Shiur: Tammuz 2019 – Do You Lie About God? The Meaning of Faith and Torah in a Time of Destruction

 

Babylonian Talmud, Yoma 69b:

Rabbi Yehoshua ben Levi said: Why are the Sages of those generations called the members of the Great Assembly? It is because they returned the crown of the Holy One, Blessed be He, to its former glory. How so? Moses came and said in his prayer: “The great, the mighty, and the awesome God” (Deuteronomy 10:17). Jeremiah the prophet came and said: Gentiles, i.e., the minions of Nebuchadnezzar, are carousing in His sanctuary; where is His awesomeness? Therefore, he did not say awesome in his prayer: “The great God, the mighty Lord of Hosts, is His name” (Jeremiah 32:18). Daniel came and said: Gentiles are enslaving His children; where is His might? Therefore he did not say mighty in his prayer: “The great and awesome God” (Daniel 9:4).

The members of the Great Assembly came and said: On the contrary, this is the might of His might, i.e., this is the fullest expression of it, that He conquers His inclination in that He exercises patience toward the wicked. And these acts also express His awesomeness: Were it not for the awesomeness of the Holy One, Blessed be He, how could one people, i.e., the Jewish people, who are alone and hated by the gentile nations, survive among the nations?

The Gemara asks: And the Rabbis, i.e., Jeremiah and Daniel, how could they do this and uproot an ordinance instituted by Moses, the greatest teacher, who instituted the mention of these attributes in prayer? Rabbi Elazar said: They did so because they knew of the Holy One Blessed be He, that He is truthful. Consequently, they did not speak falsely about Him.

 

Additional sources:

Devarim 8:7-10

For the LORD your God is bringing you into a good land, a land with streams and springs and fountains issuing from plain and hill; a land of wheat and barley, of vines, figs, and pomegranates, a land of olive trees and honey; a land where you may eat food without stint, where you will lack nothing; a land whose rocks are iron and from whose hills you can mine copper. When you have eaten your fill, give thanks to the LORD your God for the good land which He has given you.

 

Franz Rosenzweig, “The New Thinking,” 131 – What makes The Star Jewish?

I have received the new thinking in these old words so, in them, have I given it back and passed it on. For a Christian, as I know, words of the New Testament would have come to his lips in­stead of my words, [while] for a pagan, I think, not words from his sa­cred books [would have come to his lips]—for their ascent leads away from the original language of mankind, not to it, like the earthly path of revelation—but perhaps [words] wholly his own. But to me, these [came]. And yet this is, to be sure, a Jewish book: not one that deals with “Jewish things,” for then the books of the Protestant Old Testament scholar would be Jewish books; but rather one for which, to say what it has to say, especially the new thing it has to say, the old Jewish words come. Like things in general, Jewish things have always passed away; yet Jewish words, even when old, share the eternal youth of the word, and if the world is opened up to them, they will renew the world.

 

Babylonian Talmud, Bava Metsia 59b

And this is known as the oven of akhnai. The Gemara asks: What is the relevance of akhnai, a snake, in this context? Rav Yehuda said that Shmuel said: It is characterized in that manner due to the fact that the Rabbis surrounded it with their statements like this snake, which often forms a coil when at rest, and deemed it impure. The Sages taught: On that day, when they discussed this matter, Rabbi Eliezer answered all possible answers in the world to support his opinion, but the Rabbis did not accept his explanations from him.

After failing to convince the Rabbis logically, Rabbi Eliezer said to them: If the halakha is in accordance with my opinion, this carob tree will prove it. The carob tree was uprooted from its place one hundred cubits, and some say four hundred cubits. The Rabbis said to him: One does not cite halakhic proof from the carob tree. Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, the stream will prove it. The water in the stream turned backward and began flowing in the opposite direction. They said to him: One does not cite halakhic proof from a stream.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, the walls of the study hall will prove it. The walls of the study hall leaned inward and began to fall. Rabbi Yehoshua scolded the walls and said to them: If Torah scholars are contending with each other in matters of halakha, what is the nature of your involvement in this dispute? The Gemara relates: The walls did not fall because of the deference due Rabbi Yehoshua, but they did not straighten because of the deference due Rabbi Eliezer, and they still remain leaning.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, Heaven will prove it. A Divine Voice emerged from Heaven and said: Why are you differing with Rabbi Eliezer, as the halakha is in accordance with his opinion in every place that he expresses an opinion?

Rabbi Yehoshua stood on his feet and said: It is written: “It is not in heaven” (Deuteronomy 30:12). The Gemara asks: What is the relevance of the phrase “It is not in heaven” in this context? Rabbi Yirmeya says: Since the Torah was already given at Mount Sinai, we do not regard a Divine Voice, as You already wrote at Mount Sinai, in the Torah: “After a majority to incline” (Exodus 23:2). Since the majority of Rabbis disagreed with Rabbi Eliezer’s opinion, the halakha is not ruled in accordance with his opinion. The Gemara relates: Years after, Rabbi Natan encountered Elijah the prophet and said to him: What did the Holy One, Blessed be He, do at that time, when Rabbi Yehoshua issued his declaration? Elijah said to him: The Holy One, Blessed be He, smiled and said: My children have triumphed over Me; My children have triumphed over Me.

 

Exodus 23:2

You shall neither side with the majority to do wrong—you shall not give perverse testimony in a dispute so as to pervert it in favor of the majority.

לֹֽא־תִהְיֶ֥ה אַחֲרֵֽי־רַבִּ֖ים לְרָעֹ֑ת וְלֹא־תַעֲנֶ֣ה עַל־רִ֗ב לִנְטֹ֛ת אַחֲרֵ֥י רַבִּ֖ים לְהַטֹּֽת.

 

Avot 4:1

Who is mighty? He who subdues his [evil] inclination, as it is said: “He that is slow to anger is better than the mighty; and he that rules his spirit than he that takes a city” (Proverbs 16:3).

