Topics in Halakhic Thought – Lesson 7

Table of Contents

• The dispute as a historical crisis and the problem of methods of decision
• The Yavne revolution: replacing leadership, excommunication, and majority rules of the game
• A Torah of tradition versus a Torah of give-and-take: the distinction, the justifications, and the examples
• Solving the impasse through give-and-take, Tractate Eduyot, and the Oven of Akhnai
• The revolution reflected in aggadic literature: Chagigah and Sanhedrin, Lod and Peki’in, and the death of Rabbi Eliezer
• Rabbi Akiva as a synthesis: tradition that received explanation, and give-and-take that respects tradition
• Rabbi Kook and Rabbi Eliezer: “things no ear had ever heard” within “he never said anything he had not heard”
• Interpretation, hermeneutics, and self-awareness: fidelity to the text within dependence on the interpreter
• The analogy to law and halakhic ruling: correlation to values without canceling professionalism
• An open and dynamic tradition: migo, the hermeneutic principles, and the language of interpretation as grammatical rules born from the language

Summary

General overview

The text presents a historical and conceptual process in which the disputes in the period of Beit Hillel and Beit Shammai become a crisis of inability to decide, leading to violence and fear of the Torah’s disintegration. The sages of Yavne respond with an institutional and methodological revolution that prefers majority decision rules and give-and-take over the authority of personal tradition. It describes the removal of Rabban Gamliel and the excommunication of Rabbi Eliezer as a consequence of not accepting the rules of the game, and the opening of the study hall under Rabbi Elazar ben Azariah as the basis for the ability to close unresolved disputes, to the point that the entire Tractate Eduyot was reviewed on that very day. It goes on to criticize the sharp dichotomy between a “Torah of tradition” and a “Torah of give-and-take,” and proposes a synthesis in the figure of Rabbi Akiva, while expanding on a dynamic tradition in which interpretation, conceptualization, and intellectual tools develop over the generations and still are seen as faithful to tradition.

The dispute as a historical crisis and the problem of methods of decision

The text argues that the stories are clearly interconnected, and that in the background stands a struggle born from the phenomenon of dispute, described as relatively new when the students of Hillel and Shammai “did not serve their teachers sufficiently,” and an unresolved dispute emerged. It presents a situation in which Beit Shammai and Beit Hillel became two schools that lost the ability to function together and reach an agreed decision, and the very question of decision became entangled in the question whether “follow the majority” means a majority of people or a majority of wisdom—whether “you count heads or you count legs.” It explains that when the discussion centers on the methods of decision themselves, there is no way to decide that discussion by means of those same tools, and therefore “a heavenly voice came forth” that the Jewish law follows Beit Hillel. And within the dispute, as the Jerusalem Talmud describes it, Beit Shammai and Beit Hillel even killed one another. It adds that scholars say Beit Shammai and Beit Hillel were active for roughly one hundred to one hundred and fifty years, each school building its own halakhic world, and that when there is no way to decide, the situation deteriorates into violence.

The Yavne revolution: replacing leadership, excommunication, and majority rules of the game

The text describes how the fear in the first generation of Yavne was that the Torah was falling apart and the tradition from Moses our teacher was being cut off, with each person creating his own study hall and halakhic world, and shared discourse and shared sitting together coming to an end. It says that the sages in the first generation and a half of Yavne decided to remove the “old guard,” Rabbi Eliezer and Rabban Gamliel, and replace them with Rabbi Elazar ben Azariah. Later they excommunicated Rabbi Eliezer not because he disagreed in Jewish law, but because he did not accept the ruling that the majority determines the law. It states that Rabbi Eliezer sat in excommunication in Lod until the end of his life, whereas Rabban Gamliel accepted the rules of the game, so they restored him and created a rotation, and from that arises the question, “Whose Sabbath was it?” after that point.

A Torah of tradition versus a Torah of give-and-take: the distinction, the justifications, and the examples

The text places the core of the debate in the question whether Torah is supposed to be a Torah of tradition or a Torah of give-and-take, and it attributes to Rabban Gamliel and Rabbi Eliezer a conception of transmission through tradition in which the transmitter is supposed to be a “hollow pipe” conveying the Torah of his teachers, like Rabbi Eliezer, who “never said anything he had not heard from his teacher” and was “a plastered cistern that loses not a drop.” It explains that in this approach the emphasis is on the quality of the person and his character traits more than on the quality of the arguments, and therefore even “proofs” like the walls of the study hall and the water channel in the story of the Oven of Akhnai are seen as testimony to his righteousness and the authority of transmission, not as arguments on the merits. It describes Rabban Gamliel’s policy of not allowing anyone whose “inside was not like his outside” to enter the study hall as an examination of the person himself, and, in contrast, his replacement by Rabbi Elazar ben Azariah as opening the gates of the study hall and adding three thousand benches, until Rabban Gamliel became distressed and understood where his policy had led.

Solving the impasse through give-and-take, Tractate Eduyot, and the Oven of Akhnai

The text argues that the shift from a Torah of tradition to a Torah of give-and-take solved the inability to make decisions that stemmed from the claim “This is what I received from my teacher” as against a contrary tradition—a situation in which there is no way to speak once two contradictory traditions arise, as with Beit Hillel and Beit Shammai. It describes how the sages understood that in order for the Torah not to fall apart, “and so that they should not kill one another,” there was no choice but to raise arguments, listen to one another, and if unconvinced, hold a vote and reach a decision. It connects this to the fact that on that very day “the entire Tractate Eduyot was reviewed,” because all the open questions were brought into the new study hall where they could be decided, and it presents Tractate Eduyot as a structure of “testimonies in all directions” that cannot be decided “between testimonies” without the ability to use reasoning and give-and-take. It adds that the Oven of Akhnai, “an oven made of segments,” appears in Tractate Eduyot as one of the questions closed on that day, and presents this as a hint that the story belongs to that same corpus.

