Shoftim (Torah)

“Justice Justice shall thou pursue”

This portion, in general, is concerned with the basic social institutions of a Torah-governed state: the monarchy; a system of courts, with judges and magistrates, and a high court located in the Temple precincts; the priesthood, with its prerogatives; prophets. Thus, the various realms: religious, judicial, prophetic-charismatic, and executive, while functioning independently, interact and reinforce one another in various ways. Thus far, the first half of the portion (16:18-18:22).

The latter half of the portion details miscellaneous institutions and laws relating to special situations: the cities of refuge for inadvertent manslaughter; laws of testimony and conniving witnesses; laws of warfare: the mustering, and opportunity for those with some unfinished business in civilian life to go home (there was no standing army; rather, the entire populace was marshalled in times of need), the procedure involved in attacking an enemy city; the rule against cutting down fruit trees (the phrase in 20:19, ki ha-adam etz ha-sadeh, “for is the tree a man?”, often misunderstood as drawing a poetic analogy between the man and tree, means the exact opposite); and the case of a slain corpse found in an open spot, and the concomitant ceremony of expiation.

The phrase appearing in the third verse, tzedek tzedek tirdof, “Justice justice shall you pursue, that you may live and inherit the land…” (16:20), has been considered by some as a kind of byword of Judaism. Some years ago a French Jewish thinker (I think his name was Henri Baruch) wrote a book entitled Zedeq, presenting his philosophy of Judaism as being based upon this principle. But, precisely because its truth is so self-evident and obvious, justice can easily be seen as a banal cliche.

Perhaps one might best read these three verses in reverse order: the pursuit of justice as the broad, overriding principle; “Do not slant or bias justice / do not favor persons / do not take a bribe”—the practical application of justice; “magistrates and officers you shall set up in all your gates”—i.e., the institutional measures needed to accomplish this axiom.

The middle verse, “do not slant justice,” is the heart of the matter. Justice is first and foremost directed towards the other: the more alien, the more bizarre, weird, peculiar, different the other seems, the more imperative the call for justice. For that reason it is so difficult. It is easy to demand justice for oneself, for those similar to oneself, for those you can identify with. The sense of “us” and “them” can function as a bribe, as something blinding one to seeing the other, as surely as a thick wad of bills.

Israeli society is being rent apart today, by each camp demonizing the other. Two weeks ago the Friday supplement of Ha’aretz newspaper featured a lead story about the “hatred of Shas” as a unifying factor among the secular, educated, Ashkenazic, generally successful elites. On the other side, there is no need to elaborate on the demonizing, hate-filled language found among the Shas cadres, in Rav Ovadiah’s sermons, nor of the ugly, sometimes lethal violence that it can unleash. What is somewhat surprising is that the “enlightened “ secularists, who supposedly know something about sociology and history and anthropology and psychology, seem to be equally close-minded about the newly-found religious fervor and ethnic pride of Shas—or, indeed, about much of the revival of interest in religion these days. Seeing the humanity of the other—unless he happens to belong to one of the minorities which the “bon-ton” and socio-political orthodoxy of the liberals designate as worthy of respect and caring—is a little bit more difficult.

Prophecy and Charisma

In 18:9-22, a contrast is drawn between prophecy and various kinds of magic and other pagan practices. What is the difference between the two? As we mentioned in our discussion of Balaam, a magician or wizard is essentially concerned with control over the cosmos, by manipulating unseen forces. Prophetic charisma comes from a sense of submission to God, to a higher force—he acts as a mouthpiece for the Almighty and, ideally, has long since completely transcended his own ego. Prophecy, according to the Rambam, does not suddenly set on an ordinary person, but requires years of discipline and training: the prerequisites include a high level of Torah knowledge, intellectual and ethical perfection, years of meditation and withdrawal from society, etc. Only then, should God choose, does He cause His spirit to rest on that person (see Yesodei Hatorah, Ch. 7).