 

 

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Nomadic Mitsvot: Brennan Breed’s Reception Theory and Materialist Reasons for the Commandments

Introduction: By Way of Conclusion

Over the past year or so, I’ve written a series of posts dealing with what I called “materialist” approaches to the reasons for the mitsvot, meaning an approach to the commandments that privileges the embodied acts over the theoretical reasons. I started with looking at how the relationship between software and hardware might shape a different way of thinking about the mitsvot. I then explored how slightly different materialist approaches show up in the writings of three modern Jewish thinkers, two recent, one contemporary: Rav Soloveitchik, Rav Shagar, and Rabbi David Silverstein. By way of conclusion, I thought would talk a little about how I got started thinking about this issue.

Several years ago, I listened to a podcast interview with Brennan Breed about his then-new book, “Nomadic Texts: A Theory of Biblical Reception History.” In the interview, he explained a few of the different aspects of his broad new theory of biblical reception history, the full breadth of which I only understood when I read the book itself earlier this year. Biblical reception history is an an area of academic research that studies not the Bible itself, but how the Bible has been received by various groups over time. While I can’t do justice to the entire book here, in what follows I want to lay out the two main points from his argument that inspired my idea of “materialist” approaches to the commandments.

(This section is going to briefly lay out the relevant section of Breed’s argument. For anyone not interested, feel free to skip to the next section, which should make sense even without this background.)

Let’s Get Technical: Beyond Audience and Intent

As Breed discusses, two of the most popular ways of defining the “meaning” of a text are based on authorial intent and the original audience. The former approach asserts that the text means what an author intended it to mean. Thus, what we really do when we read is extrapolate the author’s intent from the words that she wrote. The author expresses herself in text, and we work backwards from there. The latter approach asserts that the text means what it was understood to mean by its original audience. What we really do when we read, therefore, is determine what the original audience understood from reading the same text. We try and get outside our own context and perspective and adopt the context and perspective of the original audience.

These two approaches can certainly lead to similar, or even identical, understandings of a given text, but they can also lead to different understandings if, for example, an author is misunderstood by her readers. One example of this might be J. R. R. Tolkien, who claimed that his The Lord of the Rings was not a Christian allegory, despite many readers understanding it as exactly that. Of course, there is a huge variety of approaches beyond just these two, as well as approaches that combine them. It can also be hard to separate them to begin with, as presumably the author took her audience and its context into account when writing the text. When it comes to texts we take to be divinely authored, questions of author and audience become more complex.

Breed attacks both of these approaches, based on a fundamental re-evaluation of what texts are supposed to do, why we even write things to begin with. As Breed compellingly argues, the point of writing something is to enable it to move from the author’s original context to another context. Writing creates permanence whereas spoken words disappear as soon as they are said. Oral conversation happens face-to-face, and it allows the author to express her intent to a specific audience, with a shared context to avoid confusion about the meaning of her words. If she writes a text, however, it will be read by an audience outside her immediate context, who may interpret it radically differently from her intent. Moreover, it could be read by an entirely different audience than the author had in mind; letters can be intercepted in a way that in-person conversation simply cannot. As Breed says,

Written signs are not only repeatable; they are also durable. That is, a written text remains long after its context of production has passed away. Durability has long been noted as a productive feature of writing: writers write things down precisely so that readers can read them outside the situational context of writing. […] In other words, writing is useful precisely because it does not lose its readability when it is transported elsewhere and read at another time, even when it is radically separated from its context of production. (103)

As a result of this, “all texts continue to find new contexts regardless of writerly, readerly, and scholarly attempts to pin them down” (104). This idea challenges the both the authorial intent model and the original audience model for determining a text’s meaning. If the author’s text is going to be read by people outside her immediate context, and potentially by people she couldn’t imagine in contexts she couldn’t imagine, then her intent is going to get garbled along the way, to say the least. Meanwhile, the permanence of a text means that it will almost certainly be read by more than just the one original audience. Both the authorial intent and original audience models may therefore be much less significant than many people think.

In place of these approaches, Breed puts forth his own, novel approach to thinking about the meaning of a text (based significantly on the works of French theorist Gilles Deleuze).

Following Gilles Deleuze’s lead, I propose that biblical texts are not objects but are instead objectiles, object-projectiles, that must be studied as something for which movement and variation is a necessary quality and thus for whom any static identity is an always contingent predicate. (116-117)

Texts, Breed claims, tear through history like bullets. And, like bullets, it matters a lot less why they were set loose than what happens after that point. The shooter’s intent matters a lot less than the actual effect of the shooting. Similarly, an author’s intent matters a lot less than how her text affects the world. J. K. Rowling likely could never have imagined what Harry Potter would mean when she first dreamed it up. Reducing its meaning to her intent would mean missing out on everything that followed.

The picture that Breed develops is one in which “drift is an essential characteristic of text itself” (109, emphasis in the original). Texts are inherently opaque, carrying no meaning of their own. The unique nature of each opaque object will inspire unique meanings and responses in each new context it enters. Thus, “instead of asking what the correct context is in which to read a text, one might ask in what ways a particular context reshapes the reading of the text” (130). We can’t know what the text means inherently, but we can know what it means in each different context. “When we look at how a text produces meaning in various settings it tells us more, not less, about the nature of that text” (131). We can look at all the different meanings a text has in all the different contexts it enters, and see what patterns emerge. This will enable us to map the capacities inherent in the text, the potential meanings it inherently bears. The two ideas that we have seen, the rejection of the author’s intent and the rejection of an original audience, thus combine to make the text what Breed calls “nomadic.”

Nomadic Mitsvot

I haven’t laid out Breed’s argument in full, and I don’t really even want to argue for the small part that I have laid out. What interests me is the value this discussion might have for Judaism. I think that taking these two ideas, the rejection of the author’s intent and the rejection of an original audience, and introducing them into the discourse around taamei hamitsvot, reasons for the commandments, can help solve a critical problem for contemporary Jews.

