The Jewish Law Annual Volume 17 (Jewish Law Annual)

THE JEWISH LAW ANNUAL VOLUME SEVENTEEN

Volume 17 of the Jewish Law Annual adds to the growing list of articles on Jewish law that have been published in volumes 1–16 of this series, providing English-speaking readers with scholarly articles presenting jurisprudential, historical, textual and comparative analysis of issues in Jewish law. The volume contains seven articles diverse in their scope and focus. Two articles are devoted to the halakhic thought of Rabbi A.I. Kook; two treat classic legal questions: breach of a promise to marry, and the legal capacity of minors; two examine aspects of the judicial process, one exploring talmudic analyses of the biblical requirement that courts be established in every town, and the other, post-talmudic views on judicial authority in cases of suspected fraudulent claims. Another article addresses the fascinating question of the epistemic–pedagogic worldviews of the rival Tannaitic legal academies, the House of Hillel and the House of Shammai. The volume concludes with a section on Israeli legislation that adduces or is informed by Jewish law, and two reviews of a much-discussed recent book on a topic of considerable contemporary interest: the agunah problem.

The Institute of Jewish Law Boston University School of Law 765 Commonwealth Avenue Boston MA 02215

Publication No. 33

THE JEWISH LAW ANNUAL VOLUME SEVENTEEN

THE INSTITUTE OF JEWISH LAW BOSTON UNIVERSITY SCHOOL OF LAW

First published 2007 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business

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To Joel and Sharon Chefitz in appreciation

The Jewish Law Annual is published under the auspices of the Institute of Jewish Law, Boston University School of Law. Editor Berachyahu Lifshitz Executive Board Hanina Ben-Menahem Neil S. Hecht Berachyahu Lifshitz Board of Editors Hanina Ben-Menahem, Jerusalem Dov Frimer, Jerusalem Neil S. Hecht, Boston Bernard Jackson, Liverpool

Berachyahu Lifshitz, Jerusalem Stephen M. Passamaneck, Los Angeles Daniel Sinclair, Jerusalem Ronald Warburg, Teaneck NJ

Manuscript Editor Nessa Olshansky-Ashtar Editorial communications should be addressed to Prof. Berachyahu Lifshitz, Institute for Research in Jewish Law, Faculty of Law, The Hebrew University of Jerusalem, Mount Scopus, 91905 Jerusalem, Israel. All communications should be clearly marked “Attention: Editor, Jewish Law Annual.” Contributors should consult the style sheet that appears at the end of the volume; it is also available from the editor upon request. Submissions are welcome from all. Neither the editor nor members of the Board of Editors are to be associated with the views expressed by contributors.

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CONTENTS

PART ONE Neria GUTTEL, It is Indeed in Heaven: The Uniqueness of the Laws of the Temple in the Halakhic Doctrine of Rabbi A.I. Kook

3

David HENSHKE, The Number of Judges in Ancient Israel

27

Leib MOSCOVITZ, “The Actions of a Minor are a Nullity”? Some Observations on the Legal Capacity of Minors in Rabbinic Law

63

Avinoam ROSENAK, Prophecy and Halakha: Dialectic in the Meta-Halakhic Thought of Rabbi A.I. Kook

121

Haim SHAPIRA, The Schools of Hillel and Shammai

159

Yuval SINAI, Judicial Authority in Fraudulent-Claim Cases (din merume)

209

Ronnie WARBURG, Breach of a Promise to Marry

267

PART TWO Daniel B. SINCLAIR, Jewish Law in the State of Israel

285

1 2

285 292

The Constitutional Validity of the Sabbath Observance Law Terminally Ill Patient Law, 5766–2005

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CONTENTS

PART THREE Book reviews of Aviad Hacohen, The Tears of the Oppressed, An Examination of the Agunah Problem: Background and Halachic Sources

303

Bernard S. JACKSON

303

Avishalom WESTREICH

306

Style Sheet

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PART ONE

The Jewish Law Annual, Vol. XVII

IT IS INDEED IN HEAVEN: THE UNIQUENESS OF THE LAWS OF THE TEMPLE IN THE HALAKHIC DOCTRINE OF RABBI A.I. KOOK NERIA GUTTEL*

Introduction In my recent Innovation in Tradition: the Halakhic-Philosophical Teachings of Rabbi Kook,1 I demonstrated that R. Kook often adduced diverse meta-halakhic materials in his responsa and rulings, to a much greater extent than other contemporary decisors (poskim). Examination of his halakhic thinking and comparison of his approach to the approaches of the central decisors of his time, reveals that unlike his colleagues, he invoked diverse considerations in the course of his halakhic decisionmaking. The present article has a more circumscribed focus, concentrating on one particular concept that compellingly reflects R. Kook’s halakhic disposition. This notion is not merely one of many ‘considerations’ invoked in the process of deliberation, nor is it presented as an ‘application’ of the law to be put into practice, but highlights a deeper, more essential stratum of his thought, a stratum that ordinarily remains concealed. It is important to stress that this article shares the methodology used in the aforementioned book. The research ‘material’ is not R. Kook’s extensive philosophic oeuvre, but rather, his halakhic writings. That is, on the perspective adopted here, we will not address theoretical halakhic ideas, but rather their implementation in practice, their actual application.2

* Neria Guttel is Head of Orot Israel College, and teaches at the School of Education at Bar Ilan University. 1 N. Guttel, Innovation in Tradition: the Halakhic-Philosophical Teachings of Rabbi Kook (Hebrew), (Jerusalem: 2005). 2 In taking this approach we differ markedly from many of our colleagues, see ibid., 2–8.

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‘It is not in heaven’

The biblical verse ‘It is not in heaven’ (Deut. 30:12) was often explicated by the Sages as a fundamental halakhic directive to the effect that since the giving of the Torah at Sinai, the law is vouchsafed to mankind alone. It is the source of human authority to decide the law, as well as the source negating the authority of heavenly intervention in deciding the law. It is this authority that is invoked when R. Joshua rejects ‘the proofs’ offered by R. Eliezer in bBaba Metzia 59b: Again he said to them: If the halakha 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 halakha agrees with him? But R. Joshua arose and exclaimed: It is not in heaven. . . . Thou hast long since written in the Torah at Mount Sinai, ‘after the majority must one incline’ (Exod. 23:2).3

On the other hand, the sugya in bEruvin 13b steers us in another direction, as there it was said that it was the heavenly voice (bat kol) that came forth and made the final decision, namely, that the law was in accordance with the view of the House of Hillel.4 In fact, the Talmud itself offers two solutions to this apparent discrepancy5 — distinguishing between the era prior to the heavenly voice and that which followed it; or alternatively, construing the ‘it is not in heaven’ principle as controversial, and whereas R. Joshua maintains that we do not heed heavenly voices, others dispute this.

3 Cf. Sifra (near the end); bMegila 2b; Deuteronomy Rabbah 8:6. 4 On the literary, philosophic and scholarly significance of these sugyot, see Y. Gilat, The Teachings of R. Eliezer b. Hyrcanus (Hebrew), (Tel Aviv: 1968), 2, 7, 323–29; Y. Englard, “The oven of Akhnai: various interpretations of an aggada” (Hebrew), Shenaton Hamishpat Haivri 1 (1984), 45–56; M. Elon, Jewish Law (Hebrew), (Jerusalem: 1978), 231–32; M. Fisch, To Know Wisdom: Science, Rationality and Torah Study (Hebrew), (Jerusalem: 1994), 61–72, 92–93; Y. Epstein, “The authority of the prophet in halakhic decisionmaking” (Hebrew), Bikurim 3 (1986), 76–93; E.E. Urbach, The World of the Sages (Hebrew), (Jerusalem: 1988), “When did prophecy cease?” (Hebrew), 9–21, “Halakha and prophecy” (Hebrew), 21–49; idem, The Halakha — Its Sources and Development (Hebrew), (Givataim, Israel: 1982), 173; G. Ehrlich, “Elu veeilu,” Sefer Higayon (1989), 143–52; A. Sagi, These and Those — The Meaning of Halakhic Discourse (Hebrew), (Tel Aviv: 1996); S. Rosenberg, It is Not in Heaven (Hebrew), (Alon Shvut, Israel: 1997). 5 bJebamot 14a, bHulin 44a.

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Maimonides decided the law to be applied in three places: in his halakhic Mishne Torah (henceforth, Code), Laws concerning the Fundamental Principles of the Torah, ch. 9, in the Preface to his Commentary on the Mishnah, and in his philosophic Guide for the Perplexed, II:39. The law is that “prophets are not permitted to introduce anything new from now on,” to permanently add to the law or to remove any element from it, since, as we saw, “it is not in heaven.” Whether Maimonides accepts the first solution, and we are now in the post-heavenly voice period, or he accepts the second solution and holds the same opinion as R. Joshua, his ruling rejects all halakhic reliance on ‘revelations’ of any kind. Maimonides’ ruling was subjected to critical scrutiny by commentators,6 who also examined both additional talmudic sugyot,7 and various judicial policies adopted as the halakhaic worldview emerged.8 Ultimately, most of the decisors9 reached the conclusion that ‘heaven had to be severed from earth,’ leaving the halakhic enterprise solely in humans hands, without allowing ‘heavenly manifestations’ to have any expression or effect with respect to the halakha per se. So too the subject of this article, R. Abraham Isaac Hakohen Kook (Latvia 1865 – Jerusalem 1935), in complete reliance on the aforementioned ruling of Maimonides, states, in an early work, “it is a fundamental principle of the Torah that prophecy will not introduce

6 See the standard commentaries ad loc., as well as: Maase Rokeiah, Lulav 8:5; Mishne Lamelekh, Magid Mishne, Ishut 9:4; R. Moses ibn Habib, Shemot Baaretz–Kapot Tmarim, bSuka 32b; R. J. Albo, Sefer Haikarim, maamar 3, 14– 15; R. H.J.D. Azoulay (Hida), Birkei Yosef, 32:4; Shem Hagedolim, Maarekhet Sefarim Gedolim, ‘yud,’ ‘R. Jacob the Pious’; Ein Zokher, 1:15; Sdei Hemed, 1, rules, 94, 101, 112, 116. 7 bZevahim 62a; bMegila 2b–3a; bShabat 104b; bHulin 124a; bJebamot 122a; bTemura 16a. In Igrot Hareaya vol. 1, letter 103, R. Kook adds: “this is also the obvious meaning of mAvot 1:1, ‘and the elders to the prophets.’ ” 8 These are detailed in the responsa literature. Among the most important for our purposes are: Responsa Min Hashamayim (see the detailed introduction in the Margaliot edition); I. Ta-Shma, “Responsa Min Hashamayim – the work and its appendices (Hebrew),” Tarbiz 57 (1988), 51–66; N. Danzig, “Geonic responsa Sha’arei Teshuvah and She’elot u-Teshuvot min HaShama’im” (Hebrew), Tarbiz 58 (1989), 21–48. In this context, R. Kook also takes note of Responsa Min Hashamayim in Etz Hadar. 9 A different approach is, however, taken by halakhists with a pronounced inclination to mysticism; see Guttel, n. 1 above, introduction and ch. 3.

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anything new with respect to halakhic decision-making.”10 But in a number of places, R. Kook invokes the method of the Tosafists, as well as the opinion of the Geonim, against the aforementioned opinion held by Maimonides. This is evident, for instance, in two passages in Igrot Hareaya. In vol. 1, letter 103, he writes as follows: Even though in the opinion of Maimonides as set out in his Code, Laws concerning the Fundamental Principles of the Torah, prophecy is of no relevance to the halakha, nevertheless, the approach upheld by the Tosafot is that this is not a firm rule, and obviously it has its exceptions. And prophecy did have an influence on the unfolding of the Oral Law.

In vol 2, letter 690, he once again says, regarding the role of prophecy and the divine spirit in expounding the long-term law intended for implementation: In spite of Maimonides’ view that prophecy does not have the same nature as words of the Torah, the Geonim all held fast to a single position: the Torah, the Prophets, the Writings, the Sofrim, and so on . . . were enabled by the divine spirit with which Israel is imbued to create the halakha for all times. . . . and prophecy decides and interprets, and afterwards the Sofrim came to inherit this role.11 10 Ein Aya, Shabat [I] ch. 1, sec. 67. This source, which is early, does not mention the opinion of the Tosafot (addressed below). On the contrary, the explanation it brings is based on rejecting halakhic decisions derived from prophecy. Nevertheless, prophecy is given some status in the sense of prediction and foreknowledge of future developments — even with respect to the law. That is, it denies prophecy any standing vis-à-vis decision-making, but does accord it standing vis-à-vis envisioning the future. 11 See also Mishpat Kohen, §125; Ginzei Reaya, ed. B.Z. Shapiro (Jerusalem: 1990), vol. 4, 90–91; and see notes by R. Kook’s son R. Z.Y. Kook in Mishpat Kohen, p. 367 (re p. 208), and Ezrat Kohen, p. 141 (re p. 411). And see Igrot Hareaya, vol. 2, letter 467: “The Kuzari says that prophecy and the divine spirit assist in decision making, in contrast to the view of Maimonides, who sets them aside. And the divine spirit appeared in the Temple and to those present at its construction, as it is stated [about the verse ‘The word of the Lord came (hayo haya)’ (Ezek. 1:3)] “ ‘haya’ – it had been [had come] before [he came to Babylon]” (bMoed Katan 25a), and R. Johanan b. Zakai was in the Temple and was inspired there by the divine spirit.” We should note that in commenting on the Code, Laws concerning the Fundamental Principles of the Torah 9:1, R. J. Kafih expressed himself similarly with regard to Maimonides, adducing this distinction to resolve the difficulties for Maimonides’ view to which the talmudic sugyot that reflect heavenly intervention in halakhic decision-making give rise. In his opinion, Maimonides rejected only decision-making involving heavenly

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Hence, whereas on Maimonides’ view, the path to the halakhic world was closed to heavenly ‘manifestations,’ according to R. Kook, the view of the Geonim and the Tosafot is different, and they endorse the possibility of such intervention. He reminds us that the Tosafot claim that it is possible to accept the utterance of a heavenly voice when it supports a decision-making rule (‘follow the majority’) or explains it (intellectual incisiveness should not be valued above being the majority view).12 In addition, we must distinguish between a heavenly voice that comes forth to render a decision, and a heavenly voice that comes forth for other reasons (say, to support one of the sides), and as to the former, there are those who maintain that this is acceptable. At this point, the question that must be addressed is that of the degree to which R. Kook’s words remained theoretical principles — philosophic halakhic statements with no application or realization — and the degree to which he saw them as having application in practice. In other words: as is well known, there is a popular conception that R. Kook’s innovativeness remained at the level of intellectual speculation, and when it came to handing down the law to be applied ‘in practice,’ his ruling was conservative, predictable and lacking in innovativeness,13 and thus of little interest. Elsewhere I have scrutinized this argument at length, and comprehensively refuted voices, but accepted decision making involving prophecy; see R. J. Kafih, Mishne Torah (Jerusalem: 1984), 166–67 and 174–76. 12 On bBaba Metzia 59b s.v. lo; bJebamot 14a; bHulin 44a s.v. rabi yehoshua. 13 B. Ish-Shalom, Rabbi Abraham Itzhak Hacohen Kook — Between Rationalism and Mysticism (Hebrew), ed. A. Shapiro (Tel Aviv: 1990): “As a general rule we can say that in the realm of philosophy, R. Kook allowed himself almost unlimited freedom, but in the halakhic realm he took a very conservative approach” (p. 186); and “The Sabbatical Year dispensation is another striking example — due to its uniqueness — of R. Kook’s conservative approach in the halakhic sphere,” for only here does R. Kook make any use of non-halakhic considerations (p. 190). As Ish-Shalom puts it, R. Kook “almost never joined together halakha and Aggada.” And see too in an article in Hatzofe, December 4, 1987, p. 7: “This entire revolution is in the sphere of consciousness and the spirit, and not in the sphere of action and halakha.” See also idem, “Tolerance in the thought of Rav Kook: its theoretical roots” (Hebrew), Daat 20 (1988), 152–53, 167. R. Zvi Kaplan, “On his halakhic path” (Hebrew), in I. Rafael (ed.), Rabbi A.I. Kook — Collected Articles (Hebrew), (Jerusalem: 1966), 69, remarks that “considering the originality and the unexpectedness of R. Kook’s personality in general, in all its shining and resplendent variety, his engagement with the halakha seems predictable and self-evident for a great rabbi

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it14; here I will focus on one specific issue, and demonstrate that R. Kook’s innovativeness on this matter most definitely did not remain purely theoretical, but was thoroughly integrated into his halakhic deliberations on matters having implications for actual practice. Moreover, in a number of concrete cases his decisions were based on these views. In examining this issue, we will draw upon sources on three different levels: we will begin with a source that can be categorized as theoretical scholarship, then consider an interpretive source, and a source explicating the law to be put into practice (halakha lemaase). I

Etz Hadar, §34

One example demonstrating that for R. Kook, these ideas are not relegated to the realm of theoretical discussion, but thoroughly and profoundly integrated into halakhic deliberations with implications for and preeminent halakhic scholar of this caliber; it does not call for explanation.” According to H.Y Hadari, “Halakha in the thought of R. Kook” (Hebrew), in Y. Eisner (ed.), Hagut Vehalakha (Jerusalem: 1973), 57: ‘There are some who claim that it was not right for the editors of R. Kook’s writings to put their time and effort into publishing his halakhic writings before his philosophical writings. And they have good reason to say so, for even if his halakhic works will shed light on complicated matters and problems . . . there are many important and great authorities of this kind. His philosophical works, on the other hand, serve . . . as guides for the perplexed of our generation, for those who seek the pathways of Judaism. From this perspective, it would have been, in the view of those who voiced the aforementioned criticism, worthwhile to give [publication of] R. Kook’s philosophical works precedence over his halakhic works.” And A. Rosenak, “Halakhic Philosophy in the Thought of Rabbi A.Y. Kook” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 1998), p. 16, asserts: “The search for a meta-halakhic doctrine in [R. Kook’s overtly halakhic writings] will generate disappointment in the paucity of halakhic material that can be adduced, and the fact that it is strewn unsystematically throughout the works.” See too idem, Messianism, Zionism and Jewish Religious Radicalism (Hebrew), (Tel Aviv: 1993, 162–63; J. Avneri, “Rabbi A.I.H. Kook, Rabbi of Jaffa 1904–1914” (Hebrew), Cathedra 37 (1986), 49–82; J. Rotem (interviewer), “Harav Kook, from both sides of the fence” (Hebrew), Emdah 12 (1986), 12–14; Y. Cherlow, “Prophetic halakha: an outline of a theoretical foundation for halakhic renewal” (Hebrew), Akdamot 12 (2002), 7–48, esp. 44. 14 Neria Guttel, “Halakhic and Meta-Halakhic Considerations in Rabbi Kook’s Halakhic Decision-Making” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 2001), published as Guttel, n. 1 above.

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actual practice, is found in §34 of Etz Hadar.15 R. Kook devoted this work to a comprehensive halakhic study of the issue of the hybrid etrog (citron),16 and in §34 elucidates the advantages of the etrogim of the land of Israel. Earlier, in §32, in discussing the question of whether recitation of the Hallel prayer is a scriptural obligation or was established by a prophetic tradition (divrei kabala),17 R. Kook explicated the halakhic significance of prophetic statements (‫)דברי קבלה נבואיים‬, and reiterated Maimonides’ rejection of prophetic interference in halakhic matters, necessarily ascribing to prophetic statements the status of ‘supporting’ traditions (asmakhta). In essence, even here, in the very examination of the status of ‘prophetic traditions’ in light of the ‘it is not in heaven’ principle as applied to the case of prophetic statements, there is a certain degree of innovation. The discussion branched out to a different issue in §33, but in §34, R. Kook asserts that according to the Tosafot, the status and validity of ‘prophetic traditions’ is “just like that of scriptural directives,”18 and this is so despite the fact that the laws in question were transmitted through prophetic inspiration. He clarifies the rules governing legal determinations made on the basis of ‘manifestations,’ and explains that whereas, on the one hand, a bat kol, a heavenly voice, is not permitted to introduce anything whose foundation is completely unknown to us from any other source, and should it do so, such a pronouncement will be seen as no more than ‘good advice,’ in a situation where there is doubt between known opinions with rationales already familiar to us, the determination of the prophetic ‘manifestation’ can be a factor in deciding the halakha. R. Kook engages in a detailed scholarly discussion demarcating the boundaries of halakhic reliance on heavenly voices: 15 For a summary of the hybrid etrog issue, see E. Goldschmidt, “Citrons (etrogim): the nature of the Israeli citron, and problems of grafted citrons in Israel” (Hebrew), Tehumin 2 (1981), 135–45; I. Raphael, “The citrons (etrogim) of Corfu and the citrons of the land of Israel” (Hebrew), Shragai 1 (1981), 84–90; “Etrog,” Talmudic Encyclopedia 2:314–15; R. A.I. Kook, Etz Hadar Hashalem (Jerusalem: 1986), introduction by Y. Zoldan, which discusses this issue; N. Guttel, Mekhutavei Reaya (Jerusalem: 2000). 16 Cf. Guttel, ibid., sec. 34, 163–69, as well as notes and references. R. Z. Kaplan, n. 13 above, 71–73 had already pointed out the significance of this section. 17 See Maimonides, Code, Laws concerning the Megillah 3:6; Rabad, Magid Mishne and Kesef Mishne ad loc.; Maimonides, Book of Precepts (roots 1–2); Nahmanides and commentaries ad loc. 18 Cf. “Divrei kabala,” Talmudic Encyclopedia 7:108ff.

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NERIA GUTTEL It is much more plausible to say that the heavenly voice can render a decision as to a point of doubt about the law . . . and this is simply considered a decision on the basis of the Torah, because we have [knowledge of the relevant] doubts and rationales. But to say that the heavenly voice will introduce something new, something of which we have no initial acquaintance — it is not plausible that there could be any controversy about such a matter . . . it is like a new Torah, and this is impossible, for regarding this it was said, ‘it is not in heaven.’ But when we are cognizant of aspects [of an issue] as to which there are doubts, it is apt to have recourse to heavenly assistance in deciding which aspect to uphold, and thus prophecy returns to Torah law.

R. Kook then quotes remarks attributed to R. Hai Gaon,19 as well as a number of talmudic sugyot,20 that take issue with this view, implying that the boundaries within which there is room for prophecy are far broader, even extending to instances that may “appear to be like a new Torah.” He is thus compelled to posit a distinction between ordinary doubts and doubts arising from unresolved controversies. After an extensive and much-ramified discussion, he reaches the following conclusion: “In any case, it seems, as I wrote, that the main thing is that the heavenly voice, and indeed, everything that is decided by heaven, resolves our doubts. . . .” This conclusion gains further importance in light of R. Kook’s clarification that even if Maimonides himself disagreed with them with regard to the specific issue in question, the law was to be decided in accordance with the view of the Tosafot, in line with the established rules of the decisors, who accept the opinions and rulings of the Tosafot in cases like these, where Alfasi’s view to the contrary is not known.21 19 Mentioned in R. H.J.D. Azoulay (Hida), Shem Hagedolim, Maarekhet Sefarim Gedolim, ‘yud,’ 224, where they are cited in the name of Nahmanides’ Novellae on tractate Sanhedrin, ch. 3 at the end, s.v. zu sheshaninu, and reflect his view in Torat Haadam, Shaar Hasakana. 20 bTemura 16a; bSanhedrin 34a; bEruvin 13b. 21 In Etz Hadar (Jerusalem: 1985), §34, 73–74, R. Kook notes: “we have not found any indication of Alfasi’s view on this,” but in another context, and from another vantage point, he asserts that the opinions of Alfasi — and Asheri — are indeed known, and accord with that of the Tosafot. See Mishpat Kohen, §125: “We have to say that it seems that Alfasi and Asheri concur with the Tosafot regarding the sugya in bJebamot . . . that it seems a heavenly voice can decide the law. . . .” In other words, although Alfasi did not explicitly state his opinion on the matter, as it says in Etz Hadar, his ruling with regard to another sugya — namely, “do not form factions” (lo titgodedu) re two courts in one town — nevertheless indicates, even if only indirectly, that he too concurs with the Tosafot and not Maimonides. In any case, this supports the view of the Tosafot and those who adopt it.

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So according to R. Kook, prophecy, the divine spirit and heavenly ‘manifestations’ are of definite halakhic relevance, and have significance for concrete decision-making. The prophetic ‘tradition’ has import for clarification of the contemporary laws of the ritual ‘taking’ of the palm-branch (netilat lulav) on the Sukot festival, and likewise, the laws of the hybrid etrog. Nevertheless, we are speaking of controlled recourse to prophecy that meets well-demarcated conditions. ‘Prophetic traditions’ are granted halakhic validity on a par with that of scriptural authority, but only on the condition that their pronouncements are supported by foundations that are known even without them; they serve to supplement and clarify this existing knowledge, and sometimes even to decide the law, but never introduce anything altogether new, “something from nothing.”22 22 We should take note of another remark R. Kook makes in Etz Hadar, §34 that also constitutes a significant halakhic innovation. It is voiced apropos discussion of the view of Rav Hai Gaon, who favors giving more weight to ‘quality’ as opposed to ‘quantity’ in halakhic decision-making, despite the fact that the heavenly voice decided the law in accordance with the House of Hillel — “the majority” — and not the House of Shammai, “who were more intellectually incisive.” R. Kook offers the explanation that the heavenly voice only said what it said “because they [the House of Hillel] were kindly and modest” (bEruvin 13b). According to R. Kook, this description is not merely a compliment or reference to a commendable trait, but a pronouncement of significant halakhic import: This indicates that they were sure to stand up for their views even though they were not as intellectually incisive, for that which an incisive individual can do in a short time, one less incisive can achieve by his good attitude and his desire to contemplate both sides without inclination toward the view he himself holds, as this is exceedingly useful in examining the law, quite apart from the fact that those who have the said qualities are more deserving of divine aid. As the Talmud says, “[the Almighty is] with the contrite” (bSota 5a). And in determining the law the most important thing is “ ‘and the Lord is with him’ (1 Sam. 16:18) — in every place the halakha is in accordance with his views” (bSanhedrin 93b), and for this reason the heavenly voice decided against the intellectually incisive. Thus two rationales, one rational (in terms of epistemic value), and one mystical (heavenly reward for inner virtue), are suggested for giving more weight to the views of those of good character. From these rationales, it is evident that in the opinion of R. Kook, the ethical perspective in general, and the trait of humility in particular, are not only a spiritual matter of concern to ‘heaven,’ but also have practical import, and must be given significant weight in halakhic decision-making. This position is highly innovative.

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II Mishpat Kohen, §96 R. S.J. Zevin, in describing his great regard for this responsum, characterizes it as “the crowning glory” of Mishpat Kohen,23 and for good reason, as this ‘responsum’ is complex and far-reaching.24 It calls for multifaceted analysis in light of its broad innovativeness and implications for practice. In addition to its manifestly scholarly-halakhic dimension, it also has a salient meta-halakhic dimension that is meaningful and fundamental. Its main focus is a thorough clarification of “the holiness of the Temple Mount at present [viz., after the destruction of the Temple].”25 Maimonides ruled that the ‘first sanctity’ imparted to Jerusalem and the Temple by King Solomon sanctified them “for that time and . . . for the future to come.”26 Since this sanctification never ceased, Jerusalem and the Temple retained their sanctity: “We sacrifice all the sacrifices even if there is no Temple built there, and eat of the most holy [of sacrifices] in all the Temple Court even if it has been 23 R. S.J Zevin, Ishim Veshitot (Tel Aviv: 1958), 254. 24 The term ‘responsum’ with regard to this section calls for explanation. Its presentation in Mishpat Kohen does not suggest that it is a response to an inquiry: it does not open with a question, and gives no addressee, location, etc. This indicates that it was written as a booklet (kuntres) for various reasons, and not necessarily in answer to an explicit question. But in A. Bik (Shauli) (ed.), Beayot Aktualiot Leor Hahalakha: Gedolei Yisrael Meshivim Larav S.Z Shragai (Jerusalem: 1993), 82, there is a letter written by R. A.Y. Zaslanski, claiming that in essence it is indeed a responsum addressed “to a certain great scholar, none other than my old friend R. Shlomo Goren.” According to Zaslanski, Goren inquired and R. Kook replied. Unfortunately, I am unaware of anything that might support this bold contention, and on the contrary, it seems to me to be demonstrably incorrect, for two main reasons. First, because the name of the ‘questioner’ is omitted from the ‘responsum,’ though this is not the case in the rest of the book. Second, because in his Har Habayit (Jerusalem: 1992), R. Goren devoted a whole chapter (ch. 8) to a discussion of R. Kook, including the controversy over his view, in the course of which he quotes extensively from this section of Mishpat Kohen, without ever mentioning that it was a responsum addressed to himself. Hence, I am inclined to conclude that this was a pamphlet, a tract written by the author in reaction to the circumstances of the times (1921), and not necessarily a responsum. And see too the rejoinder of R. Y. Shilat, ‘The Temple Mount, revealed and hidden” (Hebrew), Hatzofe, February 12, 1993. 25 “Beit Hamikdash,” Talmudic Encyclopedia 3:233–34. 26 Code, Laws concerning the Temple 6:14–16; see mEduyot 8:6; bMegila 10a; bHagiga 3b, bShevuot 16a, bZevahim 107b, and elsewhere.

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destroyed and is not surrounded by a partition.” In this the laws of the Temple Mount differ from those of the land-dependent precepts (the Sabbatical Year, tithes, etc.),27 as the sanctity of the land lapsed at the time of the destruction of the Temple and subsequent exile. Maimonides based the distinction between the Temple and the land on the theoretical distinction between ‘the sanctity of the Divine Presence’ (kedushat shekhina), which cannot be nullified, in line with the Sages’ interpretation of the verse “and bring your sanctuaries to desolation” (Lev. 26:31): “Even though they are desolate — their holiness remains,”28 and in contrast, ‘sanctity by way of conquest’ (kedushat kibush), which is conditional on the events of a specific era, and thus nullified at a time of destruction and exile. R. Abraham b. David (Rabad), ad loc., disagreed, arguing that the distinction between the ‘sanctity of the land’ and the ‘sanctity of the Temple’ is nothing more than “Maimonides’ own opinion,” and that on the contrary, the sources indicate that the laws governing the Temple and the land are identical, hence one who maintains that the sanctity of the land has been nullified must also be of the opinion that the sanctity of the Temple has been nullified. The Rabad adds that even one who holds “that it was not nullified for the future to come” (the view of R. Jose) was only referring to the land, but with reference to the Temple, he too will admit that it has been nullified; this is, then, diametrically opposed to Maimonides’ view. The Rabad concludes with the words: “thus it was revealed to me through God’s secret [is revealed] to those who fear Him [Ps. 25:14], therefore one who enters there [the sacred areas of the Temple site] nowadays does not incur karet [divine excision].” Not surprisingly, in the course of his discussion, R. Kook feels a need to explain this seemingly very lenient ruling by the Rabad, in the context of his comprehensive project of clarifying the law and all its various sources, from exposition of the biblical texts and discussion of the talmudic sugyot, through explication of the views of the Early Authorities and decisors. But the assertions in question call for additional examination, both insofar as they have bearing on the law intended for application, and with respect to the meaning of the expression, “God’s secret [is revealed] to those who fear Him.” 27 According to Maimonides’ ruling in the Code, Laws concerning Heave Offerings 1:5, 26; cf. Laws concerning the Sabbatical Year 10:9. 28 mMegila 3:3, bMegila 28a.

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With regard to the halakha, the Rabad’s language seems to indicate that he maintains that at present — that is, since the destruction of the Temple — its sanctity has lapsed, and this is precisely the reason why he ends his remarks with the words “one who enters there nowadays does not incur karet.” Despite this, R. Kook concluded that this was not the Rabad’s intention, because even in the opinion of the Rabad, there is a prohibition, either scriptural — viz., imposed by the authority of the Torah, the Prophets (divrei kabala), or the Scribes – or Rabbinic, against entering the site of the Temple in a state of impurity, although it does not incur the punishment of karet: “It is clear that it never even occurred to the Rabad to say that at present there is no prohibition against entering the site of the Temple in a state of impurity . . . he was merely explaining that this does not incur karet.” R. Kook stresses that this was all the Rabad meant to say, and there is most definitely a prohibition.29 R. Kook is unequivocal about this, even though he is aware that of late, “they [decisors and commentators] have become used to saying that in the opinion of the Rabad, there is only a Rabbinic prohibition,” even though on his view there may well be a scriptural prohibition. But, he continues, “it is clear [!] that they only said say it as a simplification, to state the minimum threshold that is known with certitude, and not to definitively exclude the possibility that in the opinion of the Rabad there is a scriptural prohibition.”30 This is because, on R. Kook’s

29 R. Kook’s inclination to emphatically proscribe any entry to the Temple Mount is readily apparent. This altogether manifest fact is nonetheless denied in the specious presentation in the tendentious collection A.I. Kook, Orot Hamikdash, edited by E. Segal (Beit-El, Israel: 1984), as I noted in “Taken out of context” (Hebrew), Haaretz, Literary Supplement, August 26, 1998, 12–13. 30 R. Kook expresses strong, even brusque, disagreement with those who say that the Rabad permitted entry to the Temple Mount: “Heaven forbid that this absurdity should be attributed to the Rabad . . . and anyone who seeks to make such a novel assertion . . . should have adduced a source for such a strange innovation. . . . Heaven save us from such an idea, such a thing must not be done among Israel.” It is possible that R. Kook had in mind Sir Moses Montefiori’s entry into the Temple Mount — apparently on the strength of the permissive recommendation of his secretary and advisor Dr. A. Halevy (Germany 1809 – England 1887), who relied on “the Rabad’s view.” At the time, the event caused quite a stir, even giving rise to a ban on Sir Moses Montefiore. In its wake, declarations against the act were issued by R. Samuel Salant, R. Meir Auerbach and other rabbis in Jerusalem. For a description of these events, see Responsa Tzitz Eliezer,

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far-reaching interpretation, the Rabad himself remained in doubt as to the validity of the prohibition, and did not come to a clear determination that it was only Rabbinic and there was no scriptural prohibition. In R. Kook’s opinion, it was possible that the Rabad disputed only Maimonides’ theoretical distinction between the sanctity of the land and the sanctity of the Temple, and it was by no means certain that there was any disagreement regarding rulings as to the law intended for implementation (‫)הלכה למעשה‬. Indeed, R. Kook even claims that it is possible the Rabad himself believed that according to the true law, “one who enters the site of the Temple in a state of impurity at the present time [viz., the post-Temple era] will incur karet”!31 In addition to the examination of the halakhic import of the Rabad’s view, we must also examine the unique way he chose to vol. 10, #1; R. H. Hirschensohn, Malki Bakodesh (St. Louis MO: 1919), vol. 1, 3–44. The event had taken place many years earlier, but had left a deep impression. There was thus good reason for R. Kook to emphasize that entrance to the Temple Mount was forbidden by all halakhic authorities, including the Rabad. 31 Offering an intricate, far-ranging, creative and innovative analysis, R. Kook proposes that not only does the Rabad prohibit entry, but he may even hold that entry incurs the punishment of karet. He supplements his argument in Igrot Hareaya, vol. 4, letter 994: “Concerning the place of the Temple . . . we lack the means to decide this uncertainty, which was a controversy among the Early Authorities, so it remains a case where there is doubt as to whether karet is incurred. And so there is liability to bring a guilt-offering (asham talui). . . . And it is more plausible to say that the Rabad too regarded it as biblically prohibited, but it may not incur the punishment of karet for defiling the Temple when there is no Temple . . . but it nevertheless does violate the negative commandment not to defile the Israelite camp. . . . And even if we argued that the Rabad maintains that [in the said act] there is no violation of a negative commandment, there is nevertheless surely [violation of] a Rabbinic prohibition.” We should note that R. Kook’s understanding of this matter does not seem to be seconded by any other halakhic authority. The approach closest to it is apparently that of R. J. Ettlinger, Responsa Binyan Tzion Hashalem (Jerusalem: 1989), 1, #2: “In fact the Rabad is also uncertain about this . . . and does not permit entering, because there is still apprehension about transgression of a biblical prohibition,” and it is only “due to the doubt that [one who entered] is not deemed liable for karet and thus disqualified from serving as a witness.” Even so, apparently R. Ettlinger himself felt that this interpretation was somewhat forced, as he went on to say, “even if the intention of the Rabad was to permit it ab initio (lekhathila), his opinion is but the opinion of one authority.”

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express himself regarding this matter32 (and other matters as well33), in using the phrase “God’s secret [is revealed] to those who fear Him.” This raises two fundamental questions. Is the Rabad really referring to a heavenly manifestation, or is he just using flowery rhetoric? And what is the halakhic weight of this ‘secret’? Many quills were worn down debating this question even before R. Kook’s time, and both sides were vigorously defended.34 Some commentators and scholars 32 Rabad, Laws concerning the Temple 6:14. 33 Rabad, Laws concerning Those who Render Couch and Seat Unclean 7:7: “Blessed be the Lord, who revealed His secret to those who fear Him”; introduction to Rabad’s commentary on mEduyot: “I do not know any of this from a master or from a teacher, but only by the help of God Himself . . . as a secret of the kind of which it is said “God’s secret [is revealed] to those who fear Him”; Laws concerning the Palm Branch 8:8: “the divine spirit has appeared in our study hall for a number of years already”; Tamim Deiim 50: “Behold, my brother, the answers to your questions as I have been shown by heaven” (see too Hilkhot Lulav Laraavad, Chavel edition [Jerusalem: 1975]); Baalei Hanefesh, end of Shaar Hamayim: “so I was shown by heaven”; Rabad’s commentary on Sifra, Aharei Mot: “and I have come across an interpretation from heaven”; and see too the statement attributed to the Rabad in Shita Mekubetzet, bBaba Kama 112a, bBaba Metzia 102a: “so I was shown by heaven” (also in Beit Yosef on Tur, YD 126, quoting the Rashba in the name of the Rabad). 34 R. Haim Vital, Etz Haim, introduction to Shaar Hahakdamot (Warsaw: 1891), 4:2, takes the statements in Laws concerning the Palm Branch and Laws concerning the Temple literally; and see R. H.J.D. Azoulay, Shem Hagedolim, ‘Rabad’ (3rd entry) and ‘R. Jacob the Pious,’ quoting Mahari Ben-Lev (Responsa 3, #116): “Apparently the meaning is the literal sense, that the divine spirit appeared in his study hall, and he then ruled in accordance with its instructions”; this view is also held by R. Haim Shabtai, Responsa Torat Haim 3, #68. A different approach is suggested by R. Moses ibn Habib in Kapot Tmarim, bSuka 32b: “It seems that the Rabad was not boasting that the divine spirit had actually appeared to him with regard to this law, but rather, that, as he was pleased with the interpretation and distinction he had formulated, he expressed himself with a certain exaggeration; similarly Maase Rokeiah, Laws of the Lulav 8:5. Modern scholars, too, have addressed this question, adopting various positions. G. Scholem, The Beginning of Kabbalah 1150–1250 (Hebrew), (Jerusalem: 1948), 70–72, takes Rabad’s statements literally; Jacob Katz, Halakha and Kabbalah: Studies in the History of Jewish Religion (Hebrew), (Jerusalem: 1986), 16–17, regards them as rhetoric (in n. 19, he observes that in the German version of Scholem’s article, Scholem is equivocal, allowing room for both interpretations). Similarly, Twersky adduces sources extensively to argue for the view that the Rabad invokes the expression as no more than a manner of speech, see I. Twersky, Rabad of

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took the Rabad’s words to indeed refer to the divine spirit’s dictating the law, whereas others saw it as no more than flowery rhetoric used to convey the Rabad’s confidence in the correctness of his opinion, though the thrust of his ruling did not rest on this invocation of the divine spirit, but on more solid legal foundations. Obviously, the interpretive question of how to understand the Rabad’s expression is intimately linked to the more general question of the halakhic status and validity of ‘heavenly’ utterances.35 R. Kook explains this expression at length,36 stating that “even though we are not worthy of comprehending the secret of the holiness of the Rabad, of blessed memory, it is clear that he is not referring to anything that can be grasped by ordinary human reasoning,” but rather, to something esoteric, such as a heavenly manifestation. He goes on at considerable length to explicate the expression, examining its origin and parallels in the Tannaitic and Amoraic literature, as well as the contexts in which it appears. His conclusion is that “God’s secret is revealed to those that fear Him: the secret of the Lord is revealed through the divine spirit, to open their eyes so as to bring the halakha into correspondence with the truth . . . in a heavenly appearance by way of prophecy that that has been bestowed upon the sages . . . an appearance of holiness beyond human cognition.” With regard to the Rabad himself, support for this sort of interpretation is found in his personal biography: “As the great Kabbalists explained, the Rabad, of blessed memory, was one of the chief founding fathers who transmitted the hidden tradition (kabala) of Torah secrets, as explained in the books that discuss this subject.”37 It follows that R. Kook’s interpretation of the expression unambiguously steers it in a meta-halakhic direction.

Posquieres (Cambridge MA: 1962), 291–300. And see also D. Tamar, “ ‘God’s secret [is revealed] to those who fear him’ ” (Hebrew), in M. Neriya, A. Stern, and N. Guttel (eds.), Studies in Rabbi Kook’s Halakhic Rulings (Hebrew), (Jerusalem: 1992), 525–29. 35 See above re Etz Hadar, §34, Mishpat Kohen, §92. 36 Mishpat Kohen, §96:7. 37 For notes and parallels, see the annotations of the editor, R. Z.J. Kook, p. 375; and see too, R. Haim Vital, n. 34 above; R. H.J.D. Azoulay, Petah Einayim, bBaba Metzia 86a; Recanati, Naso; R. David b. Zimra, glosses on Code, Laws concerning First Fruits and Other Gifts to the Priesthood.

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Despite this, R. Kook holds that the Rabad does not dispute the basic thrust of Maimonides’ understanding of the ‘it is not in heaven’ principle,38 and that he, like Maimonides, rejects halakhic decisionmaking that relies on ‘heavenly utterances.’ Thus we have to conclude that the Rabad did not determine the law itself on the basis of “God’s secret [is revealed] to those who fear Him.” He only adduced it with respect to Maimonides’ theoretical distinction between the sanctity of the land and the sanctity of the Temple, a distinction the Rabad did not consider well-founded and permitted himself to cast doubt on and reject “on the strength of his enlightenment by the divine spirit.” R. Kook explains this ‘enlightenment’ at length, in line with the work “On Levels of Sanctity of the First Temple, and the Second Temple and the Third Temple” by the great Kabbalist, R. Moses Cordovero: Whereas the First Temple enlightened with the light of Understanding (bina) . . . it was the highest Wisdom (hokhma) that enlightened by way of the light of Understanding in Kingship (malkhut) . . . other causes brought about the ascendancy of external [forces]. . . . but after the lights descended from their lofty elevations, the Second Temple was enlightened with the light of Kingship, and no longer had the light of Understanding, and even more so [lacked] the enlightenment of Wisdom. . . . and in the future to come at the time of the Redemption, leadership will emanate from the light of Wisdom that enlightens with Understanding from the light of the Crown (keter). . . . The enlightening leadership in the days of Solomon was at the level of Wisdom that enlightens by Understanding, but was not enlightened by the light of the Crown. In any event, the first Sanctity had the enlightenment of Wisdom that enlightens with Understanding . . . and Understanding does not enlighten as much as Wisdom that is enlightened by the light of the Crown . . . A world of enlightenment of the Crown in Wisdom that enlightens with Understanding . . . from the light of the Crown, is the most elevated world . . . and this what is appropriate for the Rabad’s approach and reasoning, and the presentation of his holy thoughts, as it was revealed to him — to the Rabad — through “God’s secret to those who fear Him,” as was interpreted by scholars of the Kabbalah, whose traditions were passed down to the later generations.39

In this way, R. Kook interweaves kabbalistic theory and halakhic explication, and terms such as “sanctified for that time” and “for the

38 Code, Laws concerning the Fundamental Principles of the Torah 9; see the above discussion of Etz Hadar, §34 and Mishpat Kohen, §92 and §148. 39 Mishpat Kohen, §96 (pp. 209–10) on Elimah Rabbati, Ein Kol, Tamar 5, chs. 22, 25.

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future to come” are linked to kabbalistic themes. Hence, it is certain that he is referring to heavenly inspiration by the divine spirit, and indeed, this is the meaning of “God’s secret [is revealed] to those who fear Him,” though this is not the basis for halakhic determinations.40 If so, then even regarding a clearly halakhic issue, such as “sanctified for that time” or “for the future to come”41 — and even with respect to the application of the said law in practice, that is, the question of whether entering the Temple Mount is permitted or prohibited, R. Kook holds that, at least according to the view of the Rabad, there is indeed room for spiritual and ‘secret’ heavenly intervention.42 But it is imperative that limits be clearly delineated: heavenly intervention belongs to the realm of learned study, not that of issuing rulings in practice. On the one hand, the weight of mystical revelation is greater than that of “an ordinary hypothesis, that is in no way legally determinative,” but “the rule is that we do not decide the law on the basis of mystical experiences, since we do not issue legal rulings on the basis of the divine spirit, and it is not in heaven.”43

40 R. Kook later returned to the question of the halakhic implications of “God’s secret . . .” — from a scholarly-interpretive perspective — in his notes to R. J. Patzanowski, Pardes Yosef (Pietrkow: 1931), vol. 1, 363–64 (omitted in some later editions) [also published as endorsement 60 in J.M. Yismach and B.Z. Kahana (eds.), Haskamot Hareaya (Jerusalem: 1988), 72–74]; and see too R. Kook’s endorsement for Yaskil Avdi, vol. 1. 41 Cf. Igrot Hareaya, vol. 3, p. 237. 42 Cf. M. Klein, “The principles of Rabbi A.Y. Kook’s ideological concept of Jewish law,” in H. Hamiel (ed.), In His Method, Studies in Rabbi A.Y. Kook’s Doctrine (Hebrew), (Jerusalem: 1986), 156: “This secret is not a halakhic ruling, but a speculative–kabbalistic idea, a spiritual concept that does not impact halakhic determinations.” Klein seeks to show that “in this way the autonomy of halakhic decision-making is protected, because the influence of prophecy is in the speculative–kabbalistic realm, not the halakhic”; and see 157ff. But as we point out in this article, the secret is not only speculative–kabbalistic, but definitely halakhic as well; it does not determine the ruling handed down in practice, but is part of the learned theoretical discourse. This phenomenon is by no means common, and indeed only rarely do we encounter speculative–kabbalistic discussions in the context of scholarly halakhic analysis. 43 Mishpat Kohen, §96.

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III Mishpat Kohen, §92 In R. Kook’s ‘endorsement’ (haskama) for Responsa Yaskil Avdi, the responsa of R. Ovadia Hadaya,44 R. Kook included a halakhic note on the precise location of the altar,45 and the degree to which lack of knowledge of this location impedes renewal of the sacrificial service in our day. R. Kook leaned toward seeing it as an impediment, and as a matter of the law to be applied in practice, rejected the possibility of bringing sacrifices at the present time (that is, since the destruction of the Temple).46 After the book was published, and after R. I.H. Zerihan (the rabbi of Tiberias) and the author discussed this comment with him,47 R. Kook returned to the subject, clarifying it at length. The beginning of his exposition, Mishpat Kohen, §91, was printed in the first volume of Yaskil Avdi, and the remainder, which is of more interest to us in the present context, Mishpat Kohen, §92, in the second volume.48 In his exposition, R. Kook quotes bZevahim 62b, which states that “three prophets” taught those who came back from the first exile (olei shivat tzion) the place of the altar, since this sugya clearly proves that not knowing the exact place of the altar is indeed an impediment, and for this reason “they went to all this trouble.” But this is problematic, since in this case the halakhic determination relied on prophecy and heavenly manifestations, yet we have an accepted rule that this should not be done,49 hence R. Kook had to adduce additional talmudic sugyot: bBaba Metzia 49b, bJebamot 14a, bEruvin 13b, bHulin 44a, and

44 The endorsement, from 1932, was printed at the beginning of Responsa Yaskil Avdi, vol. 1; comparison with the text in Mishpat Kohen, §91 reveals that in the latter, R. Kook deleted a short passage that favorably noted and complimented Yaskil Avdi’s kabbalistic appendix, “Deia vehaskel.” 45 In connection with the views of R. Hadaya on this point, see ibid., YD 18. 46 This decision is fundamentally in harmony with his ruling on “the sanctity of the site of the Temple at the present time [i.e., since the destruction of the Temple],” and his opposition to entering the Temple Mount; see Mishpat Kohen, §96; Igrot Hareaya, vol. 4, letter 994. 47 Yaskil Avdi, vol. 2, YD 14. 48 First printed in the “Kuntres aharon” appended to Yaskil Avdi, vol. 2, YD 2, where R. Hadaya’s reply is also included. See too Yaskil Avdi, vol. 3, YD 21; and R. Y.H. Zerihan, Bikurei Yaakov (new edition), 1992, sec. 9–10. 49 On this and the following point, see my comments on Etz Hadar, §34.

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so on,50 regarding the ‘it is not in heaven’ principle; bTemura 16a regarding the forgetting of the law upon the death of Moses, and the attempts to restore it; bMegila 2b–3a and bShabat 104b regarding the final letters of the Aleph–Bet introduced by the prophets. In addition, of course, he adduced the views of Maimonides51 and the Tosafot on these passages. R. Kook identifies two ‘routes’ by which prophecy might play a real role in halakhic decision-making. The first is by following the teachings of the ancient prophets, allowing prophecy to be invoked if certain conditions are met: if there is no attempt to solicit prophecy through a query; if there is no apprehension that the prophecy was uttered only to ‘honor’ someone present, but was a truthful dictum; if the determination reflected the standard halakhic decision-making rules (majority v. minority); if there was an undecidable controversy between two known Torah traditions.52 But even so, difficulties remain, since “it seems that in any event there are matters with regard to which we do not rely on words of prophecy from heaven, matters pertaining to the Torah and halakhic rulings.” For example, addressing a question to heaven, which even the Tosafot agree has no validity, to say nothing of Maimonides, “who completely barred knowledge of the laws of the Torah by way of prophecy from heaven.” R. Kook thus identifies an alternative path, wider and far more innovative, a path that releases an entire realm of laws from the restrictions that apply to reliance on ‘heaven,’ prophets, and prophecy: All these things [i.e., restrictions] are not relevant to the arrangements pertinent to the building of the Temple, because with regard to this we have explicitly learned from a baraita in Sifre on the Torah portion Ree about the verse, “But unto the place which the Lord your God shall choose . . . even unto His habitation you shall seek, and thither you shall come,” and so on (Deut. 12:5) — ‘by way of a prophet,’ and another version is, ‘seek by way of a prophet.’. . . So here the Torah taught us something new: that matters concerning the altar are within the purview

50 Deuteronomy Rabbah 8, 6; end of Torat Kohanim, bMegila 2b. 51 Code, Laws concerning the Fundamental Principles of the Torah 9:1. 52 Mishpat Kohen, §89 (p. 169) adds “factual evidence by a prophet is universally accepted”; and see too §90. Common to both these sources, and the responsa we have discussed, is their focus on the Temple, and as we have argued, this is by no means accidental, since R. Kook maintains that prophets and prophecy are fundamental to rebuilding the Temple.

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R. Kook himself attests to the fact that is “a significant new teaching,” because it now turns out that a broad area of the halakha — matters connected to the altar and the Temple structure, are released from the ‘not in heaven’ restriction. It is important to emphasize that this determination is balanced, vis-à-vis the contemporary law to be put into practice, by the fact that R. Kook concludes from the arguments reviewed above that lack of knowledge regarding the altar’s exact location and construction is an impediment. Since he takes the sugya of the three prophets at face value, that is, as valid vis-à-vis the law to be put into practice, we can infer a halakhic principle: matters of the Temple are ‘indeed in heaven.’ R. Kook’s analysis then turns to the question of whether our era can at least be considered ‘worthy’ of bringing sacrifices, in the sense of the principle, “Wherever proper mingling is possible, mingling does not impede, wherever proper mingling is not possible, mingling does impede.”54 This discussion is necessary, since in his halakhic remarks in the aforementioned endorsement (Mishpat Kohen, §91), R. Kook noted

53 In his reply to R. Kook, n. 48 above, R. Hadaya supports this view, relying on Tosafot Yomtov, mMidot 3:13; see also R. J. Ettlinger, Responsa Binyan Tzion Hashalem, n. 31 above, 1, #1 (see the reply of R. Z.H. Kalischer, Kuntres Shalom Yerushalayim in the note on p. 4); Responsa Hatam Sofer, OH 208, YD 233; cf. R. Z.N. Goldberg, “Yihus yisrael al yedei . . .,” in I. Warhaftig (ed.), Yeshuot Uzo — Memorial Volume for Rabbi U. Kalcheim (Jerusalem: 1996), 78–81. 54 bMenahot 18b; Maimonides, Code, Laws concerning the Manner of Offering Sacrifices 17:6. Meal Sacrifices consisted of a mixture of fine flour, olive oil and spices. The Talmud says that the ingredients must be mixed if possible, but their not being mixed is not an impediment to offering the sacrifice.

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that as long as there is no certainty about the exact location of the altar, our status is ‘not worthy,’ and this impedes the sacrifices just as the inability to mix the ingredients is an impediment with respect to meal offerings. However, when he revisited the matter (§92), R. Kook took a completely different approach, maintaining that it is indeed possible that in the present circumstances we have the status of ‘worthy,’ because there is a possibility, here and now, that we can discover the exact location by way of a heavenly ‘revelation’! R. Kook’s view is distinctly innovative, inasmuch as not only are we permitted to solicit guidance from a prophet on these matters, we are also permitted to pose questions to the divine spirit, “since the Torah permitted heavenly revelations regarding the law on these matters.” This is implied by the sugya in bZevahim,55 which tells us, R. Kook notes, that “they saw the ashes of Isaac or [another alternative is that] they saw the archangel Michael performing the sacrifice.” He goes on to say that even today, some among us are worthy of the divine spirit, and their very existence among us has the effect of imparting halakhic validity to the rubric ‘worthy’ in the present day: As we already know, even though the age of prophecy is over, nevertheless the divine spirit has not departed from those worthy of it in every generation, as has been noted by R. Haim Vital in Shaar Hakdusha, and as was taught in Tanna Devei Eliahu. The divine spirit rests on everyone in accordance with their deeds; this being so, we have to say that we may be considered worthy . . . and that the world never lacks any of the thirty-six righteous ones, as it says in bSuka 45b. And it will be revealed to us by one of the righteous who is worthy of that, and for this reason by virtue of them we will be considered worthy.

In this way R. Kook seeks to counter an objection raised by R. I.H. Zerihan regarding Maimonides’ ruling concerning one who slaughters an animal and presents it as sacrifice in our day.56 He is liable for punishment, “because it was a fit sacrifice and should have been presented inside [the Temple].” As was mentioned above, if ignorance of the exact location of the altar impedes the offering of sacrifices, why would such an offering be considered ‘fit’? But it is now clear that though it is imperative to find the exact location of the altar, for which a revelation from heaven is required, the circumstances of our time do not prelude the category of ‘fitness,’ with all its halakhic 55 bZevahim 62a. 56 Code, Laws concerning the Manner of Offering Sacrifices 19:15.

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implications, due to the fact that there are some among us who are worthy of the divine spirit. It is that straightforward. In short, R. Kook’s certainty that in every generation, including ours, there exist some who are worthy of the divine spirit — the ‘thirtysix righteous ones’ in the literal sense — is not significant only with respect to the spiritual sphere, but has practical importance with respect to the clarification of theoretical halakhic questions regarding the views of Maimonides, and even has some bearing on halakhic decisions intended for application derived from these views.57 Two additional points should be noted. First, we should attend to the significance of R. Kook’s deriving practical halakhic consequences from his complex and comprehensive engagement with a subject that is fundamentally spiritual in nature — prophets and prophecies, the divine spirit, heavenly revelations and manifestations, the thirty-six righteous ones, and so on. Second, we should take note of his use of ‘hidden’ (mystical) and aggadic sources, such as R. Haim Vital’s Shaar Hakdusha and the Midrash Tanna Devei Eliahu, sources he invokes, together with — and with the same frequency as — standard sources, in conducting his halakhic deliberations. These points corroborate, with respect to the Temple and sacrificial service, what was said above regarding the close affinity and reciprocal impact and crossfertilization of the halakha and the meta-halakha. R. Kook’s investigations are not only abstract, theoretical, and scholarly in nature. In his view, theoretical determinations can generate significant halakhic conclusions that have application in practice. It is just such conclusions that he adduces in characterizing the present epoch as ‘worthy,’ in the sense explained above. It is ‘worthy,’ since we are able to solicit divine instruction; ‘worthy,’ since from the writings of the Kabbalists we know that even in our day the divine spirit has not departed from the meritorious; ‘worthy,’ since the world does not lack any of the thirty-six righteous ones, and surely the necessary

57 On the thirty-six righteous ones, see G. Scholem, Explications and Implications: Writings on Jewish Heritage and Renaissance (Hebrew), (Tel Aviv: 1989), 199–204; idem, Elements of the Kabbalah and its Symbolism (Hebrew), trans. J. Ben-Shlomo (Jerusalem: 1976), 213–58; M. Beer, “Regarding the sources of the number of the 36 Zaddiqim” (Hebrew), Bar Ilan 1 (Ramat Gan: 1963), 172–76; Y. Liebes, The Messiah of the Zohar (Hebrew), (Jerusalem: 1982), 141–43 n. 211; G. Nigal, Manhig Veeida (Jerusalem: 1962), ch. 4, “Tzadik veeida.”

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information will be revealed to us by one of these righteous individuals. And since our era is defined as ‘worthy,’ we can proceed in our consideration of whether lack of certain knowledge is an impediment or not. As we said, R. Kook’s learned study does not remain solely an intellectual endeavor, but becomes a real factor in deciding whether, in our day, that is, in the post-Temple epoch, sacrifices are, as a matter of the law to be implemented in practice, permissible, or there an essential impediment to bringing them. R. Kook reiterates these principles in two of his letters. In a letter to R. N. Greenspan, he states unequivocally: “And in particular, I am certain that regarding all the doubts impeding plans for the rebuilding of the Temple, such as those concerning the blue thread (tekhelet),58 and the lineage of the priestly families, and the proper measurements and location of the altar, and so on, the divine spirit will assist in clarifying the law . . . for all of these are integral to the Torah.”59 So too in a letter to R. H. Hirschensohn: “we cannot proceed to [reinstate] the sacrificial service until the explicit appearance of the divine spirit among Israel.”60 These statements, which are expressed time and again both in works of a completely halakhic nature and in personal correspondence, readily indicate how deeply these matters constituted a permanent, foundational and binding consideration for R. Kook. In his opinion, on all issues having to do with the Temple, broadly speaking, such as its structure and measurements, the blue thread, priestly lineage, and the sacrificial service, the divine spirit is an essential element in resolving halakhic uncertainties. In other words, in this realm, it is indeed in heaven! To conclude, the ‘it is not in heaven’ principle that is, as a rule, fundamental to the world of halakhic decision-making, the principle that lies at the very foundation of the entire halakhic enterprise, has been show to have a significant exception, namely, the realm 58 On R. Kook’s stance regarding the blue thread, see S.J. Wingort, “Between tekhelet and white” (Hebrew), Tehumin 21 (2001), 505–507; Wingort, however, does not address the fact that according to R. Kook, today too we may be ‘worthy’ of the divine spirit, in which case there is no impediment. 59 Ginzei Reaya, vol. 3, 64; see also Ginzei Reaya, vol. 6, 155–56: “For the time of the great purpose. . . . Torah and prophecy will truly unite, and every uncertainty will be resolvable by prophecy. . . . when all will be prophets, surely the power of prophecy will serve the Torah better than it can be served by human intellection, as it is more elevated and more sublime.” 60 Igrot Hareaya, vol. 4, letter 994, p. 24.

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encompassing the laws of the Temple. We have seen that in the view of R. Kook, the Tosafot and even Maimonides agree that “the Temple is different” (‫ — )מקדש שאני‬unique laws apply to the Temple, laws governed by decision making rules that differ significantly from those governing the rest of the Torah. They are indeed heavenly. R. Kook’s innovative approach merits attention for two reasons. First, from the halakhic perspective in the narrow sense, as he has removed a significant realm from the halakhic purview, showing it to be governed by different decision-making principles. And second, from the broader halakhic perspective, as he has invoked philosophical– spiritual speculation as a basis for decisions having implications for actual practice. Needless to say, this approach is in harmony with R. Kook’s vision of a synthesis between halakha and Aggada, law and lore.61

61 See Orot Hakodesh 1 (seder 2): the unification of the hidden and the revealed (§16–18), 21ff.: the unification of Torah and prophecy, the unification of the prophetic spirit with the halakha, unification of halakha and Aggada, and so on. On this subject, its connection to the Aggada and halakha in general, and to the Babylonian and Jerusalem Talmuds in particular, at present and in the future, see Igrot Hareaya, vol. 1, letter 103, a letter to R. I.A. Halevi Rabinowitz upon publication of his work Dorot Rishonim, and letter 96 to members of the Beit Vaad Lehakhamim; Otzarot Hareaya, vol. 4, p. 186a, a 1927 letter to R. A.I. Zaslansky; Igrot Hareaya, vol. 2, letter 690, a letter to R. Kook’s son R. Zvi Yehuda Kook, and see too letter 808; Orot Hatora, ch. 13; Hartzaot Harav (at the end); “Mamar torat eretz yisrael,” Maamarei Hareaya, 1:78–81; Ginzei Reaya, vol. 6, 155–56; and see too N. Guttel, “Torat eretz yisrael – hatalmud hayerushalmi bemishnat harav kook,” in Warhaftig, n. 53 above, 390–412; and idem, n. 1 above.

The Jewish Law Annual, Vol. XVII

THE NUMBER OF JUDGES IN ANCIENT ISRAEL DAVID HENSHKE*

The earliest description of a Jewish or Israelite judicial system is the biblical account of Moses’ appointment of judges, in line with Jethro’s advice: “Set these over them as chiefs (sarim) of thousands, hundreds, fifties, and tens” (Exod. 18:21).1 If these instructions were followed verbatim, in a community numbering 600,000 men, “all the judges2 of Israel would number seventy-eight thousand six hundred,” according to the Sages’ preferred mode of making the calculation.3 Apparently

* David Henshke teaches in the Department of Talmud at Bar-Ilan University, where he heads the Naftal Centre for Sudy and Dissemination of the Oral Law. He is also editor of Sidra: A Journal for the Study of Rabbinic Literature. 1 Cf. the parallel in Deuteronomy 1:9–17. While the text in Numbers 11:15–17, 24–29 does indeed refer to the seventy elders selected as “elders and officers of the people,” they are not assigned any judicial role, and are most probably not relevant to the questions to be discussed here; at any rate, there is no mention of “chiefs of thousands,” and so on, only of the seventy elders. The scholarly literature explores in detail, as is its wont, the differences between the three episodes; see, e.g., H. Reviv, “The traditions concerning the inception of the legal system in Israel; significance and dating,” ZAW 94 (1982), 566–75; M. Weinfeld, Deuteronomy 1–11 (Anchor Bible), (NY: 1991), 139–40. 2 Manuscripts of the Mekhilta read ‘dayanei,’ ‘judges of’; printed editions read ‘sarei,’ ‘princes [chiefs] of.’ 3 Mekhilta, Masekhta de-Amalek, parasha 4 in the manuscript versions (which do not reflect the division into weekly portions, as it is irrelevant to the original division of the Mekhilta); parasha 2 in the printed editions (which begin the ‘Yitro’ portion with parasha 1). See the Horowitz-Rabin edition, 199, and parallels listed in M. Kahana, “New fragments of the Mekhilta on Deuteronomy” (Hebrew), Tarbiz 54 (1985), 501 n. 99 (the list should be corrected to read: jSanhedrin 1:2 [19c]; jSanhedrin 10:2 [28d]). This mode of calculation is also found in Sifre Deuteronomy, 14 (Finkelstein edition, 23), and in the Mekhilta ad loc., see Kahana’s comprehensive discussion, 499–501.

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realizing the difficulty in such large numbers, another mode of calculating the number of judges was suggested: a “chief” (sar) was appointed not over every ten men, but over every nineteen (the biblical text, translated literally, is “chiefs of tens,” in the plural, not “chiefs of ten”), and so too for the “chiefs” of fifties, hundreds, and thousands: as long as the unit has not doubled in size, it has only one chief.4 This cuts the total number of judges to one half of the previous figure. But even on this mode of calculation, the number of judges would still be exceptionally large, and thus problematic; it is difficult to envisage such a system in reality,5 or fathom what purpose it could serve.6 Be that as it may, these figures emerge from the account of Jethro’s advice to Moses in the wilderness and Moses’ subsequent action, when the entire nation was gathered together in one place. The judicial system that would be implemented and endure for generations, 4 See Sifre Deuteronomy, 15, p. 25, as explained by R. Hillel and as in most of the textual witnesses; also in the parallel Mekhilta, see Kahana, ibid., 528–30 (on Kahana’s suggestion that the Hebrew word ‘‫‘( ’או‬or’) be interpreted here as ‘and,’ see my “ ‘For a hung body is an affront to God’: on the difference in exposition between the Sages and the sectarians and the Mishnah and the Tosefta” (Hebrew), Tarbiz 69 (2000), 518 n. 51). Kahana did not point out that the passages in question, from Sifre and the Mekhilta — those cited here and those cited in the previous note — are thus not in agreement as to the number of judges in Israel. 5 See Ibn Ezra (long version) on Exodus 18:21: “One might question whether these sarim are to be understood literally, in which case their number would be more than 79,000. . . . How could one eighth of the camp be heads of tribes? . . . And you would find that they possessed all the aforementioned virtues, and they would be among those who left Egypt, who had learned their ways. . . . Now the generation of the wilderness, who Moses taught for forty years, and who did not have to pursue any craft, because their food was provided and their water supply was reliable . . . and Moses said to them in the fortieth year, ‘The Lord has not given you a mind to understand’ — one might question how there could be the aforementioned number of people, all wise and discerning!” See also Gersonides ad loc. (Brenner-Cohen edition, 301); Abravanel ad loc. (Shotland edition, 268–70). 6 Ibn Ezra, e.g., states: “It is hardly probable that there would be so many chiefs, as Scripture says, ‘When there is rebellion in the land, many are its rulers.’ ” See also R. Isaac Arama, Akeidat Yitzhak, gate 43 (Pressburg: 1849), 92a; R. Menahem Kasher, Tora Shleima 15 (NY: 1953), 135–36. The question is not discussed in T.D. Weinshall, “The organizational structure proposed by Jethro to Moses,” Public Administration in Israel and Abroad 12 (1972), 9–13.

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however, is laid down in the book of Deuteronomy, where the key is not numbers of people, but the population’s tribal and geographical distribution: “You shall appoint judges and officials in all your gates which the Lord your God is giving you, in all your tribes” (Deut. 16:18). And we later find King Jehoshaphat appointing “judges in the land in all the fortified towns of Judah, in each and every town” (2 Chron.19:5).7 This being so, was the early ‘wilderness’ model, based on “chiefs of thousands . . . and tens” nonetheless preserved in any way in later times? It is true that we find references to “chiefs of thousands and of fifties”8 and “chiefs of thousands and chiefs of hundreds,”9 but these appear in the context of the royal administrative apparatus, not necessarily the judiciary. This may be the source of the reference in the Temple Scroll, in an account of the notables seated in the Temple sukkah: “for the elders of the congregation, for the princes, the heads of the fathers’ houses of the children of Israel, the chiefs of the thousands and the chiefs of the hundreds.”10 Granted, sectarian writings do refer to chiefs of thousands and chiefs of hundreds in an explicitly judicial

7 See also Ezra 10:14: “the elders and judges of each town.” On Chronicles’ account of Jehoshaphat’s judicial system, see the references in I. Kalimi, The Books of Chronicles: A Classified Bibliography (Hebrew), (Jerusalem: 1991), 179–80. See also E.E. Urbach’s comment in From the World of the Sages (Hebrew), (Jerusalem: 1988), 295: “Jehoshaphat’s judicial reform . . . the authenticity of which could be doubted only by biblical scholars”! And see n. 10 there. 8 1 Samuel 8:12. The expressions “chief of a thousand” (1 Sam. 17:18; 18:13); “chiefs of thousands” (2 Chron. 17:14); “chiefs of hundreds” (2 Kings 11 and 2 Chron. 23); and “chief of fifty” (2 Kings 1:9–13) all occur in military contexts. “Chief of fifty” in Isaiah 3:3 and “chiefs of thousands” in 1 Chronicles 15:25 refer to unspecified leadership roles. 9 1 Sam. 22:7; 1 Chron. 26:26; 27:1; 28:1; 29:6; 2 Chron. 1:2. These terms are already found in Numbers 31, but the context is distinctly military; see also 2 Sam. 18:1; 1 Chron. 13:1; 2 Chron. 25:5. 10 XLII, 13–15 (Y. Yadin, The Temple Scroll (Jerusalem: 1983), vol. 2, 180; Yadin translates sarim as “commanders”). “Chiefs of thousands” as leaders of the congregation are mentioned in XXI, 6 (p. 92) and XXII, 2 (p. 99). Chiefs of thousands, hundreds, fifties, and tens are also mentioned in explicitly military contexts in LVII, 4–5 (p. 256) and LVIII, 4 (p. 260). There are similar references in The Scroll of the War of the Sons of Light against the Sons of Darkness IV, 1, 4 (Y. Yadin [London: 1962], 272, 274), here too the context is non-judicial.

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sense, for we find the following in the Rule of the Congregation: “And at thirty years of age he shall draw near to decide a legal case and to take a firm stand among the heads of the thousands of Israel, the rulers of hundreds, the rulers of fi[f]ties, [and the rulers of] tens, and to be one of the judges and officers for their tribes.”11 This source combines the Deuteronomic directive (“judges and officials . . . in all your tribes”) with Exodus’ “chiefs of tens” and so on. This is indeed typical not only of the Qumran sect’s exegetical approach,12 but also of its general advocacy of the ‘wilderness model.’ It viewed the Israelite camp in the wilderness as an ideal that the community in the land of Israel should seek to model itself on.13 But as this adherence to the wilderness idea is consistent with the utopian nature of sectarian halakha, no real conclusions can be drawn from the sectarian account of the judiciary. Nevertheless, we find that even in the Tannaitic halakha, the wilderness model serves as a model for the judicial system that is to be implemented in practice. In fact, a new Tannaitic source in this regard has recently come to light — a passage from Sifre Zuta on Deuteronomy, fragments of which were recently published by Menahem Kahana.14 This new material provides a good opportunity to review the issue.

11 1QSa (Rule of the Congregation) I, 14–15, 29; see J.H. Charlesworth (ed.), The Dead Sea Scrolls . . . with English Translations, I: Rule of the Community and Related Documents (Tübingen: 1994), 112–15. In his Hebrew edition of the scroll, Jacob Licht explains “chiefs of hundreds,” etc. in a military sense, see The Rule Scroll (Hebrew), (Jerusalem: 1965), 258, 263; his view is accepted by L.H. Schiffman, Sectarian Law in the Dead Sea Scrolls (Chico CA: 1983), 35. This, however, is hardly tenable, since the sentence in question begins with “decide a legal case” and “take a stand” and ends with “judges and officers.” Cf. J.M. Baumgarten, Studies in Qumran Law (Leiden: 1977), 186. An organizational division into thousands, hundreds, etc., with no connection to either chiefs/captains or the judicial system is attested to by a variety of sources; see Scroll of the War, n. 10 above, 59–61. 12 See, e.g., A. Goldberg, “The early and the late Midrash” (Hebrew), Tarbiz 50 (1981), 96–97; J. Milgrom, “The Qumran cult: its exegetical principles,” in G.J. Brooke (ed.), Temple Scroll Studies (Sheffield UK: 1989), 171. 13 See my “The sanctity of Jerusalem: the Sages and sectarian halakha” (Hebrew), Tarbiz 67 (1998), 18ff. 14 M.I. Kahana, Sifre Zuta on Deuteronomy (Hebrew), (Jerusalem: 2003). See my “Scheming witnesses: toward a solution to an ancient riddle” (Hebrew), Tarbiz 72 (2003), n. 10.

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Why does a town need 120 residents to merit a Sanhedrin?

We have already adduced the verse that opens the Torah portion ‘Shoftim,’ which sets down the commandment that the Israelites are to appoint judges “in all your gates” (Deut. 16:18). Sifre comments: “Whence do we learn that a court is to be appointed in each and every town? We learn this from [the verse] ‘judges . . . in all your gates.’ ”15 A similar comment is made in the Mekhilta on Deuteronomy 25:7: “ ‘His brother’s widow shall appear before the elders at the gate’ — this implies (magid) that there is a court in each and every town.”16 That the Hebrew “gates” is to be understood as “towns” was already implicit in Jehoshaphat’s appointment of the judiciary, as described previously; there, however, the appointment was confined to “the fortified towns of Judah”; whereas these halakhic Midrashim do not clearly define the minimum size of a “town” for our purposes. And neither Chronicles nor the halakhic Midrashim specify the level of legal proceeding that is called for (viz., whether a bench of three suffices, or a larger court is needed).17 The Mishnah and the Tosefta, however,

15 Sifre Deuteronomy 144 (Finkelstein edition, 197). 16 Midrasch Tannaim zum Deuteronomium, ed. D.Z. Hoffmann (Berlin: 1908), 166 = Midrash Hagadol (Fisch edition, 564). Since nowhere else in the Rabbinic literature is the appointment of judges in every town linked to this verse, and moreover, the term “magid” is typical of the school of R. Ishmael, it seems highly likely that the source of the regulation is the lost Mekhilta of R. Ishmael. The interpretation “in each and every town” is thus accepted by the two Tannaitic schools; for further parallels see Kahana, n. 14 above, 234. 17 However, in the well-known baraita of R. Jose concerning the history of halakhic decision-making in Israel, we learn: “The other courts, each of twenty-three [members], were in the towns of the land of Israel” (tHagiga 2:9 (Lieberman edition, 383), and parallels listed there). This makes it clear that the precept “in all your gates” refers to a court of twenty-three, but we still have no definition of “town” in this context. Nor may anything further be inferred from the talmudic formulations (jSanhedrin 1:2 (19c); bSanhedrin 88b): “. . . in all the towns of [jSanhedrin: the land of] Israel.” A Yemenite MS of bSanhedrin reads: “. . . in the other towns of Israel.” I am indebted to R. J. Hutner, director of the Complete Israeli Talmud Institute (Yad Harav Herzog) Jerusalem, for allowing me to consult the institute’s collection of variant readings of the Babylonian Talmud.

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define the minimum specifications for a town to merit a 23-member Sanhedrin: Mishnah Sanhedrin 1:6 How many [residents] should there be in a town for it to merit a Sanhedrin? — One hundred and twenty. R. Nehemiah says: Two hundred and thirty, enough for (kedei)18 chiefs of tens.

Tosefta Sanhedrin 3:9 R. Judah used to say: Every town in which there are enough [residents] for (kedei)19 three rows of twenty-three,20 and three magistrates’ officials, and the accused (vehanidon),21 and the witnesses, and the conspirers [who contradict the testimony of the witnesses], and the conspirers against the conspirers against [the witnesses], merits22 a Sanhedrin. R. Nehemiah says: Two hundred and thirty,23 and the law is in accordance with his view. R[abbi]24 says: Two hundred and seventy and seven.25

The number specified by the anonymous first Tanna in the Mishnah, one hundred and twenty, is explained in bSanhedrin 17b in the spirit of R. Judah’s explanation in the Tosefta, though the Tosefta is not cited explicitly. However, the total number of persons necessary for the proper functioning of a court, as calculated by R. Judah, does not come 18 For details of the difference between the formulation as given in the mishnaic attestations, which read kedei, and those of the Babylonian Talmud, which read keneged, i.e., “compared to,” “as against,” see Kahana, n. 14 above, 234 n. 1; some Genizah fragments (Cambridge), however, contain attestations of the Babylonian Talmud that read kedei: T-S NS 329, 955; T-S AS 95, 102. 19 The locution “enough for” (kedei) is found in the printed editions and MS Vienna; but not, however, in MS Erfurt (and thus not in the Zuckermandel edition, 419). 20 Printed editions, but not the MSS, repeat the word ‘esrim’ (twenty). 21 This is the formulation given in MS Vienna and the printed editions; MS Erfurt (hence also Zuckermandel) reads: vehamadin. 22 As in the MSS, which have the singular reuya; the printed editions read reuyin (plural). 23 In MS Vienna and printed editions; MS Erfurt (and the Zuckermandel edition) have the corrupt reading “and three.” Cf. Kasher, n. 6 above, 15, 135. 24 In MSS; printed editions read “R[abbi] M[eir].” The epithet “Rabbi” refers to Rabbi Judah the Prince. 25 “And seven” is found in MS Vienna and the printed editions, but not MS Erfurt.

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33

to one hundred and twenty, so the Talmud had to add “ten batlanin of the synagogue,” as well as other functionaries necessary for urban life, for instance the physician, the surgeon, and the schoolteacher.26 However, the unqualified number specified by the Mishnah, “one hundred and twenty,” does not really warrant the explanation given in the Talmud. Moreover, R. Judah’s calculation does not refer to ordinary people, since the three rows of twenty-three are rows of scholars worthy of being appointed to the Sanhedrin. The Mishnah, on the other hand, refers simply to the number of residents of the town in question.27

26 On the problem of ensuring that the total comes to 120, see the Early Authorities ad loc. 27 Urbach, n. 7 above, 296 (English version: The Halakhah: Its Sources and Development [Jerusalem: 1986], 61–62), attributes the number 120 to R. Judah, suggesting that the number refers not to the population of the town, but to the number of residents who were qualified to serve as judges, from whom the twenty-three judges would be chosen. Urbach’s questionable inference that the same holds for the figures given by R. Judah’s opponents (and his no less questionable reliance on the reading “kedei” rather than “keneged”) has been rebutted by Kahana, n. 14 above, 235 n. 7; moreover, his identification of the anonymous first Tanna in the Mishnah with the view of R. Judah, which even the Babylonian Talmud does not explicitly assert, is untenable, as noted above. It seems that a distinction must be made between two layers in the sugya in the Babylonian Talmud. The main list of functionaries, which is in Hebrew (in contrast to the numbers it contains, which are in Aramaic), is apparently simply a baraita known to the anonymous editor (as suggested by R. Jonathan of Lunel in his commentary on the Mishnah ad loc., in Sanhedrei Gedola Al Masekhet Sanhedrin [Jerusalem: 1969], 2: 20: “This is explained in a baraita”). This baraita is very similar to the view of R. Judah in the Tosefta. It was probably originally appended to our Mishnah as simply another opinion, not an explanation. However, the anonymous editors of the sugya, who took it as referring to the Mishnah, on the one hand, and were unable to explain the view of the first Tanna, on the other, prefaced it with the question (in Aramaic), “What is the rationale for ‘one hundred and twenty’?”, turning the baraita into an explanation for the view of the first Tanna. This, however, required that further material be added, since the tally in the baraita itself does not come to 120; a source was thus found in an additional baraita — “moreover, it has been taught” (vetanya) — that addressed something else: “A scholar should not reside in a city where the following ten things are not found. . . .” In sum, the explication of the first Tanna’s view in the spirit of R. Judah’s opinion is due solely to the later editor(s) of the sugya.

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Nor does the relevant passage in the Jerusalem Talmud, jSanhedrin 1:2 (19c), provide an explanation for the number one hundred and twenty: What is R. Nehemiah’s rationale? It is that a court of twenty-three should be there, and the accused [pl.] and the witnesses, and those who conspire against them, and the conspirers against the conspirers against [the witnesses], and the court official (hazan), and their scribes, and the beadle. What is the Sages’ rationale? It is that twelve Sanhedrins of twelve tribes should be there, with Moses [presiding] over them.

The author of the Pnei Moshe commentary suggests that the statements in the Jerusalem Talmud should be transposed, since the rationale attributed to R. Nehemiah is that of the Sages (rabanan), namely, the (anonymous) first Tanna in the Mishnah (as cited in the Babylonian Talmud), or of R. Judah in the Tosefta. But even after this transposition, R. Nehemiah’s calculation still does not reach the right total, and Pnei Moshe is forced to emend the text, reading “ten Sanhedrins of ten tribes”; the number then reaches two hundred and thirty, as specified by R. Nehemiah.28 Now, apart from the question of this unsupported emendation, what is the relevance of “ten tribes” here? The Later Authorities came up with a more convincing explanation. The calculation invoking twelve Sanhedrins should be attributed not to R. Nehemiah, but to the Sages, rabanan, but the latter, they explain, is an incorrect rendering of the abbreviation “R.,” and should in fact be “Rabbi” (this confusion is commonplace). This rationale, then, gives an accounting of Rabbi’s calculation in the Tosefta: twelve Sanhedrins, one for each of the twelve tribes (12 × 23), come to 276, and together with “Moses presiding over them” (that is, an added judge to preclude the 28 The text of Pnei Moshe reads, “ten Sanhedrins of twelve tribes” instead of “ten tribes,” but in all likelihood this is a copyist’s error. Both R. Joseph Zvi Duenner, in his glosses (Frankfurt a/M: 1902), and Mikhal Hamayim, uphold the account presented above (12 Sanhedrins × 12 tribes). Baumgarten, n. 11 above, 162 and n. 44, accepts the Pnei Moshe’s emendation, but retains the reading “rabanan,” that is, the ascription of this view to the first Tanna of the Mishnah. He explains the number 120 as the product of ten (judges) × twelve (tribes). The first Tanna, however, was not speaking of the number of judges, but the town’s population; and “ten Sanhedrins,” quite apart from the lack of textual evidence, are not 10 but 230 judges. Baumgarten’s second suggestion as to how to read the Jerusalem Talmud (also suggested, independently, by Z. Safrai, The Jewish Community in the Talmudic Period (Hebrew), [Jerusalem: 1995], 49) had been put forward by the Later Authorities cited in n. 29 below.

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possibility of a deadlocked bench, as per Moses joining the seventy elders), the total is 277, the number specified by Rabbi.29 It thus seems that because of the error regarding the word “rabanan,” the explanation in the Jerusalem Talmud was mistakenly attributed to the first Tanna in the Mishnah, and this led to the mistaken reference to R. Nehemiah. However, as quite frequently happens, the discussion in the Jerusalem Talmud addresses the dispute in the Tosefta, not that in the Mishnah, even though the Tosefta itself is not quoted by the Jerusalem Talmud.30 The first reason, “that a court of twenty-three should be there,” and so on, clearly does not refer to the view of the anonymous first Tanna in the Mishnah: it does not explain how the number one hundred and twenty is arrived at.31 Rather, it is an explanation of R. Judah’s view as expressed in the Tosefta, which indeed does not name that figure. The rationale in the Jerusalem Talmud is akin to that given in the Tosefta for R. Judah’s ruling. This leaves the view of the anonymous first Tanna of the Mishnah — the town must have one hundred and twenty residents — unexplained, as

29 Or Sameiah on Maimonides, Code, Laws concerning the Sanhedrin 1:10. See also Sheyarei Korban and Duenner ad loc.; Tal Tora ad loc. tries to combine the two explanations in the Jerusalem Talmud into a single explanation for the rationale of first Tanna of the Mishnah, but the reasoning is very forced. 30 On this familiar situation, see the references cited in L. Moscovitz, “More on the missing baraitot in the Yerushalmi” (Hebrew), PAAJR 61 (1995), 1–4, notes. See also D. Henshke, The Original Mishna in the Discourse of the Later Tannaim (Hebrew), (Jerusalem: 1997), 85 n. 75. 31 This forced the authors of Sheyarei Korban and Mikhal Hamayim to add the whole list from the Babylonian Talmud to the text of the Jerusalem Talmud in order to reach the number 120, without any evidence. See also Yefe Einayim on the Babylonian Talmud ad loc. Alei Tamar ad loc., in an attempt to avoid such an emendation, proposes a very forced argument. Safrai, n. 28 above, 49, suggests explaining the text by dividing it into two; only the “It is that a court of twenty-three should be there,” he maintains, is the Jerusalem Talmud’s explanation of R. Nehemiah’s view. Since the issue in question is a court of twenty-three, he argues, the “chiefs of tens” principle yields the desired total of 230. The continuation (“and the accused . . .”), he claims, is a fragmentary quotation from the Tosefta, namely, from R. Judah’s dissenting view. However, this explanation of R. Nehemiah’s view is basically superfluous, for there is no doubt that a twenty-three member court is implied; see below at notes 32 and 34. The Jerusalem Talmud asks the question ‘What is so-and-so’s rationale?’ only twice, and hence cites only two opinions. Nevertheless, Safrai was correct in invoking R. Judah’s view in this context, for reasons to be explained shortly.