The revolution reflected in aggadic literature: Chagigah and Sanhedrin, Lod and Peki’in, and the death of Rabbi Eliezer

The text cites the Talmudic passage in Chagigah about Rabbi Eliezer in Lod and Rabbi Yehoshua in Peki’in, and the students’ question, “Whose Sabbath was it?” as reflecting the situation after the dispute had been decided, when Rabbi Eliezer is embittered and expects people to come learn from him, while Rabbi Yehoshua is happy about the inclusion of the broader community in the study hall. It cites Sanhedrin’s description of the day Rabbi Eliezer the Great died, while he sat excommunicated in Lod; the sages entered and sat before him “at a distance of four cubits”; the dialogue about “we did not have time”; and his prophecy to Rabbi Akiva, “yours is harsher than theirs.” It describes Rabbi Eliezer’s lament: “Woe to you, my two arms, which are like two Torah scrolls being rolled up,” and his statement that he learned much and taught much, “and I did not diminish from my teachers even like a dog lapping from the sea,” along with his complaint about three hundred Jewish laws concerning a deep white lesion and three hundred or three thousand Jewish laws “about cucumber planting,” on which he had not been asked “except by Akiva ben Yosef.” It connects this context to the topic of sorcery in the Mishnah, “two people gathering cucumbers,” and the distinction, “one who actually performs an act is liable; one who merely deceives the eyes is exempt,” and to the ending of the story: “pure—and his soul departed in purity,” “the vow was dissolved,” and Rabbi Akiva’s mourning, “I have much money, but I have no money-changer to set it out before.”

Rabbi Akiva as a synthesis: tradition that received explanation, and give-and-take that respects tradition

The text says that the didactic presentation of the two poles is too sharp, because there cannot be a Torah of give-and-take without tradition, and there cannot be tradition without some measure of give-and-take. It proposes a synthesis in which the “thesis” is a Torah of tradition (Rabban Gamliel and Rabbi Eliezer), the “antithesis” is a Torah of give-and-take (Rabbi Elazar ben Azariah and his colleagues), and the synthesis is Rabbi Akiva. It emphasizes that Rabbi Akiva studied both with Rabbi Eliezer and with Rabbi Yehoshua, and interprets the Talmudic statement, “He learned it from Rabbi Eliezer but did not understand the reasoning; then he went back and learned it from Rabbi Yehoshua, and he explained it to him,” as a model in which Jewish law is received through tradition but made intelligible through reasoning and explanation. It cites the principle, “An anonymous Mishnah is Rabbi Meir… and all of them are according to Rabbi Akiva,” in order to establish that the Torah that reached later generations passed through the Torah of Rabbi Akiva, which is a combination of his two teachers. It concludes that halakhic thinking must include both adherence to tradition and trust in give-and-take and reasoning.

Rabbi Kook and Rabbi Eliezer: “things no ear had ever heard” within “he never said anything he had not heard”

The text brings a passage from Rabbi Kook in Ma’amarei HaRa’ayah, in a letter of appreciation to the rabbi of Sochatchov, the author of Eglei Tal, which reconciles the statement about Rabbi Eliezer—“he said things no ear had ever heard”—with the rule that he never said anything he had not heard from his teacher. It presents Rabbi Kook’s explanation, according to which “the mouth of the rabbi… Rabban Yochanan ben Zakkai, said them,” but Rabbi Eliezer excelled in such deep listening that he heard in his teacher’s Torah what others did not hear, so that his Torah “has a family line,” and yet is still “a Torah renewed through the power of his holy intellect.” It adds a personal expansion on the experience of learning from a rabbi, where a student may absorb nuances in his rabbi’s words that even the rabbi himself is not aware of, and connects this to the debate in HaMa’ayan between Rabbi Yehoshua Hutner and Seridei Eish about Rabbi Chaim and Maimonides, and to the motif of Moses our teacher in Rabbi Akiva’s study hall not understanding until it is said, “This is a Jewish law given to Moses at Sinai.”

Interpretation, hermeneutics, and self-awareness: fidelity to the text within dependence on the interpreter

The text argues that there is no possibility of transmitting tradition without interpretation, and that even someone who thinks he is transmitting it “as is” is not aware that his position is a product of what he heard together with his interpretation. Therefore, a dispute can be between different interpretations of the same tradition and not “against the tradition.” It presents three approaches in hermeneutics: searching for the author’s meaning, meaning on the side of the book itself, and deconstruction, in which it is “what is created in the reader,” and uses this to frame the claim that a student may hear in his teacher’s words a meaning of which the teacher himself is unaware, and yet it is still rooted in those words. It cites the story in Shevuot about Rav Ami and Rav Asi, who swore opposite things about what they heard from Rav, and interprets “the person, in an oath—excluding one under compulsion” as testimony that a person can be faithful to what he heard as it was absorbed by him, even if in practice his teacher said something else. It distinguishes between self-interested biases, which need to be cleaned out, and values, insights, and intuitions, which are part of the person. It argues that the halakhic decisor should not investigate himself so deeply that nothing remains but “air,” leaving him unable to issue a ruling.

The analogy to law and halakhic ruling: correlation to values without canceling professionalism

The text tells of a conference with legal scholars in which Professor Englard argued that court rulings are a professional result without agenda, and the speaker describes a frustrated reaction and brings examples from the High Court “supermarkets case,” in which three secular judges and two religious judges ruled accordingly, alongside the opening of the ruling with the declaration that it had nothing to do with agenda. He argues that a correlation between values and interpretation does not mean “that people just do whatever they want,” and suggests that professional interpretation in law and in Jewish law is nourished by the interpreter’s world while still remaining faithful to the system of sources, to the point that one can be persuaded by good evidence and retreat. He formulates the lesson as an application of a “Torah of give-and-take,” in which the arguments are discussed and not the person, and adds that attributing dishonesty to the other side is usually mistaken, because world-dependent interpretation is operating within the critic as well.

