Davar Akher

In 2003, Joseph Mosseri delivered a fascinating lecture at Merkaz Moreshet Yisrael, entitled Torah – Ancient Relic or Living Law: A Sephardic Rabbinical. The lecture, which runs for just under an hour, is available online from this link and is well worth a listen. The following is, in my estimation, one of the many highlights (from his introduction, approx. 8:54-11:55):

These chachamim feel that the only way for the Torah to last eternally is through change. The Torah has opened itself up for change, and has allowed change. And this was the path that they brought with them from pre-expulsion Spain, and this was the path that they carried with them into the Ottoman Empire and elsewhere.

Based upon this, I want to tell you: we as Sephardim, and those who follow the Sephardi talmidei chachamim, we are not Orthodox. We’re not. Orthodoxy is something that we never had, and you have to understand Orthodoxy in its true historical context. In the 18th and 19th centuries, European Jewry underwent processes of enlightenment and secularisation, accompanied by internal sociological and ideological tensions. How did this manifest itself among the people and rabbis of Europe? Reform Judaism. That was the immediate answer in Europe. The earliest religious response to modernity was anti-traditionalist, in the body of the Reform movement. It denied the eternal validity of the halakha, which had until now governed all aspects of Jewish life, and instituted major changes in liturgical practise.

The challenge of Reform, and of the more general Jewish enlightenment (the Haskalah), did eventually stimulate a response from the champions of the traditional faith. What was this response? The earliest traditional response was one of uncompromising reaction, summed up in the rallying cry of Rabbi Moshe Sofer – better known as the Chatam [sic] Sofer. He took a word… He took a line from the Mishna, in ‘Orlah, and he reused it to his benefit. He said, החדש אסור מן התורה בכל מקום. Whatever is new is forbidden by the Torah in every instance. This reactionary stance remained a central position for a large segment of traditionalists, and became known as Orthodoxy. Something that never existed anywhere in Judaism before early 19th century Europe.

Orthodox leaders, in essence, declared that they were simply preserving and continuing the ways of life and the beliefs of pre-modern Judaism. They forced themselves into a position of denying the legitimacy of all modern innovations. They bound up the Torah in a manner which was never known among our chachamim. In fact, according to Chacham Yisrael Moshe Chazzan, this approach resulted in totally arbitrary and useless chumrot that greatly contributed to the fragmentation of the Jewish community, thereby discrediting the office of the rabbinate.

Speaking as a fan of all things totally arbitrary and useless, I do think that Mosseri’s tone is a little bit critical of the great Ashkenazi rabbis of the last two centuries, but his eloquence in defending the historical integrity of non-Ashkenazi (what he regrettably labels “Sephardi”) Judaism is inspiring nonetheless. The entire lecture is well worth a listen, as are several other lectures found on their main page. Regrettably, the quality of the recording is rarely so good as it is with this one.

Today is the most ridiculous day in the entire Hebrew calendar. It is the fourth of Tishrei, which this year (because yesterday was a Shabbat) is the Fast of Gedaliah.

Named for the Babylonian-appointed governor of the province of Judah who was ruthlessly murdered (or so we are taught) at the hands of a prince named Ishmael ben Netaniah, the fast in question is a day on which we mourn the onset of the Babylonian exile. These events are recorded, somewhat laconically, in 2 Kings 25:25-26, and at more length in Jeremiah 41:1-18. The institution of a fast is recorded in Zechariah 8:19, in which it is referred to as “the fast of the seventh month”. Whatever other candidates might have existed for this title, the Talmud (Rosh haShana 18b) makes it clear that this is in reference to the murder of Gedaliah, and then derives from this the fact that the deaths of the righteous are as significant as the destruction of the Temple itself.