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the Jerusalem Talmud addresses only the controversy in the Tosefta. There was no need to explain R. Nehemiah’s rationale, since it is explicitly given in the Mishnah (“enough for chiefs of tens”), nor did the Babylonian Talmud deem it necessary to explain it32; and as noted, the views of R. Judah and Rabbi in the Tosefta are explained in the Jerusalem Talmud. The anonymous calculation in the Mishnah, however — which is not mentioned in the Tosefta — is not explained in the Jerusalem Talmud. Since, as we saw, the explanation in the Babylonian Talmud is untenable, we have no convincing explanation of that view. And indeed R. Joseph Zvi Duenner comments, “Perhaps some error has been made in that number in our Mishnah; the matter requires further study.”33 Clearly, however, such an unfounded conjecture, unsupported by any of the textual witnesses we possess, does nothing to resolve the problem.34 32 Cf. Tal Tora ad loc. Hence there is no need for Duenner’s perplexity, in his glosses on bSanhedrin 17b, as to why the Babylonian Talmud does not explain R. Nehemiah’s rationale. 33 Ibid. 34 Acts 1:15 relates that when a new disciple was appointed to replace Judas Iscariot, the Christian community had 120 members; Strack and Billerbeck, in their commentary ad loc., cite the view of the first Tanna in our Mishnah as a parallel. See also Safrai, n. 28 above, 48. Safrai (p. 57) proposes an interesting solution to the problem of the first Tanna’s view, suggesting that the explanation “enough for chiefs of tens” applies not only to R. Nehemiah’s view but also to that of the first Tanna; but whereas R. Nehemiah is speaking of a Sanhedrin of 23 judges (yielding 230), the first Tanna is referring to a council of 12 judges: since each of them had to be a “chief of ten,” the city had to have a population of at least 120. However, while we indeed find various late sources that refer to twelve as the number of participants in the New Moon meal (Soferim 19:8, Higger edition, 333), and similarly in the context of local government (see, e.g., Deuteronomy Rabbah 3:3; and see G. Alon, Studies in Jewish History in the Time of the Second Temple and the Period of the Mishnah and the Talmud (Hebrew), (Tel Aviv: 1958), 2: 81 and n. 21), our Mishnah clearly deals only with a twenty-three member court (“Small Sanhedrin”). The historical question of the actual existence of such courts, and the existence of various forms of municipal government (Safrai deals with this question at length), must be distinguished from the interpretive question. The Mishnah is undoubtedly referring to the court it mentions — a Sanhedrin of twentythree judges. Had the Mishnah been aware of an alternative institution, comprising twelve judges, it would not have alluded to it so obscurely in connection with a secondary issue, namely, the town’s population, but referred to it in discussing the number of judges in the Sanhedrin, as noted

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Nevertheless, it appears that the explanation offered by the Jerusalem Talmud for Rabbi’s view also holds the key to understanding the view of the first Tanna. For what is the source of the Jerusalem Talmud’s reference to “twelve tribes”? Several Later Authorities have suggested that the passage alludes to a homiletic exposition of the scriptural verse mandating establishment of a judicial system: “You shall appoint judges and officials in all your gates which the Lord your God is giving you, in all your tribes” (Deut. 16:18) The Mekhilta already identified the difficulty in this verse: “R. Josiah says, If the Torah said ‘in all your gates’ what is to be learned from ‘in all your tribes’? And if the Torah said ‘in all your tribes,’ why was it said ‘in all your gates’?”35 R. Josiah himself explains, “Scripture wished to draw an analogy between the Great Sanhedrin and the Small Sanhedrin: Just as the Great [Sanhedrin] is authorized to adjudicate and administer capital punishment, so the Small [Sanhedrin] is authorized to adjudicate and administer capital punishment.”36 A different interpretation is offered by Sifre, namely, that a court of law is to be established both for every tribe and for every town.37 The aforementioned Later Authorities, however, suggest that the problem raised by the verse’s use of both “your gates” and “your tribes” is the basis for Rabbi’s rationale in the Tosefta as explained in the Jerusalem Talmud. The

above. Moreover, on my understanding of the Mishnah’s meaning, which I set out below, it has no implications at all regarding the population of an average town, as suggested by Safrai; cf. his account in “Marginal notes on the Rehob inscription” (Hebrew), Zion 42 (1977), 20 n. 104. 35 Midrash Tannaim, n. 16 above, 97 = Midrash Hagadol (Fisch edition, 374). The reference to R. Josiah, a prominent member of R. Ishmael’s school, indicates that the passage indeed originated in the lost Mekhilta on Deuteronomy. 36 Ibid. The same view is cited anonymously, without the preceding difficulty, in some manuscripts of Sifre Deuteronomy, 144 (Finkelstein edition, 198). In some of these textual witnesses the relevant passage appears earlier in the section, as Finkelstein notes. This is a clear indication that the text was interpolated into the Sifre from the Mekhilta — a phenomenon that was, as is well-known, quite common — and for this reason, Finkelstein had it set in smaller print. The historical question of whether Small Sanhedrins in the provinces administered capital punishment is not relevant in our context; see Urbach, n. 7 above. 37 Sifre ad loc., 197–98. For the implications of this view, see the various commentators cited by Finkelstein, ibid.; further discussion is beyond the scope of this article. See also n. 48 below.

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word “gates,” as Rabbi interprets it, designates a court that convenes ‘at the gate’ (in biblical Hebrew judges are frequently referred to as sitting ‘at the gate[s]’), while the word “tribes” indicates that the number of townspeople for whom a twenty-three member Sanhedrin is to be established is 277: twenty-three judges “at your gates” for each of “your [twelve] tribes” (plus one, as already noted).38 It now appears that we have a simple explanation for the view of the anonymous Tanna in the Mishnah, since 120 is a multiple of twelve. This view, too, is based on exegesis of the scriptural verse “your gates . . . your tribes,” but now “your gates” is not taken to refer to the court that sits at the gates of the town, but to the town itself.39 The number of “your tribes” — twelve — is not multiplied by twenty-three (judges), but by ten, that is, by the minimum number of residents in a town: there can be no community or congregation numbering less than ten.40

38 Or Sameiah, n. 29 above; Duenner, glosses, 18a. 39 These two understandings of “gates,” namely, as referring to the court (sitting at “your gates”), or to the actual gate of the town, are also documented elsewhere. E.g., the following passage from Sifre Deuteronomy: “ ‘Your gates’ — ‘your gates’ indicates reasoning by ‘inference from identical terms’ (gzeira shava). Just as ‘your gates’ mentioned below refers to the gate where they were situated, and not to the gate where they were judged, so ‘your gates’ here refers to the gate where they were situated, and not to the gate where they were judged” (sec. 148, p. 202 [= sec. 149, p. 204]). On the other hand, in Midrash Tannaim (n. 16 above) we find: “ ‘In one of your gates’ — in a court” (p. 99) and “ ‘Your gates’ — these are courts” (p. 100 = Midrash Hagadol, 280, 283). See Hoffmann’s comment ad loc., referring to the Aramaic translations, which follow Mekhilta Deuteronomy. See too D. Halivni, “The location of the Bet Din,” PAAJR 29 (1960/61), 181–91. 40 This familiar rule is also cited in our context, in the same Mishnah, as the source of the number of 23 judges: “As it is said, ‘and the eida (community) shall judge . . . and the eida shall deliver’ (Num. 35:24–25) — one eida judges [i.e., condemns] and the other delivers [i.e., acquits], hence we have twenty. But how do we know that an eida consists of not less than ten? As it is written, ‘How much longer shall [I bear with] this wicked eida?’ (Num. 14:27). And Joshua and Caleb were excluded” (mSanhedrin 1:6 and parallels). Note that according to the Damascus Covenant, X, 4, the sectarian court consisted of ten members, and Baumgarten, n. 11 above, 164, has associated this with the definition of eida as ten males. See also Schiffman, n. 11 above, 24–26. According to the first Tanna in our Mishnah, however, the reference is to the number of residents that a town must have, in contradistinction to the number of judges, which is always twenty-three.

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Thus, one hundred and twenty is the minimum number of residents within “your gates” multiplied by the number of “your tribes.” It is now clear why in this case there is no need to add an extra person to the total, to correspond to “Moses presiding over them.” That was an addition to the number of judges, to avoid the possibility of judicial deadlock, but on the view of the anonymous first Tanna, what is being addressed is not the number of judges at the gate, but the number of residents in the town. We have seen, therefore, that the four opinions that can be discerned in the Tannaitic literature regarding the population of a town that merits having a Sanhedrin can be divided into three classes. The first Tanna of the Mishnah and Rabbi in the Tosefta expound the verse “your gates . . . your tribes” as indicating that the minimum number of those who sit at ‘at the gate’ is multiplied by the number of tribes; they differ as to whether those who sit ‘at the gate’ are townspeople or members of the court. On the other hand, R. Nehemiah infers the necessary number from the scriptural verse referring to the judges in the wilderness: the minimum number of people over whom authority may be exercised is ten. And R. Judah does not seek to establish a minimum number of residents at all, but rather, lists the functionaries needed for a court of law to be set up in a given town. Let us now take a closer look at the import of these four opinions. 2. From the commandment that a Sanhedrin be established to the conditions for its institution: views of the Tannaim In light of the commandment that courts are to be established “in all your gates,” what is the significance of the halakhic criteria that must be met if a town is to be worthy of having a Sanhedrin? According to the anonymous first Tanna of the Mishnah and Rabbi, who infer the definition of a town meriting a Sanhedrin of twenty-three from the verse “your gates . . . your tribes,” in any such town (any town having 120 or 277 residents) the establishment of a Sanhedrin is obligatory, to fulfill the commandment, “You shall appoint judges and officials in all your gates . . . in all your tribes.” Since the “judges and officials” are to deal with matters that are not within the jurisdiction of a threemember bench, the court in question here is a twenty-three member court. On the view of the first Tanna of the Mishnah and Rabbi, therefore, the number of twenty-three member courts is indeed considerable.

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R. Judah, however, need not address the definition of “your gates” or the total population of the town; he sets down only the minimum number of residents a town must have to make possible the proper functioning of a court. He does not address the commandment that a court be established, but only the possibility of this undertaking, or as he puts it, “Every town in which . . . merits a Sanhedrin” — merits a a Sanhedrin, but is not obligated to establish it.41 As to the commandment that judges be appointed “in all your gates,” it can be interpreted in two ways. R. Judah might agree that it indeed refers to a

41 M.Z. Kaddari, “The semantic fields of raui in mishnaic Hebrew” (Hebrew), in M. Bar Asher (ed.), Studies in the Language of the Sages (Hebrew), (Jerusalem: 1996), 90, mentions this obligation as the last semantic meaning shift of the root ‫ ראה‬in mishnaic Hebrew. Regarding the meaning of the obligation, he cites mNazir 7:2: “. . . a limb [severed] from a living body that is still properly (karaui) covered with flesh.” This example, however, proves nothing. The Mishnah is referring to a severed limb that is covered with flesh to the degree “that it may live and be healed” (pseudo-Rashi ad loc.), hence this occurrence of raui is simply referring to suitability or possibility, not to any kind of obligation. Similarly, another example Kaddari adduces to demonstrate a connotation of ‘obligation,’ mNedarim 9:9, “Why did these [daughters’] mother merit (raata) being divorced?” ought not be interpreted as referring in any way to an obligation. It simply means, What did the mother find that prompted her to seek a divorce? Nevertheless, Kaddari is clearly right to postulate a connection between the word karaui and obligation: its significance is ‘as required, as needed,’ and the need in question may indeed arise out of an obligation, or impose an obligation. See, e.g., mBaba Kama 6a: “Someone who brings sheep into the fold and locks the door before them as required (karaui)” — that is, in such a way as to prevent their escaping; this requirement also arises out of the obligation to avert possible damage. In sum, the word karaui means ‘properly, to an appropriate degree,’ and this may refer to appropriateness vis-à-vis a religious duty or obligation. All this is of no relevance, however, for our Mishnah: the Hebrew word used here is the unqualified adjective reuya, and there is no doubt as to the clear distinction in mishnaic Hebrew between ‘merits’ (reuya) and ‘is obligated’ (hayevet). Nowhere in the Mishnah is the former locution used in imposing an obligation. In fact, Eliezer Ben-Yehuda’s dictionary, s.v. raui, quotes this very Mishnah as an example of modality or possibility. For another possible connotation of the term, see S. Lieberman, Tosefta Kifshuta, Moed, 952 n. 22. I am indebted to Berachyahu Lifshitz, who drew my attention to this linguistic problem and referred me to his Law and Action: Terminology of Obligation and Acquisition in Jewish Law (Hebrew), (Jerusalem: 2002), s.v. raa, n. 2, where most of the above sources are cited.

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twenty-three member Sanhedrin, but with the proviso that the establishment of a Sanhedrin is obligatory only in a “gate” that meets the conditions necessary for it to function. This would imply, however, that every town that merits having a Sanhedrin is obligated to establish a Sanhedrin; and this, as we pointed out, is incompatible with the way R. Judah’s statement is formulated — “. . . merits [the establishment of] a Sanhedrin” — not ‘is obligated to establish.’ Since R. Judah makes no mention of any obligation, and uses language that does not imply any obligation, it is clear that R. Judah’s view is that there is no obligation to establish a Sanhedrin; otherwise, he would surely have expressed himself differently. It follows, then, that in R. Judah’s opinion, the commandment “in all your gates” does not specifically mandate a twenty-three member Sanhedrin, but refers to any court, even the minimal three-member court. Courts of lower instance, therefore, will be found in every town, but the number and distribution of courts with a bench of twenty-three is not specified. Any town with the necessary infrastructure merits such an institution, but there is no obligation to establish one. This answers our earlier puzzlement as to the inordinate number of Sanhedrins that seemed to be mandated, for it now transpires that courts would be established only if the need for them arose. Let us now return to the wording of the Mishnah: “How many [residents] should there be in a town for it to merit a Sanhedrin?” In reply, the Mishnah adduces the views of the first Tanna (120) and R. Nehemiah (“chiefs of tens”). The term “merits” used by R. Judah in the Tosefta is applied in the Mishnah to these two additional views it cites. Clearly, then, the understanding of the author of this Mishnah is that both the first Tanna and R. Nehemiah do not address an obligation to establish a Sanhedrin of twenty-three in every town, but just the conditions for its establishment: namely, any town with 120 or 230 inhabitants, respectively, merits a Sanhedrin; but nowhere is it said that there is any obligation to appoint one. It follows that in the view of the author of this Mishnah, too, there is no puzzling multiplicity of Sanhedrins, and the explication we gave for R. Judah’s statement applies here as well.42 42 The Mishnah may thus be explained without resorting to the forced solution proposed by R. I. Herzog, “Rabbinical courts in Israel” (Hebrew), Tehumin 7 (1986), 287–88: “It is hard to imagine that in each and every town there was actually a Sanhedrin of 23 . . . ordained scholars, worthy of adjudicating capital cases. Amazingly, the Mishnah seems to be stipulating

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This is indeed the law as handed down by R. Isaiah di Trani the Younger in his Psakim on Tractate Sanhedrin: “A small Sanhedrin is not established in a town unless it has one hundred and twenty residents”43; this clearly refers to a condition for instituting a Sanhedrin, but says nothing of any obligation or commandment to appoint a Sanhedrin in any town whose population is at least 120. However, this conclusion seems to be inconsistent with the view of the anonymous first Tanna in the Mishnah as explained above. If the number one hundred and twenty was derived from exegesis of “your gates . . . your tribes,” it follows that the commandment “You shall appoint judges and officials in all your gates . . . in all your tribes” refers to a twenty-three member Sanhedrin, establishment of which is obligatory for any town whose residents number at least 120! The verse is setting out not just a condition that must be met if a Sanhedrin is to be instituted, but an obligation to do so whenever the condition is met. If the explication we have given for the first Tanna’s view is correct, it follows that the author of the Mishnah’s interpretation of it reflects his

that in every town in which there are 120 adults, a Sanhedrin is established, and Maimonides rules explicitly that such is the law. . . . The Mishnah is not as difficult to understand as might seem at first sight. It is stating the law abstractly. A town in which there are 120 adults merits the establishment of a Sanhedrin, that is, if 23 ordained scholars be found there. This is a law for the messianic era, when knowledge will be widespread.” Chanoch Albeck, too, understands the Mishnah as declaring an obligation to appoint a Sanhedrin in every town with 120 residents, probably following Maimonides (see below), and contrary to the plain meaning of the Mishnah, see his Six Orders of the Mishnah: Commentary (Hebrew), (Jerusalem: 1958), introduction to tractate Sanhedrin, 163. And G. Alon speaks of “courts of twenty-three that sit in the towns of the land (probably in the district capitals)” in his History of the Jews in the Land of Israel during the Period of the Mishnah and the Talmud (Hebrew), (Tel Aviv: 1953), 1:129, and makes a similar statement in his Studies in Jewish History (Hebrew), (Tel Aviv: 1958) 2:97 n. 39 — in both cases without citing a source and without referring to mSanhedrin 1:6. His source was probably a baraita in bMakot 7a: “ ‘in your gates’ — you are to establish courts in every district as well as in every town,” which he apparently interpreted as saying that a twentythree member court was established in every district, and a three-member court in every town. As explained above, our Mishnah does not conflict with this interpretation. 43 Piskei Riaz, Sanhedrin, ch. 1, 3:4 (Jerusalem 1994 edition, 38).

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own understanding. He believes, as does R. Judah,44 that there is no obligation to institute a twenty-three member Sanhedrin in every town, and this is why he prefaces the report of the Tannaitic controversy with the question “How many [residents] should there be in a town for it to merit a Sanhedrin?”; in so doing, his understanding is that both the anonymous first Tanna and R. Nehemiah are addressing only the conditions for establishing a Sanhedrin, not the obligation to do so. It may well be, however, that the original intent of both these Tannaim was indeed to speak of the commandment to appoint a Sanhedrin, not just the conditions for its establishment. This conclusion — that the author of the Mishnah reworked the Tannaitic views in the spirit of his own approach, on which there is no obligation to appoint twenty-three judges “in all your gates” — can be confirmed by considering R. Nehemiah’s view. For of his statement, too, we can ask whether he was speaking of the commandment to establish a court, or of the conditions for its establishment. On the former possibility, any town with at least 230 inhabitants, viz., any town in which twenty-three judges can be at least “chiefs of tens,” falls under the category of “your gates,” and there is an obligation to establish a twenty-three member Sanhedrin. But it may be that R. Nehemiah, like R. Judah, is only stipulating the condition for such a court: a place where there are not enough people to appoint “chiefs of tens” does not merit a Sanhedrin, but there is no obligation to establish a twenty-three member Sanhedrin wherever there are 230 inhabitants; the commandment “in all your gates” can be fulfilled by threemember tribunals. Here it seems the author of the Mishnah interprets R. Nehemiah’s view in the latter sense, and therefore presents it as answering the question “How many [residents] should there be in a town for it to merit a Sanhedrin?” — he uses the locution “to merit,” not ‘to be obligated to establish.’ As the only source for the approach of the first Tanna is the Mishnah that has been quoted, our interpretation cannot find confirmation elsewhere. The second view put forth in the said Mishnah, however, namely, R. Nehemiah’s view, does appear in another

44 On the close relationship between mSanhedrin in general and the teachings of R. Judah, see D. Raviv, “Analysis of Midrashic Passages in Mishna Sanhedrin” (Hebrew), (Ph.D. dissertation, Bar-Ilan University, 1998), 129–59.

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Tannaitic source, enabling us to test our hypothesis that the author of the Mishnah reworked the Tannaitic material as he arranged it. 3.

Sifre Zuta on Deuteronomy, and its implications

In Sifre Zuta on Deuteronomy 16:18, we read: “In all your gates” — in each and every town. Hence it was said: Every town that has thirty [residents] — three judges are appointed therein, and they adjudicate civil cases and expound the Torah and the writings. And every town that has two hundred and thirty [residents] — twentythree judges are appointed therein, and they adjudicate capital cases and expound the Torah and the writings.45

The editor, M. Kahana, points out that the view of Sifre Zuta is in harmony with that of R. Nehemiah, and also notes the new specification, not found in the parallel sources, of the number of residents that renders a town worthy of establishing a three-member court. It seems to me, though, that what is most significant here is that Sifre Zuta is our first explicit Tannaitic source that discusses, not the conditions for establishing a court (“How many [residents] should there be in a town for it to merit a Sanhedrin?”), but the commandment that a court be established: “every town that has two hundred and thirty [residents] — twenty-three judges are appointed therein,” implying that the establishment of such a court is an obligatory precept. This also follows from the association (“hence it was said”) with the interpretation “in each and every town”: the appointment of judges in each and every town is obligatory, and all that remains to be done is to define what constitutes a town for the purposes of this precept. The Mishnah, however, omits altogether discussion of the general obligation to establish a court — of any kind — “in each and every town,” even though it is a commandment that is directly anchored in Scripture, and repeatedly mentioned in the halakhic Midrashim and parallels.46 Indeed, in connection with the broken-necked heifer, the

45 Kahana edition, 233–34. On the meaning of the term “writings” (ketuvim), see n. 50 below. 46 See above, n. 16. The existence of organized judicial institutions in towns is implied by mKetubot 1:1: “for twice a week courts of justice sit in the towns, on the second day [of the week] and the fifth day.” However,

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Mishnah actually refers without any further explanation to “a town in which there is no court.”47 It appears, therefore, that the author of the Mishnah and Sifre Zuta differ in their understanding of R. Nehemiah’s view: while the former takes R. Nehemiah to be setting conditions for the optional establishment of a court, Sifre Zuta takes R. Nehemiah — with whose view it is in agreement — to refer to the obligation to establish a court. Since it is clear that some Tannaim considered the establishment of a twenty-three member court in every suitable town to be obligatory, this supports our previous conjecture that this is indeed the view of Rabbi in the Tosefta (who sets the number of residents at 277) and the first Tanna in the Mishnah (who sets it at 120). The author of the Mishnah, however, understood the first Tanna in the spirit of R. Judah’s approach, namely, as laying down the conditions for the establishment of such a court, in line with his understanding of R. Nehemiah’s view. It is difficult to decide between the positions of the Mishnah and Sifre Zuta, and determine the original interpretation of R. Nehemiah’s

apart from the fact that neither the nature of these courts nor the size of the towns is specified, commentators, beginning with Yefe Mare on the Jerusalem Talmud ad loc., have pointed out that, as follows from both Talmuds, this clause was not part of the original mishnaic text, but was added from the Tosefta. See Albeck, n. 42 above, “Additional comments” ad loc.; Lieberman, n. 41 above, Ketubot, p. 185. See further D. Weiss Halivni, Sources and Traditions: A Source Critical Commentary on Seder Nashim (Hebrew), (Tel Aviv: 1968), 129–30 n. 4; H. Bentov, “Tractate Ketubot of the Mishnah, with Variant Readings” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 1982), 1:173–75. Court sessions in small towns on Mondays and Thursdays are mentioned in tTaanit 2:4 (Lieberman edition, 330); both Talmuds ascribe the institution to Ezra the Scribe (jMegila 4:1 (75a); bBaba Kama 82a; bKetubot 3a). The Mishnah is, of course, familiar with the existence of law courts in larger towns (see mSanhedrin 11:4), but their format was not institutionalized; see next note. 47 mSota 9:2. Cf. the argument between R. Ami and R. Asi in bMakot 10b and see Tosafot ad loc., s.v. ir. According to Maimonides (Code, Laws concerning Murder and the Preservation of Life 9:4), the reference is to a twenty-three member court, and later authorities have demonstrated this on the basis of jSota 9:2 (23c) (see R. Naftali Zvi Berlin of Volozhin, Meromei Sade, bSota 45b). These Later Authorities had to take the text as referring to towns with a population of less than 120 (see, e.g., Beer Sheva on bSota ad loc.), but this restrictive interpretation is clearly not implied by the plain text of the Mishnah.

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view. Nevertheless, the fact that R. Nehemiah invokes the wilderness model of one “chief” for each group of ten individuals appears to point to the utopian nature of his proposal. This is consistent with the interpretation offered by Sifre Zuta, which envisages a judiciary whose size and density would be inconceivable except in a utopia. The Mishnah, in contrast, which only invokes a minimum number that makes possible the establishment of a 23-member Sanhedrin, without any stipulation as to the obligation to establish one, seems more like a translation of the wilderness utopia into realistic terms. Moreover, the Mishnah’s omission of the general obligation to establish a court of law “in each and every town,” which is well grounded in the sources, also appears to be consistent with the mishnaic redactor’s disinclination to institutionalize the organization of a judiciary outside the Temple’s Chamber of Hewn Stone.48 This assumption is also consistent with the modern scholarly view that even the three-member court as envisaged by the Mishnah was not a permanent institution, but rather, its members were selected by the litigants on an ad hoc basis, as described in chapter 3 of tractate Sanhedrin.49 As Kahana has pointed out, given the understanding of R. Nehemiah he upholds, the author of Sifre Zuta clearly does not accept this position: he deems threemember courts to be permanent institutions established in every town with at least thirty residents, and further, does not see their

48 See mSanhedrin 1:5: “Small Sanhedrins for the tribes can be instituted only by a court of seventy-one [the Great Sanhedrin],” but no details are given as to how ordinary courts of twenty-three are appointed. (Maimonides, Code, Laws concerning the Sanhedrin 5:1, rules that even the local courts in each town are appointed by the Great Sanhedrin, in keeping with the fact that he does not recognize a special status for tribal courts; see Y. Blidstein, “On the appointment of courts in Maimonidean halakha” (Hebrew), Sinai 115 (1995), 146–48. Note that if Maimonides interpreted the view of the first Tanna as we have proposed, the locution “your tribes” applies to the town court, and there is no basis for positing an institution of tribal courts. It should also be noted that the tribal courts mentioned in bSanhedrin 16b are not mentioned in R. Hananel’s commentary ad loc. The Mishnah’s approach may, of course, be understood as referring only to a twenty-three member Sanhedrin; although this is a distinct possibility, I have used the general term “judiciary,” in view of the reasoning cited below. At any rate, the available data does not permit a definitive conclusion. 49 See Kahana, n. 14 above, 235–36, esp. the references cited in n. 8.

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mandate as exclusively judicial, for they “expound the Torah and the writings.”50 Now this duality in the function of the court, which according to Sifre Zuta is not solely judicial but also encompasses study of the Torah, in itself serves to explain the riddle of the inordinate number of courts. Were they solely a judicial system, there would certainly be no need for such a dense network of courts, but since the courts are also charged with studying the Torah, there is nothing puzzling about the demand that every Jewish community, however small, make arrangements for the realization of this mandate. The system envisaged by Sifre Zuta, therefore, attests not only to the differing interpretations of the view of R. Nehemiah, but also to the background to this controversy. One who takes the role of the courts to be exclusively judicial in nature will surely be hard pressed to find any relevance in the wilderness “chiefs of tens” model and the inordinately profuse and unnecessary judicial system it calls for. One who conceives of the courts, however, as places of both theoretical study of the law, and its application in practice, will readily understand the import of seeing to the establishment of a framework for Torah study in each and every community.51 50 Kahana, ibid., 236. As to the “writings” (ketuvim) mentioned in Sifre Zuta, Kahana suggests two possibilities: (i) the Hagiographa, the third section of the Bible, in contradistinction to the Prophets. The meaning of “expound” here, on this understanding, is not midrash, exposition in the didactic-hermeneutic sense, but rather, delivery of public sermons based on verses from the Hagiographa, a well-known phenomenon of the period (see Kahana, 237). (ii) The second possibility is that the ‘expounding’ (midrash) in question is indeed didactic-hermeneutic, in which case the term “writings” (ketuvim), being used in an idiosyncratic way to denote the books of the Bible other than the Pentatueuch, includes the prophetic books as well. However, since the word ‘ketuvim’ is used in the Tannaitic literature in the sense of all of Scripture (see, e.g., W. Bacher, Exegetische Terminologie der jüdischen Traditionsliteratur [Leipzig: 1905], 1:92), the text of Sifre Zuta may plausibly be understood as saying that the judges expound the Torah and all of Scripture, the particular turn of phrase used being intended to highlight the primacy of the Pentateuch within the scriptural context. 51 See R. Isaiah di Trani the Elder, Piskei Rid, bKetubot 2a ([Jerusalem: 1973], 209): “It is an enactment of Ezra that courts should sit in small towns on the second and fifth days [of the week]. . . . Even though in each and every town there was a permanent Sanhedrin, throughout the week they occupied themselves with [studying] the Torah, but on the second and fifth days they occupied themselves with judicial matters.” R. Isaiah thus

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In his commentary on tractate Sanhedrin of the Mishnah, Maimonides states that the law is not in accordance with the view of R. Nehemiah,52 but does not explain the substance of his opinion — viz., whether his ruling refers to establishing courts or to the conditions for their establishment. In the Book of Precepts (Sefer Hamitzvot) (positive commandment 176) and in the Mishne Torah (Laws concerning the Sanhedrin 1:3–4) (from which I quote here), however, Maimonides makes the following two points: “And in each and every Jewish town that has one hundred and twenty or more [residents], a small Sanhedrin is appointed. . . . In a town that does not have one hundred and twenty, three judges are appointed.” Here we have, then, one after the other, the two novel clauses introduced in Sifre Zuta. First of all, Maimonides does not speak of the one hundred and twenty people necessary for a 23-member Sanhedrin as simply a precondition for its establishment, as per the Mishnah and R. Isaiah di Trani (see section 2 above), but as an obligation: “And in each and every Jewish town that has one hundred and twenty or more [residents], a small Sanhedrin is appointed.” Moreover, in any town not populous enough for a 23upheld (independently) the same understanding as the author of Sifre Zuta as to the dual function of the courts that were to be instituted in every town. At the beginning of his introduction to his commentary on the Mishnah, Maimonides describes how the Torah was studied in the wilderness: “And the chiefs (hasarim) went about among all the Israelites, to teach and to repeat.” R. Samson Raphael Hirsch, in his commentary on Exodus 18:20–21 (Jerusalem: 1989), 179, understood this as a reference to the chiefs of tens and so on, inferring that Maimonides saw the latter’s role as not only judicial but also educational. This view is, of course, in harmony with the above passage from Sifre Zuta, but there are no grounds for the claim that this was Maimonides’ understanding. The original Arabic word used is al-rusa, which Qafih indeed translates as hasarim in his Arabic – Hebrew edition (p. 2), but Shilat translates as rashei haam, “heads of the people”; see Y. Shilat (ed.) Maimonides’ Introductions to the Mishnah (Hebrew), (Jerusalem: 1992), 27. 52 In ruling thus Maimonides prefers to follow the talmudic rule, “The law is in accordance with the anonymous view of the Mishnah,” which is general, rather than the ruling of the Tosefta in this specific context: “and the law is in accordance with his [R. Nehemiah’s] view.” The importance of the Tosefta in Maimonides’ halakhic decision-making is well known, so his ruling here is worthy of attention — all the more so if he indeed had access to the Sifre Zuta, which likewise upholds the view of R. Nehemiah. It may be that the backdrop against which Maimonides’ ruling here should be understood is his tendency to reinforce the popular standing of the courts to the greatest extent possible; see Blidstein, n. 48 above, 144.

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member Sanhedrin, it is still obligatory to set up a three-member court. But since he does not rule in accordance with the view of R. Nehemiah and does not require ten residents per judge, Maimonides does not stipulate that there must be a minimum of thirty residents for a threemember court to be established.53 Maimonides’ innovative ruling that establishing a three-member court (in towns too small to require twenty-three member courts) falls under the general commandment that judges be appointed caught the attention of many Later Authorities, who sought to locate his source.54 To date, no explicit source has been found.55 On the other hand, his 53 In the list of the commandments in the introduction to the Code, positive commandment 176, Maimonides writes: “To appoint judges and officers in each and every community (kahal) of Israel.” This implies that in any event the commandment does not apply to a group of less than ten, which is not a kahal. Blidstein, n. 48 above, 143, infers from Maimonides’ wording that in this connection there is no distinction between the land of Israel and elsewhere; he brings this up in explicating what Maimonides says in the Code’s Laws concerning the Sanhedrin, where he does make the distinction. However, as I established in my “Remnants of Maimonides’ Sefer ha-Mitzvot in the Mishne Torah” (Hebrew), Proceedings of the Tenth World Congress of Jewish Studies, 3 (Jerusalem: 1990), 180–86, the list of precepts in the introduction to the Code corresponds to that of the Book of Precepts (Sefer Hamitzvot), and even regarding points on which he changed his mind and ruled differently in the Code, he left the wording of the list intact (see too my “On the history of the exegesis of the pericopes concerning tithes: from the Temple Scroll to the Sages” (Hebrew), Tarbiz 72 (2003), 99 n. 66). Since no distinction is made between the land of Israel and other countries in the relevant passage of Book of Precepts, there is no point in comparing the ruling in the Code with the list in the introduction, which summarizes Maimonides’ approach in the Book of Precepts. 54 See Hidushei Harim, HM (Warsaw: 1870), 1:2; M. Auerbach, Imrei Bina, HM (Jerusalem: 1876), beginning of sec. 1; Jeroham Perla, Commentary on R. Saadia Gaon’s Sefer Hamitzvot (Warsaw: 1913), vol. 3, ch. 1, 105a ff. These Later Authorities presumably rejected the suggestion in Kesef Mishne ad loc. that Maimonides was ruling independently. 55 See Blidstein, n. 48 above, 144. Characteristically, the author of Midrash Hagadol on Exodus 18:21 (Margulies edition, 366) quotes Maimonides verbatim after introducing the text with the locution “It is taught” (tanya), clearly taking the dicta of the Code to be at least as important as a traditional baraita! Other Early Authorities who generally follow Maimonides’ rulings do so with respect to his innovative ruling in this connection as well; see R. Menahem Hameiri, Beit Habehira, Sanhedrin 1:6 at the end (Sofer edition, 55); Sefer Hahinukh, commandment 491; Gersonides, Commentary on the Torah, Deuteronomy 16:18 (Levi edition, 140).

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second innovative ruling, namely, that the Mishnah regarding the size of a town that merits a Sanhedrin is not stating the conditions for establishing of a Sanhedrin, but rather asserting the obligation to establish a Sanhedrin, was not much emphasized in the halakhic literature. This is surprising, given its decisive import as the sole basis for the establishment of a radically-profuse network of law courts.56 Yet as we have just shown, it turns out that the innovative rulings are both to be found in Sifre Zuta on Deuteronomy, while the Mishnah does not address the obligation to set up three-member courts, and its specification of the size of the town that merits a twenty-three member court is presented only as a condition to be met, not a religious obligation. Apart from the question of the Tannaitic controversy, this passage from Sifre Zuta raises the question of whether Maimonides could have had vestiges of this source at his disposal.57 On the basis of the material 56 As already noted (above, text at n. 43), R. Isaiah di Trani the Younger’s wording indicates disagreement with Maimonides. However, it should be noted that Maimonides, too, is ruling only on a theoretical level that there is an obligation to institute a twenty-three member Sanhedrin in any town of 120 or more inhabitants; practically speaking, however, this is dependent on there being a sufficient number of suitable candidates: “Any town in which there are not two great scholars, one worthy of teaching and handing down rulings on the entire Torah, and one who knows how to listen and knows how to ask and to answer — a Sanhedrin is not established there, even if it has a population of thousands of Jews” (Code, Laws concerning the Sanhedrin 1:5). Maimonides’ source is Rav’s dictum in bSanhedrin 17b, as interpreted by Maimonides. Rav may indeed have understood the Mishnah as we have suggested, that is, as stipulating that having 120 residents is only a condition on the nature of a town in which a Sanhedrin can be established, and added a further condition concerning the competence of the judges. But Maimonides adduced the number 120 in connection with the obligation to establish a court, and spoke of the judges’ competence as a condition for fulfilling that obligation in practice. It should be noted that the author of Merkevet Hamishne on Code, Laws concerning the Sanhedrin, at the beginning, ascribes to Maimonides the view that “even if there are several large towns in the district” — i.e., as he notes, towns with at least 120 inhabitants, “it suffices to have one Sanhedrin in one town of the district.” But this assertion is not compatible with what Maimonides says. 57 Theoretically speaking, this is, of course, possible; traces of Sifre Zuta on Deuteronomy have been identified in the commentary of the Karaite Yeshua b. Judah (Jerusalem, 11th c.). The sources at Yeshua’s disposal in Jerusalem may well have been those available to Maimonides in Cairo. Kahana in fact identified vestiges of Sifre Zuta in the Persian anthology

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relating to the subject at hand, of course, there is no way to answer this question58; nevertheless, the fact that both points made by Maimonides are found together in Sifre Zuta, and only there, surely mandates careful scrutiny of the relationship between this Tannaitic source and Maimonides’ teachings on the matter.

4. Rabbi’s view as interpreted by the Babylonian Talmud: on the disappearance and formation of baraitot in the Babylonian Talmud We saw that the Tosefta cites Rabbi’s criterion for a town’s meriting a twenty-three member Sanhedrin, namely, a minimum of 277 inhabitants, and that the Jerusalem Talmud interprets this view as an exposition of the scriptural verse “your gates . . . your tribes.” Rabbi’s view is also cited in the Babylonian Talmud, but here we find a tremendously interesting point already taken note of by R. M.M. Kasher59: the Midrash Hagadol preserved a different tradition as to the central thrust of the sugya, a tradition not attested to in

Pitron Tora and in Midrash Hadash Al Hatora, which is probably of Eastern origin; see the summary in Kahana, n. 14 above, 41. Indeed, Yeshua’s commentary itself may have been known to Maimonides; Yeshua is known to have had connections with Fustat, where Maimonides lived later on. See Haggai Ben-Shammai, “Yeshuah ben Yehudah — characterization of a Karaite scholar of Jerusalem in the eleventh century” (Hebrew), Pe‘amim 32 (1987), 5. 58 See Kahana, n. 14 above, 22–23 n. 36. Kahana identifies a sugya with respect to which there is a close connection between the view of Maimonides and that of a Midrash quoted in a Karaite commentary that refers frequently to Yeshua b. Yehuda’s commentaries. Since, however, there is no evidence that the passage was indeed copied from Yeshua, and the language of the Midrash is late, Kahana concludes that “one cannot deduce from this that Maimonides had before him [the text of] Sifre Zuta on Deuteronomy.” In our case, it is clear that the Midrash in question should be attributed to Sifre Zuta, but nevertheless we still cannot make a conclusive determination to that effect. Maimonides does not rule in accordance with R. Nehemiah as cited in Sifre Zuta, and even in terms of the language, the two sources are not identical. But see also my “Counting the years until the Jubilee in Tannaitic doctrine: a spoken ceremony?” (Hebrew), Sidra 21 (2006), 183–84 n. 36. 59 Kasher, Tora Shleima 15, 133–34.

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any manuscript of the Babylonian Talmud, or quoted in the commentaries of the Early Authorities: bSanhedrin 17b–18a It has been taught: Rabbi said: [The population must be] two hundred and seventy-seven.

Midrash Hagadol60 It has been taught: Rabbi said: [The population must be] two hundred and fifty-three.

But has it not been taught: Rabbi said, [The population must be] two hundred and seventy-eight? There is no difficulty: the one There is no difficulty: the one statement is [the view of] R. Judah,61 and the other statement is [the view of] R. Judah, the other [that of] the [that of] the Rabbis. Rabbis. The Rabbis taught: “And place such over them to be chiefs of thousands, and so on . . .” (Exod. 18:21). Hence the judges of Israel were seventy-eight thousand and six hundred.

For the Rabbis taught: “And place such over them to be chiefs of thousands, and so on . . .” (Exod. 18:21). Hence the judges of Israel were seventy-eight thousand and six hundred. What does this teach us? That the chiefs themselves were included.62

In other words, the Babylonian Talmud finds a contradiction between Rabbi’s view as reported in the Tosefta (277) and in the baraita (278); the contradiction is resolved by stating that both traditions were reported in Rabbi’s name, but reflect the controversy between Rabbi Judah and the Rabbis over whether the Great Sanhedrin is made up of seventy or seventy-one. For on Rabbi’s view, the 230 residents required by R. Nehemiah for “chiefs of tens” do not suffice, inasmuch as sometimes the original court of twenty-three judges cannot reach a decision, and more judges must be added, up to the full complement of a Great 60 Midrash Hagadol on Exodus 18:21 (Margulies edition, 365–66). 61 The reading in the Hoffmann edition (Berlin: 1921), 196, is “R.,” but the manuscripts to which Margulies had access confirm the above reading, as I noted, and see below. 62 Aramaic: milegav. Immediately following, Midrash Hagadol quotes from Mishnat Rabi Eliezer, sec. 16 (Enlow edition [NY: 1933], 308), where the same idea — that the chiefs themselves were included in the count — is also found, though formulated differently.

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Sanhedrin.63 But as noted, there are two traditions as to the number that have to be added. One tradition holds another 47 judges are needed (23 + 47 = 70), bringing the total up to 277, while the other requires one more (23 + 48 = 71). On this line of thinking, the baraita adduced at the end of the passage, summing up the number of “judges of Israel,” is not a continuation of the controversy as to Rabbi’s view, but is adduced only in connection with R. Nehemiah’s calculation, and his reference to “chiefs of tens.”64 However, according to the tradition of the sugya as reported in Midrash Hagadol, there was a baraita in the Talmud in which Rabbi specified the number 253. The basis for this figure is obvious. Rabbi does concur with R. Nehemiah that a Sanhedrin is not formed unless each member is a “chief of ten” at least. But R. Nehemiah’s figure of 230 is arrived at by multiplying 23 judges by the ten over whom they are “chief,” making each one of them an integral part of the group over whom they preside. In essence they have only nine under them, and become chiefs of ten only by including themselves in the quorum. Rabbi, however, requires each “chief of ten” to have ten citizens under him not counting himself, hence the number 253: R. Nehemiah’s 230 plus the twenty-three judges themselves. The Talmud’s question, accordingly, concerns the contradiction between the two views that uphold the principle of “chiefs of tens.” Thus the baraita about the number of “judges of Israel,” is invoked to elucidate the controversy as to whether the “chiefs” themselves are included in the count, this being the basis for the discrepancy between 230 (R. Nehemiah in the Mishnah) and 253 (Rabbi in the baraita). While the issue of whether the judges are included in the count is not raised only in the tradition of Midrash Hagadol — it appears in a sheilta that has survived in Midrash Tanhuma and in the Geonic literature, as Kasher noted65 — 63 On this procedure, see mSanhedrin 5:5. This was Rashi’s interpretation of the passage, but cf. R. Hananel, who does not mention the addition of more judges if twenty-three cannot reach a decision, and whose his interpretation is, in fact, rather unclear; see below, n. 66. 64 Indeed, the Yemenite manuscript referred to in n. 17 above interpolates a section of the Mishnah here: “as against chiefs of tens. The Rabbis taught. . . .” But it is not found in any of the other textual witnesses. 65 In his edition of Midrash Hagadol (n. 61 above), Hoffmann already cited Tanhuma, Mishpatim 6; and Kasher, Tora Shleima 15, 134, cited Halakhot Gedolot, Laws of Judges (Hildesheimer edition [Jerusalem: 1987], 7), and Sefer Vehizhir, Mishpatim 43b. The passage in Tanhuma begins as follows:

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the baraita giving the number 253 is not found anywhere else.66 How did these alternative traditions, which in the final analysis pertain to two entirely different sugyot, emerge? It is very difficult to find a plausible reason for the virtual invention, tantamount to creation ex nihilo, of the baraita in Midrash Hagadol. What was its point and purpose, and how was it inferred from the original sugya, assuming the latter to be the same as the existing text of the Babylonian Talmud? Rejection of the tradition of the brief sugya in Midrash Hagadol, on the assumption that it is the fruit of a late reworking of the longer, more common sugya, thus does not make sense. Rather, the source of the Midrash Hagadol tradition must be explained. It seems probable that, since part of the tradition is documented in the Sheiltot literature, this may well be the source of the tradition in its entirety. The author of Midrash Hagadol did not have a version of the text of bSanhedrin that

“Question (sheilta): It is an obligation upon the House of Israel that whoever has a legal dispute with his fellow is forbidden to go to non-Jewish courts” (something similar is found at the beginning of sheilta 58 in R. Ahai Gaon, Sefer Hasheiltot (Mirsky edition, sheilta 65), though the content is different; see Haamek Sheeila, 1; and also R. Brody, The Textual History of the Sheiltot (Hebrew), [NY and Jerusalem: 1991], 118 n. 4). J.N. Epstein, Studies in Talmudic Literature and Semitic Languages (Hebrew), (Jerusalem: 1988), 900, treats the passage from Tanhuma as a sheilta; see also Margulies’ comment on Midrash Hagadol ad loc. The phenomenon of sheiltot that are not included in the version of a work we possess, but adduced in Tanhuma and in the Geonic literature, is well known; see Epstein, 461ff. Another instance of this discussion in the Geonic literature is found in R. Samuel b. Hofni’s commentary on Deuteronomy 1:15 (Greenbaum edition, 496), which also quotes the sugya with the conclusion “What does this teach us? — that the chiefs themselves were included.” 66 Attention should be drawn to the wording of a Geniza fragment from R. Hananel’s commentary ad loc., as published by E. Hurvitz, “New fragments from the Cairo Geniza of Rabbeinu Chananel’s commentaries on Talmud and Bible” (Hebrew), Hadorom 44 (1977), 69: “It is taught that Rabbi says: Chiefs of tens two hundred and seventy-seven.” The emphasized words are missing in R. Hananel’s commentary as printed in the Vilna edition of the Talmud, and are indeed very puzzling: How does the number 277 reflect “chiefs of tens”?! Yet they cannot be ignored, and it appears that R. Hananel’s convoluted interpretation ad loc. was prompted by this difficulty. Perhaps we may conjecture that this is a truncated vestige of the total 253 specified in the baraita in Midrash Hagadol, expressing the idea of “chiefs of tens.”

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was significantly different from that of the extant versions,67 but copied the passage in question from a Sheiltot text.68 If so, we must take into account the fact that scholars have established that the Sheiltot literature contains talmudic traditions significantly different from those in our versions of the Talmud.69 However, such cases must always be carefully examined. Do they reflect two parallel traditions, one preserved in our texts of the Talmud and the other in the Sheiltot, neither of which can be shown to be either the original or the reworked version? Or is one of the two traditions earlier than the other, the latter having been derived from it?70 Since, as we saw, it is hard to argue that the tradition in our Talmud was the basis for the evolution of the second tradition, that of Midrash Hagadol, it would appear that the two traditions are parallel and of equal standing. On the other hand, we cannot rule out the possibility that the Sheiltot tradition is the original tradition that later gave rise to the sugya as we have it today in the Babylonian Talmud. Is there any way to settle this question? It seems to me that by its very nature, this sort of question does not allow for a decisive resolution. The sources present us with two parallel but different sugyot, and the factual details of any transitions from one to the other are, in point of fact, irretrievably lost. Nevertheless, we have a duty to explore the

67 Including the Yemenite manuscript referred to above, the close connection of which to the tradition of Midrash Hagadol is pointed out in M. Sabato, A Yemenite Manuscript of Tractate Sanhedrin and its Place in the Text Tradition (Hebrew), (Jerusalem: 1998), 31–39. 68 J. Tobi, “Midrash Hagadol: Its Sources and Structure” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 1994), does not mention Sefer Hasheiltot as a source used by the author of Midrash Hagadol, and this calls for further investigation. However, Tobi does recognize Sefer Vehizhir, Halakhot Gedolot, and the Geonic literature in general as sources for Midrash Hagadol, see 313ff. On Geonic formulations of the Babylonian Talmud adduced in Midrash Hagadol, see 251 nn. 1073, 1076. 69 Primarily Epstein, n. 65 above, 378ff., esp. 384; and R. Brody, “Geonic literature and the talmudic text” (Hebrew), in Y. Sussmann and D. Rosenthal (eds.), Mehqerei Talmud 1 (1990), 245–56. 70 See Epstein, ibid. For a detailed analysis of two examples of this phenomenon, according to which the Sheiltot version would seem to be closer to the original, see my “On the history of ‫( ”קידושא רבה‬Hebrew), Te’udah 10 (1996), 202–214, and “On the conclusion of Megilat Taanit and the metamorphosis of its interpretations in the two Talmudim” (Hebrew), Bar-Ilan 30–31 (2006) (Memorial Volume for M.S. Feldblum), 144–58.

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matter by careful analysis of the sugya in terms of all the pertinent textual parameters. It should first be noted that the debate in the sugya as we have it is most obscure. The main point, that the number 277 resulted from the need to add additional judges to the first twenty-three when the original court could not reach a decision, is not explicitly stated. The idea, which is the very thrust of the sugya, was only articulated by Rashi, who sought to explain the sugya. This radical terseness is not characteristic of the Talmud. Even the resolution of the contradiction, “the one statement is [the view of] R. Judah, the other [that of] the Rabbis,” is parsimoniously worded: it does not even clarify the question that was at issue between R. Judah and the Rabbis. Moreover, since the text in its present form points to a contradiction between two statements made by Rabbi, the answer to the question, attributing one statement to R. Judah and the other to the Rabbis, does not really resolve anything. It merely reframes the contradiction, as we must now ask: how can Rabbi uphold divergent and contradictory approaches? In such cases, the Talmud usually offers the explanation ‘trei tanaei aliba derabi’ (two Tannaim report [in incompatible ways] the view of Rabbi); it could then have continued, ‘the one statement is [the view of] R. Judah, the other [that of] the Rabbis.’ But in our passage there is no such statement; the central point of the answer is missing. On the other hand, the sugya as reported in Midrash Hagadol is quite explicit. The baraita citing the figure 253 is, given R. Nehemiah’s calculation (230), perfectly logical, since it is immediately evident that the difference between the two figures is exactly twenty-three. The answer to the question is also very clear, as the Rabbis’ view is explained by the baraita adduced in the answer — “For the Rabbis taught . . . that the chiefs themselves were included.” Nor is there any need to suppose that two Tannaim reported Rabbi’s view, for the contradiction being addressed, it must be kept in mind, is that between Rabbi and R. Nehemiah, and this is readily resolved by the Talmud’s assertion that ‘one statement is the view of so-and-so and the other is the view of so-and-so.’ More importantly, the substance of the Babylonian sugya raises an obvious difficulty. The basic idea at the heart of the sugya is R. Nehemiah’s calculation in the Mishnah that the number is 230, in keeping with the concept of “chiefs of tens.” Rabbi’s view that the number is 277, as noted, is explained as resulting from the need to add additional judges to the original court until a “Large Sanhedrin” is

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obtained: 47 more judges have to be added to R. Nehemiah’s original count of 230, making 277. But since the whole foundation for R. Nehemiah’s view is his assumption that a “chief” is included together with those under him in making up the ten, if allowance has to be made for a Sanhedrin of seventy judges, the necessary number of residents is 700, not 277! In fact, the number 277 is obtained only on the basis of the approach taken by the first Tanna as explained in the Babylonian Talmud: the number (120, according to the first Tanna) does not express the total number of residents in the town, but the number of people needed for the proper functioning of the court. Looking at R. Nehemiah’s figure of 230 in that light, it is easy to understand why the total has been raised to 277. It results from the increase in the number of people needed to sustain a court, for in some cases, as noted, the court must consist of seventy judges, not just twenty-three. But since R. Nehemiah’s total of 230 judges was calculated not on the basis of the number of functionaries needed, but rather the “chiefs of tens” principle, it follows that the Babylonian Talmud’s explanation of the number 277 is a conflation of two explanations that can be sustained only with great difficulty.71 We saw, in section 1 above, that the number 277 is convincingly explained in the Jerusalem Talmud, with no reference at all to R. Nehemiah’s view and the “chiefs of tens” principle. How, then, are we to understand the sugya in the Babylonian Talmud? I would suggest that the sugya in our Talmud is the outcome of a reworking of the original sugya, namely, the sugya adduced in Midrash Hagadol. For while the baraita specifying the number 253 has no source other than our sugya (which invokes the principle that “the chiefs themselves were included”), the baraita that gives the number 277 does have another source — the Tosefta. It seems quite possible, then, that the original sugya (as preserved in Midrash Hagadol) adduced only the baraita of 253, whereas the baraita in the Tosefta was not known to the authors of the sugya, and they did not take it into account. After the

71 Cf. Yad Rama ad loc., which wonders why R. Nehemiah put forward a different opinion at all, since he too surely recognizes the occasional need to co-opt further judges. He also asks why the case of a judge who claims ignorance (‘I do not know’), making it necessary to add another judge to the bench, is not taken into consideration. See also Tosfot Hakhmei Anglia (Jerusalem: 1968) ad loc.

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sugya had been formulated, however, some exegetical schools and scholars incorporated into it a different tradition, attributed to Rabbi, which they had learned of from either the Tosefta or the Jerusalem Talmud — namely, that the number in question was 277.72 From here on, two incompatible traditions were attributed to Rabbi, viz., the land of Israel tradition of 277, and the Babylonian tradition of 253. The debate proceeded, however, without paying any attention to this contradiction, for it had been formulated without reference to the baraita of the Tosefta, and addressed only the relationship between the number given by Rabbi (in the baraita of 253) and that given by R. Nehemiah. This problem was indeed settled in the original talmudic debate, but after the baraita from the Tosefta had been interpolated at the beginning of the debate, students of the text were faced with an obvious contradiction between the two views quoted in Rabbi’s name, which the answer given in the sugya did not resolve in any way. For the issue of whether or not the “chiefs of tens” were counted in their respective “ten”s in no way resolves the incompatibility of the totals 277 and 253. Those studying the text thus found themselves presented with a proposed resolution of a contradiction between two baraitot that actually explained nothing, and were forced to emend the sugya. First,

72 As is well known, R. Zerahia Halevi had observed that later redactors sometimes interpolated a baraita the original sugya was unaware of: “One must say, rather, that perhaps [the baraita] was an external one, of which the post-talmudic rabbis (rabanan savoraei) learned after the finalization of the Talmud, and they inserted it into the Gemara” (Hamaor Hakatan on Alfasi, Pesahim, ch. 10, Vilna edition 20a). See S. Abramson, Rules of the Talmud in the Writings of Nahmanides (Hebrew), (Jerusalem: 1971), 36. (Nahmanides, in his disputation with R. Zerahia Halevi, differs with him regarding this point, see Pesahim ad loc., but in Sefer Hazekhut on Jebamot ch. 4 (Vilna edition 13b), he too writes: “Possibly this was discovered in later generations,” as, e.g., in cases where an apparent tiuvta (refutation of an Amoraic opinion) is followed by a renewal of the halakhic debate; but he is not necessarily referring specifically to the Saboraic rabbis (rabanan savoraei); see Abramson, 96.) In Henshke 1996, n. 70 above, I showed this with regard to the case of a baraita from the Mekhilta of R. Ishmael, the Mekhilta of the land of Israel, which became known to the editors of the sugya after its finalization, prompting them to modify it. Here, too, my suggestion is that the tradition in question originated in the land of Israel (the Tosefta or Jerusalem Talmud) and became known to the authors of the sugya after it had already been formulated.

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they had to explain the figure of 277 without knowing its source. For the Midrash on “your gates . . . your tribes” in the Jerusalem Talmud (discussed in section 1 above), which multiplies the 23 members of the Sanhedrin by the number of tribes to yield the total 276, to which “Moses presiding over them” is added, yielding 277, was completely unknown to scholars in Babylonia.73 They thus explained 277 in terms of supplementing the original twenty-three member court until the full complement of the Great Sanhedrin was reached: R. Nehemiah’s 230, including 23 members of the Small Sanhedrin, plus the 47 needed for a seventy member Great Sanhedrin. It was then necessary to reconstitute the sugya. For if the number 277 reflects the seventy-member Great Sanhedrin, the view that the full complement of the Great Sanhedrin was not 70 but 71 required a parallel figure of 278.74 The sugya was thus emended as follows. The baraita adducing the number 253 in Rabbi’s name, which is inconsistent with the number 277 reported in his name in the Tosefta, was emended to read 278, since this total was, as we just saw, mandated by the argument put forward in explicating the number 277. This resolves the problem of the incompatible views reported in Rabbi’s name: on the view of R. Judah, who upholds a seventy-member Sanhedrin, Rabbi’s calculation is 277; but on the view of the Rabbis, who uphold a seventy-one member Sanhedrin, Rabbi’s calculation comes to 278. The original solution distinguished between the view of Rabbi and that of the Rabbis, but “Rabbi” is now emended to “Rabbi Judah” — interchanging “Rabbi” and “R. Judah” is indeed not uncommon.75 The text is now in order — except that the baraita specifying the number of

73 This is why it was necessary to devise a forced explanation for the view of the first Tanna, which is also based on this Midrash, as explained above, and to try and reconcile it with the view of R. Judah in the Tosefta; see section 1 above, and n. 27. 74 Duenner tried to expunge this number and change it to 276, that is, twelve tribes multiplied by the twenty-three members of the Sanhedrin, without adding Moses — the approach adopted by R. Judah in his count of the Sanhedrin. However, apart from the lack of any textual foundation for this, the fact is that the “your tribes” exegesis is entirely unknown to the Babylonian Talmud in this context, as has been pointed out. Nevertheless, according to the account I have presented here, Duenner’s hunch that the number 278 was not integral to the original text was indeed correct. However, it was not a corruption of the text, but an intentional modification. 75 See, e.g., Epstein, n. 65 above, 377; and see n. 61 above.

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judges in Israel is no longer germane to the substance of the debate; the wording “For the Rabbis taught” is thus emended to “The Rabbis taught.” The source of the difficulties as to both the form and the content of the sugya is now obvious. The original sugya was modified when those who studied it interpolated into the text a baraita originating in the land of Israel that gave the number 277. This forced those studying the text to reconcile this number with the original sugya, and incorporate their discussion into it. The absence of an explanation of the sugya’s main points — namely, the rationale for the calculation that the number is 277 and the question at issue between R. Judah and the Rabbis — is thus due to the fact the sugya in its present form is a reworked version in which additions were incorporated into the original structure, which was retained. Since the original sugya, as quoted in Midrash Hagadol, is perfectly cogent, and did not require additional clarification, those reworking it tried not to alter its structure, hence the extreme brevity of the new version. As to the main problem raised by the reworked sugya — the explanation of the number 277 by way of an improbable synthesis of the views of R. Nehemiah and R. Judah — this difficulty arose because the sugya’s redactors had to explain the baraita of 277 that had reached them from the land of Israel, but had no knowledge of its midrashic background. It seems, therefore, that the brief sugya in Midrash Hagadol, which apparently originated in the Sheiltot literature, was the original sugya that was studied in Babylonia, whereas the version in our text of the Babylonian Talmud is the product of a reworking of the original that took into account the version in the Tosefta. This reworking was carried out at a relative early stage, since the reworked version of the sugya is that found in all the textual witnesses to our Talmud. *** To conclude, our sugya affords us a rare glimpse of the processes by which both the Mishnah and the Babylonian Talmud were shaped and created. The editor of the Mishnah formulated the views of the Tannaim in accordance with his own conceptions, and not necessarily the original intentions of those Tannaim; this is clear from the way he combined the rationale for the view of the first Tanna of the Mishnah, as it emerges from the Jerusalem Talmud, with the thrust of R. Nehemiah’s view as presented in Sifre Zuta on Deuteronomy. It turns out that the editor of the Mishnah basically adopted R. Judah’s

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view in the Tosefta, and interpreted other views, that originally addressed different points, in accordance with it. As to the Babylonian sugya, the way it took shape is revealed when it is compared with a different tradition of the sugya, that preserved in Midrash Hagadol. We saw that the original tradition of the sugya is that of Midrash Hagadol, where we find a new Tannaitic explication of the number of residents a town needs in order to have a Sanhedrin. And we saw that interpolation of the tradition from the Tosefta into the sugya completely altered it, both with respect to the Tannaitic views reported, and with respect to the talmudic debate thereon. The extent of the Tannaitic literature, which is far in excess of that extant today, is illustrated by this sugya in two ways. The discovery of a new compilation of Tannaitic teachings — Sifre Zuta on Deuteronomy — has provided us with a new Tannaitic source, which in addition sheds new light on existing sources. On the other hand, an early baraita that was edited out of the Babylonian Talmud at some point, but survived in Midrash Hagadol, has made us aware of a completely new Tannaitic view. Old and new thus both contribute to our reconstruction of the many and varied facets of the Tannaitic literature.

The Jewish Law Annual, Vol. XVII

“THE ACTIONS OF A MINOR ARE A NULLITY”? SOME OBSERVATIONS ON THE LEGAL CAPACITY OF MINORS IN RABBINIC LAW LEIB MOSCOVITZ*

1 According to numerous Rabbinic sources,1 minors2 (katan or tinok3), like the other categories of those whom the Rabbis considered mentally * Department of Talmud, Bar-Ilan University. References to the Tosefta in this article follow Lieberman’s edition where available and Zuckermandel’s elsewhere. All translations in this paper are my own. 1 Owing to the nature of the Rabbinic sources, it is impossible to provide a precise assessment of how widespread this view is and whether it was the majority view in Rabbinic literature; hence I speak of “numerous” sources. See nn. 195, 196 and the accompanying text below. 2 The precise definition of a minor is disputed in the Rabbinic sources. Varying views obtain as to age requirements and whether signs of puberty — and if so, which signs — are necessary for halakhic majority; see Tirzah Meacham (ed.), The Book of Maturity by R. Shemuel Ben Hofni Gaon (Hebrew), (Jerusalem: 1999), 17–24, and Y.D. Gilat, “Marriage of a minor — in law and in fact” (Hebrew), (henceforth Y.D. Gilat 2002), in I.M. Ta-Shma and I.Z. Gilat (eds.), Y.D. Gilat — In Memoriam: Collected Articles (Hebrew), (Jerusalem: 2002), 31–32. Since these issues generally have no direct bearing on the present discussion, we do not discuss them at length here. It should be emphasized that these definitions apply only where the relevant laws are explicitly predicated on legal majority (e.g., where the sources state that “a minor” is disqualified from performing a particular action). However, other halakhic issues, such as a minor’s obligation to perform religious precepts, may depend not on age, but on other, more flexible criteria, such as ability to perform the relevant act. See B.M. Bokser, “A minor for zimmun (Y. Ber. 7:2, 11c) and recensions of Yerushalmi,” AJS Review 4 (1979), 17–18; Y.D. Gilat, “Thirteen years old — the age for precept observance?” (Hebrew), Mehqerei Talmud: Talmudic Studies, vol. 1 (1990), 39–53 = idem, Studies in the Development of the Halakhah (Hebrew), (Ramat-Gan: 1992), 19–31 (references to this paper will be to the latter version, henceforth Y.D. Gilat 1992), and Meacham, 13. Note also the interesting but somewhat enigmatic observations of Saul Lieberman, Sifrei Zuta (NY: 1968), 138 = idem, Tosefta Kifshuta (NY: 1955–1988), 8:847. 3 The term tinok frequently means ‘minor’ in Rabbinic literature, not ‘infant,’

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deficient, namely, the deaf-mute and the insane,4 cannot perform actions with legal effect, such as transferring property or serving as an agent, whether ritual or monetary, in a manner that is valid according to Torah law (although some such actions might be deemed valid by Rabbinic decree “for [the sake of] the ways of the peace” (mishum darkhei shalom) and the like. An apparent assertion5 to this effect — “the action of a female minor is a nullity” (ein maase ktana klum) — appears in several places in the Rabbinic literature.6 Similarly, numerous Tannaitic passages7 state that minors, like the other categories of the mentally deficient, lack understanding8 (daat) or are incapable of thought9

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as might be inferred from the etymology of the word and its usage in modern Hebrew. See esp. mYoma 8:4; tHagiga 1:3, p. 376; and the examples below. Indeed, the words katan and tinok are interchangeable in Rabbinic texts, both between parallel passages (e.g. jMaaser Sheni 4:4 (55a), lines 35–36 [katan] // jEruvin 7:6 (24c), lines 44–45 = jGitin 5:9 (47c), lines 7–8 [tinok]; jBerakhot 7:2 (11b), line 16 [katan] // Bereshit Rabbah 91:2 (Albeck edition, p. 1111) [tinok]; see also the sources cited in n. 82 below) and via stylistic variegation (see, e.g., mTohorot 3:6–7 and tTohorot 3:7, p. 663, lines 4, 6); on this phenomenon see L. Moscovitz, Talmudic Reasoning (Tübingen: 2002), 402 [index], s.v. “stylistic variegation,” and the references there cited. See n. 7 below. Obviously, in terming such persons ‘mentally deficient’ here and elsewhere in this article, I refer to views in the Rabbinic sources and not my own. I say “apparent assertion,” because this statement may originally have been meant as a context-specific claim, applying only to the cases discussed in the passages in which it appears. See mJebamot 13:2; mKetubot 6:7; tJebamot 13:3, p. 46 and their talmudic parallels. Interestingly, these sources speak only of female minors; a more generalized version of this statement, which speaks of minors in general (ein maase katan klum), first appears in the writings of post-talmudic scholars (see, e.g., Tosafot on bJebamot 34b s.v. mitokh). See, e.g., mBaba Metzia 1:7, mArakhin 1:1, Mekhilta of R. Shimon b. Yohai on Exodus 21:29 (Epstein-Melamed edition, p. 180); note that not all these passages deal with minors’ legal capacity. On various post-talmudic attempts — all unpersuasive, in my opinion — to restrict these and similar Rabbinic statements to particular types of minors, see the Appendix. The term “understanding” does not adequately render the Hebrew technical term daat; I use this expression for lack of a better one. See also n. 10 below. See the sources cited below, §3.

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(mahashava).10 Similar notions are found in post-Tannaitic sources, such as the anonymous statement found in several places in the Babylonian Talmud (henceforth, BT) that minors “are not capable of understanding” (lav bnei deia ninhu).11 However, examination of the relevant sources reveals that Rabbinic views on the capacity of minors (and, to a lesser extent,12 the other categories of the mentally deficient) to perform actions with legal validity are far more diverse. As we will see below, numerous Tannaitic sources authorize minors to perform various actions, both ritual and monetary, with legal effect by Torah law. (Other sources authorize minors to perform actions with legal validity by Rabbinic decree13 [miderabanan], although these sources generally will not concern us here.) In addition, some Rabbinic sources strongly imply, and others explicitly state, that at least certain minors possess halakhically viable understanding. The question of whether certain minors can perform binding legal actions and whether they possess halakhically viable understanding according to Rabbinic halakha is important not just for its own sake, but because of its potentially wider-ranging jurisprudential 10 The exact meaning of this term (see below, text at n. 132ff.) and the other terms for mental capacity in the Rabbinic literature (e.g., daat), and the precise relationship between them, are not fully clear. Nevertheless, for purposes of most of the present discussion this issue is not critical, since the basic point is clear: minors and the other categories of the mentally deficient lack the necessary mental capacity to perform actions that have legal validity. 11 See bHagiga 2b and parallels. Note also R. Johanan’s statement in PT that a female minor who committed adultery “has no [halakhically valid] desire (ratzon) to be prohibited to her husband” (jPesahim 8:1 (35d) and parallels), and cf. the anonymous statements in bJebamot 33b = 61b that “the seduction of a female minor is [considered] rape.” 12 The talmudic sources attribute greater understanding to minors, or at least some minors, than to deaf-mutes and the insane: after all, some minors are demonstrably intelligent; cf. Responsa Hatam Sofer, vol. 2, #2. Readers must keep in mind the distinction, noted above, between talmudic views regarding mental disability, and those of contemporary halakhic thinkers, who do not deem the deaf-mute mentally deficient; see J. David Bleich, Contemporary Halakhic Problems (NY: 1983), vol. 2, 368–75, and Tzvi Marx, Disability in Jewish Law (London: 2002), ch. 6. 13 E.g., with regard to certain monetary matters (“for the sake of peace,” mipnei darkhei shalom) discussed in mGitin 5:8, or Rava’s tripartite dictum in bGitin 65a.

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implications. The view that the capacity to perform legal actions depends on a fixed, objective criterion — age — seems to reflect a rigid, formalistic, standards-based approach to the law.14 By contrast, rulings allowing certain minors to perform actions, including actions which ostensibly require mental capacity, with legal effect, apparently reflect a more flexible, differential approach to determination of the law. On this approach, mental ability and perhaps even physical ability, rather than age, seems to be the principal criterion for determining whether a minor can perform legal actions. Significantly, it has been suggested that such a differential approach to legal determination reflects a relatively early stage of Rabbinic legal thought, while the standards-based approach is a later development.15 Hence the question of whether minors possess legal capacity in Rabbinic law may serve as a yardstick — though perhaps just one of many — for assessing the question of standardization versus flexibility in Rabbinic jurisprudence. This article seeks to survey the extant Rabbinic evidence,16 mainly the Tannaitic evidence, that minors can perform legally binding actions17; such evidence, in contrast to other aspects of minors’ legal 14 The adoption of an age-based criterion can be explained in several ways. Age may serve as a standard — admittedly, an inflexible and hence not always fully accurate standard — for assessing understanding. On this suggestion, one who has reached the age of halakhic majority is presumed for legal purposes to possess the intelligence necessary for performing actions with legal validity. Alternatively, age may be intrinsically determinative of halakhic adulthood, and as such would not serve as a standard for assessing understanding. On this possibility, age requirements might be derived from exegesis of biblical verses using the term ish, ‘man’ (hence ‘adult’), which was understood as excluding minors; see M. Chernick, “Ish as man and adult in the halakhic Midrashim,” Jewish Quarterly Review 73 (1983), 254–80, esp. 261–67. There is yet another possibility: both these suggestions may be correct, with each applying in different cases; see the Appendix. However, we will not explore these possibilities at greater length here, as our primary focus is the views that reject the age-based criterion, not those that accept it. 15 See Y.D. Gilat, The Teaching of R. Eliezer b. Hyrcanus (Hebrew), (Tel Aviv: 1968), 19–20, 28–29; idem, 1992, n. 2 above, 63–71. 16 Hence we generally do not discuss the approaches of post-talmudic scholars, most of whom assume that minors cannot carry out actions that are legally effective according to Torah law (for significant exceptions, see the Appendix). 17 Accordingly, with certain exceptions to be considered very briefly toward the end of the article (see below, text at n. 197ff.), we generally do not

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status in Jewish law,18 has not been systematically scrutinized to date.19 We will be especially interested in rulings suggesting that minors can perform actions with legal effect because they possess halakhically viable understanding or intention, although the discussion will not be limited to such rulings. We will focus on the Tannaitic sources,20 mainly the Mishnah and Tosefta,21 both because of the primary and formative role this material plays in Rabbinic halakha, and because Amoraic sources usually do not authorize minors to perform actions with legal

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discuss other aspects of minors’ legal status, such as monetary liability, punishability for transgressions, obligation to fulfill religious precepts or ability to enable adults to do so. Likewise, the possibility of minors testifying (see, e.g., tKetubot 3:3–4, p. 64) is not discussed here, since the issues at stake in such cases are apparently exceptional (see Tosefta Kifshuta, 6:222–24). The literature on this issue is vast; see N. Rakover, A Bibliography of Jewish Law (Hebrew), 1 (Jerusalem: 1975), 305–307; 2 (Jerusalem: 1991), 306–307; idem, The Multi-Language Bibliography of Jewish Law (Jerusalem: 1990), 551–52, and the bibliography in Moshe Beeri, “Acquisition by a minor in monetary matters” (Hebrew), (M.A. thesis, Bar-Ilan University, 2001). A few studies treat aspects of this topic briefly and superficially, primarily in light of the Babylonian Talmud (generally without mentioning most of the sources discussed in this article) and the post-talmudic commentaries and codes; hence these works are of virtually no importance for our purposes here. See I. Lebendiger, “The minor in Jewish law,” Jewish Quarterly Review 6 (1915/1916), 473–75; 7 (1916/1917), 166–70, 172; I. Fishman, “The capacity of the minor in Jewish law,” in J. Israelstam and L. Weiwow (eds.), “Ye Are My Witnesses,” Sermons and Studies by Former Students of Rabbi Dr. Samuel Daiches (London: 1936), 200–212 (which seeks to describe the capacity of minors in Jewish law “as it would be administered at the present day, by an autonomous Jewish court” [p. 200]); E. Neufeld, “The status of the male minor in Talmud,” Revue Internationale des Droits de l’Antiquité 6 (1951), 121–40, esp. 123–28. See also the short discussion in Y.D. Gilat 1992, n. 2 above, 26–28, and the very brief allusions to some of the relevant sources in Bokser, n. 2 above. Nevertheless, two aspects of minors’ legal capacity — their ability to betroth women and to transfer/ acquire property — have been examined at some length by earlier scholars, and hence these issues are discussed only briefly here; see the text at n. 151ff. below. Hence we generally refer below only to Tannaitic sources even if a particular claim is equally valid regarding post-Tannaitic sources. Only where there is a special need to emphasize that our remarks refer both to Tannaitic and post-Tannaitic sources do we use the term “Rabbinic.” On the general exclusion of the halakhic Midrashim from our discussion, see the end of §5 below.

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effect (at least not in a manner viable according to Torah law). Of course, Amoraic teachings, especially from the Jerusalem or Palestinian Talmud (henceforth, PT), have been adduced and analyzed where relevant — mainly, where they have bearing on the plain-sense interpretation of Tannaitic sources. Considerable attention has been devoted to sources dealing with ritual issues, which provide much of the evidence that minors possess legal capacity22 in Rabbinic law. And while we focus on rulings that authorize minors to perform actions with legal effect, we occasionally consider rulings that deny minors this capacity when these statements shed light — usually, from a sourcecritical or exegetical perspective — on rulings that do ascribe legal capacity to minors. While our principal concern, as indicated, is rulings that authorize minors to perform actions with legal effect, we will discuss rulings that address the other categories of those deemed mentally deficient, since the analysis of such rulings can shed light on rulings dealing specifically with minors.23 Accordingly, the next three parts (2–4) of this article discuss rulings that authorize those with all types of mental deficiency to act with legal validity. Part 5 discusses rulings that specifically ascribe legal capacity to minors. Part 6 seeks to determine whether any patterns underlie these rulings — for example, do the differing views about the legal capacity of minors reflect chronological development, the unique approaches of particular Sages, biblical exegesis, or some such feature? Part 7 summarizes the principal conclusions emerging from the analysis and presents its wider implications. 2 The Rabbinic statements ascribing legal capacity to minors are quite diverse. Such assertions appear in different chronological and geographical strata of the Rabbinic literature, and are attributed to

22 I use the expression “legal capacity” to denote the ability of a person or group of people to perform particular acts, not to denote the legal status of such people per se. Hence minors or those in other categories may have the legal capacity, as defined here, to perform one type of action, but not others. Only where I speak of “global legal capacity” or the like am I referring to personal status, i.e., the capacity to perform all, or almost all, actions with binding legal effect. 23 See esp. n. 96 below and the following text, and the end of §5.

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different Sages. Moreover, the halakhic basis of these rulings apparently varies from case to case.24 Furthermore, some Rabbinic statements ascribing legal capacity to minors treat the other categories of the mentally deficient the same way, whereas some distinguish between minors and those in other categories. Accordingly, we will consider different types of rulings permitting minors to perform actions with legal effect separately, focusing, as noted, on Tannaitic teachings. Some actions performed by minors are apparently legally valid, according to Tannaitic teachings, because no mental capacity is necessary; mere performance of the relevant physical action suffices. (To be sure, it is generally not clear why mere physical action suffices in such cases, as the sources do not explain this.) Actions of this sort can usually be identified without difficulty because they are valid not only if performed by minors, but also when performed by the deaf-mute and the insane, whose mental faculties are clearly deficient. Thus, mYadayim 1:5 states that the deaf-mute, the insane, and minors may pour water for ritual hand-washing — indeed, even a monkey is allowed to do this25 — presumably, because no understanding is necessary here. Similarly, mGitin 2:5 states that the deaf-mute, the insane, and minors may write bills of divorce, even though they may not deliver bills of divorce. This ruling, too, apparently assumes that no understanding or intention is necessary, as the Mishnah states further on: “Validation of a divorce is only [achieved] through those who sign it.”26 Similarly, mHulin 1:1 states: “All are allowed to slaughter and their slaughter is acceptable, except for the deaf-mute, the insane, and minors, lest they slaughter improperly.27 And the slaughter of all these [individuals] is acceptable if they slaughtered and others watched them.” Despite the ab initio disqualification of these individuals, their 24 I say “apparently,” because the exact basis of many of these rulings is not specified, and hence can only be conjectured. 25 According to the anonymous first view in the Mishnah. R. Jose, who disagrees and disqualifies (only) monkeys, apparently maintains that the water must be poured by a human, even if he or she is mentally deficient. 26 Note, though, that this statement may have been missing in some texts of the Mishnah. See D. Weiss Halivni, Sources and Traditions: A Source-Critical Commentary, Nashim (Hebrew), (Toronto: n.d.), 511–12; M.S. Feldblum, “For her sake (li’shma) in a Jewish divorce document (get)” (Hebrew), in Bar-Ilan 26–27 (1995), 240 n. 9; and n. 70 below. 27 Cf. also tHulin 1:3, p. 500; mHulin 6:3; and tHulin 5:3, p. 507.

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slaughter is acceptable if there is no reason for concern that they slaughtered improperly (if, say, they were supervised by adults) — presumably, because intention and understanding are unnecessary, as the talmudic discussion of this Mishnah suggests (bHulin 12b): “Who taught that intention (kavana) is unnecessary for slaughter?” Finally, according to some Tannaitic sources,28 R. Shimon holds that levirate marriage performed by a minor aged 9 and older, when the minor is physically capable of viable intercourse, might be valid according to Torah law. This ruling reflects not just a physiological assumption — that minors of this age are capable of viable intercourse29 — but also a legal assumption, that intention or understanding is not necessary for levirate marriage. This latter assumption is made explicit in one of the relevant passages (tJebamot 11:11, p. 39)30: “one who is deaf-mute or insane31 who had intercourse acquires [the woman awaiting levirate marriage] and exempts the rival wives. . . . This is the general principle: Any intercourse that requires understanding (daat) is not [valid] intercourse [if performed by someone mentally deficient]. If it does not require understanding, it is [valid] intercourse.” Obviously, the rulings discussed here do not establish that minors, the deaf-mute, and the insane possess viable mental capacity. The importance of these rulings lies in what they indicate about the relevant legal requirements — that understanding and intention are not necessary in these cases.32 Indeed, the fact that minors are grouped 28 See mJebamot 10:8, and cf. tJebamot 11:10–11, pp. 38–39 and parallels. 29 Other Tannaim, who disagree with R. Shimon, apparently hold that levirate marriage performed by a minor (viz., through intercourse) is binding by Rabbinic decree. See esp. tJebamot 11:10, p. 38: “The intercourse of a boy who is nine years and one day old is like the levirate betrothal (maamar) of an adult.” See Tosefta Kifshuta, 6:120–121 (but note the view of Nahmanides and others, according to which such intercourse is effective according to Torah law). See also n. 155 below. 30 Cf. tJebamot 2:6, p. 7. 31 Following the reading of MS Erfurt, MS Vienna and the editio princeps erroneously add “minor” here, but this reading is clearly incorrect (and contradicted, inter alia, by the previous part of the Tosefta); presumably it is due to stylistic ‘leveling’ (ashgara), under the influence of the common Tannaitic expression heresh shote vekatan (‫)חרש שוטה וקטן‬. Cf. Tosefta Kifshuta, 6:121, on lines 75–76. 32 See also mMeila 6:2 (regarding trespass committed by the mentally deficient on behalf of one who is not mentally deficient), and cf. the explanation of this passage in bMeila 21a (and note R. Jacob Lorberbaum, Netivot Hamishpat, biurim, 182:2).

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together with the deaf-mute and the insane in these passages suggests that all these people are treated the same way because all are deemed lacking with respect to their mental faculties. 3 Other Tannaitic sources validate certain actions performed by minors (and those in the other categories of the mentally deficient) because “their actions have legal validity [lit., they have action], but not their thoughts.”33 However, these rulings are diverse, and require further analysis. We begin with mKelim 17:1534: Pomegranates, acorns, or nuts that were hollowed out by minors (tinokot)35 to measure dirt, or that [minors] made to use as a scale, are susceptible to ritual impurity, because their actions have legal validity [lit., they have action], but not their thoughts.

What is the basis for this ruling? Theoretically, there are two possibilities: (1) the physical actions of minors (and those in other categories of the mentally deficient) suffice, in essentially the same way as do the various physical actions discussed in §2 above.36 However, mental designation of an object for a certain purpose by a minor, if not accompanied by action, would not be valid, since minors lack viable mental capacity. (2) The actions of minors here are valid because they reflect the minors’ underlying intentions — namely, to use the said objects as utensils. On this suggestion, it is ultimately the minor’s intention, which has been made manifest through his actions, rather than his physical actions and the utensils’ resultant functionality, that renders

33 Precisely what constitutes action or thought — whether the thought must be verbalized, e.g., and if so, at what stage of the action — is not fully clear from the Tannaitic (or post-Tannaitic) sources, and these issues are debated by medieval commentators; see n. 49 below. However, since they are not directly relevant to the present discussion, we will not consider them at greater length here. 34 A similar ruling is found in tKelim 7:7, p. 586, albeit without mention of the principle that ‘actions of the mentally deficient have legal validity’ found at the end of mKelim. 35 See above, n. 3. 36 Presumably, because for utensils, physical functionality is the criterion for susceptibility to ritual impurity.

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these items susceptible to ritual impurity. Thus on this suggestion, minors are capable of halakhically viable intention (regarding this specific law) so long as there is clear evidence of their intention. Such evidence can, however, be provided only through action.37 Which of these explanations is correct? Taken in itself, this Mishnah does not allow for a conclusive answer. However, other Tannaitic sources are most plausibly explained, and perhaps can only be explained, in line with the second possibility.38 Let us begin with mTohorot 8:6: 1.

2.

3.

All [food] that is not designated (meyuhad) for human consumption is insusceptible to ritual impurity39 until it is designated [as intended] for people. How so? If a bird fell into a wine vat and someone thought of taking it out for a Gentile,40 it is susceptible to ritual impurity; for a dog, it is not susceptible to ritual purity. If [one who is] deaf-mute, insane, or a minor thought about41 [designating it for human consumption], it is not susceptible to ritual impurity.

37 Even if the mentally deficient state their intentions, it can be argued (plausibly, though by no means irrefutably) that such statements cannot provide reliable evidence of intent unless accompanied by action; see below. 38 Of course, the fact that these sources support the second possibility does not prove that this is the correct interpretation of mKelim, which can be explained either way. 39 Lit., “pure” (tahor); the translation given here is necessitated by the context. 40 The Mishnah speaks of designation for Gentile use since such a bird is not kosher, as it died without being ritually slaughtered. 41 Following the reading in the standard printed editions of the Mishnah. Surprisingly, the best Mishnah MSS (Kaufmann, Parma, Lowe, and Parma B, as well as a Geniza fragment published by A.I. Katsh, Ginzei Mishna [Jerusalem: 1970], 251) and the editio princeps (Naples: 1492) attest a reading that is almost certainly untenable, “if one designated it for a deaf-mute” (reading leheresh, rather than heresh, as in our texts, which take this word as the subject). Cf. Melekhet Shlomo ad loc., which suggests deleting the problematic “for,” i.e., the letter lamed. It may have been added here by way of ashgara from earlier clauses in the Mishnah, where other words are indeed prefixed by a lamed.

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But if they took it out [for human consumption],42 it is susceptible to ritual impurity, because their actions have legal validity [lit., they have action], but not their thoughts.

This Mishnah suggests that it is designation for a specific purpose, and not objective functionality (or, perhaps more accurately, potential functionality) that renders food susceptible to ritual impurity. Thus, the status of the food discussed here depends on whether or not it was designated for human consumption. Accordingly, it would be plausible to infer that the actions of the mentally deficient are valid because they provide evidence of the underlying intent, and thus it is the intention rather than the accompanying action (which merely manifests the intention) that determines the legal status of the foods discussed here. However, it could be countered that being “designated” (meyuhad) depends on the objective physical state of the food and not the intentions of the persons in question. This physical state may be objectively discernible, on the basis, say, of where the food is located (for example, on a dinner plate rather than in a feed trough). On this view, which seems somewhat forced, action does not serve merely to indicate intent, and hence this Mishnah cannot prove that minors have halakhically valid intention if such intention is discernible through their actions. However, another Tannaitic ruling strongly suggests that the mentally deficient are capable of halakhically viable intention where their intention can be reliably ascertained (viz., through action). In tMakhshirin 3:2, p. 675, we read: 1.

If [one who is] deaf-mute, insane, or a minor took his fruit up to the roof to moisten it. with the dew or the rain, [the fruit] is susceptible to ritual impurity.43

42 Presumably, the bird must be removed in a manner indicating that it is intended for human consumption (e.g., taking it to a place where food is stored). Otherwise, it is difficult to see why such designation is valid, in contrast to that mentioned in the previous clause of the Mishnah; cf. the commentaries ad loc. 43 Lit., “it is subject to ‘when there is placed’ ” (Lev. 11:38), the verse from which the rabbis inferred that intentionally-moistened food becomes susceptible to ritual impurity.

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If they took [fruit] up because of the vermin [viz., to prevent infestation] and dew or rain fell on it, even though they thought about [moistening] it, it is not susceptible to ritual impurity, because their actions have legal validity [lit., they have action], but not their thoughts.

The principle that ‘actions of the mentally deficient have legal validity’ is cited immediately after, and presumably to explain, the ruling in the second clause, according to which the thought of the mentally deficient is not legally effective unless accompanied by action. However, it seems fairly clear that the ruling in the first clause, according to which proper intention on the part of the mentally deficient renders food susceptible to ritual impurity, is also based on the principle that ‘actions of the mentally deficient have legal validity.’ Now rendering food susceptible to ritual purity through moistening (hekhsher okhalim) clearly requires intention or desire,44 as stated in mMakhshirin 1:1: Any liquid that was desired at the beginning (shethilato leratzon), even though it was not desired at the end, or was desired at the end even though it was not desired at the beginning, renders [food] susceptible to ritual impurity.

Since intentionality, rather than mere physical moistening, is necessary for hekhsher okhalim, the aforementioned Toseftan ruling strongly suggests that the actions of the mentally deficient are valid because they have intention — provided, of course, that their intention can be reliably ascertained, presumably through their actions. Certain Amoraic sources also suggest that the actions of the mentally deficient are valid because these actions provide evidence of the underlying intention. Thus, we read in jTerumot 1:1 (40a): 1.

2.

Let the actions [of the mentally deficient] provide proof of their thoughts (veyokhiah maase . . . al mahashavtan), as we learned there [mMakhshirin 6:1]: “If [one who is] deaf-mute, insane, or a minor took [fruit] up, even if he intended (hishev) that dew fall upon it, [the fruit] is not susceptible to ritual impurity, because their actions have legal validity [lit., they have action], but not their thoughts.” What is their action? R. Huna said: When they hold [the food] in the dew.

44 Note that this principle underlies most of mMakhshirin and tMakhshirin.

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3.

4. 5.

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And it was taught there [mMakhshirin 3:8]: “If [one who is] deafmute, insane, or a minor brought down [an animal to water it], even if he intended (hishev) for its feet to be moistened, [the water] is not [rendered] susceptible to ritual impurity, because their actions have legal validity [lit., they have action], but not their thoughts.” And what is their action? R. Huna said: When they rub the water on [its feet]. So here too say: Let their actions provide proof of their thoughts!

