records - prosbul [see my article]).

In other words: Loans between relatives and other people in reciprocal relationships - loans without a shi'abud clause - were still canceled by shemitta (although a debtor who has the money is expected to repay).

This combination of rulings makes sense when we realize that the borrower and other family members/people of that circle are expected to lend to the lender in the future if he should need money.

Since the expectation is that the lender will cancel for poor family members who also have a reciprocal relationship with him, the expectation never dissapeared in Halakha:

When even oral loans became potentially permanent, the creditor had to declare publicly and in writing each specific debt that he was not foregoing [i.e. even when prosbul changed, there used to be a seperate document for each debt]. This means that there was still public pressure to forego debts from family members etc

Even when a blanket written prosbul became accepted, aharonim ruled that there is mitzva to cancel some debts [like burning some hametz] - so that there is still an expectation that a creditor will forego debts from relatives [etc]

b. What does bankruptcy based on reciprocity mean for a community?

What would that mean for a worker who lives in his town (forget a large city for the moment)?

A town utilized the right to leave the debt: Would the ethical basis for such a right be a reciprocal relationship between the other residents and the worker?

Would a worker have a right to expect priority in being hired (cf. b. Bava Mezi'a 109a-b and rishonim through poskim)?

Would a worker have a right to expect right to tax benefits and/or a right to free use of [some] city services? [see rishonim on ha-anek ta'anik and workers versus indentured servants while keeping in mind that workers were not payed and that there is a perpetual mitzva on a debtor to pay even as he has no civil law obligation to repay after shemitta]

Shabbat shalom!

2013-08-08T03:19:00.001-07:00

ARTIFICIAL MEAT

Since I was asked by a former student, here are my quick thoughts on some Halakhic questions regarding the new "meat". These were merely quick thoughts. For people who have a need to think about this through a Halakhic lens - i.e. for ve-dibarta bam purposes only, not Halakhic:

Hi!

Here are quick thoughts:

1. Such meat (which was never alive) is kosher without humane slaughter (i.e. shehita).

Halakhically, even a breathing fetus calf that was removed after a cow's slaughter (ben paku'a) is minimally acceptable as food (i.e. mi-de-orraita) if it was killed in any way - although the humane cultural standard (mi-de-rabannan) is to slaughter it.

All the more so, this meat.

2. As regards the question of whether such meat must have originally come from the cells of a humanely slaughtered animal, the question is whether one relates to how this meat was originally acquired (as one might be bothered by using a human cell strain that was acquired unethically) or whether one relates to the constantly new cells as unrelated to the original meat (as one might relate to a cell strain as having no connection to an original unethical act).

Since the problematic of killing an animal inhumanely for food is not so severe (is not assur be-hana'a), the origins of the cells and thus the meat should not matter; it is no different than permitting a calf born to a mortally wounded animal because the calf is independent of the cow even as we forbid an egg (and debatably a chick) laid from a wounded hen. These new cells were not part of the dead animal.

As regards the question of whether we should have some degree of sensitivity to how these cells were acquired, there is a Tannaitic debate whether the viable calf born to a mortally wounded cow is forbidden or permitted to the altar. Does one associate the calf with the mother that either had not been protected enough against predators/the elements or had been fed sharp wounding objects negligently? The accepted position is that the calf is acceptable even as a sacrifice to G-d. All the more so as regards this "meat" in which the cells are made from cells that have been made from cells, paralleling a calf born to a calf that had been born to a mortally wounded animal; there are no triggers to recall the original animal.

Note: this argument does not permit killing an animal inhumanely (tza'ar ba'alei hayyim) in order to begin this process.

3. As regards the injunction against eating meat and milk, this new meat had no mother. Thus, the meat is no longer meat. It is all the more so not a domesticated species in spite of the fact that anything born to a species is considered part of that species no matter what it looks like. I will separate the two questions of species and of being an animal:

3a. If a calf is born with genetic mutations that make it appear more like a pig, it is still kosher calf meat. In other words, because it shares the grazing, biological and mating traits of a calf and not a pig - regardless of its appearance - it is a calf. In fact, even if it born dead, as a fetus, it is forbidden to cook and eat with milk - but that again is because it is the embryo that might have been born alive and suckled. In our case there is no emotional relationship (or even economic relationship) between cooking a killed calf/kid in the milk of a cow that is being milked until it will in turn be killed (etc etc), since this "meat" was never a developing calf. This meat is not an embryo.

3b. As regards the lesser injunction against cooking/eating milk with any meat, this "meat" does not come from an animal that was born or gestated. This meat is no different than a plant. Thus, although it has the texture of meat, the injunction does not apply.

3c. However, there is another more general - and weaker - prohibition (that is rooted in the injunction against eating milk and meat together) to consider: the prohibition against wasting protein by eating things like meat and fish together. Such haughtiness has been considered dangerous, a potential cause of leprosy, by the rabbis (and other cultures). There is in fact a modern (since 16th century) debate over whether one should also avoid eating fish with milk/cheese.

True, rich people circumvented that injunction by relating to the custom of rich Europeans to eat the fish and meat in separate courses as sufficient to not be considered gluttonous in consuming both fish and meat together. Nonetheless: I do not see room for circumvention in this case in which permitting such "meat" and milk together would also lead to people cooking and eating killed meat with dairy once the two types of meats are similar enough, cooking and eating such "meat" with milk should be forbidden. This is not a new "fence" but rather an application of the old fence that forbid cooking even chicken with almond milk without adding almonds to maintain the psychological barrier against even chicken and milk. In fact, even those who argued that almonds need not be added because the chicken is clearly not beef/goat/sheep (and the "milk" tastes completely different than real milk), would forbid mixing "meat" that (will soon) taste like meat with real milk.

Riding Bicycles on Shabbat - a note

2013-06-26T00:40:00.001-07:00

In the past, when I have discussed why Ashkenazim opposed riding bicycles on Shabbat more than Middle-Eastern authorities did - I focused on the work uses of the bicycle in Europe, even between towns. These situations obviously involved periodic fixing of flats (and fixing of the chain once that came into use). Thus, it is not surprising that it was forbidden as the Tannaim had forbidden horse riding and that it was forbidden in language that points out how even casual riding can turn into work.

However, I overlooked that the other grounds of opposition: bicycle riding in Europe became a group sport - which takes us back to the Ashkenazic debate over playing soccer/rugby/football on Shabbat. It also involved inter-gender socializing, and even allowed for socializing further away from one's neighborhood of residence. Even strangers could use their shared interest in bicycling as an opening point of conversation with the opposite gender - and all the more so a man and a woman who were strangers could meet by his offering to help fix her bicycle chain or flat. These issues both can be found in the Halakhic language and were not as significant in Middle Eastern countries in which only men bicycled.

For some sources on Western consternation in response to bicycling (especially on the day of rest), see:

David Herlihy, Bicycle: The History. pp 266-272

FOR SUKKOT (from chapter on Rishonim)

2012-10-01T14:39:00.000-07:00

B2. Rashi

Two generations later, we find the same substantive approach of applying earlier laws’ narrative typifications expressed by the leading Franco-German rabbinic authority of his time – R. Shlomo b. Isaac (RaShI, Troyes – 1040–1105). This student of the school of Rabbeinu Gershom so understood that Jewish Law’s conceptual language expresses underlying narrative typifications instead of semantically defining them that he did not bother with semantic consistency. We will examine two examples. The first example touches upon the arrangement of the fixed metonic cycle for the lunisolar Jewish calendar, whereby both the Biblically commanded blowing of a shofar on the first day of Rosh HaShana (Leviticus 23:24)[1] and the waving of lulav and etrog (a bound set of four plant species) on the first day of Sukkot (Leviticus 23:40) would be postponed to the next day if these holiday fell out on Shabbat.[2] The second example…

B2a. Rashi: Avoiding the Blowing of a Shofar and the Waving of a Lulav/Etrog Set on Shabbat

