Out of Bounds: Part 3-Sage Monitoring

 

By: Jonathan Seidel 

This section annotates the sage model of religiosity. By examining the tannaitic texts and academic scholarship there is an affinity toward innovation from canonical textual scripture in light cultural antiquity. 

                                                                        Perfect Inspectors? 

If the Bible was given at a different point in history would the laws be different? Honestly probably but it wasn’t. The text is eternal, not necessarily the interpretations. The sages intervened in the construction of the legal lifestyle post-temple destruction1. The ceasing of prophecy forced these sages to provide a coherent genuine account of the future of Jewish life and continuity. The oral law passed through the generations was written down in order to prevent its loss but the years were not pretty and divergent opinions grew2. All legitimate but only one could be practised3. The Talmud expanded on the Mishnah’s project legalising heavily4. Concretising theology and philosophy into legal action to implement daily. Such a project was long and arduous but very impressive. There are laws applying to certain individuals specifically women5 about their character negatively representing them. Some claim that the sages were correct and infallible while others convict them as sexist and misogynist. It is difficult to confirm a past individual or a group as discriminatory by grading them on present standards. Personally these concepts are purposely negative. Anti-Semitism was brutally honest about their hate of Jews. 

The sages by no means ever attempt to downplay the essence of women or despise them. They also praise women greatly6. If not for them we would not have merited God’s mercy and arrived in the land (Sotah 11b). Formally and etymologically, I would not describe them as anything other than accepting of their times7. Nonetheless, they still legislated female innovations regarding adapting the bride price (mohar) to a ketubah (M. Ketubot 1:2)8, patrilineal to matrilineal descent (M. Kiddushin 3:12)9 and female property inheritance (M. Ketubot 13:3)10. Since I accept their fallibility as there is no man who does good but does not sin (Ecclesiastes 7:20)--every being is imperfect and susceptible to sin--I struggle to accept the perfection of their legal interpretations given the diversity. Socially they lived in a different age and scientifically made mistakes. There are those who wish to retain the law despite the mistakes. Science is a divine construct and their interpretation is a human construct. R’ Melamed echoing some other later authorities forbid killing lice as science has disproved spontaneous generation11. They were ignorant. Had they known they probably would have ruled as R’ Eliezer forbade (Shabbat 12a). 

The sages also provided some evolutionary new interpretations of the Bible. Not only did they reread verses but they contributed novel ideas12. Two potential understandings of problematic verses: “an eye for an eye” was translated as compensation as R’ Eliezer believes it is “literally his eye” (Bava Kamma 83b)13. R’ Eliezer was an ardent traditionalist14 only transmitting that which he received (Sukkah 28a, Avot deRabbi Natan Recession B Chapter 13) and a student of Shammai (Niddah 7b). His opposition to change in the new era led to his excommunication (Bava Metzia 59b). The law followed the innovative nature of R’ Yehoshua and the sages of Yavneh15. The rebellious child, although assumed to have never happened, was critiqued by R’ Yonaton that it did (Sanhedrin 71a). His response affirms Abaye’s rationale to teach children God’s will but as a consequence to the development of society16. The Bible was given in an authoritarian society dominated by the parents but by the talmudic age the roles had developed. The Roman law had similar laws, regarding lex talionas as lex aquilia17 and other battery law differing from biblical law18. The Sages did not copy Roman law but it seems were influenced by their culture. Both law codes parallel in cases of status regarding offspring and reduction of illegitimate natives19. Prof. Catherine Hezser has demonstrated other similarities: jettison laws, slave as intermediaries, wife property ownership. Prof. Hezser admits there is no evidence the rabbis had collections of Roman law but it seems they were aware of it. Still this is not to say that they always inclined toward the law, simply that interaction existed20. 

Differences existed due to divergent legal philosophies21. Ironically though the Sages were exposed to the Roman life and were affected by it to an extent22. It would not be so extreme to assume the sages’ “immoral” methods toward non-Jews were predicated on their feelings towards Rome (Bava Kama 38a). In addition there are strong negative accusations23. These harsh views were diminished by the legal decisors that followed (notably Meiri24 and Maimonides25). The sages also instituted rulings to equalise and concern for non-Jews through “sanctification of the name”26 and “ways of peace” (Gittin 59a)27. 

