The Social Teaching of Rabbinic Judaism, Part I: Corporate Israel and the Individual Israelite

T H E S O C I A L T E A C H I N G O F RABBINIC J U D A I S M

THE SOCIAL TEACHING OF RABBINIC JUDAISM Corporate Israel and the Individual Israelite PARTI

BY

J A C O B

N E U S N E R

' / 68‫' ל‬

BRILL LEIDEN · BOSTON · KÖLN

2001

This book is printed on acid-free paper.

Library of Congress Cataloging-in Publication data

Neusner, Jacob, 1932The social teaching of rabbinic Judaism / Jacob Neusner. p. cm. Includes bibliographical references and index. Contents: 1. Corporate Israel and the individual Israelite — 2. Between Israelites — 3. God's presence in Israel. ISBN 9004122613 (set) — ISBN 9004121900 (cloth : v. 1 ) — ISBN 9004121919 (cloth : v.2) — I S B N 9004122605 (cloth : v.3) 1. Sociology, Jewish. 2. Judaism and the social sciences. 3. Social sciences—Philosophy. 4. Rabbinical literature—History and criticism. 5. Interpersonal relations—Religious aspects—Judaism. 6. Jewish families-Conduct of life. 7. Conflict management—Religious aspects- Judaism. 8. Presence of God. 9. God (Judaism) I. Tide. HN40.J5 N48 2001 296.3'8—dc21

2001035208

Deutsche Bibliothek — CIP-Einheitsaufnahme Neusner, Jacob:

The social teaching of Rabbinic Judaism / by Jacob Neusner. - Leiden ; Boston ; Köln : Brill, 2001 ISBN 90-04-12261-3

1. Corporate Israel and the individual Israelite. - 2001 ISBN 90-04-12190-0

ISBN ISBN

90 04 12190 0 90 04 12261 3 (set)

© Copyright 2001 by Koninklijke Brill NV, Leiden, The Netherlands All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in anyform or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permissionfromthe publisher. Authorization to photocopy itemsfor internal or personal use is granted by Brill provided that the appropriatefees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910 Danvers MA 01923, USA. Fees are subject to change. PRINTED IN T H E NETHERLANDS

T A B L E

O F

C O N T E N T S

Preface 1.

INTRODUCTION

ι. il. πι. IV. v.

vi.

2.

vu

T h e Theological Cogency of Rabbinic Judaism: Documentary Evidence T h e Theological Cogency of Rabbinic Judaism: [b] T h e Category-Formations Normative and Schismatic: H o w D o We K n o w the Difference? [a] Formal Evidence. Logic Normative and Schismatic: H o w D o We K n o w the Difference? [b] T h e Canonical Signals of Normativity Native Category-Formations and C o n t e m p o r a r y Inquiry: H o w to M a t c h the Answers of the Halakhah and of the Aggadah to the Questions of Social Philosophy T h e First Teaching: Corporate Israel and the Individual Israelite

3 9 19 25

30 40

INDIVIDUATION AND P E R S O N A L A U T O N O M Y : T H E ISRAELITE AND C O R P O R A T E ISRAEL

44

ι. IL HI. IV.

44 49 53

Israel and the Individual Israelite Individuation H o w the Individual Israelite is Differentiated: Arakhin Halakhic Recognition of Individual Virtue: Berakhot, Taanit v. Idiosyncrasy: Nazir and N e d a r i m vi. Individuation and Personal Autonomy in J u d a i s m . . . 3.

1

R E A L I Z I N G C O R P O R A T E ISRAEL

From Individual to Community: Where and H o w Does Corporate Israel T a k e Shape? IL H o w the Individual Takes a Place within the Social Construct, Israel: Sheqalim HI. H o w the Individual Situates Himself within Israel: Bikkurim

65 78 97 104

I.

104 108 116

VI

CONTENTS

IV. Nurturing Community: Ownership and Possession. Shebi'it v. Reinforcing the Bonds of Community. Relinquishing Ownership in Favor of Possession. Erubin-Shabbat vi. T h e Halakhic Definition of Israel, Individual and Corporate 4.

134 157

W H E N ISRAELITES D O N O T L I V E U P T O T H E N O R M S OF C O R P O R A T E ISRAEL

ι. IL HI. IV. v.

5.

124

T h e Social Hierarchy of Rabbinic Judaism: Corporate Israel at the Apex Accommodating Acceptable Difference: Tolerated Law-breaking. D e m a i Negotiating with Widespread Indifference: Assessing Probabilities of Conformity to the Law. T o h o r o t . . . . Interstitiality: Dealing with Matters of Doubt. Tohorot Intentionality: W h e r e Israelite and Corporate Israel Cohere

162

162 166 177 187 201

W H E N ISRAELITES DELIBERATELY T R A N S G R E S S T H E N O R M S OF C O R P O R A T E ISRAEL

208

ι. Intentionality: W h e r e the Israelite and G o d Conflict IL Expiation of Inadvertent Sin. Keritot m . Removing the Aberrant Individual from the Social O r d e r : Negaim IV. Restoring the Deliberately Sinful Individual to the C o m m u n i t y of Israel: Sanhedrin-Makkot v. T h e Responsibility of the Individual when the C o m m u n i t y Collectively Errs: Horayot vi. Eternal Israel and the Individual Israelite's Conquest of Death

208 221

Index

225 241 248 255 259

P R E F A C E

The Social Teaching of the title invokes the classic work in the study of religion a n d society, Ernst T r o e l t s c h ' s The Social Teaching of the Christian Churches.1 H e r e I begin the work of providing an account of the same m a t t e r out of the classical sources of J u d a i s m in its formative age. Rabbinic Judaism makes reference to the system set forth in the aut h o r i t a t i v e writings of the f o r m a t i v e age of t h a t J u d a i s m in the M i s h n a h , T a l m u d s , a n d M i d r a s h . I translate into the categories of social philosophy principal parts of the classical writings of R a b b i n ic J u d a i s m in its formative age, the first six centuries C.E. T h e canon divides into a system of norms of behavior a n d a counterpart construction of n o r m s of belief, H a l a k h a h law, a n d A g g a d a h , lore, respectively. W h a t I m e a n to d e m o n s t r a t e is that the normative canon, in both Halakhic a n d Aggadic modes, embodies a vast, cogent p r o g r a m for the o r d e r i n g of Israel's society. In that p r o g r a m the H a l a k h a h a n d the A g g a d a h , each in its native category-formations, address a range of issues of c o m m o n concern to social philosophy a n d general intelligibility to h u m a n i t y at large. In the present, initial statement I c o n c e n t r a t e on the H a l a k h a h . In d u e course I shall address the A g g a d a h , invoking the H a l a k h a h as the control a n d the norm. Let m e explain f r o m the beginning: the point at which I first conceived such a project. T h e work b e g a n when I was in g r a d u a t e school a n d Rabbinical school. It is a case of theology-envy, a practicing J e w a n d scholar of J u d a i s m finding a m o d e l in intellectual achievements in the study of a kindred religion. Specifically, I met Troeltsch's book in m y last two years at the Rabbinical School of the Jewish Theological Seminary of America, w h e n , f r o m 1958 to 1960, I also studied for m y D o c t o r a t e in Religion in the j o i n t p r o g r a m of C o l u m b i a University a n d U n i o n Theological Seminary. T h e n I e n c o u n t e r e d the classical 1

Ernst Troeltsch, The Social Teaching of the Christian Churches I-II (New York and Evanston: Harper & Row) Translated by Olive Wyon. With an Introduction by H. Richard Niebuhr.

VIII

PREFACE

writings of the discipline of religious studies as set forth in mid-century. For m e , these were years of discovery. I h a d f o u n d at J T S A m y life's vocation, the T a l m u d a n d associated classics of J u d a i s m , a n d now, at C o l u m b i a - U n i o n m y métier, the study of J u d a i s m in the f r a m e w o r k of the study of religion. T o m e it was springtime. Studies at J T S A h a d already shown me the sources on which I wished to spend m y life, the classical sources of R a b b i n i c J u d a i s m represented by the w o r d , "the T a l m u d . " At C o l u m b i a - U n i o n I went in search of a p r o g r a m of inquiry: what, exactly, might one w a n t to learn in the study of those sources? T h a t is a question I knew I would not find answered in the J T S A class room or in the work of its premier scholars, or at the c o u n t e r p a r t centers of J u d a i c learning in J e r u s a lem or elsewhere. I b r o u g h t that question to C o l u m b i a a n d because of the r e a d i n g (but not the class r o o m instruction) I e n c o u n t e r e d a rich literature of response: models of learning for the guidance of a y o u n g scholar w h o knew a little about the sources but less still a b o u t w h a t to d o with t h e m . I thought of myself as a historian—in J u d a i c learning o f t h a t day that was s t a n d a r d — b u t enrolled in the D e p a r t m e n t of Religion at C o l u m b i a , because I r e g a r d e d its intellectual p r o g r a m as c o n g r u e n t to the sources that engaged me, and that of the D e p a r t m e n t of History as dull. Finding fresh a n d new some of the e n d u r i n g works of m y discipline, the a c a d e m i c study of Religion, I read works in the theory of religion, e.g., M a x W e b e r a n d Emil D ü r k h e i m , as well as c o u n t e r p a r t studies of Christianity, Islam, Buddhism, Zoroastrianism, a n d the rest. All the time I p u r s u e d m y quest of models for myself, for my own intellectual realization. A n d a m o n g the m a n y classic books listed for the general examination were two I perceived as the models of intelligence in the study of a religion. O n their account I envied Christianity. T h e s e were Troeltsch's, Social Teaching a n d H . R i c h a r d N i e b u h r , Christ and Culture.- I a d m i r e d both a n d still do. T h a t is because each organized in intelligible structures vast bodies of representative d a t a on critical questions of the study of religion a n d the social order, encompassing the formation of culture. Both f o r m e d of complex d a t a interesting a n d coherent, systematic statements. E a c h p r o d u c e d a whole that exceeded the sum of the parts. In these systematic works of theology of an applied order, they t r a n s f o r m e d i n f o r m a t i o n into useful knowledge. For Christianity, 2

H. Richard Niebuhr, Christ and culture (N.Y., 1951: Harper).

PREFACE

IX

then, the a c a d e m y knew a n d u n d e r s t o o d f u n d a m e n t a l matters. For J u d a i s m , there was then no c o u n t e r p a r t construction. 1 And for the study, within the humanities, of religion a n d society, there still are few models to follow, few efforts on which to improve, such as we have in a b u n d a n c e for literary a n d historical study. T h a t is to say, for the description, analysis, a n d interpretation of J u d a i s m in society a n d culture I did not know how to do the work in a m a n n e r c o m p a r a b l e to Troeltsch's. 1 1 could not point to anyone w h o did. Models of systematic study of either J u d a i s m a n d society or J u d a i s m a n d culture were lacking. Salo Baron's Social a n d Religious History, Volume II, hardly qualified; he had the topics right, but lacked analytical a c u m e n . By contrast, Troeltsch viewed things whole a n d in context a n d engaged with a p r o g r a m of d e p t h a n d r e m a r k a b l e aptness. For J u d a i s m the established p r o c e d u r e of the historians (and not for t h e m alone)—for any topic or a r e a of learning—was to cite out of all context of interpretation episodic sayings representative of n o one knows w h a t . T h e primitive p r o g r a m of inquiry consisted principally of h u n t i n g a n d gathering sayings on a m e n u of topics, not of rationally describing, cogently analyzing, a n d systematically interpreting entire compositions of thought. But that was w h a t I f o u n d to constitute the a c h i e v e m e n t of T r o e l t s c h for Christianity in the social o r d e r a n d N i e b u h r for Christianity a n d culture. Both books sustained discourse on a d e t e r m i n a t e Christianity, whole a n d complete, not just cases a n d instances of an unarticulated system. For intellectual achievements such as these J u d a i s m possessed n o c o u n t e r p a r t s in English, G e r m a n , French, or H e b r e w , to which I now m a y add, Italian, Spanish, or Swedish. W h a t was at stake? R e a d i n g Troeltsch a n d N i e b u h r , I f o u n d that people could u n d e r s t a n d the social and cultural dimensions of the religion, Christianity, in the requisite diversity and complexity and fullness. But none could similarly show h o w to grasp J u d a i s m , however defined, in w h a t e v e r c o n t e x t , e m b o d i e d in w h i c h e v e r a u t h o r i t a t i v e sources. 1

Nor does an exception present itself in my Judaism in Society: The Evidence of the Terushalmi. Toward the Natural History of a Religion. (Chicago, 1983: T h e University of Chicago Press. Second printing, with a new preface: Atlanta, 1991: Scholars Press for South Florida Studies in the History of Judaism). As the title indicates, I concentrated on a single document, not on the evidence representative of the entire canonical corpus that constitutes and defines the religion system, Rabbinic Judaism, in its formative age. 4 That is not to dismiss out of hand Martin Buber's ventures, but he was a philosopher, not a historian, of religion, in the model of Troeltsch.

Χ

PREFACE

Systematic learning in J u d a i s m in the intellectual f r a m e w o r k of the West h a d yet to d o work of a c o m p a r a b l e order: comprehensive, c o h e r e n t , whole. I then f o r m e d the ambition of providing for J u d a i s m c o u n t e r p a r t studies. After four decades of learning that has continued in succèssive, large-scale projects f r o m one to the next in a fairly straight line, each project a scathing critique of the failures of the one before, I a m ready to try. H e r e I begin, then, to u n d e r t a k e the task of f r a m ing a c o u n t e r p a r t , for J u d a i s m , to works of the social a n d cultural description of religion that realized the goals set for themselves by Troeltsch a n d N i e b u h r . In this project I m e a n to realize the first part o f t h a t ambition, hence the promise of the title of this book a n d the series I anticipate starts here. At this writing, I c a n n o t imagine what a Torah and Culture would look like, even w h a t its category-formations might c o m p r e h e n d . 5 T h e work of formulating a c o u n t e r p a r t problem and identifying the pertinent data has scarcely begun. I know only that, if it is to be done, N i e b u h r has shown the m o d e l of suecess. But for the social teachings ofJ u d a i s m , matters are otherwise. T h e very systematic a n d orderly presentation of the H a l a k h a h , n o r m a tive law, of J u d a i s m , not in r a n d o m but in considered o r d e r a n d construction, makes the work entirely feasible. N o one has to invent a system, only discern one. T h a t m e a n s to identify, analyze, a n d interpret the a l r e a d y - f o r m e d p a t t e r n s of data. A n d the question I b r i n g to the d a t a fits the d a t a a n d in n o way distorts t h e m . For J u d a i s m makes its principal statements in response to a p r o g r a m of social reconstruction; it speaks t h r o u g h the details of n o r m s of law a b o u t the c o m m u n i t y , Israel, a n d it maintains that it is G o d who, in detail, has revealed that law. So the work requires a r e a d i n g of d a t a in its natural condition. N o huge labor of category-reformation is required to interrogate J u d a i s m in its n o r m a t i v e sources a b o u t a p r o g r a m of social inquiry. In the Introduction, I spell out precisely h o w I propose to proceed. It suffices here to indicate the context in which I work, set, as I said, by the simple fact that we know a b o u t Christianity things that we c a n n o t yet know a b o u t J u d a i s m , things ' Ephraim Shmueli's Sheva' tarbuyot Tisra'el — Seven Jewish cultures : a reinterpretadon of Jewish history and thought, translated from the Hebrew by Gila Shmueli. (Cambridge; New York: Cambridge University Press, 1990) concerns itself with historical periodization, not phenomenological analysis.

PREFACE

XI

both that matter now and that dominate discourse in the authoritative writings of the faith. But for obvious reasons the project does not claim to compare religions or to find its p r o g r a m in Troeltsch's work. His program a n d problematics in all their historical specificity hardly prove congruent to the Halakhic structure that sustains, and the Aggadic system that animates, Rabbinic Judaism. A work of comparison with Christianity (or Islam), a systematic encounter with Troeltsch's categories (and history) at this point does not pertain. In its autonomy, like any other religious system, J u d a i s m remains wholly other, not just a religion to be described, analyzed, and interpreted in relationship to some other, e.g. Christianity or to Islam or any other world-religion possessed of high ambitions for shaping humanity's culture and society. So I do not for one minute promise a copy, for J u d a i s m , in Troeltsch's model. Nor do I fill in the empty spaces on a questionnaire devised for Christianity or Islam or Buddhism. Troeltsch addressed "the significance and nature of the varying forms of religious fellowship, the underlying characteristics of the Christian Ethos in its relation to the ethical problems and tasks of secular life, and the inner connection of each formulated dogma to a fellowship group more or less affected by it." 6 T h a t does not capture the context of social teachings set forth in the Judaic system that to begin with knows no distinction between secular and sacred except within the taxonomy of the sacred. Troeltsch shows how to ask the f u n d a m e n t a l question of the social order d e m a n d i n g systematic response. But admire as I do his result, it does not from the get-go guide me in the design of this work. As I explain in the Introduction, my design of the project responds solely to the character of the evidence of normative Judaism: first, in its classical Halakhic works, then, in the Aggadic ones. T h a t is because—as I shall try to show—the corpus of data both Halakhic and Aggadic—that here stands for J u d a i s m , the writings of the formative age, together make not only a coherent but an autonomous statement. It is one framed within its own logic. It is formulated in accord with its own rules. It draws criteria of fact and truth out of its own authoritative sources of revealed truth and compelling reason. It is framed in response to a set of questions particular to the world-order contemplated by those who m a d e that statement. T h a t (i

Troeltsch, p. 20.

XII

PREFACE

is why J u d a i s m the religion cannot ask itself to adopt, or adapt itself to, the organizing categories, whether practical or intellectual, of any other religion. Each principal religion of humanity that, like Christianity, J u d a ism, and Islam, is possessed of an intellectual heritage that sustains systematization and rationalization and that defines its own structure of category-formations. Every one identifies for itself an urgent question, sometimes chronic, sometimes acute, deriving from its own social ecology. All of them claim to possess a unique truth about the things that matter, and every religious tradition defines for itself what makes a différence. Troeltsch's particular p r o g r a m for Christianity defines no p r o g r a m of inquiry for J u d a i s m , nor should it. Juxtaposing Paul's Christology to Aqiba's doctrine of m a r t y r d o m suffices to show the limits of comparison and contrast. Here too, Troeltsch dealt with the vast corpus of Christian thought and experience in its framework. Along these same lines I address J u d a i s m in its formative context, within its distinctive category-formations that select and impart significance to all facts deemed generative. I invoke Troeltsch's name for my reason, which is that, for a theology of the social order he represents Christianity in a systematic and orderly m a n n e r , responding to the requirements of both historical and philosophicaltheological learning. Here for comparable issues, I mean to do the same for J u d a i s m . But I cannot think of a more effective way of defining my model, by the criterion of which the success of this work is to be judged, than by invoking the ambition of Troeltsch expressed in his title. I planned this work and discussed it from day to day with my colleague at the University of South Florida, Professor D a n n y Jorgensen, who works in the social study of religion, and with Professor William Scott Green, University of Rochester. In addition I consulted Professor H e r b e r t Basser, Q u e e n s University, Professor Robert Segal, Lancaster University, Professor José Faur, Bar Ilan University, and Professor Guenter Stemberger, University of Vienna, and found their responses uniformly helpful. J A C O B NEUSNER BARD COLLEGE

1. I N T R O D U C T I O N

T h e mythic monotheism that is set forth in the T o r a h , written and oral, through the statement of both norms of belief (Aggadah) and norms of behavior (Halakhah) portrays a rigorously cogent theological structure and system. In the present project I propose to demonstrate that that same mythic monotheism of Scripture and R a b binic tradition lays out a social philosophy of an equally coherent and encompassing character. This we discern in the corpus of law and lore that embodies normative J u d a i s m , beginning with law. So, for both theology and social philosophy, I here continue to describe, analyze, and interpret the religion—system and structure—defined by the Rabbinic sages in the first six centuries C.E. T h r o u g h norms of behavior in small things and norms of belief in matters of detail, I maintain, the Rabbinic writings express both a cogent theology and a coherent social teaching. But while we are able to decipher theology's main outlines and principal parts and how they fit together, 1 the social teaching awaits systematic description, analysis, and interpretation. Yet none can doubt that, in response to the T o r a h and the Prophets with their stress on the imperatives and implications of theology for the social order, the Rabbinic sages in their canonical writings set forth a social philosophy that exhibits an equally systematic character. But I do not know who has succeeded in defining it as Troeltsch and his coworkers have defined its counterpart for Christianity. It is only as a matter of hypothesis that, at this time, we may speak of "the social teaching of Rabbinic Judaism." G r o u n d s for thinking so, nonetheless, are solid. Rabbinic J u d a i s m sets forth cogent statements on the public life of the Israel it proposes to define. These statements are shown in the applied reason and practical logic of the T a l m u d s everywhere to cohere. T h e Talmudic quest for harmony and coher-

1

See my Theology of the Oral Torah: Revealing the Justice of God (Montreal and Kingston, 1998: McGill-Queens University Press), for the Aggadah, and The Theology of the Halakhah (in press), for the Halakhah.

2

CHAPTER ONE

ence of principle behind detail bespeaks the conviction that the norms realize a generative social philosophy. Beginning here, moreover, we shall see that the authoritative d o c u m e n t s sustain a systematic response to perennial a n d ubiquitous questions c o n f r o n t i n g h u m a n i t y in society. W h a t is required, then, for theology a n d social philosop h y alike is a single exercise. It is one that entails interrogating the R a b b i n i c c a n o n in a philosophical r e a d i n g in quest of the c o m p o nents of the principal social, as m u c h as theological, structure of Rabbinic Judaism. But the d o c u m e n t s provide only details, this a n d that a b o u t one small thing after a n o t h e r . T h e d o c u m e n t s are read episodically a n d atomistically as well. So these days people d e b a t e w h e t h e r R a b b i n ic J u d a i s m is comprised only by masses of d a t a or embodies a large and coherent construction of thought. M a y we speak of theology and social teaching at all, or only masses of incoherent sayings on topics d e e m e d theological or social? At issue in p a r t is h o w we conceive the religious discourse of R a b b i n i c J u d a i s m , to be carried on: bit by bit or whole a n d complete? For both theology a n d social philosop h y the generative question f r a m e d in c o n t e m p o r a r y inquiry is the same. In Theology of the Oral Torah: Revealing the Justice of God, I have already shown that the documents yield an encompassing and coherent theology. So for m e , the question is, does the theology of R a b b i n i c J u d a ism c o m e to expression also in a system of thought for the (theoretical) governance of society? O r do we possess, in the Rabbinic canon, merely a collection of topical sayings relevant to the social o r d e r , sayings lacking all inner cogency and logic? Given the allusive quality, the diversity a n d the elliptical, t r u n c a t e d c h a r a c t e r of the R a b b i n i c discourse, we cannot dismiss the question as impertinent. It pertains because it simply m a t c h e s the diffuse a n d discontinuous discourse of the R a b b i n i c d o c u m e n t s . T h e s e are comprised by m u c h detail, little generalization. T h e y only rarely c o n t a i n sustained effort of reformation and reconstitution of episodic observations, whether legal or theological, into imposing constructions of ideas: doctrines a n d principles. T h a t q u e s t i o n — d e f i n i n g principal parts of the social philosophy of R a b b i n i c J u d a i s m — c a n n o t find its answer in the primitive work of m e r e h u n t i n g a n d gathering, the collection a n d a r r a n g e m e n t of sayings on social philosophy. N o one can d o u b t that the c a n o n is rich in topical episodes that qualify as social teaching, for example,

INTRODUCTION

3

" D o not separate yourself f r o m the c o m m u n i t y , " " W h a t is hateful to you d o not d o to your fellow, , ‫ י‬or similar sentiments. Everyone knows that sages in the formative documents—the Mishnah, Midrash, a n d T a l m u d s — m a d e occasional remarks a b o u t the social order. Not only so, but b o t h the topical p r o g r a m of the H a l a k h a h a n d the h o r t a t o r y a n d narrative exercises of the A g g a d a h leave n o g r o u n d s for d o u b t that the condition of the social o r d e r of Israel engaged Rabbinic thinkers, as Moses and the prophets had focused upon social justice. But can we speak of a coherent social teaching—a social philosophy? I believe we can, a n d in the present project, starting here, I intend to show how. C o r r e s p o n d i n g to the sacred theology already d e m o n s t r a t e d to impart coherence to, a n d animate, the whole, such a philosophy will likewise be put on display. It will be shown here to constitute a large a n d well-composed structure of doctrine. T h a t structure is sustained by a consistent policy, set forth by R a b b i n i c J u d a i s m in its normative writings.

I. The Theological Cogency of Rabbinic Judaism: Documentary Evidence W h a t validates a n inquiry into the social m o d e l that defines the context of R a b b i n i c sayings a n d laws pertinent to questions of social organization is an established fact. R a b b i n i c J u d a i s m realizes a coherent theological system, which p e r m e a t e s its normative statements of lore (Aggadah) a n d law (Halakhah). T h a t is the system that articulates a simple theological starting point: there is only one G o d , unique a n d omnipotent, just a n d merciful. T h e n the dialectics o f t h a t f u n d a m e n t a l theological affirmation generates an unfolding response to the logical question: if o m n i p o t e n t , then given the state of the world, h o w can he be just, a n d if just, h o w o m n i p o t e n t , seeing the prosperity of the wicked a n d the misery of the righteous? E n c o m passing doctrines spun out by the dialectics of justice, the theological narrative conveyed t h r o u g h mythic m o n o t h e i s m yields secondary developments. E a c h solves a logically prior p r o b l e m a n d raises a logically c o n s e q u e n t question for a t t e n t i o n . T h e n , seen whole, nearly the entire corpus of theological statements that b e a r the signals of n o r m a t i v e standing (a m a t t e r defined in a moment), mostly narrative but occasionally legal, coheres. T h a t f u n d a m e n t a l p r o p o -

4

CHAPTER ONE

sition of the theological cogency of Rabbinic J u d a i s m for the formative age I have now demonstrated in its fullness. W h a t in the conduct of the faithful indicates that Rabbinic J u d a ism builds upon the deep theological foundations, each sector congruent with all others, that I have defined? T h e virtuosi of Rabbinic Judaism, masters of its canonical writings and authorities for their concrete realization in holy Israeli life, through time have conducted their religious discourse entirely within that premise. T h a t is shown first of all in concrete ways. T h e y cite all sources, Scriptural and canonical-Rabbinic, interchangeably. W h e n the representatives of that Judaism, from ancient times to the present, speaking in the name of the T o r a h of Sinai, freely quote legal and theological dicta taken whether from Scripture or from any Rabbinic compilation, they act in accord with the stated premise. For, without regard to laws' or sayings' origin in time or in one document rather than some other, the virtuosi attest to, and by what they say they act out, their conviction that everything coheres. T h a t conviction is not to be ignored. T h r o u g h these promiscuous citations without regard to period or circumstance, of connected documents from Scripture through the T a l m u d — a thousand years of writing by our count—the masters of the system thereby affirm their j u d g m e n t o f t h a t which frames their faith. In their experienced perception, a single logic governs. T h e y maintain through modes of applied thought and practical expression—rightly—that the whole forms a massive, coherent system, resting on solid, common bases in reason and in doctrine. T h e applied reason and practical logic that implicitly prevail admit no possibility that what is true here is false there, the same circumstances prevailing. A single structure and system come to expression everywhere. In concrete terms: G o d is not one and also many, omnipotent and also subject to coercion, just and unjust, rational and irrational in accord with the shared rationality of justice (e.g., "will not the J u d g e of all the earth do justice?"). T h a t is why the Rabbinic masters assume that each part, however small or obscure or unimportant, works with all others to make a single statement. For them all parts tell the same story. T h a t is so for theology, defined within the conventional p r o g r a m of monotheism, with its generative problem of divine justice. And so I propose to demonstrate for the social teaching of the same canonical statement of the normative system ofJudaism. A sentence from here, a story from there, a law from the third point—all refer

INTRODUCTION

5

back to a c o m m o n model for the social order, a philosophy, a corpus of social teaching that define the norms of Israel, the holy community. 2 T h a t is because, treating all parts as uniform and consistent with all others accords with the character of the literary evidence that embodies that J u d a i s m . It is the fact that a cogent structure of theology—basic doctrines concerning how humanity knows God and what G o d in self-revelation has m a d e known to humanity through the T o r a h — g o v e r n s throughout. But it is hardly sufficient to point for proof to the conduct of the religious virtuosi of Rabbinic J u d a i s m . Only evidence of coherent systemic logic and structure can decisively attest to the same fact. T h a t Rabbinic J u d a i s m builds upon a uniform theological foundation in the documents of the Halakhah and the Aggadah is clear when we interrogate the canonical documents of that J u d a i s m for their theology. T h e n a single, linear, continuous theological narrative emerges: the narrative formulation of the theological system of Rabbinic Judaism's monotheism. T r u e , r a n d o m , episodic opinion assigned to one authority or another can be found on all sides of many issues (if not the generative ones). But the category-formations that the diverse documents yield cohere. T h e media for the organization of data into intelligible statements, these category-formations form large, solid building blocks for the construction of a solid structure. O n c e we perceive how the category-formations shape discrete data into coherent and encompassing statements, we see the principal parts of that structure and how they hold together. 5 2

My original motivation in investigating whether and how the theologoumena of the formative documents cohere was to find out how the documents are not only autonomous from one another and partially connected with one another but also continuous all together. This is spelled out in the prefaces of The Unity of Rabbinic Discourse. (Lanham, 2 0 0 0 : University Press of America. S T U D I E S IN A N C I E N T J U D A ISM SERIES I-III) and The Aggadic Role in Halakhic Discourse. (Lanham, 2 0 0 0 : University Press of America. S T U D I E S IN A N C I E N T J U D A I S M S E R I E S I-III). There is no need to dwell on the problem of autonomy, connection, and continuity of the documents that comprise the formative canon of Rabbinic Judaism. It suffices to say, any study of whether and how doctrines cohere forms a chapter in the investigation o f t h a t literary problem precipitated by the documentary reading of the Rabbinic canon. Admittedly, the problem confronts only those who to begin with differentiate the canonical documents from one another. :i On the character of the Halakhic and Aggadic category-formations, see my The Hermeneutics of the Rabbinic Category-Formations: An Introduction. (Lanham, 2 0 0 0 : University Press of America. S T U D I E S IN A N C I E N T J U D A I S M SERIES); The Comparative Hermeneutics of Rabbinic Judaism. Volume One. Introduction. Berakhot and Seder Mo'ed. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M

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Before proceeding, let m e define precisely w h a t I m e a n by category-formations. I have insisted that, given their diversity a n d incoherence, r a n d o m sayings do not serve for systemic analysis but only large-scale building blocks do. T h a t is why I rely u p o n the simple compositions a n d complex composites of d a t a that the sages t h e m selves construct. T h e s e I call "category-formations." T h e y f o r m the smallest whole units of data, d r a w n f r o m the R a b b i n i c c a n o n of late antiquity, that I invoke as evidence. Let m e then define the t e r m . A category-formation joins together discrete d a t a a n d of it forms a principal building block of a theory of the social- or world-order. It is a m a i n c o m p o n e n t of the structure a n d a principal p a r t of the o p e r a t i n g system, of that c o h e r e n t account of the social o r d e r p u t forth by a set of cogent ideas in a corpus of authoritative writings that I have called "a system." In concrete terms, a M i s h n a h - T o s e f t a - Y e r u s h a l m i - B a v l i tractate is a native category-formation, always of a Halakhic classification. T h e c o u n t e r p a r t s for the A g g a d a h are m o r e difficult to identify, but m y Theology of the Oral Torah shows the principal ones. T h e d a t a of which category-formations are m a d e up, the sayings or facts or discrete rulings or one-shot stories, c o m p a r e to the n o u n s of a language, the category-formations, the syntax that dictates w h a t can be said with the nouns. 4 In g r a m m a r the analogy to the category-formation in a system of thought is syntax. T h e rules of correct syntax—"sentenceseries); The Comparative Hermeneutics of Rabbinic Judaism. Volume Two. Seder Nashim. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Three. Seder Neziqin. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Four. Seder Qodoshim. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Five. Seder Tohorot. Part Kelim through Parah. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D IES IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Six. Seder Tohorot. Tohorot through Uqsin. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Seven The Generic Hermeneutics of the Halakhah. A Handbook. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); The Comparative Hermeneutics of Rabbinic Judaism. Volume Eight. Why This, Not That? Ways Not Taken in the Halakhic Category-Formations of the Mishnah- ToseftaYerushalmi-Bavli. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series). ‫ י‬For an elaboration of these remarks see my The Theological Grammar of the Oral Torah. (Binghamton, 1999: Dowling College Press/Global Publications of Binghamton University [SUNY]). I. Vocabulary: Native Categories. II. Syntax: Connections and Constructions. HI. Semantics: Models of Analysis, Explanation and Anticipation.

INTRODUCTION

7

construction," in familiar terms—are to vocabulary as the rules of making connections and building constructions are to the native categories of a theological structure and system. T h a t is because each in context dictates how the smallest whole units join to form clusters of meaning. T h e coherent phrases and even cogent sentences of a language correspond to the conceptual composites, the building blocks and even propositions of a theological system. Certain words in a language, as certain native categories in the documents of the O r a l T o r a h , properly join together, forming intelligible clusters of meaning and even complete thoughts. O t h e r words or native categories, when joined, jar. T h e y yield gibberish. W h e n we know which words may join with which others, and which not, formulating the theological counterpart to the rules of syntax of a language, we know the inner logic of the system: how to set forth statements that make sense. W e may even explain why in context they make sense. Native categories such as " G o d / ' "Israel," "Sinai," "Torah," for example, combine and recombine. While meanings may well shift in context, within a prescribed range of possibilities, " G o d , " "gentiles," "idolatry" and "love," rarely join, and when "Sinai," " T o r a h , and "gentiles do, the negative (e.g., "why did the gentiles not accept...?") must make its appearance early and prominently. As I shall explain presently, the native category-formations of the H a l a k h a h c o r r e s p o n d to the tractates of the M i s h n a h - T o s e f t a Yerushalmi-Bavli; the tractates meet the definition just now given and, as I shall show, they coalesce into a large composite of considerable cogency. T h a t cogent theology animates both the Halakhic documents, within their native category-formations, and the Aggadic ones responding to theoretical category-formations generated by mythic monotheism and its dialectics. T r u e , the consequent structures of category-formations, Halakhic and Aggadic, do not match in every detail. T h e Halakhic ones are native category-formations, dictated by the very character of the four Halakhic documents, the MishnahTosefta-Yerushalmi-Bavli. T h e Aggadic ones admittedly are deductive, identified from the outside within a simple process of hypothetical reconstruction of the logic of monotheism. 5 T h e y then are tested against the evidence of the Aggadic compilations, the discrete sayings and stories asked to instantiate propositions that are merely ‫ י‬T h a t is the simple fact established in my Theology of the Oral Torah.