An open and dynamic tradition: migo, the hermeneutic principles, and the language of interpretation as grammatical rules born from the language

The text defines tradition as an “open tradition,” dynamic and undergoing interpretation in every generation, and illustrates this with the concept of migo. In the Talmud it means “what reason would I have to lie,” but from passages that do not fit that explanation, later conceptualizations emerged such as “migo as the power of credibility” or “migo as the power of a claim.” These are not inventions, but the uncovering of a foundation that was present in the tradition even though earlier generations had not conceptualized it. It presents a debate about the source of the hermeneutic principles, in which medieval authorities (Rishonim) and later authorities (Acharonim) see them as a Jewish law given to Moses at Sinai, while scholars see them as a historical development, and argues that there is actually no dispute here, because a Jewish law given to Moses at Sinai is dynamic: Moses received a “language” of interpretation, while the lists of principles are later canonization and conceptualization. It compares this to a natural language, in which rules of grammar arise after the language already exists, and suggests that in the days of Moses’ mourning, “one thousand seven hundred a fortiori inferences and verbal analogies” were forgotten and restored through dialectical analysis, as a reconstructive effort that establishes rules from examples. It describes how the number of principles grew from the pairs and from Othniel ben Kenaz, through the seven principles of Hillel the Elder, to the thirteen of Rabbi Yishmael and Rabbi Akiva, and finally to the thirty-two of Rabbi Eliezer son of Rabbi Yosei HaGelili, and how Hillel’s principle of “general and particular” is broken down by Rabbi Yishmael into sub-principles like general and particular, particular and general, and general and particular and general. It concludes by connecting all this to Rabbi Akiva as the great synthesizer, and to questions that will arise regarding “first-order” versus “second-order” halakhic ruling, and regarding changes in Jewish law from within fidelity to a dynamic tradition.