Moses’ position, which is invoked here as archetypal for future prophets (vv. 15, 18) involves a double aspect. He was avi hanevi’im, “the father of the prophets,” and Moshe Rabbenu, “Moses our teacher.” He embodied within his own personality the two types of hakham and navi, sage and prophet. On the one hand, he fulfilled a charismatic, perhaps even ecstatic role, as a sort of conduit for the divine energy; as one who was somehow more than human. Mysterious, removed, remote from ordinary human concerns—as is perhaps symbolized by the light shining from his face. On the other hand, he was the first teacher of Torah: sobre, balanced, judicial, performing a quintessentially rational role—understanding, teaching, elucidating an exoteric teaching, which was in principle available to all. This duality has to a certain measure followed the Jewish people down through the ages. What, after all, was the essence of the polemic between Hasidism and Mitnaggedism, if not the old debate between hakham and navi: between the charismatic, ecstatic leaders who stormed the heavens, as against sobre, learned, text-centered teachers. The difference is embodied in their celebration of Shabbat: the Hasidic tisch, filled with Kabbalistic ceremony pregnant with mystical meaning, and the spare Shabbat ritual of the Litvak, who may barely sing Zemirot, and will sit down with his students straight after Friday night dinner to study intricate halakhic texts like Ketzot ha-Hoshen or Shav Shematta. Or, as Rav Soloveitchik once expressed it, it may be summed up in the difference between Bameh Madlikin and Kegavna (a chapter from Mishnah, as against a passage from the Zohar, used to conclude Kabbalat Shabbat in the two different traditions).

“According to the Torah which they teach you”

When I was a child we were taught in grammar school about the “elastic clause” in the American Constitution: that clause that stated that, in addition to the specific authorities Congress was given to make laws in specific areas, it was entitled to make any other “laws that shall be necessary and proper for carrying into execution the foregoing powers….” (Article I, §8.18). We were taught that this, in effect, gave Congress to right to make any laws that might be required for unforeseen, future circumstances.

Deut 17:8-13 is, so to speak, the “elastic clause” of the Torah. It stipulates that any matter that is “too difficult for you” shall be brought to the “Levite priests or the judge who shall be in those days” (read: Sanhedrin; great talmidei hakhamim of each generation; etc.) and that “according to the Torah/teaching which they tell you… you shall do; do not turn from the thing they shall tell you, neither right nor left” (v. 11). This verse is taken by the tradition (together with such a verse as Exod 24:12) as providing the basis for the concept of Oral Torah.

The notion of Oral Torah is a central one in Judaism, whose importance it is impossible to exaggerate. Judaism as we know it is in effect the Oral Torah: the Mishnah, the two Talmuds, Midrashim, the rishonim (classical Medieval authorities), and aharonim (authorities from about 1500 on), in all their voluminous works of commentary, codification, responsa, etc. are the many faces of the Oral Torah. Acceptance of the Oral Torah, however this may be understood precisely, is a sine qua non of Jewish religious and halakhic commitment. Criticism is often lodged against traditional Jewish practice by assorted outsiders to the tradition—neophytes to Judaism, Christians, Reformers of various types—that one or another halakhic institution or practice is distant from the written word of the Torah.

But the truth is that the major institutions of Jewish law stand virtually on their own. Entire tractates of the Talmud are based upon brief paragraphs in the written Torah (e.g., in next week’s portion, Gittin and Yevamot, divorce and levirite marriage, are based upon 24:1-2 and 25:5-9, respectively), a single verse (as in the case of the laws of the Sukkah); or even a few words. Thus, the entire institution of shehitah—the ritual slaughter of livestock in a particular manner—is derived from the three words “ve-zavahta… ka’asher tzivitikha, “and you shall offer / slaughter as I commanded you” in last weeks portion (Deut 12:21). The related subject of terafot, with its numerous categories of organic defects that render an animal unfit for consumption, is based upon a single verse in Exod 22:30. Still other subject areas are characterized by the Talmud as “mountains hanging by a thread” or even as “suspended in midair.”

Indeed, the late Yeshayahu Leibovitz celebrated this fact, commenting that the Written Torah is itself a function of Oral Torah; that is, that the Bible as such derives its sanctity from the Oral Torah (and indeed, several border-line books are admitted on the basis of m. Yadayim 3.5, while the order of the canon as a whole is discussed and fixed in b. Baba Batra 14b).

On another level, one of the major functions of Rabbinic literature, and especially of the midrash (whether the tannaitic midrashim, or the snipets of exegetical discussion included here, there and everywhere throughout the length and breadth of the Talmud), is to bridge the gap between Written and Oral Torah. Rabbinic midrash, using various hermeneutic tools that form part of the tradition, demonstrates that the roots of the Oral Law lie in the written text (see on this David Halivni Weiss’s book Midrash, Mishnah, Gemara).