Decisions were initially decided by miracles or divine voice. The rejection of the divine voice in the snake oven case represents a shift to sole acceptance of human interpretation (Bava Metzia 59b). Initially the high priest’s breastplate was questioned for guidance. With the end of prophecy rabbinic intuition was required to decide the law28. Based on the representation of Korah’s argument one could assume his inquiry was out of time. If he had made the argument a few hundred years later it would have been acceptable. Divine punishments like extirpation (karet) were administered with lashes by the court. Divine punishment still did exist but not in all cases29. Additionally, new enactments were put into place. Ezra instituted reading the weekly Torah portion on Monday Thursday and Shabbos afternoon (Bava Kamma 82b)30. Other novel attempts were Yose ben Yoezer’s lenient rulings (M. Eduyot 8:4)31, Hillel’s prozbul (Gittin 36a)32, and preferring halitza over yibum (Berachot 13a)33. The sages in their conception of reality improved the law to resemble the era they lived.

Endnotes

1. Susan Grayzel, A History of the Jews, Penguin Books, 1984, pg. 193. See: Rabbi Sherira Gaon’s letter שרירא^↩. 

2. Jewish tradition is not the sole carrier of an oral and written symbiosis. Orality was more important than written documents in the ancient world. Speech was highly regarded, holding oaths to a sacred level. This may be why the Talmud upholds the oath to a buyer without physical evidence required (M. Bava Kama 10:3) yet would not if he was a suspected liar (M. Shvuot 7:4). Oral procedures and transactions were prevalent. See: Raymond Westbrook, “Introduction: Character of Ancient Near Eastern Law” A History of Ancient Near Eastern Law Vol. 1 ed. Raymond Westbrook, (Brill, 2003) pp. 1-90. See also: David Carr, “Torah on the Heart: Literary Jewish Textuality Within Its Ancient Near Eastern Context” Oral Tradition 25:1 pp. 17-40.^↩

3. Michael Rosensweig, “Elu va-Elu Divre Elokim Hayyim: Halakhic Pluralism and Theories of Controversy”, Tradition 26:3 pp. 10-14. For the sake of uniformity one solution is chosen but the parameters of “kim le” exhibit an attempt at practical pluralism pg. 19. See: Christine Hayes, “Theoretical Pluralism in the Talmud: A Response to Richard Hidary” Dine Israel 26-27 pp. 304-306. Prof. Hayes not only argues for the existence of  practical pluralistic cases in the Talmud but insists the Dworkinian model or legal monistic contention is not viable in Talmud literature, pp. 270-271. History has shown that diversity in practice has developed due in part to distance and different social considerations to be mentioned below. The question remains, is uniformity preferred?^↩

4. Marcia Ann Kupfer, ed. The Passion Story: From Visual Representation to Social Drama. University Park, Pennsylvania: Pennsylvania State University Press, 2008, pp. 223–224. Jesus criticised the Pharisees for the over-legalisation and failing to promote values of justice and faith.^↩

5. Women are thieves and lazy (Genesis Rabbah 45), they are light minded (Kiddushin 80b). The restrictions on women judging (Niddah 49b) or witnesses (Shvuot 30a) were also held by Roman culture. Larry May, “Women in Jewish and Roman Thought.” Ancient Legal Thought: Equity, Justice, and Humaneness From Hammurabi and the Pharaohs to Justinian and the Talmud, Cambridge: Cambridge University Press, 2019, pp. 585–97. It has been noted the rabbinic mind was much more considerate and empathetic to women than the Romans. Jewish Women Through The Ages Roman women converted to Judaism because economic and religious life was better for them. For all the negativity there was some external prowess. Dr. Chaya Halberstam wrote rabbinic discussion of women is not particular to the sages, continuing to be an issue in legal language today. Quoting Alan Hyde expressing law’s language as “cold, clinical and self consciously metaphorical” Alan Hyde, Bodies of Law (Princeton, N.J.: Princeton University Press, 1997) pg. 5. Prof. Hyde supplies an example of an issued search warrant for Shirley Rodriques on criminal charges [Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991)]: “search warrants for appellant's apartment and vagina” (Ibid pg. 4). Thus rabbinic discourse in Niddah persay is no more extreme than the search warrant. It is more about legal discourse than ideology of the sages. Chaya T. Halberstam, Law and Truth in Biblical and Rabbinic Literature (Bloomington: Indiana University Press, 2010), pg. 188 n. 21.^↩