In the first example, Rashi was asked the following question: Why did the (Talmudic) sages fix a metonic cycle for the lunisolar Jewish calendar in such manner that both the Biblically commanded blowing of a shofar on the first day of Rosh HaShana (Leviticus 23:24)[3] and the waving of lulav and etrog (a bound set of four plant species) on the first day of Sukkot (Leviticus 23:40) would be postponed to the next day if these holiday fell out on Shabbat[4] but ensured that the less-significant beating of the willow branches on the seventh day of Sukkot[5] not fall out on – and be cancelled by – Shabbat:

They asked him [Rashi] further: Why did the sages calculate the holidays for the sake of [beating] the willow, that it should not fall out on Shabbat but not care about [the blowing of the] shofar and the [waving of the] lulav [along with willow branches, myrtle branches and a citron]? Isn’t the primary mitzvah of lulav on the first day as written in the Torah (Lev 23:4), and the rest [of the days of waving the lulav] are only in memory of the Temple [in which the lulav was waved all seven days]! (Teshuvot Rashi #118)

Rashi answered that a missed Biblical blowing of a shofar or waving of multiple species could be made up on the following day:

And our Master answered us: We must of necessity establish Rosh HaShanah on Shabbat [in some years], in which case Sukkot will begin on Shabbat, too. For if [we do] not [do] so, then when the new moon of Tishrei [the astronomical new year] occurs on Thursday we won’t be able to establish the New Year on Friday, lest Yom Kippur fall on Sunday,[6] and not on Shabbat according to your argument for the sake of shofar and lulav, and not on Sunday for the sake of the willows [i.e., so that the seventh day of Sukkot won’t fall on Shabbat]. That means that we will have delayed [the New Year] by four [extra] days that don’t exist in the calendar![7]

Thus, since it is impossible [to have Shabbat not conflict with one of these holidays] the sages should be trusted; it is best to establish [the New Year] in such manner that Shofar and lulav will be delayed by one day, since they can be made up the next day, and not to "delay" [i.e. omit for the year] willows that cannot be made up [since the eighth day is a different holiday]. (Teshuvot Rashi #118)

Rashi provided an answer that, at first glance, denied the question. In response to the problem that inasmuch as the performance of Biblical rituals on a later day does not fulfill the Biblical commandment to perform them on the first day they should not be overriden by Shabbat, Rashi simply says that they are made up. Rather, the waving of the willows on the seventh day of Sukkot – which isn't a Biblical commandment at all – should be overriden.

In order to understand Rashi’s response, we must seek to understand how Rashi could have evaluated that a postponed observance of a ritual is sometimes experienced as equivalent to the Biblically required immediate performance. We will do that momentarily. The point is that Rashi was able to view a performance as merely a rabbinic-level practice, on the one hand, but also view it as truly making up a missed Biblical-level practice, on the other hand.

As just stated: in light of the fact that Rashi evaluated that a practice that was normally viewed as rabbinic-level could also be viewed as making up a missed Biblical practice, I will offer a suggestion as to how he could have viewed a practice in such fashion. The point is not that this explanation is necessarily what Rashi precisely had in mind. The point is that it illustrates a type of narrative typification that could have allowed Rashi to respond to the challenge that the “primary mitzvah of lulav on the first day as written in the Torah” is missed by answering that it is “made up” with a generally rabbinic performance. With this caveat in mind, we will now develop a possible picture that Rashi had in mind by reviewing the Tannaitic holidays of Sukkot and Rosh Hashana as they were celebrated before the Jewish lunisolar calendar was set into its metonic cycle.[8]

Sukkot – which is preceded by the annual day of penance and atonement,[9] and itself precedes the Land of Israel’s annual winter rain season[10] – was a holiday of Divine judgment over rain (m. Rosh HaShana 1:2). For six of the seven days of the holiday, the multitude celebrated[11] the previous year’s harvest[12] but for all seven days they libated water and prayed for salvation from drought.[13] Thus on this holiday of rain, each man was required to supplicatorily wave a set of plants, which by definition need water to survive (b. Taanit 2b), consisting of a palm branch (lulav) flanked on either side by shorter myrtles and willows and to hold alongside it, in the other hand or arm, an aromatic citron[14] – four plants that are watered differently from each other and whose arrangement is reminiscent of both male and female fertility.[15] For seven days a vast multitude would circle the altar in the Temple courtyard (the source of the waters of the deep[16]), which was covered with willow boughs stuck into the ground (as if growing in their water rich environment), and would wave its citron and palm branches while the community prayed for rainfall so that they would be saved and would prosper.[17] On the seventh day, the multitude would circle the altar an additional six times, then beat the ground at the foot of the altar with willow branches, and finally praise the beauty of the (now leaf-surrounded) altar.[18] In other words, for six days the sound of wind rustling branches was recreated in the Temple courtyard[19] alongside the aroma of fruit, and on the seventh day the sound of rainfall was recreated at the foot of the water-altar. It is thus not surprising that both the opening day of fertility-symbols and enacted-wind (placed merely days after the Day of Atonement) and the closing day of enacted rainfall were considered critical: if the first day fell on Shabbat the citron and palm branch were nonetheless waved in the Temple (m. Sukka 4:2, 4),[20] and if the seventh day fell on Shabbat the people nonetheless circled the altar and beat the willow branches (m. Sukka 4:3,6; t. Sukka 3:1). Both the first and the last day of this holiday were considered critical to the water-holiday.

In spite of the criticalness of the first day, however, the Jews of Tannaitic Israel did not allow their whole day of rest (Shabbat) to be transformed into one of supplication. In contrast to the normal holiday practice to carry the lulav around in the streets – in public – after prayers,[21] they forbade carrying the lulav on Shabbat before[22] and after the rain prayers.[23] In Babylonia – where the Jews celebrated two days wherever the Jews of Israel celebrated one day[24] and thus had a two-day opening time frame for the holiday of Sukkot[25]– Jews did not wave the lulav of supplication[26] on the first day of Sukkot if it fell out on the weekly day of rest since they had a second set of twenty-four hours to the opening days. Just as the Jews of Israel also did not allow their whole day of rest (Shabbat) to be transformed into one of supplication so, too, the Jews of Baylonia delayed their supplication to the second half of the opening days . Similarly, since all the Jews of Babylonia and the overwhelming majority of the Jews of Israel celebrated the New Year for two days,[27] the Jews of Babylonia and gradually the Jews of Israel ceased to blow the emotionally-laden trumpeting[28] – the shofar of the day which opened the month of rain supplication[29] – the shofar of judicial coronation, hope and supplication[30] – on Shabbat.[31] Later, even the Jews of Israel ceased to wave the lulav at all on Shabbat.[32] As the Talmudic editors said[33] in explaining why Shabbat overrides shofar and lulav: it was ruled thus lest novices carry the object about in public (b. Sukka 43a; b. Rosh HaShana 39b)[34] and ruin the day of rest.

With this background, we can now understand Rashi’s answer – whether or not Rashi interpreted the holiday in exactly the way I suggested: Rashi laconically attempted to shift the questioner’s paradigm. Given that the New Year had become a two-day holiday everywhere and the intensive opening period of Sukkot had become a two-day holiday all over the Diaspora, Rashi pointed out that people could experience themselves as opening the year with shofar-blowing or opening the rain holiday with plant-waving as long as they performed these rituals at the first legitimate opportunity within the opening two-day frame, and not merely on the first day. In other words, Rashi spoke through the experiential relevance of a two-day holiday.

More significantly for this thesis, however, is the point that Rashi kept in mind the narrative that was addressed by the Tannaitic ruling that the waving of the lulav on later days of Sukkot, including the second day, is merely rabbinic. Rashi understood that the general Tannaitic ruling that the latter six days are merely rabbinic was limited to the situations the ruling was addressing. It was a way of saying that the holiday must be opened on the first day with the waving of the lulav and that a man may be lenient when continuing to wave species on later days in that he may use species that began to dry out after the first day and may even borrow species from another to use;[35] the designation of “rabbinic” was not meant to be understood semantically and deductively but rather as expressing a normative story. This narrative was one of everybody opening the holiday with the waving of the species and of dealing leniently with drying species on all days after the first. That designation of “rabbinic”, therefore, did not mean that under circumstances in which the first day of two opening days was off-limits people could not experience the two opening days as equally valid (see Rashi’s commentary on b. Sukka 43a)[36] and could not fulfil the experiential obligation to open the holiday with the waving of the lulav.