One of the blights of our era is our historical awareness. We don’t just have a long and colorful history, we are also painfully aware of every step of it. This has many benefits, but it also forces us to confront the contingency of each moment in history; nothing is absolute, because everything is a result of historical conditioning. We can no longer say “Judaism says” with full confidence, because we know that Judaism has said many different things at many different moments in its history. When it comes to the discussion of reasons for the commandments, we are too aware of all the different reasons that have been put forward for any given commandment. Even if we are willing to write off broad swaths of the reasons put forward (for example, anything that does or doesn’t include Kabbalistic ideas), we could never narrow the field to the point where we have exactly the same amount of reasons as we do commandments. Even in just the Torah itself, many commandments have multiple reasons (perhaps most famously, Shabbat has different reasons in Exodus 20 and Deuteronomy 5, not to mention in the rest of its biblical appearances). Moreover, the simple fact that so many important figures from the tradition disagreed over the reason for each commandment makes it hard to really confidently affirm any one opinion over any other.

If we affirm Breed’s two principles that I laid out above, if we see the mitsvot as “nomadic,” then I think we can avoid this problem. This is essentially what I have tried to show with my posts on Rav Soloveitchik, Rav Shagar, and Rabbi David Silverstein. In The Halakhic Mind, Rav Soloveitchik argues that the reason for a commandment should not be identified with some idea that came before it, for which it was commanded, but with the subjective experience it inspires in one who performs it. Of course, he seems to suggest that there is one correct subjective effect each command will inspire, so he lacks the second element of my model. For that, I turned to Rav Shagar, whose derashot on Hanukkah both frame the commandments as opaque, meaningless objects and suggest that the reason for any mitsvot should be understood in terms of the meaning of performing the commandment, rather than the reason for the commandment itself. The act of performing is the locus of meaning, rather than the mitsvah itself, and it will necessarily differ from person to person and from historical context to historical context. This could combine with Rav Soloveitchik’s approach to let us talk about the mitsvot as “nomadic,” in Breed’s language. All that is left to do is map out the different possibilities each mitsvah bears within it, as manifested on its journey through history. A bold step in that direction is taken by Rabbi David Silverstein in his Jewish Law as a Journey which discusses the reasons for many commandments by exploring what those commandments have meant throughout history. He never broaches the question of what God’s reason for any given mitsvah might be, instead simply focusing on what different Jewish texts have said about it throughout history. The next step would be highlighting the broad patters in order to map the nomadic paths of various mitsvot, the specific meanings that have repeatedly generated throughout their histories. I can only hope someone will take this project up in the future.

As a Hammer Smashes Rock: Rethinking Divine Intent

Before I bring this concluding post to an end, I should broach more directly a topic I have so far discussed only briefly, in the post on Jewish Law as a Journey: how this approach squares with divine intent. It’s a lot harder to talk about “the death of the author,” about disregarding authorial intent, when that author is God. However, I would argue that this actually presents an opportunity for rethinking divine intent, specifically, for thinking about how divine authorial intent might differ from human authorial intent.

The problem with human authorial intent as I laid it out above is that the author can never predict in advance where their text will go and what it will mean there. She cannot know what her text will mean or to whom it will mean it. Limiting the meaning of the text to her intent is therefore very narrowly restrictive and obscures the reality of the text rather than clarifying it.

Whether or not you accept that argument in the context of a human author, it seems problematic to simply copy-and-paste it into the context of a divine author. The challenge to authorial intent is essentially based on the limits of human knowledge; the human author can never know all the different contexts and meanings of her work. However, with a divine author, there is at least the possibility of omniscience, of the idea that God knows everything, even the future. This is obviously one of the great theological debates, one I don’t intend to resolve here, but the possibility is at the very least available. We could thus claim that the divine authorial intent is not one specific meaning of the Torah text, but each and every meaning that it will pick up throughout its history.

Notably, this seems to be the idea behind one traditional reading of Jeremiah 23:29, “Behold my word is like fire, saith the Lord, like a hammer that shatters rock.” This verse (which has its own history of different meanings and contexts), is taken by many to mean that the divine word, as realized in the scriptural texts of the Jewish canon, can and does bear a multiplicity of meanings (See, for example, Rashi’s comment on Exodus 6:9). The image of the divine word as a hammer shattering a rock is really a phenomenal one for our purposes. The Torah is an opaque “objectile” launched into history, smashing into human contexts, meanings breaking off in every direction. The same way the author composes a text and sets it adrift among her readers, God fixed certain rituals and acts as commandments and loosed them on Jewish history, to generate a whole host of meanings. As Rav Shagar puts it in one essay, the divine wisdom sheds and takes up different forms throughout the course of history (Halikhot Olam, 187). Notably, this would essentially give us a reconceptualization of the Oral Torah as the meanings generated by the Written Torah on its path through history, all intended by the original divine author.

If you’re uncomfortable with that strong sense of divine foreknowledge, but still don’t want to give up on divine authorial intent, we could perhaps appeal to a more general intent. Instead of saying that God intended every meaning that the Torah would generate, we can simply say that God wanted the Jewish people to do their best to understand the Torah, even given that they would understand the Torah differently in different historical contexts. This would give us something like the idea behind the famous “Oven of Akhnai” story from Bavli Bava Metsia 59b, which argues that “the Torah is not in heaven,” and therefore the majority interpretation of the Jewish sages supersedes even the divine understanding of the Torah’s meaning. The meaning of the Torah is thus what the Jewish people thinks it is, rather than what God intended it to be. However, as the conclusion to the story makes clear, God desires this to be the case. God intended that the Torah be understood differently over time, even without intending those specific different understandings.

Conclusion

As I hope I have shown, in this post and in the whole series, thinking about the mitsvot as material objects that generate their meanings both can be and already is a fruitful part of taamei hamitsvot discourse. Rav Soloveitchik and Rav Shagar did it, and Rabbi David Silverstein is doing it now. Given the theological issues it helps us untangle, I hope it can become a bigger part of this discourse in the future. Minimally, I hope this series will help people recognize it when they see it, as it is already a part of our sacred texts and traditions.

Rabbi Yehoshua, the Bat Kol, and Legal-Religious Epistemology

There are two passages from the Talmud Bavli that, perhaps more than any other, are taken to be fundamental to our understanding of the legal process of Halakhah. The first is the story known as Tanur Shel Akhnai, found in Baba Metsia.