We have no shortage of days on which to mourn for these events:

• There’s the 10th of Tevet (acc. to one opinion in the Talmud, the date that Zechariah refers to as “the fast of the tenth month”), which is the day on which Nebuchadnezzar rallied his army and commenced his siege of Jerusalem (2 Kings 25:1-4);

• There’s the 17th of Tammuz, on which we recall the breaching of Jerusalem by the Romans, c.69 CE. Originally, this fast day is believed to have been held on the 9th of Tammuz, which Jeremiah 39:2 describes as the day on which Nebuchadnezzar broke through the city’s walls some six hundred years earlier. According to Rabbi Akiva, the 9th of Tammuz is therefore the day that Zechariah referred to as “the fast of the fourth month”, although it is interesting to note that the Palestinian Talmud (Ta’anit 4:5) suggests that the fast of the fourth month was always and only ever the 17th of Tammuz, and that Jeremiah got the date wrong;

• Most famously, there’s the 9th of Av (“the fast of the fifth month”). If you have ever found impressive the string of events that people relate to the 17th of Tammuz (the smashing of the tablets, the cessation of the perpetual offering, the breaching of the walls, etc), then the list of things related to the 9th of Av is staggering indeed. According to tradition, this is not only the anniversary of the destruction of the first temple but of the second temple as well. Yet, so far as the first temple is concerned, the author of 2 Kings 25:8 refers to this event as being on the 7th of Av, Jeremiah 52:12 refers to it as being on the 10th of Av, and Josephus (Antiquities 10.8.146) refers to it as being on the 1st of Av. Go figure.

So, here’s the million dollar question. Do we need another day of mourning? There have certainly been times and places throughout history when communal fasts were instituted in remembrance of a dire circumstance. The most famous example of this would probably be the 1st of Sivan, in remembrance of the 11th century butchering of the Jews of Worms. Today, while it is not a fast day, the institution of Yom haShoah serves as a contemporary example, and a good case study of rabbinic opposition to innovation. While some traditional communities embraced the idea of instituting a new date on the Hebrew calendar, the events of the Shoah being either too large or too recent to suggest merging their remembrance with an established date, it was to the established dates that various other traditional communities pointed when asked about mourning.

And yet, while I’ve great sympathy for both sides of this discussion, I found myself affronted by an ignoramus a little while back, whose article in Haaretz made the absurd claim that fast days are no longer of any relevance (they were only ever as relevant as people wanted them to be), now that we are no longer in exile. His opinion was perfectly valid, although his polemical tone was most unpleasant, and I was struck by his evident unfamiliarity with the book of Zechariah. In it, the prophet insists upon the continuation of the fast days, despite the fact that they had only been in effect for less than a century, and despite the fact that he was living during the period of the restoration.

The history of second temple and rabbinic Judaism has caused us to view the destruction of the temple as the most important feature of the exile, but exile is only ever determined by the loss of civic autonomy. Zechariah lived to see the reinstitution of the temple cult, but the absence of any form of government made the fast days relevant in his day as well. For us, they remain relevant for the opposite reason: we have seen a reintroduction of Jewish sovereignty over most of the land of Israel, but the absence of the temple has become the chief indicator of a persistent “exile”.

Nonetheless, while I do have sympathy for those who wish to preserve the integrity and the relevance of the 17th of Tammuz, the 10th of Tevet and the 9th of Av, I can’t help but find it odd that the 3rd (or, in this case, the 4th) of Tishrei should have persisted for so long. The Fast of Gedaliah? Really? Was his death so relevant, and his circumstances so unique, that it is worth fasting for him, from sun-up to sun-down, and mourning the consequences of his demise over two-and-a-half millennia since he ceased to exist? Does anybody know anything about him, save the scant and spurious information that is recorded in the books of Jeremiah and Kings?

Or is it merely that his passing was so ordinary, and our continued commemoration of it, long after he may as well have been a piece of fiction, so terribly absurd, that it actually becomes somewhat sublime? As Tertullian never said, “Credo, quia absurdum”. I don’t, although I appreciate the sentiment.