Similarly, Rashi knew that the Talmudic rabbis referred to the blowing of a shofar on the first day of the New Year as the Biblically significant blowing, the blowing that is required to open the year – in spite of the fact that the New Year was celebrated for two days. This limitation, however, expressed a vision of a lost ideal world in which the High Court and the Temple did in fact sanctify only one precise day as the beginning of the New Year (m. Rosh HaShana 4:1). Thus, in a world in which all Jews celebrated an organic two-day New Year (see Rashi’s commentary on Beiza 5a[37]), Rashi argued that as long as it is blown at the first legitimate opportunity within the opening two-day frame, Jews experience themselves as beginning the year with shofar blowing.

In summary: Rashi cogently answered that the missed blowing of a shofar on the first day of the New Year and the missed waving of lulav on the first day of the beginning of Sukkot can and indeed are made up on the second days of those two-day holidays,[38] while the solitary day of waving of willows is not allowed to fall out on Shabbat lest the final climactic waving for rain either be missed or interfere with the day of rest. Rashi pointed out that in deciding the legal issue of celebration one should not be misled by the fact that in some dimensions we refer to the first day as Biblical in contrast to the second day – in spite of celebrating two opening days. Rather one should focus on the different stories intended by the norm of celebrating two days and by the norm of considering the first day’s blowing or waving to be Biblically-required in contrast to that of the later day(s).

[1] When dealing with Biblical commandments in this and the following chapter, chapters that discuss post-Talmudic law, I mean the rabbinically accepted interpretation of those commandments (unless otherwise noted).

[2] Perhaps the questioner was a Karaite. On the existence of scattered Karaites and Karaite-influenced Jews in Franco-German Europe, see Rosenthal 1967, 238-244.

[3] When dealing with Biblical commandments in this and the following chapter, chapters that discuss post-Talmudic law, I mean the rabbinically accepted interpretation of those commandments (unless otherwise noted).

[4] Perhaps the questioner was a Karaite. On the existence of scattered Karaites and Karaite-influenced Jews in Franco-German Europe, see Rosenthal 1967, 238-244.

[5] This is considered merely a custom from the time of the prophets, a custom over which no blessing is recited (b. Sukkot 44b).

[6] That would be problematic since two absolute no-work days would follow in a row (b. Rosh HaShana 20a).

[7] Literally: "And what will be the fate of those four days. How can they be delayed and how can they be filled?"

[8] Since the Tannaitic description does not differ significantly from earlier non-rabbinic descriptions and since this is a chapter on medieval Jewish Law, I am stating the Tannaitic descriptions as historical fact – the way it would have been read by Rashi.

[9] Leviticus 23:26-32.

[10] m. Taanit 1:1.

[11] Flutes were played, wine was offered to God, and night-long celebrations were held on the first six days and nights (m. Sukka 5:1-2).

[12] Exodus 23:16; Leviticus 23:39.

[13] m. Sukka chapter 4; t. Sukka 3:18. Also see t. Sukka 3:18 and m. Taanit 1:1-2. Cf. John 7: 37-38.

[14] m. Sukka 3:7-8.

[15] On the circular relationship of land fertility for the sake of life, children, and of fertile procreation as an image of rain insemination (from God) and feminine land impregnation and birth see Book of Jubilees 16:16-21, 26:31. Note, however, that given that the citron could be understood to symbolize the “feminine”inseminated land separately from the “male” inseminating sky or that all these symbols could be grasped as magical, R. Akiva explicitly said that each of the species represents God (Pesikta de-Rav Kahana 27:9).

As is the case with all rituals, there was obviously much additional secondary symbolism associated with these species – which together also resemble a fleur de lis and an orb, etc. These different secondary symbolisms may even explain the Tannaitic debates over the size and appearance of the citron (m. Sukkot 3:6-7). However, the proliferation of secondary symbolisms should not distract us both from the primary fertility and rain association in a rain-challenged land and from the realization that (as I illustrate below in the notes) the intention of secondary symbolic interpretations are understood best when they are read along the grain of the primary symbolic intentions. (Both of these points are overlooked by Rubenstein 1995.)

In fact, in keeping with those points, it is worth noting that Rambam (a medieval philosopher and legal authority whom we will discuss below in the body of this chapter) ruled that one who cannot wave the species together can even pick up each of the four species separately as long as they are all present (Mishne torah, Laws of Lulav 7:6); in spite of the Talmud’ secondary symbolism for the four species, he focused on the more primary symbol of these plants (also mentioned in the Babylonian Talmud – b. Taanit 2b), that they need water (Guide to the Perplexed 3:43).

[16] This altar was considered the bosom of the earth itself (Ezekiel 43:14) or at least as located between the sanctuary that enclosed the foundation stone of the world and its waters (m. Yoma 5:2) and the Gate of Water from which the earth’s waters of the deep would eventually spread forth as rivers in the ideal messianic future (m. Middot 2:6).

According to some Tannaim the pouring of the water on the altar was an attempt to arouse the Divine through the waters of the deep (t. Sukka 3:14).

[17] m. Sukka 4:5.

This is not to deny that, as pointed out earlier, there was also an element of rejoicing over the produce grown since last winter (y. Sukka 3:11). However, celebration and supplication are intertwined, a point overlooked by Gedalyahu Alon who argued that even according to the Tanaim, “the carrying of the four species in the Temple was only an expression of public rejoicing” (Alon 1977, 137 n.102 – emphasis added)

[18] m. Sukka 4:[end of] 5-6.

[19] Not only owners of orchards (symbolized by the citrons) but also farmers were accustomed to live with deeply rooted trees at the edges of their fields in order to prevent soil erosion (m. Bava Batra 2:12) and olive trees surrounding their plots in order to deter birds from eating the grain (m. Pe’a 3:1), etc. Thus, the sound of the wind rustling the branches was not merely the only wind sound that could be created easily; it was also the sound that a hopeful farmer would seek to hear.

[20] After the destruction of the Temple, when the people prayed and waved the species in their synagogues for seven days instead of in the Temple (m. Sukka 3:12; m. Rosh HaShana 4:3), they continued to wave them when the first day coincided with Shabbat (m. Sukka 3:13).

[21] t. Sukka 2:10; m. Sukka 3:14.

[22] m. Sukka 4:1.

[23] t. Sukka 2:11.

[24] b. Beitza 4b.

[25] Babylonian agriculture is also dependent on seasonal winter rains. It is thus not surprising that Jews continued to wave the species for seven days (b. Sukkah 42b).

[26] Secondary symbolism should always be read along the grain of primary symbolism (if physical conditions have not change radically and the original primary symbolism is in fact still the grounded symbolism). Thus: the secondary symbolism of the palm branch as a sign of judicial victory (Pesikta de-Rav Kahana 27:3) should be read as a reassurance in the face of judgment over rain and the secondary symbolism of the lulav as representing different Jews with varying traits (Pesikta de-Rav Kahana 27:9) should ve read as a reassurance of rain spite of the fact that the people as a whole never were and never can be perfect.

Consider that we saw above that the shofar of judgment (ten days before the Day of Atonement) also symbolized hope and prayer (and many more secondary symbols that express aspects of these points, such as blowing to confuse Satan and blowing a ram’s horn in order to remind God of the binding of Isaac [b. Rosh HaShana 16a]).

[27] t. Rosh HaShana 2:11 [end].

[28] R. Akiva in t. Rosh HaShana 2:10; R. Levi b. Lahma (an Eretz-Israeli Amora of the early 3^rd century CE) in b. Rosh HaShana 29b.

A comparison of R. Akiva’s comment that Shabbat and Rosh HaShana conflict (t. Rosh HaShana 2:10) with R. Akiva’s ruling that the special Rosh Hashana prayers must be prayed with the blowing of the shofar (m. Rosh HaShana 4:5), might indicate that even the Rosh HaShana prayers were significantly modified on Shabbat. (Naturally, there has always been, and inherently must be, a cultural tension between prioritizing a sacred calendrical day of awe as an inherent day and prioritizing a recurring cyclical day of serenity as an inherent “natural” day.)

[29] Cf. Jubilees 12:16-18.