It has been taught: On that day R. Eliezer brought forward every imaginable argument , but they did not accept them. Said he to them: If the halakhah agrees with me, let this carob-tree prove it!Thereupon the carob-tree was torn a hundred cubits out of its place others affirm, four hundred cubits. No proof can be brought from a carob-tree,they retorted. Again he said to them: If the halakhah agrees with me, let the stream of water prove it!Whereupon the stream of water flowed backwards — ‘No proof can be brought from a stream of water,they rejoined. Again he urged: If the halakhah agrees with me, let the walls of the schoolhouse prove it,whereupon the walls inclined to fall. But R. Joshua rebuked them, saying: When scholars are engaged in a halakhic dispute, what have ye to interfere? Hence they did not fall, in honor of R. Joshua, nor did they resume the upright, in honor of R. Eliezer; and they are still standing thus inclined. Again he said to them: If the halakhah agrees with me, let it be proved from Heaven!Whereupon a Heavenly Voice cried out: Why do ye dispute with R. Eliezer, seeing that in all matters the halakhah agrees with him!But R. Joshua arose and exclaimed: It is not in heaven.What did he mean by this? Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, After the majority must one incline.[1]

This passage depicts a debate between R. Eliezer and the rest of the sages, wherein R. Eliezer calls on increasingly impressive miracles as verification for his argument, culminating in a heavenly voice that proclaims explicitly that R. Eliezer is correct. To this R. Yehoshua responds that the Torah itself says we do not care what revelation has to say about halakhah, and instead we follow the Torahs own law that the majority vote is decisive. Halakhah was given to the Israelites to decide; It is in human, not Divine, hands.

The second gemara is revolves around yet another heavenly voice, this one in regard to a dispute between Bet Hillel and Bet Shammai, recorded in Masekhet Eruvin.

Abba stated in the name of Samuel: For three years there was a dispute between Beth Shammai and Beth Hillel, the former asserting, The halakhah is in agreement with our viewsand the latter contending, The halakhah is in agreement with our views. Then a Heavenly Voice issued announcing, [The opinions of] both these and these are the words of the living God, but the halakhah is in agreement with the rulings of Beth Hillel. Since, however, both are the words of the living Godwhat was it that entitled Beth Hillel to have the halakhah fixed in agreement with their rulings? Because they were kindly and modest, they studied their own rulings and those of Beth Shammai, and were even so [humble] as to mention the actions of Beth Shammai before theirs.[2]

This passage depicts a debate that seems to have been unresolvable. It dragged on for three years, until such time as a heavenly voice came forth to decide it, with a surprising and radical conclusion. Instead of declaring which opinion is correct, the heavenly voice declares that both opinions are correct, and it is only because practice cannot simultaneously uphold both opinions that the voice must declare which one is right.But it is technical right,a practical necessity rather than an ontological fact. The halakhic system is such that there are issues regarding which reasonable people might disagree, in which case both of them are essentially correct, even if the demands of practical law are not so forgiving.

While these two passages are often touted for giving basic principles of the Oral Law and the Jewish Tradition, there is an essential contradiction between them that is often overlooked. The essential point of the first passage is that we do not listen to revelation when it comes to deciding halakhah, with the particular form of revelation under discussion being a heavenly voice. Yet the second passage hinges on the information learned from a heavenly voice. These two passages cannot coexist. Of course, numerous commentators have gone to lengths to show how they can and in fact do coexist, usually by putting conditions on R. Yehoshuas blanket statement that we do not listen to revelation.

The Talmud Bavli itself, however, maintains that these two passages are indeed contradictory, and that one should not attempt to resolve them by limiting one of them.

For it has been taught: The halakhah is always in accordance with the ruling of Beth Hillel. Nevertheless one who desires to adopt the view of Beth Shammai may do so, and one who desires to adopt the view of Beth Hillel may do so. One who adopts the view of Beth Shammai only when they incline to leniency, and likewise the view of Beth Hillel only when they incline to leniency, is a wicked person. One who adopts the view of Beth Shammai only when they incline to strictness and likewise the view of Beth Hillel only when they incline to strictness, [is a fool and] to such a one applies the verse: But the fool walks in darkness. But one must either adopt the view of Beth Shammai in all cases, whether they incline to leniency or strictness, or the view of Beth Hillel in all cases, whether they incline to leniency or strictness. Now is not this statement self-contradictory? At first it says: The halakhah is always in accordance with the ruling of Beth Hillel, and immediately after it says: Nevertheless one who desires to adopt the view of Beth Shammai may do so? This is no difficulty. The latter statement relates to the practice before the Heavenly Voice was heard, whilst the former states the law as it is after the Heavenly Voice was heard. Or, you may even say that the latter statement too was made after the Heavenly Voice was heard. [and yet there is no contradiction], for that statement is the view of R. Joshua who exclaimed: We pay no attention to a Heavenly Voice![3]

This third passage says that the ruling of the heavenly voice, that the halakhah is like Bet Hillel, was considered legally binding, except by R. Yehoshua who did not accept revelation as legally binding.

This passage leaves one thing unclear, however. While R. Yehoshua is explicitly said to be rejecting the decision that the practical law is always like Bet Hillel, it is unclear to how he treats the first half of the heavenly voices declaration. Does R. Yehoshua agree that both these and these are the words of the living God? There are arguments in either direction. On the one hand, this information is received via revelation, something R. Yehoshua apparently rejects. On the other hand, the information is not halakhically decisive, and it is possible R. Yehoshua only denies revelation a decisive legal capacity, rather than the ability to convey information about halakhah more generally, in which case he would only reject the second half of the heavenly voices statement, but not the first.

While its impossible to know for certain, it may be fruitful to speculate a little. If we go back to the original statement of the heavenly voice in the second passage we looked at, the two halves of the proclamation are connected. The first half tells us that more than one halakhic opinions can be essentially correct. While this clarifies why the debate under discussion in that passage had raged on for three years, it presents an immediate practical problem. Once you know for certain that two contradictory opinions are correct, how do you decide the practical law? No matter which one you choose you will know that you are violating a different, but also correct, opinion. Therefore the proclamation has a second half, where it gives a decisive ruling as to what should be done practically. No matter what is essentially correct, there is a different practical measure of correctness, and what is most correct in that sense is the opinion of Bet Hillel.