The following, from On The Main Line:

Someone once asked me if I had any information about what happened in Nazi Germany when it came to the traditional prayer for the government.

I saw an interesting statement in an article by Arno Herzberg in the 1991 Leo Baeck Institue Yearbook, called “The Jewish Press under the Nazi Regime Its Mission, Suppression and Defiance – A Memoir”

He writes that the Jewish press in those days, while it still existed, would print quotations from Tanach that could, in a veiled way, give expression to the emotions they were feeling. However, they could not be open. So, for example, they obviously could not quote Psalm 140.

But, writes Herzberg, they could make more subtle points. Then he writes:

“One prayer that caused problems was the prayer for the welfare of the government. It was an integral part of the prayerbook, but it had lost its meaning. It would have been more than hypocrisy to pray for the most vicious enemy the Jewish people had ever had. We could safely leave this to the churches. On the other hand, to omit it completely might be interpreted as disrespect and as an expression of displeasure with the government. It was impossible to discuss this in any forum, or in any newspaper column. But it attests to the common sense of Jewish leaders that this prayer was gradually abandoned²⁵ without comment. In the end, the Gestapo relieved hesitant souls of their objections. The prayer was prohibited.”

The footnote directs us to “an adaptation of the Jewish prayer for the beloved fatherland,” and refers to “Juedischer Widerstand in Deutschland” pg. 6, which luckily is available online (link).

There, the author writes that when the Nazis came to power many Jews began turning to the synagogue, who previously had not gone very often, or at all. He gives a prayer he remembers: “Herr der Welt, Vater aller Menschen. Wir bitten Dich um Deinen Schutz fuer alle die Laender, in denen Juden frei und ungestort ihrer Arbeit nachgehen koennen,” which means

“Lord of the World,
Father of all Men.
We pray you protect all lands in which Jews are free and undisturbed,
and able to pursue their work.”

If you are not a regular reader of On The Main Line, you really should be.

[Cross-Posted from Galus Australis]

It is no secret that the weight of our traditions, and the vast bulk of our legislation, derives not from an explicit reading of the Torah, but instead from the long and methodical distillation of rabbinic halakha. This halakha, while it is earlier given expression in various legalistic midrashim (the Midrash Halakha), is best exemplified in the 3rd century redaction of the Mishna. It is a most curious feature of this text that, unlike all other examples of Jewish literature before and since (with the exception only of the stylistically correlative Tosefta), the Mishna provides no reasons for its laws, all of which are predicated upon statements found within the Torah, but none of which are actually from the Torah itself.

It would be a mistake to assume that the earliest generations of rabbis were unaware of this problem. While many today are content with the traditional schema, which posits the origin of rabbinic legal methodologies, and even the origin of rabbinic halakhot themselves, at Sinai, the Mishna itself evinces a certain discomfort with the provenance of its own dicta. Consider the following pronouncement (Hagigah 1:8):

התר נדרים פורחין באויר ואין להם על מה שיסמכו הלכות שבת חגיגות והמעילות הרי הם כהררים התלוין בשערה שהן מקרא מעט והלכות מרבות הדינין והעבודות הטהרות והטמאות ועריות יש להן על מה שיסמכו הן הן גופי תורה

[The laws concerning] the annulment of vows are floating in the air, and have nought on which they can be based. The laws of Shabbat, festival offerings and transgressions [incurred through the misuse of consecrated goods]: these are like mountains suspended on a hair, for there is little scripture and a great many halakhot. Financial laws, sacrifical procedures, purities and impurities, and sexual transgressions have that on which they can be based. These ones are the essence of Torah.