There is much misunderstanding as to just what is meant by this. Traditional Judaism contains two main schools of thought regarding this point. One view maintains that virtually everything in the Oral tradition was given to Moses at Sinai, and that the vast oral tradition was passed down through the generations from teacher to disciple, until it was ultimately set down in writing over a century after the destruction of the Second Temple. This view, which finds its definitive expression in the Iggeret (Epistle) of Rabbenu Sherira Gaon, takes literally the dictum that “everything a veteran student/disciple (talmid vatik) shall innovate in the future, was given to Moses at Sinai.”

An alternative view is that of Maimonides, for whom those things passed down directly by tradition is but one of several components of the Oral Law; much of its creation is attributed to later generations. He maintains that a relatively small number of traditions were specifically given to Moses at Sinai (Halakha le-Moshe mi-Sinai) alongside the written Torah, together with certain interpretations of the verses of the Torah; much of the Oral Torah was essentially created by the Sages, through a combination of application of hermeneutics, and the own legislative and juridical authority vested in them. He describes the Great Court in Jerusalem as “the root of the Oral Law and the pillar of teaching, from whom law and statutes issue forth to all Israel” (Mamrim 1.1; cf. Talmud Torah 1.12; and his general introduction to the Mishnah—Hakdamah le-Seder Zera’im). This latter approach seems to coincide more with common sense and the historical evidence, besides putting far less strain on the credulity of the believer. (See Yaakov Blidstein’s excellent article on the differing approaches of the Rambam and Rav Sherira Gaon.)

Interestingly, this concept of Oral Torah as essentially a field for human creativity is one that appears in numerous passages in the Sefat Emet. He constantly speaks of the task of Hiddushei Torah, of new and creative insights into Torah resulting from human spiritual and intellectual input. He often draws an analogy between the dynamic of Written and Oral Torah, to that between Shabbat and week days.

In any event, one might designate this legal theory as “legal traditionalism”—that is, it really doesn’t matter whether a given point in Jewish law was literally given by God to Moses at Sinai or not. Rather, Sinai represents the starting point for the legal tradition, which was developed, elaborated, refined, added to, etc., etc. by the Jewish people throughout the generations—what the Rav called the Masorah community. Such approach is diametrically opposed to that of the school of Kelson et al, which places strong emphasis on the “positive source” of a given legal system, being much concerned by the precise formal status of each law.

Paradoxically, this approach, which more frankly acknowledges the central role of human initiative in creating the halakhah, actually leads to a very traditional approach to halakhah. One often hears the criticism, among many religious people, that “we don’t need to observe such-and-such a law because it’s only a minhag.” (Interestingly, this approach was first propounded in modern times by Rabbi Samson Raphael Hirsch, the father of German Neo-Orthodoxy, of separatism as an Orthodox communal ideology (austritzgemeinde), and of modern style Orthodox ideological polemics. Hirsch wished to draw a sharp line between the requirements of halakhah as defined in strictly legal terms, and the “accretion” of custom that was added over the centuries.) If, however, the Oral Law is seen as an ongoing creative process, whose authority ultimately rests within the Jewish people itself, then custom too, while of lesser formal stature than Torah or Rabbinic law, is nevertheless a valid source of law, and must be treated with all due seriousness. This is conveyed in the Talmudic dictum, “Israel, if they are not prophets, are at least the sons of prophets” (Pesahim 66a). That is to say, there is a certain healthy religious intuition implanted in the people as a whole, that assures that customs adopted by the Jewish community at large are in line with the spirit of the tradition.

The second issue related to Oral Torah is the nature of Rabbinic authority. It is in this connection that the phrase from our portion, lo tasur yamin usmol, “you shall not turn deviate to the right or to the left,” is most often invoked, being used to justify the yeshiva ideology of implicit obedience to da’at Torah (“the opinion of Torah”) and gedolei hador (“the [Torah] giants of the generation”). But this verse is in fact given two diametrically opposed interpretations, in the Sifrei and in the Palestinian Talmud. The former, indeed, reads the verse as implying “even if they tell you that right is left and left is right, you must heed them.” In short, something tantamount to a Jewish counterpart to papal infallibility (lehavdil). On the other hand, the Yerushalmi in tractate Horayot reads it “if they tell you that right is right and left is left.” But—and here one is left to draw the obvious conclusion—if they teach something that is patently, self-evidently absurd, at a certain point the individual may and indeed must exert his own God-given intelligence and common sense.