[30] t. Rosh HaShana 1: 11, [end of ]12-13 (and m. Rosh HaShana 4:5). [Cf. Pseudo-Philo, Biblical Antiquities 13:6.]

[31] m. Rosh HaShana 4:1. As the Sifra has pointed out earlier: it is the Jubilee shofar of redemption throughout the land that is critical enough to be blown everywhere on Shabbat, not the mere shofar of the [extra day of the] New Year – which need be blown only in the High Court (Sifra, Behar #2) that declares the new month (baraita in b. Rosh Hashana 30a). [For further dscussion that only the High Court blew shofar when declaring the new month, see Belkin 1940, 213.]

[32] b. Sukka 44a.

[33] On the basis of the of the concern underlying the ruling of the Babylonia Amora, Rava, that people not carry the Book of Esther – the scroll of the ribald story that underlies the Purim holiday of goodwill and drunkenness – in public on Shabbat (b. Megilla 4b).

[34] Especially in light of the legal ideal that encouraged all men to walk around with their palm branches (t. Sukka 2:10; m. Sukka 3:14) and to personally blow shofar (m. Rosh HaShana 4:8; t. Rosh HaShana 2:16) in the public prayers (m. Rosh HaShana 4:9).

[35] m. Sukka 3:13; b. Sukka 36b.

[36] S.v. Lo Yad’inan bi-Kevia de-Yarha. Note that in Tannaitic Israel, in which the waving of the species was intimately connected to praying for rain and in which the holiday had only one opening day, Jews long insisted on waving the lulav on the first day even when it fell on Shabbat (m. Sukka 3:13).

[37] S.v. Havi Davar she-ba-Minyan.

[38] Instead of occurring on Shabbat, a day that Rashi described elsewhere as a day of rest in which emotional pain is avoided (Siddur Rashi #515).

Incorporating Others' Insights in Debates

2012-07-05T06:11:00.001-07:00

From: Lekan, Todd. 2003. Making Morality: Pragmatist Reconstruction in Ethical Theory. Vanderbilt University Press.

The… focus on general principles frequently takes people away from careful and intelligent inspection of particular facts of the problem… [and] a focus on general principles tends to foster an attitude of moral righteousness…. In short, if we are too quick to frame moral disagreement in terms of general moral principles, we are apt to be too quick to frame the moral problem as a decision problem – as a problem with those who are either too stupid, selfish, or evil to see their own moral sins.

In… good moral argument (p.115)… when we… provide justifications for action plans, we typically refer to “data” or “facts of the case,” which we take to ground some conclusion…. “Why did you leave work early today?” “Because my child was ill and needed to be picked up early from day care.”… Of course these bare statements do not tell us much. This is because usually the context in which grounds are provided is implicitly understood by all concerned. (p.116) … Such practical arguments do not guarantee that their conclusions follow “necessarily” from their premises. The strength of the conclusion is a matter… depending on the weight of the grounds and warrant offered.(p.117)… Sometimes the problem is merely that of whether D[ata] holds true. Was he really sick?… Sometimes the dispute is over the force of the conclusion in light of rebutting circumstances: “Sure, typically a sick child would be grounds for letting you off work early. However, you could have stayed fifteen minutes longer, couldn’t you? Given the importance of finishing this project and getting it in the mail today, it seems under these circumstances you shouldn’t have left early.” (p.118) …

But… how do we resolve disagreements about warrants when these disagreements are based in divergent interpretive horizons – divergent ideals and “fundamental values” – different “backings”?… (p.122) On the one hand, we should not exaggerate the amount of conflict and incommensurability at stake…. Furthermore, we may assume that at least some of the dispute can in principle be settled by more factual inquiry…. Moreover, the “backings” used to “establish” these warrants are complex conceptions that do not deductively “entail” a certain warrant but rather makes plausible differing sorts of warrants. (p.124)…. Thirdly…if people realize that in some instances conflict over norms or warrants is the result of differing “warrant-establishing interpretive standpoints,” then they will be more likely to work toward mutual understanding in these areas of dispute… assuming that [they]… are willing to accept the claim that moral norms can really become problematic, and therefore that particular moral judgments are fallible. (p.125)

Attempted Clarifications

2012-06-05T10:19:00.001-07:00

To clarify: we will see that the leading rabbis discussed in this book felt no need to be loyal to the wording of their legal sources as much as loyal to the insights of the lawmakers who had certain situations in mind. This has three implications:

a. First of all, they read laws contextually. This means more than that they merely read law as did Classic Common Law judges[1] who would have understood, for example, that an unqualified law that says “everyone must vote” need not include a legally incompetent person, a person who is physically incapabale of accessing the solitary, or even the solitary caretaker of a bed-ridden person. As a Midrash (Tanhuma, Bo #13) noted concerning the Biblical use of the word “tomorrow”: sometimes “tomorrow” refers to the next day and sometimes to the long-term future. Similarly, one of the earliest medieval halakhic responsa – of R. Hai Gaon (Babylonia, 939-1038 CE) – noted that “each [Talmudic use of the term] ‘immediately’ must be defined by its context.”[2] In contrast to Classic Common law judges, they did not use context merely to reign in the semantic implications of a law. Rather, they also used context to expand the implication of the law. They would have understood that a a religious traffic law that directed drivers to stop in accordance with a traffic light and directed a specific right-of-way at traffic circles, implicitly requires drivers to drive safely at ambiguous intersections. They understood their legal sources to be not semantically comprehensive but rather addressive of typical situations – to be narrative typifications.[3]

b. Second: they understood that inasmuch as lawmakers address people who are supposed to understand the shared situations, laws can and do omit critical but culturally obvious terms – not merely terms that define the situations and objects to which the law refers but even terms that express what the lawmaker desires one to do. Since laws are communications, words must inevitably be omitted[4] – all the more so when the lawmaker provides narrative typifications, in which case one intentionally speaks in “restricted code”.[5] This means more than that leading rabbis merely understood that a law’s words must be read in context of all its other written details. For example: a law that directs drivers to “stop at a red light” should be read as directing one to stop when the light of a tri-color traffic light has turned red and not every red decorative light strung accross a street. That would be obvious since the law also permits one to travel when the light is green and these lights will never turn green. Rather, it means that a law must be read in light of its unstated context even when such reading violates the semantic meaning of the law. For example (based on American culture and language): a religious/moral authority points to a hatless cranky child on a hot beach and directs an adult with a cooler (an insulated picnic basket) to iimediately give the child chocolate milk to drink. If the adult discovers that his/her chocolate milk is warm because it had fallen out of the cooler but there is ice-cold water in the cooler, s/he is meant to first offer the child the cold water. This is the case in spite of the fact that the drink’s characteristic of cold was never mentioned or even verbally indicated and that many well-hydrated children on breezy beaches may indeed prefer warm chocolate milk. This is the case because the adult is supposed to understand that the law is based on a narrative typification, on the assumption of a shared understanding that the child must be both hydrated and cooled down and that familial coolers generally hold cold chocolate milk.

c. Third: when they felt a need to prove their interpretation to people who were supposed to share a common narrative understanding, they merely indicated the evidence for their interpretation. Thus, in the chocolate-milk/cold-water example, they might merely prove that they should have given the hot child cold water becase the the directive was “child”, “drink”, and “immediately” – an urgent call to both hydrate and cool the child.

In addition to viewing their role to be that of wisely apply the insights of the lawmakers who had certain situations in mind, these leading rabbis – as sages of a lived culture – also spoke via the original terms of their internalized sources. In order to understand what it means to discuss an issue in the original terms of an internalized source, imagine a conversation between chocolate-lovers discussing a newly discovered bean called xcellent that has all the taste and endorphin-triggering properties of chocolate but is pink and grows on sturdier trees. When a person tastes the powder of the bean and excitedly says to another: “This is chocolate!” she is not necessarily overlooking the fact that the bean looks different and is easier to grow. Rather she is focusing on the taste and is using the designation that is relevant to the issue at hand, non-reflectively.