Clearly, the phraseology of (1) and (5) (“let their actions provide proof”) suggests that action serves as an indicator of intention, rather than as an independent, essentially physical criterion. Significantly, too, all the cases discussed here deal with moistening food to render it susceptible to impurity, an issue where the determinative criterion is almost certainly valid intention, as indicated above.45 It is also noteworthy that another PT discussion of the principle that ‘actions of the mentally deficient have legal validity,’ which addresses the halakhic status of vegetables that minors had picked before the Sabbath, thereby designating them for Sabbath use and rendering them subject to the laws of tithes, uses two different but clearly synonymous formulations in proximity: “where the thought of an adult is valid [lit. ‘endures’] (mitkayemet) the actions of a minor are valid” and “their action is proof of their thought” (vehokhiah maase shelahen al mahashavtan).46 The first statement speaks of action, while

45 It is not clear why PT fails to adduce other Tannaitic sources here. Perhaps the sources from mKelim and mTohorot were deemed inconclusive, or perhaps the requirement for intention emerges more clearly from the sources adduced here. As for the Talmud’s citation of mishnaic passages combined with Amoraic dicta rather than citation of the baraita from tMakhshirin to prove that action can reveal intention, the authors of PT may not have been familiar with this baraita. (On the PT’s familiarity with the Tosefta, see L. Moscovitz, “More on the ‘missing baraitot’ in the Talmud Yerushalmi” (Hebrew), Proceedings of the American Academy of Jewish Research 61 (1996), 1–4, and B. Katzoff, “The Relationship between the Tosefta and Yerushalmi Berakhot” (Hebrew), (Ph.D. dissertation, Bar-Ilan University, 2003), 241–42.) Alternatively, the Talmud may have preferred to raise an objection that was ultimately based on the Mishnah, even though this objection is really based on an Amoraic gloss on the Mishnah rather than the Mishnah itself. 46 See jMaasrot 4:2 (51b), lines 16–18, compared with lines 21, 26–27.

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the second speaks of action revealing thought, and the juxtaposition of these formulations suggests that they are synonymous.47 Thus, this passage, too, seems to imply that the actions of minors are halakhically binding because they reflect the underlying intentions of these individuals. A similar conclusion emerges from a related sugya in BT. While the original sense and scope of the Amoraic dicta in this passage cannot be reconstructed with certainty, due to apparent redactional intervention (and hence the brevity of the present analysis), the sugya in its extant, redacted form is still quite illuminating. Thus we read in bHulin 12b–13a: 1. 2.

3.

4.

R. Hiya bar Abba said, R. Johanan asked: Does a minor have thought or not? R. Ami said to him, One may [also] ask about [whether a minor has] action! Why doesn’t one ask about action? Because it was taught [mKelim 17:15 and parallels]: “their actions have legal validity [lit., they have action]”! So one should also not ask about thought, for it was taught [that] they do not have thought, as was taught [ibid.]: “Acorns, pomegranates, or nuts that were hollowed out by minors.” . . . [R. Hiya] said to [R. Ami: R. Johanan] did not ask about mere thought; he asked [about the case] where someone’s thought is clear from his actions (mahashavto nikeret mitokh maasav), as [in the case] where someone’s sin-offering stood in the south[ern part of the Temple courtyard], and he brought it to the north[ern part, where sin-offerings are slaughtered] and slaughtered it: What is the law? . . . R. Johanan said this too once, as we learned [mMakhshirin 6:1]: “If they took [fruit] up to the roof because of the vermin. . . . If [one who is] deaf-mute, insane, or a minor took it up . . . it is not susceptible to ritual impurity, because their actions have legal validity [lit., they have action], but not their thoughts.” And R. Johanan said: This only applies where they did not turn [the fruit] over, but if they turned the fruit over [to show that they wanted it moistened], it is susceptible to ritual impurity!

47 On this phenomenon, see the references in Moscovitz, n. 3 above.

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5. 6.

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This is what [R. Johanan] asked about: Is [such thought effective] according to Torah law or Rabbinic law? . . .48 And he concluded: Their actions have legal validity [lit., they have action], even according to Torah law. Their thought does not have legal validity, even according to Rabbinic law. Where someone’s thought is clear from his actions, his thought does not have legal validity according to Torah law, [but] has validity according to Rabbinic law.

Without entering into a discussion of precisely what, according to this passage,49 constitutes action, thought, or thought discernible through action, several important points should be noted. First, thought discernible through action has validity according to R. Johanan’s dictum at the end of (4), which seems remarkably similar to R. Huna’s statements in jTerumot 1:1.50 Thus, R. Johanan’s statement suggests that action serves as an indicator of thought. And while the Talmud concludes (in 6) that thought discernible through action is only valid according to Rabbinic law, it is not clear what this conclusion is based on, and it is doubtful whether this assertion reflects the plain sense of R. Johanan’s remarks in (4).51 Having established that where such thought can be discerned through action, the thought of the mentally deficient, according to some sources, apparently has legal validity, we may now inquire into

48 The next part of the sugya presents a parallel version of R. Johanan’s query, transmitted by R. Nahman b. Isaac (rav nahman bar yitzhak metanei hakhi), according to which R. Johanan inquired as to whether the acts of a minor have legal effect or not. This question is analyzed by the Talmud and subsequently emended/reconstructed in much the same way as the previous version of the question. Since there are no substantive differences between the versions with respect to the argumentation that follows the question, I do not cite the latter version of this material here. 49 See Rashi and Tosafot ad loc., whose views are echoed by other, later commentaries (see esp. Mishne Lamelekh on Maimonides, Code, Laws concerning the Uncleanness of Foodstuffs, 14:2, at the end). Note also the remarks of R. Eliyahu Bakshi-Doron, Binyan Av, vol. 1 (Jerusalem: 1983), #9, 43–48; a detailed analysis of this issue cannot be undertaken here. 50 Cf. Tosafot on bHulin 12b, s.v. vetibaei. 51 Likewise, it is questionable whether the reconstruction in (5) of R. Johanan’s question in (1) accurately reflects the plain sense of this query; note that (5) is not attributed to R. Johanan himself, but to the anonymous redactional stratum of the Talmud (stama digmara).

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the cases to which this ‘action reveals thought’ principle applies. Does it apply only to the legal domains addressed by the Tannaitic sources, and perhaps also certain highly similar cases,52 or is it a principle of universal or near-universal applicability? Obviously, this question cannot be resolved on the basis of the Tannaitic sources. There are, however, interesting observations about this issue in post-Tannaitic sources, which may shed additional light on the plain sense of the Tannaitic sources. The BT sugya cited above suggested that action may reveal the intentions of a minor in the case where a minor brought a sin-offering to the appropriate part of the Temple court. The only reason not to invoke this principle, according to the Talmud, is that such action may not provide sufficiently clear evidence of the minor’s intention; there is, however, no suggestion that the ‘action reveals thought’ principle is inherently inapplicable to cases other than those mentioned in the Tannaitic sources. The BT sugya (the chronological provenance of which is admittedly uncertain) seems to assume that the ‘action reveals thought’ principle applies in multiple (all?) legal domains, not just those mentioned in the Tannaitic sources. Most important for our purposes is the discussion in jTerumot 1:1 (40a–b): 1.

2. 3.

4.

[Mishnah] Five should not separate the priestly gift (teruma), and if they did, their teruma is invalid: [one who is] deaf-mute, insane, or a minor. [Talmud] But let their action be proof of their thoughts, as we have learned there . . . R. Samuel [citing] R. Abbahu [said] in the name of R. Johanan; R. Zeera [said] in the name of the Rabbis, “Your teruma should be thought of by you (venehshav lakhem)” (Num. 18:27): Action concerning something of which thought is written is not proof of one’s thought, but action concerning something of which thought is not written is proof of one’s thought. R. Jose said, I inquired before Samuel: But [what about] bills of divorce, concerning which thought is not written, yet one’s action is not proof of one’s thought, as we have learned [mGitin 2:5]: “All

52 Such as the case of designating food for Sabbath use discussed in jMaasrot 4:2; see above, at n. 46.

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5.

6. 7.

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are fit to write bills of divorce, even53 deaf-mutes, the insane, and minors” . . . [and] R. Johanan inquired, Is this54 “He shall write [a bill of divorce] for [his wife]” (Deut. 24:1) for her own sake (lishma)?55 R. Jose retracted and said, There, one [person] writes and the other divorces. But here, one person thinks and the same person separates the teruma. R. Jacob b. Aha said, But if [the minor] wrote and he divorced — would this be a [valid] bill of divorce?56 . . . What now? R. Johanan, with regard to terumot, follows R. Ishmael the son of R. Johanan b. Beroka with regard to sanctification

53 The text of PT reads “except for” (hutz) according to both MSS Leiden and Vatican (the correct reading is found in MS Sirillo; see below), but this is clearly a mistake, as indicated, inter alia, by the text of mGitin (afilu, “even”) according to all direct textual witnesses; cf. M.S. Feldblum, Dikdukei Sofrim Hashalem, Gitin, 1:222, n. 26; Sussmann’s introduction to Talmud Yerushalmi according to Ms. Or. 4720 (Scal. 3) of the Leiden University Library (Jerusalem: 2001), xxii n. 135. This mistake may be due to ashgara, since the phrase “[one who is] a deaf-mute, insane, or a minor” in the Tannaitic literature is usually prefaced by the expression “except for.” Alternatively — though this is less likely, in my opinion — this reading may reflect an attempt to resolve an apparent difficulty in the text, as the objection here is clearly predicated on the assumption that the actions of a minor are invalid, though the Mishnah states the opposite. 54 Adopting the reading in jTerumot. A substantively equivalent but somewhat different formulation (“but it is written,” vehaketiv) appears in the parallel in jGitin 2:5 (44b). 55 The Talmud apparently assumes that a minor can contract a binding marriage — presumably, if he was married off by his father (see Y.D. Gilat 2002, n. 2 above, 24–29, 32, and 37–38, and cf. his discussion of yeud, 28 n. 20) — even though he cannot terminate such a marriage. 56 The text elided here was apparently copied mistakenly through ashgara from other parts of the sugya, and should therefore be deleted. However, a more detailed discussion of this part of the sugya, which is highly problematic, lies beyond the purview of this article. See the interesting, though not fully adequate, emendations and comments of R. Joseph Zvi Dünner, Hidushei Ritzad, 1 (Jerusalem: 1981), 344b, s.v. beram hakha, and Zeev Wolf Rabinowitz, Shaarei Torat Eretz Yisrael (Jerusalem: 1940), 79–80, and note that the reconstruction proposed here may be supported by the discussion of our passage in a responsum by R. Eliezer b. R. Joel Halevi (see the next note).

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(kidushin) [of lustral waters],57 and R. Johanan, with regard to divorce, follows the Sages with regard to sanctification, as was taught58: “If [one who is] deaf-mute, insane, or a minor sanctified [lustral water; see Num. 19], their sanctification is invalid. R. Ishmael the son of R. Johanan b. Beroka said: Among themselves their sanctification is invalid; with others present, their sanctification is valid. The objections in (2) and (4) suggest that the Amoraim assumed that the ‘action reveals thought’ principle is applicable, at least in theory, to issues other than those addressed by the Tannaitic sources — for example, separating the priestly gift (teruma) and writing bills of divorce. In the final analysis, though, the Talmud explains that this principle does not apply to these cases because of various contextspecific considerations — a special biblical decree, in the case of the priestly gift (3), or minors’ lack of agency, which prevents them from writing bills of divorce for others (5).59 Ultimately, though, these solutions are rejected, and the Talmud ostensibly concludes that the

57 The Hebrew term used here, kidushin, was taken by some commentators in its usual sense, ‘betrothal,’ implying that minors are capable of halakhically valid betrothal. However, it is clear from the parallel in tPara (see the next note), inter alia, that the passage refers to the sanctification of lustral water and not to betrothal of a woman. This point was already noted by medieval writers (although their remarks were only recently published, and hence eluded the classical commentators); see R. Eliezer b. Joel Halevi, Sefer Raavya, Teshuvot, edited D. Deblitzky (Bnei Brak: 1989), §940, p. 107, which attributes this interpretation to the 12th-century Mishnah commentator R. Isaac of Siponto. Cf. Gilyon Hashas on our sugya, and the sources there cited; Sefer Nir ad loc. (s.v. uderabi yohanan, at the end); R. Baer Ratner, Ahavat Tzion Viyerushalayim, Terumot (Vilna: 1904), 2; Saul Lieberman, On the Yerushalmi (Hebrew), (Jerusalem: 1929), 24; idem, Tosefet Rishonim, vol. 3 (Jerusalem: 1939), 233–34. 58 Reading ditnei instead of ditninan (or ditnan, the Babylonian form that appears here by mistake), as the following source is a baraita; see tPara 5:7, p. 634. 59 See mGitin 6:3 (“a minor cannot appoint an agent,” ein hakatan ose shaliah); tGitin 4:2, pp. 260–61; jTerumot 1:1 (cited above); jTerumot 1:3 (40c), lines 48–49 and parallel; and cf. bGitin 63a, bKidushin 42a, bBaba Metzia 10b and 71b, and bMeila 21a (see n. 32 above). Note, however, that according to another source minors may be able to appoint agents with respect to certain actions related to sacrifices; see jTerumot 1:3 (40c), lines 47–48 and parallel, and see the discussion in Sefer Nir on jJebamot (Steinsalz edition,

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‘action reveals thought’ principle is disputed both by Tannaim and Amoraim.60 Thus, R. Johanan’s statement in (3), according to which the actions of minors can provide evidence of their thoughts so long as there is no biblical decree to the contrary, follows R. Ishmael the son of R. Johanan b. Beroka in (7), who permits the mentally deficient to sanctify lustral water. And R. Johanan’s statement in (4) that the actions of minors cannot serve as satisfactory evidence of their intentions (with regard to the laws of divorce), is in line with the view of the anonymous first Tanna in (7), who rejects the ‘action reveals thought’ principle regarding the laws of sanctifying lustral water. Accordingly, this sugya seems to maintain that the legal status of minors is the subject of a wide-ranging, fundamental dispute: some Sages adopt the ‘action reveals thought’ principle with regard to multiple (all?) legal domains, while other Sages reject it and hence deny that minors can perform actions with legal effect. p. 53) and Tosefta Kifshuta, 1:295. Note also R. Huna’s ruling in bKetubot 11a that a minor can convert “with the court’s consent” (al daat beit din), which may imply that minors are capable of some sort of agency, although no explicit statement to this effect appears in the Talmud. See the medieval commentators ad loc., and M. Finkelstein, Proselytism: Halakhah and Practice (Hebrew), (Ramat-Gan: 1994), 148–54. A more detailed analysis of this ruling lies beyond the purview of this article. 60 This interpretation seems to be the simplest possible explanation of this text, although an alternative explanation of (7) may be possible. The term used to describe the correspondence between the view of R. Johanan with regard to the priestly gift (teruma) and that of R. Ishmael the son of R. Johanan b. Beroka, atya (“follows”), does not necessarily imply that these Sages adopted a common legal principle. Sometimes this term denotes superficial similarity between the views compared; see L. Moscovitz, “Between casuistics and conceptualization: on the term Ameru Davar Ehad in the Palestinian Talmud,” Jewish Quarterly Review 91 (2000), 133. Thus, R. Johanan with regard to the priestly gift might ‘follow’ R. Ishmael in agreeing that the actions of the mentally deficient are valid in certain cases, although the rulings of these Sages are based on different reasons — the ‘action reveals thought’ principle in the case discussed by R. Johanan, and because no understanding is necessary in the case discussed by R. Ishmael. If this suggestion is correct — and it has certain difficulties, which cannot be discussed at greater length here, due to constraints of space — then the PT’s conclusion in (7) would not imply that the ‘action reveals thought’ principle is universally applicable, or that this principle was the subject of a Tannaitic dispute. Indeed, on this interpretation the PT’s conclusion is compatible with the analysis of the principle suggested below; see the text at n. 65ff.

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However, further scrutiny reveals that the PT’s analysis of this issue is problematic. Thus, while ‘thought’ is mentioned in the Bible (as interpreted by the Rabbis)61 in connection with separating the priestly gift (teruma), and the Rabbis interpreted this verse as meaning that the priestly gift can be separated through thought without action,62 this does not imply that action is unacceptable as an indicator of thought!63 In other words, if action can reveal thought, it would seem that the biblical requirement of thought can be satisfied by a minor’s actions, since his thought is revealed through his actions. Likewise, the objection regarding bills of divorce is somewhat problematic, as noted by the Talmud itself in (6). The Talmud’s apparent claim64 that the ‘action reveals thought’ principle is the subject of a Tannaitic dispute is also problematic. Thus, R. Ishmael the son of R. Johanan b. Beroka, the alleged exponent of this principle, does not invoke it in connection with any of his rulings, although this notion does appear — anonymously (see below) — in other passages. Moreover, none of the Tannaitic sources that cite this principle suggest that it is disputed: it is invariably cited anonymously and seemingly unanimously. Still more important, if R. Ishmael’s ruling in (7) is based on the ‘action reveals thought’ principle rather than on the assumption that no understanding or intention is necessary (which seems to be the simplest explanation of this ruling), then the Tosefta should presumably have noted that sanctification by the mentally deficient is only valid when performed in a manner indicating that proper intention was present, as in the other cases

61 The literal meaning of Numbers 18:27, of course, is quite different: the word venehshav means ‘it shall be considered,’ not ‘it shall be separated through thought.’ 62 See Sifre Numbers §121 (Horowitz edition, p. 147) and parallels (but see Horowitz’s notes ad loc.); tShabat 14:5, p. 66 and parallels. 63 Mishna Rishona on mTerumot 1:1, s.v. haheresh, suggests that since minors are incapable of understanding, they are disqualified by biblical decree from separating the priestly gift (teruma) even when their actions reveal their intentions. However, it is very difficult to harmonize this suggestion with the words of the Jerusalem Talmud. Equally unpersuasive is the suggestion of R. Meir Simha of Dvinsk, Or Sameiah, Laws of Marriage 2:4, s.v. ulam midivrei, that since action is not necessary to separate the teruma, action cannot reveal thought in such instances, as this seems to be a non sequitur. 64 See above, n. 60.

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where this principle is invoked (e.g., tMakhshirin 3:2: “if [he] took his fruit up . . . to moisten it”). These difficulties suggest that it is not just the solutions in the PT that are problematic, but the Talmud’s assumption that the ‘action reveals thought’ principle applies to legal domains other than those discussed by the Tannaitic sources. Indeed, there is a fundamental difference between the cases discussed in these sources and the cases to which the Jerusalem Talmud suggests applying our principle.65 In those cases where the actions of the mentally deficient reflect thought (or are deemed halakhically viable) according to the Tannaitic sources, the issue at stake is functionality or personal desire — the usability of a particular utensil, whether a particular foodstuff is intended for human consumption, whether food was willingly moistened. The type of ‘thought’ required in such cases is personal desire/aversion. Now, even children, like those in the other categories of the mentally deficient, are capable of this sort of ‘thought,’ as it does not entail legal sophistication or abstract intellection. Accordingly, such thought may be valid even when manifested by the mentally deficient, provided their desires are fully apparent. By contrast, actions that alter the legal or metaphysical status of a particular object presumably require comprehension of the legal and metaphysical significance of these procedures. Such actions call for mental and legal intent of a different order of sophistication, one that physical action, by its very nature, is incapable of revealing. Hence the ‘action reveals thought’ principle may not be applicable to actions of the latter sort, such as separating teruma or writing bills of divorce with the proper intent (lishma). Examination of other Tannaitic rulings may provide additional support for this suggestion, as we will soon see.66

65 The distinction suggested here is somewhat similar to that advanced in a slightly different connection in Or Sameiah, n. 63 above. Note, though, that this distinction is apparently rejected in another PT passage (jTerumot 1:3, [40c], line 40 // jJebamot 13:2 [13d], line 1). Although its general thrust seems clear, the text and exact interpretation of this passage, according to which Gentiles are deemed not to have thought with regard to hekhsher okhalim (though they obviously have likes and dislikes), are problematic. 66 See the end of §5.

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4 One other case where the actions of the mentally deficient are valid should be briefly addressed. (The source discussed here is postTannaitic, although it seeks to explain a Tannaitic source, hence we consider it here.) In bGitin 22b–23a67 (commenting on mGitin 2:5, which states that those in the various categories of the mentally deficient may write bills of divorce) we read: 1. 2. 3. 4. 5.

But they are not capable of understanding (lav bnei deia ninhu)! R. Huna said, Provided that an adult68 is standing over him (omed al gabav). R. Nahman said to him, But if so, if a Gentile has a Jew standing over him — is this too acceptable? And should you say, Indeed [it is] so — has it not been taught: “A Gentile is unfit”?! A Gentile acts on his own behalf (adata denafshei aved).

The Talmud’s objection in (1) seems to be predicated on the assumption, which is supported by other Tannaitic passages69 (though contradicted by the plain sense of our Mishnah),70 that proper intention (lishma) is necessary when writing bills of divorce; how then can the mentally deficient carry out this act? According to R. Huna’s statement in (2), which is ostensibly intended to address this objection, adult supervision can somehow remedy this problem. 67 Cf. also the partial parallel in jTerumot 1:1 (40a), lines 56–68 // jGitin 2:5 (44b), discussed in n. 74 below. 68 R. Huna’s mention of an adult (gadol) suggests that he was trying to explain why minors can write bills of divorce, and not why those in other categories of the mentally deficient can do so. However, this word (use of which is confirmed by all witnesses to the text here) may reflect the influence of a similar dictum, also attributed to R. Huna, in bSuka 42b, that deals specifically with minors. Note too that the parallel dictum in the PT, cited in the previous note, reads “provided that a sensible person (pikeiah) is standing over him,” rather than “. . . an adult is standing over him.” 69 See Feldblum, n. 26 above, esp. 238–40. 70 Weiss Halivni, n. 26 above, Nashim, 512 suggests that the Talmud’s objection might imply that the last clause of our Mishnah, according to which “validation of a bill of divorce is effected through its signatories,” was missing from the Rabbis’ text of the Mishnah. However, it seems more likely that the Talmud’s discussion reflects an attempt to forcibly harmonize the ruling of our Mishnah with the widely attested view that proper intention is necessary when writing a bill of divorce.

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How does such supervision work, halakhically speaking? The simplest explanation,71 which seems to be implied by the next part of the sugya, is that the mentally deficient, though generally incapable of proper intention, are capable of such intention when instructed by adults what to have in mind. However, such supervision only works for Jews, but not for Gentiles, who “act on their own behalf” (5), following the dictates of their own minds rather than the instructions of a supervisor. Accordingly, the supervising adult mentioned by R. Huna (2), in contrast to the supervising adults mentioned in various Tannaitic sources,72 does not merely watch the mentally deficient individuals in question, ensuring that they do not make technical errors when writing bills of divorce (say, misspelling the names of the parties), but rather, his role is to ensure that these scribes possess the requisite intention (lishma) when writing the get. Thus, our sugya seems to imply that the mentally deficient are capable of halakhically valid intention if they are instructed what to think about. However, this suggestion is problematic. First, it does not seem to reflect the plain sense of the Mishnah, according to which understanding or intention is not necessary when writing a bill of divorce. Moreover, the Talmud’s seeming assumption that the adult supervisor must instruct the mentally deficient persons in question to have proper intention does not square with the plain sense of R. Huna’s statement (“provided that an adult is standing over him,” omed al gabav), which suggests that the adult merely observes the mentally deficient individuals, without giving them direction as to what they must do.73

71 Advanced by virtually all commentators ad loc.; see Rashi on bGitin 23a, s.v. vehu shehaya. However, R. Jonah of Gerona, cited by other medievals (see, e.g., Responsa R. Solomon ibn Aderet, 1:26; idem, novellae on bHulin 12b, s.v. man tena [Ilan edition, col. 92]), claims that the adult supervisor provides the necessary intention on behalf of the husband, serving in effect as the husband’s tacit agent. (And see the references in nn. 431*–432 of the Ilan edition.) However, this explanation is difficult to accept (inter alia, because it fails to adequately account for the disqualification of Gentiles), and will not be considered further here. 72 See mHulin 1:1, tPara 5:7, 12:8 and parallels. 73 The classical commentators were aware of this difficulty, which they attempted to resolve by distinguishing between the expression used here (omed al gabav, “standing over him”), which, they claimed, refers to instruction as to the requisite intention, and the expression used in the other sources (aherim roim oto, “others see him”), which, they claimed, refers

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Finally, the Talmud’s apparent assumption that those falling under the various categories of the mentally deficient not only comprehend the instructions of the supervising adults, but necessarily heed these instructions, strains credibility. Now the Amoraic dicta in this passage can be understood differently if interpreted independently of the anonymous parts of the sugya.74 Thus, R. Huna may not have meant to answer the anonymous objection in (1) about lack of intention. His adult supervision requirement may have been intended to address a different problem: ensuring that the bill of divorce was written without errors. Likewise, R. Nahman’s statement may not have been meant as an objection, but as a query: since no intention is necessary when writing bills of divorce, is a bill of divorce valid even when written by a Gentile? Thus, the anonymous editorial stratum of the Talmud here may have reinterpreted the presumably earlier Amoraic discussion in light of the anonymous editors’ assumption that proper intention is necessary when writing a bill of divorce. Hence R. Huna’s statement was understood as addressing the problem of inadequate intention rather than technical error (e.g., misspelling names in the get), while R. Nahman’s statement was interpreted as an objection in need of resolution — how is it possible that a Gentile can write a valid bill of divorce? — rather than a query. If this analysis is correct, the sugya actually contains two conflicting views about the understanding or intention of the mentally deficient. The Amoraim, in line with the plain sense of our Mishnah, may not have considered intention or understanding necessary for writing a bill of divorce. Consequently, the Amoraim may not have required adult instruction here, and indeed may not have held that such instruction can supply proper intention where intention is required. The notion that instruction was called for was apparently an innovation on the part of the anonymous redactors, and was most likely motivated by harmonistic exegesis — the need to square the plain sense of the

to observation without such instruction. However, this distinction seems philologically unsound; cf. Tosefta Kifshuta, 5:1271 n. 16. 74 The interpretation suggested here is also possible, though admittedly not necessary, according to the PT parallel (see above, n. 67), where the suggestion (attributed to R. Huna) that the mentally deficient persons in question have adult supervision precedes the objection, attributed to R. Johanan, that proper intention (lishma) is lacking.

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Mishnah, which ostensibly does not mandate scribal intention for the writing of bills of divorce, with other Tannaitic sources, which do mandate such intention.75 5 Still other Tannaitic rulings authorize minors to perform certain types of actions with legal effect. Since only minors are mentioned in these passages, it would seem that they are the only category of the mentally deficient deemed capable of carrying out such actions. Indeed, in some of these cases it seems almost certain that mental capacity is necessary to validate the relevant actions, suggesting that minors possess halakhically viable understanding, as we will soon see. The rulings that permit minors to perform legal actions are diverse. Let us begin with a somewhat problematic example, tEruvin 2:11, p. 95: 1.

2.

R. Meir said, Jewish women did not refrain from sending their eiruvin76 with their minor sons and daughters, to train them [to fulfill] the commandments. R. Judah said to [R. Meir], Is there proof from [this? This applies] where one says to another, Accept [this eruv] from me. . . .

R. Meir (1) speaks of minors delivering eiruvin to “train them to [fulfill] the commandments.” Thus, it might appear that minors cannot carry out eruv-related procedures with legal effect, and when they do bring the markers to the appropriate place, they do so in training for when they reach halakhic majority.77 However, this interpretation seems to be ruled out by the contrast between R. Meir’s ruling here and R. Judah’s ruling in (2),78 according to which minors’ eiruvin are inherently invalid, and accepted here only because they are delivered 75 Note the (unpersuasive) application by various post-talmudic sources of the ‘supervision principle’ to tJebamot 12:12 and parallels, discussed at n. 92ff. below. 76 Precisely what type of eiruvin the Tosefta refers to here, eruvei tehumin or eruvei hatzerot, is not fully clear; see the text at n. 80 below. 77 None of the commentaries address this problem, to the best of my knowledge. 78 Cf. the anonymous ruling in mEruvin 3:2, according to which an eruv may not be conveyed by one falling under any of the categories of mental deficiency.

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to adults. By implication, R. Meir disagrees, and considers eiruvin delivered by minors acceptable.79 Moreover, if R. Meir considered minors’ eiruvin invalid, an additional eruv would be necessary here, but the Tosefta does not mention any such requirement. Accordingly, the last clause of (1), according to which eiruvin were sent with minors “to train them [to fulfill] the commandments,” presumably refers to the motivation for having children deliver eiruvin, and not to the validity of such eiruvin, which would, in fact, be acceptable according to R. Meir. Since R. Meir speaks only of minors, we can plausibly infer that eiruvin may not be sent with one who is deaf-mute or insane. However, it could be countered that minors were singled out here because it was customary to have children deliver eiruvin, as stated at the end of (1). Thus, our Tosefta cannot prove that according to R. Meir, minors, in contrast to those in other categories of the mentally deficient, can deliver eiruvin. Moreover, it may be that minors are permitted to deliver eruvei hatzerot (to which the Tosefta apparently refers) because such eiruvin are only required by Rabbinic decree,80 but a similar leniency might not apply to Torah-based laws. In any event, since neither the Tosefta nor any other Tannaitic source explains the legal basis for R. Meir’s ruling, any attempt to determine the conceptual underpinnings of this decision remains speculative. Stronger evidence that minors can perform actions with legal validity, although the other categories of the mentally deficient cannot, is provided by several passages that address the red heifer ritual.81 Thus, in mPara 5:482 and the parallel in tPara 5:7, p. 634, we read as follows:

79 For a somewhat different interpretation, see R. Ezekiel Abramsky, Tosefta Hazon Yehezkel, Moed, vol. 1 (Jerusalem: 2000), 131. 80 See Tosefta Kifshuta, 3:330–32, and cf. A. Goldberg, The Mishna Treatise Eruvin, Critically Edited (Hebrew), (Jerusalem: 1986), 68–70. 81 See the halakhic Midrashim cited in n. 89 below, and the parallels cited in the next note. There are additional, partial parallels in the BT, but these apparently reflect a secondary version of the original traditions, and we do not discuss them here; see n. 88 below. 82 Note also the discussion in mPara 12:10 and its partial parallel in Sifre Zuta Numbers 19:18 (Horowitz edition, p. 314; cf. n. 89 below). However, since the text and interpretation of these passages are obscure, we will not consider them further.

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1. 2. 3.

89

All may sanctify [lustral water] except for [one who is] deaf-mute, insane, or a minor. R. Judah accepts a minor83 and disqualifies women and hermaphrodites.84 [tPara adds:] R. Ishmael b. R. Johanan b. Beroka says, If [one who is] deaf-mute, insane, or a minor sanctified [lustral water] and others were watching him, their sanctification is acceptable.

A similar dispute appears in tPara 12:8, p. 640: 1. 2. 3.

All may sprinkle [lustral water] except for [one who is] deaf-mute, insane, or a minor. R. Judah accepts a minor and disqualifies women and hermaphrodites. R. Ishmael b. R. Johanan b. Beroka says, If [one who is] deaf-mute, insane, or a minor sanctified [lustral water] and others were watching him, their sanctification is acceptable.

R. Judah’s ruling permitting (only) minors to sanctify or sprinkle lustral water85 contrasts with both the disqualification of all those who are mentally deficient by the anonymous first Tanna, and the blanket qualification of such individuals (provided their actions are supervised by adults) by R. Ishmael b. R. Johanan b. Beroka. The basis for the latter two rulings seems clear. The anonymous first Tanna apparently considers understanding or intention of some sort necessary here,86 though

83 See the anonymous ruling in tPara 3:2, p. 631, and the discussion of this ruling in Lieberman 1939, n. 57 above, 215–16. 84 The Tosefta version does not have “and disqualifies women and hermaphrodites.” 85 In mPara 3:4, R. Jose the Galilean and R. Akiva disagree about whether minors had to sprinkle lustral water on other minors who participated in the red heifer ritual; by implication, they agree that minors may sprinkle lustral water if they wish. Moreover, the previous part of this Mishnah, which is anonymous and seemingly undisputed, states that minors are required (!) to sanctify the lustral waters during a certain preliminary part of the red heifer ceremony. However, the laws discussed in this Mishnah apparently apply only to this part of the red heifer ritual, and apply by special Rabbinic injunction (maala); cf. Tiferet Yisrael, Boaz, ad loc. Hence this Mishnah has no bearing on the discussion here. 86 Cf. mPara 12:2–3.

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it is not clear precisely why this is so87; hence the mentally deficient are disqualified. By contrast, R. Ishmael apparently holds that understanding is not necessary, hence the mentally deficient may participate in this ritual so long as it is clear that they perform the relevant actions correctly. The basis for R. Judah’s ruling is not stated, although two BT sugyot claim that it is biblical exegesis.88 Support for this claim is provided by several passages in the halakhic Midrashim, which permit minors to perform acts associated with the red heifer ritual because the Bible uses general terminology (ribui) in connection with this ritual.89 Such terminology was understood to include minors, even though the word ish (man), which the Rabbis often interpreted as excluding minors, appears in the biblical discussion of the laws of the red heifer (Num. 19:9, 18). However, the question remains: even if R. Judah’s ruling is ultimately rooted in biblical exegesis, why was the aforementioned general language interpreted as including minors, but apparently not those in the other categories of the mentally deficient? Presumably, the ruling assumes that minors, unlike those in the other categories, are capable of halakhically viable understanding. Indeed, this explanation of R. Judah’s view may be supported by his other rulings.90 Another action that is valid, on some opinions, when performed 87 Theoretically, this requirement might be based on either common sense — a general requirement that there be intention (but if so, what about the cases discussed in §2 above?), or biblical exegesis (cf., e.g., Sifre Numbers, §124 [Horowitz edition, p. 157]); we have no clear-cut, conclusive evidence for either of these hypotheses. 88 See bYoma 43a–b and bJebamot 72b, but note that the rulings attributed to R. Judah in these passages differ somewhat from the rulings found in the Tannaitic sources. In the BT passages, R. Judah agrees that minors, like those in the other categories of the mentally deficient, may not collect the ashes of the red heifer (see Num. 19:9), nor may they sprinkle lustral water. However, these rulings appear to be based, not on authentic Tannaitic tradition, but on anonymous BT transmission/reconstruction of R. Judah’s view (cf. Weiss Halivni, n. 26 above, Moed [Jerusalem: 1975], 80–81), and hence will not concern us here. 89 The term taken as a ribui is “tahor” (pure), which appears in connection with collection of the ashes of the red heifer; see Sifre Zuta ad loc. (Horowitz edition, p. 304) and on Numbers 19:18 (Horowitz edition, p. 314), but note that Sifre Zuta cites this view anonymously. (This reading of the relevant parts of Sifre Zuta is confirmed by the fragment published by J.N. Epstein, “Sifre Zuta parashat para,” Tarbiz 1 [1930], 58, 77.) 90 See the text at n. 169ff.

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by minors, despite the apparent need for intention,91 is halitza (the ceremony of release from levirate marriage). Thus in tJebamot 12:12, p. 43,92 we read as follows: 1.

2.

If a female minor performed halitza, she should perform halitza [again] after she reaches majority. If she did not perform halitza again, her [original] halitza is unfit; [these are] the words of R. Eliezer. But the Sages say: If she did not perform halitza [again], her [original] halitza is fit.93

If intention is necessary for halitza, why do the Sages in (2) consider a minor’s halitza acceptable? This issue is not discussed by the Rabbinic sources, although post-talmudic commentators94 suggested two possibilities: (1) a minor’s halitza is acceptable only if she was instructed to perform the ritual with the proper intent95; (2) the minor’s actions attest to her intentions, in accordance with the ‘action reveals thought’ principle discussed above.96 91 As evidenced by a widely cited and seemingly undisputed baraita; see tJebamot 12:13, p. 44, and parallels, and cf. Tosefta Kifshuta, 6:116. 92 Note the differences between various MS readings of mJebamot 12:4 and the readings attested by talmudic treatments of this Mishnah: according to some of them, halitza performed by a female minor is acceptable, others disagree. See J.N. Epstein, Introduction to the Text of the Mishnah (Hebrew), 3rd ed. (Jerusalem: 2000), 710, and Tosefta Kifshuta, 6:117–18, 136. Regarding the view that disqualifies halitza performed by a minor, see mNida 6:11 (cf. bNida 52a) and tHagiga 1:3, p. 376. 93 While this view is attributed to “the Sages” here and cited anonymously in mJebamot 12:4 (according to certain readings; see the previous note), an (anonymous?) Amoraic tradition cited in bJebamot 105b that has no parallels in any extant Rabbinic source attributes it to R. Jose; see n. 187 below. 94 These authorities did not discuss the Tosefta, but the partial parallel in bJebamot 104b, according to which minors and the deaf-mute are disqualified from halitza for various secondary reasons, but not because they lack the requisite mental capacity. 95 This is the view of many medieval commentators on bJebamot 104a; see, e.g., the sources cited in Hidushei Haritba, Jebamot, edited R. Raphael Joffen (Jerusalem: 1992), 2:1452 n. 308. This suggestion is cited — approvingly, it seems — in Tosefta Kifshuta, 6:116. 96 See esp. R. Joshua Isaac Shapira, Emek Yehoshua (repr. Jerusalem: 1974), §23, 107a–b, s.v. al ken. Cf. Tosafot on bJebamot 104b, s.v. veha, which notes that the minor’s intention “is apparent from his deeds,” although it does not explicitly invoke the ‘action reveals thought’ principle (and cf. Or Sameiah, Laws of Levirate Marriage 4:25, s.v. harav).

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However, both these suggestions are problematic. There is no evidence in the Tosefta here or in any of its parallels that the Sages’ ruling applies only where halitza was performed with proper supervision/ instruction.97 Moreover, as indicated earlier,98 it is extremely questionable whether adult instruction can surmount the problem of inadequate mental capacity on the part of a minor. The second suggestion is also problematic, for the mere physical act of removing the brother-inlaw’s shoe does not prove that the girl had the requisite intention when doing so. Accordingly, the simplest explanation of the Sages’ ruling in (2) is that minors — presumably, minors old enough to properly understand the significance of the halitza ceremony99 — are capable of halakhically viable understanding or intention100 (assuming, once again, that proper intention is necessary for halitza). On this suggestion, R. Eliezer’s ruling in (1) that minors cannot perform halitza with legal effect may not be based on the concern that the girl performing halitza might turn out to be infertile, or on biblical exegesis disqualifying minors from halitza, as suggested by the both the BT and the PT.101 Rather, this ruling might reflect the widespread Tannaitic view that a minor is incapable of understanding or intention, and indeed R. Eliezer seems to have adopted such a view elsewhere.102 We will now consider several rulings authorizing minors to carry out legally transformative actions, i.e., actions that alter the legal status of a specific object. In the situations in question (in contrast to the 97 Note, too, that according to some Rabbinic sources halitza may be performed privately, without court supervision (see the end of tJebamot 12:9, p. 42 and parallels), although the Sages in our Tosefta might not have accepted this view. 98 See text above at n. 71ff. 99 The Tosefta and its parallels do not specify any minimum age or intelligence requirement, although various age requirements were suggested by Amoraim; see bJebamot 105b and bGitin 65a. 100 For a similar suggestion, see R. Zvi Ashkenazi, Responsa Hakham Tzvi, #1, s.v. ani eini. On his view, halitza is a form of acquisition, and hence a minor can perform halitza just as he or she can acquire property; see text at n. 151ff. below. However, the assumption that the halitza process corresponds to acquisition of property is extremely problematic; cf. Emek Yehoshua, n. 96 above. 101 On the first possibility, see bJebamot 104b and parallels; on the second, see jJebamot 4:1 (5c), 5–6 and parallels. 102 See mJebamot 13:2 and tJebamot 13:3, p. 46, and parallels.

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situations considered earlier in this section), it seems clear almost by definition that understanding is necessary. Thus, rulings of this sort strongly imply that minors possess halakhically viable understanding — presumably, according to Torah law.103 One of the loci classici for this approach is mNida 5:6: 1.

2.

3.

The vows of a girl of eleven years and one day must be examined. The vows of a girl of twelve years and one day are valid, and are examined the entire twelfth year. The vows of a boy of twelve years and one day must be examined. The vows of a boy of thirteen years and one day are valid, and are examined the entire thirteenth year. Before this time, even if they said: “We know to whom we vowed, to whom we consecrated,” their vows are not valid and their consecration is not valid. After this time, even if they said: “We do not know to whom we vowed [or] to whom we consecrated,” their vows are valid and their consecration is valid.104

According to this Mishnah, vows105 and the consecration of sacrifices are valid if the vower/consecrator has reached the age of halakhic majority, regardless of his or her mental capacity (2–3), or during the year before legal majority, if the minor has demonstrable mental capacity (1).106 Prima facie, this ruling seems inconsistent. If age is the criterion for establishing the validity of transformative actions, vows should not be valid before majority, regardless of the vower’s mental capacity. And if mental capacity is the determining factor, vows made by a gifted child should be valid regardless of the child’s age. Thus, the Mishnah’s ruling presumably reflects some sort of compromise between the standardizing, age-based approach reflected in other 103 But see the PT sugya cited in the text at n. 141 below (and cf. its BT parallel), which suggests that it may only be by Rabbinic decree that minors are authorized to perform certain actions of this sort. 104 Cf. tNida 5:15, p. 646, although the exact reading and interpretation of this passage are problematic; see Lieberman 1939, n. 57 above, 271–72. 105 Apparently including Nazirite vows; see tNida 5:15, p. 646 and parallels. 106 The source for this age, the so-called onat nedarim (“vow period”), is not fully clear; it does not seem to have an unambiguous exegetical basis. But note the textually and exegetically problematic, and hence inconclusive, passage in Sifre Zuta on Numbers 30:4 (Horowitz edition, p. 326; see Horowitz’s notes ad loc.).

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Tannaitic rulings, and the more flexible, differential approach that validates minors’ actions regardless of age.107 It should also be noted that while the term ish (‘man,’ hence ‘adult’) appears in various biblical verses having to do with vows and consecration,108 it was not interpreted by the author(s) of our Mishnah and related sources as excluding all minors from performing such actions. This Mishnah is anonymous and seemingly unanimous, although other Tannaitic sources suggest that this ruling is disputed.109 The passage most likely reflects the view of a particular Tanna and not a fundamental, universally accepted distinction between the laws of vows and other halakhic issues. Thus, mArakhin 1:1 states: “The deaf-mute, the insane, and minors . . . may not take vows or assess the value of a person (maarikhin) [for the purpose of dedicating that sum to the Temple], because they have no understanding (daat).”110 Literally interpreted, this Mishnah disqualifies all minors, regardless of age or mental ability, from taking vows or making such assessments. To be sure, an anonymous and apparently post-Amoraic111 talmudic sugya (bArakhin 2a) comments on this Mishnah: “ ‘All may evaluate’ [the opening clause of the Mishnah] — who does this include? It includes one who has reached the age of vows” (mufla samukh leish). However, this interpretation does not fit the plain sense of the Mishnah112; the 107 The possibility that this passage is an inconsistent amalgamation of conflicting views originally espoused by different, though anonymous, Sages cannot be dismissed out of hand, though in light of its wording, this seems highly unlikely. 108 See Numbers 6:2 (Nazirite vows) and 30:3 (ordinary vows). On consecration, see n. 138 below. 109 It is noteworthy that this ruling appears as part of an extended mishnaic discussion whose style and structure differ from those of the other Tannaitic sources surveyed in this article. It is thus possible that the provenance of this ruling and the literary unit in which it appears differ from those of other rulings discussed here. 110 Cf. Sifra, Behukotai 3:3,1 (Weiss edition, 112c–d), and note the possibly related ruling in mMenahot 9:5: “All may lay hands on sacrifices (hakol somkhin) except for the deaf-mute, the insane, and minors” (and cf. the parallel in tMenahot 10:13, p. 528, which, interestingly, does not mention the deaf-mute or the insane). 111 See Avinoam Cohen, “Halakhic criticism vs. literary criticism in talmudic pericopae” (Hebrew), Asufot 3 (1989), 331–36, esp. 333. 112 Precisely what motivated the BT to explain the Mishnah this way is not clear, and two complementary explanations are possible. The Talmud may have wished to harmonize the Mishnah’s ruling here with the

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Talmud seems to be engaging in forced, harmonistic exegesis. Another Tannaitic source, too, which will be discussed below, suggests that the ruling in mNida reflects the view of only one Tanna, R. Jose, and was rejected by other Tannaim. Additional, though not fully conclusive, evidence that the aforementioned ruling in mNida was not accepted by all the Tannaim is provided by an Amoraic dispute recorded in both Talmuds. Here we cite the PT version of this dispute, jTerumot 1:3 (40c–d) // jJebamot 13:2 (13d),113 along with some of the accompanying discussion: 1.

2.

3.

Does one incur liability [for offering a minor’s] sacrifices outside [the Temple]? Kahana said: One does not incur liability [for offering] his sacrifices outside. R. Johanan and R. Shimon b. Lakish both say: One does incur liability [for offering] his sacrifices outside. There is a difficulty with R. Kahana’s view, according to R. Judah, for R. Judah exempts untithed produce [tithed by a minor] by Torah law, yet you say this [that one does not incur liability for offering his sacrifices outside the Temple]! . . . There is a difficulty with R. Johanan’s view, according to R. Joshua114: [A female minor’s] marriage is [not]115 [binding] by Torah law and annulling her vows is [binding] by Torah law, and you say this [that the husband of such a wife may annul her vows]? . . .

(accepted) view that minors who have reached the “age of vows” can consecrate property or take vows with legal effect. Alternatively, the BT’s general tendency to interpret the word “all” (‫ )כל‬as including cases not explicitly mentioned in the Mishnah, and sometimes even contradicted by its plain sense (hakol . . . leatoyei mai), may have prompted this interpretation. 113 There are a few minor textual differences between these sugyot, but they are not important for our purposes here. For the BT parallel, see bNida 46b. 114 Who ruled that “One may . . . annul vows of (a female minor) as if she were his wife”; see tJebamot 13:3, p. 46 and parallels. Note that this part of the discussion appears only in jJebamot, but not in in jTerumot. 115 This emendation is clearly called for by the context, and similar emendations were proposed by the commentators ad loc., although the text can be emended in different ways (e.g., “is [binding] by Rabbinic law” rather than “is not [binding] by Torah law”); for our purposes here, precisely which of these emendations is accepted is of no consequence.

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The Talmud analyzes the Amoraic dispute in (1) in light of rulings dealing with other legal domains. Thus it seems that the Talmud understood the dispute in (1) as rooted in the fundamental question of whether minors have legal capacity according to Torah law, a question that obviously has ramifications aside from the narrow question of minors’ consecration of sacrifices: on the view of (Rav)116 Kahana, who maintains that no liability is incurred for offering sacrifices outside the Temple if they were consecrated by minors, minors apparently lack legal capacity; R. Johanan disagrees. The Talmud’s proposed resolutions of the objections raised against each of the disputants are forced.117 In fact, the simplest solution to the difficulties is that each of these Amoraim was upholding the view of a different Tanna.118 Thus, (Rav) Kahana’s ruling, on which minors’ consecrations — and hence, presumably, their vows as well — are only binding according by Rabbinic decree, seems to uphold R. Joshua’s view in (3), on which minors lack legal capacity according to Torah law. By contrast, R. Johanan seems to follow the plain sense of mNida, on which (certain) minors possess viable legal capacity according to Torah law. Indeed, the PT concludes119 that according to R. Kahana, the ruling in mNida is disputed.120 And while the putative disputants are not mentioned by name, we may plausibly infer121 that they are R. Jose in mTerumot 1:3, who permits certain minors to separate the priestly gift (teruma), and hence presumably accepts the ruling of mNida, and

116 Variant designations of this scholar, with or without rabbinic title, are common in the Rabbinic literature; see Shamma Friedman, “The further adventures of Rav Kahana: between Babylonia and Palestine,” in P. Schäfer (ed.), The Talmud Yerushalmi and Graeco-Roman Culture, vol. 3 (Tübingen: 2003), 251–53. 117 The same holds true of the solutions proposed in the parallel BT discussion. 118 Theoretically, it could be argued that the laws of sacrifices discussed in (1) should be distinguished from the issues addressed in (2) and (3), but such a distinction is rather forced. 119 See jTerumot 1:3 (40c line 64–40d line 1) (not cited above); this part of the sugya is missing in the parallel in jJebamot. 120 According to R. Johanan (and R. Shimon b. Lakish in bNida 46b), who seems to hold that consecration of sacrifices by a minor is valid according to Torah law, mNida is undisputed, in accordance with R. Johanan’s view cited earlier in PT (see the text at n. 142ff. below) that a minor’s consecration is valid even though he may not separate the teruma. 121 See the Tannaitic passages cited below.

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R. Meir, who rejects this opinion,122 and thus most likely rejects the ruling of mNida. Some Tannaim also allowed certain minors to separate the priestly gift, another legally transformative action that presumably requires understanding,123 as stated in mTerumot 1:1, 3: 1.

3.

Five should not separate the priestly gift (teruma), and if they did, their priestly gift is not a [valid] priestly gift: [one who is] deafmute, insane, or a minor124 . . . [Regarding] a minor who has not produced two [pubic] hairs, a. R. Judah says: His priestly gift is a [valid] priestly gift. b. R. Jose says: If [he separated the priestly gift] before he reached the age of vows, his priestly gift is not a [valid] priestly gift; after he reached the age of vows, his priestly gift is a [valid] priestly gift.

This Mishnah cites two views permitting certain minors to separate the teruma. According to R. Jose (3b), minors may separate the teruma once they reach “the age of vows” — ostensibly the same age mentioned in mNida 5:6. And while R. Jose does not mention anything about the minor’s mental capacity, as does mNida, it stands to reason — certainly if the latter passage is read as an intertext of our Mishnah — that a minor who does not understand what he is doing cannot separate the priestly gift. R. Judah’s view in (3a) is less clear, and calls for additional discussion. From the ‘heading’ that prefaces this ruling (“[Regarding] a minor who has not produced . . . hairs”), it might be inferred that only minors who have almost reached, or who have already passed, the age of halakhic maturity can separate the priestly gift (the only thing

122 See jTerumot 1:3 (40c), line 35 = jJebamot 13:2 (13c), lines 59–60. Note also R. Meir’s ruling disqualifying minors (as well as the other types of the mentally deficient) from assessing the value of a person [for the purpose of dedicating that sum to the Temple] in tArakhin 1:1, p. 543 and parallels. 123 Cf., e.g., tTerumot 1:1, p. 107 and the parallel in jTerumot 1:1 (40b). 124 The anonymous Tanna here is presumably R. Meir; note that a baraita cited in PT ad loc. (see above, n. 122) and attributed to R. Meir states that “[A minor’s] priestly gift (teruma) is not a [valid] priestly gift until he produces two [pubic] hairs.”

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holding up their halakhic majority being their lack of pubic hair).125 However, the heading can be interpreted differently, as a general locution covering all minors.126 On this interpretation, R. Judah holds that minors may separate the priestly gift even if they have not reached the “age of vows” — once again, it seems, only if they understand what they are doing, although admittedly no such requirement is specified here.127 Two related statements made by R. Judah that may shed light on his ruling in mTerumot have been preserved in the Tosefta. In tTerumot 1:4, pp. 107–108 we read: R. Judah says: If a minor was left by his father in a vegetable patch and [the minor] separated the priestly gift and his father approved,128 the [minor’s] priestly gift is a [valid] priestly gift. [The Rabbis] said [to R. Judah]: It is not [the minor] who separated [it], but his father, who confirmed [his act].129

In this case, the minor separates the priestly gift on behalf of someone else (his father), implying that a minor can not only separate the teruma, but even serve as an (implicit) agent130 on behalf of someone else. This 125 See esp. R. Samson of Sens, Tosfot Yom Tov, Tiferet Yisrael, Shnot Eliyahu, and Mishna Rishona ad loc. 126 So construed, the heading might have been phrased this way under the influence of, and perhaps even in response to, R. Meir’s ruling in the aforementioned PT baraita; see n. 124 above. 127 It is suggested in Mishna Rishona on mTerumot 1:3, s.v. rabi yehuda (and cf. the remarks there on mTerumot 1.1, s.v. haheresh) that according to R. Judah, separating the priestly gift, like ritual slaughter (cf. above, text at n. 27ff.), does not require any understanding, and this is why R. Judah stipulates no requirements as to age or understanding. However, this suggestion seems untenable a priori (cf. above, text at n. 103), and renders incomprehensible the distinction our Mishnah seems to draw between minors and the other categories of the mentally deficient (but see tTerumot 1:1, p. 107, discussed below). 128 Regarding the translation here (the Hebrew text reads medaber, which usually means ‘speaks’), see Tosefta Kifshuta, 1:295 and the sources there cited. 129 In other words, even though the minor physically separated the teruma, the actual designation of this produce as teruma was carried out by his father; see ibid., esp. 1:293 and n. 1. 130 Tosfot Anshei Shem on mTerumot 1:3 suggest that a minor’s capacity to separate the teruma, according to the Toseftan version of R. Judah’s stance, is not based on agency, since minors cannot appoint agents (see n. 59 above), but on some combination of the father’s intention with the son’s action. However, this seems like special pleading.

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ruling grants minors wider-ranging legal capacity than do most other Rabbinic sources, both Tannaitic and post-Tannaitic, many of which explicitly disqualify minors from serving as agents.131 It is also significant that this ruling, which speaks of minors in general and not minors who lack pubic hair, does not limit legal capacity to minors who are near, or have just passed, the age of legal majority. Thus, the Toseftan version of R. Judah’s ruling seems to support the second interpretation of the Mishnah proposed above — assuming, of course, that the Tosefta complements the Mishnah and does not reflect a variant tradition. Equally illuminating is a discussion between R. Judah and the Sages preserved in tTerumot 1:1, p. 107: 1. 2.

3.

R. Judah says: If [one who is] deaf-mute separated the priestly gift, his priestly gift is a [valid] priestly gift. R. Judah says: It happened that the sons of R. Johanan b. Gudgada were deaf-mute, and all the purities in Jerusalem were handled by them. [The Sages] said to him: Is there proof from here? For purities do not require thought (mahashava) and can be handled by [one who is] deaf-mute, insane, or a minor, [whereas] the priestly gift and tithes require thought.

Several points should be noted here. First, R. Judah permits the deafmute to separate the priestly gift. This source accordingly attributes a more lenient view to R. Judah than do any of the other extant sources. Although it is not clear whether this passage conflicts with or merely supplements the Mishnah, the former possibility seems more likely. Moreover, the argumentation in (3) may have important ramifications for understanding R. Judah’s view with regard to minors. The Sages claim that R. Judah’s inference from purities to the priestly gift in (2) is a non sequitur, as the proper handling of purities only requires cognizance of facts regarding what is happening (e.g., what sort of contact could render such foodstuffs impure). By contrast, separating the priestly gift, which is a transformative action, presumably requires comprehension of the legal significance of this act. It is apparently this sort of legal comprehension and resultant ‘performative’ capacity — a capacity minors lack, according to the Sages in (3), though they may

131 See n. 59 above.

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well possess factual awareness — that the Sages termed mahashava.132 R. Judah’s willingness to compare the laws of purities with those of the priestly gift, despite the Sages’ obvious objection in (3), suggests that R. Judah drew no such distinction between factual awareness and halakhically transformative ‘thought’ (mahashava).133 Rather, R. Judah seems to maintain that anyone who possesses basic mental capacity may perform certain actions, including transformative actions, with legal effect, regardless of age. Thus, the Tosefta here not only significantly broadens the scope of R. Judah’s rulings, extending legal capacity even to the deaf-mute,134 but seems to reflect a fundamental dispute about the nature of ‘thought’ or ‘understanding’ as a halakhic category. According to the Sages, it is a legal category and not a purely factual or psychological category135 (although clearly, it has a factual substrate). According to R. Judah, however, mahashava indeed appears to be a factual category, and minors with sufficient understanding can presumably perform legally transformative acts. R. Judah’s inference from the laws of purities to the laws of the priestly gift suggests that his attribution of legal capacity to minors is not limited to the laws of priestly gifts, and may apply to other (all?) legal domains. However, the exact scope of R. Judah’s position on this issue — and, mutatis mutandis, the exact scope of the opposed positions of other Tannaim — is not explicitly discussed in any other Tannaitic sources. This uncertainty about the scope of the various Tannaitic viewpoints prompted the Amoraim to attempt to fill in the gaps and ascertain what positions these Tannaim would have taken regarding 132 Note too the discussion that follows our baraita in jTerumot 1:1 (40b): “But aren’t [purities] rendered unfit through lack of attention (hesah hadaat)? R. Jose [said] in the name of R. La: ‘thought’ is not written of [such things]; ‘guarding’ is written.” This too suggests that the “thought” (mahashava) mentioned by the Sages in the Tosefta is a legal rather than a psychological concept: it does not denote mere intellectual capacity, which is necessary for guarding purities, but rather the legal comprehension necessary to effect the alteration of an object’s halakhic status. 133 It is difficult to explain R. Judah’s position here on the basis of the assumption that the mere physical act of separating the teruma suffices; cf. above, n. 127. 134 Whether, according to the Tosefta, R. Judah would also allow the insane to separate the priestly gift is unclear, although it is noteworthy that no extant Rabbinic source makes such a claim. 135 This position squares well with Shalom Albeck’s analysis of the legal capacity of minors; see the Appendix, text at n. 208.

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the cases they did not explicitly address. Indeed, the diversity of Amoraic views attests to the lack of clarity as to the scope of the various Tannaitic rulings, and renders problematic the Amoraic inferences from and attempted extensions of the specific, casuistic Tannaitic rulings. For example, we read in jTerumot 1:3 (40c) // jJebamot 13:2 (13d): 1.

2. 3.

R. Aha b. Hinena [said] in the name of R. Kahana: According to the one who says [a minor] may not separate the priestly gift, he may not consecrate [sacrifices] (eino makdish). Why didn’t [R. Kahana] say: According to the one who says [a minor] may separate the priestly gift, he may consecrate sacrifices? Because of R. Judah, for R. Judah holds (omer)136: [A minor] may separate the priestly gift but may not consecrate sacrifices.

According to (3), the laws of separating the teruma and consecrating sacrifices are not necessarily interdependent, as R. Judah holds that a minor may perform the former but not the latter. The Talmud offers no reason for this distinction, although the Pnei Moshe plausibly conjectures137 that minors may not consecrate sacrifices because some of the biblical verses that address this matter use the term ish (‘man,’ hence ‘adult’),138 which the Rabbis interpreted as excluding minors.139 However, no such verse appears in connection with separating the priestly gift, so there is no basis for disqualifying minors from this activity. If this admittedly conjectural suggestion is correct, then 136 On this usage, see Moscovitz, n. 3 above, 22 n. 88, 274. In any event, it is clear from R. Judah’s statement in our Mishnah — mTerumot 1:3 — whose reading is confirmed by all extant textual witnesses and not disputed by any other source, that R. Judah himself issued no explicit ruling about consecrating sacrifices. Hence the Talmud’s statement here is ostensibly an inference drawn from some other ruling(s) of R. Judah and not a verbatim citation of his remarks. 137 See Pnei Moshe on jJebamot, s.v. umeshanei begin (and cf. its comments on the parallel in jTerumot). The main argument for this interpretation is that there does not seem to be any other ‘logical’ basis for distinguishing between the laws of teruma and those of consecrating sacrifices. 138 The Pnei Moshe claims that the verse so interpreted is Exodus 25:2; cf. the exegesis of this verse (with regard to the teruma!) in jTerumot 1:1 (40a), line 44. However, other verses could probably have been adduced as well; see, e.g., Leviticus 7:8, 27:14 and 16. 139 See Chernick, n. 14 above, and cf. Beeri, n. 18 above, 8–13 (Beeri was apparently unaware of Chernick’s study).

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R. Judah would apparently agree that minors ordinarily possess halakhically viable understanding and, consequently, legal capacity, although specific exegetical considerations preclude their consecration of sacrifices. However, an opposed approach is put forward further on in the PT sugya.140 On this view, according to R. Judah the laws of separating the teruma and consecrating sacrifices are mutually dependent: 1.

2.

3.

Does one incur liability [for offering a minor’s] sacrifices outside [the Temple]? Kahana said: One does not incur liability [for offering] his sacrifices outside. . . . There is a difficulty with R. Kahana’s view, according to R. Judah, for R. Judah exempts untithed produce [tithed by a minor] by Torah law, yet you say this [that one does not incur liability for offering his sacrifices outside the Temple]! . . . [R. Judah’s view] follows the one who says: [People] accepted tithes on their own141 [i.e., the tithe laws apply only by Rabbinic decree].

Clearly, the Talmud’s objection in (2) implies that one who can separate the priestly gift with legal effect according to Torah law can similarly consecrate sacrifices. A similar assumption also underlies (3), for the Talmud does not resolve the objection in (2) by rejecting the assumption that the laws of teruma and sacrifices are interdependent, but by suggesting a new and forced interpretation of R. Judah’s view, on which he only validates minors’ priestly gifts where such priestly gifts are mandated by Rabbinic decree. Thus, this sugya apparently assumes that R. Judah does not distinguish between teruma and consecrating sacrifices, and thus R. Judah may indeed grant minors legal capacity in multiple (all?) legal domains. In concluding this discussion of the relationship between minors’ priestly gifts and consecrating sacrifices, it is worth noting that the PT142 cites an Amoraic claim that minors may consecrate sacrifices 140 jTerumot 1:3 (40c, line 63–40d, line 2) // jJebamot 13:2 (13d, lines 26–27). On the presentation of conflicting views in different parts of a single PT sugya without any attempt to reconcile them or even draw attention to the contradiction, see S. Lieberman, The Talmud of Caesarea (Hebrew), (Jerusalem: 1931), 23–24, and L. Moscovitz, “Sugyot muhlafot in the Talmud Yerushalmi” (Hebrew), Tarbiz 60 (1991), 34–38. 141 See jSheviit 6:1 (36b), line 43 and parallels. 142 See jTerumot 1:3 (40c), lines 43–45 = jJebamot 13:2 (13d), lines 3–5.

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even according to the authority who maintains that their teruma is not valid: R. Johanan said, Even according to the one who holds that [a minor] may not separate the priestly gift, [a minor] may consecrate [sacrifices]. And what may he consecrate? A burnt-offering or a peace-offering; he cannot bring a sin-offering [since a minor is not required to bring sacrifices if he sins].

Presumably, “the one who holds that [a minor] may not separate the priestly gift” is R. Meir, whose ruling on this point was cited earlier in the sugya.143 Thus, R. Johanan’s ruling permitting minors to consecrate sacrifices would apparently apply even if these minors had not reached “the age of vows.”144 The Talmud does not explain why consecration is treated differently than separating the priestly gift, although it is plausible that the distinction is based on exegesis of a verse that uses the term “men” in connection with separating the priestly gift,145 but not in connection with consecrating sacrifices. If this suggestion is correct, then even R. Meir, who does not allow minors to separate the priestly gift, might agree that minors of sufficient intelligence possess halakhically viable understanding and hence general legal capacity: children may have been excluded from separating the priestly gift on the basis of other considerations relevant solely to the laws of the priestly gift.146 Of course, it must be kept in mind that this claim (and so too the other views considered above) is ultimately an Amoraic reconstruction of a Tannaitic viewpoint; what R. Meir himself would have ruled with regard to this case remains uncertain.

143 See above, n. 122. 144 The Korban Haeida on the parallel in jJebamot (s.v. afilu keman deamar) suggests that only a minor who has reached the “age of vows” can consecrate property. However, this does not accord with the plain sense of the text, which does not specify such a requirement. Furthermore, on this explanation, it is difficult to understand why a minor who has reached the requisite age and mental capacity and can therefore consecrate sacrifices should not be able to separate the priestly gift. 145 See, e.g., the exegesis in jTerumot 1:1 (40a), line 44; 1.3 (40c), lines 35–41 and parallel (parts of the latter passage are obscure, though these difficulties have no bearing on our argument here). 146 Note that this suggestion accords well with R. Meir’s ruling in tEruvin 2.11, on which a minor may deliver an eruv, although the latter ruling can, obviously, also be explained on other grounds; see the text at n. 80 above.

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Yet another issue regarding which minors possess legal capacity, according to some Tannaitic views, is reserving a share in the paschal sacrifice (minui). Significantly, the criterion for effecting a valid minui seems to be understanding,147 so this ruling, too, suggests that minors possess halakhically viable understanding. Thus we read in tPesahim 7.4, p. 177: All of them [=minors]148 who slaughtered [the paschal sacrifice] for themselves, and149 their master slaughtered [the paschal sacrifice] for them — they eat of their own [sacrifice].150 147 See the Tosefta, ibid., and Tosefta Kifshuta, 4:602–603. While it is not clear exactly what minui is or how it works — minui may be a consecratory or quasi-consecratory act, a form of (quasi-)purchase, or an essentially unclassifiable legal institution (see the helpful discussion, with references to primary sources, in R. I.Z. Soloveitchik, Hidushei Maran Riz Halevi [Jerusalem: 1976], 52b) — but in the final analysis this makes little difference for our purposes here, since, as is clear from all the relevant literary sources, on all these possibilities, minui requires understanding. 148 This reading is necessitated by the continuation of the Tosefta (not cited here); see Tosefta Kifshuta, 4:602, on lines 17–18. 149 Following the reading of MS Erfurt of the Tosefta; MS Vienna reads “or” (‫)או‬. Cf. Tosefta Kifshuta, 4:602. However, the reading of MS Vienna might be correct; for additional examples of the particle “‫ ”או‬in Rabbinic Hebrew in the sense of “and” rather than “or,” see most recently D. Henshke, “ ‘For a hung body is an affront to God’: on the difference in exposition between the Sages and the sectarians and the Mishnah and the Tosefta” (Hebrew), Tarbiz 69 (2000), 518 n. 51 and the sources there cited. 150 A similar ruling regarding eruvei tehumin is found in tEruvin 6.11, p. 121, according to MS Vienna: “All of them [=minors] who made an eruv for themselves and others made an eruv for them — they fulfill their requirement by themselves.” Lieberman (Tosefta Kifshuta, 3:424) argues that the end of the text here is corrupt and should be emended in accordance with MS Erfurt, which reads: “they fulfill their requirement with their master.” However, if the reading of MS Vienna — which, though problematic, is not utterly impossible (see Weiss Halivni, n. 26 above, Eruvin-Pesahim [Jerusalem: 1982], 215–16) — is viable, then this source may provide Tannaitic evidence that minors are deemed to possess halakhically viable understanding, and hence may choose which eruv to abide by. (If the reading of MS Vienna is not corrupt, then the dispute between the two Toseftan MSS here may parallel the dispute between tPesahim and its parallel in bPesahim, discussed below.) On the possibility that variants between these MSS sometimes reflect conflicting Babylonian and Palestinian traditions, possibly rooted in conflicting ancient traditions, see A. Schremer, “The text-tradition of the Tosefta: a preliminary study

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The fact that the minor’s choice is binding, rather than that of his master, indicates that minors possess halakhically viable understanding. Interestingly, a different view is espoused by the parallel baraita in bPesahim 88a, according to which minors must eat from their master’s sacrifice, not their own. Clearly, this version of the baraita assumes that minors lack legal capacity with regard to minui for the paschal sacrifice. Yet another legal domain where minors possess legal capacity according to some opinions — apparently, by Torah law — is the acquisition of property. Since most of the relevant material has already been discussed at length by other scholars, I mention only a few relevant sources here.151 In mGitin 5:8, R. Jose states that stealing lost property found by a minor is “total robbery” (gazel gamur), in contrast to the anonymous first Tanna’s view that a minor acquires [lost] property “because of the ways of peace” (mipnei darkhei shalom). The contrast between these views suggests that the “total robbery” mentioned by R. Jose is forbidden by Torah law, implying that a minor can acquire property by Torah law.152 Similarly, mMaaser Sheni 4:4 and mEruvin 7:6, both of which are anonymous and seemingly undisputed,153 imply that certain types of minors can acquire property on behalf of others (zekhiya); note that the former source deals with a case where acquisition is apparently valid by Torah law (acquiring money that will be used to redeem a ‘second tithe’). One final issue where minors may possess legal capacity according to some Rabbinic sources (although this is far from certain) is the in the footsteps of Saul Lieberman” (Hebrew), Jewish Studies, an Internet Journal 1 (2001), 11–43, esp. 17–23, 36–37, found at http://www.biu.ac.il/ JS/JSIJ/1–2002/Schremer.pdf. A detailed discussion of this issue lies beyond the purview of this article. 151 See Beeri, n. 18 above, and cf. Y.D. Gilat 2002, n. 2 above, 37 and n. 50. 152 However, some Amoraim in both Talmuds apparently held that even according to R. Jose, stealing lost property found by a minor is only prohibited by Rabbinic decree; see bGitin 61a (and the discussion in Beeri, ibid., 14–33), and jMaaser Sheni 4:4 (55a), lines 29–30 and parallels, but see Beeri, 58–60. 153 According to jMaaser Sheni 4:4 (55a), lines 33–36 and parallels, there is a contradiction between the first and last clauses of these sources, which is resolved by distinguishing between minors with adequate intellectual capacity, who are capable of acquisition, and minors lacking this capacity, who are incapable of acquisition; see S. Lieberman, Hayerushalmi Kifshuto (Jerusalem: 1935), 334–35.

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betrothal of women by male minors. This issue, too, has been discussed at length by scholars,154 so it will suffice to note only a few relevant points. No extant Rabbinic sources, Tannaitic or post-Tannaitic, explicitly validate ordinary betrothals by minors.155 Indeed, some sources explicitly or almost explicitly deny minors the capacity to effect a betrothal that is binding by Torah law.156 However, certain sources from the Geonic period, (almost?) all of which originate in the land of Israel, seem to dispute this, at least regarding certain minors.157 The exact basis for these rulings is not clear, although it has been suggested, plausibly, in my opinion, that these sources may reflect the view of 154 See most recently Y.D.Gilat 2002, n. 2 above; M.I. Kahana, Sifre Zuta Devarim (Jerusalem: 2002), 345–46 (esp. n. 4); Adiel Schremer, Male and Female He Created Them (Hebrew), (Jerusalem: 2003), 84–85. See also B. Lifshitz, Promise: Obligation and Acquisition in Jewish Law (Hebrew), (Jerusalem: 1988), 269 n. 338, for a somewhat different approach. 155 Several possible exceptions can be dismissed as inconclusive. First, the anonymous statement at the beginning of jJebamot 14:1 (14b), lines 31–33, which Gilat, ibid. 38 n. 55, adduces as evidence that a nine-year-old boy can betroth a woman through intercourse, is inconclusive; note the Pnei Moshe’s interpretation of this passage, and see Mikhal Hamayim and Noam Yerushalmi ad loc.; see also Lifshitz, ibid. A more detailed discussion of this sugya cannot be undertaken here. The conjecture raised in various places in Sifra, only to be dismissed (hava amina) later, that nine-year-olds might be considered ‘men’ (see Kahana, ibid., 345 n. 4; tJebamot 9:3, p. 28; and Tosefta Kifshuta, 6:83), is similarly inconclusive. The fact that these sources mention nine-year-olds might imply that nine was considered the age of halakhic majority (see n. 159 below), but not that boys who are halakhically considered minors are capable of betrothal. Likewise, while levirate marriage carried out by nine-year-olds might be valid under Torah law according to some opinions (see n. 29 above), even those who espouse these views would likely concede that the intercourse of a nineyear-old would not effectuate a valid ordinary betrothal. Indeed, while the intercourse of a nine-year-old is considered valid according to Torah law with regard to other matters, e.g., a married woman who commits adultery with a nine-year-old incurs the death penalty (mNida 5:5; see too Sifre Zuta on Numbers 5:20 [Horowitz edition, p. 235] and Tosefta Kifshuta, 8:655–57), such intercourse apparently cannot effect a valid betrothal. Finally, the well-known reference in jTerumot 1:1 to minors performing kidushin does not refer to betrothal, but to the sanctification of lustral water; see n. 57 above. 156 Tannaitic sources include mKidushin 2:6 = tKidushin 4:4, p. 289; tJebamot 11:11, p. 39; and Sifre Zuta Deuteronomy (see n. 154 above); and see Y.D. Gilat 1992, n. 2 above, 27. 157 See Y.D. Gilat 2002, n. 2 above, 32.

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R. Jose b. R. Judah in tNida 6.2, p. 647, on which a nine-year-old boy is halakhically considered an adult under certain circumstances.158 If this suggestion is correct, then the aforementioned rulings may not imply that minors possess legal capacity with regard to betrothal, but rather that nine-year-olds are not considered minors.159 Alternatively, the aforementioned rulings may reflect a (problematic) inference from those sources that deem the intercourse of nine-year-olds valid with regard to other issues.160 *** Several comments are in order regarding the rulings surveyed here. First, all of the rulings ascribing legal capacity to minors are disputed. Second, none of these rulings are explicitly predicated on the principle that ‘actions of the mentally deficient have legal validity.’ Nor do any of these rulings seem to be implicitly based on this notion, as evidenced by the fact that none of the sources authorize the deaf-mute or the insane to carry out the actions in question, in contrast to those cases in which the principle that ‘actions of the mentally deficient have legal validity’ is explicitly invoked.161 Moreover, the principle is anonymous and seemingly undisputed, in contrast to all of the rulings permitting minors to perform actions with legal validity.162 Furthermore, the

158 See esp. the interpretation of R. Jose’s ruling in jJebamot 10:14 (11b), lines 48–49 // jKidushin 1:2 (59c), lines 23–24. For ancient Near Eastern parallels indicating that a minor can marry at this age, see Gilat, ibid., 29–30, and the references there, and note also the biblical precedent of Ahaz (already mentioned by the Rabbis), which Gilat discusses on p. 32. 159 Indeed, some post-talmudic land of Israel sources seem to imply that nine is the age of legal majority with respect to other issues as well; cf. R. Jehiel Jacob Weinberg, Responsa Sridei Esh, vol. 1 (Jerusalem: 1999), #89, p. 244; Y.D. Gilat 2002, n. 2 above, 33 n. 35; Schremer, n. 154 above, 84 n. 40. 160 See n. 155 above. 161 But see R. Judah’s ruling in tTerumot 1:1 that the deaf-mute can separate the priestly gift, discussed above. 162 This argument is admittedly inconclusive, as the anonymity and seeming unanimity of the principle that ‘actions of the mentally deficient have legal validity’ may be due to source-critical considerations: the passages that cite this principle anonymously may be of different provenance than those ascribing legal capacity to minors. However, it is unlikely this is the case — inter alia, because sources ascribing legal capacity to minors invariably distinguish between minors and the other classes of the mentally deficient, as explained above.

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type of understanding regarding which the principle that ‘actions of the mentally deficient have legal validity’ is invoked seems to be fundamentally different from the type of understanding required to validate actions of the sort surveyed here.163 Thus, the most plausible explanation of the rulings permitting minors to perform actions with legal effect, transformative actions in particular, is that minors possess halakhically viable mental capacity: if they understand what they are doing, their factual understanding is granted legal force, and hence their actions are halakhically valid. At the same time, it should be stressed that the vast majority of Tannaitic (and post-Tannaitic) statements validating the actions of minors do not explicitly state that minors possess viable understanding, though this can be plausibly inferred from many of these rulings. Indeed, no intelligence requirement is mentioned in most of the sources that deem minors capable of carrying out actions with legal effect (the “age of vows” ruling is the sole Tannaitic exception)164; the requirement seems self-evident, so presumably it was unnecessary to mention it. Moreover, a few Rabbinic dicta do explicitly ascribe legal understanding (as opposed to factual understanding with legal consequences165) that imparts validity according to Torah

163 See text at n. 65ff. above. 164 An intelligence requirement was presumably specified here since a precise age requirement was also specified, and it was necessary to indicate that the latter is inadequate without the former (viz., if the minor is younger than “the age of vows”). Note, though, that such an age requirement is specified by some Amoraic sources that discuss the halitza of minors; see bGitin 65a and bJebamot 105b. 165 E.g., being “able to inquire” whether something pure came in contact with something impure; the issue at stake here is one of fact and not law (see, e.g., tHagiga 1:2, p. 375, but note that mTohorot 3:6, interpreted literally, seems to treat all minors the same way regardless of mental capacity, although a more detailed discussion of the relationship between the Mishnah and the Tosefta here requires further study; note also the remarks of R. Elhanan Wasserman cited in the Appendix). Other possible examples of such understanding include a female minor’s “knowing” how to guard her bill of divorce (see mGitin 6:2; tGitin 4:2–3, pp. 260–61; jJebamot 14:1 (14b), lines 44–51; bJebamot 113b and parallels; bGitin 65a), and perhaps also the understanding required of one who guards a Gentile residence to protect it from certain types of impurity; see tAhilot 18:8, p. 616.

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law166 to (certain) minors, although statements of this sort are very rare.167 6 Can we discern any patterns underlying the rulings that deem minors capable of carrying out actions with legal validity? (I am speaking of rulings that deal specifically with minors, not rulings covering the other categories of mental deficiency as well.) For example, are these rulings attributed to particular Sages,168 chronological periods, or geographic centers, or do they govern particular halakhic issues or legal realms?

166 This rubric does not, then, cover the varieties of understanding deemed necessary to carry out with legal effect procedures binding by Rabbinic decree, such as betrothal by the mother or brothers of a female minor orphaned of her father (kidushei meun) — see, e.g., mJebamot 13:2 and bGitin 65a — and specific types of acquisition by a minor that are valid by Rabbinic decree, as stated in bGitin. 167 See the distinction in jMaaser Sheni 4:4 (55a), lines 35–36 and parallels, between minors who have understanding, and can, accordingly, acquire property, and minors who lack understanding, and thus cannot acquire property (kan bekatan sheyesh bo daat . . . kan bekatan sheein bo daat). A similar notion may be found in mPara 12:10, although the exact reading and parsing of this Mishnah are unclear; see the commentaries ad loc., and cf. n. 82 above. Note also the emendation suggested by H.S. Horowitz in his edition of Sifre Numbers, §124, p. 157, line 17, though it is highly speculative, and not supported, even indirectly, by any of the extant textual witnesses. Note also the various views discussed (and rejected) in the Appendix to this article. 168 Any attempt to ascribe particular viewpoints to particular Rabbis necessarily raises the much-discussed question of the reliability of attributions in the Rabbinic literature, as well as the problem of redactional or transmissional alteration of earlier traditions, whether by means of leveling, i.e., forcibly attempting to ascribe a consistent viewpoint to a particular scholar (see n. 172 below), or transmissional error, possibly leading to the opposite outcome: the elimination of consistency where a particular Sage did in fact uphold a consistent position. However, it seems methodologically unsound to exempt ourselves ab initio from seeking prima facie evidence for the consistent espousal of specific viewpoints by specific Sages. Instead of proceeding from conceivably baseless a priori assumptions about the inherent impossibility of such analysis, potentially relevant evidence should be sought, after which its reliability should be critically assessed.

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Neither Tannaitic nor post-Tannaitic sources identify any patterns of this sort, and indeed, these sources do not systematically address the question of minors’ legal capacity.169 Nevertheless, some prima facie patterns of this sort do appear to emerge after examination of the relevant sources. Thus, various rulings ascribing legal capacity to minors are attributed to R. Judah. His rulings address a variety of legal domains: separating the priestly gift (according to one source, even where this requires implicit agency), consecrating and sprinkling lustral water,170 and reading the Megilla.171 Thus, it might seem that R. Judah takes minors to have universal or near-universal legal capacity as a matter of principle.172 Nevertheless, the extant sources do not attest to a fully consistent position that can be ascribed to R. Judah.173 Apart from his somewhat obscure and thus inconclusive ruling in mTerumot 1:3, which may mean that only minors close to the age of majority can separate the teruma, R. Judah explicitly disqualifies minors from delivering eiruvin,174 even though other Tannaim permit it. This seeming 169 Even the extended PT sugya in jTerumot 1:3 and parallel does not provide a systematic discussion of this question, as all the cases discussed there address various aspects of the laws of consecration or separating teruma. 170 But note that R. Judah’s views on these issues are fully consistent only according to the version in the Tosefta, but not according to the apparently secondary version in the BT; see n. 88 above. 171 See tMegila 2:8, p. 350, but note that this passage deals with the possibility of minors enabling adults to discharge their religious obligations, which seems to reflect a different question — the extent of minors’ personal obligations, which determines whether they can carry out obligatory acts on behalf of others. 172 Theoretically, it could be argued that R. Judah voiced his opinion only about one case (or a few cases), after which this ruling was applied to additional cases by later (Tannaitic?) scholars. Cf. C. Albeck, Untersuchungen über die Redaktion der Mischna (Berlin: 1923), 5–8 = Mavo Lamishna (Jerusalem and Tel Aviv: 1959), 93–94, but see Moscovitz, n. 3 above, 83–84, and 29 n. 119. 173 Here I do not consider cases where no rulings by R. Judah have been preserved, although other Sages do validate the actions of minors in these cases (e.g., R. Jose’s ruling validating the acquisition of lost property discovered by a minor, mGitin 5:8; note also R. Judah’s silence about these issues in tArakhin 1:1, p. 543 and parallel), since argumenta ex silentio of this sort are necessarily inconclusive. 174 Perhaps R. Judah disqualified minors from delivering eiruvin because this requires agency, and minors were considered incapable of agency (according to most of the extant sources; see n. 59 above).

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inconsistency may be due to source-critical considerations or transmissional error: different sources may have reported the views of R. Judah differently. However, it is equally possible that R. Judah never had a fully consistent position as to the legal capacity of minors to begin with. He — and the same may be true of other Tannaim who deemed minors able to perform various actions with legal validity — may not have assumed that all the laws pertaining to the legal status of minors follow directly and inexorably from wide-ranging principles.175 Rather, these rulings may have been based on issue-specific considerations of various sorts, including biblical exegesis.176 Significantly, too, one of R. Judah’s rulings on the legal capacity of minors is supported by, and may have originally been inferred from, a ruling in a particular case (maase) involving minors,177 in accordance with R. Judah’s well-attested tendency to rely on case-law rulings of this sort.178 Thus, it is possible that R. Judah’s other rulings on the legal capacity of minors also reflect an essentially ‘tradition-oriented’ approach to legal decisionmaking, whereby the law is decided (primarily) on the basis of explicit

175 It should be noted, though, that there is nothing inherently implausible about attributing principles of this sort to the Tannaim, since they apparently espoused similar principles, both explicit and implicit, in various contexts; see generally Moscovitz, n. 3 above, 84–90. Note, e.g., the explicit principle in tTerumot 3:1, p. 116, according to which the intoxicated are treated like the sober, and hence possess legal capacity with respect to a variety of halakhic issues (specified in the Tosefta); multiple illustrations of the principle are provided. Likewise, since many Tannaitic sources explicitly state that minors do not possess understanding (see the text at n. 7 above), there is nothing implausible, a priori, about assuming that other Tannaim disagree across-the-board, and maintain as a matter of principle that certain minors do possess viable understanding. 176 Likewise, it is possible that minors were allowed to perform certain actions with legal effect because they were assumed to have sufficient mental capacity to perform these actions, though not enough capacity to perform other, more complex actions (though we lack any positive evidence for this suggestion). 177 See tMegila 2.8, p. 350 (but see n. 171 above). Note also R. Judah’s ruling in tTerumot 1:1 allowing deaf-mutes to separate the priestly gift, which is supported by, and conceivably inferred from, a ruling about a particular case. 178 See Z. Frankel, Darkhei Hamishna ([Leipzig: 1859] Warsaw: 1923), 168–70.

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precedents,179 rather than on the implicit adoption of general principles attributing universal or near-universal legal capacity to minors.180 Regardless of how we account for R. Judah’s rulings, though, these decisions certainly reflect a broad tendency to validate the legal actions of minors. Previous scholars have noted that R. Judah frequently adopts the views of Beit Shammai and of the so-called “early halakha” in general,181 which, it has been argued,182 reflects an anti-standardizing tendency reminiscent of that manifest in most of R. Judah’s rulings discussed in this article. Nevertheless, it is questionable whether R. Judah’s rulings about the legal capacity of minors reflect such an ‘ancient halakha.’ No explicit rulings that ascribe legal capacity to minors are attributed to Tannaim from the time of Beit Shammai or earlier. Indeed, one of the most important sources with respect to the legal capacity of minors, mTerumot 1:1, 3, presents a dispute between Sages of the fourth Tannaitic generation. Thus, the different views as to the legal capacity of minors may well be the product of contemporaneous Tannaitic debate, and not that of legal development from the so-called “early halakha” to the later halakha. Moreover, it is noteworthy that one of the most prominent adherents of the Shammaitic doctrine, R. Eliezer, is credited with the view that “the actions of a female minor are

179 On this approach to Tannaitic legal decision making, see Moscovitz, n. 3 above, 68–69, 91–92. And see H. Shapira and M. Fisch, “The debates between the Houses of Shammai and Hillel — the meta-halakhic issue” (Hebrew), 22 Iyunei Mishpat: Tel Aviv University Law Review (1999), 461–97, which puts forward an interesting, though to my mind not fully convincing, argument for ascribing such a position to Beit Shammai. (See A. Walfish, “Survey of publications in the field of Mishnah” (Hebrew), Netuim 10 (2003), 97–109, for additional critique of the Shapira–Fisch thesis.) And see also n. 181 below regarding possible affinities between R. Judah and Beit Shammai. 180 Note, however, that R. Judah does not adduce precedents regarding his other rulings about minors (e.g., the laws of the red heifer), so it is questionable whether such precedents existed. Moreover, R. Judah’s halakhic approach seems to be characterized by the adoption of implicit legal principles no less than by reliance on case-law precedents; see Moscovitz, n. 3 above, 70 n. 91. 181 See Frankel, n. 178 above, 168–71; M. Kister, “Notes on some new texts from Qumran,” Journal of Jewish Studies 44 (1993), 281 n. 2; Y.D. Gilat 2002, n. 2 above, 31–32 and n. 31 and the references there. 182 See n. 15 above.