[Rabbi Michael Abraham] Basically, these stories are pretty clearly connected to one another. And I tried to explain in the previous lecture that there was some kind of struggle there, one that was born as a result of the phenomenon of dispute. The phenomenon of dispute was actually fairly new at that time, as the Talmud, the Jerusalem Talmud, and later Maimonides describe: the students of Hillel and Shammai did not serve their teachers sufficiently, and then dispute arose. And therefore there was no way to reach decisions, because there had been disputes earlier too, only the earlier disputes were decided. But in the period of Beit Shammai and Beit Hillel, two houses emerged that had basically lost the ability to function together. They were unable to reach an agreed-upon ruling, and I explained there, as the Talmud says and Tosafot brings in that context in Eruvin, that since Beit Shammai were sharper, more incisive, while Beit Hillel had more people—I said that usually those go together, the wise are usually the few—so there was an argument there over the question: when we want to decide Jewish law and we take a vote, do we follow the majority? It says, “Incline after the many.” The only question is: which majority? The majority of wisdom or the majority of people? Do you count heads or do you count feet? What exactly do you count there? So Beit Hillel claimed you count feet: we have more feet than Beit Shammai. And Beit Shammai said, we don’t care about feet; the question is what’s in the head, and we are the majority of wisdom. You are the majority of people; we are the majority of wisdom. The moment the debate is about the rules of decision themselves, we basically have no ability to decide that debate itself. What are we going to do—vote on it? Then again it will split between Beit Shammai and Beit Hillel, and again we won’t be able to decide it. So a heavenly voice came out and said that the Jewish law follows Beit Hillel. But within the dispute that developed there, as the Jerusalem Talmud describes it, Beit Shammai and Beit Hillel killed one another. There was some phenomenon there of dispute that failed to resolve itself across generations. Researchers say that Beit Shammai and Beit Hillel lived and operated for something like a hundred and fifty years, roughly. A hundred, a hundred and fifty years. Meaning, this was a very prolonged phenomenon of two houses, each one basically building for itself its own halakhic world, separate from the other halakhic world, and unable to sit together and reach shared rulings. And the reason for it was apparently this deadlock: there was a disagreement about the very methods of decision. And then, once it gets to the point where there is no way to decide, violence arrives. So the fear that arose among the sages in the first generation of Yavneh was that the Torah was falling apart. We had lost it—that was it, the tradition from Moses our teacher had ceased. From now on each person would create for himself his own study hall, his own halakhic-Torah world, and the discourse would stop, the shared sitting together would stop, the shared continuation of passing the torch would stop. And because of this, the sages in the first generation of Yavneh—really a generation and a half—decided they had no choice but to remove the old guard, Rabbi Eliezer and Rabban Gamliel, who were brothers-in-law, as you’ll recall, and replace them with Rabbi Elazar ben Azariah. After that, that is also why they excommunicated Rabbi Eliezer, who would not accept the ruling. They did not excommunicate him because he disagreed in Jewish law; it is permitted to disagree in Jewish law, and nobody excommunicates someone just because he has a different halakhic opinion. They excommunicated him because he did not accept the rules of the game—that the majority determines things. And once they decided, he was supposed to accept it, and he did not. So he sat excommunicated in Lod until the end of his days. Rabban Gamliel did accept the rules of the game—the Talmud itself says so—and therefore they restored him, and there was a rotation there, one week and one week. And that is what they ask: whose Sabbath was it? In that period after that point, was it Rabbi Elazar ben Azariah that week, or Rabban Gamliel, who sat at the head of the court, gave the lessons, and managed the court and the Sanhedrin. And I said that basically the root of the dispute was the question whether Torah is supposed to be a Torah of tradition or a Torah of give-and-take. Rabban Gamliel and Rabbi Eliezer held a conception according to which Torah is supposed to be passed on by tradition, and the transmitter is supposed to be, as much as possible, a hollow pipe, transmitting as much as he can of his teachers’ Torah to his students—like Rabbi Eliezer, who never said anything he had not heard from his teacher, “a plastered cistern that loses not a drop.” Meaning, he was a man who absorbed all the Torah from his teachers and wanted to pass it on. And so too Rabbi Eliezer, and therefore their demands were demands about the quality of the people and not necessarily the quality of the arguments. Because I want to see that this person is an excellent transmitter, a hollow pipe, he has good character traits; his arguments are less important, because I am not receiving things from him by virtue of arguments. I receive things from him by virtue of the fact that he gives me the information he received from his teachers. So you have to examine the person, not the arguments. And therefore, when Rabbi Eliezer brought proofs, the walls of the study hall and the water channel and all that—various proofs that are not about the substance of the issue, not arguments. Rather, they are proofs that he is righteous, or that he is an ultimate transmitter, that one can rely on what he says. The same with Rabban Gamliel, who did not allow anyone whose inside was not like his outside to enter the study hall, because he wanted to judge the person himself and not the content of the issue. And when Rabbi Elazar ben Azariah replaced him, then basically the gates of the study hall were opened, and three thousand benches were added to the study hall, and then Rabban Gamliel was distressed because he understood where his policy had led. And that is basically how the revolution of Yavneh took place, and Torah moved from being a Torah of tradition to a Torah of give-and-take. And why did that solve the deadlock that was there? Because all the inability to make decisions stemmed from the fact that each one said: this is what I received from my teacher. What do I care—give me a thousand arguments, it doesn’t interest me. I received it this way from my teacher, and if you don’t understand it, then you don’t understand, what can I do, but that is the truth. I received it from my teacher, and my teacher from his teacher, all the way back to Moses our teacher, and that’s all, that is the Torah. Once you relate to it that way, when two traditions arise, like Beit Hillel and Beit Shammai, there is no way to talk. These have one tradition and those have the opposite tradition: is the oven pure or impure? Rabbi Eliezer was a Shammite—some say from Beit Shammai, and some say that he was under excommunication, right? Those are two interpretations. But in any case it is connected to the disputes of Beit Shammai and Beit Hillel, certainly in terms of the period. And we showed that last time too in terms of the names of the people and the period, so I’m only reviewing the outline, not going into all the details and proofs. Then basically our ability to reach a decision in a state of dispute stops functioning. Because everyone has his own tradition and is unwilling to hear opposing arguments. What, are they going to bring me arguments that the Christians are right? But I have a tradition from Moses our teacher that one must observe Jewish law—what good do all your arguments do me? And of course the other side thinks the same thing. So the sages understand that in order for the Torah not to disintegrate, and so that they not kill one another and the whole thing not go down the drain, there is no choice but to change course. And instead of a Torah of tradition, to turn Torah into a Torah of give-and-take. You raise reasons, each one listens to the other’s reasons and raises his own, and in the end either people are persuaded and then everything is fine, and if not then you vote. There is still the question, after the majority—which majority do you follow, a majority of feet or a majority of heads? And that is a different discussion. By the way, that dispute continues even among the medieval authorities: in a court, do we follow the majority of wisdom or the majority of judges? There is Nachmanides and Rav Hai Gaon and others; even among the later authorities there are references to it, the Sefer HaChinukh. In any event, the point is that once they adopted a Torah of give-and-take instead of a Torah of tradition, a new phase of Torah was born, and disputes could be decided. And therefore on that same day the entire tractate Eduyot was taught over. When Rabbi Elazar ben Azariah replaced Rabban Gamliel. Why? Because all the questions that had remained open and there had been no way to decide them were now brought into the study hall. Since in a study hall of give-and-take, not of tradition, it is possible to decide open questions. We will raise reasons, we will raise considerations this way and that way, logical arguments, and we’ll vote if we don’t agree, and we’ll reach a decision. And that is how they closed all the disputes that had remained open and that they had not managed to close before. And that is tractate Eduyot. It was all taught on that day, and that is why it is called “Testimonies.” There were testimonies in all directions; testimonies mean tradition. We received a tradition that the oven is pure, we received a tradition that the oven is impure. Between testimonies there is no way to decide, except by refutation. What are you going to do with two against two, with testimonies? You have no way to decide. He has a testimony with one tradition and the other has a testimony with the opposite tradition—how are we going to decide? If we do not accept that even with testimonies we can apply reasoning, arguments, and give-and-take, then we will not succeed in deciding disputes. And once Rabbi Elazar ben Azariah came into the study hall, or took the lead, they closed all the disputes—including, by the way, the segmented oven. That is one of the