We will find that leading sages of Jewish Law spoke similarly but more responsibly than the speaker in the discussion of the xcellent bean. They read their casuistic sources as decisions that balanced multiple and conflicting binding human concerns[6] – as responses to archetypical situations of varied human needs. It was the range of those wide-ranging internalized laws-as-stories (which implicitly recognize multiple and conflicting human concerns) that the sages applied to their conditions in an attempt to balance a contemporaneous range of similar conflicting human needs.[7] These sages did not misread or distort precedent texts. Rather, they applied the insights of legal texts to contemporary conditions[8] and spoke those insights via the vocabulary of those texts.

To summarize: we will see that these sages’ decisions were responses that arose from an evaluation of human needs that the sages found in the authoritative legal texts and not in spite of those authoritative texts. We will see that they read authoritative sources as setting out particular judgments that must repeatedly be rebalanced appropriately under changed conditions.[9] They did not reject earlier laws that were not currently suitable as much as determine the contemporary suitable law in light of the internalized wisdom of earlier law.[10] They addressed their contemporary situations both by thinking via earlier norms that they had already internalized[11] and by addressing the contemporary situations via the earlier norms themselves;[12] if they were to have discussed chocolate under the rubric of the religious laws of culinary pleasure they would have simply subsumed xcellent under chocolate[13] when relevant, even as their discussions of the various related issues – so firmly channeled into bites – would reflect the complexity of both the fact situation and the ethical situation.[14] More importantly, they did not let the law’s semantic wording blind them to its implicit narrative and thus its full implication and application both for new situations that could not be subsumed and for situations which would seemingly fall under its semantic or logico-conceptual purview but which the lawmaker would not have meant address with such law. In short and in legal-theory terms, one might say that these wise interpreters viewed themselves as interpretive-legislators.

[1] By this, I mean those who approached Common Law as a source of moral insight, as argued by Sir Edward Coke (Institutes I [1628] s.138). Suzanne Last Stone has argued thus orally.

[2] Cited in Sefer Ha-Itur # 227. For another example from Rav Hai Gaon see Groner 1988, 75 n.5. (In a footnote to the article, Groner noted that Rav Hai Gaon generally defined words by context, but Groner did not cite additional sources such as this one.)

[3] This is a term introduced by Bernard Jackson, who will be discused below.

[4] This is an inescapable human phenomenon (Coppée 1857, 147).

[5] This is an inescapable human phenomenon (Coppée 1857, 147). For more on “restricted code”, see Bernstein 1971, 1:108f., 123-137; Jackson 1995, 93-95.

[6] Cf. Rackman 1961, 132.

[7] One could say that these sages both realized that they could not avoid the responsibility of evaluating the policy soundness of a decision under their current circumstances and were humble enough to realize that inasmuch as no person “could imagine anew all the probable situations with which he might be confronted and devise his own rules to meet them; … the past is ineluctable as a point of departure for the actions even of original minds” (Shils 1981, 198).

[8] Cf. Waxman 1991, 15.

[9] They did not merely understand that a statute or rule merely “state[s] … a prima facie ‘ought,’ pointing to a reason for an action, not an ‘ought all things considered’” (Raz 1972, 836). Rather, they understood that each statute is itself a story or part of a story and inherently balances conflicting “oughts”.

[10] Contra Panken 2005, xvii. Thus history is not determinative of their positions.

[11] In other words, they obviously did analyze intent and function of a law and consider its application to changing circumstances because all comparisons – even subconcsious ones – involve those steps. However, they did not do so by conceptualizing the concepts of intent, function and changing circumstances as much as by their grounded, lived, sense of these considerations that led them to preceive that situation x (now) is sufficiently similar to situation y (then).

[12] They, therefore did not fail to articulate their hunches and feelings in judicial logic language (Frank 1950, 172-173) but rather spoke those implicitly by engaging in law as comparisons instead of as logical deductions.

[13] This claim is made in full cognizance of the differences between particular speech methodologies employed at different periods and cultural locales in the history of Jewish Law (Lorberbaum 2003, 122-123).

[14] We will see in this dissertation that such is indeed possible (contra Kennedy 1991, 350).

Moral and Religious Pragmatism

2012-05-31T07:54:00.002-07:00

I am convinced that the ultimate goal of study is to return to or even expand traditional thinking – thinking which instead of being conservative/reactionary or progressive/radical is culturally (or inter-culturally) sagacious. Even the most Orthodox of any faith or ideology should agree with the Provencal sage, R. Menachem ben Shlomo Meiri (1249 – 1315), who argued that any moral religious system is preferable to the lack of such (Beit haBehira Pesahim 49b). Or earlier, R. Shmuel HaNagid (b.993) exhorted Moslems not to abandon the path of His prophet Mohammed (Harkavy 1902, 49 n.2).

THINKING CONTEXTUALLY, NOT IDEOLOGICALLY

2012-05-07T22:07:00.003-07:00

The point of asking how we can achieve one ideal at least expense to another is made in the following Midrash in which the Divine commands a theoretically ideal action from the perspective of a specific concern but accepts that a human was better at balancing the range of concerns that must be brought to bear in the real world:

Numbers Rabah (Vilna) 19:32	במדבר רבה (וילנא) פרשה יט אות לג
This is one of three things said by Moses to the Holy One, blessed be He, to which the latter replied: 'You have taught Me something!’… When the Holy One, blessed be He, said to [Moses]: ‘Make war with Sihon. Even if he does not seek to make [war] with you, you must provoke war with him’…{based on Deut. 2:24} Moses did not do so, but… sent messengers [to Heshbon, king of Sihon, with words of peace]. {based on Numbers 21:21-22} The Holy One, blessed be He, said to him ‘By your life! I [hereby] cancel My words and adopt yours’; as it is written: ‘When you come near to a city to fight against it, proclaim peace unto it’ (Deut. 20:10).		זה אחד מג' דברים שאמר משה לפני הקב"ה וא"ל למדתני... כשאמר לו הקב"ה עשה מלחמה עם סיחון אפילו הוא אינו מבקש לעשות עמך את תתגר בו מלחמה... ומשה לא עשה כן אלא... שלח מלאכים [אל חשבון מלך סיחון דברי שלום] א"ל הקב"ה חייך שאני מבטל דברי ומקיים דבריך שנא' (שם /דברים/ כ) כי תקרב אל עיר להלחם עליה וקראת אליה לשלום

However, as I have written and illustrated elsewhere - the context must include all the people involved - both in the present and in the future. That means, in part, that the decisor must be someone is who is not noge'a ba-davar = stands to gain for him or herself in any way (whether short term pleasure or long term interests).

The Avoidance of Negative Experiences III

2012-05-07T02:25:00.000-07:00

(third post)

General Statements that the Ethical Takes Precedence over the Holy

In the course of explaining hukkim, we have seen that Torah culture is defined by its goal of Goodness and its pursuit of holiness and dignity in order to serve that goal, not to supersede that goal. In the words of Maimonides:

Cleaning garments, washing the body, and removal of dirt also constitute one of the purposes of this Law. But this comes after the purifications of the actions and the purification of the heart from polluting opinions and polluting moral qualities (Guide 3:33, trans. Pines). [1]

Similarly, Maimonides explained that the reason that critical religious practices do not take precedence over human life is because the laws of Torah are intended to bring mercy, kindness, and peace to the world (Laws of Shabbat 2:3). In the simple words of R. Juda Loeb (MaHaRa”L mi-Prague, d.1609) avoiding disgusting behavior is holy behavior (Gur Arye, Leviticus 20:8) but avoiding evil yet alluring behavior is even holier behavior (Gur Arye, Exodus 22:32). In the even simpler words of the tanna, R. Pinhas b. Yair (2^nd century CE), the process of character development merely begins with personal cleanliness (m. Sota 9:15).