As connected as the two halves of the heavenly voices proclamation are, it is entirely possible that R. Yehoshua not only rejects both the second and first halves of the proclamation, but rejects the second half because he rejects the first half. The heavenly voice appears in the middle of a debate which apparently could not be resolved through the normal methods of halakhic jurisprudence. Given a Divine source of information, it is easy to determine who is ultimately correct and to then establish practice accordingly (notwithstanding a surprising turn of events wherein both opinions are deemed to be essentially correct). R. Yehoshua does not have this option. Instead, he sees that there are times when the halakhic discussion will have no single, obviously correct, answer. In such cases the answer is not to declare all answers equally correct or incorrect, but to simply allow every capable person to attempt to determine what seems to them to be correct in that situation. While R. Yehoshuas entirely human conception of the halakhic system leads him to reject R. Eliezers opinion by Tanur Shel Akhnai, it leads to certain cases where the only option is not to be so decisive. Thus R. Yehoshua’s different conception of viable sources of halakhic information also leads, in some cases, not only to different halakhic conclusion, but to different types of conclusion, to conclusions that are very human attempts at arriving at halakhic correctness, as opposed to divine concessions to practicality.

[1] TB Baba Metsia 59b. Translations from halakhah.com, with some adaptation for ease of reading and clarity.

[2] TB Eruvin 13b.

[3] TB Hulin 43b-44a.

Parashat Yitro 5775 – When Judges are Priests: On the place of the Teachers in Relation to the Law

When Judges are Priests: On the place of the Teachers in relation to the Law

Leading up to the Revelation at Har Sinai, the people are commanded not to approach the mountain (Shemot 19:12-13). Bizarrely, right before the ten commandments, perhaps the most pivotal moment of  Sefer Shemot, Moshe is commanded to once again tell the people to stay away from the mountain (19:21-24). While superficially redundant, this second command differs from the first in that it refers not only to “the people” but also to “the priests that approach God” (19:22). This immediately presents a problem as the priests (כהנים) that the Torah normally speaks of, Aharon and his sons, have not been appointed yet, nor has the Mishkan, their place of work, been built yet, nor have the relevant laws even been given yet. Though there are multiple approaches within the traditional commentators when it comes to understanding this phrase, we will focus on the rather unique approach of R’ Hezekiah ben Manoah (more commonly known as the Hizkuni). In order to fully understanding why he chose the approach that he did, we will first look at some of the more common understandings, enabling us to appreciate the unique and powerful message of the Hizkuni’s approach.

The most common understanding of the “priests that approach God” is that they are the firstborns of the Israelite nation. This approach originates in the gemara (Bavli, Zevahim, 115b), and is taken by R’ Avraham Ibn Ezra, Rashi, Rashbam, and Rabbeinu Behaye, as well as being mentioned as a possibility in the Ohr HaHayyim and the more modern Daat Mikra commentary. This interpretation is based on a few factors. First is the dedication of the firstborns to ‘א in Shemot 13, as a consequence of ‘א saving them from the death of the firstborns in Egypt. Perhaps more crucial though is the replacement of the firstborns with the Leviim in Bamidbar 3 (mentioned again in Bamidbar 8). The Leviim are dedicated to the work of ‘א’s Sanctuary, the Mishkan (Bamidbar 18:6). This implies that, before they were replaced by the Leviim, the firstborns were in charge of the work of the mishkan. However, this approach suffers from several problems. First is the understanding of the phrase “that approach God.” Ibn Ezra mentions two understandings of this phrase. The first is that this “approach” is their position during the Revelation at Sinai, that the firstborns will be standing closer to the mountain than the rest of the Israelites, though still beyond the border mentioned in Shemot 19:12-13. The problem with this is that the context of the phrase “that approach God” is the command for the priests to stay beyond the fence, implying that for some reason the firstborn would think they do not need to stay beyond the border. Thus the command has to be in response to something that happened in the past that would give the priests this impression. This is presumably what motivates Ibn Ezra’s second understanding, that the “approach to God” described in this verse is a reference to the priests bringing sacrifices on the altar that Moshe built after the war with Amalek. While this is certainly possible, and the altar was built just two chapters previous to our verse making it somewhat contextual, it suffers from not being explicit in the text. Without any explicit textual mention of sacrifices being brought on the altar, it is more likely that the altar was built as a memorial and as an act of gratitude to ‘א, in the manner of the Avot (cf. Bereishit 12:7-8, 13:18, 33:20, 35:7). However the larger issue with understanding the “priests” as the firstborn is that when the sanctified firstborn are replaced, it is not by the priests, but by the Leviim, so to say that they are priests here in Shemot 19 would be a little strange.

Though mentioned by fewer commentators, there is an approach that avoids this issue. Both Rabbeinu Behaye and the Ohr HaHayyim mention the possibility that the “priests that approach God” of Shemot 19 are the sons of Aharon, who will in the future be appointed as priests. This however suffers from the same lack of precedent as the previous interpretation. Simply put, before Aharon’s sons are explicitly appointed as priests in Sefer Vayikra, they have no reason to think they should stand closer to the mountain than anyone else, and so it is unlikely that they would have to be told not to do so.