The translation above, which is slightly idiomatic, is my own. Where the Hebrew notes that הן הן גופי תורה, I have understood the repetition of the demonstrative pronoun as noting that “these ones” – the latter category – are the essence of Torah, to the exclusion of those that came before. Support for this can be found within the Tosefta (Hagigah 1:11; also Eruvin 8:17), which in this instance is clearly a commentary upon the mishna in question. Consider its conclusion:

הדינין העבודות הטהרות והטמאות והעריות מוסף עליהן הערכין וחרמים וההקדשות מקרא מרבה מדרש והלכות מרבות יש להן על מה שיסמכו אבא יוסי בן חנן אומר אלו שמונה מקצעי תורה גופי הלכות

Financial laws, sacrificial procedures, purities and impurities, and sexual transgressions, to which can be added valuations [of people and property], that which is banned, and that which is consecrated – a great deal of scripture, a great deal of midrash and a great many halakhot – have that on which they can be based. Abba Yose ben Hanan says, “These are the eight corners of Torah, the essence of halakhot.”

It is evident in the Tosefta’s reformulation that these eight things mentioned last (which number only four or five in the Mishna’s formulation) constitute the essence of Torah, while that which came before, although important and constituting the bulk of rabbinic legislation, is not of the essence. Those are the areas of the halakha, concerning which the rabbis could find no justificatory basis within the explicit wording of the Torah itself, and concerning which they were aware of their inability to do so.

It goes without saying that while so radical an idea might have found expression within certain examples of early rabbinic literature, later examples of the same disavowed it. Consider the terse response of the gemara to this problem (Hagigah 11b):

הן הן גופי תורה הני אין הנך לא אלא אימא הן והן גופי תורה

“These ones are the essence of Torah”? [Meaning] these ones are and these ones aren’t? Rather, say that “these and these are the essence of Torah”.

In other words, rather than suggesting that only these latter examples (הן הן) are the essence of Torah, which is what the Mishna does suggest, declare instead that all of these examples (הן והן) are the essence of Torah, whether or not they have anything on which they can be based, or whether they have only very little on which they can be based, within the explicit phraseology of the Torah itself.

That the gemara finds the Mishna’s assertion so problematic only serves to underscore the philosophical rift that divides the two. Prof. Menahem Kahana of Hebrew University refers to the statement in the mishna as being one that “frankly reveals the problematic nature of finding biblical support for numerous halakhot in several realms of Jewish law”¹.

Nonetheless, the recognition of this problem is one that comes fraught with all manner of ideological baggage. Were one to suggest that certain realms of halakha indeed lack textual basis, might not the individual halakhot that they comprise be called into question?

*

Consider a recent guest post at Hirhurim. Rabbi Yonatan Kaganoff proposes a model for comprehending Orthodox Judaism (although the model applies beyond Orthodoxy as well), in which he divides it into two different philosophical approaches.

One of Rabbi Kaganoff’s approaches is the one that sees of Judaism a masorah, or tradition. By believing his practises (however erroneously) to be constitutive of historical practises, and by perceiving a clear line of development from the earliest texts to the most recent, the adherent of such a philosophy must surely feel uncomfortable with any indication that there might be discontinuation between one stage in the process and the next. That the earliest generations of rabbis may have been originating ideas, the better to derive practical halakha from the little that the Torah gives them, is anathema to such a perspective. As a result, the mishna’s assertion that the “real Torah” lies with those things that possess a scriptural basis is in need of the sort of emendation that the gemara provides.

The first of his approaches, however, and the one to which I assent, is the approach that sees of Judaism a system of legal exegesis. While we might remark upon the ways in which it operates, we seek to appraise it rather than to lend it justification. Or as I have heard Rabbi Raymond Apple note on a number of occasions, our objective is to understand the literature and not to judge it. Were the rabbis ever responsible for innovating halakhot? Both then and now, and throughout all of Jewish history, this has been the modus operandi. While innovation was and is conducted in line with both the content and the principles of the rabbinic literature, it stands to reason that the earliest examples of this literature testify to innovation made on a more subjective basis.