mishnayot that appears in tractate Eduyot, the oven of Akhnai; that was one of the questions settled on that day. That is another hint that the story of the oven of Akhnai also belongs to this corpus of stories. In any event, that was the move. I brought the passage from the Talmud in Chagigah, where Rabbi Eliezer sits in Lod and Rabbi Yehoshua in Peki’in, and students come and ask them, “Whose Sabbath was it?” And we saw a very, very beautiful reflection of the situation after the dispute had been decided. Rabbi Eliezer sits in Lod, embittered, and still expects everyone to come hear his Torah because after all he possesses the whole Torah from his teachers; and Rabbi Yehoshua is so happy that Rabbi Elazar ben Azariah includes the whole world in the study hall, including women and children. And basically that reflects those same two schools that struggled against one another, and the victory of the school of Rabbi Elazar ben Azariah. Up to here, a short summary of what I did last time. But as you can imagine, the picture I described is a didactic description of the process. In a didactic description, you need to present two opposed, polarized conceptions. But obviously nobody advocates a Torah of give-and-take without tradition. And I assume that even Rabbi Eliezer was willing to hear reasons here and there. Meaning, the dispute cannot really be that polarized. Clearly, in the end, even if the Torah of give-and-take defeated the Torah of tradition, still in a world of Torah of give-and-take there remains some place for tradition. We received Torah from Sinai; all of Pirkei Avot basically describes the tradition: “Moses received Torah from Sinai and transmitted it to Joshua.” That is how I began the previous lecture—how Pirkei Avot suddenly changes direction, and suddenly there is no more “received and transmitted,” but rather “he used to say three things,” and all kinds of things like that, and there is no longer “received and transmitted.” From Rabban Yohanan ben Zakkai and downward, which is exactly the generation of Rabban Gamliel and Rabbi Eliezer. That is how we started the previous lecture. So the point is that somehow this dichotomy between a Torah of give-and-take and a Torah of tradition is itself too strong or too sharp a dichotomy. And here I want to move to the final stage: if there is a thesis and an antithesis, in the end there has to come a synthesis. If the thesis is a Torah of tradition—Rabban Gamliel and Rabbi Eliezer—and the antithesis is Rabbi Elazar ben Azariah and his colleagues, which is a Torah of give-and-take, then the synthesis is Rabbi Akiva. In the end there has to be some synthesis between these two Torahs. Let us just recall who the founding fathers of the two schools are. Rabbi Eliezer is the Torah of tradition, and Rabbi Yehoshua is the Torah of give-and-take; both, by the way, were Rabbi Akiva’s teachers. As is explicit in the Talmud in several places, Rabbi Akiva studied with both of them. So in the Talmud in Sanhedrin in several places, also on 68 and on 101, there is a description there that is part of those same stories I spoke about last time, about the day of the death of Rabbi Eliezer the Great. He sat, of course, excommunicated in Lod until the day of his death, and on the day of his death the sages came in to visit him. They came in and sat before him at a distance of four cubits. He said to them: Why have you come? They said: We have come to learn Torah. Of course, until now they had not come, because he was under excommunication. He said to them: And until now, why didn’t you come? They said to him: We had no leisure, we had no time. This of course recalls the story in Berakhot where Rabbi Akiva went to Rabbi Eliezer the Great to inform him that he was under excommunication; he said to him, “Rabbi, it seems to me that your colleagues are keeping away from you.” Again, all sorts of excuses, trying to avoid it—it’s unpleasant to tell the teacher of all these people that he is under excommunication. So they tell him: We didn’t have time. Of course both sides know this is a white lie. He said to them: I would be surprised if they die natural deaths. He is still very bitter and angry, of course, about his excommunication. He said to him: What about my fate, Rabbi Akiva? What will become of me? He said to him: Yours will be harder than theirs. Rabbi Akiva would have a harsher fate than the others. Why? By the way, Rabbi Akiva was the only one who did come visit Rabbi Eliezer even during the period of excommunication—the Talmud itself says so. In a moment we’ll also see that the Talmud says it here too, and elsewhere. We know what Rabbi Akiva’s end was—that he died sanctifying God’s name—so here Rabbi Eliezer is basically prophesying that to him. He took his two arms and placed them on his heart and said: Woe to you, my two arms, for you are like two Torah scrolls being rolled up. I learned much Torah and taught much Torah—all this is Rabbi Eliezer speaking—I learned much Torah and did not diminish from my teachers even as much as a dog licking from the sea. I taught much Torah and my students diminished me only as much as a paintbrush in a tube. And not only that, but I teach three hundred laws concerning a severe leprous spot, and no person ever asked me about them. And not only that, but I teach three hundred laws—and some say three thousand laws—concerning the planting of cucumbers, and no person ever asked me about them, except for Akiva ben Yosef. Akiva used to come visit him even during the period of excommunication, Rabbi Akiva, and would ask him questions in Jewish law. I don’t know exactly how that works halakhically, how that was permitted, and how they came now on the last day, but those are the facts. Meaning, Rabbi Eliezer is basically lamenting the situation: he holds all the Torah of the previous generations, and people are debating all sorts of questions, as we saw in the passage in Chagigah, right, about whether Ammon and Moab separate the poor tithe in the Sabbatical year. So they are reinventing the wheel through logical arguments, reasons, give-and-take, and Rabbi Eliezer says to them: Why didn’t you come ask? I have a tradition from my teacher, and my teacher from his teacher, all the way back to a law given to Moses at Sinai, that Ammon and Moab separate the poor tithe in the Sabbatical year. You are reinventing the wheel instead of coming to me—I have the information. Everything is ready. And here he laments the same thing. Here he laments: why aren’t you coming? I hold all the Torah. In any event, Rabbi Akiva was exceptional in this matter. And here, look at the context in which this story appears. The Mishnah on 67a, the previous page, says this: Rabbi Akiva says in the name of Rabbi Yehoshua: two people gather cucumbers. One gathers and is exempt, and one gathers and is liable. It is possible to gather cucumbers—this is speaking about sorcery, the laws of sorcery. One gathers cucumbers and is liable, and one gathers by sorcery and is exempt. What is the difference? One who performs an act is liable; one who merely deceives the eyes is exempt. If you really gather cucumbers by means of sorcery, then you are liable as a sorcerer. But if you are just deceiving the eyes, like today’s magicians, sleight-of-hand artists, not really doing sorcery, then you are exempt. Okay? That is what Rabbi Akiva says in the name of Rabbi Yehoshua. On that, the Talmud asks—the Talmud brings on page 68 the story we just read, that he taught three thousand laws concerning the planting of cucumbers and nobody came to ask me except Rabbi Akiva, and so on. Then he said to them: It is pure, and his soul departed in purity. Rabbi Yehoshua stood on his feet and said: The vow is annulled, the vow is annulled—meaning the excommunication. The interesting thing is that they had already been speaking to him earlier, but apparently they spoke to him in order to release him from the ban before he died. After the Sabbath, Rabbi Akiva encountered him on the road from Caesarea to Lod; he was striking his flesh until his blood flowed to the ground. He began the mourning line over him and said, “My father, my father, chariot of Israel and its horsemen! I have many coins, but I have no money-changer to set them out before.” Here the story of the death of Rabbi Eliezer ends. Now the Talmud returns to its line of discussion: So then, did he learn it from Rabbi Eliezer? What do we see? That Rabbi Akiva learned the laws of planting cucumbers from Rabbi Eliezer. So why did the Mishnah above say that Rabbi Akiva learned this from Rabbi Yehoshua? So the Talmud says: He learned it from Rabbi Eliezer but did not understand it; then he went and learned it from Rabbi Yehoshua, and he explained it to him. Which, of course, is impossible not to connect to everything we discussed last time. Rabbi Akiva was a student of Rabbi Eliezer, the man of Torah-as-tradition, and of Rabbi Yehoshua, who is Torah-as-give-and-take. He was the elder statesman of the party of Torah-as-give-and-take. Rabbi Akiva studied with both of them. In Rabbi Eliezer’s case, regarding sorcery, he came to Rabbi Eliezer and learned from him all sorts of laws, but he did not understand. He only said: this is the law, that’s all; he did not explain it to him. Why didn’t you ask Rabbi Eliezer for the explanation? Because Rabbi Eliezer apparently was not willing to give explanations. This is the law—what do you care about explanations? We don’t deal in reasons and logical arguments; I’m telling you what I received from my teachers, that’s all. He consistently continues his approach, of course. What does Rabbi Akiva do? He goes to his second teacher, Rabbi Yehoshua. And then it says: then he went and learned it from Rabbi Yehoshua, and he explained it to him. He went to Rabbi Yehoshua, told him the laws he had received from Rabbi Eliezer, and Rabbi Yehoshua also explained to him why those laws were correct. Meaning that basically one can see here, on the historical axis—but it is also an essential axis—that the Torah of tradition of Rabbi Eliezer and the Torah of give-and-take of Rabbi Yehoshua both converge in Rabbi Akiva. And Rabbi Akiva basically creates the synthesis between the Torah of tradition and the Torah of give-and-take. He received from both Rabbi Eliezer and Rabbi Yehoshua, because Torah cannot survive on tradition alone, but it also cannot survive on give-and-take alone. There has to be some give-and-take around a tradition. There is a skeleton of tradition, but around it there is room—and we’ll