This brings us to the comment of the Hizkuni. The Hizkuni actually presents two possibilities. His first suggestion makes use of the initial understanding, that the priests are the firstborns, but changes it in a way that avoids the problematic lack of precedent. Hizkuni says that it was the 70 Elders that were firstborns.[1] This has the advantage of the firstborns approach in that they are sanctified to ‘א, but it also has an explicit textual precedent. In Shemot 18, the chapter immediately prior to the one we’re dealing with, the Elders eat a meal with Yitro and Moshe “before ‘א” (18:12). While the exact meaning of this phrase is unclear, it would seem to indicate a degree of closeness or familiarity with ‘א that would require them to be specifically told that they need to stay back. However, this approach can be understood in one of two ways. The first is that the “Elders” is essentially a subcategory of the “Firstborns.” While this is possible it is also somewhat strange, and not only because it is unlikely that every single one of the Elders was also a firstborn. More importantly, in this understanding the seventy Elders are firstborns, but there were plenty of other firstborns who aren’t in this category. Thus the fact that the Elders are firstborns would be merely coincidental, and it is strange that the Hizkuni would mention it. More likely is the second reading, that the Elders and the Firstborns are two separate but identical categories, both of which contributed to them being called “priests.” Thus both the sanctification to ‘א and the eating before Him are significant. This too however suffers from a strangeness, namely that not only would all of the Elders be firstborns, but that there would only be 70 firstborns in a group with 600,000 men. This is likely what prompted Hizkuni to offer his second, more original, understanding.

Hizkuni’s second suggestion is that the “priests that approach God” of Shemot 19:22 are the Judges and Officers appointed in Shemot 18. While his assigning of the term “priests” to the judges is quite original, this understanding has a certain logic to it, as Hizkuni explains. As support for this approach, Hizkuni quotes Devarim 1:17, “for the judgment is God’s.” Thus their very nature as judges has a certain logic to it. Meanwhile, Sefer Devarim also conflates the priests with the teachers of the Law (31:11, 33:10), a job specifically referenced in context of the appointment of the Judges in Shemot 18 (vss.16, 20). So while the priest would be the teachers once they get into the land, Hizkuni sees the teachers as the priests before the giving of the Torah. Their special positions as teachers and Judges makes them automatically closer to ‘א , not to mention it separates them from the rest of the people who they would have seen as students. This alone might have been reason enough for them to think that they should stand closer to the Revelation at Sinai, but, as Hizkuni points out, there is another reason for them to think that. The Revelation at Sinai is the revelation of the Law, and as those responsible for teaching and adjudicating that law, it is quite natural that they would have thought they should be closer. This would not have been a privilege, but a responsibility, to be as intimately involved in the giving of the law as possible. In this, however, they are rebuffed, as Moshe is specifically sent down to tell them that they are not separate, that the entire people is equal before the law. The only exception is Moshe (Aharon is included only in his capacity as Moshe’s spokesperson), who throughout Bnei Yisrael’s journey in the Wilderness receives the law via prophecy, while the judges in the desert and after Moshe’s death do not (I have written about this here). Thus, while the judges and teachers of the Law are close to ‘א, there is an important distance between them and the revelation of the Law.

The Hizkuni’s comment has an important lesson to teach us about the relationship between the people of Israel, rabbinic authority, and the Torah. We know from Devarim that, “Moses commanded us a law, an inheritance of the congregation of Yaakov” (33:4). The law was not given to its teachers, to the judges, but to the entirety of the people of Israel. Rabbinic authority is not inherent in the rabbis, but comes from their familiarity with the law; not from creating the law but from understanding it. Thus it is incumbent upon all of Israel, each and every one of us, to approach the Torah personally, not to depend upon rabbinic intermediaries. The Torah belongs to all of us, and we each have our own portion in it. It’s not enough to trust that someone knows the law, we have to understand and appreciate it ourselves.

[1] In this he combines Zevahim 115b with מכילתא בחדש פ״ד.

Parashat Devarim 5774 – The Oral Torah and The Things That Moshe Said

אֵלֶּה הַדְּבָרִים אֲשֶׁר דִּבֶּר מֹשֶׁה

 

Parashat Devarim opens the final book of Humash, marking a radical departure from the previous books. It’s uniqueness is encapsulated in the name by which it is referred to in Midrashim and the Gemara, “Mishneh Torah”, meaning “Repetition of the Torah”. This title is probably a reference to the many narratives and laws from previous books of the Torah that are repeated in Sefer Devarim. However, the narratives and laws[1] of Sefer Devarim also include many things not found in previous books, lack many things found in previous books, or outright contradict the laws and narratives of previous books. Parashat Devarim includes a few excellent examples of all of these, such as the appointment of judicial system (Devarim 1:9-18; originally found in Shemot 18) and the incident of the spies (Devarim 1:19-46; originally founding in Bamidbar 13-14). Perhaps the most striking changes from the previous books of the Torah to Sefer Devarim are in the writing style and the perspective of narration. The language and sentence structure used are strikingly different from the other books, to the point that switching from one to the other is actually difficult. Most of the books of the Torah are narrated from a third-person perspective (“And Moshe said…” “And Moshe struck the rock…”), but Sefer Devarim is dominated by first-person narration (“I said…” “We did…”). This final detail, as we shall see, actually contains the explanation for all of the other discrepancies of Sefer Devarim.

Sefer Devarim opens with the phrase, “These are the words which Moses spoke to all of Israel” (Devarim 1:1). Just a few verses later (1:6), Moshe begins a speech that spans for about 4 chapters of Sefer Devarim. Immediately thereafter, Moshe begins his second speech (5:1), which will span 22 chapters. This is followed immediately by the beginning of a third speech (27:1), filling chapters 27 and 28, and then chapters 29 and 30 are a fourth speech (beginning with 29:1).  The last four chapters of Sefer Devarim (31-34) are a narration of Moshe’s Last Acts and Farewells, much of which is still him speaking or singing, though not all of it. This breakdown demonstrates that Sefer Devarim is almost entirely a recording of Moshe’s speeches! 30 out of 34 chapters of Sefer Devarim, give or take a few verses, are entirely his speeches, and the other four chapters include a hefty amount of his speech as well. The sudden switch from third- to first-person narration is therefore obvious and understandable, as Moshe would not narrate from a third-person perspective. Fascinatingly, this also suggests that the style switch is also a matter of Moshe’s narration, meaning a switch from the previous, presumably Divine, perspective, to Moshe’s human perspective.