Indeed, the introduction to the tosefta that I quoted (Hagigah 1:11) makes this abundantly clear for itself:

היתר נדרים פורחין באויר ואין להם על מה שיסמכו אבל חכם מתיר לפי חכמתו

[The laws concerning] the annulment of vows are floating in the air, and have nought on which they can be based, but the wise one will permit things in accordance with his wisdom.

While later generations came to understand the Mishna as being the faithful representation of a memorised body of law, rather than the results of a dynamic process of creative legislation, so much of the information that we have at our disposal belies this assertion. The abundance of disagreements within the early rabbinic literature, the honest appraisal of this particular passage in the Mishna, and the assertion made by the corresponding tosefta that “the wise one will permit things in accordance with his wisdom” all testify to a certain state of elasticity in the earliest days of the halakha.

Jewish law may have become inflexible in many respects, permitting change and development when in line with a particular methodology only, but this has not always been the case. Recreating the rabbis of the past in our own image does nobody any favours: neither those earliest generations, so anachronistically represented, nor ourselves, divested of an appreciation as to our ideological roots.

–

¹ Menahem Kahana, “The Halakhic Midrashim”. Pages 3-105 of The Literature of the Sages (vol. II; ed. S. Safrai, Z. Safrai, J. Schwartz and P. Tomson; Compendia Rerum Iudaicarum ad Novum Testamentum; Minneapolis: Fortress Press), 11 n36.

Over 2008 and 2009, Rav Tamir Granot wrote a comprehensive analysis of the different approaches that various contemporary Torah scholars have taken to the Holocaust. You can read the series in its original Hebrew here, or in Kaeren Fish and Meshulam Gotlieb’s excellent English translation here.

One of the individuals who appears in the series is Rabbi Kalonymos Kalmish Shapira. Known as the Piaseczno Rebbe, Rabbi Shapira lived in the Warsaw ghetto until its liquidation in 1943. The discourses that he delivered over that time were collected together and subsequently published under the title, אש קדוש. An English version exists, entitled Sacred Fire: Torah from the Years of Fury 1939-1942 (trans. J.H. Worch; ed. D. Miller; New Jersey: Jason Aronson, 2000).

A hallmark of Rabbi Shapira’s discourses is his emphasis on the ephemerality of suffering. Like a person who wanders barefoot through a field of thorns and briars, the tribulations that he endures are surely ameliorated if he but meditate upon the fact that they cannot continue any further than the field itself. All suffering, he insisted, is there to teach us a message, and it is a message best appreciated with an awareness of its ultimate brevity. In truth, as the suffering being endured by Rabbi Shapira and those around him reached heights beyond any reasonable expectation, the determination of that message became more and more difficult. At the close of Pesach in 1941 (Sacred Fire, 182-187), Rabbi Shapiro asks, “What can be learned from pain?” His answer, drawn on analogy with the fact that the Israelites were only redeemed from Egypt after various additional tribulations, is that one learns faith in God, and that even the little acts of piety yield a future reward commensurate with the suffering endured in this world. While it is a faith that I do not share, I find his closing words to be tremendously powerful:

Now at this time, when our troubles are bitter beyond belief, God should have mercy on us and save us in the blink of an eye, when we continue to believe. Our belief creates an image of God that is a revelation above and below, and in God we will find strength, and we will believe, and we will hope, and in a moment he will save us. Amen.

- Sacred Fire, 187.

No matter the dizzying and unprecedented heights of Nazi savagery, Rabbi Shapira clung to the notion that salvation would be immediate, that God had not hidden his face in any objective sense, and that there was a divine method that underscored the brutality of everyday existence in occupied Poland. That the Nazis were to claim almost 3,000,000 Jewish lives in Poland alone seems beyond human comprehension; by emphasising the necessity to remain Jewish and to maintain hope in salvation, Rabbi Shapira not only allowed himself to keep going but brought much comfort to those who were around him as well.

Rabbi Shapira was murdered in a field near Lublin during the “reaping festival” of 1943. Some of his disciples survived the Holocaust and moved to Israel.

