Parashat Emor (5760)

With God’s help, eve of the holy Sabbath of Parashat Emor, 5760

Counting the Omer: On the Meaning of Halakhic Midrash

In our weekly portion, the Torah commands the counting of the omer, a commandment we are in the midst of observing these days:

“And you shall count for yourselves from the day after the Sabbath… seven complete sabbaths shall there be. Until the day after the seventh Sabbath you shall count

fifty days…” (Leviticus 23:15–16). “The day after the Sabbath,” the Sages interpreted as the day after Passover. The Gemara records that the Boethusians

interpreted “the day after the Sabbath” as Sunday. The Gemara (and likewise the Sifra on our portion) presents several

arguments against their interpretation, which appears, at first glance, to be the plain sense of this verse.[1] Beyond all the expositions

and interpretations, it is clear that there was here a tradition from Moses our Teacher; otherwise, it is not clear how they counted until

the period of the controversy between the Boethusians and the Pharisees. The people of Israel, who began counting the omer

after the giving of the Torah, presumably followed the practice accepted today as well—from the day after the festival of Passover—and the various

interpretations were intended only to anchor this position in the language of Scripture.

Several disputes over foundational matters of Jewish law raise the same question regarding the tradition

that existed until that time. For example, the dispute between Rashi and his grandson Rabbeinu Tam over the order of the

passages in phylacteries raises the same question. On the face of it, Rashi, who preceded Rabbeinu Tam, arranged

the phylacteries as all the generations before him had done, so what room was there for Rabbeinu Tam to arise and uproot the tradition of all

the generations on the basis of mere reasoning? It is very plausible that, with respect to phylacteries, there had been two traditions from very early

times, and the views are called by the names of Rashi and Rabbeinu Tam because they are known to have disagreed on this question.

I once heard that in archaeological excavations at Masada phylacteries of Rabbeinu Tam were found. If

that is correct, this is significant support for this conjecture. It is interesting to note that

in the book She’elot u-Teshuvot Min HaShamayim, by R. Yaakov of Marvege (one of the Tosafists), it is reported that he asked in a dream what the halakhic ruling was

in the dispute between Rashi and Rabbeinu Tam, and he was told that as there is dispute below, so there is dispute above. That is,

on this question there is disagreement even in the “heavenly academy” (=the “academy” in heaven). It appears, then,

that there are two well-founded sides here, with more ancient historical roots.

If we return to the dispute between the Boethusians and the Pharisees regarding the counting of the omer, it seems that there this was not

the situation. There is complete consensus among the sages of the Pharisees that “Sabbath” refers to the festival of Passover, and the opinion of

the Boethusians appears to be a “modern” innovation against the existing traditions (although in many respects

this “innovation” fits the plain sense of the verses very well, and rather intricate arguments are required in order to reject

it[2]).

There is room for modern interpretations in the Torah, even against the interpretation accepted by us, but

this is mainly in matters of narrative teaching, thought, or the reasons for the commandments. About this it is said, by way of epigram, that “the gates of

interpretation have not been closed.” The matter of counting the omer is a clearly legal one, and a renewed interpretation

can turn legal practice upside down. In questions such as this, decisive weight attaches

to the tradition we received from our teachers.[3]

Another point that arises in this context is the common scholarly distinction between “creative midrash” and “supporting

midrash,” that is, a midrash from which a law is learned, thereby creating it, and a midrash that comes only to support

a law, already known independently, by attaching it to the scriptural text. There are disputes (mainly in the academic world of

Talmud scholarship) about the nature of the various legal expositions—whether there are only creative expositions, only

supporting ones, or whether both types exist—and also about the ways to identify each of these types.

Clearly, a dispute over a creative exposition is not like a dispute over a supporting one. According to what we said

above, the Boethusians here disagreed over a supporting exposition, and not over a creative one, and it seems that these were generally

the kinds of disputes they had with the Pharisees, and this was what chiefly provoked Pharisaic anger.[4]

A peaceful Sabbath

This may be placed for respectful storage in any synagogue or academy. Comments and responses will be welcomed.

———————–

[1] Our sages in every generation continued to bring additional proofs against the Boethusian position, and additional

explanations of why “Sabbath” in this section means the first festival day of Passover. Later in the verses there appears, “Until

the day after the seventh Sabbath you shall count fifty days,” and indeed among the Sages there were those who interpreted this as the day after the festival of

Weeks—that is, there too “Sabbath” is interpreted as a festival, as at the beginning of the passage—and it is puzzling why the Sages

and the Boethusians did not polemicize about the end of the count, for there, at first glance, the interpretation seems simpler.

However, according to the plain sense of Scripture, “the seventh Sabbath” is the seventh week of the count, as is well known,

“Sabbath” in the language of the Sages, and sometimes in Scripture as well, means a week (in the jubilee laws there appears “seven sabbaths

of years”). According to this, perhaps one can explain that “the day after the Sabbath” at the beginning of the count means the day after

the week that begins on the ninth of Nisan (see the Gemara in Menahot there, that until the eighth of Nisan there were days that were something like

festival days).

[2] As stated, there are several arguments against the interpretation of the Boethusians. I once heard from Rabbi

Medan that he knows 23 answers to the question why the Book of Ruth is read on the festival of Weeks, but he is acquainted

with only one explanation of why the Book of Esther is read on Purim. When there are too many answers to some

question, suspicion arises that the thesis being defended is not quite so simple.

[3] However, it should be noted that Maimonides, in Hilkhot Mamrim, writes that the Great Court can overturn

the interpretation of courts that preceded it, even if they were greater than it, if this is indeed how it sees fit to interpret

the laws of the Torah. This is unlike decrees, customs, and enactments, where there are severe limiting conditions on

the possibilities of change. According to this, it may be that if, in a certain period, it seems to a court that phylacteries should be worn

in accordance with Rabbeinu Tam, or that the counting of the omer should be done as the Boethusians say, it has the authority

to do so. Of course, the degree of confidence required of them in their interpretation in such a case must be very great. See our remarks below on

creative and supporting expositions.

[4] In fact, the principal disputes with the Sadducees concern the midrashic method itself, and not only

trust in tradition, but the significance of the Boethusian stance is different when the midrash is creative

as opposed to supporting, and this is not the place for that.

Bitton37.doc