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nothing,”183 an approach diametrically opposed to that adopted by R. Judah in the cases discussed here.184 What about the other Tannaim185 who deem the actions of minors legally valid? Here too, we do not find any Sages who adopt a completely consistent position,186 and at least two Sages, R. Meir and R. Jose, who ascribe legal capacity to minors in some situations, and deny it in others.187 To be sure, it is possible that some of the Sages 183 See n. 6 above and text at n. 102. 184 Note too that other ancient legal systems contemporaneous with or earlier than Beit Shammai stipulate age requirements for (certain aspects of) legal majority that are often higher than the age requirements in the Rabbinic sources, whether Tannaitic or post-Tannaitic; see n. 198 below. 185 Our concern here is the Tannaim not only because the article’s principal focus is the Tannaitic teachings, but because there are hardly any Amoraim to whom multiple dicta about the legal status of minors are attributed. Nevertheless, it is noteworthy that R. Johanan, many of whose teachings are cited above, seems to adopt inconsistent positions regarding the legal capacity of minors (though in several of these passages he is commenting on Tannaitic rulings and does not express his own viewpoint). Thus, R. Johanan rules that consecration by minors is binding under Torah law even according to the Tanna who holds that minors cannot separate the priestly gift (text at n. 142 above); on the other hand, R. Johanan maintains that according to Torah law, minors cannot acquire property (jMaaser Sheni 4:4 (55a), lines 28–30 and n. 152 above; the contrary view is, however, attributed to R. Johanan in bBaba Metzia 10b; see Beeri, n. 18 above, 43–50). Likewise, R. Johanan apparently maintains that minors cannot write valid bills of divorce since they lack proper intention; see jTerumot 1:1 and parallel. (The Talmud itself notes a seeming inconsistency in R. Johanan’s positions on minors’ priestly gifts and bills of divorce — see jTerumot 1:1 — although this inconsistency may stem from different assumptions about the relevant legal requirements rather than from espousal of different positions on the legal status of minors.) Obviously, such apparent Amoraic inconsistencies can be reconciled in the same way as their Tannaitic counterparts; see below. 186 While R. Eliezer seemingly adopts consistent views in mJebamot 13:2 and parallels and in tJebamot 12:12, the latter ruling may be based on other considerations; see above, at n. 101. 187 Thus, R. Meir allows minors to deliver eiruvin (tEruvin 2:11, but see text at n. 80 above) but not to separate the heave offering, make assessments (see text at n. 122 above) or perform halitza (tJebamot 11:9, p. 37, although this ruling may reflect other factors; see Tosefta Kifshuta, 6:117; detailed discussion of this issue lies beyond the purview of this article). Similarly, R. Jose apparently holds that minors can acquire lost property regardless of age (mGitin 5:8; see also n. 152 above), but can only separate

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did have fully consistent views as to the legal capacity of minors, and applied these views uniformly in all halakhic domains, but other, possibly later Sages, applied them inconsistently for various reasons. Such reasons might include issue-specific considerations of various sorts, such as biblical exegesis, differential legal requirements, formalistic adherence to explicit precedents, or simply transmissional error. However, there is no extant evidence for this. Moreover, it is noteworthy that some Amoraim — whose views, to be sure, may not accurately account for the Tannaitic rulings they purport to explain — maintained that minors may perform one type of action though not another,188 even though the Tannaitic rulings themselves provide no clear evidence for such distinctions. Not only do we lack clear evidence of any distinctive personal views as to the legal capacity of minors, but there is no evidence of distinctive geographical or chronological approaches to this issue either, and no evidence that different legal domains were treated differently. To be sure, some Palestinian sources seem more inclined than their Babylonian counterparts to ascribe legal capacity to minors,189 although this is more a general tendency than a rigid distinction.190 the priestly gift after reaching the age of vows (mTerumot 1:3). Note also the view attributed to R. Jose in bJebamot 105b, on which minors can perform halitza; see n. 93 above. 188 See text at nn.136, 142 above. 189 Note the dispute between (Rav) Kahana and R. Johanan over the validity of vows taken by minors (see the text at n. 113 above); the admittedly problematic issue of betrothal by male minors (see Y.D. Gilat 1992, n. 2 above, 27 n. 19, and in greater detail, idem 2002, n. 2 above, 32–36); and the dispute between the Toseftan and BT baraitot about reserving a share of the paschal sacrifice (see n. 150 above and the accompanying text). Likewise, some Palestinian Amoraim (and similarly Babylonian Amoraim cited in the Jerusalem Talmud) seem more inclined than their Babylonian counterparts to assume that minors can acquire property by Torah law: the latter generally interpret Tannaitic sources allowing minors to acquire property as referring to acquisition binding only by Rabbinic decree. See Beeri, n. 18 above, 17–50 and 56–60, and the next note. 190 Most of the presumably Palestinian Tannaitic rulings attributing legal capacity to minors are disputed by other Tannaitic rulings, also presumably Palestinian. And furthermore, Babylonian Sages sometimes seem more willing than their Palestinian counterparts to attribute legal capacity to minors; note esp. jMaaser Sheni 4:4 (55a), lines 21–26 and parallels (R. Huna and “there [=Babylonia] they say in the name of R. Nahman b. Jacob”) as opposed to lines 28–29 and parallels (R. Johanan).

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Similarly, with regard to interpersonal issues (marriage, divorce, acquisition, and agency) there seems to be a greater inclination to deem the actions of minors legally ineffective than with regard to other legal domains, although here too we find no absolute consistency.191 In concluding this section, let me comment briefly on the role of biblical exegesis in determining Rabbinic views, both Tannaitic and post-Tannaitic, on the legal capacity of minors. As noted earlier, many Rabbinic sources disqualify minors from performing actions with legal effect on the basis of exegesis of biblical verses containing the word “ish” (‘man,’ hence ‘adult’). However, such exegesis is often disputed, and the exact basis for interpreting the relevant verses as including or excluding minors is not always clear.192 Moreover, even where such exegesis is extant, we cannot always be certain it accurately accounts for the relevant rulings (for example, when Amoraic exegesis is used to explain Tannaitic rulings). Furthermore, such interpretations may sometimes have resulted from or been influenced by a priori, ‘logical’ considerations rather than strictly exegetical considerations. In short, the exact role of biblical exegesis in determining Rabbinic views as to the legal capacity of minors is not fully clear, and analysis of this issue awaits further research.193 7 We can now summarize. Numerous Tannaitic and post-Tannaitic sources rule that minors are capable of carrying out actions of various sorts in a manner that renders them ostensibly binding by Torah law, although the basis for these rulings varies from case to case. Some of these actions are valid when performed by someone with any type of mental deficiency, and such actions presumably do not require viable understanding; rulings to this effect are never disputed. Still other actions performed by minors are deemed valid on the basis of the principle that ‘actions of the mentally deficient have legal validity.’ This principle, too, seems undisputed, and in any event is nowhere explicitly disputed by the Tannaim.194 191 See the discussions of betrothal (at n. 154ff. above), acquisition (at n. 151ff. above), and agency (n. 59 above); and see n. 196 below. 192 See the literature cited above in nn. 139–40. 193 Cf. Kahana, n. 154 above, 346 n. 4. 194 On the possibility, suggested by post-Tannaitic sources, that this principle was disputed by Tannaim (and Amoraim), see the text at n. 60ff. above.

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Most important for our purposes, however, are those actions deemed to have binding legal validity (according to some opinions) if performed by minors, but not by those with other types of mental deficiency, e.g., delivering eiruvin, performing halitza, sanctifying lustral waters, reserving a share in the paschal sacrifice (minui), taking vows, separating priestly gifts, consecrating sacrifices, and acquiring property. Some of these actions are legally transformative, and thus almost certainly require halakhically viable understanding. To be sure, all of these rulings are disputed, as other authorities (or variant traditions195) deny minors legal capacity in these contexts. (Of course, it is difficult, if not impossible, to determine how widely accepted the various rulings, whether attributing or denying legal capacity to minors, were in talmudic times.) Nevertheless, it seems that there are relatively few actions that minors clearly cannot carry out with legal effect according to any Rabbinic opinion.196 Several broader conclusions emerge from our analysis. Despite the widespread Tannaitic and post-Tannaitic disqualification of minors from performing the said actions, and the numerous Rabbinic claims that minors lack understanding, views to the contrary were also expressed. These statements demonstrate that a flexible, differential approach to determination of the law, which did not predicate the relevant decisions on age, but rather, so it appears, on ability or understanding, was sometimes adopted. Apparently, the authors of these rulings ascribed full legal force to ordinary, ‘factual’ understanding. Equally important, there is no evidence that the different approaches attest to halakhic evolution: these approaches seem to reflect contemporaneous dispute rather than progress from a so-called ‘early halakha’ to the later halakha. It is illuminating to compare these conclusions with those reached by Gilat in his study of the religious obligations of minors.197 On 195 See, e.g., the text and notes at n. 148ff. above, with regard to unattributed and hence seemingly unanimous rulings in the Tosefta (according to certain textual witnesses) that are disputed by other versions of the baraita. 196 Note our discussions of betrothal by minors (text at n. 154ff. above); divorce by minors (text at n. 59ff. and §4 above); and the claim of R. Huna in jMaaser Sheni 4.4 (55a), lines 26–27 and parallels, that minors cannot give gifts, although this claim is not explicit in any Tannaitic source. (I exclude giving testimony from the discussion here; see above at n. 17.) 197 See n. 2 above.

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the one hand, my conclusion that diverse Tannaitic views obtained regarding the legal capacity of minors is similar to Gilat’s conclusion about the diversity of Rabbinic views regarding minors’ religious obligations: some Tannaim held that ability rather than age determines the legal status of minors both with respect to their religious obligations and with respect to their ability to carry out actions with legal validity. On the other hand, my conclusion that this ‘ability-oriented’ approach does not necessarily reflect an alleged ‘ancient halakha,’ while the standardizing, age-based approach was not necessarily the product of later historical development,198 differs significantly from Gilat’s conclusions about the adoption of these approaches with respect to the religious obligations of minors and the espousal of fixed halakhic measurements (shiurim).199 My observations suggest that Gilat’s thesis about the development of the ‘standards-based’ approach in Rabbinic legal thought requires further investigation. We also saw that particular Sages or groups of Sages did not always adopt uniform and fully consistent positions regarding the

198 Interestingly, other ancient legal systems, both contemporaneous with and older than Tannaitic law, predicate legal majority, whether regarding legal capacity of various sorts or other legal issues, on reaching a fixed age, generally higher than those specified in the Rabbinic sources. Of course, proper analysis of these rulings, which address diverse types of legal majority, and of the relationship between them and their Rabbinic parallels, lies beyond the purview of this study. See J. Fleishman, “The age of legal maturity in biblical law,” Journal of the Ancient Near Eastern Society 21 (1992), 35–48, esp. 36–39 (biblical law) and 45–46 (ancient Near Eastern law); L. Schiffman, Law, Custom and Messianism in the Dead Sea Sect (Hebrew), trans. Tal Ilan (Jerusalem: 1993), 171–73 (Qumran law); J.W. Jones, The Law and Legal Theory of the Greeks: An Introduction (Oxford: 1956), 290–91; A.R. Harrison, The Law of Athens, vol. 1: The Family and Property (Oxford: 1968), 74; W.W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd ed., rev. P. Stein (Cambridge: 1966), 114, 157–59, 169–73; and Boaz Cohen, “On minors in Jewish and Roman law” (Hebrew), in his Jewish and Roman Law, vol. 2 (NY: 1966), 5–8. 199 For another possible challenge to Gilat’s thesis about the chronological development of minimum required quantities (shiurim) in Rabbinic halakha, albeit from a different perspective, see A. Shemesh, “Things that have required quantities” (Hebrew), Tarbiz 73 (2004), 387–405, esp. 388, 403–405.

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legal capacity of minors.200 This lack of consistency may be due to either source-critical considerations or jurisprudential considerations: the Tannaim (and Amoraim) may not have based their rulings on broad, universally applicable principles governing the legal capacity of minors. This would imply that Rabbinic decisions regarding these issues were reached, like so many other Rabbinic rulings, on the basis of issue-specific considerations, and not derived from jurisprudential principles.201 Significantly, no wide-ranging general assertions attributing universal legal capacity to minors are found in any extant Rabbinic source, and systematic discussions of the legal capacity of minors are lacking. This too may suggest202 that (some of) these rulings were issued on a case-by-case basis rather than grounded in general principles: the relevant decisions reflected the particular issue at hand, and not global assumptions about the legal capacity of minors. Of course, in the final analysis it is difficult, if not impossible, to determine if this conjecture is correct, and this matter calls for further consideration. Finally, an important methodological observation. This study demonstrates the importance of ritual law for the study of Rabbinic halakha: the student of Jewish law who disregards ritual law ignores it as his peril.203 APPENDIX Several post-talmudic commentators and a contemporary scholar have suggested that certain minors possess viable legal capacity (regarding certain issues) or, in the language of the Rabbinic sources, 200 A related, though ultimately distinct, problem should also be noted: it is often impossible to determine the exact scope of a particular Sage’s position as to the legal capacity of minors, since this Sage discussed only particular cases, leaving his position on other cases unclear. 201 See Moscovitz, n. 3 above, 94–96. 202 Although it obviously cannot prove this, as the absence of general assertions or systematic discussions may reflect the literary character of the Rabbinic sources, both Tannaitic and post-Tannaitic, rather than their conceptual character. (Besides, this is an argumentum ex silentio.) See ibid., 91–94. 203 Cf. I. Englard, “The study of Jewish law: its essence and goals” (Hebrew), 7 Mishpatim (1976), 64 (=“Research in Jewish law — its nature and function,” in B.S. Jackson (ed.), Modern Research in Jewish Law [Leiden: 1980], 65).

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“understanding,” a thesis seemingly quite similar to that advanced in this article. However, as I am about to explain, the arguments they put forward differ significantly from those advanced above, and I find them untenable; they are adduced here for the sake of completeness. According to R. Shabtai Hakohen (Shakh),204 the talmudic rulings stating that minors cannot acquire property according to Torah law refer only to minors who are not old enough to understand what they are doing, but not to older children. However, this suggestion is not borne out by the plain sense of the relevant Tannaitic sources, which do not distinguish between minors of different ages and degrees of mental ability. A similar, though ultimately distinct, suggestion was made by R. Elhanan Wasserman,205 and, apparently independently, by R. Menahem Kasher.206 According to these scholars, Rabbinic law distinguishes between two types of minors: those who do not possess sufficient intelligence, and hence are unable to carry out actions with legal validity (or exempt from observing religious precepts), and those who do possess sufficient intelligence. Like those falling under the first category, minors falling under the second category cannot carry out actions with legal validity (or are exempt from observing religious precepts), but for a different reason, namely, because they do not fulfill the formal age requirements. On this suggestion, those Rabbinic sources claiming that minors lack understanding refer only to minors of the first sort, although there is generally no behavioral difference between the two classes of minors. However, this suggestion is problematic for essentially the same reason as the previous suggestion: there is no evidence in the Rabbinic sources that supports the proposed distinction between these two types of minors.207 Finally, Shalom Albeck208 has suggested that even though certain 204 On SA, HM 243:6; see Beeri, n. 18 above, 54–55. 205 Kovetz Hearot Lemasekhet Yevamot (Jerusalem: 2003), §66, n. 6 = §668, p. 209 in the Tel Aviv 1967 edition. 206 In an unpublished article, part of which is abstracted in his Tora Shleima, vol. 22 (Jerusalem: 1967), 54, in the supplementary addenda that follow the main addenda. 207 For exceptions, see n. 165ff. above. 208 “Majority, minority, and individuals in talmudic law: the laws of minors reflecting the fundamental principles of civil law” (Hebrew), 1 Shenaton Hamishpat Haivri (1974), 21–34; see the summary of Albeck’s thesis on p. 34.

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minors are capable of (factual) understanding, for halakhic purposes understanding is generally not assessed on an individual basis, but in light of the mental capacity of most minors who have reached a particular age. Hence, if most minors of a particular age do not understand what they are doing, the actions of individual, gifted minors of this age are not valid. This thesis plausibly explains Rabbinic rulings that disqualify minors from carrying out actions with legal effect even where they possess the requisite intelligence,209 but fails to account for those Rabbinic rulings that do allow minors to perform actions with legal validity, even though other Sages rule differently regarding the same cases.210 Moreover, this thesis is contradicted almost explicitly by the Rabbinic rulings to the effect that acquisition by minors is valid only by Rabbinic decree even where most minors of the relevant age possess the requisite mental capacity.211

209 Cf. above, at n. 135. 210 Of course, this difficulty could be resolved by assuming (contra Albeck’s general thesis about the character of Rabbinic law) that the rulings regarding the legal capacity of minors do not all derive from a few fundamental principles. 211 Albeck himself was aware of this difficulty, but his attempt to resolve it is unconvincing (Albeck, 26–27, esp. n. 27). Note too that Albeck’s general approach, and hence his analysis of this particular issue, is beset by various exegetical and methodological problems; see Moscovitz, n. 3 above, 63–66.

The Jewish Law Annual, Vol. XVII

PROPHECY AND HALAKHA: DIALECTIC IN THE META-HALAKHIC THOUGHT OF RABBI A.I. KOOK AVINOAM ROSENAK* I Introduction The place of religiosity in the framework of an established religion has long troubled religious thinkers of various faiths.1 To what extent can a religious structure change in the face of a dynamic reality? What tools can it use to achieve the desired flexibility? Can a religious-normative establishment be sensitive to a new divine revelation? In other words, is there any substance to the often-invoked distinction between religiosity (to use Martin Buber’s term2) — the experiential religious and spiritual dimension, with its existential, ecstatic, individualist encounter with the divine — and the normative, institutional, and social system of religious practice, perceived as unchanging or even petrified? To what extent can prophecy break through and change the structures of normative religion? A broad exposition of the complex relationships between religiosity and the normative establishment, or between prophecy and halakha (Jewish law), lies well beyond the scope of this article.3 What I propose * Avinoam Rosenak teaches in the Department of Jewish Thought at the Hebrew University of Jerusalem. He is also a research fellow at the Van Leer Institute in Jerusalem. 1 See H. Jonas, “Judaism, Christianity and the Western Tradition,” Commentary 44 (1961), 61–68; H.J. Paton, The Modern Predicament: A Study in the Philosophy of Religion (London: 1955). 2 M. Buber, “Jewish religiosity” (Hebrew), in Selected Writings on Judaism and Jewish Affairs (Hebrew), (Jerusalem: 1960), 70–79. 3 A comprehensive treatment of the subject that covers some of the issues considered here can be found in Berachyahu Lifshitz, “ ‘Aggadah’ and its place in the Oral Law” (Hebrew), Shenaton Hamishpat Haivri 22 (1991/1993), 233–328. Lifshitz’s article, however, does not consider R. Kook’s teachings, nor does it cover the modern literature on the subject. Lifshitz highlights the important distinction between agada and hagada: as he explains it, ‘agada’ refers to secret, mystery doctrines (and in that sense calls to mind the new divine revelations to be considered below), whereas ‘hagada’ refers to non-halakhic exegesis of scriptural verses (244, 260). Notwithstanding this significant distinction, in the present article I cover both the aggadic and the haggadic realms. Although they comprise two different levels,

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to do here is to use these issues to frame an attempt to gain insight into the teachings of one of the most important Jewish thinkers of the twentieth century — R. Abraham Isaac Hakohen Kook (1865–1935).4 In exploring the role of prophecy in R. Kook’s halakhic decisionmaking, I will also highlight the connection between prophetic ‘eruptions’ and the Zionist movement.5 First, however, some historical background will be helpful.

both, in my judgment, are meta-halakhic. Situated beyond or alongside the halakhic realm, they can extend the boundaries of halakhic discourse. And it goes without saying that connections will emerge between these teachings and different cultural phenomena, including those that address ethical theory, and those that address the prophetic spirit — areas that are intricately linked in R. Kook’s thought. 4 The writings of R. Kook — Kabbalist, visionary, rabbinic scholar, messianic figure and community leader — had a profound influence on Jewish thought that continues up to the present. After serving as rabbi of the towns of Zeimel and then Bausk (in present-day Latvia), R. Kook immigrated to the land of Israel in 1904, eventually becoming the leading rabbinic figure of the Zionist movement. He served as rabbi of Jaffa until 1914, becoming Chief Rabbi of Jerusalem in 1919. In 1921 he established the Chief Rabbinate for the Jewish community in Palestine and was its first incumbent; he remained Chief Rabbi until his death in Jerusalem in 1935. 5 For years, R. Kook’s halakhic writings were neglected by academic researchers, but three recent doctoral dissertations have opened the field to inquiry. See A. Rosenak, “Halakhic Philosophy in the Thought of Rabbi A.Y. Kook” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 1998) (published as Prophetic Halakha: Halakhic Philosophy in the Teachings of Rabbi Kook [Jerusalem: 2007]); N. Guttel, “Halakhic and MetaHalakhic Considerations in Rabbi Kook’s Halakhic Decision-Making” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 2001) (published as Innovation in Tradition: the Halakhic-Philosophical Teachings of Rabbi Kook (Hebrew), [Jerusalem: 2005]); H. Ben-Artzi, “Rabbi A.I. Hakohen Kook as Decisor — Innovative Elements in Rabbi Kook’s Halakhic Decision-Making” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 2003). Guttel’s book does not deal directly with the subject of this article, since his inquiry into the meta-halakhic dimension identifies extra-halakhic concepts — midrashic, philosophical and kabbalistic — within R. Kook’s halakhic writings. My inquiry into meta-halakha is different, focusing not on concepts, but on the meta-halakhic system that emerges from R. Kook’s broader thought; specific rulings he handed down can then be examined in light of this meta-halakhic system. The differences between my approach and that of Guttel call for further elaboration; see ch. 1 of my Prophetic Halakha.

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Reform Judaism, as is well known, arose out of a sense of unease about the gap that had opened up between halakhic praxis and the general intellectual environment. The conviction that religious precepts express principles of natural morality came to be one of its most firmlyheld tenets.6 The notion that Diaspora Judaism had calcified and was wasting away, together with the process of emancipation and release from the ghetto, brought about a progressively more extensive and profound unraveling of the Jewish social and cultural tapestry. Against this background, the Hatam Sofer7 instituted an Orthodox counterrevolution,8 appropriating the halakhic maxim “[eating] new [grain] is forbidden by the Torah” into the socio-ideological context of his time and reading it as expressing opposition to any innovation — “the new is forbidden by the Torah.”9 Religion was transformed into a ‘virtual’ ghetto, so to speak, preserving the past and spurning any change in praxis or thought.10 This soon led to a whole system of principles: withdrawal from the wider Jewish community,11 suspicion of general

6 This conviction became one of the movement’s foundational principles, as reflected in the thought of such leading figures as Abraham Geiger (1810–1874) and Samuel Holdheim (1806–1860). 7 R. Moses b. Samuel Sofer (1762–1839). 8 J. Katz, “Orthodoxy in historical perspective” (Hebrew), Kivunim 33 (1987), 89–100; idem, Out of the Ghetto: The Social Background of Jewish Emancipation (Cambridge MA: 1973); idem, “Biographical sketch of the Hatam Sofer” (Hebrew), in Halakha and Kabbalah (Hebrew), (Jerusalem: 1984), 353–86; M. Samet, “Orthodoxy” (Hebrew), Kivunim 36 (1987), 99–114; idem, “The Hatam Sofer: tradition and halakha” (Hebrew), Proceedings of the Ninth World Conference of Jewish Studies, sec. 2, vol. 2 (Jerusalem: 1986), 17–20. 9 See B. Lau, “Hadash [New Grain] outside the land of Israel: on the decisors’ modes of confronting gaps between halakha and reality” (Hebrew), in N. Ilan (ed.), A Good Eye: Dialogue and Polemic in Jewish Culture (Hebrew), (Tel Aviv: 1999), 664–86. 10 This position generated — and continues to generate — difficulties within Orthodox practice itself. See my “Borderlines and deviance in Orthodoxy: conservative halakhic adjudication and post-modern Orthodoxy” (Hebrew), in Y. Salmon, A. Ravitzky, and A. Ferziger (eds.), Orthodox Judaism: New Perspectives (Hebrew), (Jerusalem: 2006), 113–78. 11 This is manifestly true not only with respect to Hungarian Orthodoxy, but German Orthodoxy as well; see J. Katz, The Unhealed Breach: The Cessation of Orthodox Jews from the General Community in Hungary and Germany (Hebrew), (Jerusalem: 1995).

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and modern culture,12 intensified study of Gemara,13 reduction of everything to “the four cubits of the halakha,”14 institutionalizing observance of halakhic minutia with the same rigor as important laws, elevation of custom to binding norm,15 and relating to the Shulhan Arukh and the Mapa as canonical and incontrovertible codes of law.16 It was against this background that Zionism emerged.17 Ahad Haam18 famously characterized Zionism as a spiritual and cultural revolution. In contrast to the drastic changes instituted by the Reform movement,19 on the one hand, and the hyper-pietistic turn to ultra-Orthodoxy20 on the other, the return to the land of Israel was, on his view, merely a trigger for the truly vital revolution: transformation of Judaism from a religion of ossified orthodoxy into an ethical, spiritual, creative religion, and transformation of the Jews from the exilic “people of the book”21 into “a literary 12 This principle was expressed, among other things, in unwillingness to countenance secular studies in the educational system. In Volozhin, for instance, the yeshiva was closed for this very reason. 13 See R. Solomon Kluger (Poland, 1785–1869), Responsa Haelef Lekha Shlomo, 14:257. 14 In other words, regarding the halakha as all-encompassing, in effect applying to it the dictum “examine it, examine it, for everything is in it” (mAvot 5:22), previously applied to the Torah as a whole. 15 Samet 1987, n. 8 above, 99. 16 Granting both custom and the Shulhan Arukh status as determining the halakha entails a degree of tension, if not contradiction, a tension associated with Orthodoxy since its recognition as a distinct stream. 17 The move from affirmation to negation of the Diaspora has been attributed, among other things, to the traumatic realization that full emancipation of the Jews could never be achieved; see Amos Elon, German Requiem: Jews in Germany Before Hitler (Hebrew), (Or Yehuda, Israel: 2005). 18 Asher Zvi Ginsburg (1856–1927). After receiving an ultra-Orthodox education in southern Russia, he joined the proto-Zionist “Lovers of Zion” (Hovevei Tzion) organization in 1884. 19 O. Schiff, “The dialectic in the relation of early American Reform to the land of Israel” (Hebrew), Hatzionut 22 (2000), 15–35; A.Y. Gottschalk, “Israel and progressive Judaism: a Zionist perspective” (Hebrew), Tefusot Israel 21 (1983), 43–61. 20 See A. Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism, trans. M. Swirsky and J. Chipman (Chicago: 1996). 21 “The ‘people of the book’ is enslaved by the book, a nation whose soul has abandoned its heart and been entirely absorbed into the written text” — Ahad Haam, “Torah in the heart” (Hebrew), At the Crossroads (Hebrew), vol. 1 (Tel Aviv: 1965), 81–95.

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people.”22 And this change, he argued, was intimately linked to the renewal of prophecy: Judaism must be transformed from a religion of priests wielding a book of rules to a religion of prophets bearing a religious vision that would supplant the desiccated law.23 A program in the Reform spirit thus made its way into Zionism, its central demand being an abrading of the halakhic system through attentiveness to the prophetic spirit (‘natural morality,’ ‘rational enlightenment’) that serves as the basis for halakhic thought. R. Kook’s views took shape against the backdrop of these developments, raising the question of whether any of these ideas can be detected in his thinking, a question that is particularly intriguing given that he served as Chief Rabbi of the land of Israel and Chief Rabbi of Jerusalem, the stronghold of the ultra-Orthodox, anti-Zionist ‘old Yishuv.’ It seems to me that the concept of prophecy is indeed a foundation of R. Kook’s theoretical, halakhic,24 and even experiential writings. His disciple R. David Cohen, known as ‘the Nazir’ (Nazirite), begins and ends his book on prophecy in a similar vein25; he too is known to have had a profound yearning for prophecy,26 and he too saw it as profoundly connected to the halakha.27 The vision of renewed prophecy in one form or another28 was shared by other contemporaries 22 “The term ‘a literary people’ can be applied only to a people whose life develops in tandem with the life of its literature, whose generations develop in tandem with its books, so that the literature serves the needs of the generation, and the generation reflects the spirit of the literature” (ibid.). 23 Ahad Haam, “A change in values” (Hebrew), ibid., vol. 2, 30–45; “Priest and prophet” (Hebrew), ibid., vol. 1, 174–83. 24 See Rosenak 2007, n. 5 above, ch. 3. 25 R. David Cohen (1887–1972), Kol Nevua: Hahigayon Haivri Hashimi (Jerusalem: 1970), 5 s.v. dor hadash yakum, 318: “we are called to the fount of prophecy . . . winds flow and waft from the spirit of the Messiah”; R. Kook, Orot (Jerusalem: 1982), 95–96. 26 D. Schwartz, Religious Zionism between Logic and Messianism (Hebrew), (Tel Aviv: 1999), 174–97. 27 See Cohen 1970, n. 25 above, ch. 2, sec. 1; Schwartz ibid., 255–56. 28 In this article, I consider various types of prophecy at various levels, starting with the lowest — heavenly voices and megidim (roughly analogous to muses) — and proceeding to the highest, intuitions that in some places might be referred to as manifesting the ‘holy spirit.’ I thus explore the entire spectrum of conscious phenomena that can be classed, to one degree or another, as manifestations of prophecy, a realm distinct from formal halakhic discourse.

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engaged in the renewal of Hebrew literature, such as Ahad Haam, as noted above, and A.D. Gordon.29 R. Kook’s poetic-theoretical image, and the infusing of prophecy into the vision of returning to the Land,30 aroused great hopes within the new Yishuv.31 But well aware of the antinomian aspect of the prophetic message, R. Kook executed a cautious dance of advance and retreat in connection with anything having to do with the halakha– prophecy nexus, a dance this article will retrace in detail. I will describe two parallel processes that can be discerned in R. Kook’s thinking on the relationship between halakha and prophecy, in light of which it becomes clear that the more daring R. Kook’s vision became — that is, the more he sought to imbue the halakhic framework with prophecy — the more he tried to repress the antinomian tendencies this synthesis could give rise to. His prophetic vision, which penetrated every corner of his halakhic thought, acquired the form and presentation of halakhic discourse. This protected the halakhic structure from collapsing in face of the encounter with prophetic revelation, a collapse that threatened to erupt from within the folds of his teachings, but also limited the definition and

29 The ethos of return that accompanied renewal of the prophetic spirit was understood in some circles as entailing wide-ranging, radical reform predicated on the repudiation of Diaspora culture. These positions mandated a return to the authentic national spirit intimately linked to the land. See Writings of A.D. Gordon (Hebrew), vol. 1 (Tel Aviv: 1957), 479, 496; vol. 2 (Tel Aviv: 1926), 125. On the religious redemption inextricably linked to a return to the land, see Anita Shapira, “The religious motifs of the labor movement,” in S. Almog et al. (eds.), Zionism and Religion (Hanover NH: 1998), 251–72. On Gordon’s experiences of prophetic inspiration, see E. Schweid, The Individual: The World of A.D. Gordon (Hebrew), (Tel Aviv: 1970), 69–75. 30 E. Schweid, “Renewed prophecy at the start of the redemption” (Hebrew), Daat 38 (1996/7), 83–103. 31 On R. Kook’s election as rabbi of Jaffa and his image as a lenient decisor, see J. Avneri, “Rabbi Kook and his relations with the Old Yishuv during the Second Aliyah period” (Hebrew), I. Rafael (ed.), Sefer Shragai (1985), 22; M. Friedman, Society and Religion: Orthodox Zionism in the Land of Israel: 1908–1937 (Hebrew), (Jerusalem: 1978), 91. On scholarly disappointment in the disparities between R. Kook’s legal rulings and broader thought, see Rosenak 2007, n. 5 above, ch. 1.

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scope of prophecy in a way that profoundly changed its original definition.32 II

Modes of Prophecy

R. Kook spoke of various levels and planes of connectedness between prophecy and halakha. To elucidate this point, let me suggest two models that describe the qualitative nature of the connection: ‘ongoing prophecy’ and ‘eruptive prophecy.’ Alongside this distinction, a straightforward distinction can be drawn with respect to the fruit of the prophecy–law encounter: can prophecy be accepted as part of the halakhic process (‘integration’) or must such overlap be prohibited (‘compartmentalization’)? On the ongoing prophecy model, all halakha involves prophecy, which regularly accompanies halakhic decision-making and the shaping of the Oral Law. Prophecy is understood as a sort of suprarational cognition accessible to the halakhic Sages. Halakha, on this model, is a mode of analysis accompanied by intuition, illuminations, and profound insights that go beyond rational cognition. This was the view, for example, of R. Judah Halevi, who regarded the two as inextricably linked. He wrote of a “divine affinity” (the prophetic force) distinctive to the people of Israel33 and the land of Israel,34 an affinity profoundly connected to the transmission and development of the Oral Law tradition from Sinai on. Because of this prophetic element, the Oral Law can develop only in the land of Israel,35 and only in this light is the obligation not to deviate from the words of the Sages comprehensible.36 In the context of an anti-Karaite polemic,37 R. Judah Halevi underscores the authoritativeness of the

32 On prophecy, and the prophet’s status as messenger, religious and ethical role, and psychological, anthropological–philosophical, and educational traits, see Biblical Encyclopedia (Hebrew), vol. 5, 690–732, esp. 702, 708, 717, 719–21. 33 Judah Halevi, Kuzari, I:31–43, 95. 34 Ibid., I:109, II:12, 14. 35 Ibid., III:39. 36 Ibid. 37 Ibid., III:24–51, 65.

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sages in the land of Israel,38 seeing their prophetic power as a force perpetuating the Torah-giving act of Moses’ prophecy.39 A very different picture is presented by ‘eruptive prophecy,’ which penetrates the closed and separate process of halakhic discourse. Rational halakhic thinking is utterly distinct from prophetic revelation, which arises from a source external to the halakhic discourse. It is in this context that we should understand both the position taken by R. Eliezer in the famous talmudic story of the “oven of Akhnai”40 (where the heavenly voice seeks to change the position taken by the Sages, who disagreed with the view of R. Eliezer b. Hyrcanus), and41 the role of the “magid”42 in the thought and halakhic decisions of R. Joseph Caro,43 as recounted in his Magid Mesharim. In effect, R. Kook takes the view that the entire Oral Law is the product of an eruptive bat kol claiming: “these and those [opinions] are the words of the living God, but the halakha is in accordance with [the opinion of] the House

38 Ibid., III:39. In the absence of that prophecy (i.e., in the Diaspora), halakhic directives lose some of their force; no longer commandments whose observance mandates recitation of a blessing, “it was said of them that they are regulations or customs.” 39 Silman has argued that in Judah Halevi’s view, “It is within man’s ability to bring down from heaven new commandments . . . that were not given at Mt. Sinai”; see Y. Silman, Philosopher and Prophet: Judah Halevi, the Kuzari, and the Evolution of his Thought, trans. L. Schramm (Albany: 1995), 341. See too E.E. Urbach, World of the Sages (Hebrew), (Jerusalem: 1988), 41; N. Arieli, “Rabbi Judah Halevi’s conception of halakha” (Hebrew), Daat 1 (1978), 46–47. 40 bBaba Metzia 59b. 41 On the nature and standing of the heavenly voice, see bYoma 9b; Maimonides, Guide for the Perplexed II:42; Kuzari III:11, 41, 73; Talmudic Encyclopedia, vol. 5 s.v. bat kol; Urbach n. 39 above, 43–47; G. Scholem, Fundamentals for Understanding the Kabbalah and Its Symbolism (Hebrew), (Jerusalem: 1981), 24, 360. 42 The magid is considered a lower form of prophecy than the bat kol; the phenomenon referred to as ‘gilui eliyahu’ (revelation of Elijah) is ranked above the magid but below the bat kol. See R.J Z. Werblowsky, Joseph Karo, Lawyer and Mystic (Philadelphia: 1977), 269. 43 Ibid., ch. 8 and 173–74 n. 33. M. Halamish argues that R. Joseph Caro did not always rule in accordance with the magid, see “The role of Kabbalah in Caro’s Shulhan Arukh” (Hebrew), Daat 21 (1988), 88.

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of Hillel.”44 In contrast to ongoing prophecy, the prophecy here is an external phenomenon that penetrates the very core of the halakhic discourse, interjecting itself into the discussion by endorsing the ruling a sage has handed down or admonishing him for its errors45 — and all without giving a reasoned halakhic justification for such intervention. ‘Ongoing prophecy’ clearly requires the integration of prophecy into halakha, as prophecy is a condition for the halakha. This necessary integration can be found on the ‘eruptive prophecy’ model (as in the case of R. Joseph Caro, and in the story of the bat kol deciding between the House of Shammai and the House of Hillel), but it invokes the charge of ‘compartmentalization.’ This view takes the halakha to be a separate realm that is closed to prophecy; prophetic intervention of any sort — whether in the epistemic realm or in the pragmatic — is deemed unfair, undemocratic (since the Torah was given ‘to everyone’) and fraught with disaster.46 This stance is reflected in R. Joshua’s argument that “[the Torah] is not in heaven”47; in the nineteenth-century work Torat Neviim by R. Zvi Hirsch Chajes48; and in the plain meaning of the words of Maimonides.49 In Maimonides’ view, as is well known, a 44 bEruvin 13b. The role and nature of the bat kol here has been the subject of scholarly attention, and has received interpretations that differ from R. Kook’s. See Lifshitz, n. 3 above, 300–302 n. 173, 304–307 nn. 179, 184. R. Kook, however, reads the sugya as set out above. See also n. 93 below. 45 See Werblowsky, n. 42 above, 177–78. See also J. Ahituv, “Tensions and transition in religious leadership” (Hebrew), in Z. Safrai and A. Sagi (eds.), Between Authority and Autonomy in Jewish Tradition (Hebrew), (Tel Aviv: 1997), 58–75; see too Safrai and Sagi, 14–15. 46 On the origins of this position in the Rabbinic period and its antiSadducean roots, see I. Greenwald, “The role of priestly traditions in the shaping of merkava mysticism and shiur koma” (Hebrew), Jerusalem Studies in Jewish Thought (Hebrew), (1987), 65–120, esp. 94. But there was considerable ambivalence, as is attested by the fact that in arguing for a broadening of their authority, even sages who reject reliance on prophecy and revelation in halakhic decision-making adduce engagement in merkava mysticism (p. 97). For a detailed treatment of these issues, see Lifshitz, n. 3 above, 291–92 nn. 141–43, as well as n. 134. 47 See the text above at nn. 40–41. 48 Sifrei Maharatz Chajes (Jerusalem: 1958), vol. 1, 17. 49 Maimonides’ writings contain passages suggesting that prophecy plays a decisive role in halakhic analysis, but they are connected to his esoteric doctrine and the manner in which he perceives his enterprise of establishing the authority of the Mishne Torah. His exoteric writings, in which he takes a position directly opposed to that of R. Judah Halevi, are very

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prophet is forbidden to introduce anything new.50 Moreover, his view as to when a purported prophet is to be deemed a false prophet is contrary to the view of R. Judah Halevi: the moment we discern that the prophet presents himself as a successor to Moses whose teachings are on a par with the Torah of Moses, rather than as one who is simply transmitting and strengthening Moses’ words, we know we are dealing with a false prophet.51 Prophecy is of no use in interpreting the Torah, according to Maimonides, and a prophet wanting to participate in halakhic analysis must do so solely as a sage.52 A detailed examination of R. Kook’s doctrine of prophetic halakha is beyond the scope of this article,53 but I will sketch its defining features and halakhic implications. In particular, I will consider the tension implicit in his doctrine, expressed with reference to the models of prophetic intervention we encountered earlier. We will see what he has to say about these models, and how he incorporates them dialectically into his doctrine.

50 51

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different, and this is how R. Kook understood him. See A.J. Heschel, “Did Maimonides believe he had attained prophecy?” (Hebrew), Louis Ginzberg Memorial Volume (NY: 1946), Hebrew section, 159–88; Z. Harvey, “How Leo Strauss silenced the study of the Guide of the Perplexed in the twentieth century” (Hebrew), Iyyun 51 (2002), 387–96; A. Ravitzky, “Esoteric doctrines in the Guide of the Perplexed: explication then and now” (Hebrew), in his ‘Al Daat Hamakom’: Essays in the History of Jewish Philosophy (Jerusalem: 1991), 174–79. Maimonides, Code, Laws concerning the Fundamental Principles of the Torah 9:1. This assigns the prophet the very narrow role of encouraging and urging the people to observe the Torah of Moses. In line with this thinking, some commentators have hypothesized that on the Maimonidean outlook, the only prophet is Moses; all the others (prophets and sages alike), are charged with the mission of furthering the observance of Moses’ Torah. See J. Levinger, “The prophecy of Moses our Teacher,” in Maimonides as Philosopher and Codifier (Hebrew), (Jerusalem: 1989), 29–38. Maimonides, Introduction to Commentary on the Mishnah: 14: “Prophecy is not useful in interpreting the Torah. . . . rather, what Joshua and Pinhas [early prophets] did was the same as what Ravina and Rav Ashi [the last talmudic sages] did.” For additional sources and further discussion, see Lifshitz, n. 3 above. See A. Rosenak, “The Bavli, the Yerushalmi, and the prophetic Torah of the land of Israel in the teachings of Rabbi Kook” (Hebrew), in A. Ravitzky (ed.), The Land of Israel in Twentieth-Century Jewish Thought (Hebrew), (Jerusalem: 1995): 20–76. For a full treatment of the issue, see Rosenak 2007, n. 5 above.

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III Constraints on the Power of Prophecy to Decide the Law That the thought of R. Kook encompasses conflicting statements as to the link between prophecy and halakha should come as no surprise, as a dialectic dynamic is characteristic of his writings on other subjects as well.54 This approach is rendered plausible by the notion of the ‘unity of opposites’ that underlies his thinking.55 This enables him to put forward arguments that are inconsistent with each other, which he does with a view to indicating their common origin. He seeks to integrate these opposed theses in a manner that does not accord with the law of contradiction.56 In his writings, he allowed himself to simultaneously uphold contradictory theses; we will address contradictions of this sort below. On the one hand, R. Kook’s writings contain elements of the approach that negates all prophetic intervention in Torah laws and halakha. In light of this stance, R. Kook argues that: It is established that with respect to all matters of the Torah, “it is not in heaven.” With regard to the laws that were forgotten during the period of mourning for Moses, when Joshua, Samuel, Pinhas and Eleazar were told to ask [for a heavenly answer about a point of law], the answer was that the law is not in heaven, and that henceforth no prophet is allowed to introduce anything new with respect to the commandments. Accordingly, “to ask for heavenly guidance in matters of practice has been barred since the time of Moses our teacher, peace be upon him.”57 [emphasis added]

54 Rosenak 2007, n. 5 above, chs. 2–3. 55 On the philosophical sources of this concept, and the influence of Schelling on R. Kook’s teachings, see ibid., ch. 2. See also E. Goldman, “The crystallization of Rabbi Kook’s main doctrines in the writings from 1906–1909” (Hebrew), in M. Halamish (ed.), Bar-Ilan Annual 22–23 (Moshe Schwarcz Memorial Volume), (Ramat Gan, Israel: 1988), 109. 56 See R. Kook, Olat Reaya (Jerusalem: 1989), vol. 1, 184. Cf. Orot Hakodesh (Jerusalem: 1985), vol. 1, 11–12; Orot Hateshuva (Jerusalem: 1985), ch. 16, sec. 1*. 57 R. Kook, Mishpat Kohen (Jerusalem: 1985), #92: 174–75, cols. b–a [Jerusalem: 1934]. It could be argued, of course, that R. Kook’s words here are mere lip-service (as is the case in works by other writers too), and do not reflect a genuine feature of his halakhic approach. It is difficult to reach a firm conclusion, but it seems to me that in light of the ‘unity of opposites’ principle that runs through all R. Kook’s writings (see n. 55 above), it is reasonable to assume that these statements are more than lip-service and cannot be dismissed.

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It follows that one should not depend upon prophecy to ascertain a law that is not known. But can a distinction be drawn between seeking a prophetic answer, which is forbidden, and heavenly revelation, which is permitted? R. Kook’s answer is that “what we have said implies that no such distinction should be made, even if the knowledge comes from heaven without having been asked for.” Prophecy simply has no place in the framework of halakhic deliberation. R. Kook arrives at these ideas from the Talmud,58 where we learn that “henceforth no prophet is permitted to introduce anything new,” as well as from the Tosafot 59 — and certainly from Maimonides — all of which regard prophets as not to be relied on in matters pertaining to the Torah.60 This approach is in evidence in R. Kook’s halakhic deliberations regarding the contemporary sanctity of Jerusalem and the Temple in light of the position upheld by the Rabad (R. Abraham ibn Daud). R. Kook sums up the Rabad’s position as stating that “the second sanctification [i.e., the restoration of Jerusalem and the Temple following the return from the Babylonian Exile] did not effect sanctification for the future [i.e., continuing past the destruction of the Second Temple in 70 CE], and this was revealed to him through God’s secret [is revealed] to those who fear Him.”61 This raises the question of the nature of the “God’s secret to those who fear Him” revelation, and its force in deciding the halakha.62 R. Kook answers as follows: Yet the Rabad did not decide the halakha [in accordance with a divine– prophetic voice] at all, and the law endorses that the halakha is not to be decided according to God’s secret, for legal rulings are not handed down

58 59 60 61

Ibid., 174; bTemura 16a. bJebamot 14 s.v. rabi. Mishpat Kohen, n. 57 above, 174–75. See the Rabad’s annotations on Maimonides, Code, Laws concerning the Temple 6:14; Mishpat Kohen, n. 57 above, #96:207, col. b [Jerusalem: 1921]. 62 The nature of this statement has piqued the interest of many writers. See R. Hayim Vital, Etz Hayim, preface to the introductory section (Warsaw: 1891), 3–5, and Responsa Mahari b. Lev, Hidushim Al Hashas (Amsterdam: 1726), part 3, sec. 116, 59b, which take Rabad’s statement at face value, as do Urbach 1988, n. 39 above, 42, and D. Tamar, “ ‘God’s secret [is revealed] to those who fear him’ ” (Hebrew), in M. Neriya, A. Stern, and N. Guttel (eds.), Studies in Rabbi Kook’s Halakhic Rulings (Hebrew), (Jerusalem: 1992), 525–33. For a contrary reading of the Rabad, denying that heavenly revelations can decide the law, see Katz 1984, n. 8 above, 16–17; I. Twersky, Rabad of Posquieres, rev. ed. (Philadelphia: 1980), 291–300.

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on the basis of the holy spirit, and “it is not in heaven.” (And the Rabad did not dispute the view of Maimonides in chapter 9 of Laws concerning the Fundamental Principles of the Torah.)63

According to R. Kook, the Rabad did not seek to decide the law by way of prophecy; but rather, it is “the secrets of the Kabbalists”64 that his words seek to convey: Like the interpretation of the Kabbalists [lit., scholars of the secrets] whose traditions have been passed down to recent generations. . . . The Rabad did not conclude his exposition of the law “therefore one who enters there [the sacred areas of the Temple site] nowadays does not incur karet [divine excision]” with the statement “thus it was revealed to me through God’s secret to those who fear Him,” lest we erroneously think that the divine secret was revealed to him so he could decide [the law] that one who enters there nowadays does not incur karet.65

Hence, the Rabad uses the phrase “God’s secret [is revealed] to those who fear Him” only as an explanation, and does not presume to decide the law by invoking it.66 Clearly, this stance, which reflects the ‘compartmentalized prophecy’ approach, posits a sharp distinction between the halakhic process and the prophetic dimension, ruling out any contact or connection between these different realms. Elsewhere, however, R. Kook’s writings strike a very different note,67 emphasizing the profound bond between prophecy and halakha — a bond consistent with the ‘prophetic eruption’ model. In a number of places, he relies, in his halakhic responsa, on testimony of the prophets regarding the law; this testimony is seen as important in virtue of their standing as prophets. He does so in light of the remarks in tractate Zevahim68 regarding “three prophets . . . one who testified to them about the altar, one who testified to them about the location of the altar, and one who testified to them that sacrifices are brought even

63 64 65 66

Mishpat Kohen, n. 57 above, #96:208, col. b [Jerusalem: 1921]. Ibid., 209, col. a. Ibid., 210, col. b. See M. Klein, “Principles of Rabbi A.I. Kook’s ideological concept of Jewish law” (Hebrew), in H. Hamiel (ed.), In His Method (Hebrew), (Jerusalem: 1986), 156. 67 On the spectrum of kabbalistic elements that can be discerned in various aspects of R. Kook’s halakhic writings, see Guttel 2005, n. 5 above. 68 bZevahim 62a.

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though there is no Temple”69; and also regarding the possibility, cited in the name of the prophet Gad, that the Temple site might be invalidated due to the prohibition against idolatry.70 (In this context, he commends the Tosafot 71 for upholding a position contrary to that of Maimonides, who rejects prophetic intervention in the halakhic process.72) But it is not only ‘prophetic eruption’ that can be found in R. Kook’s writings. Further examination reveals the presence of the ‘ongoing prophecy’ model as well, and I would argue that it is the core paradigm in R. Kook’s meta-halakhic thinking. In his view, the connection between prophecy and law is at the heart of the entire Torah (written and oral alike),73 for one who experiences the spiritual reality of Torah and halakha experiences, as R. Kook puts it, enduring “illuminations of truth.” These experiences are personal, affecting one’s “innermost being,” but also convey, as noted, the content of the Oral Law and the Written Law.74 Given this idea, we can understand as well why R. Kook maintains that the Torah takes precedence over prophecy. This precedence does not arise because prophecy is irrelevant: on the contrary, so great is the revelation found in the Torah that it far exceeds the one-time revelation of a prophet.75 In his view, aspects of prophecy can be found both in the words of sages and in the Torah, and even though the divine revelations expressed in these sources manifest different levels of prophecy, in both we find the presence of

69 The passage pertains to the deliberations about the sanctity of Jerusalem: was Jerusalem sanctified for a certain time (that ended upon the destruction of the Temple) or was Jerusalem sanctified for all eternity? See Mishpat Kohen, n. 57 above, #97:187, col. a. In light of R. Kook’s comments in Igrot Hareaya (henceforth Igrot), vol. 1 (Jerusalem: 1981), 123, it is clear that the testimony is taken into account qua prophecy and not qua ordinary testimony. See also n. 99 below. 70 “In any case, Gad in his prophecy taught something novel about this matter for all generations” — Mishpat Kohen, n. 57 above, #89:168, col. b and 172, col. a [London: 1918], citing jAvoda Zara 21b, 3:5. 71 bJebamot 14a, s.v. rabi yehoshua hi. 72 Igrot, n. 69 above, vol. 1, 123 (Jaffa: 1908). 73 There is a connection between this stance and the writings of R. Tzadok of Lublin; see below, n. 82. On the radicalism of this approach, see below, n. 116. 74 See Orot Hakodesh, n. 56 above, vol. 1, 23. For parallels in Maimonides, see Guide for the Perplexed II:39. 75 Orot Hakodesh, ibid.

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the holy spirit76 — and the ‘holy spirit’ is a higher level of prophecy than a heavenly voice (bat kol) or a magid.77 There can be no true halakhic innovation in the absence of prophetic revelation; it must all flow from the same “collective phenomenon with individual salience, vital and enduring, bold and deep-seated for all eternity.”78 And this also explains why the prophecy of Moses in the Torah takes precedence over that of the prophets, for theirs “came intermittently”79 whereas his was permanent. R. Kook clarifies his point with an analogy that makes striking use of Maimonidean terminology: Just as it is impossible to know the material world through light cast by lightning, which flashes and then vanishes, even if there are many flashes . . . so it is with spiritual illumination. . . . We have no way of knowing the supernal world . . . except by way of a continuous phenomenon.80

To what is this analogous? “Prophecy is an intermittent light; only the prophecy of Torah, the prophecy of Moses our teacher, is a streaming, unceasing light, and by that light, we go forth on our journey.” To this “ongoing revelation” must be added the light of the sages’ natural intelligence (even if the degree of prophetic illumination here differs). But, he claims, this light is “like a light from above, unceasing, though it does not attain total clarity.”81 (The connection between this position and that of R. Tzadok Hakohen of Lublin calls for examination.82) 76 Ibid., 24. See also S. Rosenberg, “It is Not in Heaven” (Hebrew), (Alon Shvut, Israel: 1997), 115–23. 77 Above, nn. 28, 42. 78 Orot Hakodesh, n. 56, above, vol. 1, 278, 178. See also B. Ish-Shalom, Rabbi Abraham Itzhak Hacohen Kook: Between Rationalism and Mysticism (Hebrew), (Tel Aviv: 1990), 181. 79 Orot Hakodesh, n. 56 above, vol. 1, 271. 80 Ibid., 275. 81 Ibid., 271. 82 R. Tzadok of Lublin distinguishes between the prophetic light associated with the written Torah, a form of prophecy that cannot sustain multiple positions and truths, and the ‘indirect light’ of prophecy that is found in the wisdom of the oral Torah, making possible the breadth of viewpoints and opposing positions associated with the notion of ‘seventy facets to the Torah.’ The light of halakhic wisdom is on a low level of prophetic revelation, but is enduring and systematic, offering some significant advantages: “ ‘we do not heed a bat kol,’ since ‘the wisdom of the sages of Israel flows from somewhere above the heavens,’ and of this it is said, ‘a sage takes precedence over a prophet’ ” (R. Tzadok Hakohen of Lublin, Sefer Dover

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It is of interest to compare R. Kook’s view on this matter with that of R. Elijah of Vilna (the Vilna Gaon). The Vilna Gaon also rejected reliance on megidim in Torah study, preferring the power of the human intellect.83 It therefore seems to me that both R. Kook and the Vilna Gaon should be understood not as seeking to ground the halakha exclusively in intellection as opposed to prophecy, but rather, as favoring the enduring revelation of the intellect over the fragmentary revelation of the magid’s words (viz., eruptive prophecy).84 To summarize, every form of prophetic revelation has its advantages and its drawbacks.85 According to R. Kook, the revelation at Sinai lives on alongside the prophetic revelation of the prophets and sages who came afterwards. Only the conjoining of wisdom, Moses’ prophecy, and the prophecy of the prophets who came after Moses properly establishes the masoretic chain by which the Torah is transmitted,86 and a deficiency in wisdom indicates that we are not adequately prepared to observe the law.87

83

84

85 86

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Tzedek, sec. 4, 150–51.) The wisdom of the oral Torah, accordingly, differs from the prophecy of Moses and the other prophets, but this does not negate its standing as a profound revelation from on high. See R. Tzadok Hakohen, Sefer Resisei Laila, sec. 56 s.v. ki hathalat gilui; Mahshavot Harutz, ch. 17 s.v. vekhol nevuot haneviim; Sefer Divrei Soferim: Likutei Amarim, sec. 15 s.v. veze; Sefer Poked Akarim, sec. 6 s.v. udvar. See also Y. Elman, “Reb Zadok Hakohen of Lublin on prophecy in the halakhic process,” Jewish Law Association Studies: The Touro Conference Volume (1985), 1–16; A. Brill, Thinking God: The Mysticism of Rabbi Zadok of Lublin (NY: 2002), 290. See the Introduction to the Vilna Gaon’s Commentary on Safra Detzniuta (Vilna: 1820). See also the Nazir’s comments and references in Kol Nevua, n. 25 above, 312–13 n. 467. Systematic identification of parallels between the views of the Vilna Gaon and those of R. Kook would require a detailed study, which I hope to undertake in another context. And see below, nn. 105, 121, 127, 128. Orot Hakodesh, n. 56 above, vol. 1, 272. Igrot, n. 69 above, vol. 1, 123. See also Orot Hakodesh, n. 56 above, vol. 1, 275: “Only joining the two fixed lights [wisdom and Moses’ prophecy] . . . amidst which are the flashing lights of prophecy and the holy spirit . . . all together gives shape to life at its highest”; and see too p. 272. Parallel comments appear in “Ahdut veshniut,” Maamarei Hareaya, vol. 1 (Jerusalem: 1984), 234–35. There is a controversy between R. Kook and the Later Authorities regarding our lack of information about the precise location of the Temple altar. The Later Authorities say that lack of knowledge does not preclude observance of the commandment [of bringing sacrifices]. R. Kook, however, maintains that “[to carry out] the commandment, we certainly

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Levels of Prophetic Intervention

R. Kook’s writings, then, contain contradictory elements: on the one hand, demands that the bounds of halakha be preserved and the intervention of prophetic eruption rejected, and on the other, expressions of support for the validity of prophecy as a force that shapes and renews the halakha, in opposition to the halakhic status quo. Is it possible to reconcile these remarks and construe them as a consistent system? To attain some sort of insight into R. Kook’s position, we must, in my judgment, draw a distinction between two levels of prophetic intervention in the halakha: (1) prophecy that produces new law and/or resolves existing halakhic disputes; and (2) prophecy that amends the halakha in light of the needs of a particular time and place. Given the differences between these levels, it follows that the status of prophecy will vary accordingly. Prophecy that Produces New Law or Resolves a Halakhic Dispute One of R. Kook’s assertions on the subject reflects his struggle with two conflicting talmudic sugyot: that of R. Eliezer b. Hyrcanus and the Sages, whose claim that “a heavenly voice is not heeded” prevails,88 on the one hand, and on the other, the sugya where, on the authority of a bat kol, the law is decided in accordance with the view of the House of Hillel, and the view of the House of Shammai is rejected.89 R. Kook regards this well-known contradiction90 as illusory: We must answer that this rule that “it is not in heaven” is taught with respect to clarification of doubts concerning disputed points of halakha. And only when [the heavenly voice] goes against the halakha do we say “it is not in heaven.” But in a case when we are not sure which side to incline toward, it is well to let heaven decide.91

88 89 90 91

need all the measurements, and we are not worthy of observing this commandment in accordance with all the legal requirements, because we lack the wisdom, due to our many sins” (Mishpat Kohen, n. 57 above, #91:172–73.) The impediment thus does not arise from a lack of formal knowledge regarding the detailed laws that comprise the commandment; its source is a deficiency in wisdom, which attests to a lack of suitable preparedness. N. 40 above. N. 44 above. See Tosafot on bEruvin 6b s.v. kan leahar bat kol and on bJebamot 14a s.v. rabi yehoshua; and Pnei Yehoshua on bBaba Metzia 59b. R. Kook, Etz Hadar (Jerusalem: 1985), §34, p. 73.

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In other words: the ‘not in heaven’ principle (invoked against R. Eliezer b. Hyrcanus), pertained to his attempt to use prophecy to change a majority ruling. But this is not the case where the law has yet to be decided. As long as the law is a matter of unresolved controversy, as in the matter at issue between the House of Shammai and the House of Hillel92 — a heavenly voice may intervene. Moreover, the House of Hillel were more numerous than the House of Shammai, whereas the latter were “a minority but sharper.” The decision uttered by the heavenly voice was in accord with the view of the affable and unassuming majority — the House of Hillel — even though the minority were sharper in their halakhic argumentation.93 In the oven of Akhnai case, however, the bat kol spoke against the majority, albeit in support of the senior scholar in the study hall. R. Joshua, who arose and insisted “it is not in heaven,” was seeking to forestall a future mishap, namely, a situation where an individual would seek to impose new laws on the majority by invoking a heavenly voice of one sort or another.94 We thus see that a heavenly voice cannot overrule clearly determined law; it has the power to decide the law only when there is an open and unresolved halakhic dispute. After all aspects of a legal issue have been thoroughly examined in formal halakhic deliberations, but before the sages have arrived at a firm decision about it — only within these limited parameters (as in the case of the House of Shammai/ House of Hillel controversy in question), is there room for prophecy,

92 Igrot n. 69 above, vol. 1, 124. 93 Etz Hadar, n. 91 above, 73–74, and cf. Rabbi Kook’s comments there vis-àvis the position of Rav Hai Gaon. If we accept the view of Safrai (S. Safrai, “Deciding the law at Yavne in accordance with the House of Hillel” (Hebrew), in The Era of the Temple and the Mishnah (Hebrew), (Jerusalem: 1994), part 2, 383–405), and, following him, Lifshitz (n. 3 above, 301), we can go even further and extend R. Kook’s argument (though he himself does not make this point) as follows. The bat kol does not decide the law but rather enables both of the opposed positions to survive as possible opinions that are part of the oral Torah. This situation seems to be a classic realization of R. Kook’s ‘unity of opposites’ principle; see Avi Sagi, A Study in The Meaning of Halakhic Discourse (Hebrew), (Tel Aviv: 1996) and Rosenak 2007, n. 5 above, ch. 3. 94 Etz Hadar, n. 91 above, 75–76. See also Zvi Kaplan, “On his halakhic path” (Hebrew), in I. Raphael (ed.), Rabbi A.I. Hakohen Kook (Hebrew), (Jerusalem: 1966), 71 and bibliography.

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the role of which is to move us from unresolved doubt as to the law to a clear resolution. R. Kook puts it as follows: If a specific point [of law] is known to have been in doubt, but it was forgotten how the doubt was resolved, in this case a prophet is empowered to inform us [of the law]. But if even the issue that was in doubt has been forgotten, this is not so. . . . As is stated in [tractate] Temura . . . in such cases, [the law] cannot be restored by prophecy.95

Resolution of the uncertainty by way of a heavenly voice does not produce new law; it merely anchors what is already known. Yes, there is a certain reliance on prophecy here, but its power is limited. R. Kook, then, makes limited use of all three models mentioned above. The language of ongoing prophecy, which integrates prophecy into the halakha, is found in his writings; he leaves room for prophetic ‘eruptions’ in the context of deliberations on how the law is to be decided, but such prophecy is heeded only subject to the rule that it cannot intervene to undo existing halakha, generating compartmentalized prophecy. He thus creates an inclusive synthesis that encompasses both polar positions on prophecy: he does not forgo making space for prophecy in the halakhic process, but protects himself against the slippery slope that threatens this enterprise, viz., erosion of the Torah in response to alleged prophetic eruptions that purport to teach a new Torah. It is a dialectic that preserves both positions. Thus far, we have considered prophecy that creates new law and/ or resolves existing disputes. As we will now see, however, this does not exhaust the role of prophecy in R. Kook’s teachings. Prophecy that Amends the Law to Meet the Needs of a Place and Time There is one area in which prophecy enjoys wide, even exclusive, freedom of action. I am referring, of course, to laws that pertain, not to situations known from the past, but to the future reality of redemption, such as the laws pertaining to the building of the Temple.96 They are unique in that they have not yet been the subject of halakhic deliberation, and obviously, as a matter of principle, they lack pertinent halakhic precedents (since the laws of the Third Temple will not

95 Ginzei Hareaya, ed. R. Ben-Zion Shapiro (Jerusalem: n.d.), 90. 96 See E. Schweid, The Land of Israel: National Home or Land of Destiny, trans. D. Greniman (Rutherford NJ: 1985).

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be identical to those of the First and Second Temples).97 And so, writes R. Kook, [regarding] the arrangements for the construction of the Temple . . . we have learned explicitly in a baraita . . . “[You shall bring your sacrifices] to the place that God shall choose” (Deut. 12:5) . . . [The choice shall be declared] by a prophet. . . . Should one wait for prophetic guidance [e.g., from a bat kol that comes forth on its own initiative]? [No; that is why] the verse continues “His habitation you shall seek and there you shall come” — seek, find, and afterwards a prophet will tell you.98 . . . The Torah here presents the novel teaching that the laws of the altar are given over to prophecy . . . and the same appears to be true with regard to everything having to do with the design and construction of the Temple. All this has been transmitted to the prophet, and he will also be able to expound [further laws about the Temple] from that which he will be apprised of by heaven through prophecy. And in no way does this fall under the principle that ‘these are the commandments [that have been given], henceforth no prophet is permitted to introduce anything new,’ nor under the principle ‘it is not in heaven.’99

A bat kol carries authority, then, when it does not contradict an established halakha — either because the halakhic corpus does not deal with the issue in question (as in the case of the laws of the Third Temple), or because the prophecy supports the majority view (as in the case where the view of the House of Hillel is endorsed). In any case, however, prophecy may not introduce new laws that contravene existing halakhic determinations or established teachings. In the unique circumstances where a heavenly voice is authoritative — the case of the laws of the Third Temple, for instance — crystallization of the law is dependent on the presence of prophecy that understands itself as a creative act that complements the writing of the Torah that has been given, as in the thought of R. Judah Halevi.100

97 See R. Eliezer Waldenberg, Responsa Tzitz Eliezer 10:5, §2–3. This issue is highly controversial; see, e.g., R. E. Segal, “The Temple obligation today” (Hebrew), in I. Warhaftig (ed.), Tehumin 12 (1991), 480–96; id., “Rabbi Kook’s opinion on building the Temple today” (Hebrew), Tehumin 11 (1990), 532–45, esp. n. 8*. 98 Sifre, Parshat Ree, 62:41. 99 Mishpat Kohen, n. 57 above, #92:175, col. b. 100 N. 39 above.

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Prophetic Halakha

This nuanced position receives a unique formulation in the teachings of R. Kook. He creates an almost technical translation of the notion of prophecy into the framework of the halakha, a translation that enables him to discern prophetic intervention at each step of the process of halakhic deliberation,101 while at the same time restricting prophecy to a very circumscribed realm. This position, reflecting the ‘ongoing prophecy’ model, diverges from positions that link prophecy to antinomian tendencies (particularly in the Zionist context, as we saw above).102 Various themes come to mind103 in categorizing this conservative, enduring, dialectical ‘prophetic halakha’: (1) The connection between the details of the halakha and its overall principles and purpose: According to R. Kook, a decisor experiencing ‘ongoing prophecy’ knows how to connect halakhic details to the halakhic principle that underlies them. It follows that he also knows how to connect the law to its purpose.104 (The prophetic dimension embodied in this position should be seen in light of the Vilna Gaon’s concept of “the covenant of the tongue105; as noted above, the

101 See Rosenak 2007, n. 5 above, and 1995, n. 53 above, 54–70. 102 See text above at nn. 21–24, and J. Garb, “The Chosen will become Herds”: Studies in Twentieth Century Kabbalah (Hebrew), (Jerusalem: 2005), 142–45. 103 For a more detailed treatment, see Rosenak 1995, n. 53 above, 54–70. 104 Of interest in this connection is R. Kook’s critique of Maimonides’ rationales for the commandments; see Arpilei Tohar (Jerusalem: 1983), 22; Igrot, n. 69 above, vol. 1, 241; Maamarei Hareaya, vol. 1, n. 86 above, 18–19. 105 The Vilna Gaon distinguished between the “covenant of the tongue” and the “covenant of nakedness.” The former, which demands continuous study, is the covenant of the Torah, incorporating all the details of the Torah as given to human intellection. It expresses an enduring blending of the Torah’s paternal and maternal attributes: we attain new insight into the Torah from the bounty that flows from the union of father and mother as the words of Torah are constantly renewed. (Here the Vilna Gaon’s view is akin to that of R. Kook.) By contrast, the “covenant of nakedness,” is less lofty. It finds expression in the fleeting union of the zeir anpin (the kabbalistic tiferet), in which halakha and commandment are to be found. It does not grasp the splendor in its entirely, dealing instead with contingent details; it has no innovation or bounty. See Biur Sefer Yetzira, 3a, 22b; J. Avivi, The Kabbalah of the Vilna Gaon (Hebrew), (Jerusalem: 1993), 53.

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Vilna Gaon was an important influence on R. Kook’s halakhic thought.106) (2) Particularism and universalism: The prophetic halakhist, according to R. Kook, is capable of discerning the dialectical link between Jewish particularism and the universal. A particular culture (such as Jewish law and thought) differs qualitatively from the culture of the nations of the world, and this difference cannot be bridged.107 Nevertheless, it is not cut off from the overall culture, but sustains and enriches it.108 Moreover, halakhic reasoning must recognize the reciprocal nature of the relationship: not only is the universal dependent on the particular, but the converse is also true: the universal also enriches the particular.109 (3) Rejection of the exclusive dominance of pilpul and a return to “the thought of the early sages”: Prophetic halakha is called upon to return to the original halakhic sources.110 This step backward is also a return — literally — to the sources of revelation.111 In proposing this, R. Kook invalidates the casuistic approach to studying the law (pilpul),112 and here, too, we should note the parallels in the thinking of the Maharal113 and the Vilna Gaon.114 Union with the ‘overflowing bounty’ (shefa) has an almost mechanical aspect, necessitating a return to the “ancient” and “original.” In other words: halakhic thinking must be reconnected to the Babylonian and Jerusalem Talmuds, the Mishnah, and Scripture.115 106 See nn. 83–84 above. The question of the degree to which Kabbalah and the Vilna Gaon’s concept of halakha influenced R. Kook merits further study. See also Rosenak 2007, n. 5 above, ch. 7, text at nn. 38–57. 107 Eder Hayakar (Jerusalem: 1967), 122–23, 136; Orot Hatora (Jerusalem: 1985), ch. 10, §11. 108 Eder Hayakar, 123; Igrot, n. 69 above, vol. 1, 45–46. 109 Ein Aya, Berakhot, 1 (Jerusalem: 1987), §83, 152, cols. a–b. 110 Igrot, n. 69 above, vol. 1, 337. 111 Ibid., 113 s.v. sod hapilpul. 112 “It is proper . . . now to clear an old-new path . . . not by way of pilpul and searching out details, but by general illumination . . . and this is the way of the early sages” (ibid., 337). See Rosenak 2007, n. 5 above, ch. 3, and see also Lifshitz 1991/1993, n. 3 above, 322–24. 113 Maharal, Sefer Netivot Olam, 1, 71, Netiv Hatora, ch. 16. 114 N. 105 above. 115 See “Halakha Vemaase” in Maamarei Hareaya, vol. 2, n. 86 above, 524–36, on the permissibility of Israel’s return to the Land and acquisition of

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(4) Integrated study of the Babylonian and Jerusalem Talmuds in the Torah study curriculum in Eretz Yisrael: Some halakhic works116 and academic studies of R. Kook117 assume that the prophetic ‘Torah of the land of Israel’ entails a return to learning the law from the Jerusalem Talmud, and rejection of the Babylonian Talmud.118 But I would argue that R. Kook’s position on this is different. Prophetic halakha, as suggested by the doctrine of ‘the unity of opposites’119 — and by the teachings of the Vilna Gaon120 — is, in fact, characterized by a conjoining of “the Babylonian Talmud with the Jerusalem Talmud, with parallel treatment of each and every sugya, and a thorough examination characterized by depth, breadth, and consistency with the ancient sources.”121

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property there, where R. Kook quotes extensively from the entire Tanakh. The innovativeness of his doing so becomes clear in light of Lifshitz 1991/1993, n. 3 above, 295–96. In contrast to Sefardic yeshivas, where Tanakh was part of the curriculum, the general practice in Ashkenazic yeshivas (with the exception of Volozhin) was that the Bible was not studied formally. See M. Breuer, “The Bible in the yeshiva curriculum” (Hebrew), in D. Rappel (ed.), Studies in Scripture and Education (Hebrew), (Jerusalem: 1996), 223–35. bBaba Batra 158b, s.v. avira deeretz yisrael; bBaba Metzia 85a; Yalkut Shimoni, Zechariah 578 s.v. hamehablim ze laze; bSanhedrin 24a. See also Y. Cherlow, The Torah of the Land of Israel in light of the Teachings of Rabbi Kook (Hispin, Israel: 1998), 86. See N. Guttel, “The Torah of the land of Israel: the Jerusalem Talmud in the teachings of Rabbi Kook” (Hebrew), in I. Warhaftig (ed.), Yeshuot Uzo — Memorial Volume for R. Uzi Kalcheim (Hebrew), (Jerusalem: 1996), 390–412. The Babylonian Talmud is seen as an obscure, exilic Torah; see bBaba Metzia 85a. And see n. 116 above. Taking the Babylonian and Jerusalem Talmuds to have polarly opposed orientations, the former focusing on halakha and particular details, the latter on Aggada and general, universal principles; see Rosenak 1995, n. 53 above, 37–45, 63–65. See Vilna Gaon, Tikunei Zohar, Tikun 21, 90, s.v. deihi riv. See also Moshe Z. Neriya, Rabbi Kook’s Discourses and the Lights of His Teaching (Hebrew), (Bnei Brak: 1993), 205, and Moadei Hareaya (Bnei Brak: 1991), 43; Otzrot Hareaya, vol. 4, ed. Moshe Tzuriel (Tel Aviv: 1988), 116. Cf. Orot Hatora, n. 107 above, ch. 9, §3; Igrot, n. 69 above, vol. 1, 112. Moadei Hareaya, n. 120 above, 43. See also Orot Hakodesh, n. 56 above, 4, 503 s.v. vetahat asher bazman. For a more detailed treatment, see Rosenak 2007, n. 5 above, ch 3.

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(5) Acceptance of, and faithfulness to, the words of the ancients: Paradoxically, and in contrast to the prophetic sentiments expressed in the religious,122 Enlightenment, and Zionist123 movements we discussed earlier in this article, R. Kook’s espousal of a return to the sources of the past is characterized by his issuing halakhic rulings in the spirit — literally — of “acceptance.”124 This acceptance is understood as wisdom vital to any halakhic innovation, which is tied to the holy spirit and prophecy.125 (Here, too, the connection between R. Kook’s position and that of the Vilna Gaon calls for careful study.126) (6) Drawn-out, cumbersome thought vs. direct, intuitive thought: The Vilna Gaon127 and the Maharal128 adduce the House of Hillel’s 122 N. 2 above. 123 See text above at nn. 21–23. 124 Orot Hatora, n. 107 above, ch. 9, §13; R. Kook, Daat Kohen (Jerusalem: 1993), #83, 184 col. b, #132, 147; Mitzvot Reaya (Jerusalem: 1985), Hol hamoed, sec. 12, 166. 125 Daat Kohen, n. 124 above, # 45, 105 col. b: “A dearth of Kabbalah . . . is like a dearth of wisdom.” See Rosenak 2007, n. 5 above. 126 See R. Haim of Volozhin’s introduction to the Vilna Gaon’s Commentary on Safra Detzniuta, n. 83 above, I–III. See also Neriya 1993, n. 120 above, 200; Asher Hakohen Ashkenazi, Orhot Hayim, Keter Rosh (Jerusalem: 1819), §54, cited in I. Etkes, Lithuania in Jerusalem (Hebrew), (Jerusalem: 1991), 41–42. On the Maharal’s position on these ideas, see Drashot Hamaharal Al Hatora (Jerusalem: 1959), 62–65. 127 Otzrot Hareaya, vol. 4, n. 121 above, 116 s.v. derekh hayeshara vehapshuta. See also Neriya 1993, n. 120 above, ch. 19 and p. 199. In his introduction to SA, OH, the Vilna Gaon demanded that his students “engage in straightforward analysis, abhor extended questioning, acknowledge the truth even from the mouths of babes, and crave only logic, never going against the truth.” See also R. Shohet, “The Vilna Gaon’s attitude to pilpul and the problem of the oral tradition” (Hebrew), in Y. Shaviv (ed.), Shanah be-Shanah (Jerusalem: 1988), 337–48. 128 The Maharal puts it thus: For the logically incisive rationale offered by the House of Shammai (who were very sharp) was as weighty as the rationale given by the House of Hillel, but [the latter] were diffident and not overbearing, etc., and of them Scripture says ‘they that love Him are as the sun when it goes forth in its might’ (Judges 5:31). And we have elsewhere explained at length that this quality is the quality of consummate plainness, and their words are therefore to be the halakha, for halakha is simple reason, and reason is drawn to its own quality, and when it is diffident, it has the quality of plainness and it is drawn to simple reason, which is, when you understand words of wisdom, worthy of

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simple, direct thought as an explanation for the bat kol’s ruling in their favor. Similarly, R. Kook suggests that prophetic halakha sees verbosity as an indicator of thought that lacks prophecy.129 In the land of Israel, the “site of prophecy,” it is appropriate to institute laws “that have little need for lengthy explanations.”130 And this quality sheds light on the distinction between the Babylonian and Jerusalem Talmuds,131 as well as that between scholars in the land of Israel and those in the Diaspora.132 (7) Direct reasoning: There is a difference between the usual form of simple reasoning, which is related to intellectual prowess and expertise in pilpul, practiced by the “judge,”133 and associated with the Babylonian tradition,134 and the direct reasoning that emerges from the wisdom of the atmosphere of the land of Israel.135 The latter, in R. Kook’s view, calls for repeated study of the law,136 and here too, there are parallels to the Vilna Gaon’s method of study.137

being the halakha. Therefore, the halakha is in accordance with the view of the House of Hillel, for its words are entirely allied with simple reason. (Maharal, Beer Hagola, 22)

129 130 131 132 133 134 135

136 137

On the connection between this idea and R. Kook’s notion of prophetic halakha; see Rosenak 2007, n. 5 above. Igrot, n. 69 above, vol. 1, 124. Ibid., 123. See also S.Y. Zevin, Ishim Veshitot (Jerusalem: 1957), 234; Klein 1986, n. 66 above, 156. Rosenak 2007, n. 5 above, ch. 3. Igrot, n. 69 above, vol. 1, 124. See also A. Rosenak, “Education and metahalakha in the teachings of Rabbi Kook” (Hebrew), Daat 46 (2001), 99–123. Who, unlike the prophet, is required to compare “word for word,” see Igrot, n. 69 above, vol. 1, 113. E.g., he mentions “the sort of arguments understood by all, that are the basis of the Babylonian Talmud” (ibid., 126). Ibid., 125. This is the way of “the spiritual inquirers into the mode of studying the law . . . who thoroughly studied the words of the Kabbalah . . . and when they had to clarify some doubtful practical matter, clarified it in the most succinct way, in accordance with the fundamentals they had already acquired . . . for the straightening of the mind that comes from higher enlightenment . . . straightens reason much more than engagement with the details of realia” (Orot Hatora, n. 107 above, ch. 9, §13). Ibid. s.v. tzerikhim lehiyot giborim; cf. Igrot, n. 69 above, vol. 1, 112. See nn. 126–27 above.

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VI From Theory to Halakhic Decision-Making These meta-halakhic categories embodying R. Kook’s ongoing prophecy and prophetic halakha are reflected in a wide array of his halakhic responsa and normative rulings. A detailed presentation of examples cannot be undertaken here, and I will limit myself here to two classic issues where the intervention of prophetic modalities discussed above and the balancing of law and the various modes of prophecy (ongoing, compartmentalized, eruptive) are exemplified. The issue of autopsies has been much discussed both in general138 and in connection with R. Kook’s views139; here, I address it only insofar as it pertains to our subject. The establishment of a sovereign Jewish state necessitated, among many other things, regulation of the conduct of the medical profession. R. Jacob Yehiel Weinberg (1885–1966), for example, emphasized that “the question of autopsies is a political question . . . a question for the State . . . a question for the entire nation . . . and a question pertaining to the State’s standing in the world at large.” It was thus necessary, in his view, to demonstrate that “our Torah is a Torah of life.”140 R. Kook, in contrast, was unconcerned about the negative impression that might be made were the use of Jewish corpses for scientific purposes forbidden. In his view, since the prohibition against autopsies is well established and long standing,141

138 Y. Leibowitz, “Autopsies and religious faith” (Hebrew), in Between Science and Philosophy (Hebrew), (Jerusalem: 1987), 301–305. And see N. Zohar, “On disregarding the reasons: a study of Leibowitz’s discussion of autopsies” (Hebrew), in A. Sagi (ed.), Yishayahu Leibowitz: His World and Philosophy (Hebrew), (Jerusalem: 1995), 61–73; Y. Benbaji, “A clash of conceptual frameworks: R. Uziel on autopsies” (Hebrew), in A. Sagi et al. (eds.), Judaism: A Dialogue between Cultures (Hebrew), (Jerusalem: 1999): 201–18; K. Kahana, “Autopsies in Jewish law: a bibliographic review” (Hebrew), Assia 10 (1985), 54–89. 139 Ben-Artzi 2003, n. 5 above, 276–80; Guttel 2001, n. 5 above, 78–80: 221; Rosenak 2007, n. 5 above, ch. 4. 140 R. Jacob Jehiel Weinberg, “Autopsies in the State of Israel” (Hebrew), Tehumin 12 (1991), 383–84. R. Eliezer Berkowitz took a similarly lenient position; see his “The halakha on autopsies” (Hebrew), Sinai 69 (1971), 45. 141 The halakhic deliberations over autopsies generally tend to forbid them, though on diverse grounds and with varied degrees of severity. See R. Ezekiel Landau (1713–1793), Responsa Noda Biyehuda, 2nd edition, YD 210 s.v. maase sheeira sham; Y.A. Herzog, Psakim Ukhtavim (Jerusalem: 1989), YD 150–155 (permitting); Berkowitz, n. 140 above, 45–66; R. Moses

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there was no need to consider the matter at length. His halakhic responsum on the matter is brief, and follows directly from the concepts discussed above: In my opinion . . . as the prohibition against mutilating a corpse is one of the prohibitions unique to Jews, for the Holy One, blessed be He, commanded us regarding the sanctity of the body, just as he warned us against eating forbidden foods142 — not because of the nature of the body, but because of Israel’s unique holiness, for God, may He be blessed, called them a holy nation. But just as non-Jews are not meticulous about what they eat except due to natural [limitations], so, too, they need not be meticulous about the mutilation of a corpse for some natural purpose such as medicine. Therefore we must pay full price to purchase Gentile corpses for scientific purposes. And there is no need to be concerned about incurring the hatred of Gentiles, for the upright among them will understand that, when all is said and done, this nation [of Israel], which was chosen to bring the holy light of knowledge of God into the world, and suffers immeasurably on that account, is deserving as well of some privileges of sanctity. And the corrupt among them will not stop slandering us even if we dissect Jewish corpses. And the proposal regarding selling or donating one’s body while still alive is of no avail, since the prohibition against mutilating the dead is derived from the image of God in man, which is made clearer in Israel due to the sanctity of the Torah and partaking of a greater share in the supernal.143

Even if these remarks contain nothing that is new from a halakhic perspective,144 they are consistent with the principles of prophetic law or ongoing prophecy as R. Kook defined them.145 His response links a concrete and specific halakhic ruling with the halakhic and conceptual principle from which he derives the law. Abstract principles such as ‘the distinctiveness of Israel,’ ‘the sanctity of Israel’146 and ‘the image of

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Feinstein, Responsa Igrot Moshe, YD vol. 2 (NY: 1960), 151 s.v. nitbaer delehitlamed. See also R. Shlomo Goren, Meorot 2 (1980), 5–17; Guttel 2001, n. 5 above. See Ein Aya, n. 109 above, vol. 1, §99, 40. Daat Kohen, n. 124 above, #199, 383, col. a. For a review of the various positions, see A. Steinberg, Encyclopedia of Medical Halakha (Hebrew), (Jerusalem: 1995), vol. 4, cols. 565–66, 577–78. For a discussion of this issue using the interpretive method I arrive at via examination of R. Kook’s meta-halakha, see Rosenak 2007, n. 5 above, ch. 1. Cf. R. Kook, Shmona Kevatzim [Eight Files, henceforth EF], from MS, File 3 (Hebron-Kiryat Arba and Jerusalem: 1999), 273, sec. 100; Orot, n. 25

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God in man’ are the explicit subtext of his responsum, whereby he connects norm to inner essences. R. Kook sees himself as preserving the tradition of the early sages, and he formulates a halakhic responsum (which appears in a volume of responsa) that is brief and simple. He also, at least on the surface, overcomes the negative impression that might be produced by his ruling by invoking the particularism– universalism principle outlined above. He reasons that inasmuch as Israel and the other nations differ with respect to their holiness (a difference expressed through the divergent norms they adhere to), it is only natural to turn to the other nations for corpses to be used for scientific purposes,147 and even to expect them to understand why we do so. Thus this particularistic ‘segregation’ will ultimately be acknowledged by the nations of the world. Israel’s ability to contribute to the universal depends on its being preserved as a particular, as an independent entity.148 The task of prophetic halakha is to maintain the borders of the particular, for blurring these borders is tantamount to harming the universal. Adopting Gentile ways, in R. Kook’s view, is comparable to transgressing the prohibition against forbidden mixtures (kilayim) [such as garments of linen and wool fibers].149

above, 80; EF, File 2, 6, sec. 294–95; Arpilei Tohar, n. 104 above, 2–3; Orot Hakodesh, n. 56 above, vol. 2, 290–91; Olat Reaya 1 n. 56 above, 39; Igrot, n. 69 above, vol. 1, 58 [1917]; Maamarei Hareaya, n. 86 above, vols. 1–2, 94–99, 234–35, 404–411. 147 At the end of his ruling to permit autopsies, Berkowitz mounts a veiled polemic against R. Kook’s view: “No distinction should be drawn between Jewish and Gentile corpses. What is permitted for medical reasons is permitted even with respect to Jewish corpses, and what is forbidden is forbidden even for Gentile corpses. Especially in our times, it is forbidden not only to mention in writing but even to consider such as a distinction. It should be neither written nor uttered, for there is no greater desecration of God’s name than this” (Berkowitz 1971, n. 140 above, 66). 148 Eder Hayakar, n. 107 above, 33–34, s.v. vedavar ze ein kol haolam; “the world and its inhabitants await the light of Israel . . .” (EF, n. 146 above, File 5, 32, sec. 201 / Orot, n. 25 above, 22). For an opposing view, see Weinberg 1991, n. 140 above, 383–84. 149 Otzrot Hareaya, n. 120 above, vol. 4, 33, s.v. am yisrael bifratiyut. See also Daat Kohen, n. 124 above, #383. He explains the harm in adopting Gentile ways by adducing the principle that “the hearts and minds, soul and spirit, of the various nations and diverse tongues, are not yet able to adapt themselves to the eternal sanctity.”