talk about this more—for logical argument, give-and-take, reasons, disputes, votes, and so on. And therefore I think Rabbi Akiva was basically the one considered to have carried Torah onward. This is the Talmud in Sanhedrin 86: an unattributed Mishnah is Rabbi Meir; an unattributed Tosefta is Rabbi Nehemiah; an unattributed Sifra is Rabbi Yehuda; an unattributed Sifrei is Rabbi Shimon; and all of them are according to Rabbi Akiva. And after Rabbi Eliezer and Rabbi Yehoshua passed away, the next generation is Rabbi Akiva. Again, “next generation” not necessarily in age, because he began studying very late, but among the tannaim the next generation is Rabbi Akiva, and all his students basically received the Torah from him. He gathered the whole Torah back together and passed it onward. And that gathering came after the Torah had split into two channels: a Torah of tradition and a Torah of give-and-take. It comes back together through Rabbi Akiva, and the Torah that reaches us today is basically Rabbi Akiva’s Torah, which is a combination of his two teachers, Rabbi Eliezer and Rabbi Yehoshua. And therefore it seems to me that in the end the conclusion of this whole story, the conclusion of this tractate that we see through all the passages we saw, is basically that halakhic thinking needs both faces: it needs adherence to tradition, but it also needs trust in give-and-take and in reasoning. And you cannot have one without the other, these two things, because if you go only with one of them, the whole thing cannot work. That is basically the claim. In this context there is a very well-known passage from Rav Kook, in his Ma’amarei HaRe’iyah. He writes there a letter of appreciation for the rabbi of Sochatchov—yes, the author of Avnei Nezer—when he died. So he writes this letter to his descendants who were sitting shivah there. So he says, ostensibly—he speaks there about Rabbi Eliezer, who said things “that no ear had ever heard before.” And on the other hand, we know that Rabbi Eliezer never said anything he had not heard from his teacher. We also saw earlier: “I did not diminish from my teachers except as a dog licking from the sea,” and so on, and he was attached to the Torah of his teachers. So Rav Kook says: ostensibly this contradicts the rule about Rabbi Eliezer’s quality, that he never said anything he had not heard from his teacher, so how could he say things no ear had ever heard before? And we must say that if the statement had been that he said things no mouth had ever said before, that really would contradict the rule that he never said anything he had not heard from his teacher. But since they said that no ear had ever heard them before, we understand that the mouth of the teacher, the father of Torah, Rabban Yohanan ben Zakkai, did say them. As if the mouth of Rabban Yohanan ben Zakkai said these things. But among all the listeners, Rabbi Eliezer the Great excelled in his deep listening, such that his ear heard in his teacher’s Torah what others did not hear. And so it turns out that he truly said nothing he had not heard from his teacher, and his Torah was a complete Torah that had a source. And nevertheless, it was entirely renewed through the power of his holy intellect. Of course, he applies this to the Sochatchover—he wants to say the Sochatchover was also like this—but what he says here about Rabbi Eliezer the Great is that on the one hand he said things that no ear had ever heard before, while on the other hand he never said anything he had not heard from his teacher. How do those fit together? The claim is that he heard from his teacher things that no ear had ever heard before. The others simply failed to hear what was actually contained in their teacher’s words. I would add even more and say that even his teacher himself did not understand what was coming out of his own mouth. And I think anyone who has had the chance to learn intensively from a teacher experiences this very clearly; at any rate, I can say that I experienced this very clearly. Meaning, there is a Jew from whom I think I learned almost everything I learned from a person, not from books. Yes, a Jew sitting in Bnei Brak—from him I learned most of what I learned. I don’t think he would agree with a single thing I say. But everything I say I learned from him. Broadly speaking. There are developments and so on, but the foundation—everything I say is basically built on what I learned from him. And he himself would not agree even if I told him that. He would not agree with what I say, and still I claim that this is in fact what he said. This is what is embedded within what he says. He himself does not always understand what, in my view, is really contained within the distinction he makes, or within the principle he states, or something like that. If you ask him, he will give one explanation, but I hear something else there. But I really think I heard it there. It is not an invention. I really think he missed something. Yes, somewhat like what they say—and I mentioned this one of the previous times—there is a very interesting debate in HaMa’ayan between Rabbi Yehoshua Hutner, one of the editors of the Talmudic Encyclopedia, and the Seridei Esh. They argued there about Rabbi Chaim and Maimonides. The claim was—I think, I don’t remember anymore who said what—it seems to me that the Seridei Esh said that Rabbi Chaim did not understand Maimonides. He said wonderful things, beautiful things, brilliant things, but not connected to what Maimonides intended. Meaning, Rabbi Chaim understood Maimonides very well, sometimes better than Maimonides understood himself. And therefore I say that even if Maimonides had been sitting in Rabbi Chaim’s study hall, like that aggadic story about Moses our teacher sitting in Rabbi Akiva’s study hall and understanding nothing, and then they tell him, “It is a law given to Moses at Sinai,” and he calms down—if it is a law given to Moses at Sinai, how did he understand nothing? Because there are interpretations that we give to the tradition we received from Moses our teacher, and those interpretations—even if we were to ask Moses our teacher—he would not understand that this is what is contained in his words. But in our hearing, and with our conceptual tools and our world of concepts, we understand that at least for us this is indeed what Moses our teacher said, or what Rabban Yohanan ben Zakkai said in this case. Therefore sometimes the student catches nuances in his teacher that even the teacher himself is not aware are there. And in that sense this is a very interesting combination, and I think it is not just a cute homiletic point—it is something that anyone who has learned from a teacher can recognize: there is a very interesting combination here of tradition with reasoning and give-and-take and interpretation. I receive a tradition, but that tradition—after all, no two prophets prophesy in the same style. When I explain the distinction we heard from our teacher, I will explain it this way; someone else who heard the same lesson with me will explain it differently, but both of us heard it from our teacher’s words. So what did he say? I don’t know. Maybe he said both things; maybe he intended one of them. But apparently both are present in what he said, regardless of whether he intended it or not. This is a little connected to different approaches in hermeneutics—whether I am looking in a book for the meaning the author wanted to embed in it, or whether the book has meaning in itself, or whether the book has no meaning at all except what is created in the reader, which is deconstruction. Those are the three basic approaches in hermeneutics. So here too the claim is that when I hear things from my teacher, sometimes I hear things that even he himself is not aware of, because he lives in a different conceptual world, and within my conceptual world I can uncover some angle that even he himself did not understand to be there, but it is there, and I heard it from him. Even though he himself does not agree, I learned it from him. And this is not a cute saying—it is something simple. And this is exactly the combination I am talking about in the name of Rabbi Akiva, who combines tradition with give-and-take. A combination of tradition with give-and-take means that I activate reasoning, and that does not contradict adherence to tradition. Assuming that tradition has reasons in it, has logic in it, then using reason is not a deviation from tradition; it is an understanding of tradition. And sometimes that can create disputes, since each person understands something different from the tradition he received, so there are disputes. But the assumption is that these and those are both the words of the living God. Both sides of the dispute are in fact there in some sense. And fine, we have an argument because we think differently and each of us emphasizes a different side. But basically it is not a contradiction: the recourse to reasons and interpretations does not contradict the matter of adherence to tradition. That is basically the claim. So if that is so, the conclusion in the end—or the next stage that needs to be dealt with—is that we are actually supposed to create some kind of synthesis between tradition and the operation of our own reasoning and logic, our own intellect. And this is a very sensitive matter, but it is impossible to escape it; no one can escape this issue. Very often when someone says something novel, people relate to it as if he is deviating from tradition—this is against tradition. People are not willing to understand that even what they think of as tradition is the way they interpret tradition. But that person who disagrees may offer a different interpretation of the same tradition, each according to how he thinks. For example, Rabbi Eliezer had a dispute with Rabbi Yehoshua about something, or with other sages. He was unwilling to accept it; he says: I have a tradition, I don’t care about all your reasons. But if he had examined things carefully and consciously, I think he would have been able to see that what he sees as tradition is actually the interpretation he gave to tradition. Only very often a person is not aware that the position he expresses is not really something he heard from his teacher; it is something he heard from his teacher together with the interpretation he made of it. And therefore someone else who gives a different interpretation is not going against tradition; he is simply interpreting it differently. A person who is not aware of this is