A similar tension exists between the laws of the zaken mamreh (Sanhedrin Ch. 6), stipulating that an elder who openly defies the authority of the Bet Din is subject to the death penalty (based on 17:12-13 here); and the concept articulated in Horayot, that a hakham she-higi’a lahora’ah, a sage who relies on his own understanding and knowledge, cannot blindly follow what he knows to be a wrong ruling of the Sanhedrin.

These are highly complex and sensitive issues, and in this context I can barely touch their surface. A vast literature, much of it quite polemical on one side or another, has been produced on this subject in recent years. It is this issue that lies at the center of the ideological battles within contemporary Orthodoxy. Needless to say, the problem is much exacerbated by the fact that the so-called gedolim also issue pronouncements on issues of Jewish public policy and, in Israel, are deeply involved in political parties, elevating to the level of Torah obedience mundane tactical partisan decisions.

Reflections on Halakhah and Ideology

The following is a slightly edited version of a posting I made not long ago to “Women’s Tefillah Network,” a discussion group in which I participate occasionally. The discussion began on the issue of mehitzah and the manner in which this is represented by many leading rabbis, but extended to larger issues of halakhah, authority vs. Autonomy, and the role played by ideological considerations in the halakhic process. I thought this both of interest to readers of Hitzei Yehonatan, and relevant to Parshat Shoftim, with its passage on the Sanhedrin and the verse “you shall turn neither left nor right.”

A number of participants in this discussion drew a sharp distinction between halakhah and “public policy,” and sociological, political, etc. considerations. I would argue that these are themselves an integral part of the halakhic process. In the case of almost every major halakhic controversy—for example: over the issue of shemitah in Eretz Yisrael; Hallel on Yom ha-Atzmaut; the status of non-Shomer Shabbat Jews vis-à-vis minyan; contemporary women’s issue, whether of mehitzah, women’s prayer groups, reading the Torah; strict vs. lenient approaches to conversion of individuals who are likely to be non-observant; or even the recent front-page controversy about religious soldiers refusing orders to remove settlers—and the list goes on and on—the alignment of rabbis and poskim on one side or the other can almost always be predicted on the basis of their ideology and general orientation. Does this mean that their claim to be ruling on the basis of halakhah is sham, or that this is in fact part of the halakhic process? Is there in fact such a thing as “pure” halakhah? And if anything of an ideological coloration is eliminated from this category, doesn’t one end up reducing the demands of halakhah to relative trivialities?

This brings us to what is perhaps a more basic question: is the halakhic process a quest for a single “Platonic” truth (to put it in anthropomorphic terms, how would God pasken were you to ask Him?), or is it a dynamic human process, in which authority is granted to rabbis as leaders within a human community? (“It is not in Heaven” [see Baba Metzi’a 59b] is part of this conception). Yochanan Silman, Professor Emeritus in Jewish Philosophy from Bar Ilan University, has written some interesting things on this in recent years, most notably in a book entitled Kol Gadol velo yasaf (“A Great Voice that Did Not Cease”). He asks the question: is the Torah “perfect” or “being ever-perfected”—that is, is it static or dynamic—and concludes that both models exist within the Jewish tradition.

Another question raised was whether there is a sharp dichotomy between halakhah and aggadah. I think that Yeshayahu Leibowitz, whose lifework was of great value in debunking certain pernicious and foolish myths, also did much harm in his implication that “Judaism = halakhah” and that the entire realm of aggadah is totally non-obligatory, and anyone can basically think whatever they want. I understand why he did this: namely, to counter the concrete messianism of the ultra-nationalist, Merkaz Harav school; the aggadah he had most in mind were the aggadot to which Rambam in Melakhim 12.2, dealing mostly with messianic speculation (see HY V: Vayehi). But the consequence of this position has been for people to adopt a position that separates halakhah from everything else in Judaism, making it into a kind of pure, objective science. I consider this to be a very bad model.