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CHAPTER ONE

implicit therein. But the two structures of category-formations prove congruent. Each category-formation, whether native in the Halakhah or identified by me deductively in the encounter with the natural dialectics of the Aggadah's mythic monotheism, works with all others. N o n e violates the logic of any other. M o r e important, the implications of each cohere with those of all others. T h e r e is no point at which the Aggadic and the Halakhic category-formations clash, e.g., no Aggadic category-formation that yields implications to contradict those of Halakhic ones. Just as the two T a l m u d s show how the various laws, Halakhot, cohere into the law, wholly harmonious throughout in both detailed law and underlying principle, so, properly studied, the narratives and scriptural glosses and extensions called Aggadot cohere into the Aggadah. True, identifying what is normative from what is schismatic, what must cohere from what m a y go its own way, requires consistent rules, whether for the Aggadah or for the Halakhah, and presently I shall specify those rules. But the outcome is clear throughout. T h a t is why, as I said, when Rabbinic authorities quote from passages found hither and yon, without differentiating a m o n g sources, let alone authorities or time periods, they conform to the inner logic of the sources themselves. T h r o u g h its documents of law (Halakhah) and scriptural exegesis and narrative (Aggadah) that J u d a i s m sets forth a coherent religious structure and system. T h e components of the theology—the native category-formations and those generated by the general theory of monotheism—fit together into a cogent statement. Everywhere in the system, details convey the same fundamental message. W h e n , by simple criteria, we identify the d o c u m e n t s ' signals of w h a t is normative a n d what schismatic and assemble only the normative affirmations, we find not contradictions (such as isolated statements produce) but mutual reinforcement. O n e proposition sustains another, and all together the documentary components, autonomous in their distinguishing characteristics of rhetoric, topic, and logic of coherent discourse, not only connect here and there but prove continuous all together. So much for the theology that animates all the writings of R a b binic J u d a i s m in its canonical statement. In this project I propose to find out whether, and how, we may identify, mainly in the Halakhic category-formations that govern the Mishnah a n d Talmuds, a social philosophy, as m u c h as a theological structure. W h a t I wish

INTRODUCTION

9

to identify within the H a l a k h a h is a general theory of the social order that sustains a n d validates doctrines for society a n d that expresses for Israel's society the same generative convictions that the theology states in respect to G o d , his will for a n d governance of, the world a n d h u m a n i t y ' s affairs therein.

II. The Theological Cogency of Rabbinic Judaism: [b] The Category-Formations Since, for an inquiry into well-construed n o r m s of the social order, the p r i m a r y focus is Halakhic, let m e define in some detail the resuit of the theological r e a d i n g of the Halakhic native category-formations that has already taken place. T h a t r e a d i n g has established the cogency of the Halakhic category-formations, seen whole a n d all together. T h e theological narrative of the H a l a k h a h m a y be briefly s u m m a r i z e d as a whole in a few sentences, in two p a r a g r a p h s , the one describing the p r o b l e m facing G o d in the e n c o u n t e r with M a n , the other the solution put forth at Sinai t h r o u g h the Halakhic acc o u n t of the regenerate social o r d e r Israel is to realize. T h e entire structure rests u p o n Scripture, properly interpreted by the R a b b i n ic sages. 1. The Problem Set forth by the Written Torah: G o d created n a t u r e as the setting for his e n c o u n t e r with h u m a n i t y . C r e a t i o n was m e a n t as G o d ' s K i n g d o m for M a n ' s bliss. But with the sin of M a n c o m m i t ted in rebellion against G o d ' s will, the loss of Eden, a n d the advent of d e a t h b e g a n the long quest for the regeneration of M a n . In the unfolding of generations, ten f r o m A d a m to N o a h , ten f r o m N o a h to A b r a h a m a n d thence to Sinai, it was only Israel that presented itself for the encounter. But then Israel too showed itself M a n . For on the other side of Sinai c a m e the celebration of the G o l d e n Calf. 2. The Halakhic Solution: W h a t to do now? It is to rebuild G o d ' s K i n g d o m a m o n g that sector of M a n k i n d that undertakes to respond to God's self-manifestation in the torah and to realize God's dominion a n d imperatives: the T o r a h , the c o m m a n d m e n t s . G o d provided for Israel, surrogate of h u m a n i t y , the c o m m a n d m e n t s as a m e d i u m of sanctification for the reconciliation with G o d a n d renewal of E d e n , the t r i u m p h over the grave. Freed of sin through offerings that signified obedience to G o d ' s will, by reason of r e p e n t a n c e a n d atonem e n t , signifying m a n ' s acceptance of G o d ' s will over his own, which

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CHAPTER ONE

to begin with had brought about the fall from Eden, m a n might meet God, the two in mutual and reciprocal commitment. W h e r e Israel atoned for sin and presented itself as ready for the meeting, there God and Israel would found their Eden, not a place but an occasion. In overcoming the forces of death and affirming life through purity, Israel brings into being such an occasion. T h e Halakhah then serves as the medium of sanctification of Israel in the here-and-now, in preparation for the salvation of Israel and its restoration to Eden. W e find the statement of the Halakhah, in its native categoryformations, in the formative documents of Rabbinic J u d a i s m . Specifically, the classics of Rabbinic Judaism, the Mishnah, Tosefta, the T a l m u d of the Land of Israel, and the T a l m u d of Babylonia, ca. 200600 C.E., set forth a systematic and coherent response to the T o rah's account in the Pentateuch, Genesis through Deuteronomy, and in the Prophetic Books, J o s h u a through Kings and Isaiah, J e r e m i ah, Ezekiel, and the Twelve. T h a t account portrays the tragic situation of M a n from Eden onward, the hopeful situation of Israel from Sinai onward. T h e H a l a k h a h lays out how Israel's entire social order may be constructed to realize the situation represented by Eden now and to restore Eden then. But it would be this time through the willing realization of G o d ' s rule, both in the present hour and at the end of days. T h a t actualization takes place within Israel. H o w will it happen? T u t o r e d by the T o r a h to want by nature what God wants but will not coerce them to w a n t — " t h e c o m m a n d m e n t s were given only to purify the heart of man"—Israel makes itself able to realize God's will and to form his kingdom within its holy c o m m u nity. T h r o u g h examining the H a l a k h a h in its native categories or tractates, these propositions are shown to animate the entire Halakhic corpus, which is thus proved to embody a theological system, one that rests firmly upon the foundations of Scripture whole and in detail. In fact, we have in the H a l a k h a h a reworking of two parallel stories, the story of the creation and fall of A d a m and Eve from Eden, then the story of the regeneration of humanity through the T o r a h ' s formation of Israel. T h e two stories then are linked in the encounter of Israel and the nations, represented by the uncleanness of death that, through the disciplines of purity, Israel is to over come. T h e tension between them comes to its resolution in the resurrection of Israel, from death, those who know G o d being destined for eternal life. T h e two stories, a d u m b r a t e d in the heads of the outline that

INTRODUCTION

11

follows, represent the native category-formations of the Aggadah, and, as is clear, the native category-formations of the H a l a k h a h as I have e x p o u n d e d t h e m are folded into the Aggadic f r a m e w o r k : The Stoiy of Man and Rebellion, Sin and Atonement, Exile and Restoration 1. Where and When Is Eden? 2. Who Owns Eden? II. The Parallel Story: Israel and God, Sin and Just Punishment, Repentance and Atonement, Forgiveness and Restoration 3. Israel's Adam and Eve 4. Sin and Atonement 5. Intentionality and the Civil Order III. The Story of Israel and the Nations, Specifically, Israel and the Torah, the Gentiles Lacking the Torah 6. Enemies of Eden, Tangible and Invisible 7. The Contest between Death and Life 8. Overcoming Death 9. The Kingdom of God I.

T h e sages' philosophical r e a d i n g of Scripture—its H a l a k h a h a n d its A g g a d a h alike—leads to the t r a n s f o r m a t i o n of the T o r a h ' s a c c o u n t of h u m a n i t y ' s story into the design for Israel's social order: G o d ' s k i n g d o m , E d e n realized now, restored at the end. N o w let us recapitulate the m a i n findings derived f r o m the specific native category-formations/tractates that we have systematically set forth. W e t u r n to the H a l a k h i c native category-formations, the principal building blocks of the H a l a k h i c structure, correlating their generative mythic focus with the c o u n t e r p a r t of the A g g a d a h as just now portrayed. 1.

Where and When Is Eden? I. Shebi'it II. 'Orlah III. Kilayim IV. Shabbat-Erubin

By E d e n Scripture m e a n s , that place whole a n d at rest that G o d sanctified; " E d e n " s t a n d s for c r e a t i o n in p e r f e c t r e p o s e . I n t h e H a l a k h a h E d e n stands for not a p a r t i c u l a r place b u t n a t u r e in a defined condition, at a p a r t i c u l a r m o m e n t : creation in S a b b a t h repose, sanctified. T h e n a place in repose at the climax of creation, at sunset at the start of the seventh day, whole a n d at rest, embodies, realizes E d e n . T h e H a l a k h a h m e a n s to systematize the condition of Eden, to define E d e n in its normative traits, a n d also to localize E d e n within Israel, the people. H o w so? E d e n is the place to the perfec-

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CHAPTER ONE

tion of which G o d r e s p o n d e d in the act of sanctification at the advent of the seventh day. W h i l e t h e L a n d in the W r i t t e n T o r a h ' s explicit a c c o u n t of matters, claims the right to repose o n the seve n t h d a y a n d in the seventh year of the septennial cycle, it is the location of Israel w h e r e v e r that m a y be at the advent of sunset o n the eve of the seventh d a y of the week of creation that recapitulates Eden. 2.

Who I. II. III. IV. V. VI. VII.

Owns Eden? Ma'aserot Terumot Hallah Ma'aser Sheni Bikkurim Pe'ah Dema'i

T h e story e x p a n d s to within the motif of E d e n , the m a t t e r of o w n ership a n d possession as m e d i a for the expression of the relationship b e t w e e n M a n a n d G o d . G o d a c c o r d e d to A d a m a n d Eve possession of n e a r l y e v e r y t h i n g in E d e n , r e t a i n i n g o w n e r s h i p — t h e right to govern according to his will—for himself. T h e key to the entire system of interaction between G o d a n d Israel t h r o u g h the L a n d a n d its gifts emerges in the H a l a k h a h of M a ' a s e r o t a n d its c o m p a n i o n s , which d e a l — a l o n g the lines of Shebi'it a n d ' E r u b i n — w i t h the difference b e t w e e n possession a n d ownership. G o d owns the world, which he m a d e . But G o d has a c c o r d e d to m a n the right of possession of the e a r t h a n d its p r o d u c e . T h i s he did twice, o n c e to M a n — A d a m a n d E v e — i n E d e n , the second time to Israel in the L a n d of Israel. A n d to learn the lesson that M a n did not master, that possession is not o w n e r s h i p but custody a n d stewardship, Israel has to acknowledge the claims of the c r e a t o r to the glory of all creation, which is the L a n d . T h i s Israel does by giving back G o d ' s share of the p r o d u c e of the L a n d at the time, a n d in the m a n n e r , that G o d defines. T h e e n l a n d i s e d c o m p o n e n t s of the H a l a k h a h t h e r e f o r e f o r m a single, cogent statement of matters. 3.

Adam I. II. III. IV. V.

and Eve Qiddushin Ketubot Nedarim Nazir Sotah

INTRODUCTION

13

VI. Gittin VII. Yebamot VIII. Sacralization and Intentionality T h e H a l a k h a h of the family, covering the act of sanctification of a w o m a n by a m a n (Qiddushin), the m a r r i a g e - a g r e e m e n t (Ketubah), vows a n d special vows, the disposition of a c h a r g e of unfaithfulness against a w o m a n , a n d the severance of the marital b o n d of sanctification t h r o u g h a writ of divorce or d e a t h , does not ubiquitously invoke the m e t a p h o r of A d a m a n d Eve in Eden. O u r task, then, is to identify the principal foci o f t h a t H a l a k h a h a n d to investigate the a p p r o p r i a t e context in which it is to be interpreted. H o w here does E d e n figure? T h e connection is m a d e articulate by the (possibly later) liturgical f r a m e w o r k in which the H a l a k h a h plays itself out. T h e r e , in the liturgy of the m a r r i a g e - c a n o p y , the act of creation of M a n is recapitulated, the bride a n d groom explicitly c o m p a r e d to A d a m and Eve. N o t only so, but the t h e m e of the L a n d a n d Israel intervenes as well—two motifs d o m i n a n t in the H a l a k h i c theology e x a m i n e d to this point. 4.

Sin and Atonement I. The New Moral Entity II. Sheqalim III. Tamid & Yoma IV. Zebahim & Menahot V. Arakhin VI. Bekhorot VII. Meilah VIII. Temurah

T h e H a l a k h a h takes a c c o u n t of the tragedy of E d e n a n d provides for a new m o r a l entity, a r e f o r m e d transaction a c c o r d e d that entity, o n e not available to A d a m a n d Eve. F o r G o d at E d e n m a d e n o provision for a t o n e m e n t for sin, but, in the unfolding of M a n ' s story, G o d g r a s p e d the full m e a s u r e of M a n ' s c h a r a c t e r a n d d r e w the necessary conclusion and acted on it. Endowed with a u t o n o m o u s will, M a n has the p o w e r to rebel against G o d ' s will. T h e r e f o r e the H a l a k h a h finds urgent the question, h o w is M a n , subject to G o d ' s rule, to a t o n e for the sin that, by his rebellious n a t u r e , M a n is likely to commit? T h e T o r a h to answer that question formulates the rules that govern M a n both [1] w h e n u n d e r G o d ' s d o m i n i o n a n d [2] w h e n in rebellion against G o d ' s will. T h e s e represent the two aspects of the one story that c o m m e n c e s with E d e n , leads to the f o r m a t i o n of Is-

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CHAPTER ONE

rael t h r o u g h A b r a h a m , Isaac, a n d J a c o b , G o d ' s antidotes to A d a m , a n d climaxes at Sinai. But Israel also is M a n , so that story a c c o m m o d a t e s b o t h A d a m ' s fall a n d Israel's worship of the golden calf, a n d , as the d e n o u e m e n t , A d a m a n d Eve's exile f r o m E d e n a n d Israel's ultimate exile f r o m the L a n d . H o w , then does G o d p r o p o s e to repair the world he has m a d e to take a c c o u n t of M a n ' s c h a r a c t e r a n d Israel's own proclivity? 5.

Intentionality and the Civil Order I. Legitimate Violence: Who Does What to Whom II. Keritot III. Sanhedrin-Makkot IV. Baba Qamma-Baba Mesi'a-Baba Batra V. Horayot VI. Shebuot

T h e H a l a k h a h dictates the c h a r a c t e r of (its) Israel's civil o r d e r — i t s political institutions a n d system of criminal justice. It u n d e r t a k e s a labor of differentiation of p o w e r , indicating w h a t agency or p e r s o n has the p o w e r to precipitate the w o r k i n g of politics as legitimate violence. W h e n we u n d e r s t a n d the differentiating force that imparts to politics its activity a n d d y n a m i s m , we grasp the theology that a n i m a t e s the structures of the politics a n d propels the system. T h e details of the H a l a k h a h , in particular the sanctions assigned to various i n f r a c t i o n s , effect t h e t a x o n o m y of p o w e r , w h i c h f o r m s a n implicit exegesis of the story of E d e n , translated into reflection o n the p o w e r of intentionality. 6.

Enemies of Eden, Tangible and Invisible I. Tangible Enemies: Abodah Zarah II. Invisible Enemies: Death. Ohalot III. Negaim IV. Zabim and Niddah

T h e enemies of E d e n take s h a p e a r o u n d the g r a n d struggle b e t w e e n life a n d d e a t h , in the here a n d n o w m e a n i n g Israel a n d the gentiles, at the e n d of days m e a n i n g those w h o will stand in j u d g m e n t a n d go o n w a r d to the world to c o m e a n d eternal life, a n d those w h o will perish in the grave. Specifically, the world beyond the limits of Israel forms an u n d i f f e r e n t i a t e d r e a l m of idolatry a n d uncleanness. T h e n h o w is Israel to negotiate life with the world of gentiles a n d their idolatry, corpses a n d their c o n t a m i n a t i o n ? A m o n g the sources of uncleanness, tangible a n d invisible, we begin with the gentiles a n d

INTRODUCTION

15

p r o c e e d to corpse- a n d c o m p a r a b l e kinds of uncleanness. But the two—gentiles, c o r p s e s — f o r m a single d o m a i n . T h e f o r m e r bears exactly the same uncleanness as the latter. Gentiles, defined as idolaters, a n d Israelites, defined as worshippers of the one a n d only G o d , p a r t c o m p a n y at d e a t h . For the m o m e n t Israelites d i e — o n l y to rise f r o m the grave. Gentiles die for eternity. T h e roads intersect at the grave, e a c h c o m p o n e n t of h u m a n i t y taking its o w n p a t h b e y o n d . Israelites—meaning, those possessed of right conviction—will rise f r o m the grave, stand in j u d g m e n t , b u t t h e n enter u p o n eternal life, to which n o one else will e n j o y access. 7.

The Contest between Death and Life I. Uncleanness and Sanctification II. Makhshirin III. Tohorot IV. Uqsin V. Kelim

T h e sources of c h a n g e a n d disruption that t h r e a t e n the cleanness, h e n c e the sanctification of the T e m p l e are the same sources that t h r e a t e n the n o r m of cleanness of the household. If the same u n cleanness affects the T e m p l e a n d the table, then the only difference is one of degree, not of kind, as the H a l a k h a h states explicitly. A n d the rest follows. T h e w e b of relationships between sanctification a n d uncleanness spins itself out into every c o r n e r of the Israelite household, w h e r e the system makes a difference. A n d it is the will of the h o u s e h o l d e r that d e t e r m i n e s the difference that the distinction between clean a n d unclean is going to m a k e . Everything is relative to the h o u s e h o l d e r ' s will; he has it in his p o w e r to d r a w the household table into alignment with the altar in the T e m p l e , that is to say, to place the table a n d the food set t h e r e o n into relationship, o n t o a c o n t i n u u m , with the altar a n d the H o l y T h i n g s of the cult. T h i s he c a n accomplish t h r o u g h a n act of will that motivates an attitude of c o n s t a n t w a t c h f u l n e s s in the h o u s e h o l d for those very sources of c o n t a m i n a t i o n that Scripture identifies as d a n g e r to the L o r d ' s altar in the J e r u s a l e m T e m p l e . 8.

Overcoming Death I. Par ah II. Miqvaot III. Tebul Yom IV. Yadayim V. Home and Temple in Hierarchical Formation: Hagigah

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VI.

Cause and Effect: Where and Why Man's Will Matters

F r o m d e a t h a n d its affect u p o n food a n d drink, that is, the uncleanness caused by, a n d a n a l o g o u s to, d e a t h , we t u r n to the m e d i a for the restoration of life. Still w a t e r u n a f f e c t e d by h u m a n agency restores the natural condition disrupted by uncleanness other t h a n that of the corpse a n d its analogues, while by contrast purification-water systematically subjected to h u m a n i n t e r v e n t i o n — c o n s t a n t attention, deliberate action, start to finish—alone removes corpse-uncleanness. W e h a v e t h e n to a c c o u n t for the exclusion of m a n f r o m the one process, the radical insistence u p o n his inclusion, in full deliberation, within the o t h e r . U n c l e a n n e s s that c o m e s a b o u t by r e a s o n of a n y cause but d e a t h a n d its analogues is r e m o v e d by the H e a v e n ' s own d i s p e n s a t i o n , not by m a n ' s i n t e r v e n t i o n : rain-fall, sunset suffice. O r d i n a r y purification is d o n e by n a t u r e , resulting f r o m n a t u r a l processes. But as to persons a n d objects that have c o n t r a c t e d uncleanness f r o m death, n a t u r e on its o w n c a n n o t p r o d u c e the kind of water that bears the p o w e r to r e m o v e that uncleanness a n d restore the condition of n a t u r e . O n l y m a n can. A n d m a n can d o this only by the highest level of c o n c e n t r a t i o n , the most deliberate a n d focussed action. M a n ' s act of will overcomes the uncleanness of d e a t h , just as m a n ' s act of deliberate rebellion b r o u g h t a b o u t d e a t h to begin with. M a n restores w h a t m a n has d i s r u p t e d . H a d t h e H a l a k h a h wished in its terms a n d categories to accomplish a reprise of the story of m a n ' s fall, it could not have m a d e a m o r e eloquent statement t h a n it does in the contrast b e t w e e n the H a l a k h a h of M i q v a o t a n d that of P a r a h . 9.

The Kingdom of God I. Accepting the Yoke of the Kingdom of Heaven and the Commandments II. Berakhot III. Hullin IV. Megillah V. Rosh Hashanah. VI. Pesahim VII. Sukkali VIII. Mo'ed Qatan IX. Besah X. Ta'anit

As m u c h as M a n by his n a t u r e rebels against G o d , M a n t u t o r e d by the c o m m a n d m e n t s willingly accepts G o d ' s will and therefore his rule.

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17

W h a t are the H a l a k h a h ' s m e d i a for the r e f o r m a t i o n , r e g e n e r a t i o n a n d renewal, of M a n ? T h e H a l a k h a h here legislates for not E d e n but the kingdom of G o d . For Sinai's answer to E d e n ' s question transcends the m a t t e r of sin a n d a t o n e m e n t a n d encompasses the cond u c t of the o r d i n a r y , e v e r y d a y life lived u n d e r G o d ' s rule. T h e n o r m a t i v e deals with the n o r m a l , so the final solution to G o d ' s dil e m m a with M a n — h o w to a c c o r d M a n free will but to n u r t u r e in M a n freely-given love for G o d — l i e s in the T o r a h . T h a t way of life in accord with G o d ' s rule m e a n s to f o r m the paideia, the c h a r a c t e r b u i l d i n g e d u c a t i o n to t r a n s f o r m M a n by m a k i n g Israelite M a n ' s freely-given o b e d i e n c e to G o d as n a t u r a l as was the First M a n ' s c o n t u m a c i o u s rebellion against G o d . T h a t is w h y the H a l a k h i c p r o vision for life in G o d ' s k i n g d o m moves f r o m the o r d i n a r y d a y a n d its duties to the table a n d its e v e r y d a y n o u r i s h m e n t , t h e n to the m e e t i n g with G o d that is seasonal a n d t e m p o r a l , a n d finally to the climax of the system, c o n f r o n t a t i o n with routine crisis. T h u s brief précis shows h o w a few large motifs f o r m of the details of the H a l a k h a h a single c o h e r e n t system, one that tells a story. Clearly, the H a l a k h a h works f r o m Scripture f o r w a r d . 6 But, being theologians, systematic thinkers, intent on a philosophical r e a d i n g of religion in quest of a c o h e r e n t , p r o p o r t i o n a t e , a n d rigorously a r g u e d statement, they d o not r a n d o m l y rework this detail or that. R a t h e r , the sages' philosophical r e a d i n g of Scripture—its H a l a k h a h a n d its A g g a d a h alike—produces a coherent theology. It leads to the t r a n s f o r m a t i o n of the T o r a h ' s a c c o u n t of h u m a n i t y ' s story into the detailed design for Israel's social order. T h e details all find their place 6

See, for a systematic discussion, the following work: Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. I. Halakhah Based Principally on Scripture and Halakhic Categories Autonomous of Scripture. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); Scripture and the Generative Premises 0J the Halakhah. A Systematic Inquiry. II. Scripture's Topics Derivatively Amplified in the Halakhah. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. III. Scripture's Topics Independently Developed in the Halakhah. From the Babas through Miqvaot. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series); Scripture and the Generative Premises of the Halakhah. A Systematic Inquiry. IV. Scripture's Topics Independently Developed in the Halakhah. From Moed Qatan through Zebahim. (Binghamton, 2 0 0 0 : Global Publications. A C A D E M I C S T U D I E S IN A N C I E N T J U D A I S M series). T h e present argument does not address the historical question of how the Halakhic system took shape over time. T h a t is a separate matter, see From Scripture to 70. The Pre-Rabbinic Beginnings of the Halakhah. (Atlanta, 1999: Scholars Press for South Florida Studies in the History of Judaism), and The Four Stages of Rabbinic Judaism. (London, 2 0 0 0 : Routledge).

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within the structure of the whole, and in its workings, the system that sages have constructed animates the whole, the parts working well together to make a simple statement. T h a t is easily set forth. In its actualities Israel embodies—or is m e a n t to e m b o d y — G o d ' s plan for M a n k i n d , not individual, but as a social entity: G o d ' s kingdom, Eden both realized in the here and now a n d restored at the end. T h e R a b b i n i c J u d a i s m e m b o d i e d , actualized a n d realized in the H a l a k h a h is the religion that publicly, in the sight of all humanity, realizes now a n d for eternity the imperatives of G o d , m a d e manifest at Sinai, in the T o r a h a n d that thereby shows the way to eternal life with God. So m u c h for the theology of the H a l a k h a h , on the foundations of which my account of the H a l a k h a h ' s social philosophy is to be built. W e have followed the story a b o u t the interior architectonics of Israel's being that the H a l a k h a h tells through concrete action-symbols. T h e H a l a k h a h brings about the transformation of the here and the now, of the particular occasion (thus: place a n d time a n d event, mostly in nature) into the e m b o d i m e n t , the exemplification, of the abstract ground of being. Involved is relationship of realms of the sacred: the rules of e n g a g e m e n t between a n d a m o n g G o d , Land, Israel, time, place, circumstance. T h r o u g h the fabric of everyday life of the L a n d lived out in the household, village, a n d the holy metropolis, J e r u s a l e m (the three dimensions of the social order of which the H a l a k h a h takes account), E d e n is read as not historical m o m e n t but situation and occasion. T h a t then precipitates thought about the h u m a n condition. But Eden does not impose narrow limits on the amplification of that thought. It is not the only condition. T h e r e is also the situation b r o u g h t a b o u t by the second great theme, besides Eden, that is implicit in the H a l a k h a h . It is G o d ' s self-manifestation in the T o r a h : the occasion for the reform a n d renewal of M a n through Israel, the counterpart and opposite of M a n . T h e H a l a k h a h therefore will be shown to begin with Eden but to progress to the realization of God's kingdom within holy Israel's social order, conceiving of Israel both enlandised (defined within the Land) a n d Utopian (located anywhere), as the category of the H a l a k h a h requires. A third massive motif involves Eden once more, this time u n d e r G o d ' s rule, and it too engages with the T o r a h ' s account of Israel at Sinai. It concerns the r e - e m b o d i m e n t of Israel, the restoration that comes about not alone in the end of days when the Messiah comes,

INTRODUCTION

19

b u t in the h e r e - a n d - n o w of the w o r k a d a y world. It is t h e r e t h a t Israelite M a n f o r m e d by the discipline of the T o r a h learns both to a t o n e for, a n d to o v e r c o m e , his n a t u r a l propensity willfully to rebel against G o d . W i t h i n the social o r d e r of a n enlandised Israel m o r a l M a n constructs a godly society. T h a t r e a d i n g of the W r i t t e n T o r a h a n d translation of its law into the c a n o n s of o r d i n a r y life speaks in the acutely-present tense to p o r t r a y for M a n a w o r t h y f u t u r e well within M a n ' s o w n capacities to realize: " t h e c o m m a n d m e n t s were given only to purify the h e a r t of M a n , " a n d "All-Merciful wants the h e a r t , " as the T a l m u d f r a m e s matters. T h e r e i n I identify the theology of the H a l a k h a h : massive, closed system that, in dialogue with the A g g a d a h but in its o w n c a t e g o r y - f o r m a t i o n s a n d language, says the same thing a b o u t m a n y things. T h e H a l a k h a h is c o m p r i s e d by n u m e r o u s details b e a r i n g a n d r e p e a t i n g a single message.

III. Normative and. Schismatic: How Do We Know the Difference? [a] Formal Evidence. Logic So m u c h for the theological system yielded by the H a l a k h a h , in dialogue with the A g g a d a h . O u t of the resources of the H a l a k h a h a n d the A g g a d a h , I begin n o w to describe, analyze, a n d interpret n o r m a t i v e opinion f o r m e d into c o h e r e n t structures of d a t a — n a t i v e c a t e g o r y - f o r m a t i o n s r e - f r a m e d in the c o n t e m p o r a r y context of social inquiry. It will not suffice to find topically g e r m a n e sayings. I have to establish g r o u n d s for classifying all cited d a t a as n o r m a t i v e , representative of a system, " J u d a i s m , " not merely of idiosyncratic opinion. T h a t m e a n s I claim to differentiate the n o r m a t i v e f r o m the schismatic a n d episodic. But h o w a m I to d o so, a n d on w h a t basis out of bits a n d pieces of evidence, m u c h of it free-floating, a n d some of it contradictory, d o I claim to construct a system a n d a structure? A literature that records contradictory opinions a n d values difference a n d debate, that rarely declares openly w h o is w r o n g , poses p r o b l e m s for systematic recapitulation such as is a t t e m p t e d here. T h a t c a n o n of H a l a k h a h is absolutely o p e n to diverse opinion, so that we m a y find nearly everything a n d its opposite in some setting or other. So the c h a r a c ter of the literary evidence presents obstacles to validating the claim to speak of the social t e a c h i n g of R a b b i n i c J u d a i s m . T h a t is why, w h e n it comes to the same writings' social teaching, we c o n f r o n t the

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CHAPTER ONE

p r o b l e m that discerning the theological structure a n d system posed to m e in b o t h The Theology of the Oral Torah a n d The Theology of the Halakhah. T h a t is, h o w are we to k n o w w h a t represents the whole viewed all together a n d all at once? T o articulate the problem is simple enough. T h e documents convey a vast c o r p u s of singleton-sayings, r e p r e s e n t i n g individual a u t h o r i ties. W e r e we to c o m p o s e an a c c o u n t of the social t e a c h i n g of R a b binic J u d a i s m out of such episodic evidence, we should k n o w everything but the m a i n thing: the s h a p e a n d construction of the whole. For, as all affirm w h o have studied the documents even in small parts, the R a b b i n i c compilations c o n t a i n m a n y conflicting statements, a n d m u c h that simply does not c o h e r e at all. O n w h a t basis, then, are we able to assert knowledge of "the t h e o l o g y . . . " or "the social teaching of R a b b i n i c J u d a i s m " as distinct f r o m notional a n d occasional sayings on this a n d that in the n a m e of this one or that one. W h a t transforms h u n t i n g a n d g a t h e r i n g sayings on topics, j o i n e d with free association o n this or that, into a systematic a c c o u n t of a structure a n d system of t h o u g h t a n d doctrine? In using t h e w o r d " J u d a i s m " a l o n g with " n o r m a t i v e " a n d its equivalents, I claim describe a cogent, c o h e r e n t system of t h o u g h t . So, speaking figuratively, I t h e r e b y allege that I know w h a t , without r e g a r d to t e m p o r a l or locative differentiation, "the r a b b i s " — t h e J u d a i c sages of the M i s h n a h , M i d r a s h , a n d T a l m u d s — t h i n k everyw h e r e , t h r o u g h o u t all their distinctive writings. C e r t a i n principles p e r m e a t e their t h o u g h t a n d s h a p e the details, d e t e r m i n a t e c o n c e p tions a n d doctrines a n i m a t e the whole. T h a t identification a n d definition of the prevailing logos—logic, doctrine alike—defines the task of a n y o n e w h o u n d e r t a k e s to describe theology or social t e a c h i n g alike. O n w h a t basis, t h e n , d o I allege as representative the a c c o u n t that I have set forth for theology a n d here plan to provide for social thought? Let m e explain the criteria that p e r m i t m e to identify as b o t h representative a n d also n o r m a t i v e a given set of views a n d to treat as schismatic o t h e r opinions, everywhere bypassed in silence. 7 ‫ י‬Since I have studied and translated all of the documents of the Oral Torah set forth here, readers ought to be able to stipulate that a composition or composite that is not dealt with here, and that says something to contradict the opinions that are set forth, has not been ignored or neglected or simply missed but rejected as not representative. It is on that basis that I use the language, "the sages thought," and not simply this document recorded or that particular sage said. I claim that little, if anything, has been missed, in a corpus of writings all of which I have systematically translated.