convinced that what he is saying is the tradition. I have an uncle who said that Abaye and Rava definitely learned in Yiddish in Babylonia—why? Because a Belz Hasid sitting in Monsey today, Abaye and Rava learned just like him. That is what he is convinced of. Now I am convinced that they did not. Okay? But I do understand that there is something to what he says. Meaning, what he says is some interpretation that he gives, within his own period and time and society and culture, to the tradition he received from Abaye and Rava. In that sense I believe him that he is authentic. He really thinks that way. The simplistic Hasidim think that Abaye and Rava also wore a gartel and a shtreimel. Now of course those who are a bit more clear-eyed than they are do not think so, but essentially they do think so. Basically the gartel and the shtreimel are the true application of Abaye and Rava to our generation—that is their claim. This is the interpretation we give to the tradition we received from there. Maybe I’ll present it from another angle. A story: once I was at the Van Leer Institute or the Israel Democracy Institute, I don’t remember, one of those two dubious institutions in Jerusalem. I’m joking, of course. And there was a gathering there of rabbis. It was a gathering of Tzohar rabbis—I am not a member of the Tzohar rabbis, but they invited me to come because they thought I might perhaps have something to contribute there. And there was a discussion with jurists. Among them was a Supreme Court justice—what was his name? A religious man from Jerusalem, I forgot his name, professor at the Hebrew University, emeritus already, Englard. Professor Englard. He is a religious justice on the Supreme Court. And this was during the merry days of Aharon Barak, when he did whatever he wanted there and people went crazy, because the court was basically doing whatever it wanted, ignoring the law and the interpretations and essentially forcing the law into its private agenda. Yes, even though Aharon Barak has no agenda except to pursue the Byzantine. In any event, there was a very stormy, heated, emotional argument there, because there was enormous anger about the way the legal world was being run. The religious world was very angry—religious right-wing, yes? Things not all that different from what exists today, although the composition of the court is completely different. But the claims have not essentially changed. And that is really where it began; because in the period of Aharon Barak this was really a cornerstone or milestone in that process. In short, there was a discussion there, and all the rabbis accused the jurists: you do whatever you want, and so on. Now Englard spoke there. All in all he is a religious man, he knows the issue, knows this kind of material. It matters to him too, apparently; he wrote articles about it. He is probably a Torah scholar—I don’t know him personally, but from what he writes, a Torah scholar. And he said there: What are you talking about? This is all entirely professional, legal work, and the results are simply the product of professional legal thought. It has nothing at all to do with agendas. Agendas and values and worldviews—what are you even talking about? They don’t exist. So people were tearing their hair out in frustration—how can someone say such nonsense? The man is not an idiot. How can he say such nonsense? It is obvious to any reasonable person that the judges there are doing whatever they want. And today too, by the way, it’s the same thing. Check a whole series of judgments on charged issues. I have an argument about this with a good friend of mine who was also a very senior judge, and at one point was even a candidate for the Supreme Court. And I have an ongoing argument about it with him, and in the end he had to concede to me. I showed him judgment after judgment on controversial matters. The nicest case is the opening of grocery stores—the “grocery stores” Supreme Court case. There were three judges there—no, sorry, five judges. Two religious and three secular. The three secular judges ruled that grocery stores could be opened, and the two religious judges ruled that they could not be opened. The split was simply one-to-one. Now how did the judgment open? Miriam Naor wrote it; I think it was the judgment with which she ended her term. How did the judgment open? “You should know,” Miriam Naor writes—she wrote the majority opinion—“that this has nothing whatsoever to do with agenda. This is entirely a professional legal matter, completely detached from worldviews.” You look at the signatures after a hundred pages, I don’t know how many, you look at the signatures at the end: the three secular judges in favor of opening grocery stores, the two religious judges against. And these people continue reciting as though there is no connection here to agenda, and that this is all professional work. You could die. Now I say, so what? So I said to myself as I sat there—and I’m returning to that story—I sat there and said to myself: look, Englard is not an idiot. So he is saying something. Let’s try to understand what actually lies behind what he is saying. Then I tried to do a bit of reflection for myself—and this is just an exercise that it is worth doing from time to time. After all, I’m not a jurist, but I understand Jewish law, halakhic give-and-take. Now I see claims coming from the broader public, including the religious public but not only, saying that rabbis do whatever they want. It is all a matter of agenda. Tell me which rabbi you asked, and I’ll tell you what the answer will be. Right? Claims that you hear all the time. Now I know that world better than I know the legal world. I know the legal world too, but I am not a jurist, not a professional in that field. But I know the halakhic world better. Okay? And I do not agree with that statement. I have to tell you, I do not agree with that statement. Clearly there is a correlation between a decisor’s worldview and the ruling he gives, at least on issues where that is relevant, because I am not speaking about neutral questions. Okay? I do not agree that there is no truth and falsehood here and that persuasion is impossible. That is not true. And if you bring good proofs and corner him, I think there are cases where he will be honest enough to say: you’re right, even though in terms of his worldview he is not there. And such things have happened. Therefore, the fact that there is a correlation between your agenda and the interpretation you give to Jewish law or to law does not mean that you are not loyal to the law, that you are doing whatever you want. That is not true. Clearly, when I interpret Jewish law or law, that interpretation is nourished by my ways of thinking. And therefore my interpretation and someone else’s interpretation—someone who thinks differently or has different values—will be different. But that does not mean we are doing whatever we want. On questions where there are two sides, then yes, naturally I will choose one interpretation and he will choose another, in line with our worldviews. But if he brings a good proof, then I will retreat. Then I will say: no, you’re right, because I am loyal to tradition. I am not doing whatever I want. I am basically offering an interpretation of tradition in Jewish law, or of law in the legal context. The fact that there is a correlation between the mode of thought and the value-world of the decisor or judge and his ruling is certainly true; it cannot be denied. But it is not true that he is not working professionally, and it is not true that he is not faithful to the legal system. That is truly how he interprets the legal system. If you ask him, that is how he interprets it. And usually a judge, and even more so a halakhic decisor, does not have self-reflection about where his interpretation comes from—and that is a good thing, by the way; in my opinion he shouldn’t have to. He simply looks at the sources, at the texts, at the case, and reaches a conclusion. He says what seems to him should be done in such a case. That is what should be done. Then the researcher from the side will ask himself why this judge or decisor reached such-and-such a conclusion while those who disagree—the other judge or decisor—disagreed with him and reached a different conclusion. The researcher of that judge or decisor will say: this stems from his world of values, from his study hall, from all sorts of things like that. But that is the researcher’s business, not the decisor’s own business. And I think that also illustrates this point: many times we have the feeling that since in the end it all depends on logical arguments and each person goes with his own agendas, then there is no real loyalty to tradition. Everyone does whatever he wants, tradition has no meaning, everyone does whatever he wants and that’s it. That is not true. The combination is a much more delicate combination, but it exists. And tradition has meaning. If you bring good proofs, then if the person is intellectually honest, he will give up his conclusion even though it contradicts his agenda. Because he will understand that there are good proofs against him. True, where there are arguments both ways, each person will interpret according to his own world, his worldview—but that is how it is built. When we interpret sources, clearly part of the interpretation is also our values. Our values take part in the interpretation. Didn’t the sages do this? When the sages said “an eye for an eye” means monetary compensation, or when the stubborn and rebellious son “never was and never will be” because they imposed impossible conditions for it to apply—I assume that their value-world also took part there. When we interpret something, it is not only verbal interpretation. It is also interpretation according to reasoning and according to purposes and according to arguments. On the contrary, as is commonly said in the yeshivot, this is basically the Beit Yosef in Yoreh De’ah, in the laws of vows. The Beit Yosef writes there that it is preferable to strain the language than to strain the reasoning. If there is something that is illogical, then it is better to make it logical even at the price of forcing the language, because forcing the reasoning is worse than forcing the language. And this basically says that even when we interpret our tradition and are completely faithful to it, that does not mean we will all arrive at the same result. The result depends also on the interpreter, not only on the interpreted text.