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The same spirit suffuses his treatment, in various contexts, of the issue of women’s suffrage.150 He entered the debate in 1920, and his position cost him dearly in terms of his popularity within the Zionist Yishuv151 among both the secular152 and the religious.153 As is widely known, R. Kook forbade women to vote or to run for office,154 and this ruling clearly reveals his meta-halakhic approach at work, along with its anti-modern consequences.155 In contrast to the popular perception of a prophetic intuition, we see here, once again, not a breach of the 150 On the dispute over this issue from a sociological and historical perspective, see Friedman 1978, n. 31 above, 146–84; Y. Kohen, “The dispute between rabbis Kook and Uziel over granting women the right to vote” (Hebrew), in D. Rappel (ed.), The Pearl: The Jewish Woman in Society, Family and Education (Hebrew), (Jerusalem: 1989), 51–61. See also Ben-Artzi 2003, n. 5 above, 255–63. 151 The Hapoel Hatzair newspaper responded as follows: “If . . . Kook . . . in his great humbleness, wants to be the head and luminary of the Diaspora, nothing less, he can have it, who would want to stop him? . . . And among us, he can always occupy himself with pointless philosophy, and can count on finding a circle of idlers who will savor his great wisdom and profundity. But he should stay clear of introducing his wisdom and profundity into our lives, to our detriment or to impede the Yishuv,” quoted in D. Canaani, The Second Aliyah and its Attitude to Religion and Tradition (Hebrew), (Tel Aviv: 1976), 119. 152 Jabotinsky attacked R. Kook in the newspaper Hadashot Haaretz (27 October 1919), calling him “an extern with a half-baked education.” The episode led to a breach between the two, which was repaired only upon R. Kook’s vigorous defense of those suspected of murdering Arlosoroff. See Otzrot Hareaya n. 120 above, vol. 2, n. 120 above, 1080–81. 153 R. J.L. Fishman (Maimon) put it this way: “regarding what is [ritually] forbidden and what is permitted . . . we should ask the rabbis, but regarding life in the marketplace, they must ask us” (Doar Hayom, 19 April 1920). See also the open letter from R. J. Radler-Feldman (Rabbi Benjamin) to R. Kook, Doar Hayom (18 May 1920); Kohen 1989, n. 150 above, 54. 154 “The clause regarding women’s participation in elections, as adopted by the Provisional Committee, is ‘contrary to the religion of Moses and Israel and to the spirit of the nation in general.’ As long as that innovation is not repealed, no responsible Jew should participate in the elected assembly” (Otzrot Hareaya, n. 120 above, vol. 2, 1084). And see Igrot, 4, n. 69 above, 10–11, 14–15, 50–53. 155 An expression of his anti-modern and critical stance can be found in Igrot, n. 69 above, vol. 3, 157. How this stance meshes with his overall Zionism calls for separate consideration, see my Rabbi A.I.H. Kook: An Intellectual Biography (Hebrew), (Jerusalem: 2006).

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halakhic system or accepted practices, but their preservation, though by way of the prophetic categories described earlier. From the usual Orthodox perspective, R. Kook’s words appear to be no more than an expression of the principle that ‘the new is forbidden by the Torah,’ but from R. Kook’s own perspective, they embody a dialectical stance stemming from an understanding of Israel’s distinctiveness and the distinctiveness of its redemption. Women’s suffrage, he argues, is foreign to “the spirit of Israel” and its customs156; it therefore threatens the very basis of the nation’s existence. From the perspective of the prophetic spirit,157 the preservation of early customs from the nation’s past158 is essential if the ideals implicit in the constitutive notion of the people of Israel are to be realized.159 Here too we see what he regards as the dialectic between particularism and universalism. The institution of the Jewish family and its sanctity are “the foundation of the Jewish woman’s happiness and honor,” in contrast to the misery of “the masses of women among the nations.”160 The demand for women’s suffrage “flows from,” and “brings about” the rot and ruination of the polity, the nation, and the family. The particular (or “Israelite”) uniqueness of the Jewish family structure should not be exchanged for universal practices “when they themselves [i.e., the nations of the world] . . . are confused.”161 Such an exchange would

156 See bJebamot 65b, s.v. ish darko likhbosh and Sifre Deuteronomy 157:15 s.v. som tasim; Maimonides, Code, Laws concerning Kings 1:5; R. Y. Konevitz, Responsa Divrei Yosef (NY: 1947), #17, s.v. ein lemanot isha. Contra, see R. Uziel, Responsa Piskei Uziel Besheeilot Hazman, #44. For a bibliography of the rabbinical writings prohibiting women’s suffrage, see Friedman 1978, n. 31 above, 146 n. 1, 146–84; Kohen 1989, n. 150 above, 51–62; A. Shapiro and Y. Kohen, Woman in Changing Times (Hebrew), (Tel Aviv: 1994). 157 Maamarei Hareaya, n. 86 above, vol. 1, 191, s.v. im ein anu neviim. 158 As is fitting for prophetic halakha, which adduces the support of early sources, he grounds the prohibition in the ancient sources, see ibid. s.v. mimekor hakol haehad. The ultra-Orthodox also prohibited women’s suffrage. 159 In the context of his discussion of women’s suffrage, he says that the normative details express “the spirit of the entire nation in its most characteristic and pure form” (ibid.). See also Otzrot Hareaya, n. 120 above, vol. 4, 123, s.v. hineni hoshev; Igrot, n. 69 above, vol. 4, 11. 160 Otzrot Hareaya, n. 120 above, vol. 4, 192. 161 Letter to the Mizrachi Organization, ibid. 123, s.v. anu tzoadim (“We are not striding toward our redemption so as to be disciples of European culture”).

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harm not only the Jewish woman162 and the Zionist enterprise,163 but the entire world.164 These examples are just a sampling of a broader pattern165: they reflect ongoing prophecy, yet the ancient halakha is preserved from novel extra-halakhic, cultural, ‘ethical’ and Zionist tendencies that threaten to erupt and alter the halakha. At first glance, they seem to present a unique synthesis whereby ongoing prophecy protects the halakha and its boundaries against external disruptions that threaten to undermine them. If so, however, what is the role of eruptive prophecy in R. Kook’s writings? VII Antinomian Prophecy Alongside this dialectic (prophetic–conservative) stance, R. Kook, recognizing that Zionism required the renewal of halakhic creativity in the spirit of Ahad Haam, adopted a-nomic and even antinomian166 positions consistent with the ‘eruptive prophecy’ model. While his ‘prophetic halakha’ doctrine did ultimately produce a dialectical synthesis of the various models, the motives underlying R. Kook’s approach to the halakha cannot be understood without recognizing the anti-normative element that is presence in his thought. Signs of this disposition can be found in his previously suppressed journals,167 where his prophetic feelings are revealed. The disclosure of Eight Files some years ago gave us a glimpse of

162 It would be a waiver of “the Jewish woman’s original and powerful . . . moral and natural inner rights, and her holy, noble, and exalted status” (Maamarei Hareaya, n. 86 above, vol. 1, 193). 163 “The primary basis for overall national political life, which we all want to establish now” (ibid.). 164 Ibid. 165 R. Kook’s treatment of agriculture during the Sabbatical year, reliance on Jewish labor, dairying on the Sabbath, Reform Judaism, and so on, can also be understood in terms of these principles; see Rosenak 2007, n. 5 above, ch. 4. 166 See J. Garb, “Prophecy, halakha, and antinomianism in Eight Files by R. A.I. Hakohen Kook” (Hebrew), in Z. Gries, H. Kreisel and B. Hos (eds.), Shefa Tal: Studies in Jewish Thought and Culture Presented to Bracha Sack (Beer Sheva: 2004), 267–77. 167 See A. Rosenak, “Who’s afraid of Rav Kook’s hidden treatises?” (Hebrew), Tarbiz 69 (2000), 257–91.

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the sensations of prophecy that R. Kook experienced, feelings whose force clearly alarmed him: And I listened and heard from the depths of my soul, from the passions of my heart, the voice of my Master calling. And I was intensely fearful. [The editor of Hadarav censored the text from this point, p. 90.] Have I stooped so low as to become a false prophet, saying that God sent me, though the word of my Master was not revealed to me? I heard the sound of my soul roaring [the Nazir’s censorship ends here]. Prophetic buds are springing up, and the sons of prophets are awakening.168

R. Kook tells of sensing flashes of light before his eyes169 and a divine voice speaking from within him, urging him to create, to write, and to speak out.170 He reveals himself to be an expansive soul, unable to suppress the outburst of creativity swelling within him,171 and he describes the thirst for God, the sense of nothingness,172 the joy of the encounter and the torment of the moments of turning away and withdrawal.173 Such a spiritual level necessarily entails sensations of burden and spiritual exhaustion,174 as well as sensations of being above the angels,175 and of confidence in the truth implanted within176 — even while recognizing the gap between the spirit that is present inside, and the ability to express it.177 R. Kook struggles with the nature of the studies it is fitting for one to immerse himself in, and describes distress in the face of even the ordinary moral and halakhic act.178 He expresses his torment over the “measured meticulousness” in his halakhic and public life: Sometimes one is overcome by lofty ideas, which transcend all fixed logic, and a fortiori (kal vahomer) any practical established halakha, and his heart yearns to take flight. On no account is he capable of confining his soul to

168 Orot Hakodesh vol. 1, n. 56 above, 157; EF, n. 146 above, File 4, 137, sec. 17. 169 EF, File 3, 82, sec. 208. 170 EF, File 6, 37, sec. 105; File 6, 37, sec. 106. Cf. R. Kook, Hadarav: Perakim Ishiyim, ed. Ron Sarid (Mevaseret Zion, Israel: 1998), 60. 171 EF, File 1, 106, sec. 295; File 3, 105–106, sec. 291. 172 “I ride on the clouds [of truth], I am completely consumed within truth” — Hadarav, n. 170 above, 43 / EF, File 3, 102, sec. 280. 173 EF, File 6, 26, sec. 72. 174 EF, File 1, 104, sec. 283; File 3, 97, sec. 259; Hadarav, n. 170 above, 95. 175 EF, File 1, 168, sec. 524; File 3, 90, sec. 236. 176 EF, File 3, 90, sec. 235. 177 EF, File 8, 268, sec. 83; File 4, 175, sec. 115 (also in a letter to Hillel Zeitlin). 178 See Hadarav, n. 170 above, 49 / EF, File 3, 102, sec. 279.

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prescribed studies. He must therefore set loose his spirit to wander in accordance with its inclination. Let him seek the Lord wherever his soul, hovering above the mighty waters, leads him. . . . It is impossible for such a spirit to encapsulate, order and limit itself. It is impossible to burden it with a measured meticulousness, except to the degree to which his soul finds it possible to come to terms with practical existence and the circumstances of life, which demand their role and cannot relinquish themselves altogether, even for the sake of the highest claims of supernal spirituality.179

His distaste for social discipline is manifest. He describes the submission of the “tzadik” (literally, a righteous person, but used to refer to a spiritually elevated person, often in a Hasidic context) to social norms as “immeasurable pain to the soul,”180 which will ultimately impede not only the tzadik’s self-realization, but the community as a whole. R. Kook acknowledges that “it is very difficult to tolerate society, the encounter with people whose entire being is absorbed in a wholly different world. The individual who is immersed in exalted spiritual processes, in high moral aspirations, has no contact with it.”181 It is noteworthy that the figure of the prophetic tzadik — the “holy one of silence,” in effect reflecting R. Kook’s own image — is parallel, if not identical, to the image of the “souls of chaos” that appear in his writings. The reference here is to the spirit of the secular idealists, who “desire a pleasing and good order, solid and mighty . . . which has no basis or example in the real world.” To attain that order, they must demolish “that which is built according to the measure of the world.”182 Both inclinations — the inclination to demolish and the inclination to build — are grounded in the good. And let there be no doubt: R. Kook’s words go well beyond the limits of Orthodoxy: 179 EF, File 3, 59, sec. 151. 180 EF, File 1, 212, sec. 665. 181 EF, File 3, 112, sec. 315. See also File 3, 113–14, sec. 318; File 4, 153–54, sec. 67; File 8, 281, sec. 122. Note the paragraph: “Who can know the depth of my sorrow; who can fathom it! Here I am, imprisoned in straits upon straits, within numerous different limitations; but my spirit yearns for exalted expanses. My soul thirsts for God. The light of divine emanation is the life of my spirit, a great faith in God, with no natural, logical, conventional or ethical impediment, is the joy of my life. Anything that is limited is profane in comparison to the supernal holiness I seek. I am lovesick. How difficult it is for me to study; how difficult to accustom myself to details” (File 3, 86, sec. 222 / Hadarav, n. 170 above, 50). See also File 6, 35, sec. 98; Hadarav, 51. 182 Orot, n. 25 above, 122.

154

AVINOAM ROSENAK The souls of chaos [i.e., those that demolish] are higher than the souls of repair [which preserve existing sanctity]. They are very great. They demand much from existence, more than their vessels can tolerate.

Those who demolish the holy are greater than those who strive to preserve it. Furthermore: “Whatever is limited, defined, and arranged [in the manner in which culture is adduced and constructed within the ordinary religious establishment] cannot be borne [by the souls of chaos].”183 Imprisoning souls of chaos within the rules of halakha “denies them the ability to expand without limit”; accordingly, “they fall into grief, despair and anger, and through rage, into wickedness, malice, degradation, repulsiveness, abomination, destructiveness, and all manner of evil.” These personalities, these “principled evildoers, sinners out of rebellion rather than lust, have very elevated souls” and draw their strength from “the lights of chaos.” These souls “chose destruction, and destroy they do,” but the source [of their deeds] is in the holiness that imparts life.184 It is these sinful and chaotic figures who herald and advance “the dawning moments of the redemption.” They are the key, according to R. Kook, to explaining “the mysteries of the Torah with complete revelation.”185 The secular public, of which R. Kook is speaking here, certainly does not see itself as God’s messenger. Nevertheless, R. Kook distinguishes between “aware” and “unaware” in explaining the consciousness of the secular Zionist pioneer.186 The processes of shaking off the world of Diaspora Judaism, of withdrawal and apostasy, are understood by R. Kook as a profound course of religious searching.187 In other words, we have here the response of the members of the new Yishuv to the prophetic voices ringing in their ears — though they are completely unaware of these voices. Those engaged in the Zionist enterprise in its entirety, and certainly those in the vanguard (the members of the new Yishuv) are prophets in spite of themselves; and completely unaware of the fact that they are heavenly emissaries. “There are those who simply do not know their worth and their

183 184 185 186

Ibid. Ibid. R. Kook, Orot Hatora, n. 107 above, 32. See A. Ravitzky, “Messianism, Zionism and the future of Israel” (Hebrew), in A. Hareven (ed.), Toward the Twenty-First Century (Hebrew), (Jerusalem: 1984), 148–50; idem 1996, n. 20 above. 187 Orot, n. 25 above, 63; see also Ravitzky 1996, n. 20 above.

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essence, with regard to their heavenly providential role. They are called by name, but do not know who is calling them”188 — just as the young prophet Samuel in the house of Eli the priest was called by God but ran to Eli, thinking it was Eli who had summoned him. But this state of affairs, R. Kook believes, cannot last long: “the conclusion of this awful hiding will be the mightiest and most eternal revelation.”189 All this and more: these prophetic voices are more powerful than the world of the halakha administered at the time by members of the old Yishuv. R. Kook offers the following description of the encounter between the people of the Orthodox old Yishuv and the insolence of the new Yishuv, whose members demand betterment of the world without any awareness of what stands behind the process: “Occasionally there is a need to transgress something in the Torah, but the generation lacks anyone who knows how to show the way.”190 In other words, the contemporary generation may be called upon to act in a manner inconsistent with what appears to be written in the Torah, and the rabbinate is incapable of showing what should truly be done. In such a case, “the matter is achieved through upheaval,” but this need not be the case, says R. Kook. When “prophecy is imbued in Israel, it is possible to remedy such a situation through an exigency ruling (horaat shaa), in which case it is all done openly, as something permitted and commanded.”191 That would have been the natural way to proceed, with law being created for a changing world that demanded innovations. Prophetic halakha should have developed and found solutions through the efforts of its sages, who ought to have been trained in this dynamic. But “the blocking of the light of prophecy [within the halakhic establishment] resulted in this remediation (tikun) taking place through a breach [i.e., the abandoning of commandments and outright violation of the halakha], which pains the heart due to the way things appear from the outside.” In other words, one who sees the non-halakhic process simplistically will argue that the steps being taken are incorrect and improper, for we are experiencing abandonment of the Torah before our very eyes. But, R. Kook argues, at root, this abandonment is prophetic, as it supersedes the blocking of prophetic light that had prevented the rabbinate from acting appropriately. 188 189 190 191

Maamarei Hareaya, n. 86 above, vol. 1, 171. Ibid. Arpilei Tohar (Jaffa: 1914 [suppressed edition]), 13. Ibid.

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Accordingly, an internal understanding of what was occurring, in terms of the truth, would make such an observer happy.192 It turns out, then, that there are exigency rulings brought about by a prophetic force that overcomes and obscures the existing halakha, and those who champion this path are unaware of the prophetic powers deep within them. R. Kook ascribes these powers to individuals,193 but his principal innovation is in ascribing prophetic capacities to an entire generation, with all its outbreaks of radicalism and new modes of conduct. This innovation is an expression of his historiosophic–messianic approach to Zionism and the social and cultural movements it embraced.194 VIII Conclusion We have seen that R. Kook’s writings encompass polar opposites: he succeeded in conveying both the necessity for prophetic intervention in halakhic deliberation, and rejection of such intervention. The great defender of the antinomian revolution, he also engineered the dam that sought to close it off or at least confine it within the bounds of the classic halakhic discourse. His meta-halakhic teachings sought a dialectical resolution of these opposed objectives, but the ensuing moderate position necessitated justifying the “souls of chaos,” with their anti-halakhic, messianic and prophetic voices. It should not surprise us, therefore, that R. Kook tried to find a conservative halakhic translation for the concepts associated with prophecy, harnessing in this endeavor his own intimate experience of antinomian prophetic sensations. Turning halakha and Torah into ‘ongoing prophecy,’ R. Kook shaped them in such a way that they could still be open to new heavenly voices — albeit within clearly demarcated halakhic parameters. This compromise may appear to be dry and lacking in vitality, but it was reached by someone who, in the same breath, under-

192 Ibid. 193 To what extent can these ideas be found before R. Kook? And how do his expressions of these ideas differ from those that may have preceded him? These questions cannot be examined here, but see, e.g., Responsa Avnei Nezer, YD #447, s.v nire li. 194 S. Avineri, Varieties of Zionist Thought (Hebrew), (Tel Aviv: 1980), 216–26; Ravitzky 1996, n. 20 above.

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standing the distress motivating those who broke through the confines of the law, insisted on openness to radical manifestations of prophecy. Life, confronting this contradiction, reflects the ‘unity of opposites’ not only as theory, but also as experience, and as meta-halakhic doctrine that seeks to translate itself into actual halakhic decision-making.

The Jewish Law Annual, Vol. XVII

THE SCHOOLS OF HILLEL AND SHAMMAI HAIM SHAPIRA*

In many ways, Hillel and Shammai, and the ‘Houses’ they established, can be considered the beginning of what we call ‘the world of the Sages.’1 The halakhic traditions of the House of Hillel and the House of Shammai constitute the earliest and most fundamental layer of the Tannaitic literature — indeed, of the Rabbinic literature in general.2 The Houses of Hillel and Shammai are presented in the sources as distinct jurisprudential schools of thought upholding different opinions as to the law (halakha), and, less frequently, lore (Aggada). But what was the essential nature of these ‘Houses,’ and what engendered such pervasive and systematic controversy between them? In this article I will argue that the two Houses are distinct ‘schools’ not only insofar as their legal–halakhic thinking is concerned, but also in terms of their very approach to study. Indeed, the two are distinct academies (batei midrash) characterized by distinctive approaches to learning. My goal is to describe — to the extent that the sources allow this — the organizational structures, pedagogic methods, and views of the two Houses qua both halakhic schools of thought, and academic institutions. Focusing on their views as to tradition and reason as sources of knowledge

* Haim Shapira teaches at Bar-Ilan University’s Faculty of Law. 1 This was apparent to the Sages themselves, not only to the external observer. E.g., Hillel and Shammai are called “the fathers of the world” (mEduyot 1:4); cf. Ben-Sira 44:1. Also tEduyot 1:1 “When the Sages assembled in the vineyard of Yavneh they said: a time will come when someone will seek a dictum of the Torah, and will not find it, a dictum of the Soferim, and will not find it. . . . They said: Let us begin from Hillel and Shammai” (Zuckermandel edition, p. 454). 2 To be sure, this literature contains earlier traditions too. Some are adduced in the name of Sages who preceded Hillel and Shammai, and some are anonymous traditions whose interpretation is disputed by the Houses of Hillel and Shammai. But these traditions are too few to constitute a comprehensive literary stratum like the teachings of the Houses.

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and law, I will show that the Houses represent two distinct epistemic outlooks, reflected in the Houses’ approaches to Torah study and the development of the halakha.3 Let me begin with a short introduction on the historical background and sources. I Historical Background and Sources A baraita in bShabat 15a asserts: “Hillel and Shimon [his son], Gamaliel and Shimon wielded their Patriarchate during one hundred years of the Temple’s existence.” This indicates that the Patriarchate of Hillel commenced about 30 BCE. Another Tannaitic source, Sifre Deuteronomy 357 (p. 429), states that Hillel “sustained Israel for forty years.” It would seem to follow that Hillel’s administration ended in 10 CE. But both these traditions are schematic in nature. The first enumerates the Patriarchs who held their positions during the Temple era, rounding off the time period to “one hundred years.”4 The other tradition lists Hillel among those who lived 120 years and “sustained Israel” for forty of these years.5 Hence it is difficult to determine precise dates on the basis of these sources. Another source that might help determine the true chronology is Josephus Flavius (Joseph b. Matityahu), who mentions two sages who flourished at the time of Herod (the Great):

3 On the Houses’ jurisprudential concepts, see H. Shapira and M. Fisch, “The debates between the Houses of Shammai and Hillel — the metahalakhic issue” (Hebrew), Iyunei Mishpat: Tel Aviv University Law Review 22 (1999), 461–97. In this paper, I seek to present the Houses’ teachings and concepts in the context of the actual background of the respective academies, showing the relationship between the Houses’ epistemologies and jurisprudence. 4 Shimon the son of Hillel apparently did not exist, see G. Alon, “The Patriarchate of Rabban Johanan b. Zakkai” (Hebrew), in his Studies in Jewish History (Hebrew), (Tel Aviv: 1957), vol. 1, 264; E.E. Urbach, “Class-status and leadership in the world of the Palestinian sages” (Hebrew), Proceedings of the Israel Academy of Sciences and Humanities, vol. 2 (Jerusalem: 1965), 313 and n. 27. 5 Alon, ibid., 264–65 invokes these traditions and includes in the forty years that Hillel sustained Israel various positions he held before being appointed Patriarch. I. Gafni, The Jews of Babylonia in the Talmudic Era: A Social and Cultural History (Hebrew), (Jerusalem: 1991), 71, notes the schematic nature of the descriptions given in the sources, but maintains that they nonetheless can serve as the basis for determining the actual chronology of the developments in question.

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Samias and Pollion.6 According to some scholars, these sages can be identified as Shammai and Hillel.7 On this opinion, Hillel and Shammai flourished at the time of Herod, in the second half of the first century BCE. However, it is more likely that these sages should be identified as Shemaya and Avtalion.8 If so, then Hillel and Shammai flourished a generation later, at the turn of the first century BCE. The two Houses, once established, continued their activities in the first century CE, at least up to the time of the destruction of the Temple.9 The controversies between the two Houses continued after the destruction, until they were resolved during the Yavneh period.10 But the status of the Houses after the destruction of the Temple has not been adequately clarified. Some scholars argue that the Houses ceased to exist after the Temple’s destruction.11 But some of the controversies

6 Antiquities XIV, 172 (Samias in the context of Herod’s trial); XV, 3–4 (Pollion the Pharisee and his student Samias, in the context of the siege of Jerusalem, also mentioned in passim is Pollion’s role in Herod’s trial); XV, 370 (Pollion the Pharisee and Samias, with respect to the oath of fealty to Herod). 7 See, e.g., A. Shalit, King Herod (Hebrew), (Jerusalem: 1964), 374–75, n. 10, where further references are provided. 8 E. Schuerer, The History of the Jewish People in the Age of Jesus Christ, vol. II, revised and edited by G. Vermes, F. Millar, M. Black (Edinburgh: 1982), 362–63; G.F. Moore, Judaism in the First Centuries of the Christian Era (Cambridge MA: 1946), vol. 1, 313; L.H. Feldman, “The identity of Pollio, the Pharisee, in Josephus,” JQR 49 (1958), 53–62; Urbach, n. 4 above, 36 n. 17; I. Ben-Shalom, The School of Shammai and the Zealots’ Struggle against Rome (Hebrew), (Jerusalem: 1994), 289–92. 9 It is difficult to know which controversies originated at the time of Hillel and Shammai themselves, and therefore difficult to determine to what extent the Houses had already coalesced around their founders during their lifetimes. Among the issues debated around the time of the Temple’s destruction was that of the ‘eighteen enactments.’ See the discussion in Ben-Shalom, ibid., 252–72. 10 The sources indicate that the decision that the law was to be decided in accordance with the House of Hillel was made at Yavneh (jBerakhot 1:4 [3c] and parallels), though it is doubtful this was a single decision; more likely it was a gradual process. See S. Safrai, “The ruling is according to Beit Hillel” (Hebrew), in S. Safrai, In Times of Temple and Mishnah: Studies in Jewish History (Hebrew), (Jerusalem: 1996). Nevertheless, apparently in the generation following the destruction, the House of Hillel gained the upper hand, ensuring the ascendancy of its outlook; see Ben-Shalom, ibid. 11 Ben-Shalom, 273–76.

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surely took place after the destruction, and there are further indications that the Houses continued to exist in the generation after the Temple’s destruction.12 In any case, it seems that in the second generation of Yavneh, from the time of Rabban Gamaliel on, the Houses can no longer be said to exist as organized entities. From this point on, halakhic traditions are adduced in the names of individual Sages, not the Houses. Yet in this period too, we can discern Sages who identify with of one or the other of the Houses, and uphold their methods, such as R. Eliezer, who follows the House of Shammai, and R. Joshua b. Hanania and R. Akiva, who continue in the path of the House of Hillel.13 The controversy between the Houses was comprehensive, extending to all the realms of the halakha, and even certain points of Aggada. Altogether, more than three hundred matters over which there is controversy between the Houses are mentioned in the sources.14 But the sources provide very little information about the history of the Houses, and their actual organizational framework. It seems that the controversies between the Houses had a socio-political dimension. According to Graetz, the House of Shammai was affiliated with zealots, whereas the House of Hillel was associated with the moderate pro-peace circles.15 This view was adopted by scholars such as Weiss, Derenbourg, and Epstein, and comprehensively developed by Ben-Shalom in his work on the House of Shammai.16 Other scholars, led by Ginzberg and Finkelstein, saw the Houses as reflecting social status, arguing that the House of Shammai represented the upper 12 Two controversies are explicitly dated after the destruction of the Temple: mMaaser Sheni 5:7, and bMenahot 63a. In this context Epstein notes the substitution of R. Joshua for the House of Hillel and R. Eliezer for the House of Shammai; see J.N. Epstein, Introductions to Tannaitic Literature (Hebrew), (Jerusalem: 1957), 60–61. 13 See Y.D. Gilat, The Teaching of R. Eliezer b. Hyrcanus (Hebrew), (Jerusalem: 1968); Epstein, ibid. 14 See the list in I.H. Weiss, Dor Dor Vedorshav (NY-Berlin: 1924), vol. 1, 167ff. Also I. Kanovitz, The House of Shammai and the House of Hillel (Hebrew), (Jerusalem: 1965), 31–136; J. Neusner, The Rabbinic Traditions about the Pharisees before 70 (Leyden: 1971), vol. 2, 344–53. The contentious points of Aggada are relatively few, see Kanovitz, 29–30. 15 H. Graetz, History of the Jews (Philadelphia: 1947), vol. 2, 256–71. 16 Weiss, n. 14 above, vol. 1, 175; J. Derenbourg, Masa Eretz Yisrael [Hebrew translation of Essai sur l’histoire et la géographie de la Palestine], (St. Petersburg: 1896), 145–48; J.N. Epstein, “Sifre Zuta, Parashat Para,” Tarbiz 1 (1930), 50; Ben-Shalom, n. 8 above.

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classes — the nobility and the wealthy, while the House of Hillel represented the lower social strata.17 This approach was roundly criticized by Alon, and now seems to have lost its appeal.18 Social and economic elements are also invoked in Ben-Shalom’s analysis, but lead him to a diametrically opposed conclusion. In his opinion, the law as taught by the House of Shammai reflects an ancient pietistic halakha, characterized by strict and uncompromising principles of justice and social solidarity, that originated in the rural communities of the land of Israel. Conversely, the law as taught by the House of Hillel, characterized by compromise and adaptation to changing circumstances, originated in wealthy urban circles.19 There have also been other attempts to explain the differing halakhic approaches of the Houses on matters of substance, procedure, and interpretation; they will be discussed below.20 II

The Academies (batei hamidrash)

The actual picture of the House of Hillel and the House of Shammai is shrouded in mystery. We know almost nothing about the organizational structure of the Houses and the various institutions associated with them. We do not know how they arrived at their halakhic positions, nor are we familiar with the framework within which they met to debate each other.21 The term ‘House’ may denote either a family or a dynasty,22 but

17 L. Ginzberg, On Jewish Law and Aggada (Hebrew), (Tel Aviv: 1960), 13–40; L. Finkelstein, Akiba: Saint, Scholar and Martyr (NY: 1936), esp. 29–47, 279–306. Finkelstein’s account integrates earlier views, describing the House of Shammai as aristocratic, conservative and nationalistic, and the House of Hillel as plebeian, open to the new, and pacifistic. 18 Alon, n. 4 above, vol. 2, 181–227. 19 Ben-Shalom, n. 8 above, 172–230, esp. 192–93, 196–97. 20 E.g., it has been proposed that some of the points of contention reflect a principled controversy as to the action–intention relation. See Y.D. Gilat, Studies in the Development of the Halakha (Hebrew), (Ramat Gan: 1992), 72–83, nn. 1, 2. For another explanation, see S.J. Zevin, Leor Hahalakha (Hebrew), (Tel Aviv: 1964), 302. 21 Ben-Shalom, n. 8 above, 231–35, makes some tentative suggestions; as will become clear below, I disagree with him regarding a number of these points. 22 In biblical and talmudic Hebrew: the House of Eli, the House of David, the House of Boethus, the House of Kathros, the House of Garmu, the House of Avtinas, and so on.

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the Houses of Hillel and Shammai were neither. Neither the sages identified as affiliated with the House of Hillel, nor those identified as affiliated with the House of Shammai, belong to a single family.23 Though the dynasty of the Patriarchs (‫ )נשיאים‬descended from Hillel, the Patriarchs themselves did not necessarily identify with the views of the House of Hillel. Rabban Gamaliel II of Yavneh illustrates this well: a descendant of Hillel, on several issues he nonetheless upheld — selfconsistently, it appears — the view of the House of Shammai.24 The House of Hillel thus cannot be identified with Hillel’s descendants (the Patriarchs), nor can the House of Shammai be associated with any particular dynasty.25 The term ‘House’ can also denote a sect or a separatist group,26 but there is no indication that the Houses were organized as closed frameworks. We find no hint of any procedures for admitting new members, which were the norm for brotherhoods and sects. On the contrary, the robust social relationships described in the Mishnah between members of the Houses indicate that they were open frameworks:

23 For a list of sages affiliated with each House, see H. Albeck, Introduction to the Mishnah (Hebrew), (Jerusalem: 1960), 218–20; Ben-Shalom, n. 8 above, 235–49. 24 Safrai, n. 10 above, 29–40. 25 It should be noted that the dynasty of the Patriarchs, descended from Hillel, is referred to as “the House of Hillel” only in the scholarly literature, which borrowed the epithet from the Rabbinic sources, but uses it in a different sense. The Talmud uses the expression to refer to a halakhic school of thought, not the Patriarchal dynasty. 26 This usage is found in the Qumran literature. See D. Flusser, “Pharisees, Sadducees, and Essenes in Pesher Nahum,” in M. Dorman et al. (eds.), G. Alon Memorial Volume (Tel Aviv: 1960), 140. So too “the House of Judah” (Pesher Habakkuk 8:1); “the House of Kodesh” (Community Rule 8:5, 9:6); “the House of Yahad (Community Rule 9:6); “the House of Truth” (Community Rule 5:6); “the House of Peleg” (Pesher Nahum 4:1); “the House of Avshalom” (Pesher Habakkuk 5:9). The Sages seem to use the term in a similar way. Particularly noteworthy is the term “Boethusians” (‫;)בײתוסים‬ in some of the manuscripts it appears as “Beit Sin” (‫)בית סין‬, the House of Sin, which led some to identify them as the Essenes. Cf. M.D. Herr, “Who were the Boethusians?” Proceedings of the Seventh World Congress of Jewish Studies (Jerusalem: 1980), 1–20; J. Sussmann, “The history of halakha and the Dead Sea Scrolls — preliminary observations on 4QMMT,” Tarbiz 59 (1990), 41–44, 54–56; A. Schremer, “The name of the Boethusians: a reconsideration of suggested explanations and another one,” Journal of Jewish Studies 48 (1997), 290–99.

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And although these pronounced unfit that which the others pronounced fit, the House of Shammai did not shrink from marrying women from [the families of] the House of Hillel, nor the House of Hillel from marrying women from [the families of] the House of Shammai. And as to all matters of purity and impurity with respect to which these pronounced fit what the others pronounced unfit, they did not shrink from making use, in matters of purity, of that which belonged to the others.27

A baraita in the Jerusalem Talmud appends to this the statement: “Indeed they conducted themselves truthfully and peaceably, as it is said, ‘Love truth and peace’ (Zech. 8:19).”28 Nevertheless, there is reason to doubt whether this idyllic description indeed reflects the nature of the relationship between the Houses for the entire period they were in existence. Other sources tell of serious and even violent confrontations between the Houses; their relations were not always conducted “truthfully and peaceably.”29 But as Zacharias Frankel noted, the crucial point is that “the House of Hillel and the House of Shammai separated into two distinct Houses, but not two different sects,”30 that is, the Houses diverged only with respect to their views, and remained members of the same reference group. Compare this to the situation described by the author of the Qumran scroll Miktzat Maasei Tora (4QMMT), who, using a similar turn of phrase, describes how his sect separated from mainstream Judaism: “[And you know that] we separated from the multitude of the people [and from their impurity], and from being involved with these matters, and from participating [with them] in these things”31 — as opposed to the Houses of Hillel and Shammai, which “did not shrink from making use, in matters of purity, of that which belonged to the others.” But in our context, namely, the Houses of Hillel and Shammai as portrayed in the Rabbinic sources, what, exactly, did it mean to be a ‘House’? The evidence reveals that a House was a group that had a 27 mEduyot 4:8, mJebamot 1:4. 28 jJebamot 1:6 (3b). 29 jShabat 1:4 (3c); bShabat 17a, also Ben-Shalom, n. 8 above, 231–35, Sussmann, n. 26 above, 37 n. 119. 30 Z. Frankel, Darkhei Hamishna ([Leipzig: 1859] Tel Aviv: 1959), 47. On the question of their actual conduct regarding matters over which they had serious controversies, see jJebamot 1:6 (3b); bJebamot 13b–16a. See too Gilat, n. 20 above, 161–66; Ben-Shalom, ibid. 31 MMT, C, 7–8 (J. Strugnell and E. Qimron, Discoveries in the Judean Desert X [Oxford: 1994], 58–59); this contrast was noted by Sussmann, n. 27 above, 37.

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characteristic halakhic methodology and jurisprudential outlook. It is reasonable to suppose that the emergence of two distinct and incompatible such orientations took place within some sort of institutional context, for which the two most plausible candidates would be the court (beit din) and the academy (beit midrash). I will argue that they were, indeed, institutions of the latter sort, that is, educational institutions.32 In other words, the Houses were schools in two senses: they both represented distinct halakhic-jurisprudential outlooks, and functioned as academic institutions.33 We do not have sufficient sources to afford us a detailed understanding of the Houses qua academic institutions, but there are enough sources for us to outline the basic parameters. Elders and Students ‘Elders’ and ‘students’ are characteristically associated with the academy, and represent the two main categories of participants in its activities. The elders are those sages who were ordained and are qualified to teach and to decide legal questions, and the students are those who have yet to attain this status, usually young people just

32 The Houses were already described as educational institutions by Derenbourg, n. 16 above, 105; E. Bickerman “La chaine de la tradition pharisienne,” Revue Biblique 59 (1952), 47–49; and M.D. Herr (ed.), History of Eretz Yisrael. The Roman-Byzantine Period, The Mishna and Talmud Period, and the Byzantine Rule (70–640) (Hebrew), (Jerusalem: 1985), vol. 5, 154–55. 33 Ben-Shalom, n. 8 above, 231–35, 242–51, is of the opinion that the two Houses had separate courts of law, but there is no conclusive proof that this was indeed the case. The House of Shammai’s ruling in mMikvaot 4:5 regarding the case of the trough of Jehu does not necessarily indicate that the House of Shammai had a court, and may simply be a learned opinion as to a point of law, and this also applies to matters of ritual purity and marital law on which the Houses disagreed. Sages issued various rulings on these matters, but this by no means entails the existence of separate courts. Reports that have come down to us about a court in the 2nd Temple period relate to the court of the Pharisees, which was presided over by descendants of Hillel (see Ben-Shalom, 243–45). This court dealt with the calendar (lunar cycles, leap years, etc.), supervision of matters connected with the Temple, and enacting various regulations. Apparently this court was recognized by all the Pharisaic sages, and in some cases by the entire community. Thus it is unwarranted to conclude that the Houses maintained their own courts, and in any case, there is no evidence for this thesis.

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starting out.34 And indeed, there are some sources that mention ‘elders’ and ‘students’ of the Houses. In mSuka 2:7, there is a controversy between the Houses over whether someone whose head and most of his body are in a sukkah, but the table at which he is sitting is inside the house, has discharged his religious obligation. The House of Shammai maintain that he has not, whereas the House of Hillel maintain that he has, after which the following discussion is reported: The House of Hillel said to the House of Shammai, did it not in fact happen that the elders of the House of Shammai and the elders of the House of Hillel went to visit Johanan the Horonite, and found him sitting with his head and the greater part of his body within the sukkah, and his table within the house? The House of Shammai answered, is that a proof? Indeed they said to him, if you have so conducted yourself, you have never in your life fulfilled the law of the sukkah.

Johanan the Horonite35 was associated with the House of Shammai, but conducted himself in accordance with the view of the House of Hillel. It is said of him that “even though he was a student of the House of Shammai, he conducted himself solely in accordance with the view of the House of Hillel.”36 And in this case too, he conducted himself in accordance with the view of the House of Hillel. The dispute between the Houses focused on the reaction of the elders of the House

34 On this distinction, see tDemai 2:13 (Lieberman p. 71); tKidushin 3:9, p. 288; tSanhedrin 7:8 (Zuckermandel edition, p. 426), 7:10 (Zuckermandel, p. 427). And see Alon, n. 4 above, 294–302; S. Safrai, At the End of the Second Temple and the Period of the Mishnah (Hebrew), (Jerusalem: 1982), 182–85; H. Shapira, “Beit Hamidrash (the House of Study) during the Late Second Temple Period and the Age of the Mishnah” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 2001), 182–84. On a similar distinction in the context of the ancient Greek philosophical academies, see J.P. Lynch, Aristotle’s School (Berkeley CA: 1972). 35 This is the correct name according to the better MSS of the Mishnah (Kaufmann; Parma, de Rossi 138). And see tSuka 2:3, p. 261; tEduyot 2:2, p. 457, where it is related that he taught R. Eliezer b. Zadok. Regarding all these passages, he is not called ‘Rabbi’ in any of the textual witnesses that reflect the land of Israel tradition; the title ‘Rabbi’ appears only in passages in the Babylonian Talmud and those textual witnesses influenced by it; see M.Z. Fuchs, “A Critical Edition of Mishnah Sukka” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 1979), 63. 36 tSuka 2:3, tEduyot 2:2. Cf. S. Lieberman, Tosefta Kifshuta (NY: 1962), vol. 4, 854.

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of Shammai to the conduct of Johanan the Horonite. The House of Hillel seek to interpret their silence as a sign that they concede to the House of Hillel, but the House of Shammai reject the description of the incident, claiming that their elders had protested. What is the significance of the term “elders” in this context? In the Rabbinic literature, the title ‘elder’ usually denotes wisdom and status: “there is no elder but one who has acquired wisdom.”37 It can be assumed that in our passage too, the term “elders” does not denote those advanced in years, but rather, important sages whose views represent those of the respective Houses. It should also be noted that the anecdote as a whole does not reflect a discussion carried out within an institutional framework, but rather, a discussion between sages at an informal meeting. There is another reference to the elders of the Houses in the Tosefta, in tractate Rosh Hashana. Here, the controversy between the Houses concerns the number of blessings to be recited in the Amidah for festivals that coincide with the Sabbath: the House of Shammai says eight, and the House of Hillel, seven: The House of Hillel said to the House of Shammai: Is it not the case that in the presence of all of you, the elders of the House of Shammai, Honi the Small went down [before the Holy Ark] and recited seven, and the whole congregation said to him: you ought to feel contented? The House of Shammai said to them: Because the time was appropriate for brevity. The House of Hillel said to them: If the time was appropriate for brevity, he should have abbreviated all of them.38

The passage describes a debate between the elders of the House of Hillel and the elders of the House of Shammai. The elders of the House of Hillel want to support their view by adducing an incident that took place earlier: the elders of the House of Shammai had praised the prayer-leader (shaliah tzibur) even though he had conducted the service in accordance with the House of Hillel’s view. This anecdote, like the previous one, does not portray a formal decision-making process in a court, but a discussion between the sages in the course of the prayer service. In adducing the Houses’ views, however, both anecdotes cite the Houses’ elders. The following story mentions the elders of the Houses in a slightly different context:

37 Sifra Leviticus, Kedoshim 3:7; bKidushin 32b. 38 tRosh Hashana 2:17, p. 320.

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And the elders of the House of Shammai and the House of Hillel have already convened in the upper chamber of Jonathan b. Bathyra and said: Fringes (tzitzit) have no prescribed size. Similarly they said: The palm branch (lulav) has no prescribed size.39

Unlike the incidental encounters described above, this appears to be a planned meeting, in the attic of Jonathan b. Bathyra’s home.40 In this exceptional case the Houses were in agreement as to the law, and there was no controversy among them. At the meeting, certain laws were indeed decided, but this does not prove that they were acting as a court or legislative body. In fact, no such institution is named in this passage, and those mentioned as participating in the decisionmaking are “the elders,” who, as I said, are those of the academy’s sages who have received ordination. Here too, then, the incident described is one where scholars make a decision based on study and scholarly deliberation. In addition to the elders, the sources mention the “students” of the House of Shammai and the House of Hillel. The Mishnah mentions Dosethai of Kfar Yatma as one of the “students of the House of Shammai,” saying he recited a tradition he heard from Shammai the Elder.41 The Mishnah also mentions Joezer Ish Habira, a “student of the House of Shammai,” who reported Rabban Gamaliel the Elder’s response to a query.42 The Tosefta mentions a contemporary of Hillel the Elder, a sage by the name of Baba b. Buta: “he is a student of the House of Shammai, and knows that the law on all matters is in accordance with the view of the House of Hillel.”43 Of R. Johanan Hahoroni,

39 Sifre Numbers, 115, p. 124. 40 In the parallel version in the Babylonian Talmud, bMenahot 41b, the name is Johanan b. Bathyra, of whom nothing is known except that he belonged to the Bnei Bathyra family. On the Bnei Bathyra family, see Alon, n. 4 above, 263–67; Ben-Shalom, n. 8 above, 62–68. 41 mOrla 2:5. 42 mOrla 2:12. 43 tHagiga 2:11, p. 385. It should be noted that Dosethai of Kfar Yatma and Baba b. Buta, who were contemporaries of Hillel and Shammai, are already referred to as students of the House of Shammai. This seems to prove that as early as the days of Hillel and Shammai themselves, the academies were already being called by the names of their founders, that is, were referred to as the House of Hillel and the House of Shammai. But this is not a definitive proof, since it may be that the Tanna is using the term anachronistically.

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mentioned above, it is also said: “Even though he was a student of the House of Shammai, he conducted himself solely in accordance with the view of the House of Hillel.”44 It has already been pointed out that the students of the House of Shammai mentioned by name are those who side with the House of Hillel; this is apparently the reason their names were preserved in the Mishnah of the House of Hillel.45 Yet the comment about R. Johanan merits further attention. Unlike Baba b. Buta, who only knew that the law was in accordance with the view of the House of Hillel, R. Johanan conducted himself in accordance with the view of the House of Hillel. It is hard to understand what the import of being a “student of the House of Shammai” could be here, given that he conducted himself solely in accordance with the view of the rival school. It would seem that the only meaning that can be attributed to the term ‘student’ is that of academic affiliation: a student is someone who studied at a certain educational institution, or studied its doctrines. We need not maintain that at the time in question those described as students were not yet qualified to render halakhic decisions. On the contrary, Baba b. Buta is described as a man of status, and so too Johanan the Horonite, who was the teacher of R. Eleazer b. Zadok.46 Clearly, then, the term describes one who had at some point studied at the House of Shammai’s academy, or who regarded himself as committed to studying its teachings and continuing its path. Sometimes the students of the House of Shammai are mentioned anonymously.47 A well-known Genizah fragment of Sifre Zuta, Parshat Para, refers to the “Idumean students” of the House of Shammai, from

44 tEduyot 2:2, p. 457; tSuka 2:3, p. 261. 45 Ben-Shalom, n. 8 above, 237. 46 With regard to Baba b. Buta, see the sources given in A. Hyman, A History of the Tannaim and Amoraim (Hebrew), (Jerusalem: 1964), vol. 1, 261. On Johanan Hahoroni, see n. 35 above. It should be noted that the two sages are not titled R.(=Rabbi). 47 E.g., tKilaim 1:4, p. 204, (MS Vienna [variant spelling], MS Erfurt, and talmudic parallels); tHagiga 2:12, p. 386; tOholot 5:11, p. 603. The references in tKilaim and tOholot are to students of the House of Shammai after the destruction of the Temple, whereas that in tHagiga pertains to the Temple period. (In these cases, where the students of the House of Shammai conducted themselves in accordance with the view of the House of Shammai, their names are indeed not mentioned.)

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the region also referred to as “the South.”48 There are also references to students of the House of Hillel.49 In sum, the sources present the Houses as institutions made up of elders and students. The elders are the main lecturers and are those who engage in decision making; the students are those who uphold the teachings of the elders, in theory or in practice. The sources thus provide compelling evidence for the view that the Houses indeed functioned as academic institutions (batei midrash). Meetings As a rule, the talmudic sources make no reference to the location and circumstances of the meetings at which the law is decided and the opinions of the Houses are expressed. In only a handful of cases are the circumstances of the meetings explained. As noted above, some of the meetings were informal and incidental, taking place during social visits, joint meals, prayer services and so on.50 But there were also planned meetings at which important decisions were made. What can we learn from these meetings about the Houses and their interactions? The best-known such assembly is that at which the “eighteen decrees” were enacted. According to the Mishnah, it took place “in the loft of Hanania b. Hezekiah b. Geron, when they went to visit him . . . and eighteen decrees were issued on that day.”51 This Hanania was apparently a student of the House of Shammai. According to the Talmud, he is the author of Megilat Taanit.52 We also know that his son R. Eleazar relayed a tradition identical to that upheld by Shammai the

48 This fragment corroborates the connection between the House of Shammai and the zealots with whom the Idumeans were associated; see Epstein, n. 16 above, 52 and 70. 49 tHagiga 2:12, p. 386 and jShabat 1:7 (7c). 50 See e.g., mSuka 2:7; tRosh Hashana 2:17. 51 mShabat 1:4; tShabat 1:15, p. 4. The name is spelled variously in the printed and MS editions. MS Kaufmann reads “Hanina b. Hezekiah b. Geron,” but the Genizah fragments read “Hanania”; see A. Goldberg, Masekhet Shabat (Jerusalem: 1976), 15; Mekhilta de-Rabbi Ishmael, Bahodesh 7 (p. 229). 52 bShabat 13b; Ben-Shalom, n. 8 above, 225; V. Noam, Megillat Ta’anit (Jerusalem: 2004), 28–33.

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Elder.53 We have only fragmentary information about this important meeting. For example, we are not sure exactly which eighteen things were declared prohibited at the meeting. The Talmuds report various traditions, and there are numerous scholarly opinions on the matter.54 It is known that the event turned into a violent confrontation between the Houses. The Jerusalem Talmud relates: R. Joshua Oniah taught: The students of the House of Shammai stood below and were killing the students of the House of Hillel. We learned: six of them ascended and the rest pressed upon them with swords and lances.55

A baraita in the Tosefta and the Jerusalem Talmud states: “And that day was as hard for Israel as the day on which the [golden] calf was made.”56 This incident is the basis for the view, held by certain historians, that the confrontation between the Houses reflected the controversy between zealots and moderates. On this view, the House of Shammai was inclined toward zealotry and separatism, and issued decrees with the object of promoting separation from non-Jews, whereas the House of Hillel was inclined toward moderation, and opposed the decrees in question.57 For our purposes, however, this is mere speculation, as the Talmud provides no information as to the framework within which the assembly convened. From the fact that it issued “decrees,” it would seem we can infer that it was legislative in nature, and reflected institutional authority. But this argument is by no means decisive, since the verb ‘to decree’ (ligzor) has broad semantic scope and does not necessarily refer to legislation. It can also mean ‘to

53 “If you come upon a goodly portion, designate it for the Sabbath,” Mekhilta de Rabbi Ishmael, Bahodesh 7 (p. 229); cf. Mekhilta de-Rabbi Shimon b. Yohai 20:8 (p. 148): “They said of Shammai the Elder that the recollection of the Sabbath never left his tongue. He purchased a goodly portion and said, ‘this is for the Sabbath,’ a new vessel, and said ‘this is for the Sabbath’ ”; so too bBeitza 16a. 54 jShabat 1:4 (3c–d); bShabat 13b–17b. See Goldberg, n. 51 above, 15–22, and Ben-Shalom, n. 8 above, 252–72. 55 jShabat, ibid. 56 tShabat 1:16, p. 4; jShabat 1:4 (3c–d); see Lieberman, Tosefta Kifshuta, 3:15; idem, Yerushalmi Kifshuto, 38; Ben-Shalom, n. 8 above, 252–72. 57 Graetz, n. 15 above, vol. 2, 89–94; this view was adopted by Epstein, n. 16 above, 53, and developed by Ben-Shalom, ibid.

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issue a ruling,’ and refer to an opinion handed down by a sage.58 Furthermore, even if, in the context of our discussion, it does suggest the exercise of institutional authority, the text tells us nothing about the institution in question, or the nature of its authority.59 The first mention of such an institution by name occurs in the Babylonian Talmud. It describes an assembly of Hillel and Shammai and their students, also involving a halakhic matter, and the Talmud is explicit that it took place “in the study hall”: A sword was planted in the study hall (beit hamidrash), and they proclaimed: He who would enter, let him enter, but he who would depart, let him not depart. And on that day Hillel sat submissive before Shammai, like one of the students, and it was as hard for Israel as the day on which the [golden] calf was made.60

But it is highly dubious whether the term “study hall” here is authentic, or provides any information not given by the other sources, because this passage is a Babylonian reworking of sources from the land of Israel. It is easy to discern in the story motifs and phrases from the incident of the eighteen decrees reported in sources from the land of Israel: the “sword planted in the study hall” is parallel to the Jerusalem Talmud’s “swords and lances”; the declaration “he who would enter, let him enter, but he who would depart, let him not depart” parallels the reference to students of the House of Shammai ascending and entering; the description of Hillel sitting submissively before Shammai parallels the description of the House of Shammai’s subdual of the House of Hillel when the decrees were enacted; and the expression “and it was as hard for Israel as the day on which the calf was made” appears in both versions.61 It is reasonable to assume, therefore, that the Babylonian version echoes the violent confrontation between the

58 See, e.g., mYadaim 4:3: “What is the law applying to Ammon and Moab in the seventh year? R. Tarfon decreed it was the tithe for the poor, and R. Eleazar b. Azariah decreed it was the second tithe.” Thus ‘to legislate,’ is only one of the meanings of the root ‫גזר‬. See B. Lifshitz, Law and Action: Terms of Obligation and Acquisition in Jewish Law (Hebrew), (Jerusalem: 2002), p. 79. 59 This also applies to the meeting in Jonathan b. Bathyra’s attic; see Sifre Numbers 115 (Horowitz edition, p. 124). 60 bShabat 17a. 61 And see Tosefta Kifshuta, vol. 3, 15.

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Houses as reported by the Jerusalem Talmud.62 As we saw above, the term “study hall” does not appear in the Jerusalem Talmud’s account of the incident.63 To summarize, the sources do not provide us with an explicit account of the organizational framework within which the Houses functioned, separately or together. Nevertheless, we can learn something about the nature of the Houses from these sources. Despite the fact that they are speaking of gatherings to determine the halakha and to issue decrees, it is striking that they do not describe these meetings as sessions of a ‘Sanhedrin’ or even a ‘court.’ And not only are these terms not used, but the locations at which they take place also suggest that the meetings are not sessions of a court. The Houses did not meet at any of the places where official bodies convened to conduct their deliberations, such as the Temple courtyards, the Hall of Hewn Stone, and the Temple Mount stairs.64 Rather, they got together in the lofts of homes, far from the Temple or any other institution. So it seems clear that these gatherings were not meetings of the Great Court or any other official institution, but rather scholarly meetings that can be characterized as ‘academic’ in nature. It appears that these meetings mark the beginnings of the institution of the study hall as a center of independent adjudication not connected with the Temple or the Great Court.65 III The Controversy over the Criteria for Admitting Students A definite indication that the Houses were academic institutions is their controversy regarding the criteria for admitting students. As we will see, this debate also sheds light on the Houses’ divergent philosophies more generally. Let us examine the core disagreement. In the first 62 We can add to this the clichéd description of the gruff Shammai and gentle Hillel in the spirit of the anecdote reported in bShabat 31a; see Ben-Shalom, n. 8 above, 102–103. 63 As J. Rubenstein recently showed, the Babylonian Talmud is apt to link various events to the study hall, whereas the parallel land of Israel sources contextualize them differently. See J. Rubenstein, The Culture of the Babylonian Talmud (Baltimore: 2003), 23–28. 64 E.g., mSanhedrin 11:2; mMidot 4:5; mPeia 2:6; tSanhedrin 2:6 (Zuckermandel edition, p. 416). 65 On the origins of the institution of the study hall, see Shapira, n. 34 above, 37–50.

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version of Fathers according to Rabbi Nathan, we find the following statement: The House of Shammai say, “One should teach only someone who is intelligent (‫ )חכם‬and modest (‫ )עניו‬and of good parentage (‫ )בן אבות‬and wealthy (‫)עשיר‬.” And the House of Hillel say, “One should teach everybody, because many sinners were among Israel, and they drew themselves close to the study of the Torah, and became pious and decent (‫)כשרים‬.”66

According to the House of Shammai, only those with intellectual ability, those of good character and lineage, and those who are wealthy should be taught. The House of Hillel, on the other hand, maintain that “one should teach everybody,” and give the reason for this policy. It is immediately apparent that the House of Shammai represents an elitist and aristocratic approach, while the approach of the House of Hillel is plebeian and democratic. And indeed, this debate was seized upon by scholars who invoked it to anchor the view of the House of Shammai as an aristocratic faction.67 Other scholars, who had reservations about this view, tried to address the problem posed by the passage in various ways. Alon suggested emending “wealthy” (ashir) to “decent” (kasher),68 for two reasons. (1) In the passage, the rationale given by the House of Hillel is that “many sinners . . . became pious and decent.” So the relevant contrast is that between sinners and those who are decent, not that between the rich and the poor. (2) In the second version of Fathers according to Rabbi Nathan, the word “decent” replaces “wealthy”: The House of Shammai say, “We teach only those who are decent, of good parentage and of good ancestry, and the House of Hillel say, “everyone.” They told a parable: To what is the matter comparable? To a woman who sets a hen [to brood] upon eggs, from many, she will get but a few [hatched], and from the few, she may get none.69

But this emendation does not dispel the socio-economic undertone. In both passages the House of Shammai accept only students of 66 ARN1, 3 (Schechter edition [Vienna: 1887], 14–15). All references to ARN in this article are to this edition. 67 E.g., Ginzberg, n. 17 above, p. 29; L. Finkelstein, The Pharisees and the Men of the Great Synagogue, Texts and Studies of the Jewish Theological Seminary of America, vol. 15 (NY: 1950), 66, and see n. 17 above. 68 Following Reifman, “Kuntres ruah hadasha,” Beit Talmud 4 (1885), 48; see Alon, n. 4 above, vol. 1, 317, vol. 2, 221 n. 88. 69 ARN2, 4 (p. 14).

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“good parentage.” The import of this criterion is that only those from respectable families of good lineage (meyuhasot) are to be taught. Such families were, as a rule, also rich, so to require that those taught be of good lineage is also to require that they be wealthy.70 Indeed this approach reflects an aristocratic outlook, on which high socioeconomic standing imparts intellectual and moral superiority. A similar outlook is expressed in another tradition adduced in the name of Rabban Gamaliel I: With regard to students, Rabban Gamaliel the Elder expounded four things: impure fish, pure fish, fish from the Jordan, and fish from the great sea. What is analogous to [lit., how so] impure fish? One from a poor family who learned Scripture, Mishnah, laws and lore (agadot), but has no comprehension. What is analogous to pure fish? This is one from a wealthy family who learned Scripture, Mishnah, laws and lore, and has comprehension.71

Here, wealth is mentioned explicitly: a wealthy student is regarded as superior to a poor one. The poor student is identified with one who has no comprehension, while the rich student is identified with one who does.72 This passage reflects the aristocratic tendency characteristic of the House of Shammai.73 Ben Shalom contends that the controversy over admission criteria in no way reflects the opinion of the House of Shammai, which was not identified with the upper classes. Adducing the fact that the controversy is not mentioned in other Rabbinic sources, he argues that the 70 Alon’s attempt to interpret “good parentage” (ben avot) to mean ‘from a learned family,’ seems artificial and is implausible; see jKidushin 4:11 (66c) (good parentage as opposed to slaves); Midrash Agadat Bereishit 82 (p. 156) (good parentage as opposed to gladiators). Note that the term “ancestral merit” (zkhut avot) is used similarly in jBerakhot 4:1 (7d) (the son of great people, whose ancestors gave him merit). But cf. bBerakhot 28a, where the term has a completely different meaning. 71 ARN1, 40 (p. 127). 72 On the difficulties that arise in interpreting this parable, see Schechter’s notes, ibid. 73 Some suggest the parable should be attributed to Rabban Gamaliel II of Yavneh (in which case the ‘Elder’ should be deleted), who systematically upheld the view of the House of Shammai; see L. Ginzberg, Peirushim Vehidushim Bayerushalmi, vol. 3 (NY: 1941), 188; Finkelstein, n. 17 above, 114–15. On the other hand, see Safrai, n. 10 above, 396. Alon saw the parable as reflecting a general inclination toward elitism in the world of the Sages, not peculiar to Rabban Gamaliel; see Alon, n. 4 above, vol. 2, 71 n. 49.

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passages in question are from a late source that imputes an elitist view to the House of Shammai. In his opinion, this source is the Babylonian Talmud, which manifests admiration for wealthy sages.74 But the fact that a researcher’s preconceived idea fits a text poorly is not sufficient reason to repudiate the text. On the contrary, it is reasonable to suppose that the debate does represent a genuine controversy from the Second Temple period. The upper classes were not comprised solely of priests (kohanim) and Sadducees. We thus cannot rule out the possibility that some of the Sages, even some Pharisaic sages, considered social standing — belonging to the upper social strata — a condition for admission to the academies. Rabban Gamaliel came from an aristocratic family that was part of the Pharisaic leadership, and it is not surprising he upheld this view. Furthermore, it must be kept in mind that at the time, there was no institutionalized financial support for scholars. This being so, systematic specialized study of the Torah could be undertaken only by the few who had the wherewithal to do so; it was beyond the reach of the masses.75 It stands to reason that this social reality nurtured the elitist approach that saw limited student admittance not only as a pragmatic necessity, but also an ideological value. The restricted admissions should also be considered against the backdrop of Second Temple period sectarianism. Restrictions on teaching are characteristic of closed groups and sects. The Judean Desert sect, for instance, placed strict restrictions on teaching the Torah to anyone who was not a member of the group. Those who sought to join them and learn their teachings had to first undergo a long period of supervised initiation.76 The affinity between the positions taken by the 74 I. Ben-Shalom, “Torah study for all or for the elite alone?” (Hebrew), in A. Kasher et al. (eds.), Synagogues in Antiquity (Jerusalem: 1988), esp. 100–101, 105. 75 See E.E. Urbach, “The derasha as a source of halakha and the problem of the Soferim” (Hebrew), Tarbiz 27 (1958), 172; idem, n. 4 above, 34, 37–38; M. Baer, “Torah and derekh eretz,” Bar Ilan, Annual of Bar Ilan University 2 (1964), 135–41; M.D. Herr, n. 32 above, 154. 76 On the prohibition against teaching outsiders, see Manual of Discipline IX l. 17; Damascus Covenant XV l. 10; Josephus Flavius, The War of the Jews II, 141. On initiation procedures, see Manual of Discipline VI ls.13–23; J. Licht, The Rule Scroll. A Scroll from the Wilderness of Judaea (Hebrew), (Jerusalem: 1965), 145–48. On the policy of keeping the halakha concealed among ‘the pious,’ see B. Lifshitz, “ ‘Aggadah’ and its role in the history of the Oral Law” (Hebrew) Shenaton Hamishpat Haivri 22 (2001/ 2003), 297–308.

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House of Shammai and the sectarian laws is well known,77 and may be reflected in the admission criteria controversy. There is no reason to doubt the likelihood of the opinion attributed to the House of Shammai, and certainly, no reason to deny the existence of the controversy itself. If we, then, assume that the debate indeed reflected the Houses’ divergent approaches, then here too the view of the House of Shammai reflects the early custom. After the destruction of the Temple, the view of the House of Hillel gained primacy, and that of the House of Shammai fell out of favor and all but disappeared. The liberal notion that “one should teach everybody” became dominant and was developed and emphasized by the Sages: “Lest you say: Let the sons of the elders be taught, or the sons of the great, or the sons of prophets, therefore Scripture says ‘but ye shall diligently keep,’ to say that all are equal in the study of the Torah” (Sifre Deut. 48, p. 112). Similarly, “I understand that it is the heritage of princes, but whence do I know that it also the heritage of commoners? Therefore Scripture says ‘you stand this day all of you’ (Deut. 29:9)” (ibid. 345, p. 402). These exegeses argue against those who might claim to have a monopoly on education, and declare that “all are equal in study of the Torah.” This outlook explains why, as noted above, this controversy between the Houses does not recur in the talmudic literature. The view of the House of Shammai was intentionally concealed and consigned to oblivion. But this does not cast doubt on its authenticity — quite the contrary — the report of this rare controversy is an authentic vestige of an early outlook that languished and ultimately died out after the destruction of the Temple.78

77 See V. Noam, “Beit Shammai and the sectarian halakha” (Hebrew), Jewish Studies 41 (2003), 45–67, and Lifshitz, ibid. 78 After the Destruction too, certain Sages pronounced various entrance restrictions, seemingly eroding the “one should teach everybody” ideal. But these were strictly moral and educational requirements, that, having been articulated, everyone had the opportunity to meet. They were thus very different from the social class requirements espoused by the House of Shammai, which could not be met by all, and were thus truly restrictive. E.g., “R. Shimon b. Yohai taught: ‘And these are the judgments which you shall set before them’ (Exod. 21:1) — just as the hidden treasure is not revealed to just anyone, so too you are not permitted to immerse yourself in Torah study, except in the presence of suitable people (‫( ”)כשירין‬jAvoda Zara 2:5 [41d]).

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The existence of controversy between the Houses with regard to admitting students reflects, as we said, the fact that the Houses were academic institutions devoted to study and teaching. It also implies that the Houses had different educational structures and pedagogic outlooks and policies. But the debate also reflects much deeper differences in the Houses’ philosophical orientations. To fully grasp these divergences, it will be useful to adduce certain concepts from the sociology of knowledge that can help us achieve a broader philosophical picture. IV

Closed Knowledge and Open Knowledge

Funkenstein and Steinsaltz distinguished between two types of knowledge: closed knowledge and open knowledge.79 Closed knowledge is knowledge that is handed down from father to son or teacher to student. It is characterized not only by restriction to a specific occupation or group (those of noble lineage, scribes, priests, etc.), but more importantly, by a lack of agreement as to what knowledge is part of a given field, and what knowledge is excluded from that field, and a lack of agreement regarding the criteria that determine what is correct and what is not. Conversely, open knowledge is, in principle, accessible to everyone, and not restricted in advance to members of a certain group. Most importantly, its transmission is transparent. What knowledge is comprised by a given field is manifest to all, as are the criteria for determining what is correct and what is not. By its very nature, the ideal of open knowledge is characterized by constant examination of the information in question in the light of these criteria, which are in themselves subject to scrutiny and tested by other criteria. Indeed, this is the definition, the primary characteristic, of rationalism. The ideal of closed knowledge, on the other hand, is characterized by constant effort to preserve the given body of knowledge in a pristine state. This effort is often accompanied by a doctrine about the origins and nature of this knowledge, a doctrine that justifies this preservation and even renders it mandatory, for example, the thesis that it originates in divine revelation. In any case, on this approach, it is of vital importance to preserve the authentic ancient knowledge. The further its origins recede into the past, the more this 79 A. Funkenstein (with A. Steinsaltz), The Sociology of Ignorance (Hebrew), (Tel Aviv: 1987).

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knowledge is exposed to the dangers of degeneration resulting from the obscurity of the original knowledge and the natural process of forgetting. The ideal of closed knowledge is thus forced to undertake a constant struggle against the forces of time, which generate distortion, oblivion, and loss.80 The authors emphasize that the distinction is between the two ‘ideal types’ of knowledge, two conceptualizations of knowledge that are not found in reality in their pure form, but in more complex forms in which elements of both closed and open knowledge are intermingled. Nevertheless, the distinction is useful for describing the interrelations between various approaches, and enables us to categorize pedagogic institutions, methodologies, and processes. Funkenstein and Steinsaltz maintain that the concept of open knowledge was an element of Jewish culture early on, but became the dominant model only in the period after the destruction of the Second Temple, after waging a long struggle. In this context they mention, among other things, the controversy between the Pharisees and the Sadducees. But the authors’ focus is on describing the ideal of open knowledge, not on the various approaches and debates within the Jewish world that were instrumental to the eventual triumph of open knowledge. In the following sections, I will argue that the controversy between the Houses can be understood against this background. In other words, the assumption that they upheld divergent conceptions of knowledge enables us to explain a number of controversies and disagreements between the Houses. The House of Shammai upheld the ideal of closed knowledge, whereas the study hall of the House of Hillel nurtured the ideal of open knowledge. These differing conceptions are vividly reflected in the dicta of the students and the adherents of the Houses in the generation of Yavneh. V

Tradition and Reason

The differences between the conceptions of knowledge upheld by the Houses are connected to differing approaches to tradition, and in particular, to the relationship between tradition and rationality. The ideal of closed knowledge reflects an approach that stresses commitment to tradition; the ideal of open knowledge, an approach that stresses rationality. Let us explore the Houses’ stance on this issue.

80 Ibid., 21.

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Josephus Flavius notes the devotion of the Pharisees to the traditions of their forefathers (paradosis ton pateron), remarking that they passed down to the people laws reflecting these traditions, which were not written in the Torah of Moses.81 From the New Testament, too, we can see that the Pharisees regarded their creed as the tradition handed down by their forefathers or elders (paradosin ton presbuteron).82 This characterization of the Pharisees is also apparent in the Rabbinic literature, and is, indeed, at the core of the notion of the Oral Law.83 The picture of the Pharisees that emerges, then, is that of a group whose law is based on tradition. But did they also recognize other sources, such as reason and creative exegesis (midrash), as valid sources of the law? And given their affinity for tradition, to what extent did they recognize the possibility of new interpretations of the received tradition? Was the Pharisaic view monolithic? As Josephus tells us little about all this, we must turn to the Rabbinic literature — the literature of the Sages — for answers. These writings attest to the existence of a fundamental disagreement in the world of the Pharisees, namely, the division between the House of Shammai and the House of Hillel. The most salient aspect of this divide is that the House of Shammai tends to strictness in interpreting the law, whereas the House of Hillel tends to leniency. These tendencies were already noted by the Mishnah, which makes a point of presenting the exceptional cases in which the House of Shammai

81 See Antiquities XIII, 297, 408 and XVIII, 12–13, where Josephus notes that one element in the Pharisees’ approach was understanding or reason (logos). This sentence is translated and interpreted by some scholars to mean that the Pharisees did not accept the entire tradition as binding, but only those parts of the tradition that were rationally necessary, i.e., that Josephus described the method of the Pharisees as based on reasoning. This is how it is translated by Whiston, for instance, and so too in Shalit’s Hebrew translation, followed by many others. But according to other translations, the criterion was not rationality, but whether an opinion was sanctioned by tradition; see, e.g., Feldman’s translation in the Loeb edition, IX, p. 11: “They . . . follow the guidance of that which their doctrine has selected and transmitted as good”; and see note C there. 82 Mark VII, Matthew XV, Galatians I:14 83 The most salient example is mAvot 1:1, but it is evident in numerous other places. See M.D. Herr, “Continuum in the chain of Torah transmission” (Hebrew), Zion 44 (1979), 53–56; A. Baumgarten, “The Pharisaic paradosis,” Harvard Theological Review 80 (1987), 63–77; Lifshitz, n. 76 above, 275–88.

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take a lenient position and the House of Hillel a stringent one.84 Research into the history of the halakha has shown that the stricter views of the House of Shammai preserve, as a rule, the early halakha, whereas the lenient views of the House of Hillel express later developments.85 The explanation that has been offered for this connection between the early law and the tendency to strictness is that the early halakha took a uniform approach to legal issues, and refrained from considering circumstances that arose out of local conditions and changing times.86 On the other hand, the later law developed new distinctions and definitions, making it possible to take current problems and emerging conditions into consideration, for example, distinctions between different levels of legislation (scriptural, Rabbinic), different levels of legal obligation and competency (adults and minors, men and women), and different temporal periods (the Temple era, “the present day” — viz., after the destruction of the Temple, times of exigency).87 Overall, we can say that the development of new law can be ascribed to two main factors: on the one hand, responsiveness to the vicissitudes of life, and on the other, legal scholarship. It follows, then, that the Houses 84 See mEduyot 4:1–5, also E.E.Urbach, The Halakhah; its Sources and Development (Hebrew), (Ramat Gan: 1984), 176. 85 This approach originated in the works of Geiger, and gained wide acceptance among scholars of various stripes; see A. Geiger, Hamikra Vetargumav (Hebrew translation of Urschrift und Uebersetzungen der Bibel [The Original Text and Translations of the Bible]) (Jerusalem: 1949), 69–102; idem, Collected Essays (Hebrew), edited by S. Poznanski (Warsaw: 1910), 60–91; Weiss, n. 14 above, vol. 1, 167ff.; Frankel, n. 30 above, 48–49; Sussmann, n. 26 above, 65 n. 206. Reservations about this approach are voiced in Urbach, ibid., 176. 86 Frankel, n. 30 above, 48 describes the House of Shammai’s approach as follows: “Shammai decided the law steadfastly, whether on matters of ritual law or matters pertaining to the pure and the impure, down to the last detail, and as soon as he decreed that something was prohibited or impure, he made no distinction between different aspects of the prohibition, and did not differentiate between different aspects of the impurity, or say that the prohibition extends to a certain point but no further. But rather, his legal approach was to make all parts of the matter equally prohibited, without any mitigation.” 87 These distinctions were studied in detail by Gilat; see Gilat 1968, n. 13 above, 31, on the distinction between ‘scriptural’ and ‘Rabbinic,’ also discussed in Gilat 1992, n. 20 above, 237–80. In the latter work he discusses other distinctions and definitions as well: minor, 19–31; measures, 63–71; the laws of the Sabbath, 32–62, 87–108.

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indeed differed in their attitude to tradition and the possibility of changes to the law. The House of Shammai tended to submit to the yoke of tradition, and deviated from it very rarely, while the House of Hillel was willing to deviate from the received halakha and adopt novel distinctions and laws. I have explored these two approaches to tradition, which are reflected in the Houses’ legal rulings, in detail elsewhere.88 One approach sees tradition as the fundamental, and perhaps exclusive, authoritative source of law. Its objective is the preservation and continued existence of the tradition as it was handed down from generation to generation. It advocates total commitment to tradition and opposes any deviation from it. As a matter of principle, this approach has reservations about any innovative changes to the law, whether interpretive or legislative. It sees the thrust of Torah study as strict preservation of the halakhic dicta and their precise transmission from master to student. Fisch and I called this doctrine “traditionalism.”89 The other approach recognizes, alongside tradition, other sources of legal authority, sources that are based on human understanding, such as exegesis and reasoning. This approach has as its goal not only preservation of the tradition, but also its enhancement. In addition to preserving and transmitting the traditional dicta, it seeks to clarify their rationales. It encourages creative interpretation of the law that results in the development of new distinctions and rules. This approach thus allows for innovative changes to the law, whether by way of interpretation or by way of legislation. It can be described as rationalist and “anti-traditionalist.”90 This distinction, like that between

88 Shapira and Fisch, n. 3 above. 89 Following M. Fisch, To Know Wisdom: Science, Rationality and Torah Study (Hebrew), (Tel Aviv: 1994), 59–71; for a comprehensive discussion, see idem, Rational Rabbis, Science and Talmudic Culture (Bloomington IN: 1998), 55ff. 90 The term “anti-traditionalist” is not intended to connote exclusion of tradition as a source of legal authority, but rather, opposition to traditionalism, the approach that takes tradition to be the sole source of authority. The term “rationalist” provides a positive characterization of this orientation. Cf. E.S. Rosenthal, “Tradition and innovation in the halakha of the Sages” (Hebrew), Tarbiz 63 (1994), 322, where another term is used. Rosenthal has doubts about identifying the said approaches, i.e., traditionalism and anti-traditionalism/rationalism, with the Houses; see Shapira and Fisch, n. 3 above, 467–68.

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open and closed knowledge, reflects ideal types. In reality, the sages who upheld traditionalism could not refrain from introducing new laws, and the rationalists or non-traditionalists were loyal to tradition and often preferred it to suggested innovations. Nevertheless, the conceptual distinction is justified, and various sages expressed quite explicit support for one or the other of the approaches, though in doing so they were not always completely consistent. To illustrate the two approaches, we will examine the pronouncements of the students and adherents of the Houses in the Yavneh period, after which we will consider how well these pronouncements reflect the positions espoused by the Houses themselves. We will adduce a dictum of R. Eliezer b. Hyrcanus to illustrate the House of Shammai’s approach, and a dictum of R. Akiva to illustrate the House of Hillel’s approach. Let us start with the traditionalist point of view: R. Joshua and R. Nehunia b. Elinathan, a man of Kfar Habavli, testified, concerning a limb from a corpse, that it is impure; whereas R. Eliezer says: they declared this only of a limb from a living being. They said to him: is there not an inference from the minor to the major: if in the case of a living person, who is pure, a limb severed from him is impure, how much more in the case of a corpse, which is itself impure, should a limb severed from it be impure! He said to them: they declared this only of a limb from a living being.91

R. Eliezer upheld a tradition that only a limb from a living being is impure. When two Sages testified to a contrary tradition, R. Eliezer rejected it. Even when they noted a problem in his stance, and proved their own claim with logic — specifically, an a fortiori argument — he refused to find fault with the tradition he upheld, replying only, “so I heard.”92 And it goes without saying that the traditionalist opposes any deviation from the law that is based not on tradition but rather on interpretation or taking into account the law’s underlying rationale.93

91 mEduyot 6:2. 92 This is the version in the Babylonian Talmud (bHulin 129b). Although elsewhere we find R. Joshua making the same assertion, “so I heard” (mPara 1:1), in doing so he is attesting to a tradition for a different purpose. There, R. Joshua is reporting the tradition, so that it can be interpreted, whereas here R. Eliezer is clinging to a tradition even after it has been confuted. This Mishnah is discussed by M. Kahana, “On the fashioning and aims of the mishnaic controversy” (Hebrew), Tarbiz 73 (2003). 93 See below regarding R. Akiva’s controversy with the early elders.

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Another aspect of holding fast to tradition is resistance to the introduction of new laws. The traditionalist seeks to fulfill his forefathers’ tradition as it has been handed down from generation to generation, without adding or subtracting anything. Hence a traditionalist will refrain, as much as possible, from introducing new laws. Now there are two channels by which new laws can be introduced: legislation, e.g., enactments, and the judicial process, e.g., when a decisor adjudicates a case or hands down a ruling. For the present it will suffice to quote from a source showing that R. Eliezer took issue with the introduction of new law by way of adjudication. In the Talmud, on a number of occasions he is asked about the law but refuses to answer, the explanation for this being that “he did not [ever] state anything that he had not heard from his teacher.”94 For instance, consider this baraita in the Babylonian Talmud: Our Rabbis taught: It happened that R. Eliezer spent the Sabbath in the Upper Galilee, and they asked him about thirty laws from the laws of the sukkah. Of twelve of these he said, I heard [them]; of eighteen he said, I have not heard. R. Jose b. Judah said, it was the other way around: Of eighteen he said, I have heard, of twelve he said, I have not heard. They said to him, Are all your words nothing except that which you have heard? He said to them, You sought to make me say something that I did not hear from my teachers . . . and I have never said anything I did not hear from my teacher.95

On this traditionalist view, the halakha is regarded as a stable body of knowledge transmitted from generation to generation. The solution to halakhic problems must be sought in the framework of this given body of knowledge, which must not be expanded. The law must be based on the tradition, and on the tradition alone. This extreme traditionalism clearly has its shortcomings. Its distaste for anything new, even that which is needed to fill legal lacunae, makes it incapable of addressing problems for which no solution has been found within the existing body of knowledge, and in particular, finding solutions to needs arising from changing circumstances. To be sure, it is possible to conceive a more moderate traditionalist view that makes provision for innovation through well-defined and institutionalized channels such as legislation. On such a modified approach, traditionalism is 94 tJebamot 3, p. 9, according to a Genizah fragment; the bracketed word appears in the variant in bYoma 66b. 95 bSuka 28a; see too bSuka 27b; tKipurim 3:14, pp. 245–46; bYoma 66b.

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expressed in adherence to tradition and rejection of any deviation from it, but does not exclude innovation where the tradition takes no stand. Innovations are thus possible if they meet two conditions: (a) they do not contradict the existing law, that is, they fill a lacuna; and (b) they are introduced by legislation, not interpretation on the part of a scholar or decisor. A striking example of this approach is evident in the following baraita: Originally there were no controversies in Israel, but one court of seventy[one]96 members sat in the Hall of Hewn Stone, and other courts of twenty-three sat in the towns of land of Israel. And other courts of three97 were in Jerusalem, one on the Temple Mount and one in the Keep. If someone needed a ruling, the local court was consulted. If there was no court in the town, he went to the nearest court. If they had a tradition, they stated it; if not, he and the most distinguished member of the court went to the court on the Temple Mount. If they had a tradition, they stated it; if not, he and the most distinguished member of the court went to the court in the Keep. If they had a tradition, they stated it, if not, both these and those went to the court in the Hall of Hewn Stone. . . . If they had a tradition, they stated it; if not, they took a vote. If those who declared it impure were in the majority, it was declared impure, if those who declared it pure were in the majority, it was declared pure. Thence was issued the law and it became widespread in Israel.98

According to this tradition, the local courts that were found throughout the land of Israel were authorized to rule only on the basis of tradition, that is, according to the existing law as they had received it. Nor were they permitted to introduce anything new. If they had no tradition about the issue brought before them, they sent the litigants to another, higher court. Nor were the courts situated on the Temple Mount permitted to introduce anything new; they were permitted to rule solely in accordance with tradition, that is, the law as they had received it from their teachers. Only the Great Court in the Hall of Hewn Stone had the 96 In MS Vienna and the printed version. It seems that the variant readings reflect the controversy between the first Tanna and R. Judah in mSanhedrin 1:6. 97 The version in the Babylonian Talmud reads: “and two courts of twentythree sat, one at the entrance to the Temple Mount and one at the door of the [Temple] Court.” This version seems preferable, as it is implausible that the courts on the Temple Mount were courts of three; see H. Albeck, Commentary on the Mishnah (Hebrew), Nezikin, 164 n. 5. 98 tSanhedrin 7:1, p. 425, tHagiga 2:9, p. 383, jSanhedrin 1:4 (19c); bSanhedrin 88b.

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authority to introduce new law. According to this description, even the Great Court only introduced new law where there was no tradition, in other words, where there was a legal lacuna. Where a tradition existed, the lower courts ruled accordingly. Thus, the traditionalist approach seeks to preserve the halakha. A sage who upholds this approach will try to solve problems within the framework of the existing body of knowledge, and under no circumstances deviate even slightly from tradition. Even if novel interpretations or distinctions are developed, they will be presented as an application of the received ancient tradition. Conversely, the rationalist approach seeks to enhance the halakha. A sage who takes this approach will try to interpret the law in accordance with its rationale and purpose. He will not be apprehensive about introducing new distinctions, and sometimes will even be willing to deviate from the ancient law, if he is of the view that the law’s underlying rationale mandates this. Such a stance is discernible in the teachings of R. Akiva: “And she that is sick with her impurity [lit., nida, seclusion]” (Lev. 15:33): The ancient elders said: [It means] she must not paint or adorn herself until she enters into [immerses herself in] water; until R. Akiva came and taught: It will bring about animosity and he [her husband] will want to divorce her. How then are we to observe [the injunction concerning] ‘and she that is sick with her impurity’? She shall remain in her impurity until she enters into water.99

The ancient elders interpreted the laws of women’s impurity broadly, forbidding the menstrually impure woman to “paint or adorn herself.” As we can see from the wording of the baraita, this was the accepted law at the time of R. Akiva. But R. Akiva objects to this law, interpreting the word “nida” (seclusion) as having a more limited meaning, namely, the state of impurity that persists until the woman has immersed in water. This objection is not only significant in itself, but also in terms of how R. Akiva argues for it: “It will bring about animosity and he will want to divorce her.” His argument is based, not on Scripture or the formal rules of midrashic exegesis, but on substantive, ethical grounds: the probability that harm would be done to the couple’s married life, and in particular, to the woman.100 This kind 99 Sifra, Metzora 5, 9, 12; jGitin 5:11 (50d); bShabat 64b. 100 The version in the Babylonian Talmud reads, “She will be repulsive to her husband”; and the Jerusalem Talmud reads: “She herself must induce this ugliness, and he will want to divorce her.”

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of interpretation is characteristic of the rationalist approach, which seeks to explore the law in light of its underlying rationales. We do not know what the ancient elders replied, but we can conjecture that they supported their own position by arguing for the primacy of tradition: “the original Mishnah is immutable.”101 For our purposes, what is important is the following comment in the Jerusalem Talmud, “The elders follow the House of Shammai and R. Akiva follows the House of Hillel.”102 This would appear to reflect an affinity in principle between the House of Hillel and R. Akiva, beyond mere concurrence regarding this particular issue. Both maintain that practical and ethical considerations may be cause for change in the received law, whereas according to the elders and the House of Shammai, such change is impossible. VI

Open Knowledge and Closed Knowledge in the Yavneh Period

As we said, the ideal of closed knowledge is based on the traditionalist approach, while that of open knowledge is based on the rationalist approach. These associations are not merely theoretical, but can be confirmed by comparing the method of study used in the study hall of R. Eliezer with that used in R. Akiva’s study hall. The following Mishnah records a debate in R. Eliezer’s study hall concerning the laws of leprosy. R. Eliezer was asked, what is the ruling where a bright spot the size of a sela erupted on the palm of someone’s hand and covered up the scar of a boil? He said to them: The patient must be quarantined. They said to him, for what purpose, seeing that it is neither capable of growing white hair, nor can it effectively spread, nor does live [raw] skin cause in it any

101 See ARN1, 2 (p. 8). In ARN2, 3 (p. 12), only the opinion of the ancient elders is adduced. 102 According to the House of Shammai, a man should not divorce his wife unless he finds “something unseemly” about her (mGitin 9:10), hence there is no fear a woman will be divorced because she is unattractive to her husband. But the apprehension about divorce does arise with regard to the House of Hillel, who say that he may divorce her “even if she has [merely] burnt his food,” and especially on the view of R. Akiva, who says he may divorce her “even if he [merely] finds another more beautiful than she is.”

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impurity?103 He said to them: it is possible that the spot will contract and then spread.104 They said to him, but what about when its size is only that of a grain?105 He said to them, I have not heard [the ruling regarding this case]. Said R. Judah b. Bathyra to him, May I submit an argument about this? He said to him, if you will thereby confirm the ruling of the Sages, well and good. He said to him: it is possible that another boil might arise outside it and then spread onto it.106 He said to him, You are a great sage, for you have sustained a ruling of the Sages.107

With regard to the law, R. Eliezer gave a clear answer — the person should be quarantined, but when he was asked to explain the rationale for this law, he replied, “I have not heard” — I have not received a ruling regarding this case. On hearing this answer, his student R. Judah b. Bathyra asked for permission to suggest an explanation for the difficulties raised by this law. R. Eliezer only agreed to listen if the objective of the explanation of the law’s rationale was to confirm the received law. When it was explained to him to his satisfaction, he complimented his student, “You are a great sage, for you have confirmed a ruling of the Sages.”108 A great sage, according to R. Eliezer, is not one who is creative and introduces legal innovations, but one who preserves and sustains the existing law. The interpretive tools of exegesis and reasoning are used by R. Eliezer to preserve the dicta

103 The three indications of impurity due to skin afflictions are as follows: “white hair” — at least two white hairs growing from the lesion; “spreading” — if the affliction spreads after quarantine; “live skin” — if live skin the size of a lentil is found within the afflicted area; see Leviticus 12; Albeck, n. 97 above, introduction to tractate Negaim, 195. These signs cannot occur in the case at hand: hair does not grow on the palm of the hand, a boil does not spread on the skin, and it does not cause impurity due to a live spot. 104 The bright spot could contract during the first week of seclusion, upon which the priest would declare it pure, but later spread into the boil, rendering it impure. 105 What about a bright spot over a boil the size of a small grain, which even should it contract and then spread, would not spread to the boil but only the skin, which is not considered spreading that indicates impurity? If it was to contract and the priest declared it pure, it would be regarded as healed, and if it then spread again, that would be considered a new bright spot. 106 A new boil might form by the end of the week and the old boil could spread into it; this is regarded as spreading that indicates impurity. 107 mNegaim 9:3. 108 The same dialogue is also found in mNegaim 11:7.