INTRODUCTION

21

It would m a k e this sufficiently-long book still longer were I to specify at every point w h y I exclude sayings or stories that m a y be p r e sented as objections to w h a t I c h a r a c t e r i z e as n o r m a t i v e views. It suffices to spell out the general considerations that follow. First, let us exclude any claim to know what, in general, "the J e w s " thought: the state of opinion, the ethnic consensus if any. M y project is to describe theology a n d social doctrine e m b o d i e d in a c a n o n of authoritative religious writings, a n d m y m e t h o d then finds its rules a n d regulations in the analysis of ideas that are set forth. I d o not know, a n d I d o not think the d o c u m e n t s record, w h a t p r o p o r t i o n of sages held which opinion, a n d that sense of "representative," the political a n d sociological d i m e n s i o n , does not figure, only the n a ked, generative logic pertains. A n d , all the m o r e so, we know very little a b o u t what J e w s other than sages a n d disciples thought. N o one t o d a y imagines that the O r a l T o r a h on its o w n c a n p o r t r a y the opinions of those w h o flourished outside of the circles that p r o d u c e d the d o c u m e n t s of the O r a l T o r a h , preserved, studied, a n d p r o p o s e d to realize t h e m in the c o m m o n life. T h a t is because, to exaggerate only slightly, every page of the R a b b i n i c writings of late antiquity attests to the tension a n d conflict b e t w e e n " o u r sages of blessed m e m o r y " a n d the rest of that holy Israel that, sages insisted, in its e n t i r e t y b e l o n g s w i t h i n the K i n g d o m of H e a v e n a n d u n d e r the d o m a i n of G o d , m a d e manifest in the T o r a h . So on w h a t basis d o I p o r t r a y the sages a n d their beliefs a n d opinions? By w h a t is representative I m e a n what fits the generative logic that everywhere governs. I d o not m e a n w h a t stands for b r o a d l y held opinion but r a t h e r w h a t in this detail or that expresses the prevailing rationality of the system viewed in its entirety. By that I refer to [1] w h a t e m b o d i e s the ubiquitous a n d governing modes of rational thought, on the o n e side, a n d to [2] w h a t sets forth the necessary a n d sufficient a n d integral doctrines generated by that rationality, on the other. By t h a t c r i t e r i o n of w h a t is " r e p r e s e n t a t i v e , " t h e r e f o r e , t h e f o r m e r — t h e modes of t h o u g h t — a r e alleged to define rationality, a n d the l a t t e r — t h e logically-consequent propositions, f r o m simple to c o m p l e x — a r e claimed to define the logos, principle that pervades the whole. T h i s for theology takes f o r m in the idea that creation reveals G o d ' s justice, defined in terms m a n c o m p r e h e n d s , a n d a p p e a r s in m a n y forms. M a t t e r s of social t h o u g h t a n d doctrine are e m b o d i e d in the n o r m a t i v e H a l a k h a h that sages construct for their Israel's

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CHAPTER ONE

governance. Since the T a l m u d s systematically demonstrate the logical coherence of the laws, showing how Halakhot, laws, constitute the H a l a k h a h , the completely h a r m o n i o u s a n d coherent Law, I do not claim m o r e than the evidence itself attests in f r a m i n g matters as I do. Not only so, but by limiting the evidence to the native category-formations defined by the sages themselves, I define an exceedingly solid ground for my construction. It is within that logic of system a n d the cogency of the native category-formations that I invoke the claim of normativity. I claim not only to recapitulate what is implicit in the details of the H a l a k h a h but also to identify what is at stake therein for the social order: no m o r e than sages said themselves. But within that definition, I go to the outer limit of matters. For by what is normative I mean, the official position of the rabbis, viewed as a collegium, In intellectual terms, the canonical documents correspond to the political outcome of a council in the model of the councils that declared Catholic a n d O r t h o d o x Christianity. Christianity h a d the institutional capacity to assemble the authorities, the bishops a n d their counterparts, a n d determine the C h u r c h consensus, and this they did with the backing of the R o m a n state at critical turnings in the unfolding of their faith. T o accomplish the same goal the Rabbinic sages p r o d u c e d their authoritative writings, both recording difference and also declaring the consensus a n d the rule. T h e i r c o u n t e r p a r t to the C h u r c h council's institutional, political authority they devised out of the compelling power of reason and logic, consensus demonstrated and discovered, not (merely) declared and then enforced in the exact sense of the word. H o w , then, are we to know what composition or composite represents the whole and was deemed obligatory for all who practiced the religion of "the whole T o r a h of Moses, our rabbi," that the world has long known a s j u daism? I owe the reader an account of the criteria by which he or she may form a j u d g m e n t of whether I am right. As to w h a t is representative of the entirety of opinion in the documents of the O r a l T o r a h , two approaches strike me as plausible, the one self-indulgent, the other rigorous. I have chosen the second. T h e first is to rely upon subjective impressions, buttressed by a b r o a d sample of data. T h a t a p p r o a c h speaks of "they," but means "I." For how are we to know whether we might be wrong in our characterization of matters, if there is no system or order to the work? If, for example, we m a y find expressed in various ways in the di-

INTRODUCTION

23

verse documents a given view, we may claim that that view represents the generality of opinion. T h e position is assigned hither and yon, to m a n y rabbis, in m a n y writings. But what would tell us that we err in that characterization of broadly held opinion, short of interviews, access to letters, a vast sample of data? Still, not a few have taken that route in characterizing "the rabbis'" views of this a n d that, even turning the recurrence of a given saying in several places or versions into "he often used to say " (or, for Gospels' scholarship, "the S e r m o n on the M o u n t " and "the Sermon on the Plain"). But to declare representative a statement that occurs here and there and to treat as idiosyncratic one that occurs fewer times or in only one or two documents strikes me as lazy and u n c o m p r e h e n d i n g — a resort to intellectual labor-saving devices. For not m u c h thought goes into counting up occurrences rather than reflecting upon inner architectonics of ideas. A given idea may prove critical to the structure over all, even though it appears only in a document that came to closure early on (then to be taken for granted thereafter) or only very late a m o n g documents read in sequence (then articulated only long centuries after the initial impact, for example, an event in logic before articulation in a particular case). An ambitious venture requires more thought than is invested in adding up occurrences and finding the c o m m o n denominator. T h e second way—the one I have chosen for myself—appeals to the character of the logic that inheres in the Halakhic native category-formations and imparts to t h e m coherence. T h a t inquiry into what represents the logic of the whole, what proves coherent to the principal doctrines of the whole, forms the subtext of m y entire account. I claim only that the O r a l T o r a h attests to its own integrity by the c o m m o n criteria of reasoned thought. By "the logic of the whole" I therefore mean, modes of thought that govern throughout, for instance, analysis through comparison a n d contrast, on the one side, paradigmatic thinking, on the other. By coherence I m e a n , doctrines that fit in place a n d do not impose stresses or strains on the structure that encompasses them. T h e y not only do not contradiet one another ("God is one," " G o d is many"), but they reinforce one another ("God is just," "God is merciful"—two aspects of a single rationality). In my view, what represents the structure and system that sustain a variety of kindred writings emerges in positions that logically hold together a m o n g them all. These positions, whether concerning doctrine or correct modes

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of thought, will dictate not only what m a y be said but also what must not be said. A n d , m o r e consequentially, the governing logic will f o r m a tight fabric, of gossamer weight to be sure, spread over the whole, a thin, translucent tent that holds within everything that belongs a n d keeps out everything that does not. For theology, beginning with the principle of one, sole, o m n i p o t e n t , just G o d o p e n s the way for inelusion: what fits in good order. It also identifies contradiction a m o n g parts. But for the H a l a k h a h that e m b o d i e s the social t e a c h i n g of R a b b i n i c J u d a i s m , b e g i n n i n g with the native category-formations, r a t h e r t h a n a n intuited generative principle, however justified, defines the surer way. Sages themselves have defined these categoryf o r m a t i o n s , a n d they o n their o w n have carefully, systematically inspected the contents of those native c a t e g o r y - f o r m a t i o n s for consistency a n d logical sequence. O u r task is to build u p o n their work. Let m e m a k e m a t t e r s concrete, using a case d r a w n f r o m theology, not social philosophy. If, to take a n obvious e x a m p l e , the one G o d w h o c r e a t e d all things is just, t h e n that generative d o c t r i n e c a n n o t a c c o m m o d a t e without c o m m e n t cases of structural injustice. So the doctrine that the wicked (nonetheless) p r o s p e r c a n n o t o n its own find a place. S o m e solution to anomalies that c o n f r o n t the theologians has to a c c o m m o d a t e reality to the system, a n d the system to reality. A n d it c a n n o t be a solution that posits two gods or n o god or a weak god or a n unjust god. T h a t is an obvious instance of systemic c o h e r e n c e . A n d it is w h e r e the parts of the system c o h e r e that we identify w h a t is n o r m a t i v e . N o w to state simply h o w this works. I claim that w h a t is representative is that corpus of convictions that fit together, logically a n d doctrinally, a n d w h a t does not is n o t e d but excluded f r o m the acc o u n t of representative views. T o state the m a t t e r with heavy e m phasis: To describe theology is to identify the logos, the logic, of religious ideas contained principally in the Aggadah but expressed also in the Halakhah. This demands thinking philosophically about religion. To describe social philosophy is to discern the logos, the logic of thought about the social order, that is given concreteness in the applied reason and practical logic of the Halakhah. This demands thinking analogically about the Halakhic norms in their rich detail. T h e result of such t h o u g h t for theology sets forth in the correct a n d inexorable o r d e r , start to finish, the structure a n d system that o r d e r the whole, even m a k i n g provision for the preservation of views

INTRODUCTION

25

that d o not fit a n d m o d e s of t h o u g h t that j a r . T h i s I showed in The Theology of the Oral Torah. As to the inviolable o r d e r of there ideas, it suffices to say that the p r o b l e m s that are laid out systematically— world o r d e r (Parts O n e a n d T w o of that book), sources of disruption (Part T h r e e ) , m e a n s of restoration (Part F o u r ) — b e c o m e unintelligible in a n y o t h e r sequence t h a n the one I devised. A n d within each unit, a n y o t h e r presentation of topics would not only disrupt but would c o r r u p t the entire a c c o u n t . W h e t h e r the same considerations of logical sequence govern in the articulation of social philoso p h y is not obvious to me. O n l y w h e n each of the principal parts has e m e r g e d in all its a u t o n o m y shall we k n o w w h e t h e r a particular o r d e r — f i r s t this, then t h a t — g o v e r n s . As m a t t e r s n o w stand, I c o m m e n c e with w h a t strikes m e as one critical issue, but I d o not represent that issue as logically prior to some other. As to modes of thought that pervade, a single example d r a w n f r o m the theological systematization of the O r a l T o r a h suffices. M y p r e sentation of the eschatological c o m p o n e n t s of the theology picked its way a m o n g diverse opinions; where opinion is contradictory. Such contradictory sayings, for example, concern the character of the world to c o m e or the timing a n d sequence of the stages en route f r o m here a n d n o w to there a n d then, I m a k e n o claim to know w h a t stands for the structure a n d system, or, in m o r e c o m m o n language, that represents " t h e r a b b i s " as a whole. W h e r e I can explain h o w conelusions are r e a c h e d a n d show the h a r m o n y of the result in b o t h correct o r d e r a n d integral, h a r m o n i o u s doctrine, I offer that as m y a c c o u n t of the theology of eschatology. A n d so t h r o u g h o u t .

IV. Normative and Schismatic: How Do We Know the Difference? [b] The Canonical Signals of Normativity But we are not left to reconstruct out of o u r o w n resources of reflection the evidence for w h a t is n o r m a t i v e supplied by logic a n d criticism. For the R a b b i n i c sages in their writings also signify w h a t is n o r m a t i v e , so in their behalf a simple response suffices. A fifteenh u n d r e d - y e a r - o l d tradition of learning, amplified in a few places just now, serves. T h r e e principal indicators characteristic of the c a n o n ical writings establish the n o r m a t i v e view a n d m a r k the schismatic one. E a c h abstract f r o m a source that I set forth, I claim, speaks for the collegium of the sages, represents the O r a l T o r a h viewed whole,

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a n d coheres with all others. T h a t permits speaking of the R a b b i n i c sages' social philosophy, not merely episodic sayings j u x t a p o s e d . First, it is a well-established principle in the legal (Halakhic) docu m e n t s t h a t w h e r e we h a v e a t t r i b u t e d a n d u n a t t r i b u t e d rules in conflict, a rule that is not a t t r i b u t e d to a n a m e d a u t h o r i t y stands for all authorities, ordinarily sets the n o r m . O n e b e a r i n g a n a m e m a y well be, and mostly is, schismatic (with the proviso that certain names carry within themselves signals as to n o r m a t i v e status). T h a t h e r m e neutics is stated explicitly in the earliest d o c u m e n t s a n d is taken for g r a n t e d in the composition of those that r e a c h e d closure later on. It forms the premise of m u c h analysis in the two T a l m u d s . 8 A f u r t h e r trait of the d o c u m e n t s , second, b o t h of law [Halakhah) a n d of lore (Aggadah), has b e e n realized m o r e recently but I think was always implicit f r o m the very beginning. It is that the a u t h o r s of a cogent composition, all the m o r e so the f r a m e r s of a c o m p o s ite, so set forth their a c c o u n t s as to give a clear indication of the position they favor. T h e i r compilation f o r m s not a scrap book but a dissertation, with a few b l a t a n t propositions at stake t h r o u g h o u t . T h e y show that this is so in a n u m b e r of ways. T h e y m a y a n n o u n c e the besought proposition at the outset a n d amass evidence to d e m onstrate it. T h a t is a syllogistic a r g u m e n t in narrative-composite form. O r they m a y indicate their position by f o r m a l signals of order. T h e y m a y lead to it at the end, t h r o u g h assembling m u c h evidence, most of it affirmative, some not. I have identified, in m y Theological Grammar of the Oral Torah, particular in V o l u m e s I a n d III, a n u m b e r of composites that set d o w n the c o h e r e n t j u d g m e n t of the compilers a b o u t a given topic or p r o b l e m . T h e s e composites, as a m a t t e r of fact, either prove u n i q u e in the entire l i t e r a t u r e — t h e sole systematic p r e s e n t a t i o n of a t o p i c — o r t u r n out to be entirely c o h e r e n t with o t h e r composites on the same t h e m e . I have relied heavily, therefore, on the givens of composites. In this same context, finally, we p a y attention to the clear direction a n d intent of a dialectical argum e n t , which affords e q u a l o p p o r t u n i t y to conflicting viewpoints b u t in the e n d signals the m o r e plausible of the two. So m u c h for c o m positions a n d composites. 8 T h a t is also the basis for my presentation of the Halakhah in two systematic contexts, The Halakhah. An Encyclopaedia of the Law of Judaism (Leiden, 2000: E . J . Brill) I-V, and The Comparative Hermeneutics of Rabbinic Judaism I-VIII. There, in both works, I put into play the rules indicated here, as indicated by what I include and what I bypass.

INTRODUCTION

27

T h i r d , along these same lines, there is the m a t t e r of self-evidence, that is to say, indications within the d o c u m e n t s of the O r a l T o r a h of principles that are taken for g r a n t e d a n d that generate secondary articulation along lines that said principles dictate. Sages have left n o d o u b t a b o u t the indicators of self-evidence. T h e s e I have spelled out in m y Theological Grammar of the Oral Torah, V o l u m e II. Connections and Constructions, the f o r m e r p a r t of which is based u p o n Rationality and Structure: The Bavli's Anomalous Juxtapositions. Let m e briefly explain w h a t I m e a n . In the R a b b i n i c writings, particularly but not only in the T a l m u d of Babylonia, certain points of c o n n e c t i o n are taken as self-evident, so that compilers of composites simply know what native category "obviously" joins with what other one, and what does not. T h r o u g h w h a t is taken for g r a n t e d , the system makes its statem e n t of theological givens. For the Bavli, I have shown h o w o d d connections reveal premises as to w h a t is self-evident. T h i s is worked out in rich detail in Rationality and Structure. For other d o c u m e n t s , the work awaits, but the results sketched in Grammar V o l u m e II provide a fine sample of w h a t awaits. W h e n , t h e r e f o r e , we c a n outline the principles of c o n s t r u c t i n g g r o u p s of categories into intelligible c o m b i n a t i o n s , we find in those principles the m a i n lines of theological o r d e r a n d structure. W h e n we can state w h a t emerges as self-evident w h e n we j o i n two otherwise distinct topics, we gain insight into the established laws of m e a n i n g a n d o r d e r that govern a system of c o h e r e n t t h o u g h t . So in e x a m i n i n g the rules for j o i n i n g native categories, we identify those indicators of correct usage that point t o w a r d the logic p e r v a d i n g the whole. At m a n y points in m y exposition of w h a t I conceive to be the n o r m a t i v e theology of the O r a l T o r a h , I i n t r o d u c e evidence of self-evidence in the f o r m of connections that are d r a w n a n d conclusions that those connections dictate. T o state m a t t e r s simply: c o m positions a n d large composites systematically d e m o n s t r a t e propositions. W h e r e these large-scale exercises of p r o o f d o not c o n f r o n t c o n t r a r y exercises, or w h e r e they e n c o m p a s s compositions that argue b o t h sides of a question but clearly favor o n e position over a n o t h e r , then we have a n o r m a t i v e s t a t e m e n t on the proposition at hand. F o u r t h , not only compositions a n d composites but even entire documents weigh in, for the compilers of a document, moreover, have b e e n shown t h r o u g h extensive research to take positions on i m p o r tant questions. T h i s they do by their selection a n d a r r a n g e m e n t of

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materials, by their juxtapositions of topics beyond the dimensions of composites, and by other subtle editorial means. T h e y leave little doubt as to the positions they deem authoritative. Anyone who has worked through and identified the hermeneutics of, for one exampie, Genesis R a b b a h , or of the Mishnah for another, will understand that documents seen whole do convey coherent judgments. Most, though not all, of the documents of the O r a l T o r a h set forth coherent statements, which through a systematic labor of comparison and contrast I have already identified. T h a t makes possible the description of the theological system of the writings seen whole. T h a t is because by definition, the statement on a given, f u n d a m e n t a l topic that is m a d e by a d o c u m e n t within the O r a l T o r a h , not contradicted by the statement m a d e by any other d o c u m e n t — a n d none is!— constitutes a reliable indicator of the theology of the O r a l T o r a h viewed whole. O n the basis of these facts characteristic of compositions, composites, a n d entire documents, by my presentation of the abstracts and my paraphrase of sources that I have chosen to reconstitute into this coherent tale, I m a r k as representative of the position of "the rabbis," or the entirety of the O r a l T o r a h all of the statements I make concerning a given issue. W h e r e the documents contain opinion that contradicts my presentation of matters—and that is very seldom and nearly always schismatic in f o r m — I omit it. For a bit of research will show, especially for the interested readers who wish to check, that what I present bears the m a r k of normative standing within the documents read all together a n d all at once. T h a t is to say, [1] it will be a n o n y m o u s or at least entirely unchallenged, [2] it will prove coherent to other statements on the same subject, [3] it will define the premise of making certain connections or it will emerge as a result of making said connection, [4] it will represent the p r i m a r y focus of discourse, m u c h doted upon, while a contrary opinion may register not at all or only schismatically, [5] it will be presented as the regnant opinion when conflicting opinions register, e.g., as the opening proposition, or as the climactic statement; or in some other significant way signals will be given to accord privilege to the statement cited or alluded to in these pages as representative of the structure and system of Rabbinic J u d a i s m seen whole, in proportion, as a coherent statement.

INTRODUCTION

29

Any one or more of these traits I take to signal normativity, so long as contrary evidence does not surface. W h e r e I am in doubt, I omit an item. W h e n readers check the documents against my use of them, I am confident that they will find that exceptions to these simple rules will prove few and inconsequential. T h a t is why my picture of the theology of the O r a l T o r a h a n d my account of principal parts of the social philosophy of normative J u d a i s m will be seen to represent the Rabbinic sages as a collegium. T h r o u g h the media just now outlined, sages did set forth the orthodox and catholic position of the T o r a h as they f r a m e d matters, the O r a l in relationship to the Written T o r a h . T r u e , taste and j u d g m e n t intervene at every point. Issues of authority may find resolution in politics, not logic. Surely there is a more certain way of identifying the norm. But, for the work of setting forth a coherent logic of the faith, a theological structure a n d system, they chose the instruments they h a d available. These were, and remained for later ages, the instruments of intellect, proposition, evidence, a r g u m e n t , thought and the writing down of t h o u g h t — consensus attained through persuasion. Like the Jewish people, lacking state instruments of g o v e r n m e n t , so the sages h a d no better options. T h e people had no politics of consequence, so only in exceptional, transient circumstances could the sages work t h r o u g h political institutions. N o e m p e r o r confirmed their views, no court enforced their judgments, no instruments of legitimate violence and coercion formed the last resort. Not only so, but the sages as a collegium met, if at all, only irregularly—except on the field of argument. N o r could charismatic authorities accomplish m u c h . As individuals, to have a say was to deny their own integrity, the logic of their definitive m y t h — t h a t , after all, is the m e a n i n g of claiming to receive and h a n d on a tradition, as sages did when they spoke of the oral tradition of Sinai, the O r a l part of the T o r a h . Notice the contrast. T h e i r counterparts in the equally complex world of Christianity did two things that sages did not, and could not, do. T h e y held world councils, sponsored by the R o m a n E m pire, from Constantine's time forward, to work out positions that embody Orthodox and Catholic Christianity. And as individuals, they wrote books to which they signed their own names. N o state, as I said, sponsored sages' ecumenical meetings, and sages held none. Nor did the logic of sages view permit individuals to write books in their own names, respectively, as did every principal of Christianity be-

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y o n d the f o u n d e r himself. But m y claim n o w is self-evident: h a d the sages of the O r a l T o r a h m e t in world councils, as their c o u n t e r p a r t s in Christian theology did, these theological a n d social doctrines that I lay out are the positions they would have taken a n d set forth as n o r m a t i v e — e v e r y one of t h e m . If we have n o c o u n t e r p a r t , for R a b binic J u d a i s m , to the N i c e n e C r e e d , we could readily write one out of the table of contents of this book a n d its c o m p a n i o n s . T h a t claim is w h a t m a d e possible m y decision to focus m y discussion on the g o v e r n i n g logic a n d to investigate a n d u n p a c k the principles of coh e r e n c e a n d p r o p o r t i o n that govern t h r o u g h o u t .

V. Native Category-Formations and Contemporary Inquiry: How to Match the Answers of the Halakhah and of the Aggadah to the Questions of Social Philosophy Since the native c a t e g o r y - f o r m a t i o n s take shape a r o u n d details of the H a l a k h i c p r o g r a m just n o w outlined, a n d since a m o n g t h e m we c a n n o t identify a single one that, o n the surface, addresses issues of social philosophy b r o a d l y f r a m e d , a labor of negotiation a n d mediation is r e q u i r e d . I have to explain h o w I m o v e f r o m the detailed d a t a in o u r h a n d s to the inquiry of general intelligibility that I contemplate. T h e issue is: if we asked the sages o u r question, how would they k n o w h o w to answer it? A n d w h e r e would they find the d a t a , w h a t are the t h o u g h t processes that link the d a t a to the question? R e s p o n d i n g to these questions is urgent. For some m a y quite fairly object t h a t the very t e r m s a n d categories of theology a n d social philosophy, alien to the R a b b i n i c c a n o n , d o not e m e r g e f r o m , but are merely imposed u p o n , the sages' writings. At some points, the encompassing, general issue is stated in so m a n y words. At m a n y , that is not the case. But as I shall n o w explain, if we view the principal rulings as answers to questions of a social c h a r a c t e r , we can build a bridge f r o m the detailed answer in h a n d to the generative question that precipitates t h o u g h t . A n d that requires k n o w i n g how, exactly the sages m a k e their rulings, m o v i n g f r o m the k n o w n facts to the u n k n o w n law. K n o w i n g the answer to that question allows us to reconstitute R a b b i n i c t h o u g h t - p a t t e r n s a n d move therein f r o m the details that the canonical d o c u m e n t s give us to the principles that a n i m a t e those details but that are not articulated. W e have, then, hypothetically to reconstruct the m o d e s of t h o u g h t that guide the

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sages in answering Halakhic questions. With these in mind, we may hope to take the next step, from the ruling for a detail to the larger social context and philosophy that define the setting for that detail a n d m a n y others like it. Each composite of Halakhic discourse by its nature, as I said, represents an answer to a question. T o build a bridge from the known of a ruling to the unarticulated philosophy represented by that ruling, what is to be done? We have to determine what question of broad general intelligibility has generated the acutely particular answer that is before us. And that requires a theory on how sages analyzed a problem of detail and solved that problem by evoking a general rule to cover a particular case. T h e n we may retrace their steps, making the move from the case at hand to the general rule embodied therein. T h a t is because to answer the question of detail—what is the law governing such-and-such a transaction?—sages commonly applied a principle transcending not only the case at h a n d but even the particular category of the H a l a k h a h to which the case belongs. T h a t is where we make the move from the case to the rule, from the rule to the principle. T h e n the principle engages with rules of various category-formations, all the while imposing a single, uniform and coherent theory on diverse matters. T h a t is what is required in order to negotiate the distance between the detail and the point it embodies. It is why I maintain that we have (hypothetically at least) to recapitulate the modes of thought that guide the Rabbinic sages in their decision-making processes. Essentially, then, our task in discerning the components of a social philosophy a n d how they cohere requires us to solve two problems. T h e first is to decipher the modes of thought that generate the results in our hands: what thought processes produced these rules? T h e second—for our goal is to identify the main lines of order and structure of the whole—is to determine how the results cohere. For the former purpose a general theory of analogy and correspondence governs. For the latter appeal to the cohesion and integrity of the H a l a k h a h suffices. An example of each part of the labor then shows what is to be done. First come deciphering the modes of thought: how, exactly did the Rabbinic sages think through a problem, meaning, how did the move from the known to the unknown, or, more to the point, from the unknown to the known. T h a t is, when asked a question concerning an unfamiliar case, the Rabbinic sage would have to identify a

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governing principle, derived f r o m a known case. T h a t accounts for the question, T o what is the matter comparable? And it explains why at issue in Rabbinic disputes we commonly find a debate on which of two equally plausible analogies comes to bear upon the problem at hand. O n c e the sage knew the appropriate analogy, he could then identify the governing model and answer the question at h a n d . T h e Rabbinic sages solved problems by determining the governing analogy: a situation that we do not know how to resolve is comparable to one for which we do know the rule. T h e n we establish the comparability and find the rule for the unknown from the known. This they did by determining what established facts, what valid rulings, pertain to a case comparable to the one that requires a ruling. T o unpack this somewhat abstruse formulation, let me present a single example of how a general proposition comes to expression in a particular case, so identifying the markers of thought processes that instruct sages on how to answer questions and solve problems. TOSEFTA MIQVAOT

1:16

A.

B. 1:17

A. B.

1:16-20

An immersion-pool which was measured and found lacking— all the acts requiring cleanness which were carried out depending upon it whether this immersion-pool is in the private domain, or whether this immersion-pool is in the public domain [Supply:] are unclean. R. Simeon says, "In the private domain, it is unclean. In the public domain, it is clean." Said R. Simeon, "M'SH: The water-reservoir of Disqus in Yabneh was measured and found lacking." "And R. Tarfon did declare clean [meaning: what in the interval from the last point at which the pool was known to be sufficient to the point at which it was discovered to be insufficient, had been immersed in the pool nonetheless had risen from uncleanness to cleanness], and R. Aqiba unclean.

N o w comes the point at which the a r g u m e n t is joined. Each party spells out the principle that he deems to pertain. T h e issue is, we have conflicting presumptions. T a r f o n focuses u p o n the presumption that the pool is valid until proved otherwise. Aqiba invokes the established fact that the pool is now known to be insufficient, and we assume it has been so back to the last point at which we know for certain it was sufficient. C. "Said R. Tarfon, 'Since this immersion-pool is in the assump-

INTRODUCTION

33

tion of being clean, it remains perpetually in this presumption of cleanness until it will be known for sure that it is made unclean.' D. "Said R. Aqiba, 'Since this immersion-pool is in the assumption of being unclean, it perpetually remains in the presumption of uncleanness until it will be known for sure that it is clean.' W h a t follows is the conflict of analogies. These are spelled out in so m a n y words. D o we invoke an analogy that produces a decision for invalidity, or one that produces a decision for validity? 1:18

A.

B.

"Said R. Tarfon, 'To what is the matter to be likened? To one who was standing and offering [a sacrifice] at the altar, and it became known that he is a son of a divorcee or the son of a halusah [a woman in the status of a divorcee, who may not marry a priest and produce valid members of the priesthood] for his service is valid.' "Said R. Aqiba, 'To what is the matter to be likened? To one who was standing and offering [a sacrifice] at the altar, and it became known that he is disqualified by reason of a blemish— for his service is invalid.'"

Since the analogies conflict, at issue is, which one logically coheres to the case at hand? T a r f o n makes the conflict of analogies explicit and offers an argument: "let us see to what the matter is appropriately likened? 1:19

A.

B. C.

"Said R. Tarfon to him, 'You draw an analogy to one who is blemished. I draw an analogy to the son of a divorcee or to the son of a halusah. '"Let us now see to what the matter is appropriately likened. '"If it is analogous to a blemished priest, let us learn the law from the case of the blemished priest. If it is analogous to the son of a divorcée or to the son of a halusah, let us learn the law from the case of the son of the divorcee or the son of a halusah.'

Aqiba then meets the challenge head-on, by selecting the governing variable, which is specified at 1:20 Α-B and then applied at C. 1:20

A.

B.

"R. Aqiba says, 'The unfitness affecting an immersion-pool affects the immersion-pool itself, and the unfit aspect of the blemished priest affects the blemished priest himself. '"But let not the case of the son of a divorcee or the son of a

34

CHAPTER ONE

C.

D. E.

halusah prove the matter, for his matter of unfitness depends upon others. " Ά ritual pool's unfitness [depends] on one only, and the unfitness af a blemished priest [depends] on an individual only, but let not the son of a divorcee or the son of a halusah prove the matter, for the unfitness of this one depends upon ancestry.' "They took a vote concerning the case and declared it unclean. "Said R. Tarfon to R. Aqiba, 'He who departs from you is like one who perishes.'"

T h e passage is i m p o r t a n t because it makes articulate a thought process that defines h o w sages conduct their analytical process: h o w they solve p r o b l e m s , a n d w h a t is at stake in the solution. It exemplifies w h a t is required for building a bridge f r o m the case to the rule, f r o m the rule to the principle that pertains to cases of a variety of classifications. M y general theory of analogy a n d c o r r e s p o n d e n c e is fully exposed in the simple case so elegantly laid out here. T h e same m o d e of t h o u g h t , articulated a n d explicitly set forth as clearly as it is before us, c a n be shown to p e r v a d e R a b b i n i c discourse t h r o u g h o u t . In o t h e r settings, the H a l a k h i c a n d Aggadic writings also tell us in so m a n y words the general proposition to which, t h r o u g h detailed cases, reference is m a d e . W h a t a b o u t a case in which the particularities c o h e r e , so that a variety of cases, deriving f r o m a r a n g e of native H a l a k h i c category-formations, serve to establish a governing principle, one of considerable interest to social philosophy (though not to the aspect of m a t t e r s t r e a t e d in this p a r t of the project). H e r e is h o w the sages present the proposition that a m a n has got the right to take the law into his own h a n d s w h e r e there will be a loss. T h i s is a f r e e - s t a n d i n g composition, not f o r m u l a t e d a r o u n d a p r o b l e m of Mishnah-exegesis. As is m y way, I indicate the use of A r a m a i c with italics, H e b r e w with plain type. I f u r t h e r identify t h r o u g h indentations the building blocks of the composite overall. BAVLI BABA Q A M M A 3 : 1 A - D

II.4

A.

B.

II.4/27B-28A

R. Hisda sent word to R. Nahman, "Lo, they have said, 'For kicking with the knee, three selas; for kicking with the foot, five; for a blow with the saddle of an ass, thirteen.' What is the penalty for wounding with the blade of a hoe or the handle of a hoe?" He sent word, "Hisda! Hisda! Areyou really imposing in Babylonia such extra-judicial fines as these [which you have no right to do over t-here]? Tell me the details of the case as it happened. "

INTRODUCTION

C.

D.

35

He sent uiord, "There was a well that belonged to two people, who used it on alternate days. One of them then went and drew water on a day that was not assigned to him. The other said, 'This is my day. ' The latter ignored him. So the other took the blade of a hoe and struck him with it. " R. Nahman sent word, ".Even if he hit him a hundred times with the blade of the hoe [it would not have mattered]. For even in the opinion of one who says, 'Someone may not take the law into his own hands, ' where there will be a loss, he has every right to do so."

T h e principle of law that applies to the case is m a d e articulate at D. But settling the case does not suffice; we have n o w to investigate the governing legal principle in its own terms. T h a t is the direction that the composite n o w takes. But at e a c h point, cases intervene, conflicting opinion registers. E. F. G. H.

For it has been stated: R. Judah said, "A man has not got the right to take the law into his own hands." R. Nahman said, "A man has got the right to take the law into his own hands where there will be a loss. " Now all parties concur that where there will be a loss, someone may take the law into his own hands. Where there is an argument, it concerns a case in which there will be no loss. R. Judah said, "A man has not got therightto take the law into his own hands. " Since there will be no loss, he can go to court. But R. Nahman said, "A man has got the right to take the law into his own hands where there will be a loss." Since he is acting in accord with the law anyhow, why take the trouble to go to court?

N o w a secondary extension of the discussion takes over, with evidence d r a w n f r o m o t h e r authoritative d o c u m e n t s subjected to examination: I.

J.

Objected R. Kahana [to R. Judah's view], "Ben Bag Bag says, Ά person should not go and retrieve his own property from the household of someone else, lest he appear to be a thief. But he should be ready in public to break his teeth and you may say to him, "I am seizing what is my own from the thief s possession'" [T. B.Q. 10:38]." [This then would contradict Judah's position.] [Judah] said to him, [28A] "True enough, Ben Bag Bag is on your side. But he is a dissenting view, differing from rabbis. "

36

CHAPTER ONE

Κ. L.

M.

R. Tannai said, "What is the meaning, anyhow, 0/Treak his teeth? It is, in court. " If so, the language, you may say to him, is inappropriate. Rather it should be, they [the court] may say to him/ So too, the language, I am seizing what is my own, is inappropriate. Rather, it should be, he is seizing what is his own/ So that's a problem.

F u r t h e r cases deriving f r o m o t h e r classifications of H a l a k h a h intervene. E a c h free-standing case is signaled by " c o m e a n d take n o t e , " which m a r k s a f u r t h e r case to be dealt with. N.

R.

T.

Come and take note: In the case of an ox that climbed up on another one to kill it, and the owner of the one on the bottom came along and pulled out his ox, so that the one on the top fell and was killed—the owner of the bottom ox is exempt from having to pay compensation. Does this ruling not pertain to an ox that was an attested danger, in which case there is no loss to be expected? O. No, it speaks of an ox that was deemed innocent, and there is a considerable loss to be expected. P. If so, then look what's coming: If he pulled olT the ox on top and it died, he is liable to pay compensation. But if the ox was deemed innocent, why should he have to pay compensation? Q. Because he should have pulled his ox out from underneath, and he did not do that. [Kirzner, Baba Qamma (London, 1948: Soncino), ad loc.: He had no right to push the ox on top.] Come and take note: He who filled the courtyard of his fellow with jugs of wine and jugs of oil—the owner of the courtyard has every right to break the jugs in order to get out or break the jugs in order to get in. S. Said R. Nahman bar Isaac, "He breaks the jugs to get out only if a court says he may do so, he may break the jugs to get in only to get whatever documents he needs to prove his case in court." Come and take note: How on the basis of Scripture do we know that in the case of a slave whose ear had been bored [as an indication that he was in perpetual service, to the Jubilee year], the term of service of which has come to an end [with the Jubilee], the owner of which has been urging him to leave, and, in the process, injured him and

INTRODUCTION

Y.

37

done him damage, the owner is exempt from having to pay compensation? Scripture states, "You shall not take satisfaction for him who is...come again..." (Num. 35:12), meaning, for one who is determined to come again [as a slave, continuing his service], you will not take a ransom. U. Here with what sort of a case do we deal? It is a slave who was a thief[ Kirzner: so the owner is protecting himself from a genuine loss]. V. Well, up to now he hasn't stolen anything, but now he's expected to go and steal? W. Tes, that's quite plausible, since up to now he was afraid of his master, but now that he is about to go free, he isn't afraid of his master anymore. X. R. Nahman bar Isaac said, "At issue is a slave to whom his master gave a Canaanite serving girl as a wife. Up to this time it was a legitimate relationship, but once he is freed, it is not legitimate" [Kirzner: so the master may use force to eject him]. Come and take note: He who leaves a jug in the public domain, and someone else came along and stumbled on it and broke it—[the one who broke it] is exempt. So the operative consideration is that he stumbled on it. Lo, if he had deliberately broken it, he would have been liable. [This is contrary to Nahman's view.] Z. Said R. Zjbid in the name of Raba, "In point offact, the same rule really does apply even if the defendant deliberately broke the jug. And the reason that the language, and stumbled on it, is used, is that the later clause goes on to say, And if [the one who broke it] was injured by it, the owner of the barrel is liable [to pay damages for] his injury. But that would be the case only if he stumbled on it, but not if he deliberately broke the jug. How come? The man has deliberately injured himself. So that is why, to begin with, the word choice was and stumbled on it.

N o w the matter shifts from taking the law into one's own hands where there is prospect of loss to taking the law into one's o w n h a n d s in general. AA. Come and take note: "Then you shall cut off her hand" (Dt. 25:12)—that refers to a monetary fine equivalent in value to the hand. Does this not speak of a case in which the woman has no other way of saving her husband but doing

50 CHAPTER ONE

what she did [proving one may not take the law into one's own hands]? BB. No, it involves a case in which she can save her husband in some other way. CC. Well, if she cannot save her husband in some other way, would she be free of all liability? Then why go on to say, "And puts forth her hand" (Dt. 25:11)— excluding an officer of the court [from liability for humiliation that he may cause when acting in behalf of the court] ? Rather, why not recast matters by dealing with the case at hand, thus: Under what circumstances? When she can save her husband by some other means. But if she cannot save him by some other means, then she is exempt. DD. This is the sense of the passage: Under what circumstances? When she can save her husband by some other means. But if she cannot save him by some other means, then her hand serves as the agency of the court and she is indeed exempt. EE. Come and take note: He who had a public way passing through his field, and who took it away and gave [the public another path] along the side, what he has given he has given. But what is his does not pass to him [M. B.B. 6:7A-D]. Now if you maintain that someone may take the law into his own hands, then let the man just take a whip and sit there [and keep people out of his property]! FF. Said R. Zebid in the name of Raba, "It is a precautionary decree, lest he assign to the public a crooked path." GG. R. Mesharshayya said, "It is a case in which he gives them a crooked path." H H . R. Ashi said, "Any path that is over off to the side is classified as a crooked path to begin with, since what is nearer for one party will be farther for another." II. If that's so, then why specify, But what is his does not pass to him? Why can't he just say to the public, "Take what is yours and give me what is mine?" JJ. That is because of what R. Judah said, for said R. Judah, "A path that the public has taken over is not to be disrupted." KK. Come and take note: A householder who designated peah at one corner of the field, and the poor come along and take the peah from another side of the field—both this and

INTRODUCTION

39

that are classified as peah. Now if you maintain that a person may take the law into his own hands, why should it be the fact that both this and that are so classified? Just let the man take a whip and sit there [and keep people out of his property]! LL. Said Raba, "What is the meaning of the phrase, both this and that are so classified? It is for the purpose of exempting the designated produce from the requirement of separating tithes. For so it has been taught on Tannaite authority: He who declares his vineyard to be ownerless and then gets up early in the morning and harvests the grapes is liable to leave for the poor the grapes the fall to the ground, the puny bunches, the forgotten ones, and the corner of the field, but is exempt from having to designate tithes." T h e rules set forth as " c o m e a n d take n o t e " (plus s e c o n d a r y analysis) cover these native c a t e g o r y - f o r m a t i o n s of the H a l a k h a h : d a m ages by chattel (N), negligence (R), personal injury (T), negligence (Y), then, without r e g a r d to the possibility of loss, cases of personal i n j u r y (AA), e m i n e n t d o m a i n (EE), a n d conflict of claims b e t w e e n the h o u s e h o l d e r a n d the p o o r (KK). H e r e is a fine exercise in the f o r m a t i o n of a repertoire of cases d e e m e d to c o h e r e in a c o m m o n principle. T h e analytical p r o g r a m imparts c o h e r e n c e to the cases, a n d the persistent bias of the analysis—objecting in sequence to each case introduced to make the same p r o p o s i t i o n — p o i n t s t o w a r d the g o v e r n i n g principle that the c o m piler wishes to establish as n o r m a t i v e . N o t only so, but if I allege that the composite addresses the abstract principle, w h e n is it permitted to take the law into o n e ' s own hands? it is only because the T a l m u d itself articulates the question. A n d I merely claim that, in c o m p a r a b l e cases of focused composites, it is entirely legitimate to p r o p o s e that the composite e m b o d i e s a b r o a d a n d e n c o m p a s s i n g principle subject to detailed analysis t h r o u g h particular cases. T h e s e cases show us h o w in o u r quest for the social n o r m s of the H a l a k h a h we m a y follow the sages' m o d e s of t h o u g h t , on the one side, a n d m a n n e r of analytical a r g u m e n t , on the other. T h e one case articulates w h a t is m o r e c o m m o n l y accessible only t h r o u g h h y p o thetical reconstruction: the bridge f r o m the case to the governing rule, constructed through analogical-contrastive reasoning. T h e other case shows h o w the c h a r a c t e r of the composite itself b o t h identifies the abstract principle subject to discussion—here articulated in so m a n y w o r d s — a n d also signals the n o r m a t i v e view on the subject.