In recent years I have myself written two lengthy halakhic studies—one on the ordination of women, published in the Second Kolekh Conference Volume (To be A Jewish Woman, II, Jerusalem, 2003, English section: 9-24), and one on premarital sex (unpublished; HY V: Vayeshev, Mishpatim, Vayakhel). In both cases, these studies were divided into two main sections, in terms of formal structure: presentation and analysis of Talmudic and classic halakhic sources, followed by a discussion of “meta-halakhic” or “public policy” issues. In the case of the study on premarital sex, I stated explicitly that my methodology was the following, which is really very traditional: where there is a mahloket rishonim (dispute of the major medieval authorities) at the core of the issue (as is probably ultimately the case in most major halakhic issues) the tendency is to be strict, unless one can present some compelling reason to choose a lenient position. Thus, in many such cases one finds the Ram”a and other commentators on the Shulhan Arukh invoking such things as hefsed merubeh, tzorekh gadol, tzorekh rabbim (monetary loss, urgent need, communal need), etc. I suggested that, if other psychological, sociological, etc. factors could be shown to come into play on a given issue, they might be invoked in analogous fashion. In other words: where the halakhic sources are inconclusive one way or another, leaving one in a kind of “tie” (teko), these so-called extra-halakhic considerations may turn out to be decisive in ruling one way or another.

A major part of the study of conversion by Zvi Zohar and Avi Sagi (Giyyur u-zehut Yehudit) consists of selections from responsa by poskim of the past century or two who, in order to justify accepting converts whose motives seem questionable, and thus unacceptable by a simple reading of the beraita in Yevamot and the codified halakhah, invoke arguments having to do with the needs of the Jewish people at this juncture in time. That is, structurally speaking, this is precisely the model I’ve suggested combining “halakhic” and “meta-halakhic” factors.

Some years ago there as an exchange between David Hartman and Haym Soloveitchik about the proper understanding of Maimonides’ Epistle on Martyrdom (Iggeret Hashemad), which revolved around precisely this issue (it was published in the Hartman-Halkin book on Rambam’s Epistles and Soloveitchik’s paper in the Joseph Lookstein Festschrift; and later on in Hebrew in, I think, Mehqerei Yerushalayim): namely, was Rambam’s advocacy of a lenient attitude towards the forced apostates in North Africa based on halakhah or rhetoric? Or, what is the nature of halakhah?

A good example of the diametrically opposite position is that of Alan Yuter, who was mentioned during the course of the discussion as someone who follows the halakhah “by the book… with sometimes strange results.” I first encountered Yuter’s name over 20 years ago, when an article of his on the precise issue with which this thread started was published in Judaism, entitled “Mehitzah, Midrash and Modernity.” He criticizes both Rav Moshe Feinstein and Rav Soloveitchik for using non-halakhic methodology to score an ideological victory. His claim was rooted in the claim that the halakhah ought be understood as a system of “positive law”—a concept taken from the juristic philosopher Hans Kelsen—in which everything follows from first principles and from a “primary source of the law.”

The bottom line in all this is that, in my view, so-called extra-halakhic considerations are in fact an integral part of the halakhic process. The problem is that in our world we live in an anomalous situation, where on the one hand there is no central halakhic authority (and it’s probably good that this is so), but on the other hand, many people invoke the authority of X, Y, or Z as the gadol hador (“great man of the generation”—i.e., leading halakhic authority) to hit others over the head, so to speak, with their putative authority. People like us are at a loss how to deal with many halakhic issues, with or without quotes, that offend both our ethical sense and our common sense. There is no simple formulaic answer: the attempt to invoke an exact quasi-scientific model of halakhah, as some people try to do, doesn’t work and is not really true to the real nature of the halakhah. So I’m not sure what we can do but to try to “muddle through,” not expecting to find absolute truth in halakhic rulings, but knowing that , in the pluralistic halakhic universe, there is support for positions that seem more reasonable. There must be, since part of our faith is that the Torah is a “Torat Hayyim.”

Rabbinic Authority and Human Compassion

This week’s parashah contains what I once referred to as the “elastic clause” of the Torah: Deuteronomy 17:11, which states that one must do “according to the Torah that they [i.e., the judges of the Great Court] teach you… you shall not deviate from that which they tell you either right or left.” That is, the interpretations and edicts of the duly constituted Torah Sages becomes The authoritative Torah. Yeshayahu Leibowitz, often considered an iconoclast, was on this point very “orthodox,” formulating this point very strongly. He stated that the Jewish Torah, the teaching of Judaism, is essentially Rabbinic Torah, so that that the Written Torah itself, the canon of Tanakh, is so only because the Rabbis tell us so in the Talmud.