6. Women were given greater understanding (BT Niddah 45b), women are more familiar with handling guests (BT Berakhot 10b), women do not sit around idly (J. Ketubbot 5:6). Women to be compassionate (B. Megillah 14b), holy and pure (Sifrei, Deuteronomy, Ki Tezei), talkative (B. Kiddushin 49b).^↩

7. See: “Appendix I” in my (A)Typical Tools analysing rabbinic female presentation in the hellenised context.^↩

8. Judith Hauptman, Rereading the Rabbis: A Woman’s Voice. Boulder, CO: Westview Press, 1998, pp. 63-68. See also: Bernard S. Jackson, “Problems in the Development of the Ketubah Payment: The Shimon ben Shetah Tradition.” Rabbinic Law in Its Roman and Near Eastern Context, ed. Catherine Hezser, Tübingen, Germany: Mohr Siebeck, 2003 pp. 199–225.^↩

9.  Shaye J. D. Cohen The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties. Berkeley: University of California Press, 1999, pg. 305.^↩

10. Hauptman, “Rereading” pp. 177, 184.^↩

11. Peninei Halakha: Shabbat 20:8.^↩

12. Prof. Jaffee argues the Sage authority supplied innovative possibilities per generation in furthering divine will. See: Martin S. Jaffee, “Halakhah in Early Rabbinic Judaism: Innovation Beyond Exegesis, Tradition Before the Oral Torah” Innovation in Religions Traditions: Essays in the Interpretation of Religions Change, eds. Michael A. Williams, Collett Cox and Martin Jaffee, Berlin, Boston: De Gruyter, 2011, pg. 125. Prof. Goodman argues the rabbis were conservative and that may be true to a certain extent but in many areas they were innovative. If by innovative Goodman is implying revolutionary well that may be foreign as the Sages and Judaism included tend to be more reflective than pioneers. See: Martin Goodman, “Explaining Change in Judaism in Late Antiquity,” in A. Houtman, A. deJong, and M. Misset-van de Weg (eds.), Empsy- choi Logoi—Innovations in Antiquity. Studies in honour of Pieter Willem van der Horst (Brill: Leiden, 1008), pp. 19–27. Their conservative tendencies are historically accurate legal-wise plus they were abiding by the cultural common norms of the region.^↩

13. Shimon Gershon Rosenberg, Halichot Olam: Halakha and History 2016 pp. 163-190 [Hebrew]. See Amnon Bazak To This Very Day: Foundational Questions in Biblical Learning 2013 pp. 404-417. R’ Shagar sees Maimonides explaining his theory on the rabbinic evolution of law in his intro to his commentary on the Mishnah. The historical ramifications are evident but that is not the Talmud’s point. All was revealed to Moses so it's more a conversation than a disagreement. R’ Bazak explains the Dor Revi'i as the law changing through the generations. The Dor Revi’i may be hinting to R’ Eliezer’s excessive traditionalism as a clue. The Talmudic text ends questioning R’ Eliezer’s intent and concludes he meant value. Though the Talmud indeed “covers up” situations that seem problematic like this one. Other such examples are: Bavli’s praise of Honi the Circle Drawer as a hero (Berachot 19a) as opposed to Yerushalmi's dissent (J. Ta’anit 66a), Honi’s demise in the Bavli is lighter (Ta’anit 23a) but Josephus tells of his unfortunate downfall by an angry mob (Antiquities XIV 22-24) The Yerushalmi is sympathetic to R’ Eliezer’s antagonism to the sages in the infamous oven case (J. Moed Katan 81c-81d [3:1]) yet the Bavli has no remorse (Bava Metzia 59b), The Bavli salvages R’ Hanina ben Dosa wife’s miracle as a normal occurrence (Ta’anit 25a). Nonetheless, there are those who still think R’ Eliezer is misunderstood and it always was compensation see: Torat Emet - Mishpatim - An Eye for an Eye. Eli Garfinkel, “‘Whoever lost a Limb -- Will Lack a Limb’: ‘Eye for an Eye’ Maimonides’ method” Dine Israel 33 pp. 55-107. I have since come around on this position thanks to Prof. Jackson’s semiotic reading, a distinction between ‘literal’ and ‘narrative’ reading of the verses. He proposes the case of a one-eyed man poking out a two-eyed man, so if he were to lose an eye it would not be equal since one would be blind and the other half blind. Pushing for “images evoked not cases covered”. Additionally, elsewhere he points to ransom in capital cases so surely for this case. See: Bernard Jackson, “Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence” International Journal for the Semiotics of Law 13 pp. 443-444. See also: Eye for an Eye. R’ Medan demonstrates that amputation was not foreign to rabbinic models (Sanhedrin 58b). Josephus seems to accept compensation or amputation (Antiquities IV 7:34). Both Maharam and Rabbenu Yerucham argue to sever the hand of a wife-beater (Responsa IV and Sefer Mesharim, Netiv 23:5). Additionally, I happened to stumble upon this ruling in the Talmud in Beitzah 25b yesterday: The Sages said that a blind man does not leave his house with his cane on the festivals because it is ‘derech chol’. Read literally (semantically) this would inhibit all blind people no matter the spectrum to travel. In this case we can ask is this for the incapable? Ironically, Shita Mikubetzet picks up on this and answers that this is only for someone who does not need a cane. If this blind individual requires a cane then he is permitted. Not only that but he refers to a different case in Shabbos (M. Shabbos 6:8) permitting an amputee to go out with his supports (shoes to walk on knees). Rashba furthering Rashi says that any amputee if need be can use a cane of some sort because they are like shoes. Referring back to Prof. Jackson’s semiotic thesis, such a case is for the typical blind man/woman that can get around without the aid, but if one is in need then s/he may. The commentators are pointing out what the Sages intended. The case semantically seems agredigious but just like the talionic case, here it is to be read narratively to properly address the social background.^↩