40

CHAPTER ONE

T h e two cases show two aspects of the way in which, r e a d i n g the H a l a k h a h as a set of answers, we m a y discern the questions that precipitate analysis.

VI. The First Teaching: Corporate Israel and the Individual Israelite In this first p a r t of the project, we ask w h e r e a n d h o w the H a l a k h a h sorts out the relationships of the individual a n d the c o m m u n i t y : the realm of responsible action a n d particular responsibility assigned by t h e H a l a k h a h to e a c h . P r o p h e c y , f r o m M o s e s f o r w a r d , a n d the H a l a k h a h f r o m the M i s h n a h o n w a r d , c o n c u r that the condition of "all Israel" dictates the standing of each individual within Israel, a n d f u r t h e r c o n c u r that each Israelite bears responsibility for w h a t he or she as a m a t t e r of deliberation a n d intention chooses to do. If individuals were conceived as a u t o m a t o n s , always s u b o r d i n a t e d agencies of the c o m m u n i t y , or if the c o m m u n i t y were c o n t e m p l a t e d as merely the sum total of individual participants, a particular social t e a c h i n g would hardly d e m a n d attention. But Scripture, c o n t i n u e d in the M i s h n a h , T a l m u d s , a n d M i d r a s h , insists that Israelites are individual responsible for w h a t they do, a n d f u r t h e r that c o r p o r a t e Israel on its o w n , not only as the sum of individual actions, forms a m o r a l entity subject to j u d g m e n t . H o w to sort out these intersecting matters, then, the obligations of the c o m m u n i t y , the responsibilities of individuals? W e begin this inquiry into the system of social t h o u g h t set forth by the sages within their larger structure of theology with a question precipitated by an ambiguity in the language of the R a b b i n i c writings. T o speak of the individual Israelite a n d to speak of the collectivity, Israel, the sages use the same w o r d , "Israel." In some contexts, it refers to "all Israel," a n d in others, to a particular m e m ber of the Israelite c o m m u n i t y . "All Israel possesses a p o r t i o n in the world to c o m e " (M. San. 10:1 A) c a n m e a n , "all Israelites" a n d also "the entirety of Israel," a n d I have n o d o u b t w h a t s o e v e r that that is precisely w h a t it does m e a n . T h e articulation of the s t a t e m e n t refers to persons a n d to entire classes a n d generations, so the a m b i g u ity persists. W h a t I w a n t to know is, h o w does the social t e a c h i n g of R a b b i n ic J u d a i s m hold together doctrines of individual obligations to Heaven a n d m u t u a l responsibilities, on the one side, with all Israel's c o m -

INTRODUCTION

41

mitments and public convictions, on the other? T h a t is a question that any systematic teaching for the social order will address, if that teaching both recognizes the individuality of persons and focuses upon the social order to begin with. T h e social teaching of normative J u d a i s m holds persons responsible for their actions, and it further takes as a given that corporate Israel forms a responsible moral entity as well. So the shape and structure of the data in h a n d — S c r i p t u r e , Mishnah, Talmuds, Midrash—leave no doubt that the issue addressed at the outset of this study is f u n d a m e n t a l and not anachronistic. T o answer the question, I have to prove, first of all, that the social t e a c h i n g of R a b b i n i c J u d a i s m does individuate, recognizing the personhood of Israelites, not only their subordinated position within corporate Israel. This I do in C h a p t e r T w o , where I distinguish individuality, which the H a l a k h a h recognizes a n d legitimates in certain contexts and media, from utter personal autonomy, for which I can find no analogies in concrete H a l a k h a h at all. For reasons articulated in Chapter Two, I argue that the systemic logic commences with the individuated person, whether Israelite or gentile, not with corporate Israel. T h a t is why, in C h a p t e r Three, I proceed to the logically subordinate question, since the individual (whether Israelite, whether gentile) forms the starting point, precisely where and how does c o r p o r a t e Israel take shape? T h a t p r o d u c e s H a l a k h i c answers, within the Halakhic native category-formations, to the question, where and how does corporate Israel nurture community a m o n g individual Israelites, producing an answer to the problem of defining Israel, both individual a n d corporate, as the H a l a k h a h in its classical formulation does. O n c e I have established the hegemony of corporate Israel over the individual Israelite and shown how this is effected, I turn to the logical next questions. T h e first is, how does the system negotiate legitimate difference, meaning, are there systemic remissions, areas where those Israelites that to not live up to the norms are sustained? T h e second and last question is, how does the social teaching of Rabbinic J u d a i s m identify those matters beyond any negotiation, where corporate Israel asserts its hegemony a n d realizes it? Here I identify, also, the ultimate union of corporate Israel with the individual Israelite: in eternal life, the given of the existence of the eternal corporate Israel, and the goal of the existence of the individual Israelite and the promise that awaits. So I claim to show that the question of how corporate Israel and the individual Israelite relate, answered in these pages, is native to

42

CHAPTER ONE

the category-formations of the H a l a k h a h , and is answered by those category-formations, properly construed. But it is also a question of acutely c o n t e m p o r a r y interest. T h e issue at h a n d concerns how the sages' contemplated social order m a d e provision for individual idiosyncrasy and personal predilection—and where and why, for what systemic reasons of a theological character—it did not. For in our own times people reflect on a comparable question: At what point does the individual's interest override that of the community, and when and where must the individual give way to the c o m m o n good? T h a t is not precisely the way that the R a b b i n i c sages would have f r a m e d the issues of, e.g., Sheqalim, T a a n i t and Berakhot, of Nazir a n d N e d a r i m , on the one side, or Erubin, Demai, a n d T o h o r o t , on the other (let alone Negaim and Sanhédrin, as I shall show). But these represent a c o n t e m p o r a r y rephrasing of the comparable issues of personal a u t o n o m y versus the public interest, to state matters in extreme form. These represent questions confronting religions of the West from the Protestant R e f o r m a t i o n for Christianity and the J u d a i c Reform a t i o n for J u d a i s m . Both u n d e r t o o k to validate change d e e m e d urgent by appeal to individual conscience over collective conviction and institutional interest; each in its theology affords a u t o n o m y to the radically isolated individual. In R e f o r m J u d a i s m the Israelite possesses a u t o n o m y of standing a n d j u d g m e n t , so that what is personally meaningful forms a validating criterion. But can Rabbinic J u d a i s m in its classical formulation contemplate such conceptions? Since the language of the H a l a k h a h for individual Israelite a n d for all Israel affords only a single word, "Israel," a n d since the Halakhah concerns itself with the collective life of its Israel, we have every reason to ask a simple question. W h e r e and how does the H a l a k h a h afford recognition to the individual Israelite at all: his or her perspective, judgment, attitude and taste? Protestant characterizations— e.g., Emil Schuerer's famous chapter of life u n d e r the l a w — o f j u daism as a religion for robots and conformists underscore the urgency of the issue. Not only so, but Protestant polemics against R o m a n Catholic Christianity and its tradition of hierarchy and obedience, and R e f o r m J u d a i c polemics against (what it concedes to be) O r t h o dox J u d a i s m , recapitulate in controversial terms the same persistent, perennial issue of the free society: individual rights balanced against collective concerns. So the issue emerges out of m o d e r n a n d cont e m p o r a r y theological polemic.

INTRODUCTION

43

But—even beyond the data reviewed in the shank of the book in the native category-formations of the H a l a k h a h — t h e question is native to Rabbinic J u d a i s m as well. For Scripture underscores the puzzle. T h e T o r a h wants all Israel to constitute a kingdom of priests a n d a holy people. T h e prophets f u r t h e r m o r e invoke G o d ' s wrath on the c o m m u n i t y for the conduct of the individual. T h a t principle of collective responsibility for private action leaves little space for the non-conforming personality. It is exemplified in the exchange o f j o s h u a and Achan at Josh. 7. Israel lost a battle, and Joshua turned to G o d to ask why he had a b a n d o n e d Israel. T o this G o d replies, "Israel has sinned; they have transgressed my covenant...they have taken some of the devoted things; they have stolen and lied and put t h e m a m o n g their own stuff. T h e r e f o r e the people of Israel cannot stand before their enemies...I will be with you no more, unless you destroy the devoted things from a m o n g you" (Josh. 7:10-12). J o s h u a then inspects the various households: " H e w h o is taken with the devoted things shall be b u r n e d with fire, he a n d all that he has, because he has transgressed the covenant of the Lord and because he has done a shameful thing in Israel" (Josh. 7:14-15). Achan was singled out, found to be guilty by his own confession, and punished. T h e point of the story for our purpose is simple. All Israel suffers because of the conduct of an individual. T h e n the individual bears responsibility for the fate of the c o m m u n i t y and owes the c o m m u nity conformity to the law. T h a t raises the question, how does the H a l a k h a h provide for a balance between the requirements of the collectivity and the rights of the individual, if any? And, to come to our starting point, precisely how does the individuality of the Israelite find its legitimation, so that the Israelite, not only corporate Israel, forms a moral entity, subject to divine j u d g m e n t by reason of his exercise of free will? W e begin with an account of where and how the Israelite exercises legitimate rights of individuation, and what limits Rabbinic J u d a i s m imposes upon the exercise of those rights, first by way of incentives, then by way of sanctions.

2.

I N D I V I D U A T I O N T H E

A N D

I S R A E L I T E

A N D

P E R S O N A L

A U T O N O M Y :

C O R P O R A T E

I S R A E L

Therefore man was created alone... ...to portray the grandeur of the Holy One, blessed be He. For a person mints many coins with a single seal, and they are all alike one another, But the King of kings of kings, the Holy One, blessed be He, minted all human beings with that seal of his with which he made the first person, yet not one of them is like anyone else. Therefore everyone is obligated to maintain, " O n my account the world was created." Mishnah-tractate Sanhédrin 4:5

I. Israel and the Individual Israelite W h i c h comes first, the individual or the c o m m u n i t y ? In the beginning, r e p r e s e n t i n g u n d i f f e r e n t i a t e d h u m a n i t y , are A d a m a n d Eve, both bearing individual responsibility. E a c h forms in his or her person a m o r a l entity, a responsible actor, subject to divine j u d g m e n t . O n l y twenty generations l a t e r — t e n f r o m A d a m to N o a h , ten f r o m N o a h to A b r a h a m — w o u l d a c o r p o r a t e society e n c o m p a s s individuals in a social o r d e r that surpasses a n d transcends its individual components. T w o social m e t a p h o r s serve, family a n d people or nation. But these are m e r e m e t a p h o r s , for "Israel" is sui generis. It c a m e into being with the f o r m a t i o n of A b r a h a m ' s , Isaac's, a n d J a c o b ' s family, constituted into Israel at Sinai. "Israel" is to be defined as a social entity that, for reasons to be spelled out, is u n i q u e . A m o n g nations, peoples, tribes, or o t h e r collectivities a n d groupings, there is n o c o m p a r a b l e social entity, because n o o t h e r social g r o u p forms also a m o r a l entity, responsible as whole a n d indivisible, not merely as the sum of the individual parts. T h a t précis briefly conveys the mythic f o r m u l a t i o n of J u d a i s m ' s t e a c h i n g c o n c e r n i n g the individual a n d the social o r d e r , the gentiles a n d Israel. Stated in m o r e abstract terms, R a b b i n i c J u d a i s m holds

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that the entirety of humanity by nature, from Creation, is comprised of individuals, each unique in some aspect from all others. T h a t is the point of the statement quoted above: " O n my account the world was created." But humanity is divided into two parts: the part m a d e up of mere, differentiated individuals, on the one side, and the part that out of individuals constitutes a corporate entity, on the other. T h e individuals w h o cohere in Israel also form a whole that transcends the some of the parts. And that is the sole social entity that outweighs the sum of its individual components and forms them into a social order u n d e r G o d ' s dominion. Individuals—all children of N o a h — t h e n are responsible for what they do, each a moral entity u n t o himself. C o r p o r a t e Israel, alone a m o n g all collectivities of humanity, constitutes a moral entity as well. T h e n , it follows, by way of definition, gentiles are individuals that add up to no more than themselves, while Israelites are individuals that surrender, give up, personal a u t o n o m y to form themselves into Israel. So the J u d a i c definition of humanity as m a d e up of distinct individuals covers both Israel and not-Israel (terms clarified in a moment). All children of N o a h , meaning, every h u m a n being, possess the legitimate power of self-expression: individuation. Each f u r t h e r m o r e lays claim to exercise personal autonomy. But by contrast to the rest of humanity in its radical individuation, the children of Israel form corporate Israel. T h a t unique social entity ("people") places limits upon the range of personal a u t o n o m y accessible to Israelite individuals. T h e social teaching of Rabbinic J u d a i s m will then differentiate individuality, characteristic of all humanity, from personal autonomy, accorded to gentile individuals but surrendered by Israelites, and consequently that J u d a i s m will also define the range of permissible individuation for Israelites. These represent the foundations of the social teaching of Rabbinic J u d a i s m . Before proceeding, let me define these terms, which pertain to all of humanity, including also Israel. By "individuation," I m e a n , the power of persons deliberately to distinguish themselves from one another, each from all others. All of humanity is minted with God's seal ("in our image"), yet not one is like anyone else. T h a t is the theological doctrine of individuality effected by processes of legitimate individuation. By "personal a u t o n o m y , " by contrast, 1 m e a n the right of individuals to define themselves in terms that are idiosyncratically generated, not in relationship to others at all. Personal a u t o n o m y r a t h e r distinguishes an individual f r o m all others and

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validates his or !1er insistence upon the right of radical isolation: personal conscience above other considerations and obligations, for example. Rabbinic J u d a i s m legitimates individuation but categorically denies the utter a u t o n o m y of persons. In this context individuation represents a claim to form of oneself a distinctive personality, one possessed o f t h a t " m y " in the claim, " O n my account the world was created." Individuation is contextual: in the setting of other persons, this is what makes me me. "Personal a u t o n o m y " represents a m u c h more extreme position than the mere allegation of legitimate, even c o m m e n d a b l e , individual difference. T h e claim of personal a u t o n o m y frees the individual f r o m having to answer to others at all. It is m o r e t h a n an exercise in comparison a n d contrast of the one with the other. Personal autonomy for the purposes of this inquiry represents the definition of the individual out of all relationship to the social order: his or her right to defy all social norms in the n a m e of individual integrity, e.g., a claim of absolute a u t o n o m y in the cause of truth. In c o m m o n contexts, rights of religious freedom, free speech, freedom of the press and of other media of expression, and above all f r e e d o m of conscience, exemplify the ways in which the legal expression of a social culture accords to everyone (or selected classes of persons, e.g., all who belong) the status a n d right of "personal a u t o n o m y . " Individuation is the celebration of the " I " over any "we." In the present context personal a u t o n o m y stands for the celebration of the "I" and the annihilation of the "we" altogether. In gross terms, people (erroneously) understand Paul a n d Luther to exemplify the introspective conscience of the West, its nurture of the personal a u t o n o m y that accords to individuals the freedom to be different in entire indifference to the c o m m o n interest. W h e n it is not only legitimate but lavishly praised to m a r c h to a different d r u m m e r , we c o n f r o n t the social reality of personal a u t o n o m y , entailing the rejection of hierarchy, obedience, and social order. We understand personal a u t o n o m y to represent a very different reading of the h u m a n condition from the claim of individuation, " O n my account the world was created." Distinguishing between individuation a n d personal a u t o n o m y , then, we proceed to the next step in the analysis. All h u m a n i t y — Israelite, not-Israelite—in accordance with the T o r a h as taught by Rabbinic Judaism—possesses the right of individuation. As to personal autonomy, within remarkably broad limits, all not-Israelites may

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claim close to complete personal a u t o n o m y , there being n o b o u n d aries of a social order to limit their range of activity. Within h u m a n i t y a single social entity forms out of selected individuals a c o r p o r a t e body. T h a t is to say, in constituting that group, the individuals f o r m a whole that imposes its b o u n d a r i e s , its shape a n d structure, u p o n the parts. A n d , it goes without saying, in so doing, the whole exceeds the sum of the parts. T h a t — s o we now realize—is Israel, which by definition f o r m s a collectivity t h a t t r a n s c e n d s the s u m of the individual c o m p o n e n t s thereof. Being "Israel" imposes u p o n individuals rights a n d responsibilities vastly in excess of the basic obligâtions i n c u m b e n t u p o n all individuals, the children of N o a h . T o t h e m , seven duties p e r t a i n , e.g., to establish courts of justice, refrain f r o m m u r d e r a n d adultery, h u m a n e t r e a t m e n t of animals, a n d the like. T o Israel h u n d r e d s of i m p e r a t i v e s — 6 1 3 it is alleged—pertain: " O n l y you have I k n o w n of all the families of m a n , therefore I will visit u p o n you all y o u r iniquities" is h o w A m o s put it (Amos 3:2). It is n o w clear t h a t t h a t social entity, " I s r a e l , " g e n e r a t e s two opposites. T h e first, we n o w realize, is "Israel" as against not-Israel, or "Israelite individuals" as against all other individuals, "everyb o d y else," or "gentiles." W h a t of the second? It is time to t u r n to the side that contrasts " I s r a e l " — t h e collectivity that is u n i q u e in h u m a n i t y — a n d individual Israelites. W e already realize, in general terms, that Israel, comprised by "Israels," or "Israelites," individuals, transcends its constitutive elements, Israelite individuals. So we ask h o w that social t e a c h i n g sorts out the relationships of the collectivity or c o m m u n i t y to the individual person a n d vice versa. H o w does Israel relate to the Israelite, the Israelite to all Israel. In the case of gentiles we n e e d not ask a b o u t relationships b e t w e e n individuals a n d the c o r p o r a t e c o m m u n i t y because there is n o such c o m munity, c o u n t e r p a r t to Israel at all. T h e social teaching of J u d a i s m therefore forms no doctrine of the matter. But, for reasons now amply set forth, we can ask the c o m p l e x question of h o w the Israelite is differentiated f r o m "all Israel." Since the Israelite enjoys the same rights of individuation as the rest of h u m a n i t y , the question presses: d o we discern, b e y o n d individuation, f o u n d a t i o n s for the personal a u t o n o m y of the Israelite. T h a t is because the social t e a c h i n g of R a b b i n i c J u d a i s m addresses Israel, the sole social order that, within that J u d a i s m , actually claims legitimate existence in G o d ' s perspective of h u m a n i t y . So the generative question must direct attention to that by which Israel is com-

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prised. T h a t is, as a m a t t e r of definition, by Israelites. G i v e n the c h a r a c t e r of the social entity that they comprise, we ask two questions. First, w h a t in theory are individuals in the context of Israel, by which I m e a n , w h e t h e r a n d h o w they exhibit traits that differentiate t h e m as individuals f r o m o n e a n o t h e r . T h e second question goes over the g r o u n d of the first: in theory d o individual Israelites also in some m e a s u r e differ f r o m "all Israel" or "Israel"? T h a t t u r n s attention to the m a t t e r of personal a u t o n o my, defined (and denied) j u s t n o w . So we ask, w h a t of the constitutive personal entities of the u n i q u e social entity, Israel? Because they are h u m a n , they e n j o y rights of individuation. But because they are Israel, we w o n d e r w h e t h e r they can legitimately assert if not personal a u t o n o m y then individual traits, taste a n d j u d g m e n t . T h e Aggadic statement of the m a t t e r with which we c o m m e n c e d gives way to the H a l a k h i c definition of the rights of individuation. All h u m a n beings are in some aspect unique. Individuation is a given, individuality a n axiom. But the Aggadic answer is, as usual, general a n d imprecise, i n a d e q u a t e to the g o v e r n a n c e of everyday transactions. It establishes the principle of individuality. But it does not define the f o u n d a t i o n s of the p e r s o n a l a u t o n o m y of the Israelite in partieular, meaning, precisely where does that a u t o n o m y register, a n d with w h a t result? W h a t we shall see is that the H a l a k h a h sets limits to individuation a n d in n o way sustains personal a u t o n o m y (within the definitions given earlier). T h e normative law is spun out as it negotiates the tension between two principles. T h e first is, the Israelite is subject not only to m a i n tain " O n m y a c c o u n t the world was c r e a t e d " — w i t h all that flows from that remarkable statement of self-assertion. T h e Israelite—unlike the gentile, that is, the idolater, by definition—is also part of a collectivity of s u p e r n a t u r a l c o n s e q u e n c e . So the Israelite is subject to the collective c o m m a n d m e n t , "You shall be holy, for I the Lord your G o d a m holy" (Lev. 19:2). T h a t forms an imperative stated in the plural that leaves little space for individuality in the setting of sanetification. A n d it leaves n o n e at all for personal a u t o n o m y . Scripture's, particularly the P e n t a t e u c h ' s , r e p e a t e d a d m o n i t i o n to Israel to r e m o v e wickedness f r o m its midst leaves n o d o u b t that the individual must c o n f o r m to the c o m m u n i t y - r u l e that G o d has revealed to Israel.

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So in this c h a p t e r we shall follow the concrete rules that specify the b o u n d s of legitimate difference: Israelite f r o m Israel: the foundations of individuation on w h i c h in the context of the social o r d e r of Israel the individual Israelite m a y build his or her individuality.

II. Individuation T o review briefly: however "Israel" be c a t e g o r i z e d — n a t i o n , people, w h a t e v e r — b y the criterion of the c a t e g o r y - f o r m a t i o n , Israel, everything else is something else. " T h e n a t i o n s " m e a n i n g not-Israel in the H a l a k h a h c o m p r i s e the sum of individuals, " c h i l d r e n of N o a h , " idolaters, responsible for p e r s o n a l c o n d u c t . O n l y c o r p o r a t e Israel bears collective responsibility for its m o r a l condition, of which the T o r a h a n d the prophets leave n o doubt. T h e individual Israelite finds a place within that m o r a l entity, a n d he is also responsible for his o w n actions within it. T h a t a c c o u n t s for an a m b i g u i t y in the very w o r d , "Israel." T h e w o r d for "collectivity of Israel," "people,' ‫ י‬or " c o m m u n i t y , " is Israel. But the w o r d in R a b b i n i c H e b r e w for the individual (male) is also Israel. T h e one e m b o d i e s the other. W h e n we speak of a n individual Israelite, a n a c c u r a t e r e n d i t i o n of the H e b r e w in front of us should require that we say, "Israel[ite]," distinguishing h i m f r o m the collectivity that encompasses him. 1 N o w , the language m i r r o r s the social teaching. All Israel share in the o u t c o m e of the actions of each; collective responsibility for individual action forms a critical c o m p o n e n t of the social t e a c h i n g of the T o r a h , written a n d oral. Given the u n i q u e standing of Israel as a social entity with n o c o u n t e r p a r t in other sectors of h u m a n i t y , we c a n h a r d l y find that principle surprising. But w h a t , t h e n , of the individual Israelite? At the h e a r t of the H a l a k h a h — t h e discussion of the a d m i n i s t r a t i o n of the d e a t h p e n a l t y a n d the legal process leading t h e r e t o — w e find in an Aggadic f o r m u l a t i o n integral to the 1

I say, "him," not "him a n d / o r her," because the ordinary word for woman is "bat yisra , el" "daughter of an Israelite," or "Israelite daughter." I cannot offhand think of a single passage in which a woman is referred to as "yisra'elit" as against a man as "yisra'el." A common context in which "yisra'el" refers to an individual, not to the entire group, will be defined by the contrast with idolater, e.g., in tractate Abodah Zarah. But that is only a minor example of the prevailing usage. I have the impression that, in contrast to "yisra'el," the word "yehudi," or "Jew" is rare in the Rabbinic canon. But I have not studied the matter systematically.

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presentation an explicit celebration of the singularity of every hum a n being, a m a r k of G o d ' s grandeur. T h a t presents no surprise so far as the singularity of gentiles is concerned; ten gentiles are just that, ten gentiles. T h e y do not form an entity beyond their individual presence, e.g., the q u o r u m of ten Israelites that stands in context for all Israel. T h e y possess no place in a social entity that they constitute in the way in which (ten) individual Israelites all together form Israel, e.g., to receive the T o r a h when it is declaimed. T h a t formulation of matters—differentiating the universal individuality of persons f r o m the unique collectivity formed by Israelite persons—leads us to anticipate deep thought on where a n d how personal a u t o n o m y is a f f o r d e d H a l a k h i c recognition in concrete terms. T h a t the individual Israelites form Israel requires no expianation; it is the axiom of the social teaching of this Judaism. But how does Israel recognize the a u t o n o m y of Israelites? We should expect that the H a l a k h a h will afford every opportunity for individuals to differentiate themselves f r o m others and, therefore, the Israel [ite] f r o m the c o m m u n i t y of "all Israel." A n d in fact, as we shall see, Rabbinic J u d a i s m finds a variety of ways to balance personal aspirations with the public good. But how the system recognizes that the Israelite not only forms p a r t of "all Israel" but also stands apart as a singular Israelite, bearing his or her own indicative traits, requires considerable study. Individuation, not personal autonomy, then defines the problematic of the matter. T h a t is because in the mythic narrative of R a b binic J u d a i s m , encompassing Scripture's story, the holy c o m m u n i ty, Israel, came into being when it accepted the T o r a h en masse, no provision being m a d e for individual option. Israelites spoke in one voice for all generations: we shall do a n d we shall obey. T h e T o r a h , written a n d oral, takes for granted that when u n d e r some circumstances private persons violate the law, they e n d a n g e r the commonwealth of all Israel. T h e n the interest of the community takes priority, the personal convictions or conscience of the individual finding no recognition. For example, the g a t h e r e r of wood who violated the Sabbath was accorded no appeal to conscience; at God's c o m m a n d he was executed. Another case, to which we return, is that of Achan, who, at J o s h u a 6 by his private conversion of the spoil, endangered the welfare of Israel as a whole, as did other individual sinners in other narratives. So there is no doubt in Rabbinic J u d a ism that G o d responds to the condition of the commonwealth, for

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which all bear responsibility severally and jointly (as at Sodom making provision for individual exceptions to be sure). T h a t is why, in general, it appears that the Israelite individual has no possibility of distinguishing himself, expressing his individuality or personality. Hillel at M . Abot 2:4C advises, " D o not separate yourself from the community." Not only so, but accepting the j u d g ment of the community, not imposing one's own views upon it or disrupting social cohesion, is the point of conciliating others and not contending with them. T h a t is the opposite of insisting on one's own views over the consensus of the commonwealth, thus M. Abot 3:10: R. Haninah b. Dosa would say, "Anyone from whom people take pleasure—the Omnipresent takes pleasure. And anyone from whom people do not take pleasure, the Omnipresent does not take pleasure." T h r o u g h o u t the Aggadic and Halakhic literature of formative R a b binic J u d a i s m comparable sentiments foster acceptance of the consensus of the faithful. It suffices to point out that, to achieve immortality within the framework of Torah-study, a sage must win a place for his personal opinion within the public consensus, and that is marked by the removal of his n a m e f r o m his position. Sayings that are a n o n y m o u s e n d u r e as authoritative. T h a t trait of the textual c o m m u n i t y of Rabbinic J u d a i s m underscores the priority over the c o m m o n good over the personal interest. T h a t fact has led some to conclude that (allegedly in contrast to Protestant Christianity) Rabbinic J u d a i s m accords no recognition whatsoever to the personal a u t o n o m y of the Israelite. Descriptions of life u n d e r the T o r a h ("law") have gone so far as to characterize the individual as subordinate to the group defined by the law: a robot and a u t o m a t o n , doing what he is told, lacking all traits of initiative or personal conviction. Nothing could be further from the truth. T h e normative H a l a k h a h makes ample provision for individuation, subject to limits of the community's consensus. It is easy to how that ethos comes to expression in its textual formulation. In the documents of Rabbinic J u d a i s m individual opinion functions within the framework of a rational debate that n u r t u r e d the full exposure of disagreement and at the same time stressed conciliation. Reason having been aired and rationality having been fully served, Rabbinic J u d a i s m valued conformity to the consensus of the community. T h a t trait of the literary culture of the Rabbis captures the Halakhic policy that frames the social order: individuality affirmed, personal auton-

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omy denied in favor of that transcendent Israel in which all partieipate. Precisely how the individuality of the Israelite enjoyed recognition and the expression of personality found legitimate place, form a primary c o m p o n e n t of the social teaching of Rabbinic J u d a i s m within the Halakhic category-formations. E n o u g h has been said to show that the given of the law is corporate Israel, so what requires attention is the individual Israelite. T h e H a l a k h a h deems it legitimate that Israel not only constitute a corporate moral entity but also encompass a n d recognize private persons as moral actors on their own. T h e law makes provision for individuals to distinguish themselves a n d express w h a t is utterly idiosyncratic: Israelites besides Israel. But it does so within its systemic framework, devising a definition of legitimate individuation that fits squarely with its governing theology. Essentially, individuals may single themselves out in two of three possible ways. As a m o n g [1] piety, [2] idiosyncrasy within the f r a m e w o r k of the law, a n d [3] impiety, the H a l a k h a h provides ample, legitimate opportunities for personal distinction in piety. It f u r t h e r m o r e closes off all possibilities for individuals impiously to violate the law, e.g., in the n a m e of conscience or self-differentiation. Finally, it accepts the reality of idiosyncrasy where private preferences make slight public difference. T h e occasions for personal expression through piety and through idiosyncratic actions of a neither pious nor impious character present themselves in the present chapter. H o w fully-articulated native category-formations provide for personal a u t o n o m y within the framework of the H a l a k h a h will occupy us. W e hardly need review the vast repertoire of laws that accord to individuals no right of private exception; law-violators have no recourse to a defense based on conscience. What class of persons in fact enjoys the option of individual recognition? T h e answer to that question carries us to the very center of the Halakhic system, the source of the dynamics of J u d a i s m ' s social teaching. T h a t is the focus on individual intentionality: the power of a person to f r a m e his or her distinct act of will. T h a t is the starting point of all else, a n d it dictates, also, the way in which the H a l a k h a h accords recognition to individual's personal autonomy. H o w does this h a p p e n ? Individuals are defined as those who within the f r a m e w o r k of the T o r a h are capable of a n d responsible for a u t o n o m o u s action. By definition the individual is a persons capable of independent volition. T o state matters otherwise: a class of

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persons d e e m e d able to f o r m an intentionality comprises individuals; those w h o are not responsible for their own will, e.g., children or imbeciles 01‫ ־‬the d e r a n g e d , also c a n n o t validly distinguish t h e m selves f r o m others before the law or in the f r a m e w o r k of the T o r a h . T h e y are not possessed of personal a u t o n o m y . N o r does a slave, w h o is subject to the will of his master, n o r in some aspects of the H a l a k h a h but not others does a w o m a n , w h e n she is subject to the will of h e r father, before p u b e r t y , or her h u s b a n d , after m a r r i a g e . But w h e r e a w o m a n has the p o w e r of f o r m i n g a n effective intentionality, she also has the right to claim individual a u t o n o m y . T o s u m m a r i z e : a critical social teaching, the starting point for all else, answers the question, h o w does R a b b i n i c J u d a i s m , r e s p o n d i n g to the private person's status as responsible for himself a n d also able to f o r m a valid intentionality, a c c o r d recognition, within the H a l a khic system, to individual taste, j u d g m e n t , a n d aspiration? T h e answer presents itself in the H a l a k h i c t h o u g h t on h o w to hold together the public a n d the personal dimensions of the relationship of Israel with G o d . For Israel, which in R a b b i n i c writing constitutes both a singular a n d a collective-plural n o u n , the Israelite a n d all Israel, looks to G o d . T h a t encompasses attitudes a n d actions on the p a r t of Israel (yisra'el) not only in its entirety but also as I s r a e l i t e ] s (one by one, in the H a l a k h i c sources called, also,yisra'el) t u r n to G o d in their individuality.‫ '־־‬N o w to t u r n to the first of the three dimensions of the m a t t e r : individuation in piety.

III. How the Individual Israelite is Differentiated: Arakhin T h r o u g h the offerings of the L a n d ' s flora a n d fauna, the T e m p l e cult actualizes all m a n n e r of theological a n d social theories on the architectonics—the relationships on earth a n d in H e a v e n — o f the kingd o m of priests a n d the holy people. T h e rites e n c o m p a s s offerings for the entire c o m m u n i t y of Israel—the daily whole offering paid for by a half-sheqel incumbent on all Israelite males e q u a l l y . T h e s e daily whole offerings a t o n e for all Israel collectively but also for individ‫ ־‬In British English, which treats collective nouns as plural, e.g., "the Government say," that distinction works better than in American English. Since we treat the collective noun as singular, e.g., "the Government says," this sentence jars. But I cannot think of a more precise way of formulating matters.

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uals as p a r t y to the c o m m o n w e a l t h . So all Israelites b e a r equally the obligation to s u p p o r t the public offerings of a t o n e m e n t . N o n e c a n contribute in his o w n behalf m o r e t h a n the r e q u i r e d half-sheqel. All are equally guilty; n o n e stands out. T h a t is the n a t u r a l focus for o u r inquiry into h o w R a b b i n i c J u d a i s m affords an o p p o r t u n i t y for individuation in m a t t e r s of piety. W e first ask about ways in which private persons are uniquely guilty a n d t h e r e f o r e i n d i v i d u a t e d b y a p e r s o n a l o f f e r i n g u n d e r the law applying to all Israel. U n d e r w h a t conditions are Israelites assigned a c o u n t e r p a r t , obligatory offering? Individuals d o e n j o y recognition in cases of bodily uncleanness a n d purification or of inadvertent sin. Purification rites for the Nazirite, the p e r s o n afflicted with the skin ailment of Lev. 13-14, a n d the w o m a n after childbirth, represent occasions o n which, to reenter the c o m m u n i t y , the private person is required to present an offering. T h e individual Israelite m a y present a sin-offering to a t o n e for the particular, u n i n t e n d e d act of sin that he has later o n realized he has c o m m i t t e d . O t h e r individual offerings are votive a n d s u p e r e r o g a t o r y , not obligatory. But while e m bodied, corporate Israel is required to present the half-sheqel, forming the parts into the whole for p u r p o s e s of cultic a t o n e m e n t , individuals in the context of the cult retain their responsibility for their own condition. But these hardly m a k e provision for initiative. T h e y represent n o m o r e t h a n individuation t h r o u g h distinct offerings r e q u i r e d of private parties—not the same thing. T h e specified purification- a n d sinofferings are n o m o r e optional t h a n is the half-sheqel for the daily whole offering. T h e y represent the o u t c o m e of the individual's having m a r k e d himself f r o m others in a negative context, e.g., by his being s e p a r a t e d f r o m the c o m m u n i t y t h r o u g h uncleanness a n d by his so acting as to regain entry into the c o m m u n i t y of Israel. T h e n h o w d o individual Israelites e n j o y — g a i n for themselves— positive recognition in the setting of the sacrificial offerings? T h e H a l a k h a h of Scripture as amplified by the R a b b i n i c sages affords to individuals the o p p o r t u n i t y of expressing their p e r s o n a l piety, so m a r k i n g t h e m off as distinguished f r o m all o t h e r persons. T h i s they d o not only votive offerings at their o w n discretion, such as t h a n k -

‫ י‬We deal with Sheqalim in greater detail in the context of how the Halakhah forms Israel into a corporate community, and of what that corporate character consists.