We live in an age of much confusion, or perhaps self-deception, on these points. One often hears people saying that “Such-and-such is only a minhag (custom)” or “Such-and-such is only a Rabbinic edict,” as if that somehow made the practice in question somehow less binding or its observance less important. There are some who argue in favor of restoring the original, pristine Torah law, and dropping off all the “accretions” of later centuries (a tendency already advocated in the nineteenth century by the impeccably Orthodox Rabbi Samson Raphael Hirsch). A guest at our Passover table this past year told us that everyone at the Seder he’d attended the night before wanted either to have fowl declared pareve (neutral), or fish fleishikh (meaty); the anomaly whereby the rules of meat and milk applied neither to mammals alone, nor to all kinds of flesh, disturbed them, flying in the face of their sense of logic. Our guest wanted to ban the eating of eggs with fowl, on the basis of homological reasoning (i.e., functional parallel). Passover seems to be a time when such feelings surface, probably because of the practical difficulties involved for Ashkenazim in observing the traditional but arbitrary-seeming prohibition of kitniyot (legumes), while other equally pious Jews of Sephardic origin are able to buy food in the typical Israeli supermarket without needing to read the fine print on each and every package.

In any event, what we have in these and other such cases (the retention of the second day of festivals in the Diaspora is another case in point) is a head-on conflict between our own rationality and traditional halakhot. Obeying things that are based upon arcane, archaic, or possibly no reason at all, runs in the face of our insistence, as moderns, upon our human autonomy. Why bother to preserve these things, which are clearly not “Torah from heaven” by even the most Orthodox definition?

My own answer to this is rooted in the idea of the continuity of tradition as a value in its own right. Rav Soloveitchik often referred to the idea of the “Masorah community.” The validation of the Torah comes, not directly from Sinai, but through the transmission of the tradition via generations of Jews who, within the confines and clear boundaries of the halakhic process, living in organic community, enriched and interpreted and added to this thing we call Judaism. It may be that some customs will gradually die: for example, as marriages between Sephardim and Ashkenazim become increasingly common, the sharp demarcation between the two groups, and of their practice, will inevitably fade. A certain abbreviation of the Mahzor for the Days of Awes has occurred in the past generation or two (note the piyyutim relegated to the back pages or with grey background in both Rinat Yisrael and Koren. vs. the old Birnbaum Mahzor). But a tour-de-force, in which centuries-old practice will suddenly be abolished by some supreme caucus of “The Rabbis,” is not in the cards. And I, as one who loves the old-fashioned, traditional ways, celebrate this slow-moving aspect of halakhic growth. Let the energy of halakhic innovation and creativity be focused on those areas where it is urgently needed, involving concrete suffering of real human beings, such as the problems of divorce and iggun (“deserted” or “anchored” wives), and no on whether or not we need do without rice seven or eight days a year.

This issue brings to mind an interesting Talmudic story. The incident of the “oven of Akhnai” (Bava Metzia 59b; see my discussion in see HY III: Devarim-Tisha b’Av and Nitzavim) is often cited as an example of the autonomous authority of the Rabbis. In this story, the majority of Rabbis argue a certain technical point of halakhah with Rabbi Eliezer. The latter invokes a series of supernatural miracles to prove his point, but the Rabbis reject them, stating categorically: “It is not in heaven.” The idea implied is that properly constituted religious authority, who represent Klal Yisrael, somehow determine halakhah independent of God Himself! This is a bold theological idea, often invoked by those who call for greater human initiative in modernizing halakhah.

But the sequel to the story, while less familiar, is just as interesting. In essence, R. Eliezer, R. Joshua’s opposite number, remains adamant in his refusal to bow to the authority of his colleagues, remaining certain of his own truth, until in the end they are forced to place him under the ban (nidduy). The story of what then happens consists of three scenes:

1) R. Akiva goes to tell him of his colleagues decision. He is sent, specifically, because he knew how to speak gently, with sensitivity to the other. He wrapped himself in black and sat some distance away. When R. Eliezer asked him about the meaning of this strange behavior, he said “It seems that your friends are keeping their distance from you.” He understands the hint, and they weep together. This is a poignant story, suggestive of the tension between the need to assert the authority of the Court, and the principle that there is such a thing as a binding decision in halakhah, and a sensitivity to the personal tragedy of the rebellious individual who, when all is said and done, is a great scholar, who cannot but listen to his own inner voice.