14. R’ Yose ben Dourmasqit boldly told his rebbe R’ Eliezer something new and suffered but R’ Yehoshua pressed his students to teach him novelty (Chagigah 3a).^↩

15. Benyamin Lau, The Sages: Content Character and Creativity trans. Ilana Kurshan (Vol. II: From Yavneh to the Bar Kokhba Revolt) (Maggid Books, 2011) pp. 55-57.^↩

16. I admit this is a difficult opinion, but the testimony of R’ Yonatan does bring to light the potentiality of the law pragmatically enforced. Similarly to an “eye for an eye” the sages revised the meaning to alter the praxis. There is a similar law in the Hammurabi Code, nos. 168, 169. See: WHY DIDN'T THE RABBIS ELIMINATE MAMZERUT? PART 3 Rabbi Aryeh Klapper, Dean and see part IV. So even if it never occurred, does not mean it could not.^↩

17. "Roman law: Delict and contract", Encyclopædia Britannica.^↩

18. Rabbinic Battery Law in Light of Roman Rule.^↩

19. Christine Hayes, “Genealogy, Illegitimacy, and Personal Status: The Yerushalmi in Comparative Perspective” The Talmud Yerushalmi and Graeco-Roman Culture III, ed. P. Schäfer (Tubingen: Mohr, 2003), pp. 73–90 See: Christine Hayes, “Roman and Jewish Law: Looking for Interaction in all the Right Places” Law and History Review 37:4 pp. 955-959. Prof. Hayes believes the dissenters’ views of interaction between the two groups is inaccurate. Distaste for Roman ideology does not negate impact. Ishay-Zvi Rosen, “Rabbis and Romanization” Jewish Cultural Encounters in the Ancient Mediterranean and Near Eastern World, ed. Mladen Popovic. Brill, Leiden 2016, pp. 218-245. In response to Prof. Rosen the Sages were not seduced but as Prof. Dohrmann wrote to counter the centrality of legalism in Rome, the Sages publicly formulated their own flag to defend against the external pressure. Constructing a legal centralism of their own. Natalie B. Dohrmann, “Can ‘Law’ Be Private? The Mixed Message of Rabbinic Oral Law,” Public and Private in Ancient Mediterranean Law and Religion, ed. Clifford Ando and Jörg Rüpke, Religionsgeschichtliche Versuche und Vorarbeiten 65 (Berlin: de Gruyter, 2015), pp. 187–216.^↩

20. Catherine Hezser, “Did Palestinian Rabbis Know Roman Law? Methodological Considerations and Case Studies” Legal Engagement: The Reception of Roman Law and Tribunals by Jews and Other Inhabitants of the Empire, eds. K. Berthelot, N. B. Dohrmann and C. Nemo-Pekelman (Rome: Ecole Française de Rome, forthcoming in 2021) pp. 11-12.^↩