This raises an immediate issue in terms of our conception of the giving of the Torah. Rabbi Akiva says that the entirety of the Torah, in its general principles and its minor details, was given to Moshe on Har Sinai[2]. If this is true, then Sefer Devarim was given to Moshe on Har Sinai, from ‘א, and for it to be narrated by Moshe, phrased in his own perspective, would be strange at the very least. However, this is not the only opinion in Hazal. Rabbi Yishmael says that the general principles of the Torah were given on Har Sinai, and then the minor details were given in the Mishkan and in the Plains of Moav (where Moshe delivers the speeches found in Sefer Devarim)[3]. Even this does not quite say that Moshe himself said over, of his own volition, the speeches recorded in Sefer Devarim, but it is a step in that direction. The next step is taken by Abarbanel in his Introduction to his commentary on Sefer Devarim.

In truth, Moshe our teacher stated the words of this book and explained the mitzvot mentioned therein as he prepared to part from the people of Israel.  After he completed his words to Israel, God desired that they be included in the Torah as Moshe stated them.  Perhaps God added elements to those words at the time that they were committed to writing.  Thus, although the words may have been stated by Moshe, the authority to include them in the Torah’s text did not derive from him.  Moshe did not decide to commit these words to writing, for how could he compose even a single thing in God’s Torah without Divine sanction?  Rather, all of these words of the Book of Devarim were by the mouth of God, together with the rest of the Torah’s text, for God agreed with his formulations and favored the words of the ‘faithful shepherd’ Moshe.  Thus, God restated them to Moshe and ordered them to be written by him, and Moshe therefore composed them by God’s authority and not by his own

Thus the speeches of Sefer Devarim are actually Moshe’s own narration[4], which then received the Divine imprimatur when ‘א decided to make them part of the Torah[5]. The significance of this idea is powerfully expressed by Rav Tsadok HaKohen of Lublin[6].

The latter version of the Decalogue, that in Sefer Devarim, was said by Moshe, on his own account. Nonetheless, it is part of the Written Law. In addition to the mitzvot themselves that Moshe had already received at Sinai, by the word of God, these words as well [in Sefer Devarim], which were said on his own account, which are not prefaced with the statement, “And God said…”, these, too, are part of the Written Law. For all of his (i.e. Moshe’s) are also a complete “torah”, just like the dialogues of the patriarchs and other similar passages are considered part of the Written Law. But the material that begins “And these are the things” (i.e. the first verse of Sefer Devarim and the rest of the book that follows), material that was said on his own account, represents the root of the Oral Law, the things that the sages of Israel say of their own account.

Rav Tsadok is saying that as part of the ‘א’s Divinely commanded text, Sefer Devarim is part of the Written Torah, but as the words of Moshe Rabbenu, Sefer Devarim is the beginning of the Oral Torah. Therefore it is not strange that Sefer Devarim should depart from previous books of the Torah in retelling past events. As part of the Oral Torah, it is a completion and an interpretation of the Written Torah. It is Sefer Devarim’s nature as interpretive retelling that explains its divergences from previous recordings of laws and narratives in the Torah.

The first great example of that in Parashat Devarim is the Appointment of the Judges. This first occurs in Shemot 18, when Yitro arrives at Har Sinai and suggests the appointment of judges as a way to lighten Moshe’s burden. Yitro tells Moshe that he should take “able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens” (Shemot 18:21). Moshe does as Yitro recommended, and goes from being the sole judiciary authority to being the final authority when lower judiciary authorities were not enough. In Sefer Devarim, Moshe initiates the appointment of the leaders, due to his inability to lead the people.

And I spoke to you at that time, saying: “I am not able to bear you myself alone; the Lord your God has multiplied you, and, behold, you are this day as the stars of heaven in multitude. The Lord, the God of your fathers, made you a thousand times so many more as you are, and blessed you, as He has promised you! How can I myself alone bear your trouble, and your burden, and your strife? Get you, from each one of your tribes, wise men, and understanding, and full of knowledge, and I will make them heads over you.’ And you answered me, and said: ‘The thing which you have spoken is good for us to do.’ So I took the heads of your tribes, wise men, and full of knowledge, and made them heads over you, captains of thousands, and captains of hundreds, and captains of fifties, and captains of tens, and officers, tribe by tribe. And I charged your judges at that time, saying: ‘Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. You shall not favor persons in judgment; you shall hear the small and the great alike; you shall not be afraid of the face of any man; for Justice is God’s; and the cause that is too hard for you you shall bring to me, and I will hear it.” And I commanded you at that time all the things which you should do. (Devarim 1:9-18)

There are many differences between this passage and the passage in Shemot. First off is the lack of any mention of Yitro is Sefer Devarim. More interesting, however, is the description of the judges, both in terms of their innate qualities and their assigned duties. Whereas in Shemot the men are described as “able men, such as fear God, men of truth, hating unjust gain,” in Devarim they are referred to as “wise men, and understanding, and full of knowledge.” Moshe appoints the men in Shemot as “rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens,” whereas in Devarim they are additionally appointed as “officers.” In Shemot Moshe chooses the men, whereas in Devarim the nation chooses them. These differences all flow from differences in the initial cause for the appointment in each passage. In Shemot the men are appointed to create a necessary Judicial structure, whereas in Devarim Moshe is appointing ‘heads” over the tribes, to help him lead a nation that has grown to large for his singular leadership. Therefore only Shemot mentions Yitro, while he isn’t part of the story in Devarim. The traits of the men chosen in Shemot are appropriate for judges, while the traits of the men chosen in Devarim are more generally useful for leadership. That’s why in devarim they are “officers” as well as judicial “rulers”. Shemot emphasizes the issues of jurisprudence, right before the giving of ‘א’s Law, where Devarim emphasizes matters of leadership. These two issues came up simultaneously, and we only get the full picture due to their being split apart textually.

The second such example that appears in Sefer Devarim is the Sin of the Spies. The first recording of this narrative occurs in Bamidbar 13-14, instigated by ‘א commanding Moshe to send men to scout out the land. The men bring back a misleading and evil report that causes Bnei Yisrael to rebel. Despite the protestations of the good spies, Yehoshua and Calev, Bnei Yisrael refuse to enter the land, leading to ‘א condemning the entire generation to die in the desert. The departures from this representation in Devarim are few, but significant.