2) We see Rabban Gamaliel (II), the Nasi or leading sage of the day, whoe authority underlay the ban on R. Eliezer, returning on a ship. They encounter a fierce storm, with enormous waves that threaten to capsize the ship. Rabban Gamaliel immediately understands that all this is happening because of R. Eliezer; that is, that God Himself somehow remains sympathetic to R. Eliezer. Immediately R. Gamaliel declares that “I am not doing this for myself, nor for the sake of my father’s house, but for Your sake, O God, that there not be controversy within Israel.” At once, somewhat reminiscently of the Jonah story, the waves stop.

3) Most poignant of all: R. Eliezer’s wife, Imma Shalom (a symbolic, and under the circumstances rather ironic name), was also the sister of Rabban Gamaliel: an awkward place in the middle of these two titans. She knew the power of prayer, and specifically the power of the supplicatory prayer known as Tahanun. Because she suspected that her husband would pray for her own brother’s death, she always made sure that her husband would never say Tahanun, as presumably such a prayer would be answered. (How did he do this? Did she physically restrain him? Are we to assume that he didn’t he go to shul, or was even forced to pray at home because of the ban on him?)

In any event, one day she missed him: perhaps she mistakenly thought it was Rosh Hodesh, when one does not recite Tahanun, miscalculating the schedule of “full” and “deficient” months (i.e., 30 or 29 days), or perhaps a beggar appeared at the door at the propitious moment. She rushes back, sees that her husband has already managed to say Tahanun, and shouts, “Gevalt! You’ve just killed my brother!” The next moment we hear the shofar sounding from Rabban Gamaliel’s house, announcing that the great man has indeed died. “How did you know?,” R Eliezer asks her. “Because I have a tradition that the Holy One blessed be He has promised that “all gates are closed, apart from the gate of oppression” [i.e., that God always sets right injustices done to the oppressed). In this case, the distress is not monetary or physical, but psychological and social harm. Even though the Rabbis were justified in the action they took, as a necessary measure in defense of the rule of one halakhah in the Jewish people, and God Himself declared earlier “My children have been victorious over Me,” He nevertheless listens to the cry of R. Eliezer, and cannot turn away his prayer.

A Postscript on Rabbinic Authority and Human Compassion

One of the “problems” with Hitzei Yehonatan is that, at times, after writing something and sending it out on Friday, I think about it more over Shabbat, discuss it at my Shabbat table, or maybe even teach a shiur (lesson) about it, so that by Havdalah time I have a host of new insights and the matter seems far clearer in my mind—at which point I feel the inadequacy of what I sent out on Friday, and am tempted to share my new understanding with my readers.

This happened two weeks ago. The more I reflected upon it, the stronger seemed the dissonance between the first half of the “Oven of Akhnai” story and the sequel about R. Eliezer. If the Rabbis were in fact right, and “the Torah is not in heaven,” and by implication R. Eliezer was in the wrong, why then did God perform miracles for him and listen to his prayer, even to the point of killing Rabban Gamaliel?

Moreover, the idea that, in the end, dissident rabbis must come into line with the rulings of the Great Sanhedrin, is a basic one. A famous mishnah in Rosh Hashana (2.9-10) relates how Rabbi Dosa ben Horkanos, along with Rabbi Joshua, were convinced that Rabban Gamaliel had accepted patently erroneous testimony about the new moon, as a result of which the entire calendar, including the date of Yom Kippur, the holiest day of the year, was askew. Yet when Rabban Gamaliel ordered Rabbi Joshua to perform a public act of acquiescence to his decision—“I order you to come before me carrying your walking stick and money bag on the day that Yom Kippur falls according to your calculation”—so as to avoid a split within the people, he agreed. The story ends with Rabban Gamaliel kissing him on his head and saying, “Come in peace, my master and disciple! My master in wisdom; my disciple in that you accepted my words.”