21. Samuel Belkin, In His Image: Jewish Philosophy of Man as Expressed in Rabbinic Tradition London, New York, Abelard-Schuman, 1960 pp. 41-53. Dr. Belkin points to a few examples distinguishing greco-roman law and rabbinic law. In his analysis it seems philosophical differences and theological components diverted the causes. For example, there is a harsher punishment for the robber according to the former and harsher punishment for a thief for the latter. Public attacks are regarded against the state in roman life and private affairs are seen as denying God in rabbinic tradition.^↩

22. See: Saul Lieberman, Hellenism in Jewish Palestine. New York, 1950. The minute positive impact is represented in the negative allegories of Roman society. Rome was identified as Esau (Avodah Zarah 10b, Sifrei Deuteronomy 343). Prof. Berthelot explains the struggle for divine approval between Jews and Rome epitomising Jacob and Esau. Rome was threatening and Jews fought back religiously and legally. Katell Berthelot, “Paradoxical Similarities between the Jews and the Roman Other” Perceiving the Other in Ancient Judaism and Early Christianity eds. Michal Bar-Asher Siegal, Wolfgang Grünstäudl, and Matthew Thiessen (Tübingen: Mohr Siebeck, 2017) pp. 97-108. ^↩

23. The gentile mind is always upon idolatry (Gittin 45b), they give charity for self-fame (Bava Batra 10b), they have no share in the world to come (Sanhedrin 105a). G-d does not withhold reward from gentiles who perform His commandments (J. Peah 1:1) Righteous gentiles have a place in the world to come (Tosefta Sanhedrin 13:1). The Status of Non-Jews in Jewish Law and Lore Today, Rabbi Reuven Hammer. Returning a lost item (Bava Kama 113b) No interest (Makkot 24a). It is important that Rabban Gamliel did away with permitting to steal from a non-Jew. Meiri took this argument further in the case of goring an ox, that generally gentiles are irresponsible but that was the old ones. The current ones are and therefore we must compensate for damage (Beis HaBechirah BK 113b). Meiri specifically notes that such individuals are Christians and Muslims instead of barbarians. Would this apply to atheists? If not, is such behaviour permitted? Yet, they are not barbarians so maybe it would be void. It is not religion that is necessary for prohibiting stealing but proper values.^↩

24. Every gentile who follows the noahide laws has a share in the world to come (Beis Habechirah, Sanhedrin 47a).^↩

25. Everyone who follows the noahide laws is righteous and goes to heaven (Hilchot Teshuva 3:5).^↩

26. (Tosefta Bava Kama 10:15) and (Bava Kama 113b).^↩

27. Simcha Fishbane, “Mipnei Darkei Shalom: The Promotion of Harmonious Relationships in the Mishnah’s Social Order” SJHSS 1:1 2017. Dr. Fishbane writes: “Therefore, to avoid conflict and ensure a secure and stable society, the principle of mipnei darkei shalom was instituted to amend or override rabbinic stringencies that encompassed elements endangering this stability” pg. 82. See: Walter S. Wurzburger, “Darkei Shalom,” Gesher 6 (1977 / 1978), pp. 80-86 and PROBLEMS OF THE DIASPORA IN THE SHULCHAN ARUCH.^↩

28. The End of Prophecy: Malachi's Position in the Spiritual Development of Israel.^↩

29. Hanina Ben Menachem, “Is Talmudic Law a Religious Legal System? A provisional Analysis” Journal of Law and Religion 24.2 pg. 393.^↩

30.  Benyamin Lau, The Sages: Content Character and Creativity trans. Michael Prawer (Vol. I: The Second Temple Period) (Maggid Books, 2010) pp. 11-15.^↩

31.  Ibid. pg. 97.^↩

32.  See: Hartman, From Defender to Critic: the Search for a New Jewish Self pp. 227-246. Hillel was a prime innovator. R’ Lau discusses Hillel’s background and use of logic in deciding matters of halakha. See: Lau, The Sages (Vol. I) pp. 189-192 and T. Pesachim 4:13-14. Compare this version with J. Pesachim 6:1 and B. Pesachim 66a. Prof. Hayes argues that amoraic revisionists protested Hillel’s innovation as nothing new (Gittin 36a, J. Gittin 21b). See: Christine Hayes, “Rabbinic Contestations of Authority” Cardozo Law Review Vol. 29 pp. 129-130. Later scholars struggled but the earlier leaders were brazen in their deviation.^↩

33.  Eliezer Berkovits, Not in Heaven (Shalem Press Jerusalem, 2014), pp. 13-15.^↩