The greatest twentieth century analytical scholar of Jewish Law, R. Shimon Shkop (Poland and Belarus, 1860-1940), stated the primacy of the ethical demand most forcefully. He argued (in his introduction to Sha’arei Yosher) that the Levitical demand to imitate God and be holy (Leviticus 19:1-2) is actually a demand to dedicate all of one’s actions to the public welfare - including those personal selfish actions that one must perform in order to allow herself to function well and to thus serve the public successfully.[2] R. Shkop argued that this is the only way we can truly imitate God in His holiness; mere asceticism, merely refraining from the pleasures of life, is not truly imitatio Dei inasmuch as the Eternal has no desires from which He refrains. Although R. Shkop’s read of holiness may sound modernist (cf. Rynhold and Harris 2008, 260-269), it actually fits well with the fact that the short Code of Leviticus to which he refers (Leviticus 19:1-37)[3] opens with a demand to be holy, and closes each of its ethical directives with the words “I am the Eternal”.[4]

R. Shkop’s reading redirects our attention to the fact that according to this Biblical Code, other legal and prophetic sections of Tanakh, and leading Jewish sages through the ages, the point of all these norms is for humans to connect to God in their ethical behavior. As we have seen repeatedly in these chapters, the Jewish tradition has been understood to call upon humans to act Go[o]dly and experience Go[o]dliness as individuals and a people. It is because this behavior and experience is lost or challenged to varying degrees when individuals commit the unethical, perform the disgusting, or experience the unsettling[5] that such actions are forbidden or curtailed.

CONCLUSION

This understanding that there is a general Biblical proscription or meta-proscription against disgusting behavior led Amoraim to weigh actions by their degree of contemporary repugnance instead of by their formal classifications as Biblical prescriptions.[6] For example, the Amoraim all agreed that one is permitted to avoid performing a Biblical commandment or to commit a Rabbinic sin in order to preserve personal dignity; the Amoraim only debated whether one may also commit a Biblical sin in order to preserve personal dignity (R. Zeira in y. Nazir 7:1; anonymous debate in y. Kilayim 9:1; Rav and Rav bar Sheva in b. Berakhot 19b).[7] In fact, one could argue – as did the renowned Hungarian Torah scholar, R. Moshe Shmuel Glasner (1856-1924)[8] – that as regards a person who faces not mere indignity but rather severe shame, all Amoraim would agree that avoiding shameful behavior overrides Biblical religious sins.

[1] In greater elaboration: “When only the desires are followed, as is done by the ignorant… cares and sorrows multiply, mutual envy, hatred, and strife aiming at taking away what the other has, multiply. All this comes about because the ignoramus regards pleasure alone as the end to be sought for its own sake. Therefore God, may His name be held sublime… forbids everything that leads to lusts and mere pleasure. This is an important purpose of the Law. Similarly one of the intentions of the Law is purity and sanctification; I mean by this renouncing and avoiding sexual intercourse and causing it to be as infrequent as possible. …And just as the Law designates obedience to these commandments as sanctity and purity, it also designates transgression of these commandments and the perpetration of evil actions as impurity.” (Guide of the Perplexed [trans. Pines], 3:33)

[2] On the role of acknowledging the validity of humans partially meeting their selfish needs (until they overcome them) see: “To shove our impulses underground by the taboo is to force them to virulent and uncontrolled expression. To follow impulse wherever it leads means the satisfaction of one impulse at the expense of all the others. The glutton and the rake can satisfy only their gluttonous and rakish impulses, and that isn't enough for happiness. What civilized men aim at is neither whim nor taboo, but a frank recognition of desire, disciplined by a knowledge of what is possible, and ordered by the conscious purpose of their lives.” (Lippmann 1914)

[3] This miniature code has been recognized as a code and commented upon by various Geonim and Rishonim including Rav Saadya Gaon and Ramban. For further discussion of its literary contours, see critical Biblical scholarship on the Holiness Code such as Paton 1897 and Krumrei 1985.

[4] This point was already noted by the Tannaim (Sifra Kedoshim, beginning of parsha 2; Sifra Bahar 3:4; baraita b. Kiddushin 32b).

[5] The only explanation I can offer for the poor scholarship preceding this chapter’s psychological definition of tum’a is that “disgust has elicited little attention in any of the disciplines that claim an interest in the emotions: psychology, philosophy [and] anthropology. It is not hard to guess the likely reason. The problem is its lack of decorum…. To study disgust is to risk contamination. Jokes about his or her unwholesome interests soon reach the disgust researcher” (Miller 1997, 5).

[6] See Yere’im #73; Rabbeinu Yona’s Shaarei Teshuva 3:93; Novella of Ritva Makkot 16b; and Beit Yosef YD 116.

[7] For more on this topic, see: ריינס תש"י, 161 and בלידשטיין תשמ"ב-תשמ"ג, 127.

[8] Dor Revi’I al Masekhet Hullin, introduction #2. [Unfortunately the critical quote for this point is not translated in Elman 1991, 63-69.]

The Avoidance of Negative Experiences II

2012-05-02T06:21:00.002-07:00

(second post)

The Ethical has been Considered More Important than the Holy

Until this point, we have seen that hukkim are as readily explicable as the other ritual Halakhot. They are about maintaining personal dignity. We will now test that explanation by examining whether such norms can be overridden by an ethical demand. To be specific, we will examine the law of modesty during sex.

Holy Sex versus Ethical Sex

In the Babylonian Talmud, the main passage discussing the avoidance of sex during the day (b. Nidda 17a) cites the “ascetic” opinion of the Babylonian amora, Rav Huna (3^rd century CE), who follows Leviticus and the Israeli rabbinic tradition in viewing sex during the day as unholy. The discussion then continues with a citation of the later amora, Rava (270-350 CE), who focused the issue away from a restriction on the time of day to a demand for modest sex in darkness. Up to this point the discussion can be read as being about holiness through restrain and dignity. However, the Talmudic passage then cites a different 3^rd century CE Babylonian amora who forbids sex during the day for ethical reasons. R. Huna’s contemporary, R. Hisda, paralleled R. Huna in forbidding sex during the day, but he raised an ethical argument that a man should not have sex with his wife in the day lest the man violate the Biblical commandment to “Love your fellow as yourself” (Leviticus 19:18), lest the wife be emotionally hurt by such conduct. This conduct could hurt in several ways in a culture of modest dress. For example, women can feel degraded if they are treated as visually owned sexual objects instead of as dignified people (b. Yevamot 63a) or if they are treated as sexual objects instead of as self-occupied respected mistresses of the house (b. Bava Metzia 59a). Similarly, Rava’s contemporary, Abbaye, paralleled Rava’s position by focusing on the issue of light instead of on the question of day or night. However, Abbaye explained in most basic ethical terms that a woman could be concerned that her husband might come to see that she is not physically flawless.

This second concern with the ethical is in fact so significant that the Talmudic passage closes the discussion by modifying the rules against having sex during the day. It cites a source that praises those people who do in fact have sex during the day, in order that the marital bond should not be lost due to tiredness at night. It then explains this anomalous source by pointing out that limiting sex to night can lead to a loss of the marital bond due to fatigue. As Rashi (ad locum) explains it, limiting sex to the night could cause the husband to come to view sex with his wife as an annoying burden instead of viewing it as a shared sensual experience of relationship.[1] In fact, the Talmud’s editors structured the material to make an ethical argument: The passage begins with R. Hisda’s ethical concern (to forbid sex during the day), continues with R. Huna’s holiness concern (to forbid sex during the day), limits both positions to be about not having sex in the light as opposed to not during the day, and concludes with praise for the ethical position of the House of Munbaz who had sex during the day due to the considerations of a loving relationship. To wit, the passage indicates that the desire for holiness in one’s biological activities may be added to ethics and reinforce them, but it must never override ethical considerations.[2]

This Talmudic passage’s focus on the ethical finds culmination in a halakhic ruling by the leading medieval Provencal Halakhic sage, R. Avraham ben Dovid (RAVa”D, Posquires - d. 1197) that was codified in later generations by R. Yaakov b. Asher (Cologne–Toledo, 1269–1343), R. Yosef Caro (1488-1575), and others. These rabbis ruled that the ideal, holiest, conscious motivation for a man to have sex – in spite of the obvious necessity for his own arousal without which intercourse would not be possible – is for the sake of the other person, for the sake of his wife and for the sake of his future God-fearing children (Tur OH 240 and Shulhan Arukh EH 25:2).