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offerings. Private persons have the option, further, of donating individual gifts to the T e m p l e a n d its sacrificial cult. As a matter of personal initiative individuals m a y consecrate to the cult something of value not directly joined with the sacrificial p r o g r a m of the cult at all in the way a votive offering is. Such supererogatory acts of sanctification of what is not in its essence pertinent to the holy altar at all m a y pertain either to persons (the value of M r . So-and-so) or to movables or to real estate. These in general are covered within the Halakhic category-formation of Arakhin, Valuations. T h a t is, specifically, the value of persons or movables or real estate is estimated, and the cash they generate is paid to redeem from the sanctuary the pledged value. T h e scarce resource, w h e t h e r personal or landed, is then t u r n e d into fungible cash, which goes to the T e m p l e for its upkeep. Individual acts of dedication represent, then, the recognition of private persons, not only as c o m p o n e n t s of c o r p o r a t e Israel but as individuals of distinction. Scripture explicitly makes provision for such votive offerings of not only animals but abstract personal worth, specifying the requisite n u m b e r of shekels that measure the worth of a person of a given classification. T h e individual, acting autonomously, then selects another individual, viewed autonomously, a n d pledges to the T e m p l e that individual's worth. I can think of no more concrete evidence of the possibility of personal initiative than this matching of donor and donation. For an adult male, the worth is set at a m a x i m u m of fifty shekels, that is, one hundred times the half-sheqel paid annually, for an adult female, sixty, and so on down. But those who sanctify their own value a n d cannot pay the fixed sum m a y be subjected to an individual evaluation. W h e n it comes to real estate, the Halakhah focuses upon the disposition of real estate received by inheritance, that is, real estate assigned in the original, perfect division of the L a n d to one or another specific party to the entry into the Land. Both personal valuations a n d dedications of real property—fields a n d houses u n d e r specified circumstances—represent donations to G o d through the T e m p l e and the priesthood. These private holdings are thus restored to the dominion of God, to w h o m the entire Land belongs, and with w h o m Israel possesses it in partnership. T h e matter of Valuations derives from Scripture, as follows: The Lord said to Moses, "Say to the people of Israel, When a man makes a special vow of persons to the Lord at your valuation, then

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your valuation of a male from twenty years old up to sixty years old shall be fifty shekels of silver according to the sheqel of the sanctuary. If the person is a female, your valuation shall be thirty shekels. If the person is from five years old up to twenty years old, your valuation shall be for a male twenty shekels and for a female ten shekels. If the person is from a month old up to five years old, your valuation shall be for a male five shekels of silver and for a female your valuation shall be three shekels of silver. And if the person is sixty years old and upward, then your valuation for a male shall be fifteen shekels, and for a female ten shekels. And if a man is too poor to pay your valuation, then he shall bring the person before the priest and the priest shall value him; according to the ability of him who vowed the priest shall value him." Lev. 27:1-8 T h e H a l a k h a h spells out how such a procedure is carried out, and in the details of its exposition, we discern a single tendency. It is to accord very broadly the rights of individuation t h r o u g h personal donation to the Temple. T h u s the Mishnah states in so m a n y words: MISHNAH-TRACTATE ARAKHIN

1:1

All pledge the Valuation [of others] and are subject to the pledge of Valuation [by others], vow [the worth of another] and are subject to the vow [of payment of their worth by another] : priests and Levites and Israelites, women and slaves. A person of doubtful sexual traits and hermaphrodites vow [the worth of another] and are subject to the vow [of payment of their worth by another], pledge the Valuation [of others], but are not subject to the pledge of Valuation by others, for only [a person of] clear masculine or clear feminine [traits] is subject to the pledge of Valuation [by others], A deaf-mute, an imbecile, and a minor are subject to the vow [of payment of their worth by another], and are subject to the pledge of Valuation by others, but do not vow the worth, and do not pledge the Valuation, of others, for they do not possess understanding.] One who is less than a month old is subject to the vow [of payment of worth by another], but is not subject to the pledge of Valuation. T h e upshot is, no class of Israelites capable of forming a valid intentionality is excluded f r o m the right of individuation. It is for the Israelite to single himself or herself out at that very point of the incarnation of corporate Israel, the T e m p l e altar itself. All n o r m a l Israelites, capable of an informed statement of intentionality, including w o m e n and slaves, m a y pledge the valuation of third parties and m a y be subjected to such a pledge of their worth by third par-

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ties. And any one who possesses value, even lacking a capacity of intentionality, m a y form the object of such a pledge. N o w we return to our starting point, the difference between corp o r a t e Israel a n d every other social formation. O n l y Israel forms a corporate moral entity before G o d ; the gentiles are comprised only of isolated individuals. A n d then, we recall, we inquired about the status of the Israelite individual. In this context, then, once we deal with individuals, not "all Israel," gentiles are not to be excluded. T h e y personally enjoy recognition as social actors, being in G o d ' s image as m u c h as is Israel. But they do not belong to any social entity that transcends themselves a n d enjoys Heavenly recognition in the way corporate Israel—which is sui generis—does. T h a t brings us to the category-formation at h a n d a n d explains why gentiles m a y participate in the acts of supererogatory piety that individuate Israelites. Since the pledge is one of volition, and since gentiles m a y sanctify offerings for thanksgiving or free-will donations to the cult, they may also pledge the value of others a n d are subject to such a vow. T h e details are subject to dispute: MISHNAH-TRACTATE ARAKHIN

1:2

The gentile— R. Meir says, "He is subject to the pledge of Valuation [by others], but he does not pledge the Valuation [of others]." R. Judah says, "He pledges the Valuation [of others] but is not subject to the pledge of Valuation [by others]." And this one and that one agree that they vow and are subject to the vow [of payment of worth]. T h e point of agreement underscores the f u n d a m e n t a l principle: any h u m a n being has the right to claim individual standing in the divine service. T h o s e in a special class of persons m a y do so as well, but only within their own class. T h a t class is formed of those whose volition is unclear, or whose indicative traits are not certain. T h a t is to say, a person of doubtful sexual traits may participate in his own class, but m a y not cross the lines to be valued on the pledge of third parties, for only a person of clear masculine or clear feminine traits is subject to the pledge of V a l u a t i o n by others. Persons of i m p e r f e c t senses, minors, a n d imbeciles m a y be the object of a Valuation but may not undertake a valuation, being assumed not to possess understanding. At the same time, individuation is not the same thing as hierarchical differentiation. W h e n it comes to valuations everyone in his

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assigned category is w o r t h the s a m e as everyone else in that category. T h e m i n i m u m p a y m e n t of a vow of V a l u a t i o n is a sela, so Lev. 27:8, a n d the m a x i m u m , fifty. O n e ' s status at the m o m e n t of valuation dictates w h a t is owing. But within the stated limits—age, condition—all p e r s o n s are w o r t h the s a m e fifty selas, a n d that is without r e g a r d to looks or skills or social s t a n d i n g or genealogy (a priest is not worth more, a mamzer less)4 or other gifts. T h e same rule applies to one w h o pledged the V a l u a t i o n of the m o s t b e a u t i f u l a m o n g Israelites a n d o n e w h o p l e d g e d t h a t of t h e ugliest a m o n g Israelites— he gives fifty selas in either case. If, h o w e v e r , he said, "Lo, his actual value is i n c u m b e n t o n m e , " he gives his actual value. T h e i m p o r t a n t p o i n t t h e n c o n c e r n s a v o w of V a l u a t i o n . Pledges of p e r s o n a l w o r t h , b y contrast, involve actual, individual assessment. T h e actual p a y m e n t is assessed in terms of the governing variable: the p e r s o n c o n c e r n i n g w h o m the v o w of V a l u a t i o n is m a d e , the p e r s o n w h o takes the v o w of V a l u a t i o n . T h e f o r m e r governs w h a t is to be p a i d , e.g., the m a t t e r of age, sex; the latter, the m a t t e r of ability to pay, which is relative to the ability of the o n e w h o takes the vow. A p o o r m a n w h o pledged the V a l u a t i o n of a rich m a n gives the V a l u a t i o n r e q u i r e d of a p o o r m a n . A n d a rich m a n w h o pledged the V a l u a t i o n of a p o o r m a n gives t h e V a l u a t i o n r e q u i r e d of a rich man. But in a d d i t i o n to the v o w of V a l u a t i o n , fixed b y the W r i t t e n T o r a h , the v o w of p e r s o n a l w o r t h f u r t h e r individuates. V o w s to p a y the value apply to anything, m a n or beast, live or slaughtered beasts, whole persons a n d limbs, a n d ability to p a y is n o t a n issue. N o w the individual is singled out as to his or h e r actual traits. O n e m a y vow to give his weight to the sanctuary, even in silver or in gold. H e m a y p l e d g e to give t h e w o r t h of his h a n d , in w h i c h case h e pays t h e difference between his value with, a n d without, a h a n d . If one pledges his own Valuation a n d dies, his estate pays; the obligation takes effect f o r t h w i t h . If he pledges his w o r t h a n d dies, the estate pays n o t h i n g . At the m o m e n t of p a y m e n t , w h e n the obligation takes effect, he is w o r t h nothing. But if s o m e o n e pledges the V a l u a t i o n of a third p a r t y a n d dies, or the p e r s o n c o n c e r n i n g w h o m the pledge is m a d e dies, the estate of the one w h o took the vow pays. If it is not the V a l u 4 It is interesting to note that the sage does not figure in any of the reckoning, e.g., as worth more than the priest; nor is a mamzer-sage deemed worth more than an ignorant high priest. Why the sage does not constitute a sub-set in the present context is not clear to me.

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ation b u t the w o r t h , the situation changes. If he said, " T h e price of so-and-so is i n c u m b e n t on m e " a n d the one w h o makes the vow dies, the heirs must p a y the vow. If the one c o n c e r n i n g w h o m the vow is m a d e dies, the heirs d o not have to pay. For corpses have n o price or value. T h e same c o n c e p t i o n emerges in the following: H e w h o says, " T h i s ox is a b u r n t - o f f e r i n g , " " T h i s house is q o r b a n , " if the ox died or the house fell d o w n , is not liable to pay. If he said, " T h e price of this ox is i n c u m b e n t on m e for a b u r n t - o f f e r i n g , " or "the price of this house is i n c u m b e n t on m e as q o r b a n , " if the ox died or the house fell d o w n , he is liable to pay. T h e upshot is simple. Individuation takes place in what is optional, not obligatory. G o d sees all Israel [ites] as equally obligated a n d responsible. T h e H a l a k h a h by its silence stresses that only c o r p o r a t e Israel carries out G o d ' s c o m m a n d m e n t s concerning public a t o n e m e n t offerings; individuals m a y not on their own initiative provide t h e m . T h a t is because one p e r s o n m a y not a t o n e for a n o t h e r person's sin, but all Israel must atone for the sin—e.g., the Golden Calf—for which all equally b e a r responsibility. 5 T h a t represents a key indicator in the recognition of the limits of individuation. T h e c o m m u n i t y alone acts in behalf of the entirety of Israel. N o t only so, b u t c o r p o r a t e Israel acts not on its o w n volition but only w h e n instructed to by G o d ' s explicit c o m m a n d m e n t . A n d G o d does not respect persons or provide for individuals an occasion for self-aggrandizement t h r o u g h acts of obligatory piety. T h a t is w h y n o one m a y c o n t r i b u t e m o r e t h a n the half-sheqel for the public a t o n e m e n t offerings. Recognizing neither wealth nor poverty, neither the perfect virtue nor the total c o r r u p t i o n of a given person, G o d permits n o individual distinctions w h e n it comes to a t o n e m e n t . If I h a d to explain why, I should point to the negative: everyone bears a b u r d e n of sin, a n d this is equally distributed in c o r p o r a t e Israel. All Israel equally b e a r guilt, having sinned collectively, not merely individually, for e x a m p l e with the Golden Calf, which set the stage for the provision of the cult. At God's w o r d Israel f o r m e d itself into a collectivity, a m o r a l entity, at Sinai; the T o r a h , once accepted voluntarily by the entirety of Israel, explicitly dictated c o m m a n d m e n t s p e r t a i n i n g to the whole c o m m u n i -

' In the cult, the priest acts in behalf of the inadvertently-sinful sacrifier (the person in whose behalf an offering is made). When the high priest atones for Israel, it is for all Israel, e, g ‫ ״‬at Lev. 16, encompassing the high priest and his family as well, for sins for which all bear responsibility.

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ty, not only to persons one by one (or, m o r e to the point, by f a m ilies, as at E x o d u s 12). But individuals d o vary in piety, as some sin m o r e , a n d m o r e grievously, t h a n others. O n t h a t basis, the H a l a k h a h individuates, also, in a f f o r d i n g occasions for s h o w i n g the distinctive virtue of dedication to G o d of the goods of this world. T h e n w h a t place d o individuals find for themselves for uniquely personal self-expression? It is t h r o u g h distinguishing themselves in the n a t u r a l a n d concrete expression of their devotion to G o d . W h a t e v e r derives f r o m individuals, by reason of personal initiative a n d idiosyncratic motivation to c o n t r i b u t e to the public interest goes to the u p k e e p of the T e m p l e , not to the altar except in special circumstances to which the H a l a k h a h m a k e s r e f e r e n c e . 6 T r u e , as briefly n o t e d at the outset, individuals m a y p r e s e n t offerings as well. T h i s they m a y d o in three contexts, all of a single class. T h e first is the offering is presented w h e n private persons are c o m m a n d e d to, for instance, in c o n n e c tion with p u r i f i c a t i o n - r i t e s . T h e s e c o n d c o m e s w h e n a n existing obligation is a u g m e n t e d , for e x a m p l e , in the a d d e d offerings on the occasion of pilgrimage rites, covered by the H a l a k h i c category-form a t i o n , H a g i g a h . T h e third is w h e n the individual is p e r m i t t e d to present an optional votive offering, e.g., a peace-offering or a thankoffering. In all three cases, G o d has p r o v i d e d for occasions to acc o m m o d a t e private circumstances, e n c o m p a s s i n g even individuallym o t i v a t e d offerings. But these d o n o t r e s p o n d to t h e act of c o m m a n d m e n t of all Israel, as the public offerings do. A n d even individual gentiles m a y p r e s e n t offerings of a specified c h a r a c t e r . W i t h the stated exception of the a u g m e n t a t i v e offerings (covered in H a g i g a h C h a p t e r O n e ) , provision to present personal offerings represents an a c c o m m o d a t i o n of the individual's exceptional situation. T h a t m a y prove negative in the case of uncleanness or positive in t h e case of d e v o t i o n . P e r s o n a l offerings d o not r e p r e s e n t occasions for o b e d i e n c e to c o m m a n d m e n t s , with the exceptions of the Passover a n d the festal offering (Hagigah). T h e s e , we note, are incidental to the e n c o m p a s s i n g c o m m a n d m e n t c o n c e r n i n g the festival pilgrimage. In this context, then, the stress in Arakhin u p o n the consecration of "value" or scarce resources for the u p k e e p of the T e m p l e house bears b o t h a positive a n d a negative point. T h e pos-

6

T h a t would be, for instance, a donation including beasts that may serve as offerings, but these then are processed into the system of obligations.

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itive is, when people wish to act for G o d in the public interest, they do so through helping to maintain the public place. T h e y cannot ordinarily affix their names in that space; the worth they contribute is abstract and not preserved in concrete form. T h e negative is, when people propose to distinguish themselves in divine service, they only contribute to the location, not to the activity that takes place in behalf of entire Israel. So far as the cult forms the critical center for individuation, a single fact governs: the limits imposed u p o n the individual's opportunity for distinguishing himself. W h e n it comes to the public, obligatory offerings of corporate Israel—I cannot overstress—all males must participate in exactly the same measure, and females m a y participate as well. W h e n it comes to supererogatory and votive participation in the cult, no one m a y u n d e r t a k e the obligatory c o r p o r a t e offerings. For the sin that requires a t o n e m e n t by entire Israel, each individual is equally guilty, n o n e less, no more. T h e upshot is, unless subject to a c o m m a n d m e n t to do so, for instance, in connection with the Passover, individuals may present offerings only in their own behalf. T h a t is when they are required by reason of inadvertent and unintentional sinful actions and their counterparts, or when motivated by reason of celebration, e.g., offerings to a u g m e n t the obligatory ones for the pilgrimage or for Passover. So when it comes to presenting offerings to G o d on the altar, corporate Israel acts by reason of G o d ' s instructions a n d c o m m a n d m e n t s , a n d individual Israelites cannot act in behalf of the entirety of Israel. Individuals, accordingly, contribute their scarce resources, whether m o v a b l e p r o p e r t y , realty or personalty (property in the f o r m of persons), to the public space that is consecrated to G o d . T h a t they have the right to do, because they possess a n d m a y dispose of goods and land a n d — i n a world that countenanced slavery (the buying and selling of persons for their labor)—also themselves, their own m a r ket-value. O f this they m a y dispose in accord with their own will; they make his will their will, their property his. So they give what they c o m m a n d , in proportion to what they hold. A n d that to which they give then corresponds to what is given: individual worth to the worth of the T e m p l e building, individually-possessed land to the sacred space that sustains the T e m p l e . In that they really are distinguished f r o m one another; in that they willfully distinguish themselves in Godly dedication. But here the H a l a k h a h maintains that G o d ' s perspective differs

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f r o m m a n ' s . W h e n it comes to G o d ' s Valuation of persons, all are equal; when it comes to man's, the beautiful are worth and give more, the ugly less. T h a t underscores the fact: w h e n the H a l a k h a h takes the measure of individuals within entire Israel, all weigh equally a n d give appropriately. W h e n the H a l a k h a h accords to individuals the right to distinguish themselves, it carefully defines that by which they take their own measure a n d restricts to appropriately-corresponding loci a n d foci that to which they then m a y donate. T h a t is why, when moved to volunteer to G o d something of personal value, individual I s r a e l i t e s ] have every right to pledge the value of their persons or property. In line with the Written T o r a h , the H a l a k h a h of the O r a l T o r a h d e e m e d it entirely rational to devote scarce resources to the upkeep of the T e m p l e , entirely p r o p e r for individuals to do so on their own. A n d , — a point we should not miss—also in line with the provisions of Leviticus, supererogatory donations to the priesthood, either immediately, through the h e r e m , or in the course of n a t u r e at the end of the Jubilee-cycle, certainly h a d their place. T h a t fact brings us to a f u r t h e r answer to the question, W h y is it that individuals h a d the right voluntarily to contribute to e n h a n c e public space in the holy place, on the one side, a n d to sustain the priesthood, on the other? T o answer that question out of the Halak h a h , we ask a n o t h e r : U n d e r o r d i n a r y circumstances, w h o must support the priesthood a n d its activities? T h e answer is, the householder, out of the p r o d u c e of his land. T h e n in permitting individuals to pledge personal Valuations of themselves for the support of the T e m p l e , the H a l a k h a h treats the population without land, ineluding the population without the L a n d , as equal in all ways to the enlandised householder. T h e entire population of Israel, at home and in the Exile, finds itself in a position of equality vis à vis the holy place a n d its staff. T h e stress on the equalization of all Israel in the m a t t e r of personal Valuations is explicit: wealth a n d poverty, beauty a n d its opposite—these play no role in assessing the worth of a person who pledges his, or another's, Valuation to the upkeep of the T e m p l e a n d its priesthood. A n d just as the householder m a y contribute m o r e t h a n the prescribed m i n i m u m , m a y decorate his firstfruits a n d contribute the supplementary decorations, for example, so every individual enjoys the same option. H e or she has every right to pledge not the fixed Valuation—the prix fixe—but the actual worth, and the Halakhah takes pains to differentiate the fixed Valuation from the actual worth a n d dictate how the latter is assessed.

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W e should not, however, lose sight of that other focus of the H a l a k h a h , the dimension of enlandisement. Scripture is explicit in the matter: If a man dedicates to the Lord part of the land that is his by inheritance, then your valuation shall be according to the seed for it; a sowing of a homer of barley shall be valued at fifty shekels of silver. If he dedicates his field from the year of jubilee, it shall stand at your full valuation, but if he dedicates his field after the jubilee, then the priest shall compute the money-value for it according to the years that remain until the year of jubilee, and a deduction shall be made from your valuation. And if he who dedicates the field wishes to redeem it, then he shall add a fifth of the valuation in money to it, and it shall remain his. But if he does not wish to redeem the field, or if he has sold the field to another man, it shall not be redeemed any more; but the field, when it is released in the jubilee, shall be holy to the Lord as a field that has been devoted; the priest shall be in possession of it. If he dedicates to the Lord a field that he has bought, which is not part of his possession by inheritance, then the priest shall compute the valuation for it up to the year of jubilee, and the man shall give the amount of the valuation on that day as a holy thing to the Lord. In the year of jubilee, the field shall return to him from whom it was bought, to whom the land belongs as a possession by inheritance. Every valuation shall be according to the sheqel of the sanctuary: twenty gerahs shall make a sheqel. Lev. 27:16-25 If through pledges of Valuation the H a l a k h a h makes provision for those without land and without the Land to participate in the support of the sacred space and its servants, it accords to a particular class of householders a very special opportunity. T h a t class consists of Israelites w h o hold shares in the Land by reason of inheritance, that is, Israelites who are enlandised by genealogy. T h e y represent the incarnate union of Israel and the L a n d — t h e family bound to the Land f r o m the very beginning. T h a t is a form of individuation we should not miss: that of the family possessed of the Land from the very beginning of Israelite settlement. Theirs is something very particular to give, if they wish. It is land within the Land received by inheritance is land received in the division of the Land in that perfect m o m e n t at which Israel came to rest, before sin renewed the wanderings. Sages maintain that, had Israel not sinned, Scripture would have concluded with the book of J o s h u a ; there would be no further story to tell. T h a t accounts for the conception of the original division, in stasis, as the point at which

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sinless Israel attained perfection—if only for a brief spell. And that conception explains the H a l a k h a h before us, that is, the reversion to the perfect beginning of Israel in the Land. Specifically, when that part of Israel that holds Land from the originally-perfect division in stasis are moved to sanctify their portion of the L a n d to G o d , that land in the natural course of events finds its way into the possession of the priesthood. If the original family attached to the L a n d — t o a particular plot of l a n d — n o longer holds it, then how better to regain perfection than assign the plot to the priesthood, to hold in perpetuity in behalf of all Israel, beneficiaries of the priesthood and its labor in the divine service. H e r e the circle closes; here we identify the ultimate m e d i u m for the incarnation of Israel in the L a n d , that class of Israel that is sustained by G o d ' s portion of the produce and that is required to eat G o d ' s portion of the p r o d u c e in conditions of cultic purity. T h e priesthood, denied a portion by families in the Land and nourished instead by G o d ' s share, now collectively, as a genealogical entity, enters upon possession of the Land, which, in consequence, returns to G o d ' s dominion in an exact sense. Here, then, a particular class of Israel, the genealogically-enlandised, as I said, representative of the perfection of old, has in its power to take a step toward the restoration: the repossession of the Land in behalf of entire Israel. T o understand the details of the matter, we recall that if someone dedicates a field received by inheritance, he redeems it from the T e m p l e (that is, contributes the cash in place of the land) by a fixed valuation set in relationship to the Jubilee: an annual payment collected for the years that the purchaser of the land m a y utilize the field before restoring ownership to the original d o n o r at the advent of the Jubilee. If someone dedicates a field he has (merely) purchased, it is sold for whatever it is worth; the one w h o bought a n d then dedicated it never gets it back. If the field is not redeemed by the person who received it in the lineage of the original division of the Land, the priests get it. T h e upshot is simple: over time, through the working of the J u b i l e e Israel restores to G o d the possession, not merely the ownership, of the Land. T h a t is in two distinct processes. First of all, a part of the Land returns to G o d ' s dominion through the priesthood, which receives title as noted to those fields received as an inheritance that are not redeemed at the Jubilee. Second, at the Jubilee, the climax of seven Sabbatical years, the entire Land not only reverts to the condition

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of public, ownerless p r o p e r t y — a l l now belonging to G o d — b u t also regains its original condition. T h a t is to say, the L a n d is restored to that condition of stasis that it attained w h e n Israel first entered into, a n d divided the L a n d a n d before Israel's sin, leading to the loss of the L a n d , c o m m e n c e d . T h e J u b i l e e reclaims for the L a n d the condition it e n j o y e d before Israel sinned a n d the L a n d passed into other h a n d s . W h e n it comes to a f f o r d i n g recognition to the a u t o n o m y of the private person within corporate Israel, the H a l a k h a h sets forth a large a n d coherent native category-formation, Arakhin. However complex the details, though, the statement proves simple: Israel has the power to effect the sanctification of w h a t is subject to Israel's o w n will. Severally, not only jointly, Israel engages with G o d as G o d wishes to be e n g a g e d with. A n d that e n g a g e m e n t brings a b o u t transactions b o t h enlandised a n d t r a n s c e n d e n t . So m u c h for the p r i m a r y focus of piety, the T e m p l e a n d its cult. But to ask about individuation, that setting proves somewhat off-center. T h e individual in the cult makes choices out of a p r e - d e t e r m i n e d m e n u of possible actions. But the possibilities of v i r t u e , not limited to a p p r o v e d d o n a t i o n s to the T e m p l e , vastly outweigh the opportunities for individuation afforded by the center of divine service. T o these we n o w turn.

IV. Halakhic Recognition of Individual Virtue: Berakhot, Taanit W h e n it c o m e s to p e r s o n a l virtue, piety in p a r t i c u l a r , n o native c a t e g o r y - f o r m a t i o n functions. T h e r e is n o n e that is c o m p a r a b l e to Arakhin, that identifies a n d organizes the facts c o n c e r n i n g h o w individuals on their own, not in the cultic context, single themselves out of the c o m m u n i t y . T h e H a l a k h a h presents n o well-constructed tractate on how individuals m a y through supererogatory acts of otherthan-cultic piety or virtue legitimately distinguish themselves within corporate Israel. But that fact corresponds to the indeterminate range of possibilities for the expression of personal piety a n d individual virtue a f f o r d e d within the T o r a h . Principles e m e r g e in cases but d o not then play themselves out in systematic statements of categoryformations. T o be sure, both Scripture in countless passages a n d the R a b b i n i c d o c u m e n t s p o r t r a y the distinctive piety of private persons a n d their heroism in the f r a m e w o r k of the T o r a h . But these portraits are not then recast into n o r m a t i v e rules of c o n d u c t in diverse

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situations on the part of undifferentiated Israelites. Heroes do not yield laws for the social order, though they exemplify their realization in remarkable form. Nonetheless, compositions, if not topical composites j o i n e d in systematic category-formations, do portray the person who singles himself out in piety. T h e y show how the H a l a k h a h accommodates his aspiration to do so. Some compositions further define the criteria that H e a v e n imposes in the selection of persons distinctively pleasing to God, to whose piety or humanity G o d responds not under coercion but graciously. Halakhic composites of Berakhot address the former, T a a n i t , the latter. While neither reaches expression in the orderly and detailed way that Arakhin lays out individuation in the cult, both fill in gaps in the Halakhic account of the recognition of the individuality of the Israelite. T h e y define the grounds for individual autonomy: initiative in piety that is not ostentatious or m e a n t for self-aggrandizement. T h e tendency of the H a l a k h a h allows us to characterize the system's r e a d i n g of the m a t t e r , even though, as I said, large-scale native category-formations do not spell matters out in requisite detail. T h e social teaching that emerges may be stated simply. An individual m a y exceed the n o r m in undertaking onerous duties, but not in volunteering for those that bestow distinction. T h u s individuals m a y fast in behalf of the community, but if they show an excess of ostentatious virtue, they are c o n d e m n e d — a fine line indeed, but one that is illuminated in specific cases a n d discussions, all with the same outcome. Since Arakhin speaks of the initiatives private persons may take in the f r a m e w o r k of the cult to m a r k themselves off as special, let us turn first to counterpart measures that individuals may take in the framework of public piety as defined by the H a l a k h a h . W h a t follows is a clear consideration of how individuals single themselves out within the Halakhic framework. W h a t is at issue is recitation of the S h e m a ' , by the recitation of which the Israelite accepts upon himself the dominion of the kingdom of Heaven. T h a t is ordinarily recited m o r n i n g and night, but the bridegroom is exempt. W h a t if nonetheless one wishes to do so? T h a t is what is at stake here. M . BERAKHOT 2 : 5

A.

A bridegroom is exempt from the recitation of the Shema' on the first night [after the wedding] until after the Sabbath |following the wedding],

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B. C. D.

E.

if he did not yet consummate the marriage. M'SH B: Rabban Gamaliel who was married and recited the Shema' on the first night of his marriage. [His students] said to him, "Did our master not teach us: Ά bridegroom is exempt from the recitation of the Shema' on the first night'?" He said to them, "I cannot accede to you so as to suspend myself from [accepting] the kingdom of heaven [even] for one hour." M . BERAKHOT 2 : 6 - 7

A. B. C.

[Gamaliel] washed on the first night after the death of his wife. [His students] said to him, "Did not our master teach us that it is forbidden for a mourner to wash?" He said to them, "I am not like other men, I am frail." M. 2:6

A. B.

C.

And when Tabi, [Gamaliel's] servant, died [Gamaliel] received condolences on his account. Said to him [his students], "Did not our master teach us that one does not receive condolences for [the loss of] slaves?" He said to them, "Tabi my slave was not like other slaves. He was proper (kasher)." M.

2:7

T h e composite of stories about Gamaliel's actions touch on the issue of distinguishing oneself in piety at M . 2:5; there Gamaliel declines to accept the concession that frees a bridegroom from the obligatory act of worship. T h e n , at M . 2:8, the matter is recapitulated. Now Gamaliel's action is represented as the norm, and his son, Simeon, rejects that view. Not everyone who wishes to claim the standing of the disciple of the sage may do so. T h a t is the key point. If someone shows himself to be exceptionally pious, this may be interpreted as an act of self-celebration and rejected. Flaunting one's piety or standing in T o r a h - l e a r n i n g is not acceptable within the Halakhah. As we shall see, the two T a l m u d s focus on the formulation of matters at M. 2:8. T h e Yerushalmi's reading of the matter, which broadens the discussion and so transforms the case into a rule, is as follows, with the pertinent p a r a g r a p h of the Mishnah reproduced:

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MISHNAH-TRACTATE BERAKHOT 2 : 8

A. Β.

If a bridegroom wishes to recite the Shema' on the first night [after his wedding]—he may recite it. Rabban Simeon b. Gamaliel says, "Not all who wish to take the name [so claiming high rank as a sage] may do so." YERUSHALMI BERAKHOT 1.1

I.

It was taught: In all matters [of religious obligations] entailing [A] pain [such as a fast], anyone who wishes to single himself out [to observe them] may do so. A disciple of the sages may observe them and will receive a blessing. [Y. understands M. 2:8B to mean: Not everyone who wishes to assume upon himself the title, disciple of the sages, may do so.] And in all matters [of religious obligation] entailing benefit [B] [such as wearing a special Prayer shawl], not everyone who wishes to single himself out [to observe them] may do so. A disciple of the sages may do so unless they appoint him an administrator of the community [lest people suspect him of taking graft].

N o w the Yerushalmi broadens the range of discourse by specifying other cases altogether, which show how the principle just now enunciated works in a completely different matter, that is, from the case we proceed to the governing rule a n d a d u m b r a t e d the principle. I indent to show the relationship of the pericope to its setting, just now given: [C]

It was taught: They may move over to walk on the sides of the road [on private property] to avoid [walking on] the hardened clay of the roads. And at a time when one sinks into [the mud of the road, he may move over to walk on the private fields on the side of the road] even to a field filled with crocuses [though it may cause considerable loss to the owner]. [D] Said R. Abbahu, "Once Rabban Gamaliel and R.Joshua were walking on the road and moved over to walk on the sides of the road on account of the hardened clay of the road. And they saw R. Judah b. Pappos who was sinking into the mud as he came towards them. [E] "Said Rabban Gamaliel to R. Joshua, 'Who is this who singles himself out [as so righteous a person who does not traverse private property even though he is sinking in the mud]?'

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[F]

"He [Joshua] said to him, 'It is J u d a h b. Pappos whose every action is for the sake of heaven.' [G] "He [Gamaliel] said to him, 'Is it not taught, In all matters entailing benefit not everyone who wishes to single himself out may do so. A disciple of the sages may do so unless they appointed him administrator of the city'!?' [Even in this matter, where J u d a h was permitted to benefit by leaving the road, he chose to act righteously. This seems to be a haughty attitude.] [H] "He [Joshua] said to him, 'Behold it is taught, In all matters [of obligations] entailing pain anyone who wishes to single himself out may do so. A disciple of the sages may observe them and he will receive a blessing.'" [Judah did not act in a haughty way. He followed the rule, since walking in the mud is a matter which entails pain.] People m a y select themselves for o n e r o u s duties, b e y o n d w h a t the law requires. But they m a y not a s s u m e for themselves distinguished traits that a r e a source of p e r s o n a l a g g r a n d i z e m e n t , e.g., h o n o r . C H b r o a d e n the discussion. T h e story b r o a d e n s matters f r o m religious o b s e r v a n c e s to ethical obligations. E x e r c i s i n g the p u b l i c right of e m i n e n t d o m a i n , o n e m a y cause loss to the f a r m e r if using the r o a d is t r o u b l e . S o m e o n e w h o r e f r a i n s f r o m t a k i n g a d v a n t a g e of t h a t lenient ruling of the H a l a k h a h is perceived as ostentatious, h e n c e not righteous but self-righteous. T h a t is w h a t he displays at great p e r s o n a l trouble avoiding the exercise of a concession. T h e p e r s o n is accused of a h a u g h t y attitude in so distinguishing himself for his meticulous a v o i d a n c e of causing d a m a g e to the f a r m e r ' s p r o p e r t y . But the resolution of the m a t t e r , H , invokes the p a r t i c u l a r H a l a k h i c ruling of I.A. T h e Bavli presents the issue in this l a n g u a g e . Italics signal A r a m a i c , plain type, H e b r e w . BAVLI TO MISHNAH TRACTATE BERAKHOT 2 : 6 - 8 I I I . 1 / 1 6 B

III. 1 A. B.

C.