And I said to you: “You have come to the hill-country of the Amorites, which the Lord our God gave to us. Behold, the Lord your God has set the land before you; go up, take possession, as the Lord, the God of thy fathers, has spoken to you; do not fear, nor be dismayed.” And you came near to me every one of you, and said: “Let us send men before us, that they may search the land for us, and bring us back word of the way by which we must go up, and the cities to which we shall come.” And the thing pleased me well; and I took twelve men of you, one man for every tribe; and they turned and went up into the mountains, and came to the valley of Eshcol, and spied it out. And they took of the fruit of the land in their hands, and brought it down to us, and brought us back word, and said: “Good is the land which the Lord our God gives to us.” Yet you would not go up, but rebelled against the commandment of the Lord your God; and you murmured in your tents, and said: “Because the Lord hated us, He has brought us forth out of the land of Egypt, to deliver us into the hand of the Amorites, to destroy us. To where are we going up? Our brothers have made our heart to melt, saying: The people is greater and taller than we; the cities are great and fortified up to heaven; and moreover we have seen the sons of the Anakim there.” Then I said to you: “Dread not, neither be afraid of them. The Lord your God who goes before you, He shall fight for you, according to all that He did for you in Egypt before your eyes; and in the wilderness, where you have seen how the Lord your God bore you, as a man bears his son, in all the way that you went, until you came to this place. Yet in this thing you do not believe the Lord your God, Who went before you in the way, to seek you out a place to pitch your tents in: in fire by night, to show you by what way you should go, and in the cloud by day.” And the Lord heard the voice of your words, and was angry, and swore, saying: ‘Surely there shall not one of these men, even this evil generation, see the good land, which I swore to give to your fathers… (Devarim 1:20-35)

Of the many differences here, a few stand out in particular. Where in Bamidbar 13, ‘א commanded the sending of the scouts, in Devarim the people asked to send spies. In Bamidbar the spies bring back a false report that incites the people, which is ineffectually countered by Calev and Yehoshua, while in Devarim the report of the scouts appears only in the words of the people after they have already rebelled. The people rebel of their own initiative and are rebuked not by Calev and Yehoshua but by Moshe himself. While here too there seems to have been two different things occurring simultaneously, two different missions performed by the same twelve men at the same time[7], depicted separately in two different places, this is not the reason for the differences here. Instead, here it seems to be simply a matter of a different perspective. By focusing on the initiatives and failures of Moshe and Bnei Yisrael, by excluding ‘א and the spies from the story, emphasis is placed on the actions and responsibility of the Nation and their Leader. Thus this retelling does not contradict or change the story, so much as it simply presents the narrative from a different point of view, emphasizing different things.

Sefer Devarim is a retelling of much of the laws and narratives of the Torah, but it is a complex retelling. It has additional information, intentional lacks of information, and apparent contradictions. However, far from posing a problem for the Torah’s integrity and for the religious reader, these complexities open up the Written Torah by anchoring it to our most precious gift, the Oral Torah. The Oral Torah is the god-given ability for the wise of Bnei Yisrael to interpret and apply the Written Torah, and it started with Moshe. Moshe took events and laws from the 40 years that Bnei Yisrael traveled in the wilderness and presented them in new ways, in order to convey the aspects he felt were most important for Bnei Yisrael to appreciate before entering the Land of Israel. Throughout the entirety of Sefer Devarim, many different aspects are emphasized, but a few themes, such as have been presented above, are dominant. The laws and events of Sefer Devarim highlight the ability, and corresponding responsibility, of Bnei Yisrael. Upon entering the land, everything will change for Bnei Yisrael. They will have to be responsible for themselves on a much greater level. They are losing Moshe, their faithful shepherd through the wilderness, and ‘א will begin to reduce His miracles and open Presence among them. The people can’t rely on Moshe or ‘א to take charge and save them. They will have to lead themselves, and they will have to take responsibility for their own mistakes. Correspondingly, the texts emphasize the ability of the people to do so. All of this is a function of Oral Torah. The Oral Torah allows for the expression of whatever aspects of the Torah are most relevant at any given time. “Since the destruction of the Bet HaMikdash, ‘א has no place in this world outside the 4 Amot of Halakhah.”[8] When the Bet HaMikdash was destroyed, the Oral Torah took us from the community-centered worship of the Bet HaMikdash to the individual-centered life of Halakhah. And when Bnei Yisrael were preparing to enter the Land of Israel, Moshe spoke to them the speeches of Sefer Devarim, that would take them from a people entirely dependent on ‘א to a people able to create a godly society, according to His laws, in His land.

[1] This composition will not discuss legal contradictions with previous books, as that is a separate topic. In brief, halakhic midrashim have their own method of solving it in relation to determining halakhah, and in terms of understanding the internal contradiction of the Torah text, it revolves around the institution of common law. For more on that and the specific case of Sefer Devarim, see essays 5-8 by Prof. Joshua Berman of Bar Ilan University, here.

[2] Talmud Bavli, Masekhet Zevahim, 115b.

[3] Ibid.

[4] While some struggle with the idea of a human hand in the composition of the Torah, it is important to remember the level of Moshe in his prophecy, to the point where the midrash describes his as half man and half elohim (Devarim Rabbah 11:4).

[5] This is actually suggested by the gemara: One does not pause [to call up another reader] in [the reading of] the curses, but one person reads them all.  Abaye said: This applies only to the curses in Torat Kohanim [Vayikra], but in Mishnah Torah [Devarim], one may pause.  Why is this so? The former are in plural form and Moshe spoke them in the name of Hashem, and the latter are in singular and Moshe spoke them on his own. (Talmud Bavli, Masekhet Megilla, 31b).

[6] Pri Tzadik, Kedushat ha-Shabbat, article 7. Translation from Professor Joshua Berman, here.

[7] One of the missions was about military intelligence, while the other was more about surveying the land. The first indicator of this is the different verbs used for what the “spies” will do in each case, “לרגל,” “to spy,” or “לתור,” “to scout”. For more on this see Rav Elchanan Samet’s excellent essay, here.

[8] תלמוד בבלי מסכת ברכות דף ח עמוד א