Rabbi Eliezer did not behave in such a fashion. There are two ways of reading the account of what happened to him. One is the “standard” peshat which, as implied by the wording of my heading, is concerned with the tension between halakhic authority and human compassion: both are important Jewish values, which somehow need to be upheld even when they conflict with one another. “The gates of tears” or “the gates of oppression [i.e., of Divine empathy for the oppressed] are never closed.” Indeed, a structural analysis of our sugya supports this line of argument: the initial subject of this Talmudic unit, beginning with the mishnah at Bava Metzia 58b (=4.10) is ona’at devarim, “oppression via speech,” i.e., causing pain or suffering to others by speech. Our story is brought here for the sake of its conclusion, which illustrates that point; the profound issues of the nature of halakhic authority raised along the way are in a sense no more than digressions. Yet if the Sages were right, and they were justified in placing R. Eliezer in nidduy or even herem, what “oppression” was there here, especially in light of the fact that it was done as tactfully as possible, dispatching the kindly and sensitive Rabbi Akiva to deliver the message? The only answer I can think of is that ona’at devarim may occur without any guilt or wrongdoing. God hears those that suffer; He is sensitive to human tears, whatever their cause. There was an inevitable human tragedy here: Rabbi Eliezer, a great sage, one of the most brilliant minds of his generation, who only yesterday had enjoyed the respect and even reverence of his colleagues and neighbors, is suddenly subjected to the ban, to total exclusion from the society of his fellow sages and his fellow Jews. Even if he brought his punishment upon himself by his “rebellion” against proper authority, God sympathizes with his pain.

The second reading is more theological. Throughout our story, God supported R. Eliezer’s position in this controversy: it was He who caused the carob tree to move, the river to run backwards, the walls of the Study House to tremble, and Who sent the Heavenly voice. True, He smiled and said, “My children have overcome Me”—but He continued to support R. Eliezer’s position. Hence, I would draw a distinction between what might be called “operative halakhah” and “Platonic halakhah.” On the human level, human beings have been given the right and duty to rule in halakhic matters, by means of such institutions as the Sanhedrin, and perhaps other courts and the bearers of the chain of tradition in later generations. What they rule is binding and is incumbent upon every Jew: the day that they declare to be Yom Kippur or Pesah becomes so, with the sanctity of the festival and all that implies, even if their calculations turn out to be wrong. But on another level, there is such a thing as the absolute, metaphysical truth of Torah, which is an embodiment of the Word and possibly even of the Essence of the Holy One blessed be He; in a certain sense, the halakhic process is an attempt by human beings to discern or approximate this truth. Because society needs clear, definite norms, and matters of law cannot be left wholly open-ended, the rules of pesak state that, even if they do not succeed in doing so, what they decide is nevertheless valid and juridically binding—but the “heavenly” truth of Torah remains, and the Almighty may dissent from the earthly court.

This view has profound philosophical implications. What is truth? What are the theological underpinnings of societal norms? Is the Torah ultimately given over to human beings, or is it a metaphysical entity? These questions underlie many of the disputes in Jewish thought, both past and present, and volumes have been written on them. This issue remains undecided in halakhah as well. On the one hand, the halakhah learns (from Deut 17:12) of the institution of the zaken mamreh—a sage who, after refusing to accept a given ruling of the Great Court, is subject to the gravest sanctions. On the other hand, a mishnah in Horayot discusses the case of one who knows the Sanhedrin has in fact voted wrongly, yet nevertheless follows their ruling out of duty and obedience, as being required to bring a sacrifice in his own right (m. Horayot 1.1b)—implying that that he is in fact duty bound to follow his conscience, and that the individual’s intellectual understanding, if he is certain enough of the truth of his line of reasoning, may in some cases reign supreme! Indeed, at times we encounter an intellectual giant who insists on his own opinion, his own analysis. We expect him to hold fast to his insight, and not to fold even if the court votes so. The issue of individual dissent vs. social cohesion is a weighty one, to which there is no clearcut, single answer. (Incidentally, it is also a great American tradition—that of the “majority of one,” to quote the title of I. F. Stone’s maverick weekly political newsletter, in which he always spoke his own truth.)

Finally, there is another level on which we may attempt to understand peshat: namely, can there be a symbolic reading of the substance of the dispute concerning Tanur shel Akhnai per se? What were the underlying concepts in the dispute between R. Eliezer and the other Sages? According to Rav Adin Steinsaltz, the Kabbalah states that, as the oven was coiled around and around like a snake, metaphysically the root of the dispute somehow relates to the primordial Serpent, the source of all evil. Or, on another level, one may ask: What constitutes a unity? The Akhnai oven was made of a series of layers of baked clay, the material normally used to make ovens in those days, interrupted by sand—something impermanent, tenuous, shifting. But the whole looked like, and functioned as, one unit. What, then, is a unity?