If a bridegroom wishes to recite the Shema' [M. 2:8A]: [Does the statement of Rabban Simeon b. Gamaliel at M. 2:8B] bear the implication that Rabban Simeon b. Gamaliel takes account of the possibility of showing o f f , and the rabbis do not? But 10, we have heard exactly the opposite views imputed to both parties. For we have learned in the Mishnah: Where they are accustomed to do work on the ninth of Ab, they do it. Where they are accustomed not to do work, they

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do not do it. And in every place disciples of sages refrain from labor. D. Rabban Simeon b. Gamaliel says, "Under all circumstances should a man act on his own like a disciple of a sage" [M. Pes. 4:5A-D]. E. There is then a contradiction between the two sayings assigned to rabbis, and there is a contradiction between the two sayings assigned to Rabban Simeon b. Gamaliel. F. Said R. Yohanan, "Reverse the theories [assigned to the respective parties]." G. R. Shisha, son of R. Idi, said, "There is no need to make such an exchange. The position of rabbis in the one passage does not present a contradiction to the position of the rabbis in the other. As to the recitation of the Shema', since everyone says it, if the bridegroom also says it, it will not look as though he is acting in a self-important way. But here, since everyone else does work, if he does not do work, it will appear as though he is acting in a self-important way. The views of Rabban Simeon b. Gamaliel likewise do not contradict one another. In that other matter [involving the recitation of the Shema'], the matter depends upon proper attitude, and we can give testimony that under the conditions [of newly-weds], the man cannot properly attain the right attitude. But here [in the matter of refraining from work, which Simeon permits anyone to do], one who sees [the man refrain from work] will say, 'He simply does not have a job.' For go and see how many unemployed people there are in the market-place. " T h e Bavli's interest is in h a r m o n i z i n g the positions of n a m e d a u t h o r ities, so that they not a p p e a r to take self-contradictory positions. But the u p s h o t for o u r i n q u i r y is u n c h a n g e d . O n c e m o r e the g o v e r n i n g c o n s i d e r a t i o n is, o n e is not p e r m i t t e d to show off by acts of supere r o g a t o r y piety. T h a t w o u l d r e p r e s e n t the p r e t e n s e of b e l o n g i n g to the class of disciples of sages. T h e solution of R . Shisha, G , m a k e s m a t t e r s explicit: o n e c a n n o t act in a self-important way. I n this w a y the H a l a k h a h finds a m i d d l e p a t h . It p e r m i t s individuals to exceed the n o r m . But it c o n d e m n s their d o i n g so in a display of h a u g h t i ness. T h a t f u n d a m e n t a l principle places the H a l a k h a h in explicit o p position to the conduct of those c o n d e m n e d in the Gospels for making a display of their piety, r a t h e r t h a n c o n d u c t i n g their p r a y e r s a n d p e r f o r m a n c e of religious duties in a spirit of humility a n d modesty. I n d e e d , the law not only rejects w h a t p e o p l e called " p h a r i s a i s m , " it rejects the Pharisees [perushim/abstainers) in so m a n y words, using language as c o n t e m p t u o u s as that of the Gospels. T h e passage of the

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M i s h n a h is marked off in indentation right a n d left, Aramaic in italics, H e b r e w in plain type. MISHNAH-TRACTATE SOTAH 3 : 4 J - L

J.

R.Joshua] would say, "A foolish saint, a smart knave, an abstemious woman, K. "and the blows of abstainers (perushim)— L. "lo, these wear out the world." BAVLI TO M . 3 : 4 X . 1 / 2 2 B

X.l

A. B. C. D.

and the blows of abstainers (perushim/Pharisees)—these wear out the world: Our rabbis have taught on Tannaite authority: There are seven types of abstemious persons [alt.: "Pharisees"]: T h e abstemious person of the Shikmi sort, the abstemious person of the Niqpi sort, the abstemious person of the Qizai sort, the abstemious person of the pestle sort, the abstemious person [who says], "What is my duty, for I shall do it," the abstemious person out of love, the abstemious person out of fear. E. "The abstemious person of the Shikmi sort:" this is one who does the deeds of Shechem [who circumcised himself for an improper motive, hence, one who does the right thing for the wrong reason], F. "The abstemious person of the Niqpi sort:" this is one who knocks his feet together [walks with exaggerated humility]. G. "The abstemious person of the Qizai sort:" said R. Nahman bar Isaac, "This one lets his blood flow against walls" [in his anxiety to avoid looking up on a woman, he dashes his face against the wall]. H. "An abstemious person of the pestle sort:"—said Rabbah bar Shila, "One who bows his head like a pestle." I. "An abstemious person [who says], 'What is my duty, that I may do it?'"—Is this not a virtue [and hence should not fall into the present classification]? J. Rather it is one who says, "[Tell me] what is my duty beyond [what I have done], and I shall do it." K. "An abstemious person out of love, an abstemious person out of fear:" Said Abbayye and Raba to the Tannaite authority [who repeated the tradition at hand], "Do not repeat [in your version of the teaching] 'An abstemious person out of love, an abstemious person out of fear.'"

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L.

M.

For R. Judah said Rab said, "A person should always occupy himself in the study of Torah and in the practice of religious deeds, even not for their own sake, for, from doing them not for their own sake, he eventually will come to do them for their own sake." [Hence the final two items do not belong on the list at all.] Said R. Nahman bar Isaac, "What is hidden is hidden, what is public is public. The great court will exact punishment from those who [pretend to be humble by] wrapping themselves in cloaks [as if they were pious people when they are not]." N. Said Kingjannaeus to his daughter, "Do not fear the abstemious people [or: 'Pharisees'], nor those who are not abstemious [or: 'not Pharisees'], but only the ones who are hypocrites, who appear like abstemious people, but whose deeds are the deeds of Zimri, while they seek the reward of Phineas [Num. 25:1 Iff.]."

T h e H a l a k h a h in its way addresses the same sort of conduct that is rejected here: ostentatious piety, i m p r o p e r motivation, excessive humility, pretentious self-celebration. A social philosophy that values humility to H e a v e n places firm limits on individuals' initiative in distinguishing themselves through the medium of Torah-study, on the one side, and practice of the c o m m a n d m e n t s , on the other. T h e individual Israelite may achieve recognition in legitimate ways, as the provision for doing so in the T e m p l e cult has already shown us. But the range of personal initiative is severely limited by other considerations of the public good. T h e system fosters adherence to the norm, not excelling it. But if taking action on one's own for self-selection elicits a cool response from the Halakhah, certain traits on their own serve to call attention to an individual. T h e s e emerge in context. O n e such instance makes its a p p e a r a n c e in connection with public rites of fasting in times of crisis, an absence of rain for example. T o begin with, individuals begin to fast, over a sequence of three market-days, M o n d a y , T h u r s d a y , and M o n d a y . If that brings no rain, the community joins in. Here, then, is a case in which a person may differentiate himself from the community at large through an act of supererogatory piety, so long as it is onerous in character, as is manifestly the case here:

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MISHNAH-TRACTATE TAANIT 1 : 3 - 6

[A] On the third of Marheshvan they pray for rain. Rabban Gamaliel says, "On the seventh day of that month, the fifteenth day after the Festival, so that the last Israelite [returning home] may reach the Euphrates river." M. 1:3 [A] [Ii] the seventeenth day of Marheshvan came and rain did not fall, individuals began to fast a sequence of three fasts [Monday, Thursday, Monday]. They eat and drink once it gets dark. And they are permitted to work, bathe, anoint, put on sandals, and have sexual relations. M. 1:4 [A] [Once] the new moon of Kislev has come and rain has not fallen, the court decrees a sequence of three fasts for the community. They eat and drink once it gets dark. And they are permitted to work, bathe, anoint, put on sandals, and have sexual relations. M. 1:5 [A] Once these [fasts] have gone by and they have not been answered, the court decrees a sequence of three more fasts for the community. They eat and drink [only] while it is still day [on the day prior to the fast]. And they are forbidden [on the fast] to work, bathe, anoint, put on sandals, and have sexual relations. And they lock the bathhouses. M . 1:6

Provision for individual initiative then requires the definition of who qualifies to volunteer, a question that the Tosefta answers as follows: TOSEFTA-TRACTATE TAANIT 1:7

[A] What is the definition of an individual [who begins to fast if it has not rained by the seventeenth of Marheshvan (M. 1:4A)I? [Β] R. Simeon b. Eleazar says, "Not everyone who wants to declare himself an 'individual' [for the present purpose] [or] a disciple of a sage may do so, unless a court has appointed him as an authority for the public." [C] R. Simeon b. Gamaliel says, "In a matter involving anguish, he who wants to declare himself an 'individual' may do so. [And if he wants to declare himself] a disciple of a sage, let him do so and be blessed. [But if it is] a matter involving gain, not everyone who wants to declare himself an 'individual' [or] a disciple of a sage may do so, unless a court has appointed him as an authority for the public."

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Simeon b. Gamaliel takes the position we have already noted: if it is to undertaken onerous tasks of piety, e.g., fasting a n d abstinence, one m a y volunteer in that way to serve the c o m m u n i t y and distinguish himself. But none may volunteer to lead the worship in times of crisis. His own circumstances mark him out, together with an established prèsence and reputation in the community. T h a t view is embodied in the selection of the prayer-leader for fast-days. O n the fast days, the ark of the T o r a h was brought into the piazza, a n d marks of m o u r n ing—wood ashes—were put on the ark, the head of the community authorities, a n d on the heads of each participant. T o lead in the recitation of the Prayer, they call u p o n "an experienced elder, who has children, and whose cupboard [house] is empty, so that his heart should be wholly in the p r a y e r " (M. 2:2). H e a v e n has already selected such a person, in response to the m a n ' s circumstance. T h e Yerushalmi (Y. T a . 1:1) frames matters in so m a n y words: " W h a t is the definition of the individual [of M. 1:4A]? These are the ones who have been appointed community officials. [Is it the claim, then, that] merely because one has been appointed a community official, he will pray a n d have his prayer answered? [No.] But since one has been appointed a c o m m u n i t y official and has been found trustworthy, he is worthy of praying and having his prayers answered." T h e objective traits that m a r k the m a n as "individual"—the circumstances that assure the sincerity of his prayer, his virtue in T o r a h study—do not exhaust the range of possibilities for recognition of an Israelite out of the mass of all Israel. Heaven makes its choices as well, a n d these do not always respond to what the c o m m u n i t y and its sages would anticipate. Grace works in mysterious ways. Sages recognize that individuals for various reasons, a n d not all of them congruent with sages' own expectations, do enjoy Heaven's regard and can pray a n d bring rain by reason of that recognition. T h a t is in two aspects. First come those who do not aspire to make a n a m e for themselves, who are distinguished by their humility. T h e y are marked out by their surrender of themselves, their own interests, to others. And what is striking, they are not sages of the T o r a h . A single set of examples of such charisma in a sizable composite of the Yerushalmi, only part of which I present, is as follows:

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YERUSHALMI-TRACTATE TAANIT 1 : 3

[A] In a dream that appeared to R. Abbahu Mr. Pentakaka ["Five sins"] prayed that rain would come, and it rained. R. Abbahu summoned him. He said to him, "What is your trade?" [B] He said to him, "Five sins does that man [I] do every day, hiring whores, cleaning up the theater, bringing home their garments for washing, dancing, and banging cymbals before them." [C] He said to him, "And what good deed have you done?" [DJ He said to him, "One day that man [I] was cleaning the theater, and a woman came and stood behind a pillar and cried. I said to her, 'What troubles you?' And she said to me, 'That woman's [my] husband is in prison, and I wanted to see what I can do to free him, ' so I sold my bed and cover, and I gave the proceeds to her. I said to her, 'Here is your money, free your husband, but do not sin.'" [E] He said to him, "You are worthy of praying and having your prayers answered. " [F] A pious man from Kepar Immi appeared [in a dream] to the rabbis. He prayed for rain and it rained. The rabbis went up to him. His householders told them that he was sitting on a hill. They went out to him, saying to him, "Greetings," but he did not answer them. [G] He was sitting and eating, and he did not say to them, "You break bread too." [H] When he went back home, he made a bundle offaggots and put his cloak on top of the bundle [instead of on his shoulder], [Γ] When he came in, he said to his household [wife], "These rabbis are here [because] they want me to pray for rain. If I pray and It rains, it is a disgrace for them, and if not, it is a profanation of the name of heaven. But come, you and I will go up [to the roof] and pray. If it rains, we shall tell them, 'Heaven has done a miracle [for you],' and if not, we shall tell them, 'We are not worthy to pray and have our prayers answered.'" [J] They went up and prayed and it rained. [K] They came down to them [and asked], "Why have the rabbis troubled themselves to come here today?" [L] They said to him, "We want you to pray so that it would rain. " [M] He said to them, "Now do you really need my prayers? Heaven already has done its miracle." [N] They said to him, "Why, when you were on the hill, did we say hello to you, and you did not reply?" [O] He said to them, "I was then doing my job. Should I then interrupt [64c] my concentration [on my work]?" [P] They said to him, "And why, when you sat down to eat, did you not say to us, 'You break bread too'?"

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[Q] He said to them, "Because I had only my small ration [offood]. Why should I have invitedyou to eat by way of mereflattery[when I knew I could not give you anything at all]?" [R] They said to him, "And why when you came to leave, did you put your cloak on top of the bundle?" [S] He said to them, "Because the cloak was not mine. It was borrowed for use at prayer. I did not want to tear it. " [T] They said to him, "And why, when you were on the hill, didyour wife wear dirty clothes, but when you came down from the mountain, did she put on clean clothes?" [U] He said to them, "When I was on the hill, she put on dirty clothes, so that no one would gaze at her. But when I came home from the hill, she put on clean clothes, so that I would not gaze at any other woman. " [V] They said to him, "It is well that you pray and have your prayers answered. " W h a t is characteristic of b o t h stories is the stress o n the u n a s s u m ing c h a r a c t e r of the favored p e r s o n . M r . P e n t a k a k a a n d the m a n of K e f a r I m m i are not r e p r e s e n t e d as masters of T o r a h - s t u d y at all. T h e f o r m e r gives up his valued possessions to help preserve the virtue of the w o m a n . T h e latter exhibits r e m a r k a b l e conscience, indifference to himself in favor of p r o p e r b e h a v i o r with others. So the way to distinguish oneself is to give u p one's private interest in favor of others. T h a t is s o m e t h i n g G o d c a n n o t coerce or c o m m a n d , but to which G o d responds. It is a response of divine grace to the manifestation of h u m a n g r a c e — a l w a y s at the level of the individual. T h e point is t h e n simple. By self-assertion H e a v e n is not to be coerced. But H e a v e n will r e s p o n d to t h e u n c o e r c e d g r a c e m a n i f e s t e d by exemplary humility: the opposite of assertive self-individuation. T h e n the lesson for o u r inquiry should not be missed. T h e r e m a r k a b l y virtuous actors t h r o u g h self-abnegation have w o n H e a v e n ' s attention to themselves, which is precisely the opposite of their intention in the m a t t e r . Since individuation takes place t h r o u g h the opposite of self-agg r a n d i z e m e n t or even articulated self-expression, but rather t h r o u g h self-sacrifice, modesty, a n d humility, the m a t t e r would a p p e a r to rest wholly on h u m a n action (or inaction) a n d virtue wholly within the d o m a i n of ordinary people. But H e a v e n has the power, also, not only to r e s p o n d to h u m a n virtue but to m a k e its o w n selections of p e r sons to be recognized a n d e m p o w e r e d a n d individuated. R a b b i n i c J u d a i s m recognizes a class of miracle-workers, favored by H e a v e n .

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T h e following story indicates that the H a l a k h a h regards with little e n t h u s i a s m the capacity of w o n d e r - w o r k e r s to accomplish w h a t ordinary folk cannot, especially w h e n such wonder-workers exhibit a confidence that shades over into arrogance toward H e a v e n — t h e opposite of the attitude of humility that sages identify as the distinguishing trait of the exemplary individual: MISHNAH-TRACTATE TAANIT 3 : 9 - 1 0 [M. 3:9]

[A] On account of every sort of public trouble—may it not happen—do they sound the shofar, [B] except for an excess of rain. [C] M'SH S: They said to Honi the Circle Drawer, Pray for rain." [D] He said to them, "Go and take in the clay ovens used for Passover, so that they not soften [in the rain which is coming]." [E] He prayed, but it did not rain. [F] What did he do? [G] He drew a circle and stood in the middle of it and said before Him, "Lord of the world! Your children have turned to me, for before you, I am like a member of the family. I swear by your great name—I'm simply not moving from here until you take pity on your children!" [H] It began to rain drop by drop. [I] He said, "This is not what I wanted, but rain for filling up cisterns, pits, and caverns." [J] It began to rain violently. [K] He said, "This is not what I wanted, but rain of good will, blessing, and graciousness." [L] Now it rained the right way, until the Israelites had to flee from Jerusalem up to the Temple Mount because of the rain. [M] Now they came and said to him, "Just as you prayed for it to rain, now pray for it to go away." [N] He said to them, "Go, see whether the stone of those who stray has disappeared [under water]." [M.

3:10]

[A] Simeon b. Shatah said to him, "If you were not Honi, I should decree a ban of excommunication against you. But what am I going to do to you? For you importune before the Omnipresent, so he does what you want, like a son who importunes his father, so he does what he wants. [B] "Concerning you Scripture says, 'Let you father and you mother be glad, and let her that bore you rejoice'" (Prov. 2 3 : 2 5 ) .

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T h e key-language is at M . 3:10A. Simeon cannot favor this extraordinary resort to divine intervention, but he acknowledges that Heaven can do what it likes. T h e view of this story runs parallel to that of the rule about individual's showing piety. It attests to the outer limits of individuation: those set by Heaven. T h e contrast between Honi a n d M r . Pentakaka or the m a n of K e f a r I m m i hardly requires articulation. But the H a l a k h a h does m o r e than afford valid m e d i a of self-differentiation through a p p r o p r i a t e acts of virtue. R a b b i n i c J u daism also makes provision for individuation through entirely personal predilections a n d preferences. T h u s far we have seen an elaborate account of how the individual Israelite attains a u t o n o m y within Israel. It is t h r o u g h the realization in personal ways of the c o m m u n i t y ' s own ideals. T h e community corporately supports the T e m p l e a n d attains a t o n e m e n t all together therein. T h e individual m a y contribute value to the maintenance of the T e m p l e a n d its cult. T h e c o m m u n i t y says prayers; the individual m a y do so even w h e n not required to. W h e r e onerous duties of divine service are concerned, such as fasting in atonem e n t for sin that has prevented rain from falling, the individual may distinguish himself. In all these ways, then, the individual attains personal distinction by realizing collective goals t h r o u g h personal sacrifice. But what about that middle range of individuation, between piety, now surveyed, and impiety, which need not detain us. T o that m a t t e r we turn when we take u p the most subtle m a t t e r of all: individual expression t h r o u g h private use of the public m e d i u m , language.

V. Idiosyncrasy: JVazir and Nedanm T h e H a l a k h a h of N e d a r i m - N a z i r investigates is the p o w e r of a person through invoking the n a m e of H e a v e n to affect the classification in which he or she is situated a n d so his or her concrete a n d material relationships with other people. This is done by stating, " M a y what I eat of your food be prohibited to m e as is a sacrifice prohibited to m e , " all conveyed in the word " Q o r b a n . " H a v i n g said that, the person m a y not eat the food of the other. T h e reason is that the other person's food has been declared by the individual w h o took the vow to be in the status of a sacrifice. W e know that what makes an ordinary beast into a holy beast, subject to the laws of sacrilege

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and set aside for the alter, is a verbal designation as a sacrifice. Here too what makes ordinary food into food in the status of Holy Things, so far as the given individual is concerned, is the verbal designation of that ordinary food as Holy Things. T h e difference is that designating an animal as a beast for sacrifice is a public act, affecting society at large. N o one then can make use of said animal. Declaring that a dish of oatmeal is in the status of a q o r b a n by contrast, has no affect upon the cereal, except for the person who m a d e that declaration. L a n g u a g e on its own is a public event, not subject to private manipulation. Language matters because of what it represents and conveys, which is, the solemn intentionality of the one who uses the language, and that is the key to all else. Language makes public and attracts public attention to the intentionality of the private person, forms the point of intersection ("the interface") between the individual and the community. T h e H a l a k h a h of Nedarim-Nazir takes up the theme, the power of language to impose changes in status. By using certain language, a m a n or w o m a n effects an alteration in his or her condition, e.g., in relationships with other people, or in food that m a y or m a y not be eaten, or situations that m a y or m a y not be entered into. In both realms of being words affect the world of tangible substances and real relationships. H e r e , as we noted earlier, by words a m a n declares himself analogous to a priest—and his actions confirm his intention, realized in language. But there is nothing so open to idiosyncrasy as language, even as there is no aspect of culture so public and collective as language. T o state matters in more general terms: at stake in the vow and in the special vow of the Nazirite is the realization of intention brought about through the use of language. But language used for vows, so sages portray matters, does not sanctify, it contaminates, that language ought to express reflected-upon intentionality—like the designation of an animal to expiate an inadvertent, newly-realized sin—but it conveys the outcome of temper and frustration. Designating a beast as consecrated realizes a noble, godly intention; designating benefit one receives from one's spouse as " q o r b a n " uses language to embody a lowly and disreputable intention, one to humiliate and reject and disgrace the other. Sages' message registers that language is dangerous because it realizes intentionality, which had best, therefore, be expressed with probity and restraint. And these virtues form the opposite of the traits of mind and character of the vow-

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taking Israelite, wife or husband, host or guest, salesman or customer, as the exemplary cases of N e d a r i m have shown us. N o w to the details. If a m a n or w o m a n says a certain set of words, H e a v e n hears. T h e m a n or w o m a n thereby adopts certain restrictions or prohibitions, whether, as in Nedarim, not to eat certain foods of any sort or to derive benefit f r o m a given person, or, as in Nazir, not to eat grapes in particular, cut hair, or attend funerals (something the husband cannot ever prevent the wife from doing, but the Nazirite vow prevents the Nazirite from doing). These restrictions, that language, serve to provoke H e a v e n ' s interest in, a n d intervention into, the conduct of the m a n or the woman. N e d a r i m and Nazir form a continuous exposition of the H a l a k h a h . And that brings us to the center of the issue of individuation: private use of public speech. C e l e b r a t i n g the individuation of all persons as a m a r k of the Creator's grandeur, the H a l a k h a h provides native category-formations that define a neutral, objective response to personal idiosyncrasy. It does so by providing for the recognition by the community at large—represented in the H a l a k h a h as enforced by the sages—of idiosyncratic language-usage. T h a t is both in general and in a special situation for which Scripture legislates and sages ruminate. T h a t special situation, the Nazirite vow, which permits a person to single himself or herself out in ways we shall consider, is evaluated by sages exactly as they assess those who "take the n a m e " a n d status of sages, an act of hubris. But the law permits it. T h e general circumstances involve the imposition upon private parties of public language and the denial of recognition to idiosyncratic language. Let us begin with the Israelite's singling himself or herself out as a Nazirite. Scripture deals with two topics, the restrictions self-imposed by the vow, a n d the offerings required in connection therewith. O f interest here is the self-imposed restriction, the relevant verses of Scripture occurring at N u m . 6:1 Off.: And the Lord said to Moses, "Say to the people of Israel: when either a man or a woman makes a special vow, the vow of a Nazirite, to separate himself to the Lord, he shall separate himself from wine and strong drink; he shall drink no vinegar made from wine or strong drink, and shall not drink any juice of grapes or eat grapes fresh or dried. All the day of his separation he shall eat nothing that is produced by the grapevine, not even the seeds or the skins. "All the days of his vow of separation no razor shall come upon his head; until the time is completed for which he separates himself

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to the Lord, he shall be holy; he shall let the locks of hair of his head grow long. "All the days that he separates himself to the Lord, he shall not go near a dead body. Neither for his father nor for his mother nor for brother or sister, if they died, shall he make himself unclean, because his separation to God is upon his head; all the days of his separation he is holy to the Lord." T h e Nazirite t h e n is c o m p a r a b l e to a hohen or priest: subject to certain prohibitions a n d is assigned a particular position in the c o n d u c t of the T e m p l e cult. T h e priest c a n n o t serve if he is d r u n k or cont a m i n a t e d by a corpse or bald (a b a l d - h e a d e d m a n is invalid to serve as a priest, so M . Bekh. 7:2A). A single p a r a d i g m pertains, a single a n a l o g y governs. F r o m the perspective of Scripture, o n c e the N a zirite vow takes effect, p r o h i b i t i o n s a r e invoked against wine, haircutting, a n d corpse-uncleanness; the o t h e r p o i n t of interest is the offerings that are required if the Nazirite is m a d e unclean with corpseuncleanness a n d w h e n the Nazirite c o m p l e t e s the vow in a state of cleanness. T h e Nazirite t h e n is a n Israelite w h o wishes to distinguish h i m self in holiness by p r e t e n d i n g to be a priest ready to serve at the altar. T h a t is b e c a u s e two of the t h r e e of the restrictions a d o p t e d by the Israelite w h o take the Nazirite vow are c o m p a r a b l e to the restrictions that a p p l y at all times to the priest (kohen), w h o c a n n o t serve at the altar w h e n d r u n k , a n d w h o c a n n o t c o n t r a c t c o r p s e - u n c l e a n ness u n d e r o r d i n a r y circumstances. T h e priest, to be sure, c a n n o t a p p e a r u n k e m p t . But as in the case of S a m s o n , not cutting one's hair is d e e m e d a n act of devotion to H e a v e n . So the three c o m p o n e n t s of the Nazirite vow c o m e d o w n to the same thing, the intent to m a r k oneself off as holier t h a n others. As is the priest to the family of Israel, so is the Nazirite to the h o u s e h o l d of Israel, a p a r t i c u l a r classification of persons, distinguished in c o n s e q u e n t i a l a n d practical ways as to n o u r i s h m e n t a n d c o m p o r t m e n t . T h e vow does not e n c u m b e r all Israel in relationship to G o d . It is not a n obligatory act of service, as a n offering is, but a votive one. A n d while o t h e r votive acts of service, e.g., the t h a n k - o f f e r i n g or the peace-offerings, e n g a g e the p r i e s t h o o d in the T e m p l e , the vow does n o t , a n d the Nazirite vow brings a b o u t offerings given to the priest at the d o o r of the tent of m e e t i n g , in the m a n n e r of the offerings of the p e r s o n afflicted with the skin ailment described in Leviticus C h a p t e r s 13 a n d 14; a n d there he stays. T h e H a l a k h i c evaluation of this f o r m of individuation c o m e s to

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expression in connection with sharing in the m e a t of a Nazirite's offering. W h e n the Nazirite completes the term of the vow, he is required to present offerings, including some that yield meat for the sacrifier a n d the officiating priest. T h e details of the Nazirite vow a n d its execution need not detain us. T h e only point of interest is, how do the sages evaluate this individual, w h o has spent a m o n t h conducting himself by the rules that govern a status to which he has otherwise no claim? T h e answer occurs in a story about Simeon the Righteous, high priest of unblemished virtue, as follows: S1FRÉ ΤΟ NUMBERS

A. B.

A.

B.

C.

D.

E.

XXII:VI

"...to the Lord:" (Num. 6:1-4). The religious obligation in taking the vow of the Nazirite must be for the Name [and sake of God, and not for any lesser purpose]. Said Simeon the Righteous, "In my entire life I accepted a share of the guilt offering brought in connection with the Nazirite vow only one time [for in all other cases I regarded the vow as having been taken for improper motives]. "Someone came from the south, a man of beautiful eyes and handsome visage, with flowing curls. I said to him, 'Why in the world did you decide to take a vow to destroy that lovely head of hair [by shaving it all off in the completion of the Nazirite vow? You should not have taken the Nazirite vow that would require you to cut off your hair as an offering.] ' "He said to me, '1 was a shepherd in my village, and I went to draw water from the well and I looked at my reflection in the water. My heart took hold of me and sought to drive me out of the world [by taking pride in my looks]. I said to [my hair], "Wicked one, you take pride in something which does not belong to you, but which belongs to the dirt and the worm and the maggot. Lo, I shall shave you off for the sake of Heaven.'" "Forthwith I patted his head and kissed him on his head, saying to him, 'May people like you become many in Israel, who carry out the will of the Omnipresent.' "And in you is fulfilled the verse: 'When either a man or a woman makes a special vow, the vow of a Nazirite, to separate himself to the Lord.'"

T h e sages' j u d g m e n t of the Israelite c o u n t e r p a r t to the Narcissusstory is clear in the exemplary case of Simeon the Righteous: here

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was the only case of a Nazirite of w h o m the high priest, Simeon, approved. T h a t is because the Nazirite m a d e clear, his motivation was p u r e . So while the R a b b i n i c sages accepted the institution of the Nazirite vow, they looked dubiously at those that took the vow, seeing the rite as occasion for self-aggrandizement, along the lines I have suggested. Nonetheless, sages stand in j u d g m e n t not of the institution but of the person. T h e y take a special interest in the m a t t e r of idiosyncratic use of language. Does the law a c c o m m o d a t e private formulations of thought in words, or does it impose upon individual usage a general rule of meaning? MISHNAH-TRACTATE NAZIR

1:1-2

M. 1:1 All euphemisms for [the form of words for] a Nazirite vow are equivalent to a Nazirite vow [and binding]. He who says, "I will be [such]"—lo, this one is a Nazir. Or: "I shall be comely"—he is a Nazir. [If he says,] "Naziq " or "Naziah " or "Paziah "—lo, this one is a Nazir. [If he says,] "Lo, I shall be like this one, , ‫" י‬Lo, I shall curl [my hair]," "Lo, I shall tend [my hair]," "Lo, it is incumbent on me to grow [my hair] long"—lo, this one is a Nazir. [If he says,] "Lo, I pledge myself [to offer] birds"—he is not a Nazir. M. 1:2 [He who says,] "Lo. I shall be an abstainer [Nazir] from grape pits" or "from grape skins ' or "from haircuts" or "from uncleanness [of corpses]"—lo, this one is a Nazir [in all regards]. And all the details of a Nazirite vow pertain to him. [He who says,] "Lo, I shall be like Samson" or "like the son of Manoah" or "like the husband of Delilah' or "like the one who tore down the gates of Gaza" or "like the one whose eyes the Philistines plucked out"—lo, this one is a Nazir in the status of Samson. L a n g u a g e stands for w h a t is intensely personal a n d private. But language also conveys m e a n i n g s of general intelligibility. It is by definition a public act. With w h a t result for the individual's personal preferences? W h a t is private (mumbled, unintelligible, gibberish) bears no consequence, what is intelligible by a common-sense stand a r d takes effect. T h a t is how the H a l a k h a h sorts matters out. T h u s , when it comes to euphemisms, all of them take effect; for what matters about language is not a d h e r e n c e to the governing formula, though it matters. W h a t makes all the difference is the perceived and p u b licly comprehensible intent. If the intent conveyed by the language is clear a n d unmistakable, then the language has done its task of e m b o d y i n g intentionality. A n d then the language is affective. If the

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intentionality is not vividly conveyed, however indirectly, then the language is null. T h e power of language lies in its capacity to convey, to embody, inchoate intentionality, to realize in the shared world of public transactions the individual a n d private attitude or intentionality that motivates action. And that accounts for the H a l a k h a h ' s recognition of the special status of a Samson-Nazirite: the language that is used signals the intentionality to accept the model of Samson, and hence fully exposes the will of the one who takes the special vow. T h e main p r o b l e m addressed by the H a l a k h a h pertaining to the language of the vow to be a Nazirite is how to standardize matters, so that private meanings a n d personal stipulations do not corrupt discourse. T h e n the prevailing solution is to identify what is general a n d intelligible a n d dismiss the rest. O n e e x a m p l e serves. T h a t is why if someone specifies a detail as i n c u m b e n t , then all the details of a Nazirite vow pertain to him. Language is such that everything begins, but nothing remains, private, personal, idiosyncratic.. Even what affects the household in particular is f r a m e d for effect for all Israel. T h a t point of insistence that Israel has a stake in the speech of private persons carries us from the special vow of the Nazirite to vows in general. A vow in the H a l a k h a h ordinarily is a person's statement that such-and-so is in the status, so far as he is c o n c e r n e d , of a n offering, it is sanctified: Q o r b a n , an offering. T h a t is a quite subjective statement, as we shall see; the thing is not sanctified for anyone else, but is classified as holy for the person w h o has used that language. But, as with the Nazirite vow, so with vows in general, others are directly affected by the change in status of that thing to that particular person. H e r e we c o n f r o n t in acute f o r m the ambiguity of language, e m b o d i e d as it is in vowing. N o t h i n g is m o r e individual t h a n l a n g u a g e — a n d n o t h i n g is m o r e public! T h e n the problem arises, how to mediate between private use and public c o m p r e h e n s i o n a n d expectation? T h e H a l a k h a h deems language the mirror of the soul; the words we use expose our heart, articulate a n d give effect to our intentionality. But that most private transaction also takes place in the public square, for shared language also forms the foundation for the social order. T h e key to the entire system comes to expression in the language that an individual uses as an expression of his own will a n d intentionality—which directly affects the public interest as e m b o d i e d by third parties. T h e n the p o w e r of intentionality, which defines the individual as apart f r o m

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the social collectivity, signals the H a l a k h a h ' s recognition of the legitimacy of individuality. L a n g u a g e is e m p o w e r e d by the person w h o uses it; it bears little p o w e r on its o w n . So individuality defines a dimension in sorting out the effects even of s o m e t h i n g so critical to the social o r d e r as c o m m o n speech. T a k e the e x t r e m e case of a verbal act of sanctification. A p h r a s e such as " T h i s beast is sanctified" "as an offering in expiation of sucha n d - s u c h a n inadvertent sin that I n o w discover I c o m m i t t e d , " or "as a t h a n k - o f f e r i n g " or " a whole offering" or "this beast substitutes for that already-consecrated b e a s t " (Lev. 27:9-10) suffices to classify the a n i m a l as G o d ' s . But these f o r m u l a s take effect only w h e n they m a t c h the will of the person w h o utters t h e m . An act of consecration done in error is not binding and the beast remains unconsecrated. L a n g u a g e does not b e a r objective force eo ipse, such that merely declaring something sacred, without regard to one's intentionality, takes effect. F r o m the viewpoint of the T o r a h ' s H a l a k h a h , w h a t we intend makes all the difference: G o d responds to w h a t we w a n t , m o r e t h a n to w h a t we do, as the distinction b e t w e e n m u r d e r a n d m a n slaughter shows in an obvious way. F o r the critical dialectics of the T o r a h e m b o d i e s the conflict between G o d ' s a n d m a n ' s will. T h a t focus u p o n the definitive, taxonomic power of intentionality explains, also, w h y if a m a n says to a w o m a n , "Lo, you are consecrated...," a n d the w o m a n acquiesces, the intentionalities m a t c h i n g , the wornan is t h e r e b y sanctified to that m a n a n d f o r b i d d e n to all others; the act of intention f o r m u l a t e d in words bears the p o w e r of classification u p o n which the entire system builds. But—self-evidently—not all intentionality finds H e a v e n ' s approval, a n d that is so even t h o u g h H e a v e n confirms a n d acquiesces therein. A n d t h a t brings us to the vow, which realizes in words the intentionality of the person w h o takes the vow a n d imposes u p o n himself restrictions of various kinds. Vows are statements that classify objects or persons as sanctified a n d so f o r b i d d e n for o r d i n a r y benefit. T h e y affect the person that takes the vow, so that he or she m a y not derive benefit from the n a m e d party, or from the indicated object, e.g., a wife m a y declare a h u s b a n d q o r b a n , in the status of a n offering, or a guest m a y declare the food the host presses upon him q o r b a n a n d so forbidden. T h a t signals all concerned that that person or thing is p r o h i b i t e d to the person w h o has taken the vow. But the person or thing is not classified as sanctified to the world at l a r g e — h e n c e

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the Halakhah accords recognition to a completely personal statement, one that has no b e a r i n g on the c o m m o n interest. T h e first point of i m p o r t a n c e to our p r o b l e m is a familiar one. Idiosyncratic use of language is interpreted within the p a r a d i g m of conventional use of language. If someone uses euphemisms or other odd formulations, these are interpreted against the c o m m o n backg r o u n d of ordinary speech. So a d o p t i n g for oneself an individual status, or in peculiar, private ways imposing so far as one is concerned the status of sanctification u p o n persons or objects, yields a single result in c o m m o n : MISHNAH-TRACTATE NEDARIM

1:1-4

M. 1:1 All euphemisms [substitutes for language used to express] (1) vows are equivalent to vows, and [all euphemisms] for (2) bans (herem) are equivalent to bans, and [all euphemisms] for (3) oaths are equivalent to oaths, and [all euphemisms] for (4) Nazirite vows are equivalent to Nazirite vows. He who says to his fellow [euphemisms such as], (1) "I am forbidden by vow from you," (2) "I am separated from you," (3) "I am distanced from you," "if I eat your [food] ," [or] "if I taste your [food]," is bound [by such a vow], [He who says], "As the vows of the evil folk...," has made a binding vow in the case of a Nazir, or in the case of [bringing] an offering, or in the case of an oath. [He who says,] "As the vows of the suitable folk" has said nothing whatsoever. "As their [suitable folks'] freewill-offerings" ...he has made a binding vow in the case of a Nazir or in the case of [bringing] an offering. M. 1:2 He who says to his fellow, "Qonam," "Qonah," "Qonas"—lo, these are euphemisms for the Qorban [a vow to bring a sacrifice, and are valid]. [He who says to his fellow,] "Hereq," "Herekh," "Heref," lo, these are euphemisms for a herem [ban]. [He who says to his fellow,] "Naziq," "Naziah," "Paziah"—lo, these are euphemisms for Nazirite vows. [He who says,] "Shebutah," "Shequqah," [or if he] vowed [with the word] "Mohi," lo, these are euphemisms for "shebuah" [oath], M. 1:3 He who says, "Not-unconsecrated produce shall 1 not eat with you," "Not-valid [food]," and, "Not-pure," "[N0t]-c1ean [for the altar]," or "Unclean," or "Remnant," or "Refuse"—is bound. [If he said, "May it be to me] like the lamb [of the daily whole-offering]," "...like the [temple] sheds," "...like the wood," "...like the fire," "...like the altar," "...like the sanctuary," "...like Jerusalem"—[if] he vowed by the name of one of any of the utensils used for the altar, even though he has not used the word qorban—lo, this one has vowed [in as binding a way as if he had vowed] by qorban. M. 1:4 He who says, "An offering [be what I eat with you]," "A wholeoffering [be what I eat with you]," "A meal-offering [be what I eat with you]," "A sin-offering [be what I eat with you]," "A thank-offering [be what I eat with you]," "Peace-offering be what I eat with you"—

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he is bound [prohibited from eating with the other party], [If he says, "May what I eat of yours be] the qorban," "Like the qorban [be what I eat with you]," "[By] a qorban [do I vow] be what I eat with you," he is bound. [If he says,] "For a qorban shall be what I eat with you," he is bound. He who says to his fellow, "Qonam be my mouth which speaks with you," or "My hand which works with you," or "My foot which walks with you," is bound. W h a t we see is how a single repertoire of meanings governs the interpretation of private language. At the same time, we note how the H a l a k h a h recognizes in objective ways the private language of the one w h o has vowed. A uniform result follows. If something can be understood to refer to an act of sanctification, however idiosyncratic the sounds that are enunciated, that objective reality takes over a n d defines the transaction. So singular sounds take effect when they sufficiently resemble w h a t is generally intelligible in one context, r a t h e r t h a n in some other. H e r e , then, we enter the world encompassing subjective will a n d usage that the H a l a k h a h constructs to a c c o m m o d a t e the expression of personality. It is not a realm of self-expression that the H a l a k h a h admires. T h e dismissive j u d g m e n t of the H a l a k h a h u p o n the vow is fully exposed in the rule given above, " H e who says, '[Lo, I vow a vow] as the vows of the suitable folk' has said nothing whatsoever." Such a statement does not constitute a e u p h e m i s m for a vow. W h y not? Because suitable folk (kesherim) do not take vows. And the rest follows. But most people do take vows, a n d they are particularly c o m m o n in the life of the h o u s e h o l d , m e a n i n g , in relationships between h u s b a n d a n d wife. T h e vow is the w e a p o n of the weak, the way by which the lesser party to a transaction exercises p o w e r over the greater. If the wife says to the h u s b a n d , "By a vow, I shall not derive benefit f r o m you," or " W h a t food you feed me is q o r b a n , " she removes f r o m herself her h u s b a n d ' s control, so too, the guest to the host. But the vow also stands for the release of discipline, it is an expletive a n d an outcry, a n act of temper, and no w o n d e r sages do not respect those that take vows. N o w the issue before us is, how precisely do the laws governing vows accord recognition to the individual a n d his or her use of language, even while h o n o r i n g the public interest in an objective, everywhere-valid c o m m o n discourse. T h e one side of matters is represented by the H a l a k h i c c o n f i r m a t i o n that a q u i t e - p e r s o n a l formulation of matters takes effect. If someone uses the language of a vow in an u n c o n v e n t i o n a l m a n n e r , the vow counts. W h y so?