[Speaker B] What does “forcing the language” mean?

[Rabbi Michael Abraham] To strain the wording. To interpret it somewhat artificially. It says, “an eye for an eye.” In the simple sense that’s not money, it’s an eye. But we strain the wording and interpret it that way anyway, because by reasoning it seems to us that this is what should be there. I’m just using this verse as an example, but there is a verbal analogy, “under” and “under”; we’re not just doing this without any basis. There is a verbal analogy. But the basis for that verbal analogy, I assume, was the sages’ conception that says we do not gouge out eyes; rather, we interpret it as collecting money. Meaning, in the end, after we have that reasoning, if there were no verbal analogy of “under” and “under,” we would not do it. Reasoning alone is not enough. It has to be anchored in the interpreted text. Therefore it is not true that when people use logical arguments and agendas enter in, there is no loyalty to tradition. That is not true. Loyalty to tradition means that I cling to tradition and its interpretation. But interpretation depends on agendas and values and conceptions and intuitions and cultural worlds and many things. That is just the way it is. Interpretation is part of interpretation. And therefore the fact that disputes arise does not mean there is no loyalty to tradition, and this closes the circle of Rabbi Eliezer and Rabbi Yehoshua: Torah of tradition and Torah of give-and-take come together. Because the whole purpose of give-and-take is to arrive at the correct interpretation of the tradition we received. And anyone who thinks it can be copied as-is without activating interpretation is simply not self-aware. Because there is no such thing. Every person who describes the tradition always involves some kind of interpretation. And if he does not admit it, then he is simply not aware of it. But it is always there. There is no such thing as my telling you the tradition as-is, without inserting any interpretation of my own. There is no such thing in the world. As Rabbi Yehoshua says in the Talmud passage we read in Chagigah: there is no study hall without novelty. There is no such thing. You will never be able to repeat something that someone told you without there being some nuance of novelty in what you say, compared to what he said. There will always be some difference. Question.

[Speaker C] Yes. Why shouldn’t the decisor himself also investigate where his ruling comes from?