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of the Sages and corroborate the received law, not to enhance the law. At his academy, the course of studies concentrated mainly on preserving the tradition and transmitting it intact to the next generation.109 R. Eliezer’s pedagogic methodology does not make room for any critique of the tradition, or even for new readings or enhancements; exegesis and reasoning are only employed to validate the existing tradition. Hence his praise for his student, “You are a great sage, for you have sustained a ruling of the Sages.” Conversely, the rationalist approach stresses study of the law’s underlying rationale. It admits the possibility of critique of the traditional law on the basis of exegesis and study. The validity of the law, on this view, does not depend solely on tradition, but also on the law’s rationale. A sage who takes a rationalist approach will be willing to engage in substantive examination of the received law, and will even be willing to retract the received law on the strength of such an examination, if convinced that this is warranted by the law’s rationale. R. Akiva’s approach, as reflected in the following baraita, serves as a good example: When R. Akiva was presenting the laws for his students, he said: anyone who has heard a rationale that counters the view of his colleague should come and speak. R. Shimon said in the name of R. Eleazar b. R. Judah, a man of Bartota: The House of Shammai and the House of Hillel did not disagree about a man who saw [a discharge] on the first day, and on the second day it stopped, and on the third day he saw it twice, for this [they agree] is not a true zav. What did they disagree about? One who saw [discharge] twice, or one as copious as two, and on the second day it stopped, and on the third day he saw it once.110 [R. Akiva] said: Not all who leap up [to speak] are praiseworthy, only he who gives a rationale. R. Shimon said: Thus said the House of Hillel to the House of Shammai: What if he saw two [discharges] at the beginning and one at the end? They said to him: If he saw one [discharge] at the beginning and two at the end, the clean day [in the middle] canceled what he saw [first], and at present he has two sightings [of discharge]. But if he saw two at the beginning and one at the end, since he must count seven [clean days after the two

109 Indeed it was R. Eliezer who was praised for his ability to retain what he had been taught, being described as “a plastered cistern that loses not a drop” (mAvot 2:8); and see section IX below. 110 He is a true zav according to the House of Shammai, but the House of Hillel say: “he defiles those objects on which he sits or lies, and must immerse in running water, but he is exempt from bringing an offering” (mZavim 1:1).

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discharges], the sighting canceled the clean day and now he has three [sightings of discharge]. R. Akiva went back to teaching the matter in accordance with the words of R. Shimon.111

R. Akiva invites critique: “anyone who has heard a rationale that counters the view of his colleague should come and speak.” The phrase “his colleague” encompasses teachers too. R. Akiva encouraged his students not to be in awe of their teacher’s authority, and to take issue with his views.112 His willingness to debate was motivated by a sincere desire to subject the accepted tradition to scrutiny. In his opinion, the rationale for a tradition is the basis for determining its validity. He is not impressed when R. Shimon quotes a tradition about the law in question that differs from his own, for “not all who leap up are praiseworthy, only he who gives a rationale.” But when R. Shimon explained the rationale, R. Akiva was convinced and “went back to teaching the matter in accordance with the words of R. Shimon.” R. Akiva invokes exegesis and reasoning as critical tools vis-à-vis the tradition, and is thus willing to abandon a tradition he has upheld and replace it with another. VII Epistemology Let us return now to the sources concerning the educational methods of the Houses of Hillel and Shammai and see how they reflect the said fundamental disagreement over the concept of knowledge. Let us begin with their disagreement about accepting students, discussed above. Why does the House of Shammai object to teaching Torah to students who are not “intelligent and modest and of good parentage and wealthy”? In terms of the concepts discussed above, we can say that the House of Shammai’s view that Torah study should be the domain of a small elite circle reflects the idea of closed knowledge. The transmission of knowledge only within a closed and defined group ensures conservation of the knowledge and its character. The thesis that only a closed group of students is worthy of acquiring knowledge and transmitting it to future generations reflects tacit and undisclosed conventions with regard to the said knowledge that are accepted 111 tZavim 1:5–6, pp. 676–77. 112 Unlike R. Eliezer, who said, “all who teach the law in the presence of their teacher deserve death” (Sifra, Shemini, Mekhilta de Miluim, 32–33 [p. 45c]) and parallels. See Gilat, n. 13 above, 100.

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within the group, but not necessarily by those outside it. If the knowledge is not made accessible to other groups, these assumptions are not challenged, nor is the knowledge itself subjected to critique. The House of Hillel’s approach, on the other hand, is that “one should teach everybody.” Its explicit rationale is that “many sinners were among Israel, and they drew themselves close to the study of the Torah, and became pious and decent” — if Torah study is beneficial, then sinners ought to be taught too. But is there no danger alongside the benefit? Is there no apprehension on the part of the House of Hillel about the Torah’s being abused and distorted by unworthy students? They did not express any such apprehension. It seems that on their outlook, there is nothing wrong with making Torah studies and knowledge accessible to all who seek it. The House of Hillel’s approach, then, reflects the ideal of open knowledge. This controversy corresponds to the different educational programs of R. Eliezer and R. Akiva, as we saw above. Transmission of knowledge within a closed elite group characterizes the approach of R. Eliezer, who seeks to sustain the Sages’ dicta, whereas the House of Hillel’s approach is reflected in the conduct of R. Akiva, who declared: “anyone who has heard a rationale that counters the view of his colleague should come and speak.” Further differences between the study methods of the Houses can be seen in both the Babylonian and Jerusalem Talmuds. A well-known tradition explains why the law is determined in accordance with the House of Hillel: R. Abba stated in the name of Samuel: For three years there was a dispute between the House of Shammai and the House of Hillel, the former asserting, the law is in accordance with our views, and the latter contending, the law is in accordance with our views. Then a heavenly voice went forth and said, “Both are the words of the living God, but the law is in accordance with the rulings of the House of Hillel.” Since, however, both are the words of the living God, what was it that entitled the House of Hillel to have the law decided in accordance with their rulings? Because they were kindly and modest, they studied their own rulings and those of the House of Shammai, and not only that, they even mentioned the opinions of the House of Shammai before their own. 113

According to this tradition, the law is decided in accordance with the view of the House of Hillel because of their good traits of character 113 bEruvin 13b.

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and amiable nature. These are expressed in the Houses’ different study habits. Unlike the House of Shammai, the House of Hillel “studied their own rulings and those of the House of Shammai,” and not only that, but they “mentioned the opinions of the House of Shammai before their own.” This invites the question: “Was the law determined in accordance with their view just because of the preponderance of their good traits of character?”114 What is the connection between their personal qualities and good nature, and the law’s being decided in accordance with their view? The answer that has been widely given is that there is indeed a connection between personal moral virtues and attaining the truth.115 But we may wonder whether the explanation indeed invokes the good nature of the House of Hillel. Is the explanation really about the personal qualities and personality traits of the House of Hillel, or is it, rather, about their methods of study? A tradition reported in a parallel passage in the Jerusalem Talmud contributes to our understanding of the explanation: Why did the House of Hillel merit the law’s being decided in accordance with their view? Said R. Judah b. Pazi: They mention the opinions of the House of Shammai before their own, and not only that, but when they see [merit in] the opinions of the House of Shammai, they retract their own.116

This tradition characterizes the House of Hillel in a similar way, but does not refer to personal traits; only qualities of their mode of study are mentioned. The two characteristics cited are that they “mention the opinions of the House of Shammai before their own” and that they “see” the opinions of the House of Shammai — meaning, they are convinced by them — and retract their own. From the Jerusalem Talmud it is clear that the explanation for the fact that the law is determined in accordance with the view of the House of Hillel turns on their mode of study. It is likely that this was the original tradition, and this is, therefore, the thrust of the explanation. It is only the version in the Babylonian Talmud that adds the personal, psychological dimension, illustrating and highlighting the basic methodological difference between the Houses. 114 R. Joseph Caro, Klalei Hagemara, in R. Jeshua Halevi Talmision, Halikhot Olam (1970 edition, p. 51). 115 This is the thrust of the explanation offered by R. Joseph Caro and many others. See Avi Sagi, Elu V’elu, A Study on the Meaning of Halakhic Discourse (Tel Aviv: 1996), 33–34, 118–24, 131–33. 116 jSuka 2:8 (53b).

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Combining the two traditions yields three traits: (1) studying their own opinions but also those of the House of Shammai; (2) studying the views of the House of Shammai before their own; (3) seeing merit in the views of the House of Shammai and retracting their own. The three traits are compatible; all reflect respect for one’s adversary. In my opinion, this is not simply a matter of good manners, but the expression of a methodology for learning and a unique concept of knowledge.117 Before elaborating on this, let us examine the sources we have adduced, and assess the extent to which they can be viewed as authentic expressions of the Houses’ modes of study. Both traditions are relatively late, from the Amoraic period. The tradition in the Babylonian Talmud is reported in the name of Samuel, a Babylonian Amora of the first generation, while the tradition reported in the Jerusalem Talmud is attributed to R. Judah b. Pazi, a third generation Amora of the land of Israel. It may well be that these Amoraim were preserving earlier traditions about the study habits of the Houses, but it is no less reasonable to suppose that they are offering conclusions from their own studies. The Mishnah does mention the disagreements between the Houses, presenting the view of the House of Shammai along with that of the House of Hillel. Furthermore, the House of Shammai’s view always precedes the House of Hillel’s. In some cases the House of Hillel retracts its view and rules in accordance with that of the House of Shammai, whereas the House of Shammai does not do so (with one exception).118 If we assume that the Mishnah 117 To be sure, there is a certain correlation between intellectual modesty and personal humility. Indeed, the passage in the Babylonian Talmud draws a moral conclusion in favor of modesty: “This teaches you that he who humbles himself, the Holy One, blessed be He, raises up, and he who exalts himself, the Holy One, blessed be He, humbles; from him who seeks greatness, greatness flees, but he who flees from greatness, greatness follows.” 118 mEduyot 1:13–14: “These are matters concerning which the House of Hillel retracted and taught in accordance with the opinion of the House of Shammai.” There is no similar compilation with regard to the House of Shammai, though there is one instance where the Mishnah implies that the House of Shammai accepted the view of the House of Hillel (mTerumot 5:4, cf. tTerumot 6:4), which is duly commented on by the Jerusalem Talmud: “But for here, we never found an occasion when the House of Shammai conceded to the House of Hillel” (jTerumot 5:4 [43c]). For a discussion of the House of Hillel’s retractions, see Shapira and Fisch, n. 3 above, 476–81.

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reflects the teachings of the House of Hillel, these features are due to them. It remains to be seen what we can conclude about the Houses’ actual modes of study from the Mishnah. It is, I believe, reasonable to suppose that the Mishnah reflects the teachings of the House of Hillel, and we can use it as a source of information regarding the studies that generated these teachings. With regard to the House of Shammai the situation is more complicated. It can be argued that since we do not have a Mishnah that reflects the teachings of the House of Shammai, and thus cannot compare it to that of the House of Hillel, we cannot be certain that it would differ from the Mishnah on the points mentioned in the Babylonian and Jerusalem Talmuds. Nevertheless, it seems that to some degree we can corroborate the systemic difference between the Houses that emerges from the Talmuds. As Urbach noted, the early halakha, namely, that which preceded the era of Shammai and Hillel, is presented in our sources as anonymous and devoid of controversy.119 These traits are characteristic of the decisions of legal institutions, whose interest is to determine the law by which people comport themselves. They are also characteristic of custom, which is also devoid of controversy. Urbach thus concluded that the courts, and customary practice, were the sources of the early law. On the other hand, the later law, which is characterized by attribution of rulings to named individuals, and the existence of controversy, originated in the academies that emerged at the end of the Second Temple period, and developed after the destruction of the Temple. As we saw, the House of Shammai’s approach tends to conserve the early halakha. If we assume that this also applies to methods of study, it is likely that the methodology of the House of Shammai was to teach the law anonymously and without debate.120 There is thus some basis, though

119 See Urbach, n. 75 above. 120 Note that there is no contradiction between the concept of tradition and the assumption that some laws originated in legislation and judicial rulings. The former does not mean that every single law can be traced back to Moses at Sinai. Tradition is holy and binding in the sense that it embodies the ancestral usage, and this encompasses ancestral decisions and rulings that were, when handed down, innovative. It is clear, e.g., that the traditionalist approach does not object to Rabbinic laws, whether based on dicta of the Prophets or the elders.

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— since we have no records from the Shammaitic school — no explicit proof, for the Talmuds’ typological observations about the Houses and their methods of study. Let us now explore what grounded these different approaches, and what can we learn from them about the Houses. As we said, the early halakha was based on tradition. Fidelity to tradition is the salient element of the Pharisaic outlook during the Temple period, and was reflected not only in law and conduct, but also in modes of study. Knowledge was transmitted from generation to generation, from father to son and from teacher to student. Neither students nor teachers were exposed to different ideas, or knew of any tools that might be used to critique the ancient law that had been handed down to them. The received traditions were “closed knowledge.” The House of Shammai continued this pattern of handling knowledge. They did not “see” the opinions of their adversaries: they were unable to gain knowledge of these views, and unable to ascertain their rationales. There was thus no way for them to be convinced of the merits of their adversaries’ views, so they did not retract their own. The House of Hillel took a different path. They studied their counterparts’ views, and even did so prior to studying their own. This mode of learning exposed them to other opinions and engendered a process of critical assessment of the views. At the end of this process they sometimes chose to accept the view of their opponents and retract their own. We can now proceed to examine the Houses’ debates and polemics. As we know, they held debates, in which both sides raised arguments of a similar nature, based on exegesis and reasoning. If, as we have argued, there was a difference in the Houses’ respective modes of study, presumably it should be evident in this context as well. In the past, scholars claimed that the House of Shammai used exegesis only to confirm existing traditions (preservative exegesis) while the House of Hillel also used it to introduce new teachings (creative exegesis).121 But it is difficult to prove this contention. However, the Houses’ different stances on retracting their views may help in identifying their

121 E.g. Frankel, n. 30 above; Gilat, n. 13 above; I. Sonne, “Schools of Shammai and Hillel seen from within,” Louis Ginzberg Memorial Volume (NY: 1945), 275–91.

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respective polemical styles.122 The willingness of a party to withdraw its views in the course of an argument is indicative of its attitude to the debate and the arguments raised therein. It obviously attests to sincerity and seriousness about the debate, and openness to the opponent’s arguments. But it also attests to the fact that the said party holds the arguments put forward in the debate to be the true, and complete, justification for its stance. In the context of a halakhic controversy, one’s willingness to retract his view in the wake of a debate shows that he regards a law’s rationale as its very foundation. Rejection of a rationale that has been put forward for a law thus entails that the law itself must be retracted. On the other hand, refusal to retract after one’s argument has been refuted attests either to sheer obstinacy, or to the fact that one does not believe the rationales adduced in the debate to reflect the law’s true foundation. On this approach, the source of the law’s validity does not reside in its rationale, but elsewhere — for example, tradition. The willingness of the House of Hillel to retract their views and rule in accordance with those of the House of Shammai, when persuaded by their arguments, demonstrates that they regarded a law’s rationale as its true foundation. The fact that the House of Shammai did not do this, but always stood by their original view, implies that in their eyes the authoritative source of halakhic validity was not reason but tradition. VIII

The Halakha is in Accordance with the View of the House of Hillel

Given my argument thus far, we can say that the tradition in both Talmuds that the law is decided in accordance with the view of the House of Hillel relates not just to the details of the laws themselves, but also to the meta-halakhic sphere. Furthermore, the determination that the law is decided in accordance with the view of the House of Hillel resulted from a fundamental acceptance of the principles of the House of Hillel’s methodology. Indeed the Mishnah itself, which records controversies and presents the views of those who prohibit and 122 This is discussed in detail in Shapira and Fisch, n. 3 above. We sought to argue there that the Houses differed somewhat in the nature of their arguments, insofar as the House of Hillel raised arguments against the House of Shammai from tradition, whereas the House of Shammai based their arguments against the House of Hillel on reasoning, both schools trading, so to speak, in the coin of their opponents, but this needs further study.

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those who permit, those who render a matter impure and those who render it pure, reflects the victory of the method of the House of Hillel. In fact, this is explicitly discussed by the Mishnah: And why do they record the opinion of one person among the many, when the law must be in accordance with the opinion of the many? So that if a court prefers the opinion of one person, it may rely on him. . . . R. Judah said: if so, why do they record the opinion of one person among the many [and proceed] to set it aside?123 So that if someone should say, thus have I learned the tradition, it may be said to him, you heard it in accordance with the opinion of so-and-so.124

The question “why do they record the opinion of one person among the many?” implies that this is the accepted practice, and thus indicates that an outlook similar to that of the House of Hillel had indeed been adopted. Just as the House of Hillel used to cite dissenting opinions, so the view of one individual among the many is recorded.125 This being the case, the Mishnah inquires into the rationale for this practice. The two answers given, namely, that of the first Tanna and that of R. Judah, reflect different positions as to minority opinions. According to the first Tanna, a minority opinion is recorded because in the future it is conceivable that a court will prefer it over the majority view. As a rule, a court cannot annul the decisions of another court unless it is greater in wisdom and in number. But if it has something to rely on — the rejected minority opinion — it can overcome this restriction and change the law accordingly.126 In other words, the rejected minority opinion has normative weight. In the opinion of R. Judah, on the other hand, the minority opinion is only mentioned to indicate that it has been rejected. Minority opinion has no normative value whatsoever, and is cited only to ensure that this has been made clear. The opinion of the first Tanna connotes the possibility of 123 Variant reading in MS Kaufmann, “to set them aside.” This appears to be part of the answer, cf. the Tosefta quoted below. This reading may also be plausible for the printed version of the Mishnah. 124 mEduyot 1:5–6. 125 Let me be more precise. When the House of Hillel cited the opinion of the House of Shammai, its own view, that is, the opinion of the House of Hillel, had not yet been accepted as binding law, whereas when the Mishnah cites the opinion of an individual, it does so on the assumption that there is a decision rule that the law is determined by the majority view. 126 See Rabad ad loc.

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changing halakhic rulings. Reporting dissenting views enables later courts to change laws decided earlier. This calls to mind the approach of the House of Hillel, who are willing to retract their views and endorse the possibility of new understandings of the law. It is interesting to note that in the Tosefta, the names of the Tannaim to whom the aforementioned positions are attributed are reversed: the Sages say, “the opinion of one person among the many is recorded only to set it aside,” whereas R. Judah says, “lest a time comes when it is necessary for them to rely upon it” (tEduyot 1:4). This may be an incidental variant, as is commonplace in the talmudic literature, but it is also quite plausible that the variation was intentional, expressing the divergent views of the respective editors of the Mishnah and Tosefta on the value of minority opinions.127 According to the editor of the Mishnah, minority opinions have normative value, whereas according to the editor of the Tosefta, minority views have no normative value and are cited only to indicate that they have been rejected. The structure of the chapter within which the mishnaic passage is found supports this contention. The first chapter of tractate Eduyot of the Mishnah clearly expresses the rationalist approach of the House of Hillel. It opens with the important principle, “one should not always persist in his opinion” (1:4) and at the end the chapter (1:12–14) enumerates the occasions on which the House of Hillel retracted their view, illustrating that principle. The conception that minority opinions are to be cited fits in well with the theme of the chapter, particularly the Tanna’s dictum, “So that if a court prefers the opinion of one person, it may rely on him.” In the Tosefta, on the other hand, none of these elements are present. Hence it would seem that “the opinion of one person among the many was recorded only to set it aside” reflects the approach of the editors. The principle of majority rule that is at the heart of tractate Eduyot mandates further investigation in light of the two basic outlooks we have set forth.128 From the traditionalist perspective, majority rule cannot serve as a means of decision making, since tradition is the sole authoritative source of law. Courts cannot deviate from the accepted

127 Shapira and Fisch, n. 3 above, 491–93, adduces additional differences between the Mishnah and Tosefta that support the hypothesis that the reversed attributions reflect ideological differences. 128 The development and acceptance of the principle of majority rule merits further study, see Urbach, n. 84 above, 93–99.

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law, and the majority has no authority to challenge tradition. This approach is expressed in a law found in the collection of procedural rules for the study hall: “they do not take a vote where there is a tradition.129 If one quotes a tradition and the others say, we have not heard such a tradition — in such a case, they do not take a vote. But if one forbids and the other permits, one says impure and the other pure, and all say, we have not heard such a tradition — on such a matter they take a vote.”130 According to this law, a matter on which there is a tradition is not put to a vote. It is enough if one of the sides, even just one individual, claims to have a tradition, to prevent the majority from taking a vote. In such cases, the law is decided on the basis of the tradition. Decisions are made by majority rule only where there is a controversy over the law, and all agree that they have not heard a tradition. This law does not address cases in which both sides claim to have a tradition. In such cases, would it be possible to hold a vote to decide? On the basis of the rule “they do not take a vote where there is a tradition,” it seems that here too, there would be no vote. The result would be that in such cases the controversy could not be resolved. So adopting the principle that majority rule cannot supersede tradition would lead to a situation where numerous controversies were left unresolved. Furthermore, since the traditionalist sages always speak in the name of tradition, it would never be possible to invoke majority view against them.131 This may explain why the main controversies between the Houses during the Temple period could not be resolved: there was no decision-making procedure that was acceptable to the House of Shammai. The principle that majority rule was the accepted means of deciding the law could only develop in an environment where there was readiness to accept additional sources of legal authority and decision making alongside tradition. It is likely that the principle was 129 Cf. MS Erfurt “they do not take a vote except due to a tradition,” and MS Vienna, “they do not take a vote except where there is a tradition.” The latter version is not compatible with the rest of the law and has to be emended as I have above (the same emendation is made by Rosenthal, n. 90 above, 335). 130 tSanhedrin 7:7 (Zuckermandel edition, p. 425). 131 As we noted, there might have been a more moderate traditionalist view permitting enactment of laws where there were lacunae in the tradition; on this view, in such cases, even traditionalists will put forward arguments on the basis of an authority other than tradition.

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developed and gained acceptance in the academy of the House of Hillel. After the destruction of the Temple, with the ascendancy of the House of Hillel, it came to be the prevailing rule.132 Decision by majority rule allowed the halakha to exit the dead-end in which it had become entrapped at the end of the Second Temple period, and became the principal tool for the organization and clarification of the law in the post-Temple period.133 Indeed, the traditionalist sages offered explicit and tenacious resistance to decision by majority rule, exemplified by the conduct of Akabia b. Mahalalel, who stood by his tradition and refused to retract it despite the majority decision,134 and so too the

132 Decision in accordance with the majority view regarding controversies between the Houses during the Second Temple period is mentioned in the Mishnah apropos the eighteen enactments (“they took a vote, and the House of Shammai outnumbered the House of Hillel,” mShabat 1:4). The very fact the controversy was resolved, especially in this way, is exceptional. Elsewhere R. Meir says, “they took a vote, and the House of Shammai outnumbered the House of Hillel”; this is disputed by R. Jose, who says, “the controversy remains as it was” (mMikvaot 4:1). Indeed, as a rule controversies between the Houses were not resolved, and certainly not by majority rule, but rather, “these [conducted themselves] according to their laws and the others according to their laws” (jJebamot 1:4 (3b); Urbach n. 84 above). Note that even in those cases where the law was decided by majority rule, it was decided in accordance with the view of the House of Shammai, and it was the House of Hillel who accepted the decision of the majority. There is thus no evidence that the House of Shammai ever conceded that majority rule was a legitimate way to decide the law. Another instance where a vote is mentioned was in deciding the philosophical question of whether it would have been better for man not to have been created (bEruvin 13b). Here too, “they finally took a vote and decided that it would have been better for man not to have been created than to have been created” — in accordance with the view of the House of Shammai! (However, the authenticity of this passage is questionable; see E.E. Urbach, The Sages (Hebrew), [Jerusalem: 1975], 224.) 133 See tEduyot 1:1: “When the Sages assembled in the vineyard at Yavneh . . . they said, “let us begin from Hillel and Shammai.” And see Epstein, n. 12 above, 428: “According to the Tosefta, the aim of tractate Eduyot was regulation of the controversies pending from the time of Shammai and Hillel to their own day [i.e., the Yavneh period], their clarification and resolution.” 134 mEduyot 5:6. (The end of the narrative is controversial. The first opinion states “and he was excommunicated and died in excommunication and his coffin was stoned.” R. Judah says, “God forbid that Akabia was excommunicated.”)

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conduct of R. Eliezer, student of the House of Shammai.135 It might well be that this constitutes the explanation for the peculiar way the decision that the law is decided in accordance with the House of Hillel is reported: “a heavenly voice went forth and said, Both are the words of the living God, but the law is in accordance with the House of Hillel.”136 It was the Sages of the House of Hillel who argued against R. Eliezer that the Torah was not in heaven, so it is strange indeed that the decision that the law is to be decided in accordance with the House of Hillel is made by a heavenly voice! Apparently, divine intervention was necessary to convince the Sages of the House of Shammai, who did not accept majority rule. They would not abandon their received tradition on the strength of mere procedure, and the only thing that could possibly have convinced them was direct divine intervention. Another confrontation between majority rule and tradition is recounted in tractate Yadaim. The issue, debated by the Sages at Yavneh, was the status of the land of Ammon and Moab in the Sabbatical year. They decided the matter by majority rule: “they put it to a vote and decided that [residents of] Ammon and Moab are subject to the tithe for the poor in the Sabbatical year.” When this was made known to R. Eliezer, who was not present at the session, “he wept and said, ‘God’s secret [is revealed] to those who fear Him; and to them He makes known His covenant’ (Ps. 25:14). Go and tell them: Care not about your voting! I received a tradition from R. Johanan b. Zakai, who heard it from his teacher, and his teacher from his teacher, and so on back to a law given to Moses at Sinai, that Ammon and Moab are subject to the tithe for the poor in the Sabbatical year.”137 R. Eliezer’s reaction can be understood in two ways.138 The phrase “care not about” may mean ‘do not heed,’ ‘do not rely on.’ On this interpretation, R. Eliezer rejected the Sages’ decision making by majority rule, and admonished them that it is not the majority that decides, but tradition. It is a law given to Moses at Sinai that [residents of] Ammon and Moab are subject to tithes. On this reading, the 135 bBaba Metzia 59b; jMoed Katan 3:1 (81c–d). 136 jBerakhot 1:3 (3c); bEruvin 13b. Also jJebamot 1:6 (3b); jSota 3:4 (19a); jKidushin 1:1 (58d); bEruvin 6b. But tSuka 2:3 and tJebamot 1:13 state: “the halakha is always in accordance with the House of Hillel.” The heavenly voice is not mentioned. 137 mYadaim 4:3 and tYadaim 2:15–16. 138 For a discussion of this Mishnah, see Kahana, n. 92 above, where R. Eliezer’s response is explained in nn. 55, 57.

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mishnaic passage reflects the fundamental and systematic disagreement between R. Eliezer, a student of the House of Shammai and a traditionalist who rejects the principle of decision by majority rule, and the other Sages of Yavneh, who are followers of the House of Hillel, and thus take an anti-traditionalist approach. They welcome majority rule and the possibility of innovative rulings it opens up. An alternative reading of the phrase “care not about” takes it to mean, ‘have no apprehension about.’ On this understanding, R. Eliezer endorsed the Sages’ decision, invoking tradition to support it; the Mishnah reflects reconciliation between R. Eliezer and the Sages: even R. Eliezer, champion of tradition though he is, recognizes the force of decisions the Sages reach by majority rule. To be sure, this reading does acknowledge a certain tension between the two worldviews and modes of decision making. The Sages thought they were deciding about a “new enactment,” whereas R. Eliezer thought that they had followed an ancient tradition. Moreover, in R. Eliezer’s view, a majority ruling is not sufficient in itself, and requires the sanction of tradition. IX

The Legacy of the Houses: Different Approaches to Torah Study

There are additional sources that illustrate the different conceptions of knowledge and modes of study developed by the Houses and their followers. “R. Johanan b. Zakai used to recount the [praiseworthy] qualities of his students. R. Eliezer b. Hyrcanus — a plastered cistern that loses not a drop.”139 The virtue of R. Eliezer, the quintessential traditionalist, is his ability to meticulously and fully retain the tradition. In contrast, R. Eleazar b. Arakh is described as “a spring that gathers force.” This is a salient intellectual attribute: creativity and the capacity to be innovative. The Mishnah reports conflicting evaluations of these traits. On one view, “if all the Sages of Israel were in one pan of the scales, and Eliezer b. Hyrcanus in the other, he would outweigh them all.” In other words, Torah erudition is the foremost quality (“Sinai is preferable”). But the other opinion states, “Abba Saul said in his name: were all the Sages of Israel in one pan of the scales, and R. Eliezer b. Hyrcanus with them, and R. Eleazar b. Arakh in the other pan, he would outweigh them all.” In other words, creative intelligence

139 mAvot 2:8. ARN adds, “a tarred flask which keeps the wine,” ARN1, 14 (p. 58).

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is better than erudition (“one who moves mountains is preferable”). Interestingly, the Fathers according to Rabbi Nathan attributes Abba Saul’s dictum to R. Akiva and implies that the preference for creative intelligence was taught at R. Akiva’s school.140 So we are back to the dispute between R. Eliezer and R. Akiva: is the true sage one who preserves the traditions of the Sages, or one who articulates rationales and introduces new laws? The approach of R. Eliezer is expressed in various dicta attributed to him. The Talmud relates that when he was about to die, R. Eliezer said: “Much Torah have I learned, yet I have not drawn from my teachers even as much as a dog lapping from the sea. Much Torah have I taught, yet my students have only drawn from me as much as [clings] to a paintbrush from its tube [i.e., a miniscule amount].”141 R. Eliezer apparently hints that the amount of knowledge he absorbed from his teachers was far less than what they knew, and what he taught his students was far less than what he knew. In other words, the generations are in intellectual decline. This attitude is typical of the traditionalist school, and in fact points to its weakness. Despite the most strenuous efforts to conserve knowledge, the mission is destined to fail, and some knowledge will ultimately wither and die. R. Eliezer’s educational approach may also be expressed by another well-known dictum attributed to him: “keep your children away from higayon.”142 Now the root ‫ הג”ה‬has a number of meanings

140 ARN2, 29 (p. 59). This was pointed out in A. Goshen-Gottstein, “R. Eleazar ben Arach: symbol and reality,” in I. Gafni et al. (eds.), Jews and Judaism in the Second Temple, Mishnah and Talmud Period: Studies in Honor of S. Safrai (Jerusalem: 1993), 177. 141 bSanhedrin 68a; ARN 1, 25 (p. 81): “I have drawn from my teachers no more than one who dips his finger into the sea. And I have given my students as much as [clings to] a paintbrush from its tube.” See A. Goshen-Gottstein, “A lonely sage on his deathbed” (Hebrew), Tirzah Lifshitz Memorial Volume (Jerusalem: 2004), 79–112. 142 bBerakhot 28b and Rashi ad loc. (The printed version adds “and seat them among the scholars,” but this does not appear in MS Munich, and is also absent from other textual witnesses, see Dikdukei Sofrim ad loc., §6.) The entire saying is not found in the parallel version, ARN1, 19 (p. 70). In a Yemenite MS of tractate Sanhedrin it appears in a different context — in the will of R. Judah b. Bathyra (bSanhedrin 91a), and similarly in some Geonic sources. See M. Sabato, A Yemenite Manuscript of Tractate Sanhedrin and its Place in the Text Traditions (Jerusalem: 1998), 140–42.

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in the Rabbinic literature, yielding a variety of interpretations of the dictum. It can connote ‘reading Scriptures’ — Rashi offers as his first explanation “do not make them read Scriptures too much.”143 But it can also mean ‘talk’ or ‘chatter’ — Rashi’s second explanation is thus “childish talk.”144 An interpretation from the Geonic period interprets it to refer to the wisdom of ancient Greece — logic or dialectics,145 but common though this interpretation is, it has no linguistic basis in the Rabbinic literature. I would like to suggest another interpretation of this dictum. In the Rabbinic literature, a common sense of the root ‫הג”ה‬, relevant to our discussion, is ‘examination’ or ‘inference.’ The Midrash from the land of Israel explains the verse “but on His law he meditates (‫( ”)יהגה‬Ps. 1:2) as referring to Noah, who “inferred (‫)הגה‬ something from something else.”146 The word is used in a similar sense by the Talmud, “Rava said: One should always first learn Torah and then scrutinize it (‫)יהגה‬.”147 First one should memorize the material and learn it from his teachers, and only later examine it in depth. R. Eliezer’s dictum can be interpreted in the same spirit: concentrate on memorizing the traditions, and refrain from analyzing it and drawing inferences.148 R. Akiva, on the other hand, stressed creativity and innovativeness in one’s studies:

143 Rashi ad loc. s.v. mihahigayon. The word ‘higayon’ has a number of meanings in the Bible; see Otzar Hageonim, Berakhot, Interpretations, p. 40. The Arukh, s.v. ‫הג“ה‬, interprets it as meaning ‘to clarify a verse in its true form’; see Kohut’s supplementary remarks on how the root ‫ הג“ה‬is used in the Rabbinic literature. For a survey of the various explanations, see M. Breuer, “ ‘Keep your children away from higayon,’ ” Rabbi David Ochs Memorial Volume (Hebrew), (Jerusalem: 1977). 144 This explanation also has various early forms, see Otzar Hageonim, ibid. 145 Ibid., p. 39 in the name of Hai Gaon; and see S. Lieberman, Greek and Hellenism in Jewish Palestine (Hebrew), (Jerusalem: 1984), 227 nn. 26, 27, 231 n. 60. 146 Genesis Rabbah 26, 1 (p. 244) Midrash Tehilim 1, 12 (p. 11). The Midrash is attributed to R. Judah, and this may be a Tannaitic tradition. Note that in Hebrew, ‘meditate’ also comes from the root ‫הג“ה‬. 147 bBerakhot 63b; bAvoda Zara 19a. 148 This interpretation fits the dictum in the context of R. Eliezer’s remarks when he was on his deathbed. On the other hand, situating the dictum in the context of R. Judah b. Bathyra’s will would entail interpreting higayon as ‘excessive reading of Scriptures.’ See Sabato, n. 142 above, 142.

206

HAIM SHAPIRA R. Akiva says: Scripture says, “drink waters out of your own cistern” (Prov. 5:15), your cistern, at the beginning, cannot produce a drop of water by itself, there was nothing but what was in it. So too a student has learned nothing at the beginning, there was nothing but what he had learned. “And running waters out of your own well” — [later he becomes] like a well. Just as a well gives off running water from every side, so students come to learn from him, as it says, “let your springs be dispersed abroad” (Prov. 5:16).149

R. Akiva contrasts the cistern to the well. The cistern holds but a finite amount — that which it has in it — but the well flows and increases all the time. At the first stage a student is like a cistern, and knows only what he has learned. But at a later stage he is like a well. Memorizing traditions and retaining them is only the first stage in the learning process, but in the advanced stages the student must exhibit creativity and innovativeness. To be a “plastered cistern” is an important attribute for a beginning student, but the ideal scholar has to attain the status of “a spring that gathers force.” This imagery also appears in a passage about the beginnings of R. Eliezer as a scholar and his advancement at R. Johanan b. Zakai’s academy. The passage describes how R. Johanan b. Zakai tried to prompt R. Eliezer to lecture in public: Rabban Johanan b. Zakai said to him: Eliezer, tell us something from the Torah. He answered: I will draw an analogy for you, telling you what I am like. I am like this cistern, which cannot bring forth more water than what has gone into it. He said to him: I will draw an analogy for you, telling you what you are like. You are like a well that gives off water and brings forth water from itself. So you can recount to us more teachings of the Torah than were spoken to Moses at Sinai.150

This anecdote presents the dialogue between R. Johanan b. Zakai and R. Eliezer as a dialogue between innovator and traditionalist. R. Johanan b. Zakai asks R. Eliezer to “tell us something from the Torah.” R. Eliezer understands immediately that the intent is for him to say something new, and answers that he cannot recount anything beyond that which he has received. R. Johanan tries to convince him that he can recount even more than was spoken to Moses at Sinai. R. Eliezer had not mentioned Sinai, but R. Johanan touches on the very

149 Sifre Deuteronomy 48 (p. 112), MS Rome; a similar version is found in bAvoda Zara 19a. 150 ARN2, 13 (p. 32).

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207

core of the traditionalist doctrine, namely, that the tradition the student receives from his master is precisely that which the latter received from his own master, and so forth all the way back to Moses at Sinai.151 If so, there is no way to add and be innovative. R. Johanan therefore tells him that he can recount more Torah than was spoken at Sinai. The role of the student is not only to preserve knowledge, but also to develop and enhance it. This anecdote shifts — as anecdotes are wont to do — the systemic doctrinal differences between the camps to the personal, psychological plane. The passage continues: He asked him twice and thrice, but he refused. Rabban Johanan b. Zakai went out and proceeded on his way. And R. Eliezer sat and expounded more teachings than had been spoken to Moses at Sinai, and his face shone like the light of the sun, and the rays emanating from him were like those that emanated from Moses, and no one knew whether it was day or night.

Here, R. Eliezer, in contrast to his usual image in the sources, is depicted by the narrator as someone who ultimately does expound more than was spoken to Moses at Sinai. The story implies that it was all a matter of inhibitions that R. Eliezer succeeded in overcoming. The anecdote expresses the victory of the rationalist ideal of innovativeness and creativity over the conservationist ethos of the traditionalists. The victory is presented as complete: R. Eliezer the extreme and consistent traditionalist is vanquished, and fully concedes his defeat: the plastered cistern seeks to become a spring that gathers force. We can assume that this anecdote originated in a later school that adopted the path of R. Akiva.152 Conclusion The academies of the House of Hillel and the House of Shammai developed two fundamentally different approaches to the halakha and Torah study. These approaches are reflected in the broad-based halakhic controversy between the Houses, as well as in the way the

151 As the beginning of tractate Avot declares, and is repeated by the Sages many times: mPeia 2:6; mYadaim 4:3; jPeia 2:4 (17a) and parallels. 152 See Goshen-Gottstein, n. 140 above, 178; M. Kister, Studies in Avot de-Rabbi Nathan: Text, Redaction, and Interpretation (Hebrew), (Jerusalem: 1998), 215–16, suggests that the anecdote is a variant of an earlier tradition about R. Eleazar b. Arakh in tHagiga 2:1, p. 398 and parallels.

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HAIM SHAPIRA

Houses’ respective academies were organized, and their educational policies. The House of Shammai’s approach was traditionalist, advocating the ideal of ‘closed’ knowledge. It regarded tradition as the sole source of knowledge and law, and advocated the conservation of knowledge in its original form, and its pristine transfer from generation to generation within a framework open only to students from the social elite. Conversely, the House of Hillel’s approach was rationalist, upholding the ideal of ‘open’ knowledge. Alongside tradition, it recognized additional sources of authority, sources based on human understanding. This outlook sought not only to conserve knowledge, but also to develop and enhance it, and thus favored granting all comers access to learning. On this view, exposing knowledge to numerous students, and the use of modes of study and research that were open and transparent to all, would not be detrimental to knowledge, but on the contrary, would strengthen it. The Houses’ respective legacies were preserved by the Sages who flourished in Yavneh after the destruction of the Temple, such as R. Eliezer, follower of the House of Shammai, and R. Joshua and R. Akiva, followers of the House of Hillel. During this period the approach of the House of Hillel gained ascendancy and became the mainstream orientation. The academy at Yavneh, and subsequent schools, were modeled on the spirit of the House of Hillel.

The Jewish Law Annual, Vol. XVII

JUDICIAL AUTHORITY IN FRAUDULENT-CLAIM CASES (DIN MERUME) YUVAL SINAI*

I II

III

IV

V

VI VII

I

Introduction Din Merume in the Talmudic Literature 1 The baraita in bShevuot 30b–31a 2 jSanhedrin 4:1 3 bSanhedrin 32a 4 Summary Judicial Activism (Spain) 1 The Geonim 2 Maimonides and the rabbis of Spain and Provence 3 Legal foundations of judicial activism Judicial Passivity (Franco-Germany) 1 Withdrawal from adjudication 2 Reluctance to assume judicial responsibility 3 The Maharam: continuity or change? Change in the Ashkenazic Tradition (R. Asher b. Jehiel) 1 The meaning of withdrawal from adjudication 2 Fraud on the defendant’s part 3 A suggested explanation Conclusion Appendix: The Judge’s Authority in Fraudulent-Claim Cases — A Comparative Review

Introduction

The aim of this article is to examine how rabbinical courts handle cases they take to involve fraudulent claims (din merume), and to determine what powers — in particular, judicial discretion — they

* Yuval Sinai is director of the Center for the Practical Application of Jewish Law at Netanya Academic College’s School of Law. He also teaches at the Faculty of Law, Bar-Ilan University.

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YUVAL SINAI

have at their disposal in dealing with such cases.1 I trace the emergence and development of different legal traditions regarding judicial procedure in cases of suspected fraud in the post-talmudic literature. My main focus will be the distinction between halakhic authorities inclined to judicial activism and those who take a more passive approach. There are, of course, various definitions of these terms; here, however, by ‘judicial activism’ I mean a judge’s willingness to take on the case before him and pronounce judgment; ‘judicial passivity’ will refer to a judge’s refusal to adjudicate a given case.2 The distinction between activism and passivity invoked in this article is, therefore, not universal, but limited to the specific context at hand, namely, fraudulent claims. As I have shown elsewhere, most medieval rabbinical authorities did not consistently favor either judicial activism or judicial passivity, and this was the case at all levels of the judicial process.3 1 H.S. Hefetz, “Circumstantial Evidence in Jewish Law” (Hebrew), (Ph.D. dissertation, Hebrew University of Jerusalem, 1974) covers aspects of din merume (mainly in the post-talmudic literature) relevant to assessments of intent (umdenot) and circumstantial evidence, his main subjects. See also Talmudic Encyclopedia 7:290–295; E. Shochetman, Civil Procedure in Jewish Law (Hebrew), (Jerusalem: 1988), 331–32; Y.Z. Oshinsky, “Discretion and estimation on the part of the judge — their influence on litigation” (Hebrew), Sinai 132 (2004), 78–94. 2 As defined by I. Zamir, “Judicial activism: the decision to decide” (Hebrew), Iyunei Mishpat 17 (1992/93), 650. For another definition of these terms see A. Barak, Judicial Discretion (Hebrew), (Tel Aviv: 1987), 213. For a discussion of the different definitions, see idem, “Judicial philosophy and judicial activism” (Hebrew), in A. Porat (ed.), Judicial Activism (Hebrew), (Tel Aviv: 1993), 27–31; and see too the other articles in that volume. 3 See Y. Sinai, “The Court’s Intervention in Litigation according to Jewish Law” (Hebrew), (Ph.D. dissertation, Bar-Ilan University, Ramat Gan, 2004), where I showed that, unlike present-day Israeli law, in the medieval context there was no direct correspondence between judicial and procedural activism. Other studies have also shown that where there was reluctance to assume judicial responsibility, there was also a strong inclination toward arbitration and compromise, that is, a strong inclination not to decide cases by way of the formal laws of the Torah. See the first chapter of Y. Dinari, The Rabbis of Germany and Austria at the Close of the Middle Ages (Hebrew), (Jerusalem: 1984); B. Lifshitz, “Compromise” (Hebrew), in Y. Ungar et al. (eds.), Mishpetei Eretz — Jurist, Jurisdiction and Jurisprudence (Hebrew), (Ofra, Israel: 2002), 137–51. Another issue that has bearing on our topic is the court’s authority to deviate from the law in concrete cases due to considerations of justice. The present article, however, focuses solely on fraudulent-claim cases, din merume; for a

JUDICIAL AUTHORITY IN FRAUDULENT-CLAIM CASES

211

Nevertheless, my discussion will not be confined to the question of fraudulent claims, as this issue by its very nature raises broader questions relating to the judge’s powers in general, and his role in the judicial process, such as whether the judge may rely on his subjective feelings rather than on objective evidence, the role of apprehensiveness about taking on the responsibility of rendering legal decisions (yirat horaa) in Jewish law, and how this impacts judicial deliberations. II

Din Merume in the Talmudic Literature

I have examined at length the talmudic sources of relevance to the issue of din merume — that is, the procedure to be followed when the judge suspects that fraudulent claims have been presented to the court — elsewhere,4 and this article will address the positions upheld in the post-talmudic literature. Nevertheless, as the views of the medieval authorities cannot be understood without some knowledge of the talmudic background, I will preface my discussion with a brief outline of its main contours. 1

The baraita in bShevuot 30b–31a

The earliest Tannaitic source we have is bShevuot 30b–31a. In this passage there is a baraita (introduced by the formula “tanu rabanan”) that derives several laws from the verse “Keep far from a false charge” (Exod. 23:7): Whence do we learn that a judge who knows that a claim is fraudulent (merume) should not say, Since the witnesses give evidence, I will decide it, and the chain [of guilt] will hang round the neck of the witnesses? Because Scripture teaches: “Keep far from a false charge.”

This passage points to several characteristic features of a fraudulent claim. First, it is clear from the wording of the baraita that the reference is to a judge “who knows that a claim is fraudulent.” That is, it seems that the court has no conclusive proof that a fraudulent claim has indeed been put forward,5 but only the judge’s subjective impression comprehensive treatment of extra-legal considerations in halakhic decision-making, see H. Ben-Menahem, Judicial Deviation in Talmudic Law: Governed by Men, Not by Rules (Chur, Switzerland: 1991). 4 Sinai, ibid., ch. 10. 5 For otherwise, the baraita would be stating the obvious. And if there is proof of the fraud, why wouldn’t the judge base his ruling on this proof?

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YUVAL SINAI

that the claim presented to him is untruthful. This is the most novel feature of the laws of fraudulent claims: the judge is forbidden to ignore his inner feelings and rule solely on the basis of the witnesses’ testimony when this testimony conflicts with those feelings; such a verdict might be unjust. This is so despite the well-known principle that “at the mouth [i.e., on the testimony] of two witnesses . . . or three witnesses shall a matter be established” (Deut. 19:15). The judge has a religious duty to reach a decision that reflects the truth.6 Now the baraita does not explain precisely what the term “din merume” refers to, and one might infer from the context that it has to do with cases in which only the witnesses’ testimony is fraudulent.7 But this is not necessarily so. It turns out that the term “din merume” covers all sorts of fraudulent claims, as is reflected in the broad-ranging definition given in the Talmudic Encyclopedia: “A case that appears to the judge to involve deception, whether on the part of the litigants or on the part of the witnesses.”8 How is a court to respond when confronted by such a case? It follows from the language of the baraita that when fraudulent claims are presented to it, a court must distance itself and abstain from handing down a ruling (the judge “should not say . . . I will decide it . . .”) based on the witnesses’ testimony. As interpreted by most of the Early Authorities (rishonim), the baraita requires the court to refuse to adjudicate the matter at all in any case that ostensibly involves fraud. Such an interpretation is consistent with the policy of inaction 6 See Shochetman, n. 1 above, 320–21. For more on this, see the comparative survey at the end of this article. 7 As indeed explained by Rashi ad loc.: “ ‘that a claim is fraudulent’ — [the judge] has inferred from the witnesses’ statements that their testimony is untrue.” 8 Talmudic Encyclopedia 7:290. Cf. Shochetman, n. 1 above, 331: “When is a claim considered to be fraudulent, that is, to raise the suspicion of fraud? This cannot be accurately defined, and much, of course, depends on the judge’s perception. . . . At any rate, there are cases in which it is clear from the circumstances that fraud is to be suspected.” Shochetman proceeds to give a few examples of din merume mentioned in the halakhic literature and in the deliberations of Israeli rabbinical courts. E.g., a case in which a witness testified when the litigant was not present, and when he repeated his testimony in the presence of the litigant, changed his version of the events and retracted his earlier testimony; another example is a case where witnesses contradict each other regarding the substance of their testimony. For further examples see Otzar Haposkim, Responsa Index, HM, #15, p. 199.

JUDICIAL AUTHORITY IN FRAUDULENT-CLAIM CASES

213

(shev veal taase) that seems to be implied by the baraita, and thus is, indeed, plausible, but I would argue that it is not necessarily the correct interpretation, since the main import of the baraita is to reject the purely formalistic approach that relies solely on following standard court procedures, even at the expense of the truth. Indeed, it does not, in fact, recommend either of the alternatives open to the judge — to decline to render judgment, or to conduct an inquiry. 2

jSanhedrin 4:1

There is a rather obscure discussion of the definition of din merume in the Jerusalem Talmud. There are two main interpretations of the sugya, on both of which the Jerusalem Talmud tends to uphold a stance in line with that implied by the baraita in bShevuot, namely, as we saw, that in a case where claims suspected of being fraudulent have been presented, the judge should decline to render judgment. It is possible that the Jerusalem Talmud is presenting an early view specific to the land of Israel, on which the judge may continue to conduct a legal proceeding in the usual way only if he is confident of reaching a true decision. If, however, he feels he will be unable to do so, he may not attempt to deal with the fraud in the course of conducting the proceeding in the usual way. On one interpretation, the judge must decline to render judgment; on the other, he must try the alternative route, namely, arbitrating a compromise between the litigants. 3

bSanhedrin 32a

Elsewhere, I analyzed the central sugya in bSanhedrin 32a, which discusses the limits of the court’s duty to conduct an “inquiry and examination” (drisha vehakira) of the witnesses in the various legal realms that fall within the category of dinei mamonot — monetary law.9 The Talmud’s question has to do with contradictions between Tannaitic sources regarding the obligation to examine the witnesses thoroughly in monetary cases. The sugya begins with R. Hanina’s view that biblical law does indeed require inquiry and examination even in monetary matters, a requirement waived by the Sages so as not to “close the door to borrowers.” After R. Hanina’s explanation and another given

9 Sinai, n. 3 above, ch. 8.

214

YUVAL SINAI

by Rava, the Talmud cites a third, offered by the fifth-generation Babylonian Amora R. Papa: R. Papa said: Both this and the other teachings deal with admissions and loans [i.e., ordinary monetary cases]. In our Mishnah, however, the claim is suspected of being fraudulent, while in the other, the claim is not suspected of being fraudulent.

R. Papa distinguishes between claims that appear to be fraudulent, in which case the court is obliged to conduct an “inquiry and examination,” that is, a thorough inquiry, even in matters of “admissions and loans,” and claims which seem to be genuine, where such an inquiry is not conducted. At first sight, R. Papa’s view seems quite clear. In his opinion, the Sages were well aware that restricting the court’s power to examine witnesses in monetary cases, out of concern for borrowers, held a certain danger — clearly, such a measure would enable dishonest individuals to take advantage of this ‘window of opportunity’ vis-à-vis the admission of evidence. This opening is closed by the mechanism of din merume, which obligates the court, when faced with what seems to be a fraudulent claim, to intervene and question the witnesses thoroughly, even in cases where the thrust of the law would seem to mandate only a very limited inquiry. Underlying this law is the court’s duty to reach a true decision (din emet). It would thus seem that according to R. Papa, the goal of inquiry and examination in cases where fraud is suspected is solely to counter deception and allow a just ruling to be reached. R. Papa’s view does raise difficulties, which are discussed in my aforementioned study, where I also examine the relationship between R. Papa’s view and the sources from the land of Israel (the baraita in bShevuot and the sugya in jSanhedrin).

4

Summary

The Rabbinic literature presents various positions as to how a court should conduct itself when confronted by a claim that appears to be fraudulent. My aforementioned study considered the relationship between the early position from the land of Israel, as articulated in jSanhedrin, and the later Babylonian position expressed in R. Papa’s statement in the parallel Babylonian sugya. The two positions are not necessarily incompatible, nor do they necessarily reflect a basic controversy, but rather reflect a difference in emphasis. The early

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215

position from the land of Israel assumes that the judge should not attempt to deal with what seems to be a fraudulent claim through the regular judicial process, but decline to continue hearing the case, or turn to the alternative path of compromise. This position is consistent with the idea, expressed in the baraita in bShevuot, that the court should distance itself from fraudulent claims, and it has been suggested that this view be understood against the background of the prevailing reluctance to assume judicial responsibility. Later on the Babylonian activist position emerged. On this position, when a judge senses that a claim that has been presented to him is fraudulent, he is authorized, indeed, obligated, to confront the fraud, while at the same time proceeding with the regular judicial process, by carrying out a meticulous examination of the witnesses, an examination that helps him determine the truth and hand down a ruling. In my dissertation, I showed how the ideological roots of R. Papa’s approach can be traced to activist rulings handed down by his predecessors. III Judicial Activism (Spain) Let us now proceed to the main subject of this article: the positions put forward in the writings of the medieval rabbinical authorities, and in particular, the disparity between views expressed as theoretical halakha, on the one hand, and views expressed as law intended for implementation (halakha lemaase) in the responsa literature, on the other. 1

The Geonim

Elsewhere, I explored in depth the positions taken in the Geonic literature, showing that the Geonim adopted an activist stance on which it is the judge’s duty to deal with dishonesty when fraudulent claims are presented in court: nowhere in their writings do we find any hint of the possibility that a judge can decline to adjudicate in a fraudulent-claim case.10 I suggested that this position might be due to the self-confidence of the Geonim and the rigorous discipline they enforced,11 as well as 10 Ibid., ch. 11. 11 See S. Assaf, The Geonic Period and Its Literature (Hebrew), (Jerusalem: 1955), 60. For an example, see M. Margaliot, Laws of the Land of Israel from the Genizah (Hebrew), ed. I Ta-Shma (Jerusalem: 1973), 13. Margaliot notes

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YUVAL SINAI

recognition of their authority as “the court of the entire Jewish people,” and their broad judicial autonomy.12 Judges in Babylonia were appointed to their posts permanently.13 All these factors may well have contributed to the considerable authority wielded by the judges, enabling them to boldly confront deception.14 2

Maimonides and the rabbis of Spain and Provence

In the Mishne Torah, Laws concerning Evidence 3:2, Maimonides rules in accordance with R. Papa’s view in bSanhedrin that “if the judge finds that the case before him bears evidence of trickery and he is troubled about it, the witnesses must undergo inquiry and examination like witnesses in a capital case.”15 In Laws concerning the Sanhedrin 24:3, Maimonides explains at length how a judge before whom a fraudulent claim is presented should conduct himself: Whence do we learn that a judge who knows that a claim is fraudulent (merume) should not say, Since the witnesses give evidence, I will decide it, and the chain [of guilt] will hang round the neck of the witnesses? Because Scripture teaches: “Keep far from a false charge.” How is he to proceed in such a case? Let him assiduously investigate the witnesses with the inquiries and examinations to which witnesses in capital offenses are subjected. If after this thoroughgoing examination, he concludes that there is nothing fraudulent about the suit, he renders his decision on the basis of the evidence. But if he has any scruples about it, suspecting dishonesty, or has no confidence in the witnesses, although he has no valid ground on

12

13 14

15

that whereas the phrase “in my humble opinion,” is frequently used by the Geonim of the land of Israel, it is never used by the Babylonian Geonim, “who are aware of how important they are.” See M. Elon, Jewish Law: History, Sources, Principles, trans. B. Auerbach and M. Sykes (Jerusalem: 1994), 46ff., 1460–61; A. Gulak, Foundations of Jewish Law (Hebrew), (Berlin: 1922), IV, 27–29; M. Ben-Sasson, The Emergence of the Local Jewish Community in the Muslim World, Qayrawan, 800–1057 (Hebrew), (Jerusalem: 1996), 293. See S. Assaf, The Courts and Their Procedures after the Finalization of the Talmud (Hebrew), (Jerusalem: 1924), 38–41. On the methods used by the Geonim to tackle fraudulent claims, see also M. Elon, Human Dignity and Freedom in the Methods of Enforcement of Judgments (Hebrew), (Jerusalem: 2000), 44–49. Quotations from Maimonides in this article are based on the translation in The Code of Maimonides. Book Fourteen: The Book of Judges, trans. A. Hershman (New Haven: 1949) [henceforth, Code], slightly adapted for consistency.

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which to disqualify them; or he is inclined to believe that the litigant is a subtle fraud, and that he led astray the witnesses, even though they are honest, giving their evidence in all innocence; or it appears to him from the whole tenor of the proceedings that some other information is being withheld, and they do not wish to reveal it — in any of these or similar circumstances, the judge is forbidden to render a decision. He should withdraw from the case and let another judge, who can without qualms of conscience pronounce judgment, adjudicate it. For matters of this nature are committed to the heart, and Scripture says, “For the judgment is God’s” (Deut. 1:17).

In Maimonides’ view, the baraita in bShevuot does not assume that adjudication is to be avoided in fraudulent-claim cases. On the contrary, when the judge “knows that a claim is fraudulent,” he must use his power to conduct “the inquiries and examinations to which witnesses in capital offenses are subjected,” in line with the view of R. Papa in bSanhedrin, and the Geonic position outlined above.16 The foundations of this view were identified by R. Joshua Falk in Sefer Meirat Einayim: “According to Maimonides, the investigation is not intended to determine whether he is a deceiver,17 for he is speaking of a case where it is known from the outset that he is a deceiver; it is intended only to vitiate the deception.”18 But what happens, according to Maimonides, if the inquiry and examination have failed to unmask the fraud, and nevertheless, the 16 Here Maimonides may have been following R. Isaac Alfasi, who ruled in accordance with the view of both R. Papa (in his Halakhot, Sanhedrin 1018) and the baraita in bShevuot (Halakhot, Shevuot 1130), probably on the assumption that there was no contradiction between these sources. We may, perhaps, infer from one of his responsa (Teshuvot Hageonim, Harkavi edition, #456, p. 238 [Hebrew translation p. 322]), that Alfasi leaned toward an activist position on the judge’s power vis-à-vis fraudulent-claim cases. In this responsum he insists that “the proficient judge should distinguish the swindler from others, and not rule on the basis of the [usual] legal principles in cases where there is deception, for in so doing he would cause people to lose money; and we have hereby informed you of our secret.” For a comprehensive discussion of this responsum, see Hefetz, n. 1 above, 34–35. 17 As is the case on the approaches of the Tosafot and the Rosh, discussed below. 18 HM 15:12 (elaborated on in the Derisha and Bayit Hadash ad loc.). Falk’s interpretation seems to reflect the plain meaning of Maimonides’ text, in contrast to the interpretations cited below (n. 45), which obscure the differences between the approaches of Maimonides, on the one hand, and of the Tosafot, the Rosh and the Tur, on the other.

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judge has “scruples about it, suspecting dishonesty”? This is the situation considered in the second part of the paragraph, where Maimonides rules that the judge “is forbidden to render a decision. He should withdraw from the case and let another judge, who can without qualms of conscience pronounce judgment, adjudicate it.” Maimonides agrees that a judge must sometimes step down from the bench rather than hand down a ruling the justice of which he is not confident in. This position would seem to accord with that upheld by many of the Ashkenazic rabbinical authorities19 (discussed in the next section), who stressed the element of withdrawing from the adjudication of fraudulent-claim cases. Interestingly, a variant of the Maimonidean text reads as follows: “should withdraw from the case and let the Sovereign of the Universe adjudicate it.”20 On this reading, “it would seem that since he has scruples and suspects dishonesty, no judge should adjudicate it, not him and not anyone else, but let it be adjudicated by the Sovereign of the Universe.”21 As R. Kook explains: It should not trouble us to refrain from adjudication and thereby cause the offender to reap the fruits of his misdeed, when the deception is on the side of the defendant; he therefore said that this is of no concern to us, and what have we to do with the secrets of the All-Merciful?! It is our duty to observe Torah law, which has forbidden us to adjudicate fraudulentclaim cases, and if the dishonest defendant is thereby rewarded, he will be judged by the Sovereign of the Universe, who has several alternatives open to Him, may He be blessed, to make him disgorge what he has swallowed, with or without his knowledge.22

However, we will see that in fact there is a significant difference between the position of the scholars of Ashkenaz and that of Maimonides. From a theoretical point of view, there is indeed no disagreement between them, for in the Code Maimonides does not reject the idea of 19 The similarity is noted by many of the commentators and, as will be shown below (n. 45), influenced the subsequent determination of the law. 20 This is the reading found in most MSS and printed editions of the Tur, HM 15; R. Solomon Luria, Novellae on the Tur (cited in Perisha, HM 15:3); Mirkevet Hamishne citing R. Jacob b. Samuel of Sandomierz, Responsa Beit Yaakov, #46; Birkei Yosef, HM 15, at the end. 21 Bayit Hadash ad loc., adding that this is in accordance with “the responsum of the Rosh,” which will be discussed below, Sec. V.2. 22 Beer Eliyahu 15:7.

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withdrawing from adjudication, and, as we will soon see, some of the rabbis of Ashkenaz also maintain that, in certain cases, inquiry and examination of the witnesses is called for. However, in the coming sections I will demonstrate that there is a substantial difference between the position upheld by the authorities of Ashkenaz, on the one hand, and that of Maimonides and the rabbis of Spain, on the other, with regard to both the relative weight they assign each of the alternatives, and their preference for judicial activism or passivity at the level of practical halakha (halakha lemaase), as expressed in the responsa literature. First, however, let us reexamine what Maimonides says in the Code. R. Joseph Caro23 notes that the correct reading is indeed “let another judge, who can without qualms of conscience pronounce judgment, adjudicate it,” not “let the Sovereign of the universe adjudicate it.” The former (“let another judge . . .”), is in fact the reading found in most manuscripts and printed editions.24 The variant reading, of course, conveys a completely different message. On the standard reading, a judge who is apprehensive that there is some deception in the claim presented to the court should indeed “withdraw from the case,” and pass the case on to another judge who feels more at ease; this judge will hand down a ruling as he sees fit. Maimonides’ wording seems to imply that he has concerns about the possibility that a case where fraud is suspected will remain undecided due to the judge’s withdrawing from judgment.25 In his view, “the inquiry is intended only to vitiate the deception, and so even if this judge cannot establish the truth by inquiry and examination and vitiate [the deception], in any event there are probably others who will inquire or ascertain more from their

23 Beit Yosef, HM 15. The Derisha ad loc. plausibly suggests that the Tur did not actually have the “Sovereign of the universe” reading in the text of Maimonides he was using, but preferred that reading since he himself ruled in accordance with the view of the Rosh, and therefore emended the text accordingly. 24 See the list of variant readings in the Frankel edition of the Code, ad loc. That the correct reading is indeed a judge “who can without qualms of conscience (mi shelibo shalem; literally: “whose heart is whole”) pronounce judgment” also follows from the subsequent text: “for matters of this nature are committed to the heart,” that is, to he “whose heart is whole” and not to “the Sovereign of the universe.” 25 However, it does not seem that Maimonides conditions the judge’s withdrawal on the possibility of finding a replacement judge.

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inquiry and examination.”26 Another judge should therefore be given a chance to continue conducting the proceeding and hand down a true decision.27 In his Code, therefore, the emphasis is on the judge’s actively dealing with the fraud, and only when there is no alternative, when after a thorough inquiry and examination the judge is still apprehensive that the case before him involves deception, does Maimonides — in principle — permit the judge to withdraw from adjudicating, with the manifest objective of having the case decided by another judge, who can confront the deception more successfully, and will be at ease with his ruling. Maimonides’ emphasis on this activist element is much more strikingly expressed in his ruling as to the law intended for implementation in an interesting responsum in which he was asked about someone who, on his deathbed, had mandated that his wife was to be the legal custodian (apotropos) for the heirs, who were minors.28 The widow gave one of her daughters a large dowry, including the deceased’s entire estate, so that nothing remained for the other heirs. Maimonides writes: To conclude: Since by all appearances and circumstances this dowry was taken from the estate of the deceased, the court must study the matter very, very carefully and not rush to pronounce judgment. For it was in such a context that the law of din merume was stated. And if it transpires that the money must be restored to the orphans, or that the widow has the wherewithal to pay back [what she appropriated from the estate] so that the orphan may recover what was stolen from him, then that is the judgment that should be pronounced. But if it is not verified by witnesses that the dowry is from the deceased’s estate and the widow does not admit this, or if she admits it but does not have the wherewithal to pay it back, then the judge must be very careful, as we have said, and conduct a thorough inquiry and examination, employing many warnings and threatening excommunication with regard to any aspect [of her claim] that seems suspect to the judge. And he should not desist from so doing

26 As paraphrased in Sefer Meirat Einayim ad loc. Given this rationale, we need not accept the distinction made in Urim Vetumim (ad loc., 11) between a judge who is an eminent expert in his generation, whose withdrawal from adjudicating a case will preclude its adjudication by other judges, and an ordinary judge, who, should he withdraw, can be replaced by another judge. 27 Contra the Rosh’s approach as described in Sec. V.1 below. 28 Maimonides, Responsa, Blau edition, #58.

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until a truly just judgment is reached or until the orphan reaches majority and waives his claim. [So wrote] Moses.

Maimonides enjoins the judge to act vigorously and investigate the matter, even employing to that end psychological pressure (threats of excommunication), and emphasizes in conclusion that the judge “should not desist from so doing until a truly just judgment is reached.” Nowhere in the responsum does Maimonides refer to the possibility mentioned in the Code of the judge’s withdrawing from adjudicating the matter if his inquiries fail to achieve their goal. In the specific case considered, he apparently did not suggest this option to the judge, lest he be tempted to take this way out, which would surely be easier than boldly confronting the apparent deception. Hence it stands to reason that Maimonides considered withdrawal from adjudication the default position only theoretically, whereas at the practical level he favored actively and vigorously confronting the deception “until a truly just judgment is reached.”29 A position similar to that of Maimonides and the Geonim, emphasizing active judicial confrontation with attempted fraud, is taken by many Spanish Early Authorities,30 such as R. Meir Abulafia,31 R. Solomon b. Adret (Rashba),32 R. Yom Tov Ishbili (Ritba),33 R. Nissim34 and R. Isaac b. Sheshet Perfet (Ribash).35 A particularly activist position is espoused by the Rashba in a very edifying responsum36 concerning a case in which he suspected a defendant was being deceitful and had

29 Another of Maimonides’ responsa that may represent an activist position is #1 (Blau edition), which implies that in fraudulent-claim cases “the judge can rely only on what his own eyes behold.” However, it is hard to infer anything from this responsum, since it has not been preserved in full: due to blurriness, part of it had to be filled-in by Baneth; see Blau’s comments ad loc. 30 However, most of the Spanish authorities do not refer to Maimonides in the context of fraudulent-claim cases, relying mainly on the sources themselves. 31 See Yad Rama on Sanhedrin ad loc. 32 See Responsa Rashba, 1, #1209; 2, #148 s.v. vehevu yodim. 33 In his Novellae on bShevuot 30b s.v. ehtekhenu. 34 See Responsa Ran, #34. 35 See Responsa Ribash, #108 (p. 109 in Jerusalem Institute edition); #266 (p. 343); #392 (p. 572). See also Responsa attributed to Ribash, #12 (p. 23); #15 (p. 31). 36 Responsa Rashba, 2, #148.

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made false claims. In the responsum, he articulates a principled stand in favor of active, authoritative intervention on the court’s part: Now you must know: Regarding all matters the truth of which is known to the court, although the litigants depart from the path of truth in their arguments, and the litigant has no known witnesses and clear-cut proof, the court must seek a truly just judgment. And the judge should not say: I shall decide only on the basis of witnesses and evidence, and let the chain [of guilt] hang round the litigants’ neck. Rather, he should decide on the basis of the truth, for our sole charge is to judge truly, as Scripture says, “render true and perfect justice in your gates” (Zech. 8:16). And [our Sages] of blessed memory said: “Whence do we learn that a judge who knows that a claim is fraudulent should not say, Since the witnesses give evidence, I will decide it, and the chain [of guilt] will hang round the neck of the witnesses? — Because it is said: ‘Keep far from a false charge’ (Exod. 23:7)” (bShevuot 30b–31a). And the case of Mari b. Isak proves this, for R. Hisda said to him, “Thus do I judge you and all violent people like you.”37 And in [bKetubot 86a] it was said: “[The debtor] alleged that his money belonged to an idolater; and since he acted in an improper manner, he was similarly treated in an improper manner.” And that is proper, and that is the judgment of truth and justice.

While the Rashba does refer to the baraita in bShevuot, he — unlike other Early Authorities, who infer from it that judicial passivity (withdrawing from adjudication) is called for in fraudulent-claim cases — rules that he judge must decide such cases “on the basis of the truth.”38 This is a far-reaching ruling,39 for it implies in the Rashba’s view, the judge can rule in accordance with “matters the truth of which is known to the court,” ignoring the litigants’ false claims. In fact, this uncompromising stance in favor of deciding such cases on the basis of the principle of truly just judgment, and opposition to excessive humility and reluctance to assume judicial responsibility on the judges’ part, is attested to in several of the Rashba’s responsa.40 37 See bBaba Metzia 39b. 38 In the Rashba’s answer there is not even a hint of the possibility that the judge may withdraw from adjudicating a fraudulent-claim case. 39 Rashba seems to be presenting a position even more radically activist than that of Maimonides; in various respects it is similar to that upheld by the Rosh, to be discussed in Sec. V below. 40 See, e.g., Responsa Rashba, 2, #283 and #360. For a comprehensive discussion of these responsa and the Rashba’s disapproval of reluctance to assume judicial responsibility in fraudulent-claim cases, see Hefetz, n. 1 above, 72–76. On the Rashba’s resoluteness, see Y. Baer, A History of the Jews in Christian Spain, trans. L. Schoffman (Philadelphia: 1961–66), vol. 1, 281ff.

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An activist position similar to that upheld by Maimonides and the Early Authorities of Spain is also discernible in responsa by some of the early Later Authorities (aharonim) of Spanish origin,41 as well as in responsa by some Early Authorities of Provence,42 who, as is well known, were strongly influenced by the Spanish scholars.43 Maimonides’ ruling is indeed cited as the law, though in combination with other positions, in the Tur and the Shulhan Arukh.44 While, beginning in the fourteenth century, several Spanish halakhic authorities adopted Ashkenazic positions,45 they do not appear to reflect the majority opinion of the medieval Spanish halakhists.46 41 See, e.g., Responsa Maharam Alashkar, #15, #61; Responsa Mahari Beirav, #56; Responsa Radbaz, 2, #881. 42 See Meiri, Beit Habehira, and the comment of R. Jonathan of Lunel on Sanhedrin ad loc.; Responsa Hakhmei Provence, 1, #7, 10; 2, #12. 43 See I.M. Ta-Shma, Rabbi Zerahia Halevi, Author of Sefer Hamaor, and His Circle (Hebrew), (Jerusalem: 1993). 44 HM 15:3. These authorities did not fully accept Maimonides’ position as outlined above, since they also followed the Rosh (see Sec. V below) in distinguishing between plaintiff and defendant, probably also taking Maimonides’ approach to accord with this distinction (see too Bayit Hadash ad loc.). Others, however, interpreted Maimonides’ ruling in keeping with the approach of the Tosafot (see below), namely, that when the judge is certain that a claim is fraudulent, he must withdraw from adjudicating the case (see, e.g., Kesef Mishne and Lehem Mishne, Laws concerning Evidence 3:2; Radbaz, Laws concerning the Sanhedrin ad loc.; Hagahot Hagra ad loc., 9). The plain language of Maimonides, however, manifests no distinction between either plaintiff and defendant, or between the judge’s suspicion that fraud is being perpetrated, and certain knowledge that this is so (see Derisha ad loc., 3, also quoted in Sefer Meirat Einayim ad loc., 12, which points out the difference between the view of Maimonides, on the one hand, and that of the Rosh, the Tur and the SA, on the other). On the synthesis put forward in the Tur and the SA, see below at n. 165. 45 See Nimukei Yosef, Sanhedrin ad loc.; Responsa Tashbetz, 4, col. b (Hahut Hameshulash), #7 s.v. teshuva, upholding the view of the Rosh. The phenomenon is particularly marked from the 16th century on. Around this time, we find many halakhic authorities of the East discussing the essence of fraudulent claims in the context of betrothal, and synthesizing Maimonides’ approach with that of the Rosh (see Hefetz, n. 1 above, ch. 6). There is, however, almost no sign of these scholars adopting the extreme Ashkenazic approach of the Tosafists. As we will see in Sec. V.3 below, the practical difference between the approaches of Maimonides and the Rosh is not very significant. 46 This is my conclusion from a survey of dozens of responsa by Spanish halakhic authorities in the Bar-Ilan Responsa Project.

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It is possible, as suggested in the previous section with regard to the Geonim, that extra-halakhic factors influenced, to varying degrees, the crystallization of the Spanish activist position. One such factor might be the firm, authoritative stance characteristic of the Spanish halakhic authorities,47 who, as I have shown elsewhere,48 until the fourteenth century49 enjoyed very broad judicial autonomy, including the power to adjudicate capital cases and impose punishment.50 In Spain, “all cases were brought before judicial institutions that had the power to enforce their decisions51 — permanent courts or courts convened by communal muqaddams, community leaders and high officials, most of whom were important Torah scholars.”52 It is only natural that those who possessed authority wielded that authority. We can indeed conjecture that the judicial environment of the rabbis of Spain enabled them to exercise their full authority and power against those who sought to deceive the court, and to arrive at truly just verdicts. In the fourteenth century, however, Jewish judicial autonomy was increasingly restricted by the state authorities,53 and this may have led to some decline in the ability of Jewish courts to deal with fraudulent suits at this time. In addition, of course, the growing influence of the teachings of the halakhic authorities of Ashkenaz upon those of Spain,54 also generated change in the traditional Iberian approach to

47 A few exceptions, that is, Spanish scholars who exhibited humility and reluctance to take on judicial responsibility, are pointed out in Hefetz, n. 1 above, 119. 48 See Sinai, n. 3 above, ch. 3, 2:I.4, and the sources there cited. 49 This is certainly the case relative to the authorities of Ashkenaz of that period, as we will see below. On the breadth of Jewish judicial autonomy in Spain, see Assaf, n. 13 above, 12; Gulak, n. 12 above, IV, 29; J. Rivlin, Bills and Contracts from Lucena (Hebrew), (Ramat-Gan: 1995), 67. On the scope of the judicial autonomy of the Jewish communities living under Muslim rule in general, see Ben-Sasson, n. 12 above, 294. 50 See S. Assaf, Punishment after the Finalization of the Talmud (Hebrew), (Jerusalem: 1922), 14ff.; Baer, n. 40 above, 231–36. 51 On the court as a permanent, authoritative institution in the Jewish communities under Islam in the early Middle Ages, see Ben-Sasson, n. 12 above, 317–25. 52 Assaf, n. 13 above, 55. 53 See Baer, n. 40 above, vol. 2, 64–69. 54 See A. Grossman, “The contacts between Spanish and Ashkenazi Jewry in the Middle Ages” (Hebrew), in H. Beinart (ed.), The Heritage of Spain (Hebrew), (Jerusalem: 2004), 174–89.

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the judicial process. In sum, continuity of judicial attitudes to din merume can be discerned from the time of the Babylonian Amoraim, through the Geonim, up to Maimonides and the rabbis of Spain and Provence.55 3

Legal foundations of judicial activism

What are the legal foundations on which Maimonides’ position rests? First, Maimonides’ position, which emphasizes the importance of inquiry and examination in cases where there is suspicion that claims are fraudulent, is, as I have shown elsewhere,56 consistent with his basic approach to the judicial process, on which inquiry and examination of witnesses is a central legal instrument. Second, from the wording of Maimonides’ statements it appears that he has greatly broadened the scope of fraudulent-claim cases. Not only do the judge’s subjective feelings suffice for the claim to be suspected of fraud, but it even seems that these feelings need not be based on definite knowledge.57 It suffices that he has “scruples about it, suspecting dishonesty,” or “no confidence in the witnesses,” or if “it appears to him from the whole tenor of the proceedings that some other information is being withheld, and they do not wish to reveal it.”58 It could even be deduced from his examples that fraudulent-claim cases need not necessarily involve the suspicion that the witnesses are lying. 55 For similar continuity with respect to invoking the “Open your mouth for the mute” principle (that is, under certain conditions the court may suggest a plea to one of the parties), see Sinai, n. 3 above, ch. 3, part 2. 56 See Sinai, n. 3 above. 57 See Perisha, HM 15:3, which infers from Maimonides’ wording that he deems a case possibly fraudulent if “it seems to the [judges] from the outset that it is fraudulent, for [Maimonides] wrote further that the judge should conduct a thorough inquiry and examination if it seems that there is fraud, and so on.” On the question of whether Maimonides takes suspicion of fraud to suffice, or requires certain knowledge, see the references cited in Sefer Hamafteiah ad loc. 58 R. Haim David Halevi, Dvar Hamishpat, 1:162, inferred from these formulations that “All our Master’s [Maimonides’] statements prove that he was speaking of cases in which there is doubt . . . but [the judge] knows nothing with certainty.” In 16th century Italy an even broader definition of din merume (including evident injustice to someone, even if not caused by lying or deception) is suggested; see Responsa R. Menahem Azariah da Fano, #50. And see Hefetz, n. 1 above, 236.

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This brings us to the third and most important point: we must attend to the considerable weight Maimonides gives to the judge’s own perceptions and opinions in cases of suspected fraudulent claims.59 This follows not only from the many expressions to this effect in the specific section of the Code that deals with din merume (law 3), but also from the context in which the law is found, namely, chapter 24 of the Code’s Laws concerning the Sanhedrin, which is entirely devoted to the judge’s powers. It begins with a forceful declaration: In monetary matters, the judge should act in accordance with what he is inclined to believe is the truth when he feels strongly that his belief is justified, though he has no actual proof of it. It is hardly necessary to say that if he is certain that the opinion he has formed is correct, he should act upon it.

Here Maimonides assigns decisive weight to the judge’s evaluation in the context of the laws of evidence. In his view, the recognition of evidence in civil law depends on “the heart of the judge, who in pronouncing judgment is to be guided by what appears to him to be the true judgment,” and it is within the judge’s power to employ his own personal assessment to alter the rules governing the burden of proof (kim li begava, I am certain of it).60 Maimonides goes on to illustrate the principle with a few examples, and sums up: Matters of this kind are committed to the heart of the judge, who in pronouncing judgment is to be guided by what appears to him to be the true judgment. If this be so, why does the Torah require two witnesses? The answer is: when two witnesses give testimony, the judge is bound to decide according to their evidence, although he does not know whether the evidence submitted by them is true or false.

Maimonides’ position aroused much interest among scholars, both rabbinical61 and academic.62 Taking a broad view of the problem of

59 The relationship between fraudulent-claim cases and the principle that “the judge can rely only on what his own eyes behold” can also be inferred from Maimonides’ responsum #1 (Blau edition); and see n. 29 above. 60 I discuss this power and its source at length in Sinai, n. 3 above, ch. 10. 61 See Sefer Hamafteiah ad loc.; Halevi, Dvar Hamishpat ad loc., 149–60; Talmudic Encyclopedia, 1:140. 62 See, e.g., Hefetz, n. 1 above, 50–64; E. Shochetman, “Methodology of ascertaining Geonic enactments with reference to kim lei be-gavei” (Hebrew), Shenaton Hamishpat Haivri 11–12 (1984/86), 675ff.; S. Albeck, Evidence in Talmudic Law (Hebrew), (Ramat-Gan: 1987), 65–67; A. Edrei,

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adjudication on the basis of assessing intent, he generates an abstract principle from the talmudic sources,63 which are rather local and casuistic in nature. Hefetz has noted that this passage reflects “the full extent of the revolutionary nature of the general theory of umdena (assessment of intent) that Maimonides created,” which “completely reverses our basic concept of the ‘balance of power’ between judge and witnesses in the context of the rules of evidence in talmudic law.”64 On the Maimonidean conception, it is the judge who is the central, indeed, almost the only pillar supporting the edifice of the laws governing interpersonal relations. The judge alone determines the factual truth, and a fortiori the legal truth. That which is “what he is inclined to believe is the truth,” that regarding which “he feels strongly that his belief is justified,” and certainly, that about which “he is certain that the opinion he has formed is correct” — is the truth in accordance with which the judge is charged with deciding the case that has been brought before him. Even if numerous witnesses contradict this truth, he is permitted to rule only in line with the truth he apprehends, for “matters of this kind are committed to the heart of the judge, who in pronouncing judgment is to be guided by what appears to him to be the true judgment.” In civil law the judge . . . acts like a kind of God . . . when it comes to determining the facts. What is paramount is his own personal conviction and knowledge, and not any external factor.65 Thus here too — that is, with regard to the broader judicial context — as in connection with fraudulent-claim cases, some have concluded that in Maimonides’ view, the decision is entirely dependent upon the judge’s opinion, rather than on the objective estimation of anyone else.66

63 64 65 66

“The role of the court as the guardian of orphans” (Hebrew), Dine Israel 19 (1997/98), 34ff. See also N. Rakover, Otzar Hamishpat s.v. umdena, vol. 1 (Jerusalem: 1975), 252; vol. 2 (Jerusalem: 1991), 248. Mainly bKetubot 85a. Hefetz, n. 1 above, 52ff. A similar picture is presented in Halevi, Dvar Hamishpat, 150–51. Hefetz, ibid. This also follows from Code, Laws concerning Borrowing and Depositing 6:4. See Imrei Bina, Laws of Judges, #24; Nahal Yitzhak, #15; Netivot Hamishpat, #15:2. Edrei, n. 62 above, pointed out the difference between Maimonides’ view and that popular with certain academic Jewish law scholars, who stress the objective nature of the laws of evidence.

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IV Judicial Passivity (Franco-Germany) 1

Withdrawal from adjudication

A most interesting approach, not deemed to be the law by most legal authorities,67 and almost completely neglected by academic scholars,68 despite its importance, is that of the Tosafists.69 On the Tosafist reading of the sources, when the judges know with certainty70 that a claim is fraudulent, they must withdraw from adjudicating, and it is forbidden for them to adjudicate the case at all.71 Only when they suspect, but are not certain, that the case before them involves fraud, are they to conduct an inquiry and examination. This approach has early roots. It is first mentioned in the name of R. Judah b. Nathan72 (Rashi’s son-in-law and disciple, and one of the scholars of late eleventh century France), and is also attributed to “R.I.”73 (probably R. Isaac the Elder of Dampierre,74 a late twelfth century Tosafist), R. Samson of

67 See above, n. 44, and Halakha Pesuka, 15:3. 68 Even Hefetz, n. 1 above, pays no attention to this approach (except for a brief reference on p. 134), although he explores the law of fraudulent-claim cases at length. Perhaps, in light of our remarks in this section, some of the conclusions in the fifth chapter of his book (having to do with FrancoGermany and Italy up to the end of the 15th century) should be revisited. 69 See Tosafot, bSanhedrin 32b s.v. kan, quoted in Sinai, n. 3 above, ch. 10, II.2. 70 As implied by the wording of Tosafot Sens ad loc. 71 From the language used by the Tosafot, it appears that their stance applies to any type of fraudulent claim, whether put forward by the plaintiff, the defendant, or the witnesses. This is also clear from the account of their approach, in contrast to that of the Maharam, in Sefer Mordekhai (see below, at n. 123). 72 As follows from Or Zarua, Piskei Sanhedrin, #75, which cites this approach in the name of R. Judah b. Nathan and R. Samson of Sens. 73 Sefer Haaguda ad loc. 74 The “Rabbenu Yitzhak” referred to without further qualification in Sefer Haaguda (see Introduction, 5, sec. 40). The anonymous statement in the Tosafot on Sanhedrin is most probably by R. Isaac the Elder, not only because “his teachings are found on almost every page of the tractates of the Talmud, in the comments of the Tosafot on the text” (I.M. Ta-Shma, Talmudic Commentary in Europe and North Africa (Hebrew), (Jerusalem: 2000), 98; see also E.E. Urbach, The Tosaphists: Their History, Writings and Methods (Hebrew), [Jerusalem: 1986], 246), but also because it displays some of the characteristic features of his Tosafot: “They are mostly brief and laconic, the theoretical material being presented in brief sentences, with minimal debate and a narrow range of views, placing emphasis on the

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Sens75 (a disciple of R. Isaac the Elder, an early thirteenth century Tosafist), and to R. Moses of Coucy76 (one of the greatest thirteenth century halakhic authorities, and author of Sefer Mitzvot Gadol [Semag]). Echoes of the approach can be discerned in the pronouncements of many halakhic authorities of medieval France and Germany,77 where it appears to have been accepted at least until the time of R. Meir b. Baruch of Rothenburg (Maharam) and his student R. Asher b. Yehiel (Rosh),78 whose approach will be considered below. Even at that time, the late thirteenth century, R. Isaac of Corbeil, one of the last Tosafists (author of Sefer Mitzvot Katan),79 handed down a ruling reflecting the Tosafist approach that in fraudulent-claim cases, the judge should “withdraw from adjudication.”80 Further echoes of the Tosafists’ approach are discernible even later than the Maharam; though the Maharam opposed it, he apparently could not completely eliminate the influence of this long-standing tradition.81 I have already pointed out82 that at the theoretical level there is no disagreement between Maimonides and the Franco-German halakhic authorities as to the existence of two possible judicial responses to fraudulent-claim cases: inquiry and examination, on the one hand, and

75 76

77

78 79 80 81 82

plain meaning of the sugya” (Ta-Shma, 104). On the other hand, the source of the statement in the Tosafot on Sanhedrin may be R. Samson of Sens, on whose commentary these Tosafot are based (see Urbach, 657). See Tosafot Sens and Or Zarua ad loc. See Tosafot R. Moshe, MS Mantua, ad loc. (quoted in Sanhedrei Gedola, Sanhedrin, vol. 8). And see the introduction to Sanhedrei Gedola, 25, proving that these Tosafot are indeed by R. Moses of Coucy (in particular, the passage on fraudulent-claim cases, to which his name is explicitly affixed). See Tosafot, bSanhedrin 32b s.v. bedin merume; Tosafot Sens ad loc; Tosafot R. Moshe, MS Mantua, ad loc.; Tosafot Rosh (first explanation); Mordekhai, Sanhedrin, #710; Or Zarua, ad loc.; Sefer Haaguda, Sanhedrin, #42; R. Israel Bruna, Responsa, #213; etc. The approach of the Tosafot is also mentioned (without attribution) by rabbinical authorities of other countries (see Nimukei Yosef, bSanhedrin 32b; Commentary by a Student of Nahmanides, bSanhedrin 32b; Beit Habehira, bShevuot 30b). This is reflected in the fact that both the Maharam and the Rosh relate to it as the customary approach of the era. See Urbach, n. 74 above, 571–75. See Sefer Mitzvot Katan, #265 (Rosenberg edition, vol. 2, 371). And this is so even though the Maharam’s approach was adopted by Maharam Mintz (see Responsa Maharam Mintz, #55, #94). See Sec. III.2 above.