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Because the result pertains only to the person who has used that language. His intentionality for himself governs, even where others are affected by his new status. W h e r e there is genuine ambiguity in the language, to be sure, that fact is taken into account, as in the following case: MISHNAH-TRACTATE NEDARIM 2 : 5

[If] one vowed by "herem," but then he said, "I vowed only concerning that which is a herem [a net] of the sea," [or if he vowed] by "qorban," but then he said, "I vowed only concerning qorban [offerings] to kings," [if he said,] "Lo, asmi [my bone] is qorban,' ‫ י‬and explained, "I vowed only concerning the esem [bone] which I placed before me by which to vow," [if he said,] "Qonam is that benefit which my wife derives from me," and he said, "I vowed only concerning my first wife, whom I have already divorced"—they find an opening for them in some other place [by some pretext]. And they instruct them that they not treat vows lightly. T h e ambiguity is objective: " h e r e m " can stand for "devoted to G o d " or "a fishing net," and so throughout. In these unclear settings, where the language can sustain m o r e t h a n one intent, we pay attention to the m a n ' s claim, but we also take account of the facts of speech. H e n c e while the vow is null, the sages' i n t e r v e n t i o n — f i n d i n g a n opening for releasing the vow—is required. Sages take account of objective facts of h u m a n n a t u r e in interpreting what a private person can have m e a n t in his or her subjective expression. These facts of h u m a n n a t u r e f o r m p a r t of the setting for interpreting the m e a n i n g a n d effect of what someone has said. Intentionality is weighed against context. S o m e o n e can use language without the remotest intention of being taken literally. In such an instance the vow is null. For example, people use exaggerated language or vow in error or under constraint or they take a vow to a d d emphasis to their language in a situation of conflict. N o n e of these is found to register: MISHNAH-TRACTATE NEDARIM 3 : 1 - 4

M. 3:1 Four [types of] vows did sages declare not binding: (1) Vows of incitement, (2) vows of exaggeration, (3) vows made in error, and (4) vows [broken] under constraint. Vows of incitement: How so? [If] one was selling something and said, "Qonam if I chop the price down for you to under a sela," and the other says, "Qonam if I pay you more than a sheqel," [then] both of them agree at three denars. M. 3:2 Vows of exaggeration: [If] he said, "Qonam if I did not see

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[walking] on this road as many as went out of Egypt," "...if I did not see a snake as big as the beam of an olive press." Vows made in error: "...if I ate," or "...if I drank/' and he remembered that he ate or drank; "...if 1 shall eat," or "...if I shall drink" and he forgot and ate and drank. [If] he said, "Qonam be any benefit my wife gets from me, for she stole my purse" "...for she beat up my son," and he found out that she had not beaten up his son, or he found out that she had not stolen it. [If] he saw people eating figs [belonging to him] and said, "Lo, they are qorban to you!" and they turned out to be his father and brothers, and there were others with them—these and those [men] are permitted [to eat the figs]. M. 3:3 Vows [broken] under constraint: [If] one's fellow imposed a vow on him to eat with him, but he got sick, or his son got sick, or a river [overflowed and] stopped him—lo, these are vows [broken] under constraint. M. 3:4 They take a vow to murderers, robbers, or tax collectors that [produce] is heave-offering, even though it is not heave-offering; that [property] belongs to the state, even though it does not belong to the state, even in the form of an oath. One [voluntarily] takes a vow at the outset. [One takes a vow] only in the matter concerning which the vow is imposed also: Concerning that in which the vow is not imposed. How so? [If] they said to him, "Say: 'Qonam be any benefit my wife has with me!'" and he said, "Qonam be any benefit my wife and children have with me!"—these and those are permitted. In the cases reviewed here, a n assessment of h u m a n n a t u r e in general governs, and sages do not take seriously the expression of the individual. T h e objective facts of language take over and impose their implications on the statement the person has m a d e as an individual. But that recognition that individuality is expressed against comm o n patterns that govern bears a f u r t h e r implication. Language is objective a n d universal; everybody obeys its rules. So where a vow does register, the language is closely parsed in accord with universal usage a n d meaning, so that c o m m o n speech and its rationality define the details of the application of the vow. T h e individual is assumed to m e a n precisely what he has said, no more, no less, in accord with the prevailing rules of language. In the cases before us, the vow is interpreted within the theory that a language is used with precision: MISHNAH-TRACTATE NEDARIM 6 : 1 - 3

M. 6:1 He who takes a vow not to eat what is cooked is permitted [to eat what is] roasted or seethed. [If] he said, "Qonam if I taste cooked food," he is prohibited from eating what is loosely cooked in a pot but per-

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mitted to eat what is solidly cooked in a pot. And he is permitted to eat a lightly boiled egg or gourds prepared in hot ashes. M. 6:2 He who takes a vow not to eat what is cooked in a pot is prohibited only from what is boiled [therein]. [If] he said, "Qonam if I taste anything which goes down into a pot" he is prohibited from eating anything which is cooked in a pot. M. 6:3 [He who takes a vow not to eat] what is pickled is prohibited only from eating pickled vegetables. [If he said, "Qonam] if I taste anything pickled," he is prohibited from eating anything which is pickled. [If he took a vow not to eat what is] seethed, he is forbidden only from eating seethed meat. [If he said, "Qonam] if I taste anything seethed," he is prohibited from eating anything which is seethed. [If he said, "Qonam] if I taste anything roasted," he is prohibited from eating anything which is roasted. [He who takes a vow not to eat] what is salted is prohibited only from eating salted fish. [If he said, "Qonam] if I eat anything salted," then he is prohibited from eating anything at all which is salted. H e r e the language the one w h o has taken the vow has used governs the situation he has b r o u g h t u p o n himself. T h a t yields an exercise in taxonomic classification, on the one side, a n d the speciation of a genus. T h e f o r m e r is briefly illustrated: "wine" does not encompass the flavor of wine, m e a t the flavor of meat: MISHNAH-TRACTATE NEDARIM

6:6-7

M. 6:6 He who takes a vow not to eat meat is permitted to eat broth and meat sediment. M. 6:7 He who vows not to drink wine is permitted to eat a cooked dish which has the taste of wine. [If] he said, "Qonam if I taste this wine," and it fell into a cooked dish, if there is sufficient [wine] to impart a flavor, lo, this is prohibited. He who takes a vow not to eat grapes is permitted to drink wine. [He who takes a vow not to eat] olives is permitted to have olive oil. [If] he said, "Qonam! if I eat these olives or grapes," he is prohibited to eat them and what exudes from them. T h a t brings us to the prevailing logic of natural history: hierarchical classification. T h e H a l a k h a h provides a systematic exercise in differentiating the genus f r o m the species, e m b o d i e d in the distinction between a vow against deriving benefit f r o m the genus, which encompasses all the species o f t h a t genus (the genus, house, the species, u p p e r chamber), a n d a vow against deriving benefit f r o m a particular species, which leaves available the other species of the same genus (upper c h a m ber, house). T h a t exercise is worked out in vast detail, repeating the same point throughout. T h e difference between genus a n d species

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(wool, shearings) and between two distinct genera (clothing, sacking) accounts for a b r o a d range of the issues dealt with here, a n d the m a t t e r of speciation covers m u c h of the rest. T h u s we differentiate cooking f r o m roasting or seething. So too, language that is general is interpreted in minimal ways, "pickling" applying only to vegetables. In all, the exercise of speciation and its effects accounts for m a n y of the concrete H a l a k h i c p r o b l e m s that are set forth, a n d a few generalizations, even given in abstract terms, would encompass much of the H a l a k h a h in its details. T h a t means we differentiate like from unlike by appealing to the speciation of a genus, for which a single example suffices. A vow prohibiting a person to partake of the genus covers the species, but one involving the species does not affect other species of the same genus. MISHNAH-TRACTATE NEDARIM 6 : 1 0

[He who takes a vow not to eat the genus,] cabbage is forbidden from asparagus [deemed a species of the cabbage genus]. [He who takes a vow not to eat] asparagus is permitted to have cabbage. [He who takes a vow not to have] grits is forbidden to have grits pottage. [He who takes a vow not to eat] grits pottage is permitted to have grits. [He who takes a vow not to eat] grits pottage is forbidden to eat garlic. [He who takes a vow not to eat] garlic is permitted to eat grits pottage. [He who takes a vow not to eat] lentils is forbidden from eating lentil cakes. [He who takes a vow not to eat] lentil cakes is permitted to eat lentils. [He who says, "Qonam] if I taste [a grain of] wheat or wheat [ground up in any form]" is forbidden from eating it, whether it is ground up or in the form of bread. [If he said, "Qonam if I eat] a grit [or] grits in any form," he is forbidden from eating them whether raw or cooked. Further examples are not needed to show how the rules of speciation of the genus affect the private use of language for a subjective purpose. N o n e of this, then, affords to the individual the slightest opportunity for invoking personal meaning. T h e governing logic of hierarchical classification takes priority over any personal idiosyncrasy that the private person m a y invoke. Absolution of vows shows how, in the balance between objective imposition of a c o m m o n standard of m e a n i n g on personal formulations of language, and subjective intentionality that operates in taking the vow, sages, predictably, take account of the individual while imposing conformity to a public, objective n o r m .

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MISHNAH-TRACTATE NEDARIM 8 : 7 , 9 : 1 , 5

M. 8:7 He who says to his fellow, "Qonam be benefit I derive from you, if you do not come and collect for your child a kor of wheat and two jugs of wine"—lo, this one [the fellow] can annul his vow without consultation with a sage, and say to him, "Did you not speak only to do me honor? But this [not taking your wheat and wine for my children] is what I deem to be honorable!" T h e vow is null, because its intention has been realized in the view of the affected party. And so: He who says to his fellow, "Qonam be benefit you derive from me, if you do not come and give my son a kor of wheat and two jugs of wine"—this one can annul his vow without consultation with a sage, and one [who made the vow] says to him, "Lo, it is as if I have received what I demanded' H e r e again, the purpose of the vow has been achieved. [If] they were nagging him to marry the daughter of his sister and he said, "Qonam be what she enjoys which is mine for all times"—and so he who divorces his wife and says, "Qonam be what my wife enjoys of mine for all time—lo, these are permitted to derive benefit from him. For this man intended [his vow] only with reference to [actual] marriage with them. In the foregoing case, the language is exaggerated, the intent clear a n d present. T h e same consideration governs in the following: [II] one was nagging his friend to eat with him [and the other] said, "Qonam be your house if I enter it," "if I drink a single drop of cold water of yours," he is permitted to enter his house and to drink cold water of his. For this man intended [his vow] only with reference to eating and drinking [but not merely coming into the house or taking a glass of cold water], M. 9:1 In a matter that is between him and his mother or father, they unloose his vow by [reference to] the honor of his father or mother. M. 9:5 They unloose a man's vow by reason of the wife's marriage contract. In these cases, the intentionality of the one who took the vow is taken into account, not only the actuality of the language that he has used. Finally, we take account of what the individual who takes the vow anticipates—and does not anticipate. T h e basic principle is, if the m a n had known the facts not only as they were but as they would

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turn out to have been, he would not have taken the vow. T h e r e f o r e the vow has been taken in error a n d is null. MISHNAH-TRACTATE NEDARIM 9 : 9 - 1 0

M. 9:9 They unloose a vow for a man by reference to his own honor and by reference to the honor of his children. They say to him, "Had you known that the next day they would say about you, 'That's the way of So-and-so, going around divorcing his wives,' "and that about your daughters they'd be saying, 'They're daughters of a divorcée! What did their mother do to get herself divorced' [would you have taken a vow]?" And [if] he then said, "Had I known that things would be that way, I should never have taken such a vow," lo, this [vow] is not binding. M. 9:10 [If one said,] "Qonam if I marry that ugly Miss So-and-so," and lo, she is beautiful, "...dark...," and lo, she is light, "...short...," and lo, she is tall, he is permitted [to marry] her, not because she was ugly and turned beautiful, dark and turned light, short and turned tall, but because the vow [to begin with] was based on erroneous facts. H e r e is the final, normative m a n n e r of disposing of the vow, a n d it suffices to show the balance between objective language a n d subjective intentionality that is m a i n t a i n e d . But we must not lose sight of the simple fact. T h e H a l a k h a h does secure for the private person a considerable range of personal power in relationship to H e a v e n . So, in all, the H a l a k h a h of vows (drawing in its wake the H a l a k h a h of the special vow of the Nazirite) concerns matters of personal status: what m a y a person do or not do by reason of a self-imposed vow, which is to say, by reason of the intent to express his singular will. Sages here legislate for that for which they do not hold esteem. T h e y maintain that people w h o take vows show their weakness, not their strength. Vows represent the power of the weak and put-upon, the easy way to defend oneself against the importunities of the overbearing host, the grasping salesman, the tormenting husband or wife. But sages do not h o n o r those w h o take the easy way, asking G o d to intervene in matters to which on our own we ought to be able to attend. Sages do not treat respectfully the person who takes vows. Vowtakers yield to the undisciplined will, to emotion unguided by rational considerations. But intentionality must (ideally) take form out of both e m o t i o n a n d reflection. Vows explode, the fuel of emotion ignited by the heat of the occasion. " Q o n a m be any benefit I get from you" hardly forms a rational j u d g m e n t of a stable relationship; it bespeaks a loss of temper, a response to provocation with provo-

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cation. Right at the outset the H a l a k h a h gives a powerful signal of its opinion of the whole: suitable folk to begin with do not take vows, only wicked people do. T h a t explains in so m a n y words why, if one says, something is subject to "the vows of suitable folk," he has said nothing. Suitable people—kesherim—make no vows at all, ever. A distaste for vowing a n d disdain for people w h o m a k e vows t h e n characterize the law. People w h o take vows are d e e m e d irresponsible; they are adults who have classified themselves as children. T h e y possess the p o w e r of intentionality but not the responsibility for its wise use. T h a t is why they are given openings toward the unbinding of their vows; they are forced at the same time to take seriously what they have said. Vows are treated as a testing of H e a v e n , a trial of Heavenly patience a n d grace. Sanctification can affect a person or a mess of porridge, and there is a difference. Expletives, with which we deal here, make that difference; these are not a d m i r e d . But because the H a l a k h a h begins a n d ends with the conviction that language is power, the H a l a k h a h also takes account of the sanetifying effect of even language stupidly used. T h a t is the message of the Halakhah, and it is only through the Halakhah at h a n d that sages could set forth the message they had in m i n d concerning the exploitation a n d abuse of the power of language. It is a disreputable use of the holy. A n d language is holy because language gives form and effect to intentionality—the very issue of the Halakhah at hand! T h a t is why we do admit intentionality—not foresight but intentionality as to h o n o r — i n t o the repertoire of reasons for nullifying vows, as we note in the H a l a k h a h of N e d a r i m : MISHNAH-TRACTATE NEDARIM 9 : 1 , 9

M. 9:1 In a matter which is between him and his mother or father, they unloose his vow by [reference to] the honor of his father or mother. M. 9:9 They unloose a vow for a man by reference to his own honor and by reference to the honor of his children. They say to him, "Had you known that the next day they would say about you, 'That's the way of So-and-so, going around divorcing his wives,' "and that about your daughters they'd be saying, 'They're daughters of a divorcée! What did their mother do to get herself divorced' [would you have taken a vow]?" And [if] he then said, "Had I known that things would be that way, I should never have taken such a vow," lo, this [vow] is not binding. T h e normative law rejects unforeseen events as a routine excuse for nullifying a vow; foresight on its own ("had you known...would you

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have vowed?") plays a dubious role. But when it comes to the intentionality involving h o n o r of parents or children, that forms a consideration of such overriding power as to nullify the vow. So sages' statement through the H a l a k h a h of Nedarim-Nazir is clear. Vows are a means used on earth by weak or subordinated person to coerce the more powerful person by invoking the power of H e a v e n . T h e y are taken u n d e r emotional duress a n d express impatience and frustration. T h e y are not to be predicted. T h e y do not follow a period of sober reflection. T h e y take on importance principally in two relationships, [1] between friends (e.g., host a n d guest), [2] between husband a n d wife. T h e y come into play at crucial, dangerous points, because they disrupt the crucial relationships that define life, particularly within the household: marriage, on the one side, friendly hospitality, on the other. T h e y j a r and explode. By admitting into h u m a n relationships the power of intentionality, they render the predictable—what is governed by regularities—into a source of uncertainty, for who in the end will penetrate what lies deep in the heart, as J e r e m i a h reflected, which is beyond fathoming? But language brings to the surface, in a statement of will best left unsaid, what lurks in the depths, and the result, Heaven's immediate engagement, is not to be gainsaid. T h a t is why vows form a source of danger. W h a t should be stable if life is to go on is m a d e capricious. So far as marriage is concerned, vows rip open the fabric of sacred relationships. Language represents power, then, a n d it is a power not to be exercised lightly. T h e weaker side to the party is represented as taking a vow—whether the milquetoast husband, whether the abused wife. It is the wife against the husband, the harried guest against the insistent host, the seller against the buyer, the boastful story-teller against the dubious listener, the passive against the active party, that the vow is taken. T h e strong incites, the weak reacts, a n d the language of reaction, the vow, contains such power as is not to be lightly unleashed even against the one who gives and therefore dominates, whether in sex or food or entertainment. Vows then are the response: the m o d e of aggression exercised by the less powerful party to the relationship. T h e weak invoke Heaven, the strong do not have to. A vow will be spit out by a guest who has been importuned to take a fourth portion in a meal he does not want to eat. A wife will exclaim that she will derive no benefit whatsoever from her husband. A whole series of cases emerges from a vow taken by a person not to derive

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benefit from his friend, with the consequence that the friend, who wants to provide some sort of support for the dependent person, does so through a third party. T h e d e p e n d e n c e then is less obtrusive. So, once more: who gives, dominates, and the vow is the instrument to escape earthly domination in the n a m e of Heaven. As usual, what the H a l a k h a h states in its way, the Aggadah expresses in its m a n n e r too. H e r e is the Bavli's topical composite on losing one's temper, which is deemed the basis for taking vows: BAVLI-TRACTATE NEDARIM TO MISHNAH-TRACTATE NEDARIM 3 : 1 A - D 1:14-18,

22A-B

B. Ned. 3:1A-D I.14/22A Said R. Samuel bar Nahman said R. Yohanan, "Whoever loses his temper—all the torments of Hell rule over him: 'Therefore remove anger from your heart, thus will you put away evil from your flesh' (Qoh. 11:10), and the meaning of'evil' is only Hell: 'The Lord has made all things for himself, yes, even the wicked for the day of evil' (Prov. 16:4). Moreover, he will get a belly ache: 'But the Lord shall give you there a trembling heart and failing of eyes and sorrow of mind' (Dt. 28:65). And what causes weak eyes and depression? Stomach aches." B. 3:1 Α-D 1.16/22b Said Rabbah bar R. Huna, "Whoever loses his temper—even the Presence of God is not important to him: 'The wicked, through the pride of his countenance, will not seek God; God is not in all his thoughts' (Ps. 10:4)." B. 3:1A-D I.17/22b A. R. Jeremiah of Difti said, "[Whoever loses his temper]—he forgets what he has learned and increases foolishness: 'For anger rests in the heart of fools' (Qoh. 7:9), and 'But the fool lays open his folly' (Prov. 13:16)." B. R. Nahman bar Isaac said, "One may be sure that his sins outnumber his merits: 'And a furious man abounds in transgressions' (Prov. 29:22)." B. 3:1 Α-D 1.18/22b Said R. Ada b. R. Hanina, "If the Israelites had not sinned, to them would have been given only the Five Books of the Torah and the book of Joshua alone, which involves the division of the Land of Israel. How come? 'For much wisdom proceeds from much anger' (Qoh. 1:18)." [Freedman, Nedarim, ad loc.: The anger of God caused him to send prophets with their wise teachings.] Sages leave no doubt as to their view of matters, which they express with the usual explicit clarity. T h e same negative view pertains to the Nazirite vow. It is a m a r k of arrogance. T h e H a l a k h a h then answers the question, what can a m a n or a w o m a n say so as to become obliged to do or not do a specified range of deeds? And the answers to that question respond to yet another, still more p r o f o u n d question. It is, how is H e a v e n mindful of m a n

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a n d w o m a n on earth? T h e o r n a t e essays into the trivialities o f l a n guage a n d the use of language that we find in the H a l a k h a h of Qiddushin, K e t u b o t , N e d a r i m , Nazir, and, as we shall see, G i t t i n — but not Sotah, for one set of reasons, a n d not Y e b a m o t , for a n o t h e r set—respond to that question. T h e H a l a k h a h speaks large a n d simpie truths in conveying a remarkable vision of h u m a n i t y in G o d ' s image. M a n a n d w o m a n are so like G o d as to be able through what they say to provoke, a n d even e n c u m b e r , G o d ' s caring and concern. T h a t is because m a n and woman know how to say the ordinary words that make an extraordinary difference on earth and in Heaven. T h e message of the H a l a k h a h of the O r a l T o r a h is, persons are responsible for what they say—there is no such thing as " m e r e words"— because what they say brings to full articulation what they want, words b e a r i n g the b u r d e n of intentionality. After all, the first act of creation is contained in the statement, "And G o d said...."

VI. Individuation and Personal Autonomy in Judaism T h e H a l a k h a h before us expresses the social teaching that Israelites e n j o y individuation, just as do gentiles. But f o r m i n g Israel, they relinquish all possibility of defining a realm of absolute a u t o n o m y of the person.‫ ׳‬T h e i r freedom is limited to the choice: live in G o d ' s kingdom or not, find freedom incised upon the T o r a h or not. Let me explain. In light of the Halakhic system set forth in the preceding sections, no one can doubt that individual Israelites enjoy important options of personal individuation. T h e y m a y distinguish themselves in virtue. T h i s they do by generosity toward the T e m p l e a n d its cult, transforming wealth into divine service. T h e y do by giving of themselves, undertaking onerous religious duties in behalf of the c o m m u nity or as expressions of individual conscience (if we m a y use a word grossly anachronistic for the period of which we speak). T h e Halakhah even recognizes the legitimacy of dubious media of individuation involving the idiosyncratic manipulation of language through vows a n d the special vow of the Nazirite. Any conception of Israelites as faceless a u t o m a t o n s of the Law grossly violates the letter and ' O t h e r native category-formations of the law nurture relinquishing rights of ownership of crops and property in favor of enhanced rights of utilization and possession, as we shall see at tractates Shabbat-Erubin and Shebi'it.

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spirit of the T o r a h , written as mediated by oral, of Rabbinic J u d a ism. So, within the definition of individuation with which we b e g a n — "the power of persons deliberately to distinguish themselves"—a rich repertoire of opportunities a n d occasions for individuals to e m b o d y G o d ' s g r a n d e u r in creation by showing themselves different f r o m all others beckons. But the question remains, how does the H a l a k h a h provide a foundation for the a u t o n o m o u s individual? T h e simple answer is, it does not. T h e H a l a k h a h does not recognize the a u t o n o m y of persons, w h e t h e r Israelite or not-Israelite. All children of N o a h , by definition, are subject to divine imperatives, a n d these apply without variation to everyone of them. T h e seven such religious obligations that apply to the children of N o a h find their place in the H a l a k h a h of A b o d a h Z a r a h , where the R a b b i n i c doctrine of the gentiles comes to full expression: TOSEFTA-TRACTATE ABODAH ZARAH 8 : 4 - 6

T. 8:4 A. Concerning seven religious requirements were the children of Noah admonished: B. setting up courts of justice, idolatry, blasphemy [cursing the Name of God], fornication, bloodshed, and thievery. W e now proceed to show how each of these religious obligations is represented as applying to gentiles as m u c h as to Israelites: C. Concerning setting up courts of justice—how so [how does Scripture or reason validate the claim that gentiles are to set up courts of justice]? D. Just as Israelites are commanded to call into session in their towns courts of justice. E. Concerning idolatry and blasphemy—how so? . . . F. Concerning fornication—how so? G. "On account of any form of prohibited sexual relationship on account of which an Israelite court inflicts the death-penalty, the children of Noah are subject to warning," the words of R. Meir. H. And sages say, "There are many prohibited relationships, on account of which an Israelite court does not inflict the death-penalty and the children of Noah are [not] warned. In regard to these forbidden relationships the nations are judged in accord with the laws governing the nations. I. "And you have only the prohibitions of sexual relations with a betrothed maiden alone." As in the case of Israelites, so the death penalty applies to a N o a hide, so b. San. 7:5 I . 4 - 5 / 5 7 a : O n account of violating three religious duties are children of N o a h put to death: on account of adul-

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tery, m u r d e r , a n d b l a s p h e m y . ' " R. H u n a , R. J u d a h , a n d all the disciples of R a b say, " O n account of seven c o m m a n d m e n t s a son of N o a h is put to death. T h e All-Merciful revealed that fact of one of them, a n d the same rule applies to all of them." But just as Israelites, educated in the T o r a h , are assumed to exhibit certain uniform virtues, e.g., forbearance, so gentiles, lacking that same education, are assumed to c o n f o r m to a different model. T h e T o r a h makes all the difference, defining what makes Israel Israel and determining the definition of the Israelite within Israel. T h e upshot m a y be stated very simply. Israel and the gentiles form the two divisions of h u m a n ity. T h e one—Israel—will die but rise f r o m the grave to eternal life with G o d . W h e n the other dies, it perishes; that is the end. T h e gentiles sustain comparison a n d contrast with Israel, the point of ultimate division being death for the one, eternal life for the other. Within the f r a m e w o r k of the seven c o m m a n d m e n t s applying to all h u m a n i t y a range of personal a u t o n o m y extends outward in all directions to the farthest horizons. Gentiles can eat anything they want, a n d they can do nearly anything they want. But Israel's situation is different, and while Israelites m a y shape for themselves traits of individuality, these are limited to those media of self-differentiation that the H a l a k h a h can endorse (Arakhin, Berakhot, Taanit) or at least tolerate (Nazir, Nedarim). In Aggadic terms, Israelites accepted G o d ' s dominion at Sinai and so they are G o d ' s slaves; they cannot take a valid oath that violates the T o r a h , having taken a prior oath that endures in place. If they take such vows or oaths contrary to the T o r a h , they need not seek remission f r o m a sage, for the vow or oath to begin with never was valid. So Israelites possess full rights of individuation, but, as slaves indentured to G o d , they have already surrendered part of their rights of free a n d unfettered will. T h e i r freedom is incised in the T o r a h ; the T o r a h makes them free to choose, within the repertoire of choices G o d in the T o r a h has already defined. T h e upshot is, Israelites m a y differentiate themselves f r o m one another, but they may not distinguish themselves as individuals from Israel. T h a t is what I m e a n w h e n I say, they have the right of individuation but no access to a claim of complete personal a u t o n o m y , which, in the Rabbinic social teaching, is incomprehensible. T h o s e Israelites that cross the outer limits of Israel lose what being part of Israel promises, which is eternal life. This is expressed in the following

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u n a m b i g u o u s language, which I find at the heart of the entire systern of R a b b i n i c J u d a i s m : MISHNAH-TRACTATE SANHÉDRIN 1 1 : 1

A. B.

C. D.

All Israelites have a share in the world to come, as it is said, "your people also shall be all righteous, they shall inherit the land forever; the branch of my planting, the work of my hands, that I may be glorified" (Is. 60:21). And these are the ones who have no portion in the world to come: He who says, the resurrection of the dead is a teaching which does not derive from the Torah, and the Torah does not come from Heaven; and an Epicurean. E. R. Aqiba says, "Also: He who reads in heretical books, F. "and he who whispers over a wound and says, '1 will put none of the diseases upon you which I have put on the Egyptians, for I am the Lord who heals you' (Ex. 15:26)." G. Abba Saul says, "Also: He who pronounces the divine Name as it is spelled out."

T o be Israel is to share in the world to come, which means, to rise f r o m the grave at the end of days, stand in j u d g m e n t , and, having a t o n e d for sins c o m m i t t e d in this life t h r o u g h death, enter u p o n eternal life. Personal autonomy is ruled out. O n e loses his or her share in the world to come if one denies the origin, in the T o r a h , of the doctrine of resurrection, or if one denies that G o d revealed the T o r a h ("the T o r a h does not come f r o m Heaven"), or an Epicurean. T h e T a l m u d to the Mishnah-passage explains the justice of denying a share in the world to come to one w h o denies the resurrection of the dead: it is only m e a s u r e for measure: BAVLI TO M . SANHÉDRIN 1 1 : 1

1.1

A. Β.

C.

I.1/90A-B

Why all this [that is, why deny the world to come to those listed]? On Tannaite authority [it was stated], "Such a one denied the resurrection of the dead, therefore he will not have a portion in the resurrection of the dead. "For all the measures [meted out by] the Holy One, blessed be he, are in accord with the principle of measure for measure." D. For R. Samuel bar Nahmani said R.Jonathan said, "How do we know that all the measures [meted out by] the Holy

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One, blessed be he, accord with the principle of measure for measure? "As it is written, 'Then Elisha said, Hear you the word of the Lord. Thus says the Lord, Tomorrow about this time shall a measure of fine flour be sold for a shekel, and two measures of barley for a shekel in the gates of Samaria' (2 Kgs. 7:1). "And it is written, 'Then a lord on whose hand the king leaned answered the man of God and said, Behold, if the Lord made windows in heaven, might this thing be? And he said, Behold, you shall see it with your eyes, but shall not eat thereof (2 Kgs. 7:2). [90B] "And it is written, 'And so it fell unto him; for the people trod him in the gate and he died' (2 Kgs. 7:20). But perhaps it was Elisha's curse that made it happen to him, for R. Judah said Rab said, "The curse of a sage, even for nothing, will come about"? If so, Scripture should have said, "They trod upon him and he died." Why say, "They trod upon him in the gate"? It was that on account of matters pertaining to [the sale of wheat and barley at] the gate [which he had denied, that he died].

T h e t r e a t m e n t of the m o r e f u n d a m e n t a l point of insistence—denying that the T o r a h comes f r o m G o d — i s conveyed in the following outline of the Bavli's expansion on that point: I.

A N D THESE ARE THE ONES WHO HAVE NO PORTION IN THE WORLD TO COME: H E WHO SAYS...THE T O R A H DOES NOT COME FROM HEAVEN:

1.

11:1: Our rabbis have taught on Tannaite authority: "Because he has despised the word of the Lord and broken his commandment, that soul shall utterly be cut off" (Num. 15:31): This refers to one who says, "The Torah does not come from heaven." 2. 11:2: It has been taught on Tannaite authority: R. Meir would say, "He who studies the Torah but does not teach it falls under the verse, "Because he has despised the word of the Lord" (Num. 15:31)." R. Nathan says, "Whoever does not pay close attention to the Mishnah." R. Nehorai says, "Whoever has the possibility of taking up the study of the Torah and does not do so." R. Ishmael says, "This refers to one who worships an idol." 3. 11:3: R.Joshua b. Qorhah says, "Whoever studies the Torah and does not review it is like a man who sows seed but does not harvest it." R. Joshua says, "Whoever learns the Torah and forgets it is like a wornan who bears and buries." R. Aqiba says, "A song is in me, a song always" (T. Ah. 16:8H-I).