[1] . It is also possible that the stama means that the man will become disgusting to the wife in his tired performance and possibly in falling asleep after sex. After all, Babylonian rabbis followed their Sassanian counterparts in being concerned about the demon that is drawn to both death and to semen released, especially at night, (Elman 2007, 146-149); in other words, they were concerned about male tiredness following and even during sex – in contrast to the ideal valorization of the sexually energetic man who has a vigorous sexual relationship with his wife. Thus the same R. Hisda who called for holiness by abstaining from sex during the day, still called for sex in which a husband engages in serious foreplay and clitoral stimulation until both parties crave intercourse (b. Shabbat 140b [Note: Rashi and Boyarin translate “pearl” as breast and “furnace” as the vulva, but a simpler translation would be clitoris and vagina respectively]).

[2] One might find a direct Biblical parallel for prioritizing the ethical over the aesthetic if one understands that the Torah’s opposition to violent unaesthetic behavior such as modifying the body with tattoos “yields to” the “hygienic (hence) ethical concern” of circumcision (Goodman 1996, 234). However, I understand the Biblical opposition to tattoos and preference for circumcision differently.

The Avoidance of Negative Experiences

2012-04-23T06:41:00.000-07:00

(First Post)

Clean Hands versus Dirty Hands

In my future book, I discuss the Biblical and rabbinic desire to control or even avoid negative experiences -- to avoid impurity. In this post, instead of reviewing all the halakhot of purity and impurity, we will turn to discuss the lowest level of rabbinic impurity, the impurity of hands. Famously, the Pharisees[1] and later the Tannaim, expected civilized people to clean their hands before eating (m. Hagiga 2:5). Tannaitically that meant to wash the hands twice in order to remove dirty material found on the hands and to wipe them afterward in order to completely clean them of the dirt and dirty water left on one’s hands (m. Yadayim 2:2-3 and t. Yadayim 1:3).

Since the issue is cleanliness, some Tannaim allowed one who eats a small item to place it in a cloth (m. Sukka 2:5). That way not only will one’s dirty hands not touch the food (cf. baraita of Beit Menashe in b. Yoma 77b=Hullin 107b) but one’s unwashed hands and food will also not become moistly dirty, “muddy” (as we will discuss shortly). Similarly, since many poorer peoples in the Hellenist world did not waste their fetched and drawn water on washing hands before eating, the Tannaim did not demand that every Jew wash hands for every-day food (m. Bikkurim 2:1 and more explicit Bavli parallel). In fact, some Babylonian Amoraim even opposed the haughtiness of washing hands for mere snacks (R. Nahman in b. Hagiga 18b). As an Israeli Amora expressed it, it is only the snack that is eaten wet that requires clean hands (R. Eleazar in the name of R. Oshaya in b. Pesahim 115a) – presumably in order to avoid having the food get “muddy”.

Similarly to the Tannaim and Amoraim, Medieval German Judaism mandated that people wash their hands not only from contact with objects and events associated with death and mortality but also from dirt. Its rabbis even posited that one who doesn’t regulate his behavior to be clean finally forgets the Torah he has learned and can lose his sanity or self-control, presumably due to his loss of self-dignity or even fall into nihilism (Mahzor Vitry #524; Tashbetz Katan #276).[2] This claim persisted.[3]

In short: an examination of both the most severe and most lenient types of impurity show that they are negative emotional states which the Biblical and rabbinic norms try to avoid or at least address, that there is a general Biblical proscription or meta-proscription against disgusting behavior. As the tanna, R. Pinhas b. Yair, stated: the process of character development begins with personal cleanliness (m. Sota 9:15).

The Framing of Biological Needs

This approach, which calls for behaving in a self-controlled fashion as regards cleanliness, self-dignity and human death - extends into the biological activities that humans share with animals: ingestion, expurgation and copulation. Thus, the sages also called for eating with manners. At the very least, Tannaim expected all Jews to minimally sanctify their food consumption by not simply grabbing the food and eating it, by first blessing God. One who ate without pausing to bless was denigrated as having abused Temple property; the earth and its goodness were to be perceived as holy property that one is expected to use in holiness (t. Berakhot 4:1). Beyond that, there is a tradition that R. Akiva directed his students to politely tear off their part of the vegetable with one hand and to hold the part that is left behind in place with the mere heel of their hand instead of their whole hand when eating a vegetable from a common dish (Tractate Derekh Eretz, Pirkei Ben Azzai 5:2 ??check alternative versions??).[4] Similarly, Eretz-Israel sages directed a person both to not hold too large a piece of food in his hands from which he continuously chews and to not drink too much too quickly (Tractate Derekh Eretz, Pirkei Ben Azzai 4:5).[5] In a further step, the Israeli Amora R. Isaac (3^rd century CE) used to dignify the cultural norm of eating with one’s hands. He would indicate with his clean fingers the ten mitzvoth that had been fulfilled in preparing the food before he ate with his hands (y. Hala 1:6).[6]

In parallel to these rules of consumption, there are also Talmudic rules about how one should expurgate and how one should copulate. As regards expurgation, one is expected to attend to personal bodily functions while partially clothed as opposed to as a naked animal releasing its droppings, [7] and R. Tanhum b. Hanilai did in fact exhort to such modesty by pointing out its practical benefits (b. Berakhot 62a). As regards copulation, Leviticus limits excessive priestly indulgence in sex by impurifying for a whole day the couple that had sex at night (Leviticus 15:16,18);[8] the Israeli Amora, R. Yohanan, declared sex during the daytime – when one can be productive – to be degrading (Bereishit Rabba 64:8); and several Amoraim called upon fellow sages to limit sex to once per week, to the Friday night of rest (b. Ketubot 62a = b. Bava Kamma 82a) when the man should indeed consume an aphrodisiac (y. Megilla 4:1; b. Bava Kamma 82a).[9] In conjunction, the Amora R. Dimmi (b. Bekhorot 8a) called for sex to be framed as a human relational act by being engaged in face to face as an act between fellow humans who have contact with the Divine. Face to face is clearly more respectful [especially on a regular basis].[10]

[1] Mark 7:1-23 = Matthew 15:1-20.

[2] Although we have explained Ashkenazic practices, Maimonides unknowingly condemned some of them as Sabian foolishness in Guide of the Perplexed 3:47. As he explained there: Although the purpose of such rules is “to keep men away from disgusting things”, these rules should not include “unpleasant restrictions” and “burdensome usages”. Nonetheless, Maimonides’ son, R. Abraham b. Rambam (Sefer Ha-Maspik Le-Ovdei Hashem, Trait of Humility [p.70]), stated independently but in agreement with his contemporary twelfth century sage, the French‑German R. Eliezer from Metz (Sefer Yere’im #434), that although expensive clothing makes a person haughty being dirty or disgusting degrades and impurifies a person.

[3] It made its way to the Land of Israel and to the Jews exiled from Spain (BY citing his teacher ?? in my source sheets). It was repeated in the offshoots of Ashkenazic Jewry by diverse rabbinic figures, including the Hasidic R. Nahman of Bretzlav, 1772-1810 (Likutei MoHaRa”N #29; Likutei Halakhot, Tzitzit #1; Sikhot ha-Ra”N #100).

[4] For a less strict version, which merely forbids biting out one’s portion from the shared dish, see the citation in Mishna Berura 170:25.

[5] The definition of quickly, without control, may very well depend on the specific food or drink and on the specific person’s caloric and liquid needs. See the response of R. Yishmael b. R. Yossi in b. Pesahim 86b.

[6] Additionally: the idea that there are ten obligations, both to our fellow humans and to God, that we must and have fulfilled before filling our own bellies also raises our conduct to more than animalistic.

[7] This is especially so in cultures in which one squatted instead of sitting on a seat (see Josephus, War of the Jews 1471-49 and the description of “covering feet” in m. Yoma 3:2), although this rule was not necessarily limited to those situations; it probably included situations in which one used a toilet seat inasmuch as such were continuously found among some people in Israel (cf. m. Tamid 1:1, t. Para 12:17) since the Iron Age (Magness 2002, 107).

[8] Although these laws are understood by many to apply to all Israelites (eg. Halberstam 2010, 20-22), these laws only make sense as directives to priests. While we do find that the impurity of carrion consumption is to be avoided and the impurity from contact with death is to be overcome, there is no directive here to overcome sexual impurity or to avoid it. There is simply a description of impurity. Thus, this descriptive statement would be relevant only to people for whom the attempt to avoid impurity is a directive.