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withdrawing from adjudication, on the other.83 At the practical level, however (reflected in the responsa literature), they differ considerably, both with respect to the weight they give each possibility in actual praxis, and with respect to their inclination toward judicial activity or passivity in general. It will be recalled that Maimonides emphasized the activist dimension in dealing with fraudulent-claim cases,84 and saw withdrawal from adjudication as a purely theoretical option. The Franco-German halakhic authorities, however, saw withdrawal as a very real possibility, and were inclined toward judicial passivity. So much so, in fact, that as noted above, R. Isaac of Corbeil ruled that the judge should simply “withdraw from adjudication,” mentioning no other option.85 Let us now consider three responsa by Ashkenazic authorities who implemented this position in practice. In the responsa of Maharam Rothenburg there is a responsum by a brother of R. Samson b. Abraham (Rash of Sens), R. Isaac (Ritzba).86 The Ritzba was one of the greatest Tosafists of the thirteenth century, and headed the yeshiva at Dampierre after R. Isaac the Elder’s death. R. Isaac considers a question that was also addressed to his brother R. Samson:

83 Although they may have differed as to the role of inquiry and examination in fraudulent-claim cases. In the view of the Tosafot, inquiry and examination are apparently undertaken only when the judge is not sure that the case involves fraud, the objective being to determine if that is indeed so; but if it is clear to the judge that fraud is involved, he does not try to counter it by means of such an investigation, but must simply withdraw from adjudication. According to Maimonides, however, even when the judge is sure that the case involves fraud, he must conduct such an investigation in order to vitiate the deception, withdrawing from adjudication only if the investigation proves fruitless. 84 As did R. Solomon b. Adret, whose activist stance is even more extreme than that of Maimonides, as explained above at n. 39. 85 Even in the view of R. Moses of Coucy, to be discussed in the next section, “one should not pronounce judgment against the witnesses, but withdraw.” 86 Maharam of Rothenburg, Responsa (Prague edition), #319. The responsum opens with the words, “This was the response of his brother R.I.,” and refers to a responsum of R. Samson b. Abraham (#318); it is not by the Maharam himself (see S. Emanuel, “Pseudo-responsa of R. Meir of Rothenburg” (Hebrew), Shenaton Hamishpat Haivri 21 [1998/2000], 149– 205). For a summary of the views in question, see also Piskei Harosh, Ketubot 11:3; Mordekhai, Ketubot, #251.

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Reuven, a legal custodian of [assets of ] orphans, claims from Shimon’s widow all the money left by her husband, whether as debts owed him or as deposits, and 43 pounds that were in Paris. And she had been conducting business in her home. And Shimon’s widow claims that everything in her possession is from old debts owed to her first husband, which belong to her sons, but [says] everything that her husband owned has been spent, and nothing remains of the Paris deposit.

R. Samson of Sens dismissed the claim against the widow; his brother R. Isaac, however, responded as follows: As to what your eminence wrote regarding the matter, “Reuven, a legal custodian” and so on, and you acquitted the widow as reliable in her claim that the money that was in her possession belonged to others — well you acquitted and well you held liable. But from his words it is apparent that the man in question was very wealthy, and it is impossible that there were no documents and bonds made out to him, and also documents signed and written up in his name. And even if they are not signed [with his name], the neighbors know who was transacting most of the business, him or her. And it is clear that those things that were taken out in his name belong to him, for it is arguable that the profit is his, and she is not to be believed when she says that he spent it all. And even as regards things that are unsigned and undocumented, but it is known to the neighbors that some or all of the assets were amassed by him — it is considered as though they bear his name, and it is proper to demand that the neighbors tell the truth. And if the [owner of] the debts is not known, but the neighbors know that most of the business was his to transact as he wished, as long as he was alive, and the wife claims that it is all hers, it is considered a fraudulent claim [case], and it is proper for the judge to withdraw from the case until these matters have been clarified.

The Ritzba reasoned that if the neighbors were aware that “most of the business” was transacted by the deceased, whereas the widow claimed that all the assets were hers, “it is considered a fraudulent claim [case], and it is proper for the judge to withdraw from the case until these matters have been clarified.” Thus the Ritzba applied the customary approach of the French Early Authorities to the case at hand, recommending that the judge withdraw from the case until the relevant matters had been fully clarified.87 Nevertheless, there is a

87 It would appear that R. Isaac was not wholly comfortable with the judge’s withdrawing from adjudication. And indeed, his ruling implies that the judge’s withdrawal from the case should not be permanent, but only “until matters have been clarified,” at which point the judge can resume adjudicating the case.

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novel element in R. Isaac’s ruling — a passive position even more extreme that the aforementioned Tosafist approach. The Ritzba categorized the case as involving a fraudulent claim even though it can hardly be considered a case where the claim presented to the court is “certainly fraudulent” (vadai din merume) which would, on the view of the Tosafists, oblige the judge to withdraw from adjudication.88 On the contrary, in the case under consideration it would have been more natural, on the Tosafist approach, to require the judge to conduct a thorough inquiry and examination of the witnesses (the neighbors and the widow), and only if, after the facts had been clarified, it seemed certain to the judge that the woman was being deceitful, to require that he withdraw from adjudicating the case. A similar conception emerges from responsa by two other late medieval Ashkenazic authorities. R. Israel Isserlein, author of Responsa Trumat Hadeshen and the greatest Ashkenazic scholar of the fifteenth century, addressed the possibility of rendering judgment on the basis of personal conviction (kim li begava) and the law of din merume in a case concerning “Reuven also claims from Shimon in connection with the denunciation.” He writes: Indeed, who today can invoke his personal conviction to take money that is in someone’s possession on the basis of assessment of intent and personal evaluation? . . . In my humble opinion, judging from his words, this is somewhat similar to a fraudulent-claim case, in which it is forbidden for the judge to render a decision, but he should withdraw from it.89

As we saw previously regarding the view of R. Isaac of Corbeil, here too the message is that in a case where fraud is suspected, the judge should withdraw from adjudication; there is no hint of the possibility of actively confronting the suspected deceit. A similar tendency is evident in a responsum by R. Israel b. Chaim Bruna, a student of R. Israel Isserlein: There came before me R. Isaac of Herlitz and R. Trochstil, and they brought me a document, according to which . . . had undertaken to appear before the scholar Shemaria and R. Moses, for a legal proceeding or for arbitration. . . . But now R. Moses was withdrawing [from adjudicating]. I asked 88 It follows from R. Samson’s responsum that he apparently did not consider the case to be a fraudulent-claim case, though as noted above, he too endorsed judicial withdrawal in fraudulent-claim cases. 89 Responsa Trumat Hadeshen, Pesakim Ukhtavim, #209.

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him, Why are you withdrawing? And he answered, Everybody knows that I have not studied the law and that I do not know how to write, while the esteemed R. Shemaria has studied the law and knows how to write. If so, how can I sit with him in judgment?! In fact, I never agreed to this, but only to arbitrate between them with love, without evasiveness. But since I have not found this to be the situation, I shall withdraw, if the law permits this.90

R. Israel Bruna ruled that “R. Moses is permitted to remove himself.” He gave several reasons, including the following: According to what R. Moses himself said, that it appears to him that the case involves evasiveness, if so, it is a religious duty to withdraw from it, as is said in bShevuot 31a, “Keep far from a false charge.” And [regarding the statement] in bSanhedrin 32b — “In our Mishnah the claim is suspected of being fraudulent” — the Tosafot say: Not that we know that the claim is fraudulent, for in that case it would be forbidden to adjudicate it; but due to the doubt, [the judge] should either conduct an inquiry and examination or withdraw.

In other words, when the judge has doubts as to whether the case is indeed a fraudulent-claims case, he may choose between two alternatives: a thorough investigation of the witnesses, or withdrawal from adjudication.91 But when it is certain that the claim is fraudulent, it is forbidden to adjudicate it. From the facts as presented in the question, it does not appear that R. Moses’ main claim was that he sought to withdraw because the case was a fraudulent-claims case. Rather, it was R. Israel Bruna who introduced this argument, in a rather artificial way, in order to justify what R. Moses had done. From his ruling it is clear that he saw withdrawing from adjudication in a case involving evasiveness as perfectly natural. Scholars have indeed reached the conclusion, on the basis of numerous sources, that the Franco-German halakhic authorities in the Middle Ages often sought to withdraw from adjudication.92 The tendency was so pronounced that around the time of the Maharam of Rothenburg some communities had to threaten

90 Responsa Mahari Bruna, #213. 91 Here R. Israel Bruna is taking a somewhat novel stance relative to that of the Tosafists, who maintained that where there was a suspicion of fraudulent claims, only one course of action was open to the judge, namely, conducting an inquiry and examination. 92 For a comprehensive account of this tendency, see M. Frank, The Ashkenazic Communities and Their Courts (Hebrew), (Tel Aviv: 1938), 100–103.

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judges with excommunication in order to compel them not to shirk their judicial responsibilities.93 But as Frank has pointed out, “there is reason to doubt the practical significance of such legislation, since judges could always find an adequate reason for postponing the deliberations or withdrawing from adjudication altogether, such as the suspicion that the case involved fraudulent claims.” In fact, he goes on to say, in the fifteenth century withdrawal from adjudication was “a commonplace phenomenon that no one challenged.”94 In sum: many of the halakhic authorities of France and Germany curtailed the judge’s power to adjudicate fraudulent-claim cases.95 This stance is similar to that which prevailed in the land of Israel during the Rabbinic period.96 It assumes that the judge is not to attempt to proceed with any case in which it is certain that fraudulent claims have been put forward, and moreover, that inquiry and examination of witnesses in cases of suspected fraud is undertaken solely to ascertain whether deceit is indeed involved, in which case the judge must withdraw from adjudicating.

93 See Dinari, n. 3 above 37, and sources cited there; Frank, ibid. 94 Frank, n. 92 above, 102. 95 A tendency to limit the judge’s authority to actively deal with fraudulentclaim cases can also be discerned in the rulings of R. Isaac Or Zarua, as noted in Hefetz, n. 1 above, 132. It appears that this is related to the fact that in principle he ruled in accordance with this approach; see n. 72 above. It should be noted here that, while one does find in some Franco-German responsa (e.g., Responsa Mahari Weil, #108; Responsa Mahari Bruna, #271) expressions to the effect that an inquiry and examination should be conducted in a case of suspected fraud, these responsa do not necessarily conflict with the Tosafist approach, since they refer to cases that are only suspected of being fraudulent, when an investigation is needed to clarify matters. Nevertheless, we do also find that a different position is upheld by one of the greatest fifteenth-century authorities of Germany, Maharam Mintz, who advocates a more activist approach to fraudulent claims than that upheld by his colleagues; see Sinai, n. 3 above, where the very interesting approach of R. Moses of Coucy is also discussed. 96 As I showed in ch. 10 of Sinai, n. 3 above. This approach relies primarily on the baraita in bShevuot. On the affinity of the Early Authorities of Ashkenaz for the teachings of the land of Israel, see A. Grossman, The Early Sages of Ashkenaz (Hebrew), (Jerusalem: 1981), 424–35. For an explanation of the phenomenon, see n. 101 below.

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Reluctance to assume judicial responsibility

How are we to explain the prevailing attitude to adjudication in Franco-Germany? Hefetz, in seeking to characterize the approach of the Early Authorities of Ashkenaz to the problem of judgment on the basis of estimation of intent (including fraudulent-claim cases), attributed it to “a greater [relative to the Spanish authorities] adherence to the talmudic source and the many detailed laws it encompasses, without seeking to abstract its legal fundaments or determine new principles.” Hefetz also mentions the element of apprehensiveness about assuming judicial responsibility (yirat horaa, lit., being in awe of handing down rulings), but points out that although such diffidence was “more pronounced in France and Germany,” there were “significant exceptions to this mindset, particularly toward the end of . . . the fifteenth century.” Finally, he notes that in general, “reluctance to assume judicial responsibility and humility are more a matter of personal feelings than a local method of halakhic decision-making.”97 In light of the above discussion,98 it appears that in cases of din merume such reluctance was not solely a matter of “personal feelings,”99 but seems to have been “a method of halakhic decision-making,” and a central and characteristic element of the judicial tradition of the Early Authorities of Ashkenaz. As a rule, these scholars were inclined to judicial passivity in fraudulent-claim cases,100 unlike the Geonim and the halakhic authorities of Spain, who tended toward judicial activism, and in particular, emphasized the judge’s authority and responsibility to confront attempts to deceive the court. This difference, it seems to me, is not accidental. It is related to certain characteristics of the halakhic authorities of France and

97 Hefetz, n. 1 above, 119. 98 Explored at greater length in Sinai, n. 3 above, ch. 10, which examines the talmudic sources of this legal diffidence. And see Lifshitz, n. 3 above. 99 Although some of the halakhic authorities cited were in fact known for their personal humility. On the humility and piety of R. Isaac of Corbeil, see Urbach, n. 74 above, 572–73. A similar profile is evident in the rulings of R. Israel Isserlein, see Hefetz, n. 1 above, 139–41; and in rulings of other authorities. 100 But not necessarily in all legal proceedings and deliberations; see n. 3 above.

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Germany,101 and the conditions of their procedural environment,102 which were quite different from those of the Geonim and the Spanish halakhic authorities.103 Humility was indeed a characteristic trait of the great later Early Authorities of fourteenth- and fifteenth-century Ashkenaz.104 But researchers have concluded on the basis of many sources that most of the Early Authorities of Ashkenaz in fact exhibited reluctance to assume legal responsibility, which manifested itself in various ways.105 We have already seen that the scholars of FrancoGermany often sought to avoid their judicial duties.106 They were particularly reluctant to render decisions in monetary cases, preferring not to do so without the express agreement of both litigants that the ruling would be accepted.107 Another aspect of their diffidence was a pronounced tendency to divide responsibility when issuing halakhic rulings.108 The Franco-German jurists were sometimes reluctant to use the court’s authority to enforce its decisions109 and impose punishment.110 The arbitration court (zabla, an acronym for “ze borer lo ehad” — each side chooses one [judge, and these judges choose a third]) was a much used institution in Franco-Germany, and “with respect to civil law cases (dinei mamonot), one that took the place of a permanent court.” Indeed, the latter institution only “became customary there 101 Most of the characteristics that will be described below are particularly pronounced in Germany. However, the scholarly consensus is that there were exceedingly close ties between the rabbis of Germany and France, with the latter frequently adopting positions and traditions upheld by the former. See A. Grossman, The Early Sages of France (Hebrew), (Jerusalem: 1995), 539ff. In the present context, too, I found no differences between the scholars of France and those of Germany, and will not distinguish between them in my discussion. 102 There is considerable similarity between the character and proclivities of the Franco-German authorities and the conditions of their environment, on the one hand, and those of the scholars of the land of Israel in the talmudic period, on the other, see Sinai, n. 3 above, ch. 10, I. It is thus not surprising that their positions on din merume are quite similar; see above at n. 95. 103 As described above at nn. 11ff., 48ff. 104 See the comprehensive survey in Dinari, n. 3 above, 9–55. 105 Ibid., 34ff. 106 See above at n. 92. 107 See Frank, n. 92 above, 32. 108 Dinari, n. 3 above, 40ff. 109 See Frank, n. 92 above, 31–32. 110 Dinari, n. 3 above, 47ff.

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later on,”111 due to the fact that in Franco-Germany the permanent rabbinical courts “did not have substantial power.”112 These phenomena thus were not due solely to the personal qualities of the halakhic authorities of France and Germany, but also reflected the scope of the Jews’ judicial autonomy there. Frank warned against “an exaggerated perception of the authority of Jewish courts in Ashkenaz.” The temporal rulers “did not look kindly on any rights to autonomy on the part of the [Jewish] community.”113 Not only was the authority of the Jewish courts in criminal cases “very limited,”114 but “in some places Jewish judges were not allowed to adjudicate civil cases between one Jew and another.”115 Nevertheless, “there is no doubt that even in such places, the Jewish courts could, qua arbitrators, deal with civil cases without having to be granted permission by the ruling authorities.” In light of these observations, it is perhaps not so surprising that the scholars of Franco-Germany, in manifesting apprehensiveness about rendering legal decisions (yirat hahoraa),116 were inclined toward judicial passivity when confronted by cases where fraud was suspected. This position was understandable in view of the relatively limited powers of the courts in these regions,117 and especially in light of the widespread recourse to courts of arbitration, where judges were sometimes loath to render clear-cut legal decisions “in cases that appeared to them complex and legally dubious, or where there was

111 Frank, n. 92 above, 98, and see too Sinai, n. 3 above, ch. 3, II:2. 112 See Assaf, n. 13 above, 54. The situation in Poland was different, see Gulak, n. 12 above, IV, 29. 113 See Frank, n. 92 above, 46. 114 Ibid., 42. 115 Ibid., 47ff. 116 Perhaps this is connected with the religious tendencies of the Hasidei Ashkenaz, who were active in the 12th and 13th centuries; see I.G. Marcus (ed.), The Religious and Social Ideas of the Jewish Pietists in Medieval Germany (Hebrew), (Jerusalem: 1986). The Hasidei Ashkenaz are known to have exerted decisive influence on the halakhic authorities of FrancoGermany, see Urbach, n. 74 above, ch. 8. 117 Another relevant factor may be the broader context, viz., the fact that the legal system of medieval Christian Europe was based primarily on Roman law. In Roman law too, a judge unable to pronounce judgment could recuse himself; see the comparative survey at the end of this article.

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suspicion that claims were fraudulent.”118 This is exemplified by the above responsum of R. Israel Bruna119 — it was quite natural that a lay judge, lacking recognized authority, would be reluctant to deal with cases of suspected fraud. 3

The Maharam: continuity or change?

Hefetz calls the approach of the Maharam (R. Meir of Rothenburg) and his disciple the Rosh (R. Asher b. Yehiel) a “notable exception” to the general attitude of apprehensiveness about taking on the responsibility of rendering legal decisions (yirat horaa) in Franco-Germany.120 As we will show, the Maharam, and even more so the Rosh, consciously deviated from their predecessors’ tradition. Nevertheless, as will become apparent, there are significant differences between the master and his disciple in this respect. Whereas the Maharam did not radically depart from the general stance of his predecessors, the Rosh indeed espoused a far more activist approach than his teachers. The approach of the Maharam, the greatest Ashkenazic scholar of the late thirteenth century,121 differed somewhat from that of the Tosafists.122 But what was the thrust of this difference, and did it indeed constitute an important turning-point in the rabbinical authorities’ thinking? According to Hefetz, the Maharam’s approach represents “the first significant shift in the attitude to the principle of judgment by estimation of intent (umdena), and paved the way for his student’s substantial development of the general theory of estimation of intent.”123 118 Frank, n. 92 above, 100. Withdrawal from adjudication as recommended by the Rosh, which barred other courts from hearing the case (see below, Sec. V.1), was apparently impossible to implement in Germany and France, where communities were organized in a distinctly decentralized manner, each community managing its own internal affairs and not entitled to intervene in the affairs of another. See I.M. Ta-Shma, “Law, custom, and tradition in early Jewish Germany” (Hebrew), Sidra 3 (1987), 93–97 [reprinted in idem, Early Franco-German Ritual and Custom (Jerusalem: 1999)]. 119 See above, at n. 90. 120 See Hefetz, n. 1 above, 119. 121 See Urbach, n. 74 above, 521–70. 122 On the Maharam’s independence and willingness to stand up for his views without deferring to those in high places, see ibid., 529–40. 123 Hefetz, n. 1 above, 134.

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The “primary” turning-point, Hefetz claims, was the Maharam’s innovative treatment of fraudulent-claim cases. Until the Maharam, the law of fraudulent claims was understood as a directive to the judge to withdraw from adjudication, the obligation to conduct an inquiry and examination being limited to the beginning of the judicial proceeding, when the judge suspected that fraud was involved. The Maharam, however, “sees the law of fraudulent claims in an entirely different light. In his opinion, in a fraudulent-claim case, the judge has an obligation to take on the case and render a decision according to his estimation of the litigant’s intent, against the deceiver.” Only in cases where “the deceiver is the plaintiff is this result to be achieved by refusal to hear the claim, regardless of how strong the plaintiff’s evidence might be.” Hefetz bases this conclusion on statements made by the Maharam’s disciple R. Mordekhai b. Hillel, who reports his master’s view after mentioning that of the Tosafists: Here, with regard to fraudulent-claim cases, it follows that a fraudulentclaim case calls for inquiry and examination when [the judge] does not know with certainty that it is fraudulent. But if he knows with certainty that it is fraudulent, then he cannot adjudicate it at all. . . . But our teacher R. Meir wrote that where the defendant’s plea is fraudulent, this calls for inquiry and examination; but where the plaintiff’s plea is fraudulent, the judge should not undertake any efforts in the case. And so ruled our teacher R. Meir as the law to be put into practice.124

Hefetz infers from this that, in contrast to “he cannot adjudicate [the case] at all,” as the Tosafists rule, the Maharam’s approach to fraudulent-claim cases required the judge to deliberate and render a decision. The purpose of any inquiry and examination was to supply the assessments of intent needed to prove the deceitfulness of the defendant’s arguments. Hefetz concedes that “we lack direct evidence that the Maharam applied this interpretation in actual cases, as R. Mordekhai reports,” but goes on to assert that “without any doubt, the Rosh’s lengthy responsum,125 in which the defendant, R. Israel, gives evasive and implausible answers to a barrage of questions while under a blistering inquiry and examination by the court, is a good example of the manner in which the Maharam’s rule was applied in practice. The Rosh was faithful to the approach upheld by his master.” 124 Mordekhai, Sanhedrin, #710. 125 Responsa Rosh, 107:6. This responsum will be discussed in Sec. V.2 below.

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To my mind, Hefetz’s thesis needs to be reexamined. In my opinion, it is not necessarily warranted to draw inferences about the Maharam’s approach from the views of his student the Rosh, which will be discussed below, since as we will see, the two approaches are quite distinct — indeed, the disparity is greater than that between the Maharam and the Tosafists. In my view, we cannot really say that the Maharam’s approach conflicts with that of the Tosafists, and that he requires the court to deliberate and render a decision in a fraudulentclaim case. Indeed, the Maharam himself concedes that “where the plaintiff’s plea is fraudulent, the judge should not undertake any efforts in the case,” or as a different version126 puts it, “if the plaintiff’s plea is fraudulent, it is forbidden for the judge to render a decision,” but rather he should withdraw from adjudicating the case without deliberating and/or rendering a decision.127 Hence there is, in principle, no contradiction with the earlier view that the judge “cannot adjudicate the case at all”; at most, there is a shift in emphasis. It is more correct, in my opinion, to view the Maharam as continuing, in principle, the Tosafist approach,128 on which the judge must, in certain cases, withdraw from adjudicating in a case where there is a suspicion that the claim is fraudulent.129 But whereas the Tosafists reserved this course of action for cases when the judge knew with certainty that some kind of fraud was involved, the Maharam limited it to cases in which the plaintiff was deceptive. When the defendant was perpetrating the deceit, he required that the court conduct an investigation, but no more than this. Hefetz’s assumption that on the Maharam’s view, “in a fraudulent-claim case, the judge has an obligation to take on the case and render a decision according to his estimation of the litigant’s intent, against the deceiver,” is not grounded in the language of any of 126 See Hagahot Maimoniot on Laws concerning Evidence 3:1 (cf. comments on Laws concerning Evidence 24:3). 127 This is significantly different from the Rosh’s approach, see Sec. V.1 below. 128 The Maharam’s affinity with the teachings of the Tosafists is well established; this is also evident from the fact that Urbach’s monumental The Tosaphists has an entire chapter on the Maharam and his circle. The factors underlying the consolidation of the Tosafist position (such as apprehensiveness about taking on the responsibility of rendering legal decisions) existed in the Maharam’s time as well, see above at n. 104. 129 The Kneset Hagdola, HM, Beit Yosef 15:3, writes that in practice, there is no disagreement between the approach of the Tosafists and that of the Maharam.

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the sources that refer to the Maharam’s ruling. Piskei Harosh, for instance, quotes the Maharam as follows: As to what is said in bShevuot 30b–31a, that a fraudulent-claim case should not be adjudicated at all, because it is written, “Keep far from a false charge,” our master R. Meir explained that it applies where the plaintiff’s plea is fraudulent, [in which case] the judge should withdraw from adjudicating and not hear his arguments. But here we are speaking of a case where the defendant’s plea is fraudulent, [in which case] the judge cannot withdraw from adjudicating, so that the deceiver will not be rewarded for his deception. Rather, he should inquire and examine thoroughly to vitiate the deception.130

According to the Rosh’s account, the Maharam’s view does not differ dramatically from that of the Tosafists.131 He too admits that, in principle, fraudulent-claim cases “should not be adjudicated at all”; unlike the Tosafists, however, he adds that when the deception is perpetrated by the defendant, there is a special consideration that precludes the judge’s withdrawing from adjudication, namely, “so that the deceiver will not be rewarded for his deception.” In this case “the judge cannot withdraw from adjudicating,” but must conduct a thorough investigation “to vitiate the deception” being attempted by the defendant.132 To my mind, Hefetz’s claim that “the Rosh’s lengthy responsum” constitutes “a good example of the manner in which the Maharam’s rule was applied in practice” is very doubtful. As we will see, the responsum contains far-reaching activist elements of which there is no trace in the writings of the Maharam, who speaks only of inquiry and examination.133 The dictum, “The words of the teacher and the words 130 Sanhedrin 4:1. 131 This is also reflected in the fact that in quoting the Maharam, he uses wording that is actually that of the Tosafists (ad loc. s.v. kan bedin merume). And it also seems to follow from the account in Tosafot Rosh ad loc., where he does not point to any differences between the two approaches. 132 And it could be that where the deception cannot be exposed, even the Maharam would concede that the judge should withdraw from adjudicating. 133 This also follows from other responsa in Responsa Maharam, which speak of investigating the facts, and ‘inquiry and examination’ vis-à-vis fraudulent-claim cases, but no more than that; see Prague edition, #451, #838. It also follows from #462, which was, however, written not by the Maharam, but by R. Haim b. Yehiel Hefetz Zahav; see Emanuel, n. 86 above, n. 169. And although Emanuel does not discuss them, it is not clear that #451 and #838 are indeed by the Maharam.

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of the student [where incompatible]: whose words do we heed?” (bKidushin 42b) is very apt here.

V

Change in the Ashkenazic Tradition (R. Asher b. Jehiel)

From the foregoing, it is clear that it was not the Maharam who initiated the dramatic change in the Franco-German sages’ approach to fraudulent-claim cases, but rather his student R. Asher b. Jehiel, the Rosh, a preeminent fourteenth-century halakhic authority. On the one hand, in his rulings the Rosh wholeheartedly adopts, without any qualification, his master’s distinction between fraud on the part of the plaintiff and fraud on the part of the defendant; this distinction was undoubtedly the interpretive-theoretical basis for his own approach. On the other, at the legal-practical level, his approach constitutes a significant departure from that of the Maharam. In the following sections, we will explore the very meaningful differences between these two approaches, and identify the innovative elements of the Rosh’s rulings intended for implementation, found in his responsa; the differences are particularly pronounced against the background of the accepted Ashkenazic approach described above. I will conclude by suggesting a possible explanation for the Rosh’s departure from the Ashkenazic tradition.

1

The meaning of withdrawal from adjudication

It will be remembered that in the Maharam’s view, “where the plaintiff’s plea is fraudulent, the judge should withdraw from adjudicating.” The Rosh too endorsed withdrawing where the plaintiff’s claim is fraudulent, but introduced two new elements that completely alter the nature of the withdrawal. In a number of responsa, the Rosh discusses cases of suspected fraud on the part of the plaintiff. The following question was put to the Rosh: Teach us, our rabbi. Reuven produced a document for [the sum of] one thousand gold pieces signed by seven members of the communal leadership (kahal). This document is dated some 30 years ago, and none of the debtors is still alive save one. And the owner of the document is suing the heirs of the debtors, leaving alone the single debtor who is still alive and not suing him, though he has the wherewithal to repay the debt. The heirs argue that their forebears took this debt [lit., created this document] on themselves in the name of the kahal, for the custom is that when the kahal

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owes money to any person, seven of them make a document in their own names, since the whole kahal cannot make a document in every member’s name. And the kahal of that time redeemed the document, for this Reuven was not so wealthy that he could lend a thousand gold pieces of his own to these debtors. Moreover, if [what he claimed was indeed] so, why did he not produce [the document] while the debtors were still alive and the kahal was in office? Moreover, this creditor went through hard times, during which he became utterly impoverished, and he willingly lived off charity when they gave it to him, and he did not produce the document until the debtors and all of that generation died. The heirs further argue that, since the one debtor is still alive, but [the creditor] does not wish to sue him though he has the ability to pay, this implies that the document is invalid, and because the living [debtor] knows the nature of the document, he does not dare [sue him]; or perhaps he has reached a compromise agreement with him. Whose plea is just?134

As to the possibility of annulling the old deed, the Rosh replies that “we are not empowered to annul the document on the strength of the proofs you have adduced.” But in the end he achieves a similar outcome135 by invoking din merume: If it appears to the judge that this is a fraudulent-claim case, he should refrain from making any efforts with regard to that case. And this is what I do when old documents are brought before me: I inquire and examine [the matter] with a view to determining the true judgment, and if I see that, by an established presumption, it is a fraudulent and false claim, I declare that no Jewish judge should make efforts with regard to the case, and I write this and affix my signature and give [the document] to the defendant.

134 Responsa Rosh, 68:20. 135 Incidentally, this responsum demonstrates how the objective of a ‘statute of limitations’ can be achieved indirectly. Various legal systems include statutes of limitations, which stipulate that a plaintiff who has not exercised his right to sue within a certain time may lose it (for the position of Israeli law, see Statute of Limitations, 5718–1958, sec. 2–3). Jewish law has no such provision, see Shochetman, n. 1 above, 178. The Rosh’s responsum indicates that, at the practical level, essentially the same result — forfeiture of the right to bring suit after a certain time — is achieved by regarding old documents as falling under the rubric of din merume, so that the court has the authority to deny the suit. This position was accepted as the law; see SA, HM 98:2. For a comprehensive treatment, see Z. Warhaftig, Presumptive Right (Hazaka) in Jewish Law (Hebrew), (Jerusalem: 1964), 271–77.

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The Rosh maintains that the old document falls under the rubric of fraudulent claims.136 We should note that there are two significant differences between the Rosh’s position and that of the Maharam.137 In the Rosh’s opinion, the judge, upon suspecting fraud on the plaintiff’s part, should not automatically withdraw from adjudicating the case. He stresses that at the first stage, “when old documents are brought before me: I inquire and examine [the matter] with a view to determining the true judgment.”138 Only at the second stage, “if I see that, by an established presumption, it is a fraudulent and false claim, I declare that no Jewish judge should make efforts with regard to the case.” This two-stage conception is not grounded in any Ashkenazic sources prior to the Rosh, but is very similar to the position of Maimonides and the halakhic authorities of Spain discussed above. Another difference between the Rosh and his predecessors concerns the nature of the judge’s withdrawal from adjudicating a fraudulent-claim case. The Maharam emphasized that when the plaintiff is suspect, “the judge should not undertake any efforts in the case.” On both his approach and the Tosafist approach, the thrust of the withdrawal is that the judge does not render a decision on the case in question. Theoretically, at least, the defendant in a fraudulent-claim case runs the risk of being sued again by the same plaintiff in a different court. However, a different attitude is reflected in the Rosh’s responsum, which states emphatically, “I declare that no Jewish judge should make efforts with regard to the case, and I write this and affix my signature and give [the document] to the defendant.” It seems that the Rosh was uncomfortable with the injustice that might be caused by the judge’s withdrawal from adjudicating, which might leave the defendant helpless in face of the plaintiff’s deceit. He did not, however, go so far as to completely reverse his predecessors’ rulings, but adopted a most sophisticated course. The final outcome achieved by the Rosh was almost identical to an explicit judgment in 136 Especially in view of the suspicious circumstances outlined in the question addressed to him. It is not clear whether he would have ruled thus for any old deed; see my remarks below at n. 148. 137 Contra Hefetz, n. 1 above, 94 n. 124, who holds that in this responsum the Rosh is implementing the Maharam’s approach in practice. As will be shown below, the two approaches differ significantly. 138 A similar conception is reflected in a responsum by the Rosh cited in Tur, HM 71:22, which is somewhat similar to the responsum under consideration.

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the defendant’s favor; apparently, he did not wish to actually issue such a ruling, which would have been too obvious a departure from the position of his teachers, who favored withdrawal from adjudication. Formally speaking, the Rosh adopts his predecessors’ policy of withdrawal, but he endows it with new substance that basically mitigates its negative implications for the defendant.139 On his conception, withdrawal from adjudication does not mean that no decision is rendered, as it did on the earlier conception.140 Rather, it is a kind of judgment for the defendant, who receives a document from the judge guaranteeing that he will not be sued again in another court (a kind of res judicata). This is indeed a fascinating example of ‘withdrawal’ that in fact in every way constitutes judicial activism, not apprehensiveness about the responsibility of rendering legal decisions and withdrawal from challenging a suspected fraud.141 In fact, in another responsum the Rosh criticizes judges who act thus:

139 Cf. Responsa Rosh, 107:6 (Mekhon Yerushalayim edition, end of p. 443), where the Rosh asserts that “Our teacher R. Meir of Rothenburg, may he rest in peace, explained that the ruling in bShevuot concerns a case where the plaintiff’s plea is fraudulent,” and here adds his own explanation: “the judge should withdraw from adjudicating, and [the deceiver] will fail in his deception, for no one will make any effort to decide his claim.” This additional clause is not part of the Maharam’s ruling, quoted in the previous section; it is, of course, in keeping with the Rosh’s position as presented above. 140 This can, perhaps, be compared to the Rosh’s well-known approach to the “Whoever is stronger prevails” (kol dealim gevar) principle; see Piskei Harosh, Baba Metzia 1:1, which on his view does not constitute a total withdrawal from the matter, but is essentially a kind of judgment, for “it is more fitting to say to them that whoever gets the upper hand, whether by force or by evidence, will prevail, and we rely on the fact that the litigant whose claim is just is more likely to bring evidence. Moreover, the litigant whose claim is just will be more deeply devoted to making his case, relative to the other litigant, who is devoted to theft.” See also Sefer Tekafo Kohen 19:8, which explains that the Rosh invokes the kol dealim gevar principle not in the sense of withdrawing from judgment, but as a way of determining the truth. This explains the Rosh’s ruling (Piskei Harosh, Baba Batra 3:22) that if one party has prevailed, but the other then forcibly appropriates the asset, there can be no further forcible appropriation. 141 This is probably the reason why some halakhic authorities maintain that not every court is permitted to provide such a document, but only a “leading court of its generation”; see Halakha Pesuka, 15, 365 n. 78.

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YUVAL SINAI You who sit on saddle rugs, and you who walk the way of truth, humility and justice [see Judges 5:10], swords girded at your sides: Dread of judgment has imbued your hearts with cowardice, for the Sages, of blessed memory, said, “Whence do we learn that a judge who knows that a claim is fraudulent should not say, Since the witnesses give evidence, I will decide it, and the chain [of guilt] will hang round the neck of the witnesses? — Because it is said: ‘Keep far from a false charge.’ ”142

The Rosh then proceeds to decide the law in a clear and authoritative manner, unlike the judges who had sent him the question. That the Rosh was of the opinion that, in a case where fraud is suspected, the first stage must always be inquiry and examination, whether it is the plaintiff or the defendant who is suspected of deceit, follows clearly from another responsum. Discussing the possibility that a plaintiff laying claim to a plot of land though unable to produce the deed of gift awarding him possession, might nonetheless have a right to the land, he writes: [The plaintiff] must swear a biblical oath before the court, without cunning and without deception, that the deed has been lost and has not been deliberately destroyed. For in fraudulent-claim cases, we must conduct an inquiry and examination to determine the truth.143

And there are other responsa that attest to the Rosh’s activist inclinations.144

142 Responsa Rosh, 71:2. 143 Responsa Rosh, 78:27, which addresses the facts detailed in 78:21; the details are irrelevant for our present purposes. A similar approach is reflected in the responsum discussed below at n. 145, viz., 77:4, and that mentioned in n. 138 above, although in the latter the Rosh does not use the term “din merume” explicitly. 144 See, e.g., the general remark expressed in Responsa Rosh, 86:1: “It is the religious duty of the judges to constantly pursue justice, to inquire and examine and arrive at a true judgment, lest it be a din merume. See also 85:10: “Since the heirs of the debtor demand that a ban be imposed, it is fitting that their demand be heeded in this matter, for what loss could thereby be incurred? It is fitting for the judge, whenever a case seems to him to involve fraud, to pursue justice and arrive at the truth.” Thus the Rosh was willing to impose a ban on the strength of the principles underlying the law of fraudulent claims. In another responsum, 78:3, this activist tendency is even more pronounced. Considering a case in which a debtor sought to conceal his assets from his creditors with false gifts and subterfuge (a phenomenon that was of great concern to the halakhic authorities, who devised various

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Nevertheless, the Rosh’s perception that withdrawal from adjudication in fraudulent-claim cases is a kind of judgment in the defendant’s favor (in the responsum that addressed the old deeds) seems to conflict with his ruling in yet another responsum.145 R. Jacob Alfasi of Cordova asked the Rosh his opinion of a certain practice that was common among the Jews of Spain, namely, collection of debts on the basis of documents even several decades old, though in the interim there had been a Sabbatical year (shmita).146 The Rosh did not accept the supporting evidence adduced by the Spanish halakhic authorities regarding the issue of observance of the Sabbatical year, asserting: “since the day of my arrival here I have not ruled that the Sabbatical year does not cancel debts, nor have I contradicted their custom, but let them rule according to their custom.” Toward the end of the responsum the Rosh mentions the concern that old documents might be fraudulent without any connection, apparently, to the question of cancellation of debts:

ways to combat it; see Elon, n. 14 above), the Rosh rules that any bill of havraha (fictitious transfer of property to another) should be considered null and void. He states this ruling in a responsum formulated as a kind of manifesto addressed to the community leaders and judges of Tolitula (Toledo). His opening words are instructive: “The Holy One, blessed be He, gave his people Israel through Moses our teacher, may he rest in peace . . . a Torah of truth, good statutes and upright judgments. Its ways are pleasant ways and all its paths are peaceful, the righteous walk them; but as to the sinners, who conspire to make the straight crooked, to increase their monies by fraudulent means — it is the duty of the sages of Israel to frustrate their counsel and foil their plans. And regarding this Scripture said, ‘Justice, justice, shall you pursue’ (bSanhedrin 32b). And the Sages said: Hand down a true verdict, to preclude fraud.” And on the strength of the obligation to arrive at a true judgment and counter fraudulent claims, the Rosh acted with the full weight of his authority to annul bills of havraha: “I have come to smash the jaws of injustice and to frustrate the thoughts of the cunning, so that their plots do not work out; I therefore declare and explain that this gift has no legal force.” For an analysis of this responsum, see Hefetz, n. 1 above, 78–81. 145 Responsa Rosh, 77:4. 146 The Rosh expressed his opinion on this issue in several responsa (e.g., 64:4, 77:2). For a detailed summary, see E. Westreich, “Judicial decisions by Rabbenu Asher b. Yehiel in Spain” (Hebrew), in M. Beer (ed.), Studies in Halakha and Jewish Thought presented to . . . Emanuel Rackman (Hebrew), (Ramat-Gan: 1994), 175–78; I. Gilat, Studies in the Development of the Halakha (Hebrew), (Ramat-Gan: 1992), 231–32.

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YUVAL SINAI Since the day of my arrival here I have objected to those old documents that are tendered in this country, for I am apprehensive that they are fraudulent. Indeed, why would anyone postpone [collecting on] his document for such a long time? Perhaps it has been paid, or it is a bill of amana [a bill pertaining to a future transaction] or havraha [fictitious transfer]? So when they come before me, I conduct an inquiry and examination as to the delay. If the plaintiff presents a reasonable account of the delay, which I find acceptable, I make an effort to adjudicate the case; but if not, I say, I neither invalidate your document, nor do I make an effort to adjudicate, for it appears to me to be a fraudulent-claim case, and the judge is admonished not to adjudicate fraudulent-claim cases, as it says in bShevuot 30b–31a. Go, my son, [to] another judge.

Here the Rosh discusses the “old deeds” also referred to in the responsum discussed above (68:20), but his rulings seem to contradict each other as to the nature of withdrawal from adjudication.147 It will be recalled that in the responsum discussed above, he ruled that the judge should withdraw from the fraudulent-claim case, and that “no Jewish judge should make efforts with regard to the case.” In the present responsum, however, in handing down the law to be put into practice, he seems to have returned to the traditional position of the halakhic authorities of Ashkenaz, who upheld withdrawal from adjudication. He even concludes with a hint to the questioner, “Go, my son, [to] another judge.” To my mind, however, there is no real contradiction. In the second responsum the Rosh is engaging in a purely theoretical discussion of the concerns raised by old documents, without any actual grounds for suspecting that particular documents might be fraudulent, as in the first responsum.148 In a case involving such documents, the Rosh could not, of course, provide the defendant with a document telling other judges not to adjudicate the claim merely because the documents in question were old. Moreover, in the second responsum the Rosh’s view on the problem of cancellation of debts was contrary to the received position in Spain. And while he permitted the rabbinical courts in

147 Nevertheless, even this responsum is consistent with the premise of the previously quoted responsa (78:27, and responsum by the Rosh cited in Tur, HM 71:22) that in cases suspected of fraudulence, the first step is to conduct an inquiry and examination. 148 See above, n. 136.

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Spain to “rule according to their custom,”149 he clearly found it unsettling.150 Perhaps, at the end of his remarks, he deliberately shifted the discussion to the problem of the suspicion of fraud raised by old documents, so as to avoid a direct confrontation with the Spanish custom. By diverting attention to this secondary topic, fraudulent claims, he is able to restrict the validity of old documents. If so, this may be the reason the Rosh did not entirely rule out litigation as a possible course for the plaintiff with the old document, but suggested that he seek another judge. It seems he intended to imply that perhaps the plaintiff would have more success with a judge who followed the Spanish custom, which deemed old documents justiciable, a practice he had, after all, reluctantly allowed.151 Thus, the Rosh did not withdraw from adjudicating the case involving the old documents out of apprehensiveness over adjudicating a fraudulent-claim case, but rather, to avoid having to rule contrary to the usual practice in Spain. This does not conflict with his principled position that wherever there are real grounds for thinking that the plaintiff’s claim is fraudulent, the judge must dismiss the claim out of hand, and give the defendant a document protecting him from further suits in another court. 2

Fraud on the defendant’s part

We have already cited the Maharam’s view that “where the defendant’s plea is fraudulent, this calls for inquiry and examination.” But this does not answer the question of what happens if the investigation is unsuccessful, that is, if the judge is unable to vitiate and expose the deception. Must the judge then withdraw from adjudication?152 And if not, what is he to do?

149 Westreich, n. 146 above, 177, infers that where there was no suspicion of fraud, the Rosh himself would, in accordance with the customary practice in Spain, adjudicate claims based on such old documents. 150 Westreich emphasizes that “at no stage did he reconcile himself to this practice of the Spanish Jews, nor grant it full legitimation” (ibid., 178). 151 Westreich, ibid., conjectures that “the cancellation of old documents might have entailed a major upheaval in the economic life of the Jews of Spain, and because of this, [the Rosh’s] legal intervention was very cautious.” 152 This would seem to be the simplest understanding of the Maharam’s approach; see Hefetz, n. 1 above, 88 end of n. 103.

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The Rosh treated these questions in a long and highly instructive responsum that also has significant implications for the laws of estimating intent.153 This responsum, it will be recalled,154 was the basis for Hefetz’s assertion that the Rosh was “faithful to the approach upheld by his master.” In what follows, I will demonstrate that this assertion is far from accurate: the responsum reveals the Rosh to be a bold and activist judge — far more so than his teacher. The question was sent to the Rosh at the queen’s command.155 He was to render a decision according to “what he perceived as in line with honesty and truth,” since the case in question had been considered in various Jewish and non-Jewish courts, none of which had succeeded in arriving at a definitive decision. The relevant facts were as follows.156 R. Solomon and R. Israel had invested in a partnership, but went bankrupt. The partnership document, which recorded R. Solomon’s original investment and R. Israel’s obligation to return it upon termination of the partnership, had been in the possession of R. Solomon. The deed of partnership was stolen from R. Solomon’s home, and an inquiry revealed that it had somehow come into R. Israel’s possession. R. Israel claimed that he had repaid his debt to R. Solomon, and the document had thus been returned to him; he had then torn it up. In response to questioning by the plaintiff and the court as to when he had repaid the debt and in whose presence, R. Israel retorted that he did not have to answer such questions, the burden of proof being upon the plaintiff — hamotzi mehaveiro, alav

153 Responsa Rosh, 107:6. This responsum was thoroughly analyzed by Hefetz, ibid., 86–91. Relying among other things on this responsum, Hefetz declares (p. 76) that “with the Rosh, the idea of estimating intent reached the height of its development in the halakhic literature.” Here, we will only deal with the main points of relevance to our discussion. 154 See above, at n. 125. 155 See Baer, n. 40 above, vol. 1, 317, who points out that the Rosh “was recognized not only formally but de facto as the leading religious authority of the entire country. The judges and aljamas brought their difficult cases to him, and Queen Maria de Molina commanded him to decide matters too difficult for the authorities.” Baer cites the responsum in n. 13. 156 The responsum provides a wealth of details, including an almost complete protocol of the investigations and interrogations conducted by the various courts involved. The protocol reveals an inquisitorial method of interrogation, as was customary in Spain at that time.

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haraaya.157 Time after time, R. Israel avoided answering the questions put to him, giving cagey answers intended to prevent clarification of the matter by the witnesses. After listing these questions in detail and describing Israel’s evasive tactics, the Rosh writes: Behold, I see that the judges have inquired and examined thoroughly, so that R. Israel could clarify his answers. Because it was puzzling to them how such a major repayment was made in secret, in such a short time. And they sought to have R. Israel explain his words, and inquired and asked about several matters. For it would have been proper for R. Israel to answer each and every question, so that the matter could be clarified and the true judgment arrived at. But he obscured his actions and his words, and did not want to answer their questions, lest he make a verbal slip and his lies come to light.

The Rosh declares that “by law, he should have responded to all the examinations and inquiries that were carried out,” invoking the rubric of fraudulent claims: “When a fraudulent-claim case comes before him, the judge must examine and inquire using all kinds of examination and inquiry, until the true judgment is revealed.” He then goes on to cite the Maharam’s distinction between deceit on the part of the plaintiff and deceit on the part of the defendant, concluding, “It follows that where the defendant’s plea is fraudulent . . . this calls for inquiry and examination, and the defendant must answer everything that the judge asks.” He then turns to discussion of the special problematics of the case at hand, for which the Maharam’s words158 provide no clear-cut solution: And if he does not wish to answer the judge, but covers up and conceals his words, and gives misleading answers, so that the judge will not be able to determine the truth of the case, what is the judge to do? He cannot 157 Lit., the burden of proof is on he who seeks to extract payment from his fellow. R. Israel was probably being advised by expert jurists, who advised him to insist on his right to remain silent; see Hefetz, n. 1 above, 87. 158 The Maharam is indeed quoted in Mordekhai, bBaba Metzia, #223, as having ruled in a responsum (cf. Responsa Maharam, Cremona edition, #162) that the claim of a litigant who refuses to explain his suit and raises the suspicion of fraud should be dismissed. However, closer examination reveals that the responsum is concerned with a plaintiff who does not explain his claim, but there is no similar ruling of the Maharam as regards a defendant who behaves in that fashion. Naturally, it is easier to dismiss a swindler’s suit and leave the money in the defendant’s possession than to collect money from a defendant suspected of deception.

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YUVAL SINAI acquit him, since it appears to him to be a fraudulent claim, as it is said in bShevuot. But if he withdraws from adjudication, that amounts to acquittal, for [the defendant] will thereby be released if no judge consents to take on the case because he is presenting a fraudulent claim and does not want to respond to the examinations and inquiries, and the outcome will be that the sinner is rewarded!

The Rosh now arrives at his innovative conclusion: Regarding this and similar cases it was said that “a judge can rely only on what his own eyes behold.” And since it is appears to the judge that were [the defendant] to reply to his questions, the matter would be clarified, and it is to prevent such clarification that he is holding his tongue, the judge should act as if [the defendant] had answered and his lies had come to light, and hold him liable on the basis of estimation of his intent, even though he is unable to clarify every detail of the lies unambiguously. Since the lack of clarity is due to his deception, for he does not want to respond to the examinations and inquiries lest his lies be revealed, this is a well-established presumption (umdena demukhah), and an expert judge is entitled to pronounce judgment on the basis of such a well-established presumption, and this is not considered an unspoken stipulation, since it is based on well-established reasoning.

The Rosh takes pains to adduce additional arguments for his position,159 some of which are rather feeble.160 At any rate, the Rosh 159 E.g., “The Sages of the Talmud in some places arrived at their rulings by estimation of intent”; “there are laws in the Talmud where we say, It is left to the judge’s discretion”; “we find similarly in the Talmud that the judge is empowered to render judgment by a kind of compromise.” For an analysis of the various arguments, see Hefetz, n. 1 above, 89–91. 160 He begins by offering two proofs based on rather risqué, semi-legendary stories. The first is the episode of R. Banaa in bBaba Batra 58b: “A certain man heard his wife say to her daughter, Why are you not more secretive in your forbidden acts [sexual promiscuity]? I have ten children, and only one is from your father! When [the man was] on his deathbed, he said, I leave all my property to one son. They had no idea which of them he meant, so they consulted R. Banaa. He said to them: Go and strike your father’s grave, until he gets up and tells you which of you [he has made his heir]. So they all went to do so. The one who was really his son, however, did not go. R. Banaa thereupon said: All the estate belongs to this one; he is his son.” From this, the Rosh draws the following inference: “Therefore, regarding any case that cannot be clarified, we do not say, ‘Let it lay dormant until Elijah [the Prophet] comes [i.e., indefinitely],’ but rather the judge should judge it as he sees fit, estimating intent even on sparse grounds. For it seemed to [R. Banaa] that the one who was his son had

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sanctions reliance on the judge’s estimation, provided the court in question “is an expert court” (beit din mumhe).161 He also adds a general argument: For since the case has come before the judge and the latter is unable to clarify the matter, he is not permitted to remove himself from the case and leave the litigants to quarrel with one another. As Scripture says, “execute the justice of truth and peace,” and so on (Zech. 8:16), for through justice there is peace in the world, and therefore judges were invested with the power to judge and to do whatever they wish even without [providing] reasons and evidence, so as to bring peace to the world.

respect for his father that remained firmly fixed in his heart, and therefore he awarded him the entire estate. All the more so in the present case, there being several indications that [R. Israel] had not repaid his debt, as I shall explain. Moreover, this case could be clarified if [R. Israel] wanted to answer the judge’s question; but since he does not want to answer, so that the matter will not come to light, this is tantamount to a partial admission of his lies, and he should be judged on the basis of an established presumption. Since we see that R. Banaa judged a case that could not be clarified at all on the basis of a an established presumption, all the more so in the present case, where the swindler is preventing clarification and obscuring the truth, it is fitting that he be judged according to [the judge’s] estimation.” The proof from the story of R. Banaa is, of course, rather feeble, and a distinction between the two cases can readily be made. The Rosh then adds another proof from the biblical story of the judgment of Solomon: “The scholar R. Banaa learned this law from the father of all wise men, in the story that there came before him two prostitutes, whom he judged on the basis of his estimation, for it seemed to him that the mother’s mercy was aroused by her son, and he gave her the live child; and the holy spirit appeared in the court of Solomon, may he rest in peace, and said that she was indeed his mother.” But perhaps the Rosh took the trouble to adduce proofs from unusual (at least for a decisor accustomed to relying on more normative talmudic sources) semi-legendary sources in order to make his decision more palatable to the queen and the Christian scholars, who might more readily relate to such proofs. 161 SA, HM 15:4, states: “If it seems to [the judge] on the basis of an established presumption that [the defendant] is liable, he should hold him liable, provided that he is an expert judge and unique in his generation.” The reason is apparently that not every judge can be given far-ranging authority to render judgment on the basis of his own assessments. However, Halakha Pesuka, 15, 365 n. 81, comments that “later decisors do not make this stipulation, allowing any professional judge (dayan muvhak) to make decisions in this manner.”

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In the final paragraph of the responsum, the Rosh sums up his position: Such is my opinion, and I have presented it at length, to make it known that [the judge] is not empowered or permitted to leave the case undecided, but must put an end to it and complete the judgment so as to impart peace to the world. It was for this reason that the Sages permitted judges to render a decision in accordance with what they see fit wherever the matter cannot be determined through evidence and testimony; sometimes by estimation, sometimes in accordance with what the judge perceives, without reasons, without evidence, and without estimation, and sometimes by way of compromise. And in this particular case, where it is known that the defendant’s plea is fraudulent, as I shall explain, it is impossible to acquit him, as our Rabbis of blessed memory said, “Keep far from a false charge.” But it is impossible to withdraw from adjudication, as I have written. Hence the judge must necessarily judge the case on the basis of his own estimation.

To remove any doubt, the Rosh emphasizes that the judge is “not empowered or permitted to leave the case undecided, but must put an end to it and complete the judgment so as to impart peace to the world. It was for this reason that the Sages permitted judges to render a decision in accordance with what they see fit.” This determination is, of course, contrary to the Ashkenazic tradition, which assumed that in fraudulent-claim cases the judge must withdraw from adjudication; nor does it follow from anything the Maharam said. While, as we saw in discussing responsum 68:20, even the Rosh maintains that the judge must withdraw from adjudication when the plaintiff is suspected of fraud, this does not conflict with his ruling here, since as I stressed, in that case such withdrawal was tantamount to ruling in the defendant’s favor, so that there too, the judge did not “leave the case undecided.” 3

A suggested explanation

The Rosh, we saw, initiated a dramatic departure from the previous Ashkenazic tradition. This raises the question of the motives that prompted him to formulate this new position on fraudulent-claim cases. Hefetz162 points out that “in practice,”163 there is little difference

162 Hefetz, n. 1 above, 96. 163 In contrast to the approaches’ theoretical underpinnings, as Hefetz explains.

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between the approaches of Maimonides and the Rosh.164 According to Hefetz, “a judge who seeks to uphold justice and arrive at a truly just decision can achieve this only by way of estimation of intent.” He also contends that according to both Maimonides and the Rosh, in order to reach a true and just decision, “for the sake of heaven,” a judge must rely on his own understanding and expertise. Indeed, the Rosh’s son R. Jacob, author of the Arbaa Turim,165 achieved a synthesis between the position of his father and that of Maimonides.166 This paved the way for the sixteenth-century codifier R. Joseph Caro, in his Shulhan Arukh, to offer yet another synthesis of the positions of the Rosh and Maimonides,167 and most of the later decisors took this path in their halakhic rulings, rejecting the earlier Ashkenazic tradition.168 Hefetz suggests that, given the nature of the synthesis — reframing Maimonides’ position and adapting it to the demands and conclusions of the Rosh’s position — we can readily imagine that it was created by the Rosh himself. However, Hefetz rejects this possibility, pointing out that in his responsa, the Rosh never refers to Maimonides’ legal determinations in the Code. Indeed, as we saw, the Rosh, as was his wont,169 relied in his rulings and responsa on the Maharam’s distinction, never referring to the Spanish decisors. But if so, how are we to explain the enormous disparity, described above, between the Rosh’s practical rulings and the Ashkenazic theoretical–interpretive foundations of his approach? Several explanations suggest themselves.

164 This is not entirely accurate; see n. 167. 165 On the Tur’s approach to codification, see Elon, n. 12 above, 1277–1302. 166 Tur, HM 15:3–4. For a detailed account of the Tur’s synthesis, see Hefetz, n. 1 above, 96–100. 167 For an account of R. Joseph Caro’s synthesis, see ibid., 151–54. See also Sefer Meirat Einayim ad loc., 12, where Caro is criticized for combining “two things that contradict one another.” The synthesis does indeed blur the distinctions between the two approaches with respect to the meaning of withdrawal from adjudication, as explained above at n. 20. 168 See Halakha Pesuka, 15, 363–65. See also the assertive stance, opposing withdrawal from adjudication, taken by an Israeli rabbinical court in 2824/5738, P.D.R. 11, 259, 273–74. 169 I.M. Ta-Shma, “Rabbenu Asher and his son R. Jacob Baal HaTurim: between Ashkenaz and Sepharad” (Hebrew), Pe’amim 46–47 (1991), 78–81, notes that “only rarely did [the Rosh] mention Spanish decisors in his responsa.”

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Perhaps the disparity has to do with the methods of judicial decision-making utilized by the Rosh — who, it must be kept in mind, headed, in turn, the two great medieval centers of fourteenth-century Jewry170 — in cases where the Ashkenazic tradition that had shaped his halakhic world clashed with the tradition prevailing in his adopted homeland of Spain. This subject has been much debated in the scholarly literature.171 Some believe that he generally upheld the Ashkenazic tradition and rejected that of Spain,172 but others maintain that he weighed matters objectively, preferring whichever stance interpreted the law most faithfully to the relevant talmudic source, his affinity with the Ashkenazic tradition playing no part in his decisionmaking.173 Westreich argues that “the Rosh distinguished between two levels of law: the theoretical level, on which he continued to adhere to the Ashkenazic tradition, considering it to be preferable to the Spanish, and the practical level, where he permitted the Jews of Spain to maintain their own customs.174 In light of these considerations, I would like to suggest an explanation of the Rosh’s approach to the subject at hand. At the theoretical level, he remained loyal to the Ashkenazic tradition as expressed in the position of his teacher the Maharam of Rothenburg, and thus cited it without reservations in his rulings and responsa. Nevertheless, at the practical level, he had to cope with the activist approach of the judicial praxis in Spain, which relied on the rulings of Maimonides. This approach held that a judge who suspected that a case involved fraudulent claims had to first conduct an inquiry and examination so as to arrive at a true judgment, and in practice rejected the idea that the judge ought not endeavor to deal with fraudulent-claim cases, but should withdraw from adjudication. To this we must add the Rashba’s

170 On the Rosh, see the comprehensive study in A. Freimann, The Rosh and His Descendants: Their Lives and Works (Hebrew), trans. M. Eldar (Jerusalem: 1986). See also Urbach, n. 74 above, Index; Baer, n. 40 above; TaShma, ibid. 171 For a review of the different positions see Westreich, n. 146 above, 157–61. 172 See E. Ellinson, “On the characteristics of the Rosh’s legal rulings (his disregard for Ashkenazic practice)” (Hebrew), Sinai 93 (1983), 234–44. See also Ellinson’s response to Zafrani’s critique (see next note), Sinai 95 (1984), 189–91. 173 D. Zafrani, “On the Rosh’s method in his legal rulings (comments on Ellinson’s article” (Hebrew), Sinai 94 (1984), 278ff. 174 Westreich, n. 146 above, 182.

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position, according to which a judge should adjudicate on the basis of the truth that he ascertains, and not on the basis of the litigant’s fraudulent arguments. In the Rosh’s responsa, most of which were sent to recipients in Spain,175 he did not want to ignore the Spanish praxis, and adopted some176 of its elements, weaving them into his Ashkenazic interpretive foundation without mentioning their Spanish roots. While this solution is plausible, it does raise some difficulties. On the practical level, the Rosh’s position is indeed similar to that of Maimonides, but there is a difference of principle. Whereas Maimonides permits (at least theoretically) withdrawal from adjudication,177 the Rosh introduces the revolutionary principle that a judge is not entitled to excuse himself from adjudicating. Since I have not found any Spanish scholar enunciating a similar principle, I would suggest that the Rosh is taking a principled activist position with which he is in full agreement, not just a position that reflects a post-factum concession to local practice.178 It is indeed true that after his move to Spain, the Rosh, who had been educated in the spirit of the German-Jewish pietists (hasidei ashkenaz), significantly changed his approach. Baer noted that “his responses to legal queries were not formulated in the manner of a quiet pietist and unassuming scholar in the study-hall, but were, rather, decisions and commands issuing from the supreme political and judicial authority of the land. This Ashkenazic pietist unhesitatingly accepted the harsh mode of Spanish adjudication.”179 The style of his responsa, Baer noted, attests to an assertive leader “conscious of his strength and of his ability to realize his objectives.”180 It is possible that the changes — relative to the traditional position of the halakhic authorities of Ashkenaz — that the Rosh introduced with respect to

175 See Ta-Shma, n. 169 above. 176 But not all; see below. 177 Even the Rashba, who was more inclined to activism than Maimonides, did not explicitly reject the possibility in principle. 178 Although the Spanish praxis was undoubtedly the backdrop for his rulings, and may, perhaps, have had some degree of influence on the final consolidation of his approach. 179 Baer, n. 40 above, vol. 1, 317–18. See also Freimann, n. 170 above, 34. 180 Baer, ibid., 321. Cf. Freimann, ibid., 38: “In Germany R. Asher had conducted himself with humility. . . . In Spain, however, he was at times obliged to express himself in a self-confident manner.”

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fraudulent-claim cases correspond to the changes in his leadership style after his move to Spain: a transition from an Ashkenazic pietist’s humility and apprehensiveness about adjudicating fraudulent-claims cases, to a Spanish judge’s assertiveness and judicial activism.181 The latter qualities clearly manifest themselves in the Rosh’s bold stance on fraudulent-claim cases. In addition, we cannot discount the possibility that the Rosh’s far-reaching firmness in the case of the aforementioned R. Israel was also due to the pressure exerted on him by the queen to settle the troublesome dispute once and for all.182 This would surely have obliged him to outline his personal legal credo. The queen would hardly have approved of any attempt to withdraw from adjudicating on the grounds of suspected fraud. On the other hand, it can be presumed that his forthright and just decision was much appreciated by the Gentile authorities, and this may even have enhanced the status of the rabbinical courts’ legal system, namely, the halakha. Such considerations may indeed have guided the Rosh in his deliberations in the said case. The Rosh appears to have been well aware of the special circumstances under which he was rendering his decision, and of the danger inherent in granting to every judge such broad authority to adjudicate fraudulent-claims cases on the basis of his own estimation, and thus added the qualification that only “expert” judges were to exercise this authority. If this is indeed the case, then rather than speaking of the Rosh’s principled activism, we should say that the responsum in question reflects an ad hoc solution to a specific problem. But there is no doubt that later decisors considered the Rosh’s responsum a broad principle and precedent, indeed, a cornerstone and signpost for judicial decision-making in problematic cases in general.183

181 The Rosh exemplifies judicial activism in every sense of the term: in the sense mentioned at the beginning of this article, that is, willingness on the judge’s part to take on the case before him and pronounce judgment, and in the other senses referred to in Barak 1993, n. 2 above: departure from precedent, establishing legal policy; and also in the sense of “utilizing the creative power of the court” (as defined by S. Levin, “Judicial activism in the law of evidence and civil procedure” [Hebrew], in Porat, n. 2 above, 393). 182 See the prayer with which the Rosh prefaces his answer. 183 See Halakha Pesuka, 16:4, 365–66.

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Conclusion

Various positions have been upheld as to the course of action open to a court when confronted with what it believes to be a fraudulent claim (generally this refers to doubt as to the facts of the case). At the beginning of this article I surveyed the positions upheld in the talmudic literature. The disparities between the various positions became more acute in the post-talmudic period. The medieval authorities were not necessarily sharply divided at the theoretical level, most apparently agreeing that in some fraudulent-claim cases, the judge should conduct a thorough investigation, while in others he should withdraw from adjudication. On a practical level, however, they differed both with regard to the weight they gave to each of these alternative courses of action, and in their tendency to judicial activism or passivity. The Geonim and the Spanish Early Authorities further developed the Babylonian tendency toward activism, favoring an assertive, resolute attitude on the part of the court to the adjudication of fraudulent cases. I suggested that this stance is related to the authority and forcefulness characteristic of these jurists (up to the fourteenth century), who enjoyed wide judicial autonomy, which enabled them to take on even problematic cases of fraudulent claims without fear. An intermediate position is represented by Maimonides, who favors broad application of the law of fraudulent claims, and giving decisive weight to the judge’s subjective evaluation of the case. While Maimonides does grant that a judge who is unable to vitiate the attempted deception by inquiry and examination may have to withdraw from adjudication, it remains a theoretical possibility only. In practice, Maimonides advocated actively confronting the deception so as to achieve “a truly just decision.” An even more activist position was espoused by the Rashba, who held that in principle, the judge should decide on the basis of what he has ascertained to be true, rather than rely on the fraudulent arguments put forward by the litigants. Both Maimonides and the Spanish Early Authorities seem to consider fraudulent-claim cases an autonomous framework within which the judge is not bound by the detailed requirements of ‘inquiry and examination’ as mandated for capital cases, empowering him to take other steps so as to arrive at a truly just decision.184

184 See Sinai, n. 3 above, ch. 11, I.4.

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The traditional position in medieval Franco-Germany was inclined to judicial passivity, and viewed the judge’s withdrawal from adjudicating a fraudulent-claim case as a pragmatic and legitimate course of action. I suggested that this stance is related to the fact that apprehensiveness about the responsibility of rendering legal decisions (yirat horaa) was a powerful force in medieval Ashkenaz, and is reflected in the fact that the halakhic authorities of Ashkenaz during this period sought to withdraw from adjudicating civil cases. This was also connected to the limited judicial autonomy there at the time, and the fact that mediation courts (zabla) were not merely commonplace, but actually took the place of permanent courts. It was only natural that a judge who was not a professional, permanently appointed jurist, but selected for a particular arbitration, would not wish to deal with claims suspected of fraud. Nevertheless, in both Germany and France there were decisors who limited withdrawal from adjudication to specific circumstances, distinguishing, for example, between witnesses and litigants (Rashi, R. Moses of Coucy, Tosafot MS Paris), or between plaintiff and defendant (Maharam of Rothenburg). A change in the Ashkenazic tradition, with a shift toward a much more activist position — close to, though not identical with, the Spanish tradition — was initiated by the Rosh. The Rosh had qualms about permitting cases suspected of involving fraudulent claims to be left undecided. In theory, he relied on the Ashkenazic tradition and on the view upheld by his teacher the Maharam. In practice, however, he introduced activist elements derived from the juridical practices of the halakhic authorities of Spain. In the first stage of a case suspected of being fraudulent, he always conducted a thorough inquiry and examination. In cases where the plaintiff was found to be deceitful, the Rosh withdrew from adjudicating, but the practical import of this withdrawal was a decision in favor of the defendant, to whom he would give a document guaranteeing immunity from further suits by the same plaintiff in another court. But if inquiry and examination failed to vitiate the deception, and the defendant resisted giving satisfactory answers, the Rosh granted the expert judge extensive authority to adjudicate on the basis of his own estimation, even without solid evidence, and to find against the defendant. To account for the transition to judicial activism initiated by the Rosh, I suggested that it might well be a consequence of the changes in his leadership style after he took up residence in Spain, and/or his deference to Spanish judicial practices; another possibility

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is that it resulted from the special circumstances underlying the responsum he wrote for the queen of Spain. VII Appendix: The Judge’s Authority in Fraudulent-Claim Cases — A Comparative Review Different legal systems have had different attitudes to the judge’s obligation to adjudicate even when he has qualms about the ruling he has reached.185 Shifman summarizes the prevailing view thus: It is a basic principle in modern legal systems that the judge must reach a conclusive opinion concerning any legal question arising in his court. A civil judge will prefer to reach a settlement in a dispute — even if he himself is not fully satisfied with it — rather than leave it undecided. A judge who refrains from pronouncing a decision because of doubts is seen as betraying his judicial duty, a duty that essentially entails regulating human behavior in one way or another. . . . For each and every concrete case, an unambiguous answer must be given, even in the absence of confidence that it is completely correct.186

The judge’s obligation to decide every legal question stems from his creative role in the judicial process.187 This view is, of course, accepted in Israeli law too, as aptly expressed by Justice Silberg: “The injunction ‘Let your tongue acquire the habit of saying, I know not’ [bBerakhot 4a] is not addressed to the judge, who is generally obliged to reach a clear and absolute opinion on any legal question arising before him.”188 It is indeed generally recognized that a modern secular 185 See P. Shifman, Doubtful Marriage in Israeli Law (Hebrew), (Jerusalem: 1975), 13–31, and the sources for other legal systems there adduced; A.M. Rabello, “Non liquet: From modern law to Roman law,” Israel Law Review 9 (1974), 63. 186 Shifman, ibid., 13. 187 See B.N. Cardozo, The Nature of the Judicial Process (New Haven: 1921); S.K. Allen, Law in the Making (Oxford: 1958), 287–97. 188 Cohen and Buslik v. Attorney-General, C.A. 238/53, P.D. 8(1) 4, 21 (emphasis in original). See also Agranat J. in Segev v. Religious Court, n. 189 below, who points out that Silberg was speaking specifically of a civil judge, not a rabbinical court. Cf. Olshan J. in Malkah v. Farkas, C.A. 175/64, P.D. 8(2) 619, 621: “It was the responsibility of the learned judge to evaluate the proofs brought before her and reach a conclusion; if the plaintiff proved his claim, it was incumbent on her to rule in his favor, to the degree that he indeed proved it; and if her conclusion was that she was not convinced by the proofs he presented, she should have rejected the claim.” See also Morris R. Cohen, Reason and Law (NY: 1961), 73.

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judge is not particularly troubled by the thought that his or her verdict might prove wrong. As Silberg wrote elsewhere: The ruling of a secular judge is not comparable to that of a religious judge. The secular judge has before him no absolute truth on matters pertaining to law and judgment. He upholds the law as he understands it, even if he is relying only on his own estimation or supposition. Should he err, either his verdict will be reversed by a higher court, or it will be law. His conscience need not trouble him if others, wiser than he, rule that he erred in his interpretation of the law.

But Silberg immediately adds: “The religious judge, however, must deliver a truly just judgment, entertaining no doubts whatsoever as to the correctness of his interpretation of the law.”189 In Jewish law, therefore, there is no general and absolute obligation to reach a decision, as there is in modern law.190 “Despite the broad authority granted to the halakha, it is striking that the halakhic sages limited themselves and rarely invoked the full decisionmaking powers they had been granted. It seems that one of the reasons for this was the halakhic sages’ reluctance to assume responsibility for judicial decisions that might turn out to be wrong.191 The Mishnah (mSanhedrin 3:6) rules that a judge is permitted to say ‘I do not know,’ attesting, obviously, to the great importance ascribed to his conscience and feelings.192 Jewish law in fact permits a judge who is apprehensive that his decision might be wrong, to reverse that decision and initiate a new judicial procedure. “This provision, entirely unparalleled in the rules of secular law, derives from the fact that in Jewish law the aim is to reach a truly just judgment, and from the difference between a judge in a secular court and a judge in a rabbinical court.”193 This conception is particularly pronounced in the course of action open to the judge when a fraudulent claim is suspected. All the

189 H.C.J. 130/66, Segev v. District Rabbinical Court, P.D. 21(2) 505, 548. 190 On the judge’s obligation to pronounce judgment in Jewish law, see Shochetman, n. 1 above, 357–61. 191 Shifman, n. 185 above, 20. 192 Rabello, n. 185 above, 83. 193 S. Darans, “Formalism and informalism in the rabbinical courts in Israel” (Hebrew), Dine Israel 10–11 (1981/1983), 54–55, and the sources cited there.

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positions upheld by the various halakhic authorities whose views we have examined have a common denominator: the judge’s profound obligation to decide the law truly on the basis of both the evidence that has been presented to him (“what his eyes behold”) and his feelings, based on his impression of the depositions of the witnesses and the litigants. All concur that the judge should not base his decision on the formal rules of evidence, nor blame them if the decision is at odds with his conscience, when he suspects that the case before him involves a fraudulent claim, even if this impression is solely a matter of his subjective feelings and he has no conclusive proof. The halakhic authorities disagree only as regards the question of what a judge should do when confronted by a din merume: avoid rendering a decision, or try to confront the deception and either vitiate it or expose it? And if the latter course of action is chosen, what is to be done should the attempt fail? Some authorities advise the judge to withdraw from adjudication, while others hold that in order to render a decision, he may deviate from the formal rules and decide on the basis of the truth as he has ascertained it (Rashba and the Rosh). Clearly, a characteristic feature of the issue of fraudulent-claim cases is the decisive weight given to the judge’s own estimation of the matter, even when it conflicts with the formal legal rules. Hanina Ben-Menahem has emphasized the difference between Jewish and Western law with respect to the relationship between the judge and the rule of law: The method of Jewish law differs widely from that of Western law. . . . A significant mark of that difference is the approach of Jewish law to one of the basic principles of Western law, namely, the principle of ‘the rule of law.’ This principle implies, among other things, that the judge is subject to the law and cannot make his decisions independently. . . . In other words, the litigant’s fate is entrusted to rules, to the written law, not to mortal human beings. This is not the situation in Jewish law, which teaches that the litigant’s fate is entrusted to human beings, not to dry rules and laws; the judge has a high degree of freedom, and is sometimes permitted to deviate from the system of fixed halakhic rules. True, the judge will generally decide in accordance with those fixed rules and laws, but still, in principle, he is free of the yoke of the legal rule. The judge’s obligation is not to law but to justice, even though, in most cases, the judge will not deviate from the rule. . . . Jewish law therefore views the Western judge as a technocrat. The Western judge is indeed proficient in his knowledge of the law, but he is not an educator, he does not determine social norms, nor is he responsible for creating a more just world. The Jewish judge — the dayan — on the other hand, is an educator who determines norms, and

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As to the requisite qualifications of judges whose function is to reach a truly just decision, let me quote R. Elijah, the Gaon of Vilna, commenting on Proverbs 6:4: Judges must be familiar with the nature of the world, to preclude fraudulent claims [from being presented to the court]. For if, though proficient in Torah law, a judge is not familiar with such matters, a truly just judgment will not be handed down, that is, even though his judgment will be true, it will not be a truly just judgment. . . . Therefore the judge must be proficient in both. . . . That is, he should be wise in Torah matters and shrewd in worldly matters.

Nevertheless, the difference between Jewish and modern law should not be exaggerated; indeed, as far as fraudulent claims are concerned, the difference is manifested mainly at the level of legal theory, and not that of legal practice. It would appear that modern law does not have to define the judge’s authority to deviate from the formal rules of evidence through some doctrine akin to Jewish law’s din merume, since the modern laws of evidence (which are far less formal than those of Jewish law) also assign considerable weight to the judge’s impression of the witnesses’ credibility in any attempt to establish the reliability of the evidence. This is also true of Israeli law. Section 53 of the Evidence Ordinance (New Version), 5731–1971 reads as follows: “The value of oral evidence and the credibility of witnesses are questions for the court to decide according to the demeanor of the witnesses, the circumstances of the case and such indication of the truth as may appear during the trial.”196 Nevertheless, as was emphasized above, 194 On these character traits, see J. Bazak, The Judge in Jewish Law (Hebrew), (Jerusalem: 1985), 17–21. 195 H. Ben-Menahem, “Non-legislative punishment” (Hebrew), in Mishpetei Eretz — Jurist, Jurisdiction, Jurisprudence (Ofra, Israel: 2002), 152–53. For a more extensive discussion, see idem, n. 3 above. 196 A similar phenomenon exists in Jewish law with regard to the weight of circumstantial evidence, which, as is well known, is perfectly admissible in the contemporary Western law of evidence. In his study, Hefetz proved that, contrary to the prevalent misconception that Jewish law does not formally recognize the admissibility of circumstantial evidence, in practice the halakha does take circumstantial evidence into consideration in the context of discretionary judgment, that is, the rules governing umdena.

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modern Israeli law, in contrast to the view held by a number of halakhic authorities, does not allow a judge to avoid handing down a decision when he has doubts about the facts of the case. Despite the aforementioned difference between Jewish law and modern Western law,197 the similarity, in some respects, between the positions of Jewish law, Roman law and other systems of religious law, is worth noting.198 In Roman law, when a judge was unable to reach a clear decision (due to factual or legal doubt), he could swear that he did not know how to rule (non liquet) and thereby be released from his judicial obligation in the case; another judge would then be appointed to adjudicate in his place.199 Even so, it seems to me that the Roman jurists never adopted a stance as far-reaching as that of the Rosh, who allowed the judge to decide, without clear-cut evidence, on the basis of his feelings. In fact, in the seminal Roman precedent,200 the solution Gellius had recourse to, when his conscience did not allow him to rule in favor of the litigant whose claim he felt was the true and just one, was to refrain from passing judgment (non liquet). He did not ultimately take the advice of the philosopher Favorinus, who instructed him to rule in favor of the litigant whose claim he felt to be true and just, even though there was no clear-cut evidence. Shifman has pointed out that some of the considerations for releasing the judge from the obligation to hand down a ruling are implied by the religious nature of Jewish law, and are thus shared, to

197 The foregoing description of the Western judge is not so characteristic of the approach of the Supreme Court in Israel in recent years, as noted by Ben-Menahem, n. 195 above, 163: “Paradoxically, the Supreme Court in the State of Israel, under the leadership of the President of the Supreme Court, Justice Aaron Barak — who, as we know, is not generally guided by the principles of Jewish law — has espoused and internalized the principled conception of Jewish law, on which the judge is not merely committed to the rule of law, but also a spiritual leader for whom justice and making the world better, and not necessarily the letter of the law, are the important considerations.” For a description of this trend see, e.g., M. Mautner, The Decline of Formalism and The Rise of Values in Israeli Law (Hebrew), (Tel Aviv: 1997). In this context, it would be interesting to compare the judicial activism exemplified by the Rosh, as described above, with that advocated by Barak and his school. 198 The question of whether there is interplay between these legal systems is complex, and calls for thorough analysis that cannot be undertaken here. 199 See Rabello, n. 185 above. 200 Ibid., 76–77.

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some extent, by other systems of religious law; similarly, the phenomenon of apprehensiveness about taking on the responsibility of rendering legal decisions (yirat horaa) is not specific to the halakha, but found in other religious systems.201 “The requirement of certainty — at least, from the subjective viewpoint of the judge — as a condition for handing down a judicial decision” is also not unique to Jewish law, but found in other religious legal systems, such as Canon law and Islamic law.202,203

201 Shifman, n. 185 above, 30, and see too Shifman’s survey of Canon and Islamic law. 202 Shifman, ibid., 31. See also idem, “On the concept of doubt (safek) in halakha and law” (Hebrew), Shenaton Hamishpat Haivri 1 (1974), 343 n. 85, which points out the similarity between the position of some medieval halakhic authorities in regard to din merume, and the accepted view among scholars of Canon law that a judge is entitled to acquit a defendant on the basis of evidence brought before him, even if in his heart he believes, on the basis of personal knowledge, that the defendant is guilty; he may not, however, convict someone on the basis of evidence if he has personal knowledge that the accused is innocent. In that case, the judge should recuse himself and ask to be replaced by another judge. 203 This article is a reworked version of a chapter of my Ph.D. dissertation. I lectured on the material at a seminar at the Law Faculty of the Hebrew University of Jerusalem, and am indebted to the seminar participants for their comments.

The Jewish Law Annual, Vol. XVII

BREACH OF A PROMISE TO MARRY RONNIE WARBURG*

This article explores how the Jewish law of obligations deals with the breach of a promise to marry.1 What are the halakhic consequences? How do the present-day rabbinical courts of the State of Israel regulate what happens when a promised marriage falls through, that is, when there is a breach of shidukhin? Consider the following case. The plaintiff, relying on the defendant’s promise of marriage, made nonrefundable deposits on wedding music, a photographer, a reception hall, and a custom-made wedding gown. One month before the wedding was to take place, the defendant informed the plaintiff that he would not be keeping his promise to wed her. She then cancelled all the wedding plans and brought an action against her former fiancé for reimbursement of her wedding-related outlay, which had been expended in reliance on the unfulfilled promise to marry. The defendant sued the plaintiff for the recovery of gifts he had presented to her in anticipation of the marriage. Given that shidukhin, i.e., a promise to marry, has been characterized as an instance of “two who have undertaken an obligation,”2 how does the Jewish law of obligations define this ‘obligation’? Does it really constitute a hithaivut in the formal halakhic sense? Is one obligated to marry the affianced party? Can one

* Dayan, Beth Din of America, and Research Scholar at the Institute of Jewish Law, Boston University School of Law. 1 M. Silberg, Personal Status in Israel (Hebrew), (Jerusalem: 1965), 14–16; R. Gavison, “The enforcement of morality, damages for breach of a promise to marry, and the obligation to give a reasoned judgment” (Hebrew), 8 Mishpatim (1977), 282; E. Shochetman, “More regarding damages arising from breach of a promise to marry” (Hebrew), 9 Mishpatim (1978), 109; D. Frimer, “Returning engagement gifts upon breach of a promise to marry in light of the new civil legislation” (Hebrew), 10 Mishpatim (1980), 329; P. Shifman, Family Law in Israel (Hebrew), (Jerusalem: 1984), 121–45. 2 Responsa R. Akiva Eiger, 2nd edition, #75. See also Responsa Shivat Tzion, #88.

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recover damages for a breach of promise to marry? Are there grounds for reimbursement of wedding-related expenses due to breach of an engagement? Are gifts that were given in the anticipation of the marriage recoverable? Schereschewsky answers the question as follows: The party committing a breach of promise — that is, not marrying the other party — may be liable to compensate the other party for any actual damage sustained, such as the expenses of the preparations for the marriage, and may also be obliged to return the gifts he received on the occasion of the shidukhin, whether from the other party or from relatives and friends.3

According to Schereschewsky, a plaintiff can recover breach-ofpromise damages that are tortious, such as unreimbursed expenditures made in preparation for the impending marriage. Since breach-ofpromise plaintiffs can also recover engagement gifts under contract law, Schereschewsky maintains that both claims associated with the law of contracts and claims associated with the law of torts are recoverable on the basis of an umdena (that is, an assessment of intent that can presumed correct).4 Would the prospective wife have incurred wedding expenses had she known her fiancé would break the engagement? Are the engagement gifts to be construed as conditional gifts? Is the condition in question the actual occurrence of the marriage, or might it be the case that gifts are not recoverable when the donor changes his mind, as long as the donee has taken steps to fulfill his or her part of the agreement? Allowing the woman to keep engagement presents when she did not break the engagement would suggest a fault-based rationale. On Schereschewsky’s analysis, the device of umdena, allowing a presumption to be invoked to establish a tort and contract claim, translates, in our situation, into recovery of damages for unreimbursed expenditures and recovery of gifts by the aggrieved party. But does the breach-of-promise action resemble a tort or contract claim? Is the invoking of an umdena a suitable strategy for establishing a claim for recovery of expenditures and return of gifts? Do Schereschewsky’s sources corroborate his conclusions?5

3 B. Schereschewsky, Family Law in Israel (Hebrew), (Jerusalem: 1993), 16. 4 Ibid. 5 Ibid., 16 n. 7.

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A related issue may shed light on the nature of the obligation inherent in the act of betrothal (shidukhin). If, in a divorce agreement, a married couple take upon themselves the obligation (mithaivim) to dissolve their marriage, is such an agreement valid? The following answer was given by an Israeli rabbinical court: “it is clear that a divorce decree issued following a mutual agreement to be divorced, even though the parties undertook the obligation via kinyan, does not obligate them to become divorced . . . each party may withdraw from the agreement. . . .”6 That is, such an agreement is null and void. Numerous rabbinical courts in Israel have taken this position.7 It has been argued that the same conclusion should apply in a situation where two parties take on the obligation to bind themselves in marriage. Both agreements have been characterized as “kinyan devarim” (a promise).8 Why doesn’t the halakhic system uphold such agreements whereby the parties obligate themselves (mithaivim) to a marriage or divorce? Though the rabbinical courts in question did not address this issue, the answer is nonetheless clear.9 The Talmud states that execution of a kinyan (an act of acquisition) between two partners for the express purpose of dividing a plot of land equally between them is a kinyan devarim and thus null and void.10 As numerous decisors have explained, the efficacy of employing a kinyan in this context is

6 8 PDR 175, 179. 7 1 PDR 257, 262; 2:289, 290; 3:322, 323; 8:3, 9, 175, 179; 10:121, 126; 11:89, 91. 8 4 PDR 374, 377; 8:175, 179. For the etymology of this legal concept, see Berachyahu Lifshitz, Promise: Obligation and Acquisition in Jewish Law (Hebrew), (Jerusalem: 1988), 110–12, 383. And see n. 12 below. 9 These rabbinical court decisions reflect normative halakha. See I. Warhaftig, The Undertaking in Jewish Law: Its Validity, Character and Types (Hebrew), (Jerusalem: 2001), 197–99, 471–72. For dissenting opinions see Responsa Kol Arye, EH #85; Responsa Torat Hesed, #228; Responsa Parah Mate Aharon, #8–9; Nahal Yitzhak, HM 60:3. For discussion of other dissenting views, see B. Lifshitz, Employee and Independent Contractor — Acquisition and Obligation in Contrast (Hebrew), (Jerusalem: 1993), 118–33. Though the Kol Arye’s decision addresses the specific issue that concerns us here, the other decisors maintain that any attempt to undertake an obligation (hithaivut) involving a davar shein bo mamash is ineffectual for creating a legal agreement. 10 bBaba Batra 3a.