While wandering the bushland of Blackheath in silence, an interesting thought occurred to me. The Mishna (Sanhedrin 10:1) states that all Jews have a portion in the world to come (“כל ישראל יש להם חלק לעולם הבא”), which is then supported by recourse to a quotation from Isaiah 60:21:

ועמך כלם צדיקים לעולם יירשו ארץ
Your people are all righteous: they will forever inherit the land.

Of course, the author of this passage is speaking prosaically. A word of comfort to those who are presently living in exile, the phrase constitutes an assurance that their imminent return to the land of Israel is destined to happen, together with a guarantee that their settlement will be in perpetuity. But by the time that the Mishna is redacted into its final form (indeed, by the time that the individual texts of the Mishna achieve written expression), the promise of Isaiah has rung false. Little more than half a millennium after the resettlement of the land of Israel, the Romans have eradicated all traces of Jewish life within Jerusalem, and have forced the surviving Jews to either live abroad or to inhabit the countryside. In order that Isaiah’s prophecy not appear to be a false prophecy, Jews at the time appear to have reinterpreted it figuratively.

“Your people are all righteous: they will forever inherit the land” is no longer a reference to the settlement of the land of Israel, but to an eternal inheritance in the world to come. This is why the Mishna utilises this quote in order to substantiate the idea that all Jews have a portion in the world to come, and understanding this might enable us to also understand another second century Jewish composition.

In Matthew 5:5, the evangelist records Jesus as having stated that the meek are blessed, “for they shall inherit the earth”. Surely Matthew was familiar with the textual exegesis that is also employed by the Mishna. Surely Jesus is implying (or is portrayed to be implying) that the meek have a portion in the world to come. Does this not make more sense than the literal interpretation, which has the meek given dominion over all of creation?

This was my thought while meandering through bushland and pretending to focus on my respiration, but I was most gratified on my return to find that it is also stated by Samuel Tobias Lachs, in his A Rabbinic Commentary on the New Testament: The Gospels of Matthew, Mark and Luke (New Jersey: Ktav Publishing House, 1987). In fact, Lachs goes even further by noting that this interpretation makes Matthew 5:5 identical with 5:3: “Blessed are the poor in spirit, for theirs is the kingdom of heaven” (NRSV). Suggesting that the fifth verse was originally a marginal note to the third (with the noun in the third being עני and the noun in the fifth being ענו – cf: Psalms 37:11), a later copyist mistook it for a separate verse altogether and placed it after the fourth.

I don’t know if I would necessarily go so far myself (how the last few years have taken me further and further from source criticism…), but the semantic relationship between those two verses is definitely interesting. As is the passage in the Mishna, which concludes its sentiment by enumerating those exceptional Jews who don’t get a portion in the world to come. Sucks to be me. And I was even working on my meekness.

Dr Noam Stadlan writes a truly fascinating (if not somewhat terminologically dense) overview of the development of halakhic determinations of death. From his conclusion:

The Halachic discussion contains two basic positions…: The line between life and death is defined by circulation, and the line between life and death is defined by neurological criteria. If I have been successful in demonstrating that using circulation is no longer logically coherent, the only position remaining is that death is defined by neurological criteria. Therefore the Halachic argument between circulation and neurological criteria is over, and the discussion of necessity needs to shift to the particulars of the neurological criteria. Either the existing neurologically based definitions of death can be accepted…, or further possibilities can be explored.

I recommend the article and, if not the entirety of it, most certainly §9 (“What is a Human Being?”), which sums up very nicely Dr Stadlan’s reasons for abandoning one model in favour of another. The author’s concern is with the application of the halakha, but his writing has some fascinating theoretical aspects to it as well. For one, I think that his article raises a number of interesting questions in terms of what the originators of halakha might have considered “human”, what they might have considered “living”, and when they might have felt that something straddled the line between either of those things and its logical counterpart.