[9] As the Zohar elaborated later, the righteous couple should reframe sex as holy by limiting it to and engaging in it on the peaceful Shabbat when a Jew and the Divine unite (תיקוני זוהר תקונא שתיתאה, כב ע"ב; תיקוני זוהר תקונא עשרין וחד ועשרין, סא ע"א), when the parties are less harried and can reclaim their mutual affection (תיקוני זוהר תקונא עשרין וחד ועשרין, נז ע"א).

[10] This injunction, which is repeated in the Zohar, is clearly not a weirdly specific instruction (contra Beitchman 1998, 33) but rather a call for mutual dignity in sex.

A Quick Thought

2012-04-12T05:23:00.002-07:00

This is a follow-up to the last posting:
The consensus claim of the leading pre-modernity sages, across ideological camps, was that sins are actions or behaviors that explicably hurt people,[1] that “there is a reason for every precept” (Guide to the Perplexed 3:26) – whether it is directed to the needs of the individual or of society.[2] As Rambam said, the only difference between the precepts in terms of explicability is that those “commandments whose object is generally evident are called ‘judgements’ (mishpatim); those whose object is generally not clear are called ‘ordinances’ (chukim)” (Guide to the Perplexed 3:26).

[1] For example, see R. Moshe Nahmanides’ (Catalonia 1194 – 1270) commentary to Deuteronomy 22:6 and R. Shlomo Ephraim b. Aaron Luntschitz’s (Poland–Prague, 1550–1619) Keli Yakar commentary to Deuteronomy 30:11-14. This point has also been acknowledged by traditional Jews in some penitential prayers; see, for example, the first penitential prayer of the set that is recited on the eve of Rosh Hashana according to the various European customs.

[2] Guide to the Perplexed 3:26 and Mishne Torah, Principles of the Torah 4:13.

2012-03-12T17:04:00.001-07:00

Halakha in Modernity

In modern times, there has been a defensive Modern Orthodox transformation of all of ritual Halakha into Divine fiat. Some have argued academically that a rigorous analysis of Talmudic sources reveals that the rabbis interpreted ritual norms restrictively because they did not understand those norms and so “had little choice” (Spero 1983, 52-53). Most, however, have adopted the formal method developed by R. Hayyim Soloveitchik of Brisk (1853-1918). In the words of an American doyen of the ideology of Jewish Law as purely formal law, R. Dr. J. David Bleich:

Other than to the extent that historical context is explicitly referenced in a given teshuva, or to the extent that such context is implied by the manner in which facts are presented, historical context is irrelevant. If there is any single factor that distinguishes talmidei hakhamim from “scholars,” it is that the… former regard halakha as objective, eternal and immutable.”[1]

Instead of seeing the human concerns that a given law is balancing or at least addressing, this doyen treats words or categories as objectively real concepts that have no explicability beyond the logical concept. Accordingly, he argued that “to formulate the hakirah [the analysis] is to recognize the answer” (Bleich 2006, 98).

This claim of inexplicability has met several modern needs:

As discussed in my dissertation (V-A), it served to defend Jewish Law against the hegemonic challenges of the (regionally varied) Enlightenment to the values of traditional Jewish culture. It did so by transforming Jewish law into a purely logical structure of precise terminological and conceptual definition rather than an attempted balance of human needs.
It also allowed Halakhically observant Jews to identify themselves as participants in the hegemonic liberal Western culture for which particularistic “religious reasoning is categorized as the product of special revelation rather than universal rationality,”[2] a reasoning that can be tolerated because it recognizes that its claims are based on a private epistemological foundation and so has no right to try to impose its practices, values, and reasoning on others.[3]
Most importantly, this claim of inexplicability helped observant Jews protect Halakhic norms from the dissipation that a subgroup’s norms would face if they were unpacked in front of “the pluralizing, relativizing forces of modernity” (Aydin and Colak 2004, 224).

However, the fact that some Jews at some times have had an ideological need to prioritize their loyalty to God’s inexplicable laws over their loyalty to a substantive tradition, does not mean that traditionalist rabbinic sages of the law refrained from understanding the goals of the various Judaic norms. Not only have both both religious approaches long existed in Judaism,[4] but more importantly, the examples I have examined elsewhere illustrated that whenever the choice of how to practice a given norm had serious ramifications on people’s lives, the rabbinic legal sages always related to the substantive human concerns underlying that norm.

A Problem With the Logico-Conceptual Approach

In this modern model, Jewish law is formally analytical; it is treated as a law whose logical concepts can be discovered but whose purpose is inexplicable. In other words, it is treated as inexplicable concepts. For a light example: R. Bleich pointed out that once one notices that the Saturday-night blessing over ending Shabbat is both added to and recited independently of the evening prayer, one realizes that it is not an evening blessing per se but rather a blessing to end Shabbat, which is “associate[d]… with the first shemoneh esreh [prescribed prayer] recited after the conclusion of Shabbat” (Bleich 2006, 98). On that basis, R. Bleich argued that since the blessing over ending Shabbat is not an evening blessing per se, R. Hayyim Brisk was necessarily correct in concluding that one who missed the evening prayer and prays an additional prayer in the morning in lieu of the missed evening prayer should recite the Saturday-night blessing over ending Shabbat in the first prescribed prayer that he does recite and not in the second that is in lieu of the missed evening prayer (ibid). He rejected as shallow positivists those who ruled that the blessing should be recited in the second prayer that is in lieu of the missed evening prayer (ibid n.16).

If one treats norms as logical expressions of formal concepts, R. Bleich is correct. If the requirement to bless God over ending Shabbat is not part and parcel of the prescribed evening prayer but its own concept, it necessarily should be recited in the first prayer that one prays after Shabbat even if that prayer is a morning prayer. However, once one considers the human context of the law, one notices that the reason that the primary (= Biblical) need to distinguish between Shabbat and the week only applies Saturday night – while the requirement to recite that blessing afterward if it was missed on Saturday night is a secondary (= Rabbinic) need – is because the new morning provides an overriding experiential distinction between Shabbat and the following week. Thus, one could argue that on Sunday morning it is more important to recite the no longer Biblically necessary blessing in the second prayer, the prayer that substitutes for the missed night prayer. This way, one reinforces the norm that the blessing must be recited on Saturday night and cannot be left to the morning. Of course, one could also argue that reciting the blessing in the added prayer is worse because it will inculcate a mistaken notion that the blessing must be recited in a prayer and thus cannot be recited until the morning if one who had prayed at night forgot the blessing during the prayer.

The point is that the conceptual non-contextual approach treats norms as explicable by concepts but treats concepts as inexplicable and context-free. It ignores the fact “that before attempting to translate our data into the rigorous language of symbols, it is above all things necessary to ascertain the intended import of the words we are using” (Boole 1854, 60).

[1] Lamm 2007.

[2] Anand 2004, 296-297.

[3] For example, see Moses Mendelssohn’s variation of this claim (in Sorkin 1996, 38).

[4] As pointed out by R. Yekusiel Yehuda Halberstam, the Sanz-Klausenberg Rebbe (1905-1994), in Responsa Divrei Yatziv OH #260.

Learning Tanakh

2012-02-08T02:40:00.000-08:00

To those who are not familiar with TaNa”Kh, I want to recommend a relatively easy course of annual study.
· In addition to:
1. following the traditional obligations to both review the Torah (Pentateuch) annually via the weekly sidrot שו"ע או"ח רפה:א, רפה:ה = קמו:ב
2. and reading the holiday-appropriate NaK”h books on holidays (מסכת סופרים יד:א ),
· one can read 2 chapters per day from the rest of Tanakh on the other weekdays, the non-Sabbath (תוספתא מגילה ג:ה, מגילה לב ע"א, משנ"ב תכט:א ) and non-Holiday (קדושין ל ע"א) days.

Discovering G-d

2010-12-07T09:35:00.000-08:00

After years of trying to figure out how to teach the experience of finding G-d (as I have tried to teach the steps of intuitive thinking etc), I have realized one step that works for those who would like to have G-d but are too angry to find such: Forgive people - self and significant others [parent; sibling; spouse; friend] - and at least begin by forgiving humanity in general including oneself and others in general.