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predicated upon transfer of an existent object.11 In rabbinic terminology, we speak of a davar sheyesh bo mamash (i.e., corporeal estate) requirement, which, when met, imparts validity to a kinyan. An obligation between two parties to behave in a certain manner in the future — for example, to divide land — is characterized by the Talmud as a kinyan dvarim, and understood by some post-talmudic decisors as an example of the ineffectiveness of kinyan in the absence of any corporeal estate. A promise to perform an action in the future cannot constitute a kinyan, which is a form of hithaivut (undertaking an obligation).12 Such an undertaking does not transform a promise of a 11 As Lifshitz notes, this explanation finds support in certain interpretations. See Warhaftig, n. 9 above, 206–15. However, cf. Responsa Ri Migash, #135 and Maimonides, Mishne Torah (henceforth Code), Laws concerning Sales 3:14 and 22:13, where the issue of davar sheyesh bo mamash is addressed under the rubric of the rules of acquisition rather than obligations. And see I. Brand, “Transactions in incorporeal estate: from philosophy to law” (Hebrew), 21 Shenaton Hamishpat Haivri (2000), 71. 12 Rashi, bBaba Batra 3a s.v. kinyan dvarim hu; Rosh, Baba Batra 1:3; Lifshitz, n. 9 above, 24. Cf. Beit Habehira, bBaba Batra 3a s.v. kinyan dvarim, Lifshitz, n. 8 above, 69. This conclusion attests to the imprecision of Gulak’s presentation of the principles of the Jewish law of obligations; see B. Lifshitz, “Why Jewish law doesn’t enforce promises” (Hebrew), 25 Mishpatim (1995), 161, 166–67. For an alternative theory, on which promises to carry out a future action are invalid due to an absence of gemirat daat (firm intent and resolve to act) on the part of those involved, see Torat Hesed, n. 9 above; Responsa Parah Mate Aharon, 1:9; Warhaftig, n. 9 above, 471; Shalom Albeck, The Law of Property and Contract in the Talmud (Hebrew), (Tel Aviv: 1976), 312–16; Lifshitz, n. 8 above, 168–69. On the view that a promise to marry falls under the category of acts predicated on gemirat daat, see Responsa Imrei Yosher, 1:203. The legal ineffectiveness of a promise to perform a future action at a later date extends, as noted above, to cases where prospective spouses obligate themselves to marry via execution of a kinyan, see Responsa Maharibal, 1:59; Responsa Lehem Rav, #147, Arukh Hashulhan, HM 60:11. Cf. Responsa Parah Mate Aharon, 1:7–9 and Responsa Kneset Hagdola, gloss on HM 203. However, despite the problem of kinyan dvarim, some decisors argue that the violation of a penalty clause in breach of engagement cases is actionable for emotional pain. See Tosafot, bBaba Metzia 66a s.v. minyomi; SA, HM 207:16; Shakh, HM 207:24; Sema, HM 207:47. The Vilna Gaon concurs that it is actionable for this reason, provided that the local practice is to impose such a penalty. See Biur Hagra, HM 207:24. The Maharik contends that even in the absence of a penalty clause, the jilted party must be compensated for emotional distress; see Responsa Maharik, #29.

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future action into a davar sheyesh bo mamash. Applying this principle to our situation, since the corporeal estate requirement is a condition for the efficacy of a kinyan, and a promise to perform a future action is devoid of this element, an agreement to marry is legally ineffective. This explanation enables us to understand the rabbinical courts’ view as to the legal ineffectiveness of the commitments entered into both by parties to shidukhin agreements and married couples who agreed to divorce. In these contexts, the promise to perform an action at a future date is unenforceable. In general, an undertaking to the effect that an action will be carried out in the future does not render the agreement binding. A fortiori, on the scenario we are exploring here, where the parties exchanged mutual promises to marry at a future date, such an agreement surely lacks legal effect. In light of the legal ineffectiveness of a promise to marry, are there, on the scenario we have envisaged, grounds for reimbursement of wedding-related expenses? Though a promise to marry at a future date is legally ineffective, if a document of tnaim13 is signed at the time of shidukhin, specifying an “obligation to pay” (hithaivut) (sometimes including the term “from now”) and a monetary penalty to be imposed on the party in default, the agreement is valid.14 For as soon as the monetary obligation is created, the parties become debtors, in contrast to having merely exchanged mutual promises to carry out a future action.15 Hence, reliance on the penalty clause seems to provide a basis 13 In various communities it is customary, on the occasion of the betrothal (shidukhin), to sign a document called ‘tnaim’ (conditions), enumerating various parental obligations, the anticipated month of the wedding (or the actual wedding date), and a monetary penalty to be paid should a party to the agreement default. On the different formulations of the tnaim conditions, see Nahalat Shiva, #7–8; Tikun Sofrim, #11 and Zera Avraham, #11. In certain communities, the tnaim document (shtar tenaim) did not impose a penalty for breach of the agreement; see Sheeilat Shalom, 2nd edition, #279. Note, however, that the asmakhta–related issues generated by these penalty clauses are beyond the scope of the present paper. 14 “On guaranteeing the shtar shidukhin” (Hebrew), 3 Shurat Hadin (1995), Ezra Batzri, 56, 58; Zalman Goldberg, 67. This conclusion is predicated on inclusion of a hithaivut clause in the tnaim document. See Sema, HM 245:2; Responsa Hatam Sofer, EH #112 and 135; Responsa Bet Yitzhak, 1:111. On the different formulations of the clause, see 4 PDR 275, 278–9; 11:131, 140–145; 14:337, 339. 15 For an explanation of how a binding obligation is generated by the shtar tnaim, see Sema, HM 243:12. Cf. Nahalat Shiva 9:3. See also, Responsa Zera Emet, YD #236 (p. 110); Shaarei Yosher, gate 5, ch. 2; Warhaftig, n. 9 above,

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for recovering expenses in an action for breach of a nuptial promise.16 Nevertheless, the conventional explanation for the inclusion of this penalty clause is that it is intended to provide the aggrieved party compensation for the embarrassment and emotional anguish (boshet) of a broken engagement, rather than to provide a basis for compensation for expenses incurred in contemplation of marriage.17 Hence, pursuant to the prevailing view, even if ‘tnaim’ were written up at the time of the engagement, this will not be a factor in resolving the issue of recovery of expenses incurred due to breach of an engagement agreement. I Though the laws governing obligations seem to preclude recovery for financial loss, nevertheless, most rabbinical courts, following the approach taken by numerous Later Authorities (aharonim),18 view breach of promise and its damages as hezek (tortious).19 This position is based on the view of Maimonides. The question of whether there is liability for damages when an engagement is broken is a matter of controversy between Maimonides and R. Abraham b. David of Posquieres (Rabad). Maimonides states: My teachers have ruled that if it is the custom of the land that each man [when betrothed] should make a feast for his friends or distribute money to the religious functionaries of the community, and he follows the custom of all people and then she retracts, she must refund his expenses, because she has caused him to spend his money; and whoever causes another to lose money must pay for it.

16 17

18

19

470 n. 24. On imposing an oath to impart validity to an agreement to marry at some future date, see Responsa Rashba 3:213; 4:157; 7:502; Responsa Rivash, #191 and 208; Responsa Zera Emet, YD #94; Responsa Zichron Yehonatan, #4. Responsa Mabit, 2:98. Beit Shmuel, EH 50:14; Shakh, HM 206:24; Responsa Ridbaz, 1:129; Responsa Hagam Shaul #23; Responsa Maharash 4:78; 3 PDR 57, 59–61. Whether recovery for emotional harm in fact requires a binding agreement such as ‘tnaim’ is a matter of debate; see n. 12 above; Shochetman, n. 1 above, 117–21, and Shifman, n. 1 above, 142–44. The notion that the penalty clause covers the outlay for pre-wedding expenses is explicitly rejected in Responsa Beit Yitzhak, EH, #110:4. Otzar Haposkim, EH 50:3, §24–26. In addition to the array of codificatory rulings and responsa cited in Otzar Haposkim, see Responsa Halikhot Yisrael, #25–26. 3 PDR 18, 31–32; 57, 63; 3 SRC [Supreme Rabbinical Court, Jerusalem] 205, 207–208; 6:117, 118.

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This applies only if he has witnesses to testify how much he spent, because in this case the principle, ‘The claimant submits to an oath and collects,’ does not apply.20 ‫הורו רבותי שאם היה מנהג המדינה שיעשה כל אדם סעודה ויאכיל לריעיו או‬ ‫יחלק מעות לשמשין ולחזנין וכיוצא בהן ועשה כדרך שעושין כל העם וחזרה בה‬ ,‫ שהרי גרמה לו לאבד ממון וכל הגורם לאבד ממון חבירו משלם‬,‫משלמת הכל‬ .‫והוא שיהיו לו עדים כמה הוציא שאין זה נשבע ונוטל‬

In a critical annotation, the Rabad states: “My teachers have ruled that if it is the custom of the land . . . ‘The claimant submits an oath and collects’ does not apply” — I do not concur with his teachers regarding this matter. That indirect causation is akin to seeds in the garden that did not grow, regarding which one pays (only) the expenses. The principle of the matter [applicable here] is: [in the case of] monetary loss indirectly caused by the money’s owner, even though someone caused him [to incur the loss], that person is exempt from liability.21 ‫ א“א איני משוה עם רבותיו‬.‫הורו רבותי שאם היה מנהג וכו‘ עד נשבע ונוטל‬ ,‫בזה וזאת הגרמה דומה לזרעוני גנה ולא צמחו שאינו משלם לו )אלא( ההוצאה‬ ‫וכללו של דבר אבוד ממון שבעל הממון עושה אותו אע“פ שגרם לו זה פטור‬ .‫עכ“ל‬

In other words, whereas according to Maimonides, breach of a promise to marriage is actionable, according to the Rabad, damages are not recoverable.22 While a minority of authorities concur with the

20 Code, Laws concerning Original Acquisition and Gifts 6:24. 21 Ibid. 22 This interpretation of the dispute makes two assumptions. First, though the controversy focuses on reimbursement for the outlay for a wedding feast, the stated positions relate to compensation for all engagement and wedding-related expenses. Second, though the controversy centers on a betrothed woman who violates her kidushin, clearly the dispute extends to situations where an engaged man or woman break off the shidukhin. Whether this controversy can be extended to a couple who have had a marriage ceremony (hupa vekidushin), but intercourse (bia) has not taken place, is an interesting question; see Responsa Pnei Yitzhak 6, EH 4. (For the definition of hupa and kidushin, see Schereschewsky, “Marriage,” in M. Elon (ed.), The Principles of Jewish Law (Jerusalem: 1975), 356–58). Moreover, on this logic, third parties, such as parents, who have expended monies for an anticipated wedding, could file a claim. Even a cursory reading of the decisions cited above in n. 19 reveals that this is their implicit and sometimes explicit understand of the controversy;

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Rabad, most decisors, including the Shulhan Arukh, which quotes Maimonides, concur with the view of Maimonides.23 The rationales for imposing tort liability suggested by the authorities include the immediacy and direct nature of the harm,24 the injured party’s reliance on the tortfeasor, as well as the injured party’s unwillingness to accept the risk of loss,25 and the fact that punitive damages generally are imposed for prevalent and non-extraordinary occurrences, such as broken engagements.26 In addition to the consensus among rabbinical courts that liability for broken engagements can be grounded in the rubric of torts (hezek), the laws of contracts can also serve as a basis for recovery. In other words, as we will explain, courts may invoke an umdena (that is, an assessment of intent that can presumed correct) so as to be able to take a reliance-based approach and award damages to the plaintiff in a breach-of-promise suit. A promise to perform a future action, such as a promise to marry, is enforceable if it has induced reliance on the part of the promisee. Reliance transpires when a promisee, presuming that a nuptial promise will be honored, takes action he or she would otherwise not have taken, or refrains from taking action he or she would otherwise would have taken.

23

24

25 26

see too Responsa Tashbetz, 2:166; Responsa Ridbaz, 1:329 and 4:234; Responsa Mahari Tzahalon, #262. That is, on my reading, the plain meaning of the texts indicates that Maimonides and the Shulhan Arukh are advancing a theory of no-fault engagement: pre-wedding expenses are recoverable, regardless of which party is at fault with respect to the reasons for termination of the engagement. Cf. Responsa Yeshuot Yisrael, HM 45. See SA, EH 50:3 and the sources cited above in nn. 18–19. Interestingly, the majority of decisors affirm Maimonides’ position even though some of his rulings seem to be contradictory (Code, Laws concerning Original Acquisition and Gifts 6:24 and Laws concerning Sales 16:1); this is true of the position of the Shulhan Arukh as well (EH 50:3 and HM 232:21). On the numerous attempts to resolve these contradictions, see Otzar Haposkim, EH 50:3, §24:1; Pithei Hoshen, Torts, 3:26, n. 63. Or Sameiah, Laws concerning Acquisition and Gifts 6:24; Bayit Hadash, SA, EH 50 s.v. katav; Shaar Hamishpat 386:1; Kuntres Aharon, Laws of Marriage 50:4 s.v. shem; Responsa Ein Yitzhak EH 68:20; 3 PDR 18, 32; 57, 62. Magid Mishne, Laws concerning Acquisition and Gifts 6:24; 3 PDR 18, 31. Helkat Mehokek, EH 50:10. It has been suggested that Maimonides is propounding a theory of consequential damages in tort, see Irwin Haut, “Causation in Jewish tort law — part II,” 4 National Jewish Law Review (1989) 9, 41, 52.

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Invoking a variety of contexts in which reliance-based liability is operative, such as the laws of sales, labor relations and civil procedure, rabbinical courts in Israel have contended that detrimental reliance by the promisee is grounds for recovery under the laws of contract.27 For example, suppose a plaintiff summons a defendant to appear before a rabbinical court, and the defendant initially agrees to appear, but later changes his mind. Because the defendant changed his mind, he must indemnify the plaintiff for all the expenses incurred. Although there is no formal agreement between them, given the plaintiff’s reliance on the defendant’s promise to appear, any outlay of expenses associated with the submission of the claim is to be reimbursed by the defendant.28 Similarly, the courts have concluded, a nuptial promise that induces detrimental reliance by the promisor is grounds for recovery of expenses. But if so, what, to borrow Roscoe Pound’s term, is the “technique element” that justifies grounds for recovery?29 Clearly, the promise to marry caused the incurring of expenses, which, it transpired, were expended in vain. The promisor who induced the reliance is to be viewed like a loan guarantor (arev), who pays the creditor in the event that the debtor defaults on the loan.30 Alternatively, it can be argued that the question of awarding damages for breach of a nuptial promise is to be viewed through 27 3 PDR 18, 30–31; 3 SRC [Jerusalem] 205, 207. 28 Cf. Netivot Hamishpat, HM 232:10, Responsa Havot Yair, #168, Responsa Beit Yitzhak, EH #110, and Imrei Bina, Laws of Judges, 21, which take this procedural rule to fall under the laws of tort rather than contracts. 29 3 PDR 57, 62; 3 SRC [Jerusalem] 205, 208–209. For a similar line of reasoning, see Responsa Maharash, 4:78 and Responsa Bnei Binyamin, #30, p. 47. 30 See Even Haazel, Laws concerning Acquisition and Gifts 6:24. Relying on the Even Haazel’s interpretation of Maimonides, a rabbinical court argued that the law of suretyship provides a rationale for this position (3 PDR 57, 62). Whether the court was in fact offering a cogent interpretation of the Even Haazel is open to question, however; see Yehiel Kaplan, “Elements of tort in the Jewish law of surety” (Hebrew), 9–10 Shenaton Hamishpat Haivri (1982/1983), 359, 383–84. An exposition of Maimonides’ conception of suretyship and its implications as to whether a reliance-based liability is implicit in his position requires further study; see Lifshitz, n. 8 above, 188– 90, 213–14; Warhaftig, n. 9 above, 430 n. 119. Lifshitz argues that if the promisor is to be viewed as analogous to a guarantor, there must be a document (shtar) with the “hereby now” clause (‘meiakhshav’) indicative of the undertaking of an obligation. On ‘meiakhshav’ as connoting the undertaking of an obligation, see Tur, HM 245; Beit Yosef, EH 51, citing Tashbetz; SA, HM 245:4.

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the prism of the community’s social norms (nohag). Whereas the reliance-based approach views the affianced couple as entering into an agreement in isolation, this model views the agreement against the background of the social code of conduct that governs such agreements: that is, the group’s general conduct, expectations, and acceptance of certain norms. The Tashbetz, endorsing this approach and offering his interpretation of Maimonides’ position, notes that in fifteenth-century North Africa it was customary in various communities that certain expenditures were made in anticipation of an impending marriage. Consequently, if a breach of promise occurred, it was appropriate to reimburse the aggrieved party for these expenses. However, if the aggrieved party incurred additional expenses, beyond the accepted social practice, the promise-breaker was exempt from liability.31 The decisor R. Moses Zacuto (known by the acronym Ramaz) describes a rather different scenario. He relates that in seventeenthcentury Italy, engagements of one to two years, to ascertain the future stability of the relationship, were customary. Engagements were frequently broken, gifts were returned, and each party would withdraw from the relationship with no liability for the other side’s expenditures. Given the existence of this social practice, R. Zacuto affirmed the decision of a rabbinical court in the town of Mantova (Mantua), which declined to award reimbursement of expenses to those aggrieved by a broken nuptial promise.32 In effect, for both Ramaz and the Tashbetz, and according to the aforementioned Israeli rabbinical court, there exists an umdena (Ramaz’ term is “omed hadaat”), that is, a presumption on which the parties are acting, namely, the presumption that customary social practices will govern their relationship. Despite the fact that a promise to marry is an agreement as to a future action and thus by definition a davar shein bo mamash, nevertheless, the parties’ intent (gemirat daat) is, it can be presumed, to follow the social practice.33 Hence, the agreement between them is enforceable. 31 Responsa Tashbetz, 2:166. See also Sefer Hamakne, appendix 50:4; Responsa Halikhot Yisrael, #25. 32 Responsa Ramaz (2002 edition), EH #2. For additional decisors who take this approach, see Responsa Maharashdam, EH #176 and Responsa Hayim Shaal, #10 and #11. 33 Albeck, see n. 12 above, 311. For a critique of Albeck’s approach, see B. Lifshitz, ‘A conceptual approach to the role of conditions in Jewish

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At first glance, one might think that invoking the said presumption (umdena) to resolve the issue of liability for pre-wedding expenses points to a reliance-based theory of contract. The import of the umdena is typically expressed in terms of the ‘reasonableness’ of the expectations of the parties, who expect societal norms be adhered to. Since most members of a particular community abide by these norms, one can reasonably assume that it is more likely than not that any given individual in the community will do so as well. In effect, these expectations result in the promisee’s reliance on the promise in taking action. Hence, invoking the umdena seems to reflect the reliance approach. But there is a legal difference between the two approaches. Halakhically speaking, the umdena perspective seeks to determine the presence or absence of intent to take the promised action, whereas the reliancebased approach sees the intent to take the action as constitutive of the agreement. The reliance-based perspective focuses on the obligatory nature of the agreement, the umdena approach seeks to infer the intentions of the parties from common social practices.34 Jurisprudentially, these are two independent grounds for obligation. II Let us now revisit Schereschewsky’s position regarding recovery of gifts and expenditures due to breach of a nuptial promise. On his opinion, the existence of a contractual relation based on an umdena mandates compensation for wedding expenses and recovery of gifts. Clearly, the sources he cites support his conclusion regarding recovery of gifts.35 In the absence of a contrary expression of intent, gifts made in contemplation of marriage, typified by the engagement ring, but also including gifts between the affianced couple and gifts law’ (Hebrew), 4 Mishpatim (1973), 636. And cf. 8 PDR 47, 52 and 2 PDR 109, 112. It has been suggested that social mores may have the power to transform the subject of the agreement in question, namely, the impending marriage, into something corporeal — davar sheyesh bo mamash, rendering it enforceable; see Warhaftig, n. 9 above, 397. Lifshitz argues that this interpretation is implausible. Furthermore, given Warhaftig’s critique of Albeck’s definition of gemirat daat on the basis of societal consensus (Warhaftig, n. 9 above, 517), his own stance is puzzling. 34 Patrick Atiyah, “Contracts, promises and the law of obligations,” in Essays on Contract (Oxford: 1986), 13. 35 See n. 5 above.

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given to the engaged couple by third parties, may be recovered if marriage does not ensue, regardless of which party is at fault with regard to termination of the engagement. Invoking the logic of umdena, an engagement gift is, by implication, a conditional gift title to which does not become absolute until the marriage.36 The following picturesque metaphor, suggested by an American judge, is equally apt as a characterization of the Jewish legal view that engagement gifts, absent intentions to the contrary, are implicitly conditioned on marriage: A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor — if the anchor of contractual performance sticks in the sands of irresolution and procrastination — the gift must be restored to the donor.37

However, Schereschewsky’s claim that damages for pre-wedding expenses are to be awarded to the breach-of-promise plaintiff on the basis of breach of a contractual relationship ascertained by umdena is not substantiated by the sources he cites. In fact, all the sources in question address the issue of recovery of gifts.38 Nevertheless, as I have shown, examination of various Israeli rabbinical court decisions reveals other grounds for recovery of expenses incurred in preparing for an impending marriage. 36 Note that whereas the Tashbetz and Ramaz invoke a presumed intent (umdena) grounded in the routine practices of the parties’ communities, the presumed intent referred to here is grounded in the parties’ subjective intent. 37 Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A.2d 127, 130 (1957). Conditional gift doctrine posits that a gift given subject to a condition can be recovered when the donee fails to fulfill that condition. Accordingly, this court upheld the rule that an engagement gift made in contemplation of marriage is conditional on subsequent marriage. In arriving at this conclusion, the court drew an analogy between conditional marriage (the consummation of which is dependent upon receiving a prenuptial gift) and conditional gifts. Though, as B. Lifshitz pointed out (in a personal communication), conditional marriage clearly departs from the paradigmatic model of marriage, which is not conditional, some jurisdictions have concurred with the court’s conclusion; see Piccininni v. Hajus, 429 A. 2d 886 (Conn. 1980); Ferraro v. Singh, 495 A.2d 946 (Pa. Super. Ct. 1985); Brown v. Thomas, 379 N.W. 2d 868 (Wis. App. 1985). 38 See n. 5 above.

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III At this juncture, a brief comparison of the Jewish and American legal traditions will be helpful. The common law recognized a right of action, combining elements of both tort and contract, for breach of a promise to marry. In the United States, during the colonial period and in the nineteenth century, courts recognized this cause for action. At the time, marriages, particularly among the wealthy, were often arranged and negotiated by families on the basis of financial and economic considerations. But by the late nineteenth century, the action had become the subject of much criticism. Indeed, by the 1930s, twenty-five states had enacted legislation, colloquially known as “heart-balm” statutes, abolishing the common law action for breach of promise to marry. Other states placed limits on the cause of action.39 This trend has continued to the present. Whereas American law, much like Roman and French law, now deems recognition of such an action to be clearly out of step with societal mores, which value individual autonomy, ‘freedom to marry,’ and the right to change one’s mind without incurring liability for one’s decision,40 additional public policy considerations have been cited for the passage of heart-balm statutes. The courts and the legal literature have raised three main criticisms of ‘breach of a promise to marry’ as a cause of action: (1) it can be used for extortion and blackmail; (2) it is subject to abuse by juries that, having extensive discretion, may award excessive damages for embarrassment and humiliation; (3) damage awards unjustly permit recovery for loss of expected economic and social position. Heart-balm statutes were enacted to prevent these abuses.41 Pursuant to these statutes, in cases of a breach of a nuptial promise, courts have barred recovery of monies expended in preparation for 39 Homer Clark, The Law of Domestic Relations in the United States (St. Paul MN: 1968), 2, 12; N. Feinsinger, “Legislative attack on heart balm,” 33 Mich. L. Rev. 979 (1935); Note, “Heartbalm statutes and deceit actions,” 83 Mich. L. Rev. 1770, 1770–71 (1985). 40 Shifman, n. 1 above, n. 37; C. McCormick, Handbook on the Law of Damages (St. Paul MN: 1935), 405; Standard v. Bolin, 88 Wash. 2d 614, 617–19, 565 P. 2d 94, 96–97 (1977). 41 Brown, “Breach of promise suits,” 77 U. Pa. L. Rev. 474 (1929); H. Wright, “The action for breach of the marriage promise,” 10 Virginia L. Rev. 361 (1924); W. Brockelbank, “The nature of the promise to marry — a study in comparative law,” 41 Ill. L. Rev. 1 (1946).

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weddings.42 One court, for instance, ruled that to the extent that promisors are shielded from liability, a defendant who failed to show up at the altar on his wedding day was protected by a heart-balm statute.43 Though promises to marry are not specifically enforceable, the common-law action for breach of a promise to marry nevertheless still remains available in many American jurisdictions.44 Acknowledging the legislative and judicial divide on these matters, one scholar described the public policy debate over the action of breach of a promise to marry as having “ended in stalemate,” there being no social consensus regarding “a convincing definition of the public interest in courtship.”45 In Jewish law, the debate is framed differently. In various medieval Jewish communities46 and certain segments of contemporary Orthodox Jewry,47 promising to marry is considered almost tantamount to marriage, and thus virtually inviolate. Jacob Katz described the situation in medieval times as follows: 42 Boyd v. Boyd, 39 Cal. Rptr. 400 (Ct. App. 1964); Piccininni v. Hajus, n. 37 above; Thorpe v. Collins, 263 S.E. 2d 115 (Ga. 1980); Ferraro v. Singh, n. 37 above; Aronow v. Silver, 538 A. 2d 851 (N.J. Super. Ct. Ch. Div. 1987); Bruno v. Guerra 549 N.Y.S. 2d 925 (Sup. Ct. 1990); Snider v. Keenan, No. 92-J–39, 1994 Ohio App. LEXIS 535, at 1–3 (Ohio Ct. App. Feb. 11, 1994). Cf. Renshaw v. Renshaw, No. 0538427, 1997 Conn. Super. LEXIS 724 (Super. Ct. March 21, 1997). Though the law is not settled, where there has been a misrepresentation of marital intent, recovery for fraud and deceit is not precluded by the heart-balm statutes. See Langley v. Schumacker, 46 Cal. 2d 601, 603, 297 P. 2d 977, 979 (1956). Furthermore, some courts have argued that deceit for fraudulent purposes is recognized as a distinct cause of action, outside the purview of the heart-balm statutes; see Morris v. Macnab, 25 N.J. 271, 280–81, 135 A.2d 657, 662 (1957); Boyd v. Boyd, 383–84 (Pierce, J. dissenting); Tuck v. Tuck, 14 N.Y. 2d 341, 346, 200 N.E. 2d 554, 557, 251 N.Y.S. 2d 653, 657 (1964); Piccininni v. Hajus, n. 37 above, 888–89; Jackson v. Brown, 904 P. 2d 685, 687 (Utah 1995). 43 Waddel v. Briggs, 381 A. 2d 1132 (Me. 1978). Cf. Bradley v. Somers, 322 S.E. 2d 665 (S.C. 1984). 44 Leonard Karp and Cheryl Karp, Domestic Torts: Family Violence, Conflict and Sexual Abuse (Colorado Springs CO: 1989 and Supp. 1995). 45 M. Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill NC: 1985), 63. Shifman and others disagree (see n. 40 above), maintaining that there is a consensus (excluding Standard v. Bolin) in favor of abolishing the action of breach of a promise to marry. 46 Otzar Haposkim, EH 50:3, §24–26. 47 Shifman, n. 1 above, 128.

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The signing of the betrothal document [shtar tnaim] did not create matrimonial ties. . . . But, in practice, the document contained guarantees of sufficient substance to warrant regarding the future of the couple as entirely settled upon its being signed, no less than upon their entering into actual betrothal. In the first place, each party undertook to pay a heavy forfeit for violating the agreement — generally half the amount of the dowry. Second, and more important, the undertaking involved the acceptance of a ban regarded as a “ban of the kehillot,” i.e., as a decree of the Early Sages, on anyone who violated the betrothal terms and injured the good name of the other family.48

The seriousness of the bond forged by the betrothal document was supported by public opinion, which frowned upon its cancellation. Those who violated such an agreement without first receiving a dispensation from a competent court suffered serious consequences. Not only did they have to pay the forfeit, but they were held in contempt, lessening their prospects for entering into a good match subsequently. The writing and signing of the betrothal document, as well as the institution of the ‘ban of the communities,’ extended well beyond the medieval period and in many circles continues to be observed, precisely as described by Katz, up to the present.49 On the other hand, in certain Babylonian communities during the Geonic period, and certain fifteenth-century North Africa and seventeenth-century Italian Jewish enclaves, broken engagements were, as we saw, a fact of life acknowledged by the decisors of the day.50 For communities that must deal with the issue of broken engagements, the legal system has devised solutions in accordance with its inner logic. While there is usually a period during which withdrawing from an engagement does not do too much harm, the harm will be 48 Jacob Katz, Tradition and Crisis (NY: 1961), 137–38. See also A. Grossman, The Early Sages of Ashkenaz (Hebrew), (Jerusalem: 1981), 137; idem, Pious and Rebellious. Jewish Women in Medieval Europe (Jerusalem: 2003), 88–97. 49 Darkhei Moshe, EH 3; Beit Shmuel, EH 51:10; Responsa Noda Biyehuda, 1st edition, YD 68; Responsa Maharsham 4:154. On communal enactments, see I. Schepansky, The Takanot of Israel: Communal Ordinances (Hebrew), (NY: 1993), 544–47. On explanations for the efficacy of communal legislation regarding engagement agreements that fail to meet the criteria for legally enforceable transactions, see Y. Kaplan, “Communal autonomy vis-à-vis the limitations of Jewish private law” (Hebrew), 25 Mishpatim (1995), 377. 50 Otzar Hageonim, Baba Kama, #224. Whether two thirds or half of the wedding expenses are to be reimbursed is a matter of dispute, see Otzar Haposkim, EH 50:3, §27, §24:2.

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more extensive the longer one waits to break the engagement. As the wedding date draws near, expenditures made in anticipation of the marriage, on such items as wedding invitations, bridal gowns, hall rentals, caterers, photographers, florists and musicians, increase. It thus behooves someone having second thoughts about an impending marriage to discuss these doubts with his prospective spouse as soon as possible. As we saw, the signing of a shtar tnaim does not address the issue of compensation for losses incurred due to procrastination in terminating an engagement. Legal redress in this case must be based on either tort law or the law of contracts. Imposing liability serves the social goals of preventing procrastination and promoting responsibility, honesty, and forthrightness. Knowledge that one may be liable for losses is an incentive to take the promise to marry seriously, in accordance with the dictum, “The remnant of Israel shall not do iniquity, nor speak lies.”51,52

51 Zephaniah 3:13, bPesahim 91a. 52 I am grateful to Prof. Berachyahu Lifshitz for his helpful comments on an earlier version of this essay.

PART TWO

The Jewish Law Annual, Vol. XVII

JEWISH LAW IN THE STATE OF ISRAEL DANIEL B. SINCLAIR*

1 2

The Constitutional Validity of the Sabbath Observance Law Terminally Ill Patient Law, 5766–2005

1

The Constitutional Validity of the Sabbath Observance Law

The appellants in Design 22 Deluxe Furniture v. Rosenzweig and Others1 operated a chain of furniture outlets that were open seven days a week. Under sections 7 and 9 of the Hours of Work and Days of Rest Law, 5711–1951, it is an offence to employ Jewish workers on the Sabbath without a special license. After a visit by inspectors, the appellants were fined 15,000 NIS for having broken the law. The appellants then requested a license to run their establishment on the Sabbath, but the respondents denied the request on the grounds that the appellants’ furniture business did not fulfill the requirements for such a license. Under section 12 of the law, licenses may be granted if the uninterrupted running of the business is necessary for maintaining national security, or for preserving the safety of persons or property, or in order to avoid a serious threat to the economy, or in order to prevent widespread shortages of vital products. The Minister of Labor may also exercise discretion and grant a license in a case of “vital necessity.” The respondents’ refusal to grant a license to the appellants to operate their furniture stores on the Sabbath was upheld by the Haifa District Labor Court, a decision that generated the present appeal. The appellants’ first argument attacked the constitutionality of the Hours of Work and Days of Rest Law. According to the appellants, this law is unconstitutional because it violates the principle of freedom

* Professor of Jewish and Comparative Biomedical Law, Law School, College of Management, Rishon Lezion. 1 H.C. 5026/04 (unpublished).

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of occupation enshrined in the Basic Law: Freedom of Occupation, 5754–1994. They also argued that it failed the test for a legitimate violation of the Freedom of Occupation law as set out in section 4 of the law. Under this section, even if a law violates freedom of occupation, it will, nevertheless, retain its constitutional validity, provided: it is in keeping with the values of Judaism and democracy, the violation in question is necessary for the achievement of a worthy social purpose, and the violation is limited to what is necessary to achieve that purpose.2 In fleshing out their argument, the appellants noted that the serious economic damage they would suffer as a result of Sabbath closure, including the need to shut down some of their stores, had not been taken into account. They also pointed out that as none of the outlets were located in heavily populated areas, keeping them open did not spoil the repose of committed Sabbath observers. Finally, they maintained that their employees were not deprived of the right to a day of rest, but could choose the day of the week they preferred. Those who wished to take the Sabbath as their day of rest could certainly do so. The appellants also appealed the respondents’ decision not to grant them a license to run their business using Jewish employees on the Sabbath. In their view, the respondents’ decision was counter to the basic principles of administrative law, which require governmental decisions to be both reasonable and principled. Since neither the economic hardship engendered by the respondents’ decision not to grant them a license, nor the fact that their employees could take as their day of rest any day of the week they wished, had been taken into account, the decision was, they claimed, both unreasonable and arbitrary. The respondents argued that the Hours of Work and Days of Rest Law fulfilled two important goals. The first, they maintained, is eminently democratic: the provision, by law, of a day of rest for all workers. Striking down the Hours of Work and Days of Rest Law and removing the legal basis for a rest day would encourage employers to pressure their workers to work every day. Replacing the existing legal arrangement with a variable rest day chosen by the worker, as the appellants sought

2 This type of constitutionality test is one of the main elements in Israel’s recent constitutional revolution, see Basic Law: Human Dignity and Freedom, 5752–1992, section 8; United Mizrahi Bank v. Migdal Cooperative Village, C.A. 6821/93, P.D. 49 (4) 221; A. Barak, “The constitutional revolution” (Hebrew), 1 Mishpat Ve-asakim (2004), 3.

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to do, would destroy the special quality of a legally binding national day of rest. Such a day of rest serves the purpose of allowing people to enjoy days off with family and friends, and makes possible a whole host of other activities that depend on a common day of rest for all members of society. A general atmosphere of restfulness is an integral aspect of a day of rest, and without it, one cannot meaningfully speak of a day of rest at all. The respondents argued that in this sense, the Hours of Work and Days of Rest Law fulfills a worthy social purpose, and the violation of freedom of occupation that it entails is limited solely to what is necessary to achieve that purpose. The second goal is related to the Jewish character of Israeli society. If Israeli law is to select a day of rest, it makes sense that, for Jewish workers, the Sabbath is the day chosen. Selecting the Sabbath as the national day of rest is entirely in keeping with the Jewish element in the “Jewish and democratic” rubric upon which the Israeli legal system is founded. Given these two goals, the respondents argued, the Hours of Work and Days of Rest Law is constitutionally valid. The respondents’ final argument was that in light of the provisions of the Hours of Work and Days of Rest Law, their decision to refuse the appellants a license to run their business on the Sabbath was both reasonable and principled. Barak J. opened his judgment by noting that the right to freedom of occupation in Israeli law is derived from the common law, and prior to the Basic Law: Freedom of Occupation, could be restricted by clear, explicit and unambiguous legislation.3 In wake of the Basic Law, however, this right had become paramount in Israeli law, and the Knesset’s power to restrict it was curtailed. It is now no longer sufficient to demonstrate that a law infringing on freedom of occupation is expressed in a clear, explicit and unambiguous fashion. Rather, it is necessary to demonstrate that such a law, even if legislated prior to the Basic Law,4 passes

3 Bejerano v. Minister of Police, H.C. 1/49, P.D. 2 80; Mitrani v. Minister of Transport, H.C. 337/81, P.D. 37 (3) 337; Y. Klinghofer, “Freedom of occupation and the registration of businesses” (Hebrew), 3 Iyunei Mishpat (1973) 582; Iglo v. Minister of Trade and Commerce, H.C. 1452/93, P.D. 47 (5) 610. 4 Association for Civil Rights v. Minister of the Interior, H.C. 6652/96, P.D. 52 (3) 117.

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the constitutionality test laid down in section 4 of that law. If it does not, it will be struck down.5 As regards the first element in the constitutionality test, i.e., compliance with the values of Judaism and democracy, Barak J. pointed out that the Jewish nature of the State of Israel is an inherent fact: “The Jewish nature of the State of Israel lies at the very foundation of the existence of Israeli society . . . the Jewish people established the Jewish state. This is how it began, and it is on this basis that the State continues to exist.”6 An important aspect of the Jewish character of the State, he noted, is the Jewish religion and the legal heritage of the Jewish people.7 The democratic nature of the State of Israel, Barak stated, is another fundamental feature of its existence, and in broad terms, comprises “the right of a people to a democratically elected government, the enforcement of the rule of law, the separation of powers in the running of the government, the existence of an independent judiciary, and the realization of a cluster of human rights including dignity and freedom.”8 In interpreting the laws of the Knesset with a view to establishing their constitutional validity, the judge is required to synthesize Judaism and democracy by identifying the common factor between these two values, and the elements that unite them rather than those which divide them.9 Judaism, democracy and the interface between them all find appropriate expression in the Hours of Work and Days of Rest Law. From a Jewish perspective, observance of the Sabbath is a cardinal commandment,10 and has long been recognized as a hallmark of both the Jewish faith, and Jewish culture. The national existence of the Jewish people cannot be imagined without the institution of the Sabbath.11 5 Stenger v. Chairman of the Knesset, H.C. 2334/02, P.D. 58 (1) 786; Egged Cooperative v. Mashiach, C.A. 239/92, P.D. 48 (2) 66; Menachem v. Minister of Transportation, H.C. 4769/95, P.D. 56 (3) 235; Association of Israeli Investors v. Minister of Finance, H.C. 1715/97, P.D. 51 (40) 367; Tisha Kadurim Restaurant v. Haifa Municipality, P.M. 4436/02, P.D. 58 (3) 782. 6 Isaacson v. Registrar of Political Parties, P.M. 2316/96, P.D. 50 (2) 529; Central Election Committee for the 16th Knesset v. Tibi, A. 11280/02, P.D. 57 (4) 1. 7 Central Election Committee v. Tibi, ibid., 22. 8 Ibid., 23. 9 Shefer v. State of Israel, C.A. 506/88, P.D. 48 (1) 87. 10 See Exodus 20:8–11, Deuteronomy 5:11–15. 11 Horev v. Minister of Transportation, H.C. 5016/96; P.D. 51 (4) 1; Handyman v. State of Israel, P.M. 10687/02, P.D. 57 (3) 1.

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From a democratic perspective, the worker’s right to a day of rest is a cardinal democratic right. Part of this right is the opportunity to rest together with family members, and a national rest day is a vital element in achieving this type of family solidarity. There is nothing undemocratic about choosing a national rest day that also happens to be a religious day of rest. The choice of a religious Sabbath as the national day of rest is a feature of a number of democracies, including the United Kingdom,12 Canada,13 and the United States.14 In order to deflect a possible objection, on democratic grounds, to the choice of the Sabbath as the national rest day in a multi-religious country such as Israel, section 7 of the Hours of Work and Days of Rest Law provides that the Sabbath is the official rest day for Jews, and offers an option of the Sabbath, Sunday or Friday for non-Jews. The second element in the constitutionality test actually consists of two separate criteria: worthiness of purpose and proportionality. A law is worthy in this context if it “serves an important social purpose in the context of the realization of human rights. . . . Laws aimed at the achievement of social benefits are also included in this category.”15 The purpose of the Hours of Work and Days of Rest Law is certainly worthy: it seeks to provide workers with a rest period, which is in itself an important human right, and to improve the health and welfare of the working population. It also provides a framework for family life and leisure activities. According to the appellants, the unworthy legislative purpose is not the institution of a rest day itself, but rather the fixed rest day. Barak J. rejected this argument. In his view, there are a number of important social and human rights values that can only be realized by a standard day of rest for the entire population. This point was made by Dickson J. in a Canadian case on the constitutionality of Canada’s Sunday closing laws: I regard as self-evident the desirability of enabling parents to have regular days off from work in common with their child’s day off from school, and with a day off enjoyed by most other family and community members. . . . A family visit to an uncle or a grandmother, the attendance of a parent at a child’s sports tournament, a picnic, a swim, or a hike in a park on a

12 13 14 15

Sunday Trading Act, 1994. P. Hogg, Constitutional Law of Canada (Scarborough ON: 1997), 491. J. Choper, Securing Religious Liberty (Chicago: 1995), 136. Israeli Theatres v. Netanya Municipality, H.C. 5073/91, P.D. 47 (3) 192.

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Barak J. then dealt with the argument that fixing the Sabbath as a day of rest for Jewish workers is a form of religious coercion with respect to Jews who do wish to work on that day. Once it is accepted, as it is in many democracies, that a fixed national rest day is a prime social value that merits being implemented by the law, the fact that the day chosen for fulfilling that purpose is also a religious rest day is irrelevant. This point was also made by Dickson J. in the aforementioned Canadian case: Religious freedom is . . . not necessarily impaired by legislation which requires conduct consistent with the religious beliefs of another person. One is not being compelled to engage in religious practices merely because a statutory obligation coincides with the dictates of a particular religion. . . . Legislation with a secular inspiration does not abridge the freedom from conformity to religious dogma merely because statutory provisions coincide with the tenets of a religion.17

Not only does the religious origin of the Sabbath as a rest day not conflict with any democratic principle, it also happens to be in line with the nature of Israel as a Jewish and democratic state. The first criterion of the constitutionality test is, therefore, satisfied. The second criterion is proportionality, that is, the means used by the law to achieve its worthy purpose must be in proportion to the value of the infringement of freedom of occupation that they entail. If the infringement is too great, then even if the purpose of the law is a worthy one, it will still be struck down.18 This criterion is also fulfilled

16 R. v. Edwards Books and Art [1986] 2 S.C.R. 713, 770. 17 Ibid., 761. 18 United Mizrahi Bank v. Migdal Cooperative Village, n. 2 above, 436; Menachem v. Minister of Transportation, n. 5 above, 279; Association of Israeli Investors v. Minister of Finance, n. 5 above, 385; Horev v. Minister of Transportation, n. 11 above, 53.

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by the Hours of Work and Days of Rest Law. It has already been observed that a floating rest day would not fulfill the object of the law. The range of rest days available to members of other faiths adequately compensates them for the choice of the Jewish Sabbath as the rest day for Jewish citizens and residents of the State. Emergency services and other essential services are excluded from the ambit of the law, and there is provision for the granting of licenses to any concern that meets the specified criteria. Finally, it should be noted that municipal authorities have a certain amount of discretion with regard to the types of municipal services that may be provided on the Sabbath. All these factors serve to minimize the violation of the right to freedom of occupation arising from the Hours of Work and Days of Rest Law, and restrict it to the important social purposes the law was designed to fulfill. Hence, the law also measures up to the proportionality criterion laid down in the second element of the constitutionality clause. Barak J. dismissed the appellants’ final argument regarding the rejection of their application for a license permitting them to keep their business open on the Sabbath on the grounds that no evidence whatsoever had been offered to suggest that their furniture business fell within the categories of necessary and vital concerns specified in the law. The appeal was rejected. Naor J. concurred with Barak J. in rejecting the appeal, and added that the variable type of rest day argued for by the appellants may very well violate freedom of religion in the sense that employers favoring rest days other than the Sabbath might discriminate against observant Jewish workers who would insist on taking their rest day on the Sabbath and on no other day. Procaccia J. also concurred with Barak J. in rejecting the appeal, but emphasized that section 12 of the Hours of Work and Days of Rest Law empowers the Minister of Labor to grant a license to “any concern, the running of which on the Sabbath is necessary, in his opinion, for the welfare of the public or of any section of it.” To strike the proper balance between the social welfare and the religious/cultural elements of the Sabbath as a national rest day, it is necessary to bear in mind the need to keep open enterprises that enhance the quality of that rest day for the secular as well as the religious Jewish population of the State. Museums, cinemas, and all cultural institutions and activities fall into this category, and ought to be open and functioning on the Sabbath.

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The same applies to the public transportation necessary to enable the secular population to enjoy these facilities. Naturally, all this should be done without offending the sensibilities of the observant Jewish population.19 In the present case, however, the sole reason for requesting a license was fear of economic loss to the appellant’s business. This was certainly not a reason for granting a license under the law. 2

Terminally Ill Patient Law, 5766–2005

This law, which came into effect December 6, 2005, is based on the Draft Law: The Terminally Ill Patient, 5762–2002, which was submitted to the Knesset in January 2002.20 This survey will discuss the law’s: definition of terminal illness; underlying philosophy, and translation of this philosophy into legal norms; solution to the problem of permitting warranted withdrawal of life-support without falling foul of the prohibition against active euthanasia; approach to the administration of life-shortening analgesics; provisions regarding ascertainment of a patient’s wishes; and provisions regarding the establishment of committees to address, at both the local and the national level, disputes pertaining to treatment of the terminally ill. The halakhic background of some of the law’s provisions will also be noted. The law covers only the terminal patient, that is, someone suffering from a terminal condition, whose life expectancy, even with the most intensive medical treatment, does not exceed six months (sec. 8 (1)). It contains special provisions for the treatment of an end-stage patient, that is, someone suffering from multiple systems collapse who will not survive for two weeks even if he receives the most sophisticated treatment available to a patient in this condition (sec. 8 (2), 17–18). The law also deals with the treatment of terminally ill minors and wards of the court (sec. 24–29). The underlying philosophy of the law is that a balance must be struck between the competing values of the sanctity of human life and personal autonomy. The ‘sanctity of human life’ principle in Israeli law

19 Miron v. Minister of Labor, H.C. 289/69, P.D. 24, 337; Eshkar v. Minister of Labor, H.C. 71/78, P.D. 36 (3) 141. 20 See D. Sinclair, “Jewish law in the State of Israel,” 15 Jewish Law Annual (2004), 229–36.

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is based on the value of life in Jewish law21; the value of autonomy is derived from the general principles of democracy. Balancing Jewish law and democracy in the legal context is not only a politically wise undertaking, but has become a fact of Israeli legal life ever since the Israeli legislator declared that the values upon which the State of Israel is based are those of “Judaism and democracy” (sec. 1).22 Among the provisions in the law aimed at enshrining the sanctity of human life is the presumption that every person, including the terminally ill patient, desires to live. The law provides that this presumption may only be rebutted by evidence that proves beyond all reasonable doubt that the patient does not wish to continue living (sec. 4). Another provision aimed at establishing the sanctity of human life principle is the section that prohibits active euthanasia. According to this section, “no direct act aimed at causing death is permitted, even if it constitutes a medical procedure.” This prohibition also applies to “an act, the almost invariable result of which is death. It is irrelevant that the motive is mercy, and that it is carried out at the request of the terminally ill patient, or of another person” (sec. 19). In addition to specifically prohibiting active euthanasia, the law also provides that “no act, even of a medical nature, is permitted if the intention is to aid the terminally ill patient to commit suicide. It is irrelevant that the motive is mercy, and that it is carried out at the request of the terminally ill patient, or of another person” (sec. 20). The value of autonomy is recognized in the sections of the law that outline the conditions under which the patient’s desire not to continue living is taken into account, notwithstanding the violation of the sanctity of human life principle entailed by acting upon that desire 21 On the primacy of life in Jewish law, see D. Sinclair, Jewish Biomedical Law: Legal and Extra-Legal Dimensions (Oxford: 2003), 159–63. The ‘sanctity of life’ rubric is, in my view, somewhat inappropriate in the context of Israeli law, the stated goal of which is to create a synthesis between Judaism and democracy. The phrase itself originates in Christian theology, and expresses the idea that life is by definition sacred; see E. Keyserlingk, Sanctity of Life or Quality of Life (Ottawa: 1979), 19–20. It is doubtful whether Jewish theology subscribes to such a position; rather, Judaism teaches that life is a weighty value, a value that may, however, under certain rare and unusual circumstances, be displaced by other values. The phrase has, however, been used in Israeli legal materials for the past fifty years or so (see e.g., Zim v. Maziar, C.A. 461/62, P.D. 17, 1319), and is by now part of the accepted legal discourse in this area. 22 Basic Law: Human Dignity and Freedom Act, 5752–1992, sec. 8.

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(sec. 5, 15–18). The first example is the provision regarding a competent patient who clearly expresses a wish not to have his life prolonged. The law states that the patient’s wishes are to be respected, and allows all forms of life-support to be withheld (sec. 5, 15–18). At the same time, however, the law provides that every reasonable effort should be made to convince the patient to receive oxygen, nutrition and hydration. It also recommends that the patient be persuaded to accept routine therapy for the treatment of secondary or background conditions, and palliative care (sec. 15 (2)). Although, at the end of the day, the paramount value is clearly that of autonomy, and in no circumstances may life-support be forced on a competent patient, the recommendation that the patient be persuaded to accept basic lifesupport on a voluntary basis is a nod in the direction of the value of life, and an example of the legislator’s concern with preserving a balance between the two values. Another example of this delicate balancing of the values of autonomy and the sanctity of human life is the provision regarding the withholding of life-prolonging treatment from an incompetent terminally ill patient experiencing significant suffering. If such a patient has expressed the wish not to have his life extended, in accordance with the law’s provisions, that is, either by means of an advance directive or by a health proxy (sec. 16 (5)), then it is permitted to withhold all tests, surgery, resuscitation procedures, artificial respiration, chemotherapy, radiation therapy and dialysis aimed at treating his primary condition. Routine treatment of both secondary diseases unconnected to the terminal condition, and background medical conditions, and provision of palliative care, nutrition and hydration (in their natural and artificial forms) may not, however, be withheld even if the patient has previously expressed opposition to receiving such treatment (sec. 16). In this context, the balance between autonomy and the sanctity of life is more complex. In principle, autonomy is the dominant value, and the wishes of the terminally ill patient, expressed in the form of an advance directive or by his health proxy prior to his becoming incompetent, are to be respected in relation to the treatment of his primary condition. However, due to the fact that the patient is not competent and his wishes are either not current, or are being expressed by a proxy on his behalf, the moral justification for withholding lifesupport is weaker here than in the case of a competent patient who refuses treatment. Consequently, permission to withhold is limited to the terminal disease itself, and does not extend to the other therapies

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mentioned above. In other words, the initial shift in balance in favor of autonomy is reversed, to a certain extent, in the form of a correction in favor of the sanctity of life. The law further refines its approach to the incompetent terminally ill patient by providing that the distinction between withholding treatment of the terminal condition and withholding other medical therapies is not made in the case of an end-stage patient, viz., one who has suffered multiple systems failure, and will not survive for more than two weeks even with the most intensive medical care. If such a patient’s advance directive or health proxy requires the withholding of treatment for secondary or background diseases, then treatment will be withheld (sec. 17). In this case, the patient’s very short life expectancy makes up for his lack of competence and the ramifications thereof for acting on the provisions of an advance directive or the opinion of a health proxy. The only exception to this rule is the administration of fluids, which must be maintained unless the physician in charge decides that the administration of such fluids will cause the patient suffering or harm (sec. 17). “Significant suffering,” the type of suffering that invokes this provision of the law, is defined in section 3 as “pain or suffering which an average person would make an effort to avoid even if doing so would constitute a significant blow to the quality of his life or his life expectancy.” The theory underlying these sections of the law can be summed up as follows. There is a general principle mandating respect for the sanctity of human life, from which proceeds an obligation to prolong the life of the terminally ill patient as long as possible. There are, however, certain well-defined circumstances under which other values, such as considering the patient’s wishes and the extent of his suffering, take precedence over the value of prolonging human life. Autonomy is also an important value, but like the sanctity of life, it is not absolute in nature. Therefore, although in general the patient’s clear wishes not to have his life prolonged should be respected, they will be neither respected nor acted upon if they constitute too grave a violation of the sanctity of life principle. The attempt to strike the right balance between sanctity of life, on the one hand, and autonomy, on the other, is a pervasive feature of the new law. As noted above, the law forbids active euthanasia. It permits the withholding of life-prolonging treatment in the circumstances outlined above, but makes no provision for the withdrawal of life-support. It may, therefore, be inferred that the legislator did not want to permit

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withdrawal of life-support, on the grounds that it constitutes active euthanasia. Nevertheless, the law does distinguish between “continuous treatment” and “periodic treatment.” According to the law, continuous treatment is defined as treatment that by its very nature is continuous, being provided without a break. In practice, this category is almost entirely confined to artificial respiration. Continuous treatment may never be withdrawn, since doing so is a direct act leading to death. Periodic treatment, on the other hand, may effectively be withdrawn, since by definition, each dose is independent, and termination can be — and in fact is — regarded as the withholding of the next treatment cycle from the patient. Indeed, from a purely legal perspective, it is never regarded as an act of withdrawing treatment. The majority of treatments provided to terminally ill patients, including chemotherapy, radiation therapy, dialysis and similar treatments, are periodic (sec. 21). The law thus harnesses the distinction between continuous and periodic treatment to provide a solution to the thorny issue of terminating — for all intents and purposes — lifeprolonging treatment without infringing the prohibition against active euthanasia.23 It is noteworthy that in section 3, one definition of ‘periodic treatment’ is a treatment controlled by a timing device that terminates it automatically. This definition is grounded in the halakhic notion that

23 Withdrawal of life-support is undoubtedly an act within the context of the law of homicide, and yet, courts in common law jurisdictions insist that there is no distinction at law between the withholding and the withdrawal of life support in a medical context; see M. Otlowski, Voluntary Euthanasia and the Common Law (Oxford: 1997), 152–69. A solution along the lines adopted in the Israeli law under discussion was put forward by the Supreme Court of California in Barber v. Superior Court, 195 Cal. Rprt. 484 (1983): “Even though these support devices are, to a degree, self-propelled, each . . . drop of fluid introduced into the patient’s body by intravenous feeding devices is comparable to a manually administered injection or item of medication. Hence, ‘disconnecting’ the mechanical device is comparable to withholding the manually administered injection or medication.” A similar approach was adopted by Lord Goff in the English case of Airedale NHS Trust v. Bland [1993] 1 All ER 821, 867–68: “the discontinuation of lifesupport is . . . no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might prevent his patient from dying as a result of a pre-existing condition.” Whether or not either of these answers really solves the problem is

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the use of a timing device transforms what would otherwise be a direct action into an indirect action.24 The approach of the new law to both the balance between the values of life and autonomy, and the withholding of life-support, is in accordance with halakhic principles. According to Jewish law, life is a paramount but not an absolute value.25 A life expectancy of less than a year is regarded as ‘temporary’ rather than ‘permanent,’ and a person’s wishes in relation to this temporary life carry much greater halakhic weight than they do in relation to permanent life.26 R. Moses Feinstein, in particular, attaches considerable significance to the wishes of one who has less than a year to live, and rules that in such a case, a patient’s refusal to undergo life-prolonging treatment because he does not want to continue suffering must be respected.27 The vast majority of authorities agree that there is no obligation to provide a terminal patient with medical treatment when the only result will be the short-term prolongation of suffering.28 The halakhic foundation of this view is the dispensation to remove an “impediment to death.”29 In the early halakhic literature, the phrase referred to such impediments as the

24 25 26 27

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29

an open question. In the same case, Lord Mustill expressed reservations about adopting this type of semantic approach to the problems besetting the treatment of the terminally ill: “The acute uneasiness which I feel at adopting this way through the legal and ethical maze is, I believe, due in an important part to the sensation that however much the terminologies may differ, the ethical status of the two courses of action [withholding and withdrawing] is, for all relevant purposes, indistinguishable. By dismissing this appeal, I fear that your Lordships’ House may only emphasize distortions of a legal structure which is already both morally and legally misshapen” (ibid., 885). Whether or not the Israeli law will be more successful remains to be seen. Responsa Tzitz Eliezer, 13, #89. See n. 2 above. Responsa Mishpat Kohen, #144:3. Responsa Igrot Moshe, HM 2, #75:1–2. For a discussion of R. Feinstein’s position on the role of the patient’s wishes in halakhic decisions on withholding life support, and the development of a concept of limited patient autonomy based on his approach, see Sinclair, n. 2 above, 169–75. See also Responsa Minhat Shlomo, #91:2. Nishmat Avraham, 4, YD #339:2, #287:3; Responsa Shevet Halevi 6, #179; 8, #86; A. Steinberg, “Halakhic guidelines for emergency room medical personnel” (Hebrew), Assia 61/62 (1998), 18–19. See Sinclair, n. 2 above, 182.

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sound of woodchoppers, grains of salt, and feather pillows.30 In contemporary times, however, it refers to medical procedures, and the withdrawal of life-support is the removing of such an impediment.31 The measures in the new law are designed to reflect the halakha’s endorsement of withholding life-prolonging treatment as well as its prohibition against directly precipitating death. The law also deals with the problem of the administration of lifeshortening analgesics. Under section 23, health care providers have an obligation to provide the terminally ill patient with palliative care, notwithstanding the fact that the analgesics used to fight pain may shorten the patient’s life. The law also imposes an obligation to offer psychological counseling as necessary, and to provide the patient with the support of social services in accordance with Ministry of Health practices and policies. This section also imposes on the treating physician an obligation to concern himself with the welfare of the hospitalized terminally ill patient’s family. The authorization to administer life-shortening analgesics is in accordance with the halakha, which permits the use of such painkillers if the sole intention of those providing them is to prevent pain, the doctor administering them has expertise in their administration, and the patient is not in such a dire state that one injection of morphine would bring about his demise. Jewish law also permits the administration of analgesics to a patient on artificial respiration.32 A major issue addressed by the law is ascertainment of a terminal patient’s wishes with regard to medical treatment. In the case of a competent patient, a clear expression of his wishes is all that is necessary for treatment to be withheld. The situation in the case of an incompetent patient over the age of 17 is more complex. Three sources for ascertaining the wishes of this type of patient are specified: advance directive, decision of a health proxy, or decision by a local institutional or a national committee (sec. 16(5)). In the absence of any guidance from these three sources, the terminal patient’s wishes are to be determined by the treating physician in accordance with the declaration of someone close to the patient. The definition section of the law defines “someone close to the terminal patient” as “a close family member, or 30 Sefer Hasidim §234, §722; Rema, YD 339; Sinclair, ibid., 184–86. 31 Sinclair, ibid., 188–99. 32 Responsa Tzitz Eliezer 13, #87; Responsa Igrot Moshe, HM 2, #73:1; Nishmat Avraham 4, YD #339:4; Sinclair, n. 2 above, 201.

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someone emotionally close to the terminal patient who is devoted to him. This person knows the terminal patient well, as a result of continuous and lengthy contact with him in the period prior to his hospitalization, or during the course of that hospitalization.” If no such declaration is available, the treating physician may rely on the view of the patient’s guardian, provided that he or she is personally close to the patient, and not merely their legal representative. The law contains appendices with detailed instructions for drawing up advance directives and powers of attorney for the appointment of a health proxy. The law also requires establishment of a national database containing a list of advance directives and powers of attorney for health proxies (sec. 44). Once every five years, the director of the database will be required to receive confirmation of the directives and of the powers of attorney from their makers. Changes and cancellations must also be registered every five years. The database will be computerized so that it can be accessed by medical staff treating the terminally ill patient, and all the relevant information regarding advance directives or health proxies will become part of the terminal patient’s medical file (sec. 9 (2)). Finally, the new law establishes committees to deal with problems pertaining to treatment of the terminally ill patient. Section 45 provides for the establishment of local institutional committees to resolve cases that have no clear answer in the law, or where a dispute arises with regard to the treatment of the terminally ill patient. These committees differ from the ethics committees established under the Patient’s Rights Law, 5756–1996 in their composition, jurisdiction, purposes and procedures. Section 50 provides for the establishment of a national committee to serve as an appellate body, and a tribunal for special issues. The idea behind these committees is to avoid court actions related to treatment of the terminally ill patient. Such cases are best addressed not by a court of law but by a multi-disciplinary committee consisting of professionals in the fields of medicine, nursing, social work, psychology, law, ethics, and religion.

PART THREE

The Jewish Law Annual, Vol. XVII

Aviad Hacohen, The Tears of the Oppressed, An Examination of the Agunah Problem: Background and Halachic Sources. Ktav, 2004, 107 pp. + Hebrew appendix 157 pp. ISBN 0–881–25867–9

1

Bernard S. Jackson*

The problem of the wife who is ‘chained’ (aguna) because, though a rabbinical court maintains that she is entitled to a bill of divorce (get), her husband refuses to grant it, has elicited two types of halakhic responses: those that are limited in their application and effectiveness, and those that seek a global solution. In recent centuries, some decisors have accepted that a marriage may be declared void if entered into by the wife in ignorance of a significant ‘defect’ in the husband that existed at the time of the marriage (kidushei taut); classic instances involve impotence and insanity. So understood, few ‘chained women’ (agunot) are able to employ this escape route. However, an attempt has been made in the last decade to expand this remedy into a global solution. The argument runs as follows: any man who refuses his wife a get in these circumstances (viz., she wants a divorce and the court holds that she is entitled to a divorce) must be a sadist; sadism is an inherent condition, so the husband must have suffered from it at the time of the marriage (even if he was unaware of it); the wife entered into the marriage in ignorance of this condition and would not have married had she been aware of it; she is therefore entitled to have the marriage declared void. One rabbinical court whose public statements suggest that it tends toward such a global interpretation of kidushei taut is that over which R. Emanuel Rackman (Chancellor Emeritus of Bar-Ilan University) presides in New York. It has been severely criticized by other Orthodox authorities, not least for failure to make known the halakhic grounds on which it bases its decisions. In this book, Aviad Hacohen, of Sha’arei Mishpat College of Law, seeks to provide the halakhic grounds for kidushei taut, and in an Afterword, R. Rackman endorses it as providing the scholarly rationale for the decisions of his court. The book was published in October 2004, and within months was subjected to a thorough review by R. Michael Broyde, a member of the * Agunah Research Unit, Centre for Jewish Studies, University of Manchester, UK

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Beth Din of America.1 Broyde argued (and this reviewer largely concurs) that while Hacohen does a good job of documenting the traditional, limited use of kidushei taut, he falls short of supporting its expansion into a global solution. Indeed, Hacohen constantly acknowledges the limitations of the sources he cites, and only hesitantly suggests their potential to be developed into a global solution. In an article in the subsequent issue of the same journal,2 Hacohen, responding to Broyde’s critique, further distances himself from any such global claim, and indeed from knowledge of the actual practice of the Rackman court. The main thrust of the argument is in chapter 8, where Hacohen analyses some 28 responsa. He classifies them according to the type of defect found in the husband: physical (1–10), mental (11–13, 28), abandonment (14–15), imprisonment (16–18), apostasy (19–23), suspected drowning (24–26), and “emergency” (27). These cases thus span significantly different situations: situations where there is doubt whether the husband is still alive, and situations where there has been no ‘release’ by a (dead) husband’s surviving brother — that is, no halitza. Moreover, many of these responsa conclude that though release without a get may be theoretically permissible, the responsist will not endorse it as a practical measure (halakha velo lemaase). The case of “emergency,” viz., where there is a fear that continued igun will lead the woman to sexual immorality, invokes the lekhathila – bediavad distinction: some things that are prohibited in advance may still be legitimated ex post facto. Once the aguna has had children in a subsequent relationship, the desire to remove the taint of having been born to a woman married to someone other than the father (mamzeirut) from the children may prompt lenient application of the relevant laws, and thus incidentally free the woman. Hacohen recognizes these limitations. He stresses the arguments used in these responsa, rather than the final decisions. He shows, for example, that some traditional assumptions regarding women’s behavior and attitudes, such as the talmudic dictum that it is better for 1 In the online (edah.org/backend/coldfusion/display_main.cfm) Edah Journal: “An unsuccessful defense of the beit din of Rabbi Emanuel Rackman: The Tears of The Oppressed by Aviad Hacohen,” Edah Journal 4:2 (2004). 2 “Misreading, misrepresenting and Rabbinic politics: a response to Rabbi Michael Broyde,” Edah Journal 5:1 (2005); see edah.org/backend/ JournalArticle/5_1_Continued.pdf.

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a woman to be in an unsatisfactory marriage than to be alone (tav lemeitav tan du) may in appropriate circumstances be rebutted, not least when in conflict with a woman’s natural desires: “Everyone knows why a bride enters the bridal chamber” (bShabat 23a). Broyde sees little value in Hacohen’s emphasis on such arguments. What matters for him is the final decision. But this raises an important methodological issue within contemporary halakha. Some may reflect that restrictive readings of the responsa echo the approach of the common law, which insists that only the ratio decidendi of cases is authoritative for the future, to the exclusion of obiter dicta. But is this really the authentic approach of the halakha? After all, the responsist is frequently not responsible for the final decision. Hacohen concludes on a related point. Even if the approach of the Rackman beit din reflects a minority view within the halakha, there is a tradition that rabbinical courts recognize the bills of divorce issued by other rabbinical courts (indeed, Rabbenu Tam himself is said in some sources to have pronounced a ban (herem) on anyone who cast aspersions on the validity of a divorce after it had been executed in a Jewish court). But Broyde replies that this refers only to the factual determinations of other courts, not to any errors they may have made with respect to the law. But this, too, requires further analysis. Even though a responsist may have pronounced, in advance, that a proposed course of action is not acceptable as a matter of practical halakha, it does not follow that a ruling (psak) which ignores this advice is invalid. The Talmud itself recognizes a number of court decisions that are not in accordance with the halakha. Moreover, if the lekhathila–bediavad distinction can be applied to the unilateral action of the woman, surely it can also be applied where that action has been sanctioned by a rabbinical court? It would be interesting to know the attitude rabbinic authorities take, in actual practice, with regard to women who present themselves for remarriage after having been released by the Rackman rabbinical court. Both Hacohen’s book and Broyde’s response attest to the continuing creativity of modern Orthodoxy in this matter, notwithstanding its need to proceed slowly and incrementally. Broyde himself notes that the concept of kidushei taut has been expanded over the past century, and justifies this in terms of changing social conditions. He also recognizes the legitimacy of recourse to modern social-scientific insights into human behavior (if not cherry-picked). There is, here, room for collaboration between the yeshiva and academic worlds,

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including reconsideration of the issues of history and authority that arise on more traditional approaches to the problem of igun, namely, resort to conditions and coercion. 2

Avishalom Westreich*

In responding to the debate prompted by his review, R. Michael Broyde remarks: “I did not review the book as an academic adventure but as the practical halakhic suggestion that it was.”1 Or, as we prefer to put it, he distinguishes between the theoretical analysis of the kidushei taut (a marriage entered into on the basis of erroneous assumptions) ‘solution,’ and its application in practice. The practical application of the kidushei taut principle is limited due to legitimate apprehension about relations between a married woman and someone other than her husband (humrat eshet ish), and the birth of children from such relations (mamzeirut), but there is much broader scope for discussion of its theoretical aspects. Hacohen’s self-distancing from any global claims for the utility of the kidushei taut principle, mentioned by Jackson in his above review, results from these practical limitations. While Broyde takes this to support his primary claim that Tears of the Oppressed “fails as a work advocating any change in the normative halakhah,” Broyde overlooks the book’s theoretical contribution to the subject. The conceptual basis for the erroneously-contracted marriage principle is established in the Talmud in bBaba Kama 110b–111a.2 This * Avishalom Westreich was recently awarded a doctorate by Bar-Ilan University’s Department of Hermeneutics. He is a research fellow at the Shalom Hartman Institute. 1 “Honesty and analysis: a reasoned response to passionate letters,” Edah Journal 5:1. 2 As Hacohen (Tears, 23–26) observes, the Mishnah (mKetubot 7:9–10) does not explicitly speak of kidushei taut vis-à-vis cases where the husband’s defect may invalidate the marriage from the outset. Rather, the notion of defects in the husband is invoked to justify compelling a husband to give his wife a bill of divorce (get). As a reason for cancelling the marriage ab initio, kidushei taut is mentioned only in the anonymous stratum of bBaba Kama mentioned above. The anonymous strata of the Babylonian Talmud are usually considered of late Amoraic or even Saboraic origin, see Shamma Friedman, “A critical study of Yevamot X with a methodological introduction” (Hebrew), in C. Dimitrovsky (ed.), Texts and Studies, Analecta Judaica 1 (NY: 1977), 275–441. The conceptual approach of the

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sugya is well described in chapter 6 of Hacohen’s book. Hacohen explains that the concept of an erroneously-contracted marriage was broadened through the generations, and that “what began as a concept narrowly applied” was in later generations applied to the “general suffering and deprivation of the agunah” (Tears, 93). Many decisors maintain that it is indeed theoretically acceptable, when dealing with such ‘external’ problems as ‘neutralizing’ Resh Lakish’s dictum that it is better for a woman to be in an unsatisfactory marriage than to be alone, to apply the expanded concept to cancel a marriage ab initio. Since the basis for the kidushei taut solution is the assumption that both parties must give their (informed) consent to a transaction, there is, in principle, no reason why it should not be applied to a mistake relating to the husband,3 and no reason why the list of defects that render the transaction mistaken cannot be added to.4 Interestingly, it is in fact easier to use the erroneously-contracted marriage solution in the case of a living husband than in that of a levir. Hacohen notes (Tears, 36) that according to Rashi, the tav lemeitav presumption — viz, that it is better for a woman to be in an unsatisfactory marriage than to be alone — is sugya, namely, comparing different areas of the halakha by means of a single formal concept (“adata dehakhi lo . . .”) — in Urbach’s terminology, “formal analogy” (E.E. Urbach, The Halakhah: Its Sources and Development [Givatayim: 1986], ch. 12) — is a well-defined characteristic of late talmudic redaction; see L. Moscovitz, Talmudic Reasoning — From Casuistics to Conceptualization (Tübingen: 2002), 324–29. We can thus view the principle of the erroneously-contracted marriage as developed by the later generations of the Talmud’s redactors. 3 Thereby generating grounds for annulment in such cases. Hacohen ascribes this view mainly to Rashi (Tears, 94–95). Some Later Authorities argue that even the Tosafot are willing to apply it in extreme cases. Usually the Tosafot construe kidushei taut as a sort of implicit condition, and therefore demand the husband’s prior agreement to it for voiding the marriage (see Tosafot, bBaba Kama 110b s.v. adata). But in extreme cases, when there is an established presumption (umdena demukhah), his agreement is not required. See Tears, 78, and see also Beit Halevi 3:3; Igrot Moshe, EH, 4:121 (based on Tosafot, bKidushin 49b s.v. dvarim). It appears that, contra Hacohen 38–39, Havot Yair also ascribes this view to the Tosafot rather than to Rashi. 4 See Hacohen’s analysis of R. Isaac Elhanan Spector’s responsum on impotence (Tears, 55–57). On his analysis, the basis for expanding the notion of erroneously-contracted marriage is the analogy between the laws governing defects in commercial transactions and laws governing defects in marital transactions.

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relevant only in the case of a levir with a specific sort of defect (muke shehin, lit., afflicted with boils), but when it is a husband who has the defect, the wife can say that she would have never agreed to the marriage, which therefore falls under the category of an erroneouslycontracted marriage.5 These two points, namely, adding to the list of defects and application of the principle to a husband, are accepted by many decisors, including R. Moses Feinstein, and are indeed acceptable to Broyde. Here, however, an important question arises: may we take a further step and apply the principle of kidushei taut to cases of defects that were not present when the marriage was entered into? It is this further claim that provokes Broyde’s main criticism. In discussing this point, let me reiterate that I am addressing the theoretical question only, and not the application of the principle in practice. Thus policy considerations and meta-halakhic assumptions, such as the stability of the Jewish family and apprehension about the birth of children from relationships between married women and men other than their husbands (mamzeirut), are not relevant here. Hacohen (Tears, 29–30; 95–96) distinguishes between old defects and new defects. The former are an instance of the classic mekah taut (sale without full disclosure) in which the marriage is cancelled ab initio because of a defect in existence at the time of the marriage that was concealed from the bride. The latter are instances where umdena (assessment of intent) comes into play. Here, the defect “originates after the marriage” (Tears, 68). In this case the court declares, post factum, that the marital transaction is retroactively void. There is, however, a deep connection between these two concepts. They have the same talmudic source, the sugya of “a levir afflicted with boils” (yavam muke shehin) mentioned above; they are based on similar presumptions — had the bride known of the condition in question (old or new), she would not have married her husband; and they have the same result — invalidating the transaction ab initio.6 Indeed, Hacohen sees the assessment of intent as part of the broad meaning of kidushei taut — 5 Beit Halevi 3.3 characterizes this as a major leniency. 6 My impression is that even the terminological distinction of umdena v. mekah taut is not universally accepted, inasmuch as sometimes umdena is used for either situation. See, e.g., Responsa Avnei Hefetz, #30 (Tears, Appendix, 99). However, I believe that the distinction is both conceptually appropriate and necessary for understanding the controversy surrounding Hacohen’s book, see below.

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“the principle . . . was not static . . . [but] seems to have developed parameters of its own, including the recognition of additional types of blemishes as well as the application of the concept of umdenah to incorporate blemishes that arose after the marriage” (Tears, 99). But can we find halakhic precedents for the instances that are based on assessment of intent, umdena, just as we found precedents for ‘ordinary’ kidushei taut? Broyde argues that this move was never accepted by normative halakha. However, even he agrees that there is a theoretical basis for it in the responsa literature. Invoking umdena is a reasonable interpretation of the talmudic sugya of the levir afflicted with boils (Tears, 26–30). According to Hacohen, this argument was advanced in a well-known responsum by the Maharam on the subject of the apostate brother-in-law in the context of levirate marriage, discussed in detail by Hacohen (Tears, 39–41). The umdena interpretation is also mentioned in nineteenth- and twentieth-century responsa in various contexts, though it is adduced “in principle but not for direct application” (halakha velo lemaase).7 But it is doubtful that this was, in fact, the Maharam’s view. Hacohen relies, incorrectly in my opinion, on the Mordekhai, written by a student of the Maharam, and the quotation he brings is indeed from Hagahot Mordekhai, a later composition.8 The Mordekhai itself does not ascribe to the Maharam the view that the marriage can be nullified in a case where the defect is new.9 It is mentioned explicitly in a responsum in Responsa Maharam Rothenberg,10 but the responsum is not by the Maharam himself but a later scholar,11 and does not make this argument explicitly. Rather, it is an inference from silence: since the Maharam did not distinguish between conversion to another faith

7 E.g., a case of insanity is mentioned in a responsum by R. Abraham Friedman, quoted in Hacohen (Tears, 67), which states (theoretically, and only when there is is an established presumption (umdena demukhah), in line with the view of the Tosafot, see n. 3 above) that “even if the blemish arose in the husband only after the wedding, there is room to say that the marriage is null and void ab initio.” For further examples, see Tears, 96, 200. See also R. David Bass, “Dissolving marriage by invoking the ‘sale without full disclosure’ principle” (Hebrew), Tehumin 24 (2004), 195 n. 6. 8 On Jebamot ch. 4, 107. 9 Mordekhai, on Jebamot ch. 4, 29. 10 Prague, #1022. 11 See E. Westreich, Transitions in the Legal Status of the Wife in Jewish Law (Hebrew), (Jerusalem: 2002), 148 n. 152.

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before and after the marriage, so too the notion of kidushei taut may be applied to either case. Another source, Teshuvot Maimoniot,12 takes the opposite view, arguing that the Maharam’s opinion applies only to the case where the levir was already an apostate when the woman married his brother. Later halakhic literature has continued to discuss the Maharam’s view.13 However, as Hacohen observes, the Maharam’s position was not accepted by many halakhic authorities, including R. Joseph Caro and the Rema (Tears, 41). It should be mentioned that according to the Mordekhai, even the Maharam himself did not hold the said position as law intended for implementation (lemaase), and in fact endorsed the stringent position.14 Broyde agrees that the Maharam’s view is not totally rejected.15 In the twentieth century, the Maharam’s approach to cases where a husband had converted after the marriage was invoked explicitly by R. Yehiel Jacob Weinberg, though again, not as law intended for implementation. R. Weinberg even contended that the kidushei taut argument was stronger when the conversion took place after the marriage than when it occurred before the marriage, since in the latter instance it could be claimed that the bride “considered and accepted” (savra vekibla) the conversion.16 The Tears of the Oppressed therefore makes a significant contribution by documenting the theoretical expansion of kidushei taut to new defects in the husband. Why has such a theoretical analysis of kidushei taut — an “academic” view to use Broyde’s term17 — however broad its 12 Laws concerning Women 29. 13 See Bayit Hadash, EH 157 s.v. katav rav sherira; Sridei Esh 1:90. 14 Mordekhai, Jebamot ch. 4, 29. Consider also the case reported there of two levirs, where the Maharam was stringent with respect to both. His stringency with respect to the converted brother-in-law is based on Rashi, who, in contrast to the Geonic tradition, considers him a Jew. Elsewhere, Rashi takes a lenient approach (see n. 3 above) to Resh Lakish’s axiom. It seems, therefore, that Hacohen’s dichotomy between lenient and stringent approaches is open to question. It is not only questionable with regard to the views of the Maharam and Rashi regarding the apostate levir, but also problematic in certain other cases. E.g., Rashi’s opinion on the matter of halitza (Tears, 36–38; Rashi on Jebamot 39b, s.v. amar rav ein kofin) may reflect apprehension about impermissible sexual relations and not leniency as to the widow. 15 Broyde, n. 1 above, 24 n. 13. 16 Sridei Esh 1:90. 17 Broyde, n. 1 above, 3.

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application, aroused the deep and emotional criticism with which Hacohen’s book has been met? The answer lies in the attempt to apply it as law intended for implementation (halakha lemaase). The crucial question seems to be whether the halakha can and will apply this broadened notion of erroneously-contracted marriage at the practical level. Clearly, the move from theory to practice is not an easy one. It is usually a gradual process, often accompanied by many difficulties. As of today, most decisors have not taken this step, despite the existence of a “pathway to broaden the lenient position” (Tears, 43); it is, however, being taken by R. Rackman’s rabbinical court. Here, as in similar areas of the laws of divorce, the question of authority arises: who has the ability and authority to determine the law intended for implementation, or even to redefine the halakha?18 In sociological terms, we can speak of a debate over ‘the borders of the field.’ According to Broyde, Rackman’s practice is not normative halakha, and Rackman and his supporters, among whom the author of Tears of the Oppressed is to be counted, are outside the halakhic playing field, so to speak.19 On the other hand, the responses to Broyde proffered by both Hacohen himself and R. Haim Toledano20 go to great lengths to demonstrate the halakhic legitimacy of the view in question. Both argue that in essence, their approach to kidushei taut is very similar to that of Broyde. Both require that there be a defect that existed prior to the marriage, though it may have been latent. Such a defect could include, for example, wife abuse and other domestic violence; these could “under certain circumstances and with the concurrence of the relevant professionals,” be deemed “defects that existed already at the 18 See Bernard S. Jackson, “Agunah and the problem of authority: directions for future research,” Melilah (2004), 1–78, online at mucjs.org/MELILAH/ articles.htm. 19 Broyde takes the position upheld by R. Daniel Sperber in “A plea for the chained daughters of Israel: comments on Aviad Hacohen’s Tears of the Oppressed,” Edah Journal 5:1 (2005), edah.org/backend/JournalArticle/ 5_1_Continued.pdf, to accord with the halakhic understanding of kidushei taut. But inasmuch as Sperber’s view of Hacohen’s account is, in contrast to his own, rather positive, Broyde is led to wonder how Sperber can be so “blind” to the fact that his comments appear to “validate much conduct that is not proper as a matter of Jewish law” (n. 1 above, 2). 20 Aviad Hacohen, Susan Aranoff, R. Haim Toledano, Susan Weiss, “Responses to Michael J. Broyde,” Edah Journal 5:1 (2005), edah.org/ backend/JournalArticle/5_1_Continued.pdf.

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time of the marriage.”21 The only disagreement between them, according to Hacohen and Toledano, is one of policy, namely, the policy underlying how the notion of a “latent defect” is actually interpreted (is it interpreted narrowly, to include only impotence, insanity and epilepsy, or more broadly, to encompass also violence, blatant abusiveness and adultery? Are defects resulting from antecedent mental illness to be considered “latent”?)22 Susan Aranoff makes the same claim in her contribution to the debate.23 She remarks that although there is considerable scope for implementing kidushei taut as a global solution,24 Rackman’s bet din usually relies on the classic kidushei taut, which invokes a defect that existed prior to the marriage. Aranoff goes further, not merely downplaying the disagreement, but suggesting that the similarity in the positions of the two sides results from Broyde’s having, over the years, moved from stringency to leniency. Aranoff notes, for example, that he now agrees that for the wife to have a viable claim of kidushei taut, she need not leave the marriage immediately upon discovery of the defect, whereas in the past he insisted that this was necessary. In putting forward these arguments, Hacohen further distances himself from presenting kidushei taut as a global solution. But is his view, which requires that the defects be concrete and exist — at least as a matter of inference — prior to the marriage, indeed acceptable as normative halakha? Is it really compatible with Broyde’s position? No, Broyde insists: “The similarities are linguistic, rather than substantive,”25 and a deep gap between the approaches remains. Even though Hacohen and Toledano use the words “latent defects,” the 21 Hacohen, “Response,” n. 20 above, 9. 22 Hacohen discusses possible sources in the responsa literature for expanding the meaning of “latent defects.” See, e.g., his analysis of R. Feinstein’s responsum, based on the classification of types of torment (inui), on p. 59, and his discussion of R. Isaac Elhanan’s responsum with regard to extending the meaning of “latent” on p. 57 n. 112. 23 Aranoff, “Response,” n. 20 above, 2. 24 Aranoff distinguishes three categories of kidushei taut. Catgeory I is a preexisting defect in the husband; category II is “based on the presumption that a woman would not knowingly consent to a marriage in which she could be virtually imprisoned by a cruel husband,” and category III assumes that a woman would not “knowingly consent to a domestic partnership” based on the husband’s acquiring and retaining “control of her sexual freedom” even if he abuses or abandons her (Aranoff, ibid.). 25 Broyde, n. 1 above, 6–7 n. 18.

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defects to which they refer are neither considered defects by the halakha, nor truly latent, either halakhically or scientifically. The scientific literature on the psychology of abuse finds no significant correlation between “any pre-marriage conduct or experience (other than sexual deviance related to homosexuality) [and] any post-marriage defect (other than homosexuality and its correlates),” and not every “unkind act” can be considered a manifestation of latent mental illness.26 What we have here, Broyde argues, is an attempt to make annulment of the marriage possible whenever it is requested, and this “legal fiction,” to use Susan Weiss’s term,27 is a move that is not supported by any of the halakhic sources.28,29

26 27 28 29

Broyde, ibid., 4–5, Appendix. Weiss is, of course, in favor of this approach; see Weiss, n. 20 above, 4. Broyde, n. 1 above, p. 6. The research for this review was carried out at the Shalom Hartman Institute. I would like to thank Pinhas Shifman, Avi Sagi and Moshe Orlin for their input. Special thanks are due Prof. Bernard Jackson, whose assistance made this review possible.

STYLE SHEET

The Jewish Law Annual, Vol. XVII

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Please provide a line or two of information about yourself, such as an institutional affiliation, before the first footnote. Manuscripts should be submitted both as hard copy and electronically, in WORD 2007 or less, or WordPerfect 11 or less. Papers should be double-spaced (text and footnotes). Neither the file nor the hard copy should contain tracked changes, comments, highlighting, underlining, different font colors, or other markings. 12 pt. font, preferably Times New Roman, should be used throughout, including the notes. The paper should not contain electronically linked crossreferences. All references must conform to the Jewish Law Annual house style specified below. All references containing titles originally in Hebrew should provide both the original title of the work in transliteration, and the official title in English if it is given in the book or appears in an English table of contents (often found at the end of the volume). If no English title is given, please suggest a translation, indicating that it is your own. Authorized Version abbreviations for books of the Bible, listed in dictionaries and style guides such as The Chicago Manual of Style, should be used. In referring to the Talmud, tractate names should not be abbreviated. m, b, j, or t should be prefixed to the tractate name to indicate whether the Mishnah, the Babylonian Talmud, Jerusalem Talmud or Tosefta is being referred to. CITATION STYLE

Halakhic literature Beit Yosef, OH 156, YD 147. Maimonides, Code, Laws concerning Robbery and Lost Property 11 : 1. R. Joshua Falk Katz, Perisha, HM 201 : 1 (at the end). Rashi on bBaba Kama 27a s.v. lemikah umimkar. Responsa Beit Shlomo, OH #57.

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Responsa Mabit, #37. Responsa Maharam Mintz, #5 ([Jerusalem: 1991], 16). Books W.C. Kaiser, Toward Old Testament Ethics (Grand Rapids MI: 1978), 99. E. Urbach, The Sages: Their Concepts and Beliefs, trans. I. Abrahams (Jerusalem: 1987), vol. 1, 343. Journal articles R.S. Kleinman, “Early interpretations of the Bible and Talmud as a reflection of medieval legal realia,” 16 Jewish Law Annual (2006), 25–50. A. Shaffer, “Cuneiform tablets from Palestine I: the letter from Shechem” (Hebrew), Beer-Sheva 3 (1988), 163–69. Joseph Raz, “Legal principles and the limits of law,” 81 Yale L.J. 823, 830 (1972). Articles in edited volumes B.S. Jackson, “Legalism and spirituality,” in E.B. Firmage, B.G. Weiss and J.W. Welch (eds.), Religion and Laws: Biblical, Judaic and Islamic Perspectives (Winona Lake IN: 1990), 243–61. D. Sinclair, “Defending the lives of the mortally ill, the embryo and the non-Jew” (Hebrew), in G. Frishtick (ed.), Human Rights in Judaism (Hebrew), (Jerusalem: 1992), 37 n. 19. Cross-references in notes 23 D. Sperber, Material Culture in Eretz-Israel during the Talmudic Period (Hebrew), (Jerusalem: 1993), vol. 1, 260. 24 See Englard 1991, n. 11 above, 67. 25 Ibid., 121. 26 Sperber, n. 23 above, vol. 1, 345.

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TRANSLITERATION Wherever possible, essential Hebrew is to be transliterated into English rather than word-processed in Hebrew characters, as follows:

alef

a

lamed

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patah; kamatz

a

bet

b

mem

m

hirik

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vet

v

nun

n

shva (pronounced) e

gimel

g

samekh s

segol

e

dalet

d

ayin

a

shuruk; kubutz

u

hei h (pronounced)

pei

p

holam

o

tzeire

ei

vav

v

fei

f

zayin

z

tzadi

tz

het

h

kuf

k

tet

t

reish

r

yod

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shin

sh

kaf

k

sin

s

khaf

kh tav

t

No diacriticals, apostrophes, hyphens, doubling of consonants or capitalization should be used as elements of the transliteration or to indicate prefixes and the definite article. These transliteration guidelines are not intended to apply to papers addressing linguistic or philological issues.