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11:4: Said R. Eleazar, "Every man was born to work, as it is said, 'For man is born to work' (Job 5:7). I do not know whether it is for work done with the mouth that he is created, or whether it is for labor done through physical work that he was created. When Scripture says, 'For his mouth craves it of him' (Prov. 16:26), one has to conclude that it is for work done with the mouth that he was created. Yet I still do not know whether it was to labor in the Torah or to labor in some sort of other conversation. When Scripture says, 'This book of the Torah shall not depart out of your mouth' (Josh. 1:8), one must conelude that it is for labor in the Torah that he is created." 11:5: "Whoever commits adultery with a woman lacks understanding" (Prov. 6:32). Said R. Simeon b. Laqish, "This refers to one who studies the Torah at occasional intervals." 11:6: Our rabbis have taught on Tannaite authority: "But the soul that does anything presumptuously" (Num. 15:30): This refers to Manasseh, son of Hezekiah, who would go into session and interpret tales seeking flaws in them, saying, "Did Moses have nothing better to do than to write such verses as 'And Lotan's sister was Timna' (Gen. 36:22). 'And Timna was concubine to Eliphaz' (Gen. 36:12). 'And Reuben went in the days of the wheat harvest and found mandrakes in the field' (Gen. 30:14)?" An echo came forth and said to him, '"You sit and speak against your brother; you slander your own mother's son. These things you have done, and I kept silence, you thought that I was altogether such a one as yourself, but I will reprove you and set them in order before your eyes' (Ps. 50:20-21)." 11:7: Said R. Alexandri, "Whoever is occupied in study of the Torah for the sake of heaven brings peace to the family above and to the family below." 11:8: Said R. Simeon b. Laqish, "Whoever teaches Torah to the son of his neighbor is credited by Scripture as if he had made him." 9. 11:9: Said R. Abbahu, "Whoever makes his neighbor carry out a religious duty is credited by Scripture as if he himself had done it, as it is said, 'The Lord said to Moses, Take...your rod, with which you hit the river' (Ex. 17:5)."' This pastiche of marginally relevant observations about the theme of Torah-study hardly gets to the heart of the matter. But the model of the treatment of resurrection serves: an Israelite who denies that God gave the Torah loses all access to knowledge of God, who made himself known in the Torah. And the rest follows.

5.

6.

7.

8.

T h e upshot m a y be stated very simply. T h e social teaching of R a b binic J u d a i s m affords full opportunities of legitimate self-differentiation, but no space whatsoever for personal autonomy. 8 T h e mean!i

All the more so does Rabbinic Judaism not conceive the possibility of a secular or merely ethnic definition of Israel. Nor can we point to any other Judaism in antiquity or in the Middle Ages that can imagine an "Israel" that is a this-worldly

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ing of being "Israel" encompasses the surrender on the p a r t of the individual of whatever claim to personal a u t o n o m y he has wished to register. T o belong to Israel means to gain a victory over the grave, to conquer death and to enter upon eternal life in the world to come. Acceptance of the T o r a h as interpreted by the Rabbinic sages—that is, the written T o r a h as mediated by the oral T o r a h — s e t s the price of admission to the world to come. A n d the T o r a h certainly limits the range of possibilities open to individuals. But that is by définition w h a t it m e a n s to be Israel, that is, an Israelite within the social entity, Israel. It is the point at which we started. All h u m a n i t y enjoys rights of individuation. But only Israelites form a social entity that enjoys recognition in H e a v e n . Everyone is an individual. O n l y Israelites form something larger t h a n themselves. T h a t something larger, that Israel, called into being by G o d at Sinai, abridges the rights of utter personal autonomy. T h a t is what belonging to a group entails, even in the most secular of circumstances. T h e upshot is clear. T h e social teaching of J u d a i s m deems the individual to e m b o d y h u m a n i t y ' s natural condition, beginning with A d a m and Eve. Israel c a m e later, through G o d ' s p r o g r a m of regeneration. T h e n the social teaching of R a b b i n i c J u d a i s m , having provided for legitimate media of individuation to suit the n o r m a l state of the social order, would face the task of mediating between the individual a n d c o r p o r a t e Israel. H o w the H a l a k h a h provides for realizing corporate Israel out of the persons of Israelites forms the logically-consequent question, to which we now turn. social entity, comparable to "the nations" or "the peoples. , ‫ י‬Any notion of a secular Jewish "identity" defies the category-formations of every Judaism before the twentieth century and represents pure anachronism.

3.

REALIZING CORPORATE ISRAEL I. From Individual to Community: Where and How Does Corporate Israel Take Shape? F r o m the perspective of the T o r a h , the written as mediated by the oral, individuality defines the natural condition of humanity. Peopie one by one are responsible for themselves to G o d . But they form by nature no collectivity, no society that encompasses individuals and imparts the character of the whole u p o n each of the personal components. T h e miracle of society takes G o d ' s intervention. T h e formation of a social entity that encompasses individuals and turns them into something other, m o r e t h a n they are as private persons—into a c o r p o r a t e , m o r a l entity, in the language I have used—requires divine action. Israel comes about by reason of G o d ' s activity: his call to A b r a h a m , his self-manifestation in the liberation of Israel f r o m Egypt, at Sinai. Israel as a whole, not only severally but jointly, for that reason is j u d g e d by G o d by the criterion of the T o r a h . T h a t captures the mythic formulation of how individuals f o r m the corporate community. It is through divine activity: engagement, intervention, revelation. As we have now seen, R a b b i n i c J u d a i s m knows Israel as the social order bearing moral obligations to G o d , subject to divine imperatives, in such a way that belonging to that society bears consequences for each individual. T h e n , in a p r o f o u n d sense, according to that teaching, h u m a n i t y at large is un-social-ized. T h a t is to say, gentiles are d e e m e d not f o r m e d by either n a t u r e or n u r t u r e (genealogy, conversion) into larger entities ("families," "societies," "peopies," "nations" a n d the like). G r o u p s of gentiles constitute individuals on their own, not something more, something other: a social entity in its own terms. T h e collectivities, however classified, that they manifestly do form represent a mere happenstance, bearing no standing in the divine scheme of things. T h a t the H a l a k h a h takes such a position is self-evident. It holds that gentiles—meaning, idolaters, those w h o do not worship the one

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a n d only G o d , self-manifest at Sinai in the T o r a h — h a v e no ancestry, no descendants. T h e y thus do not possess inherent family relations. T h e givenness of their individuality is underlined by that fact: the gentile family is null, no m o r e t h a n the sum of the individual m e m b e r s , not related to one a n o t h e r by any but adventitious connections. T h u s , in the law of J u d a i s m , gentile family-ties b e a r no implications for either consanguinity or inheritance. If a gentile becomes an Israelite, therefore, his or her prior family ties are null. H e or she is viewed as a new-born child, the father a n d m o t h e r of w h o m are A b r a h a m a n d S a r a h , not the natural parents. In H a l a khic theory, therefore, a gentile m o t h e r a n d her son, or a b r o t h e r a n d a sister after conversion to J u d a i s m , m a y m a r r y without violâting the laws against incest. A convert who dies without Israelite heirs cannot b e q u e a t h his property (e.g., to his gentile natural relations), which is d e e m e d ownerless. H e has no natural heirs by law. But the Israelite is subject to the T o r a h ' s laws of inheritance. In these concrete ways, the distinction b e t w e e n Israel as a social o r d e r , a n d gentiles as masses of individuals b e a r i n g no traits of socialization (in the sense just now defined) come to expression. T h a t is what I m e a n when I say, for h u m a n i t y individuality is the norm, community the exception, or, in a perhaps too-simple formula, h u m a n i t y is individual by nature, social only by n u r t u r e — b y the n u r t u r e of the T o r a h . O n c e we realize that the social teaching of R a b b i n i c J u d a i s m identifies Israel, sui generis, as the exception to the n o r m of an unsocialized humanity, our inquiry defines its own direction. It is to investigate how the H a l a k h a h defines the relationship of the Israelite to Israel, the individual, in his antediluvian condition, to the community formed ten generations after N o a h , that is, from A b r a h a m forward. Logically, these questions follow from that fact. First, precisely how does an individual take his place within Israel? T h e answer to that question at a f u n d a m e n t a l level defines the character of that unique social entity, "Israel." It indicates for what that Israel is constituted, what links individuals into that group. Along these same lines, second, we ask how the individual defines his place within the group, meaning, the story that he tells himself within the f r a m e w o r k of Israel, and the occasion on which it is told. H a v i n g established the Halakhic procedures for the socialization of individuals within the community, Israel, we turn to the most imp o r t a n t context in which that socialization of individuals into Israel makes a concrete difference a n d comes to distinct expression. T h e

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corporate character of Israel comes to expression in the most practical setting. T h e Halakhah distinguishes ownership of property from possession a n d usufruct—rights of utilization—of property. Householders in the Land of Israel—that defines the focus of, and the arena of activity for, the social teaching of R a b b i n i c J u d a i s m — p a r t i c i p a t e in "Israel" not only in intangible ways but in a concrete m a n n e r as well. T h e y do not own their real estate free a n d clear; they cannot fully realize their unfettered will in regard to their property; in the utilization of their property they are subject to the will of a n o t h e r , a p a r t n e r , w h o is G o d . So they do not really own their property, in the way in which they m a y own a bench or a sofa, of which they are free to dispose for any p u r p o s e at all. T h e y possess a n d m a y use their property, but in significant ways they are subject to their partner's claim on it. T h a t is best expressed, the context most clearly delineated, in Shebi'it, the H a l a k h a h having to do with the Seventh Year of the sabbatical cycle. At that time all the real estate of the L a n d of Israel is declared ownerless, its crops free for all, its fields left fallow, a n d debts are remitted. Finally, the H a l a k h a h not only sets in motion processes that differentiate ownership f r o m possession, the radically isolated individual f r o m the c o m m u n i t a r i a n collectivity of partners. It also nurtures the formation of an Israelite c o m m u n i t a r i a n policy. T h i s is does by setting forth incentives for the sharing of ownership in partnerships formed for m u t u a l benefit: comfort a n d convenience. Households, each d e e m e d private d o m a i n , are j o i n e d into collective courtyards to f o r m a large, also private d o m a i n , but now accessible to, subject to the usufruct of, all partners in the shared d o m a i n ; the same is so of alleyways, formed of courtyards, a n d , indeed, of entire villages or towns. T h r o u g h fictive rites, involving either provision of a shared meal open to all to partake, or construction of a symbolic b o u n d ary-marker for the j o i n e d d o m a i n of individual households into an encompassing shared, but still private, d o m a i n , communities are f o r m e d out of individual property. T h e prohibitions against transporting objects f r o m one d o m a i n to a n o t h e r (private/public or private/private) are turned into rules in the H a l a k h a h of S h a b b a t , the S a b b a t h , a n d the m a n n e r of creating ad hoc partnerships, shared d o m a i n out of individual property, is spelled out in the H a l a k h a h of Erubin. In that essentially-continuous exposition, the incentives to create c o m m u n i t y come to full exposure.

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T h e s e several native category-formations of the H a l a k h a h bring to practical expression that balance attained by the social teaching of Rabbinic Judaism: individuation, not personal autonomy. Because they are part of the entirety of humanity, Israelites are individuals, each a distinct moral entity subject to G o d ' s will, just as were A d a m a n d Eve. But because they constitute, all together a n d all at once, "Israel" as well—a moral entity responsible for its collective conduct and answerable for the actions of individuals—Israelites cannot claim utter a u t o n o m y as free-standing persons, responsible only for themselves and (besides God) only to themselves. Israelites may distinguish themselves f r o m one another. By their n a t u r e they are accorded full rights and opportunities of individuation. But by their situation within Israel, they bear other bonds. T h e s e are bonds of connection a n d responsibility, that close off the condition of personal a u t o n o m y and define the range of permitted individuation. Within that large theory of matters, beginning with the definition of Israel as sui generis in the context just now spelled out and of the Israelite as f u n d a m e n tally different from the not-Israelite in the very definition of the social order constituted by each, everything else follows. O u r task is now to follow the social theory of Rabbinic J u d a i s m as it affords definition of the individual e m b e d d e d in the Israelite social order (Sheqalim) a n d self-situated therein (Bikkurim). T h e n we turn to the ways in which that same social theory, realized in n o r m s of conduct, imposes a c o m m u n i t a r i a n reading of the rights of property-ownership (Shebi'it) and further defines incentives for householders to relinquish a u t o n o m o u s ownership in favor of partnership in the linkage of one private d o m a i n to a n o t h e r in the formation of a large, accessible shared property, owned privately—but in corporate ownership, possessed by all partners. 1 It is only on the premise— the m o d e l — t h a t individuals m a y constitute a corporate c o m m u n i t y that such a conception can be constructed. In the social teaching of R a b b i n i c J u d a i s m , corporate Israel defines that model.

1

That principle precipitates the Halakhic inquiry into how that ownership cashes out: how is the ownership diffused?

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II. How the Individual Takes a Place within the Social Construct, Israel: Sheqalim W h e r e to begin an account of the social teaching of embodied Israel? It is at the point at which all Israel viewed as a m o r a l entity joins individual Israelites into a corporate body, responsible collectively as Israelites are responsible individually? T h e answer must be found in the question, w h a t must every Israelite, without exception or variation, do because, and only because, he belongs to Israel? T h a t is surely a f u n d a m e n t a l m a r k e r of the corporate c o m m u n i t y ' s encompassing of individuals a n d m a k i n g of t h e m something m o r e t h a n they are one by one. T h e answer is simple. It is to contribute the half-sheqel to support the public offerings of the T e m p l e . E a c h Israelite male must contribute his share of those offerings, which are described f r o m Scripture forward as a t o n e m e n t for all Israel. So, as we shall see, in the daily whole offerings corporate Israel is incorporated: a n atoning community. T h e s e offerings, specifically, presented at dawn a n d dusk to atone for the sins of all Israel. T h e s e a n d certain counterpart offerings, e.g., the atonement offerings of the D a y of Atonement (Lev. 16) effect atonement for the c o m m u n i t y as a whole. T h e n what is the mythic teaching that is realized? It is that the social entity, c o r p o r a t e Israel, embodies a sinful c o m m u n i t y . Israelites b e c o m e party to the c o m m u n i t y of Israel because all together they sinned a n d all together they share in the task of collective a t o n e m e n t . T h e generative social teaching of R a b b i n i c J u d a i s m on Israel, a unique entity in h u m a n i t y , is this: Israel is a moral entity that has sinned altogether a n d all at once a n d that consequently atones together as well. T h e half-sheqel, paid by all Israelites wherever located, serves as a principal m e d i u m by which all males are obligated, a n d w o m e n permitted, to participate in the public atonement offerings. All Israel, everywhere, relate to G o d t h r o u g h support of the public offerings in expiation of collective guilt. In the obligation to provide t h a t support all are equal, rich a n d poor, priest a n d convert, resident of the L a n d a n d of the Exile alike. T h e half-sheqel that is paid itself is sanctified in the way in which the heave-offering or tithe is sanctified, and the analogy to second tithe, on the one side, a n d the heaveoffering paid to the priests, on the other, is Halakhically explicit. T h e half-sheqel moreover is taken up in the consecrated m a n n e r — r a n -

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domly, through an act of raising u p — a n d then is used for the p u r chase of animals in behalf of all Israel and for certain other purposes connected with the cult and the building where it was located. W h a t , exactly, is d o n e with the half-sheqels? A r a n d o m sample of the collection is raised u p and devoted to the purchase of the daily whole offerings (and other cultic tasks as we shall see). As the f a r m er relies on c h a n c e to indicate G o d ' s choice as to the particular portion of the crop to be designated as heave-offering or tithe, so chance defines the selection process when the priests in the T e m p l e take u p a heave-offering of the " c r o p " of coins. T h e y were careful to sample the collection in such a way that once a batch of coins has been subjected to the taking u p of coins, that batch is not sampled a second time. A n d so too, as heave-offering of a given batch of p r o d u c e may serve for other batches, so too the heave-offering of the sheqel-coins is deemed to represent a random-sample of an entire batch of such coins, even including those not physically present when the heave-offering of the sheqel-chamber is taken up. T h e action covers that which is subject to a pledge f r o m what already has been collected but which got lost en route to the T e m p l e , a n d , in the opinion of some, also what is going to be collected in the future. But once the span of time in which a given coin serves has passed, the coin itself is no longer sanctified. Its value is used for the upkeep of the T e m p l e house. So the half-sheqels are "raised u p " in the m a n ner of heave-offering, in a r a n d o m sample, out of the sheqel c h a m ber, a n d with the funds a p p r o p r i a t e offerings of a t o n e m e n t were purchased, as described in the following: MISHNAH-TRACTATE SHEQALIM 4 : 1 - 2

M. 4:1 As to the heave offering [of the sheqel chamber]: What did they do with it? They purchase with it [animals for] daily whole offerings, additional offerings, and their drink offerings, [wheat for] the omer, the Two Loaves, and the Show Bread, and all [other] offerings made in behalf of the community Those who guard the aftergrowths of the Seventh Year receive their salary from the heave offering of the [sheqel] chamber. M. 4:2 The red cow [Num. 19:Iff.], the goat which is sent out, and the red thread [Lev. 16:5] derive from funds of the heave offering of the [sheqel] chamber. The [cost of building] a causeway for the red cow, the causeway for the scapegoat which is sent forth, the thread between its horns, the [cost of the upkeep of the] water channel, the wall of the city and its turrets, and all needs of the city [of Jerusalem] derive from the residue [of funds of the sheqel] chamber [coins not taken up with the heave offering thereof].

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T h e stress throughout reprises Scripture's emphasis upon atonement for collective Israel through the daily whole offerings and their counterparts. W h a t the H a l a k h a h of the O r a l T o r a h contributes is the articulation of the analogous relationship of the half-sheqel to tithes a n d heave-offering. It is through this particular m e d i u m that all Israel, not only the enlandised c o m p o n e n t s of Israel, relate directly a n d concretely to G o d . For its part, Scripture describes the half-sheqel in this language: The Lord said to Moses, "When you take the census of the people of Israel, then each shall give a ransom for himself to the Lord when you number them, that there be no plague among them when you number them. Each who is numbered in the census shall give this: half a sheqel, according to the sheqel of the sanctuary...half a sheqel as an offering to the Lord. Every one who is numbered in the census, from twenty years old and upward, shall give the Lord's offering. The rich shall not give more, and the poor shall not give less, than the half-sheqel, when you give the Lord's offering to make atonement for yourselves. And you shall take the atonement money from the peopie of Israel and shall appoint it for the service of the tent of meeting; that it may bring the people of Israel to remembrance before the Lord, so as to make atonement for yourselves." Ex. 30:11-16 T h e conception that t h r o u g h the half-sheqel, everyone acquires a share in the a t o n e m e n t offering is explicit. H e r e is the m e d i u m of Israel's relationship with G o d that transcends place, genealogy, a n d condition; the half-sheqel, unlike Firstfruits, comes f r o m any location, even beyond the L a n d , a n d comes f r o m all Israelites, not only those speciated by the three sorts of relationship with the Land. Here is how the H a l a k h a h is set forth by the Mishnah: MISHNAH-TRACTATE SHEQALIM

1:3

M. 1:3 Once the [money-changers' tables] were set up in the Temple, they began to exact pledges [from those who had not paid the tax in specie]. From whom do they exact a pledge? Levites, Israelites, proselytes, and freed slaves, but not from women, slaves, and minors. Any minor in whose behalf the father began to pay the sheqel does not again cease [to pay]. And they do not exact a pledge from priests, for the sake of peace. W h e t h e r or not the priests pay the half-sheqel is subject to dispute, which need not detain us. It suffices to note that the a t o n e m e n t -

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offering is obligatory for males a n d votive for w o m e n . T h e Tosefta's c o m p l e m e n t makes the purpose of the half-sheqel explicit: TOSEFTA-TRACTATE SHEQALIM 1 : 6

T.

1:6 They exact pledges from Israelites for their sheqels, so that the public offerings might be made of their [funds]. This is like a man who got a sore on his foot, and the doctor had to force it and cut off his flesh so as to heal him. Thus did the Holy One, blessed be he, exact a pledge from Israelites for the payment of their sheqels, so that the public offerings might be made of their [funds]. For public offerings appease and effect atonement between Israel and their father in heaven. Likewise we find of the heave-offering of sheqels which the Israelites paid in the wilderness, as it is said, "And you shall take the atonement money from the people of Israel land shall appoint it for the service of the tent of meeting; that it may bring the people of Israel to remembrance before the Lord, so as to make atonement for yourselves]" (Ex. 30:16).

In participating in the rite, all male Israelites (with the noted exception) share equally. Samaritans a n d gentiles m a y not: MISHNAH-TRACTATE SHEQALIM 1 : 5

M. 1:5 Even though they have said [M. 1:3F], "They do not exact pledges from women, slaves, or minors," if they paid the sheqel, they do accept it from them. A gentile and a Samaritan who paid the sheqel— they do not accept it from them. Nor do they accept from them bird offerings for male Zabs, bird offerings for female Zabs, bird offerings for women who have given birth, sin offerings, or guilt offerings. But [offerings brought by reason of] vows and freewill offerings they accept from them. This is the governing principle: Anything which is vowed or given as a freewill offering do they accept from them. Anything which is not vowed or given as a freewill offering do they not accept from them. And so is the matter explained by Ezra, since it is said, "You have nothing to do with us to build a house unto our God" (Ezra 4:3). TOSEFTA-TRACTATE SHEQALIM 1:7

T.

1:7 They purchase from gentiles public offerings in exchange for the payment of funds [cf. M. Sheq. 1:5B], "And they accept from them [freewill-offerings of] burnt-offerings, peace-offerings, fowl, meal-offerings, wood, incense, and salt," the words of R. Yosé the Galilean. Said to him R. Aqiba, "Even if you stay in session and expound your view all day long, [it will not matter]. They accept from them only a [votive] burnt-offering or peaceofferings alone." They do not accept from them a freewill-offering for sanctification

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for the upkeep of the Temple-house. But if they sanctified [something for the upkeep of the house], their act of sanctification is valid. W h a t about gentiles? As we see, opinion is divided. T o be sure, burntofferings a n d peace-offerings m a y derive f r o m them, but not freewill-offerings for sanctification for the upkeep of the Temple-house. But if they sanctified something for the upkeep of the house, their act of sanctification is valid. In any event the sheqel-coin does not pertain to them. T h e upshot is simple. Male Israelites of all castes but the priestly one f o r m a c o m m u n i t y of a t o n e m e n t , which female Israelites m a y voluntarily join. Gentiles m a y sanctify the half-sheqel as an act of volition, but only Israel as an act of corporate responsibility a n d obligation. M o r e to the point, gentiles act one by one, only Israel acts all together, and, in the act of taking up the heaveoffering of the half-sheqels, all at once. So A d a m a n d Eve face G o d one by one, while Israel relates to G o d not only one by one, but all together, as at Sinai. T h a t principle, implicit t h r o u g h o u t , is m a d e explicit in the following rule: TOSEFTA-TRACTATE SHEQALIM 2 : 7

A. If people volunteered the funds on their own, they are valid, on condition that they [to begin with, explicitly] donate the funds to the community for public use. It is the donation to the c o m m u n i t y for public use that supplies the key. And, it follows, not only do Israelites sin a n d atone one by one. Israel as a whole sins a n d corporately requires a t o n e m e n t , a n d that is the purpose of the daily whole-offerings, as Scripture makes explicit. T h e public offerings—the daily whole offerings—atone for Israel's sin: public offerings appease a n d effect a t o n e m e n t between Israel and their father in heaven, just as is stated in the Written T o r a h . It is the collectivity of Israel that is e m b o d i e d in the half-sheqel offering. And that statement of the corporate character of Israel comes to expression in the half-sheqel in particular. N o w o n d e r the halfsheqel forms the c o u n t e r p a r t to the agricultural tithes a n d offerings, representing as they do enlandised Israel. But then the difference cannot be missed: the half-sheqel embodies the offering of all Israel equally, wherever located, however situated within the genealogical a n d social order. So the c o r p o r a t e action, transcending individual householders, priests, a n d the poor, represents the entire social entity. C a p a b l e of sinning collectively, Israel also atones collectively. T h a t in detail the

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sheqel-tax derives from, and stands for, all Israel, both within a n d without the Land, is stated explicitly: T O S E F T A - T R A C T A T E SHEQALIM

2:4

He took up the heave-offering of sheqels the first time and said, "Lo, this is from the Land of Israel in behalf of the whole people of Israel." Then he took up the heave-offering the second time and said, "Lo, this is from the lands of Ammon and Moab and from the cities surrounded by a wall in the Land of Israel." He took up the heaveoffering the third time and said, "Lo, this is from Babylonia and Medea and from places distant from the Land of Israel, in behalf of all Israelites." But he did not cover it up. This was the richest fund of all of them, for in it were golden istras and golden darics. So the H a l a k h a h states in so m a n y words, a n d I cannot think of a m o r e explicit way of making the point that the c o u n t e r p a r t to the agricultural offerings deriving from the Land is the offering of specie, deriving from Israel throughout the world, without the Land in both senses of the word, "without," as we have already noted. T h e social theory of Rabbinic J u d a i s m defines Israel in these terms, t h e n : Israel is f o r m e d as the sinning, t h e r e f o r e also the a t o n i n g community. Collective sin, collective a t o n e m e n t — t h e capacity for the one a n d for the o t h e r t o g e t h e r define c o r p o r a t e Israel, they d e m a r c a t e the "Israelness" of Israel, as we shall see at the end in a n o t h e r context altogether. T h e s e categories of the relationship of the c o m m u n i t y , viewed whole and all together, with G o d , defined by Scripture from the story of the Golden Calf f o r w a r d — t r a n s c e n d class, genealogy, a n d location. T o be Israel, wherever one is situâted geographically a n d socially, is to participate in the collective character of Israel, its capacity to sin, its vocation of atonement. G o d views Israel as a collectively- a n d mutually-responsible social entity, not as a collection of individuals of shared convictions a n d origins. Israel, unique in humanity, not only encompasses individuals but forms of them something else, something other than what, as individuals, they comprise. A m o n g the i n n u m e r a b l e statements o f t h a t view, Amos 3:2 suffices in its use of the plural: " O n l y you have I known of all the families of M a n , therefore I will visit on you all your iniquities." T h e half-sheqel serves as the indicator because it provides for that collective guilt and collective a t o n e m e n t that makes Israel Israel. T h e generative myth of the Halakhah retells the story of M a n and W o m a n in Eden and their c o u n t e r p a r t . T h a t is, specifically, Israel

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in the L a n d . 2 T h e n the logic of the tale requires the incorporation of Israel in a very precise sense: the f o r m a t i o n of Israel into a single responsible b o d y , a collectivity culpable as a whole a n d not solely by reason of a d d i n g u p the s u m of the activities of the individual parts. T h a t is h o w Israel e m e r g e s on its o w n , a whole m o r a l entity, viewed, by G o d , in its o w n t e r m s a n d f r a m e w o r k . Israel is culpable b u t c a p a b l e of a t o n e m e n t . Israel alone, possessed of the T o r a h , is obligated to, a n d c a n , c a r r y out a t o n e m e n t all t o g e t h e r . It is the T e m p l e a n d its cult that set the stage for the e m b o d i m e n t of entire Israel a n d t h a t m e d i a t e b e t w e e n Israel a n d G o d , a n d n o w we k n o w precisely w h y that is so a n d h o w c o r p o r a t e Israel, c o n f r o n t i n g the G o d of all creation, c o m e s a b o u t . T o Israel alone has G o d given not solely the possibility b u t as a m a t t e r of obligation, the very p o w e r to carry out an act of sanctification of the goods of this world, things of v a l u e , t r a n s l a t e d w h e t h e r i n t o p r o d u c e d e s i g n a t e d f o r G o d ' s p u r p o s e s , w h e t h e r coins for the p u r c h a s e of w h a t G o d requires. So Israel is like A d a m , b u t Israel is t h e o t h e r , t h e last A d a m , c o m p a r a b l e to, b u t ultimately the opposite of the first A d a m . H e r e is h o w sages explicitly c o m p a r e A d a m a n d Israel, the first m a n a n d the last, a n d show h o w the story of A d a m m a t c h e s the story of Isr a e l — b u t with a difference not to be missed: GENESIS RABBAH

2.

XIX:IX.L-2

A. R. Abbahu in the name of R. Yosé bar Haninah: "It is written, 'But they are like a man [Adam], they have transgressed the covenant' (Hos. 6:7). B. '"They are like a man,' specifically, like the first man. [We shall now compare the story of the first man in Eden with the story of Israel in its land.]

N o w the c o m p o s e r identifies a n action in r e g a r d to A d a m with a c o u n t e r p a r t Action in r e g a r d to Israel, in e a c h case m a t c h i n g verse for verse, b e g i n n i n g with E d e n a n d A d a m : C. '"In the case of the first man, I brought him into the garden of Eden, I commanded him, he violated my commandment, I judged him to be sent away and driven out, but I mourned for him, saying "How..."'[which begins the book of Lamentations, hence stands for a lament, but which, as we just saw, also is written with the consonants that also yield, 'Where are you']. D. " Ί brought him into the garden of Eden,' as it is written, 'And

‫ ־‬T h a t is as I have maintained in my Theology of the Halakhah.

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the Lord God took the man and put him into the garden of Eden' (Gen. 2:15). Ε. " Ί commanded him,' as it is written, 'And the Lord God commanded...' (Gen. 2:16). F. '"And he violated my commandment,' as it is written, 'Did you eat from the tree concerning which I commanded you' (Gen. 3:11). G. " Ί judged him to be sent away,' as it is written, "And the Lord God sent him from the garden of Eden' (Gen. 3:23). H. '"And I judged him to be driven out.' 'And he drove out the man' (Gen. 3:24). I. '"But I mourned for him, saying, "How...".' 'And he said to him, "Where are you'" (Gen. 3:9), and the word for 'where are you' is written, 'How....' N o w comes the systematic comparison of A d a m a n d E d e n with Israel a n d the L a n d of Israel: J.

Κ. L. M. Ν. O. P.

'"So too in the case of his descendants, [God continues to speak,] I brought them into the Land of Israel, I commanded them, they violated my commandment, I judged them to be sent out and driven away but I mourned for them, saying, "How...."' " Ί brought them into the Land of Israel.' 'And I brought you into the land of Carmel' (Jer. 2:7). " Ί commanded them.' 'And you, command the children of Israel' (Ex. 27:20). 'Command the children of Israel' (Lev. 24:2). '"They violated my commandment.' 'And all Israel have violated your Torah' (Dan. 9:11). " Ί judged them to be sent out.' 'Send them away, out of my sight and let them go forth' (Jer 15:1). '"....and driven away.' 'From my house I shall drive them' (Hos. 9:15). '"But I mourned for them, saying, "How...."' 'How has the city sat solitary, that was full of people' (Lam. 1:1)."

H o w t h e n is Israel incorporated? It is e m b o d i e d like A d a m , a collectivity f o r m e d in the status of a n individual, to which Israelite individuals relate themselves. T r u e , Israel is different f r o m A d a m by reason of the T o r a h . But that is a s e p a r a t e question, not u r g e n t in the present f r a m e w o r k . R a t h e r we t u r n to the next question. It c a n only be, h o w does the Israelite i n d i v i d u a l situate himself within c o r p o r a t e Israel? T h e answer, as we shall see, is not through the halfsheqel a n d its p u r c h a s e of a t o n e m e n t , which equalizes all males, but t h r o u g h an obligatory o f f e r i n g that differentiates a m o n g Israelite males.

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III. How the Individual Situates Himself within Israel: Bikkunm T h e collective a t o n e m e n t effected in behalf of e a c h Israelite as p a r t of c o r p o r a t e Israel links the individual to the c o m m u n i t y . Every male equally c o n t r i b u t e s the half-sheqel to the daily whole offerings of a t o n e m e n t . T h a t is over a n d a b o v e a t o n e m e n t offerings for a p e r sonal p u r p o s e . But in c o n t e x t these d o not p r o v i d e a dense answer to the question of individual identification within Israel. T h a t is for a simple reason. T h e story that is implicit in t h e m is merely the story of c o r p o r a t e , u n d i f f e r e n t i a t e d Israel b e f o r e G o d , a t o n i n g for collective sin with a collective sacrifice. But h o w in that very context individuals link themselves to c o r p o r a t e Israel as an act of individual a m a l g a m a t i o n with the c o m m u n i t y r e m a i n s to be seen. T h e a n s w e r is, r e s o r t i n g to S c r i p t u r e a n d a d o p t i n g its tale f o r themselves, individuals in the o n e a n d the s a m e n a r r a t i v e tell their p e r s o n a l story a n d Israel's collective story. In t h a t way, in the story that he tells in his o w n r e g a r d , in the first p e r s o n singular, the individual Israelite finds a place for himself in p a r t i c u l a r in the c o r p o rate b o d y of Israel. T h e n the n a r r a t i v e shifts f r o m the first p e r s o n singular to the first p e r s o n plural. Israel's story b e c o m e s his story. H e t h e n is n o longer only an individual Israelite, but is n o w a p e r son fully e m b o d y i n g the c o m m u n i t y of w h i c h he is a n integral p a r t , entirely a b s o r b e d within that c o m m u n i t y . T h a t is h o w the individual Israelite i n c o r p o r a t e s himself within Israel. T h a t t r a n s f o r m a t i o n takes place t h r o u g h the rite of telling a story does so o n a p a r t i c u l a r occasion, designated by Scripture. It is the p r e s e n t a t i o n of the Firstfruits 5 of the h o u s e h o l d ' s fields o w n e d by an Israelite in the L a n d of Israel a n d the recitation of the c o n fession that is integral to that rite. H e r e the written part of the T o r a h defines the rite, a n d the oral p a r t recasts it. Specifically, while the Written T o r a h speaks of two ceremonies involving Firstfruits, the O r a l T o r a h knows one. 1 Scripture treats the act of s e p a r a t i n g Firstfruits 5

We are dealing not with the generic, first fruits, but with the particular offering, Bikkurim, translated here as Firstfruits, a specific designation, hence the capital throughout. 1 This account of matters depends upon Margaret Wenig Rubenstein, "A Commentary on Mishnah-Tosefta Bikkurim Chapters O n e and T w o , " in William Scott Green, ed., Approaches to Ancient Judaism. III. Text as Context in Early Rabbinic Literature (Chico, 1981: Scholars Press for Brown Judaic Studies), pp. 47-88, and David Weiner, "A Study of Mishnah Tractate Bikkurim Chapter T h r e e , " in William Scott Green, ed., Approaches to Ancient Judaism. III. Text as Context in Early Rabbinic

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as acknowledgement of G o d ' s keeping his promise to give his peopie the Land. It further encompasses the first harvest of wheat within the calendar of the cult. O f the three pertinent passages of Scripture, Dt. 26:1-11, Lev. 23:9-21, a n d N u m . 28:26, the first is important in this context: When you come into the land that the Lord your God gives you for an inheritance and have taken possession of it and live in it, you shall take some of the first of all the fruit of the ground that you harvest from your land the Lord your God gives you and you shall put it in a basket and you shall go to the place that the Lord your God shall choose to make his name dwell there. And you shall go to the priest who is in office at that time and say to him, "I declare this day to the Lord your God that I have come into the land that the Lord swore to our fathers to give us." Then the priest shall take the basket from your hand and set it down before the altar of the Lord your God. And you shall make response before the Lord your God: "A wandering Aramean was my father, and he went down into Egypt and sojourned there, few in number; and there he became a nation, great, mighty, and populous. And the Egyptians treated us harshly and afflicted us and laid upon us hard bondage. Then we cried to the Lord the God of our fathers, and the Lord heard our voice and saw our affliction, our toil, and our oppression; and the Lord brought us out of Egypt with a mighty hand and an outstretched arm, with great terror, with signs and wonders; and he brought us to this place and gave us this land, a land flowing with the milk and honey. And behold, now I bring the first of the fruit of the ground that thou, Ο Lord, have given me." And you shall set it down before the Lord your God and worship before the Lord your God; and you shall rejoice in all the good that the Lord your God has given to you and to your house, you and the Levite and the sojourner who is among you. Dt. 26:1-11 D e u t e r o n o m y wants Firstfruits f r o m all p r o d u c e to be presented to the priests of the central sanctuary, along with two declarations; no particular time is indicated, no sacrifices required. T h e Priestly C o d e requires offerings but knows no declaration. But it does specify that the Firstfruits are presented at Pentecost. T h e Priestly C o d e then Literature (Chico, 1981: Scholars Press for Brown Judaic Studies), pp. 89-104. T h e Tosefta-translation is by Margaret Wenig Rubenstein, for Chapter One; by Richard S. Sarason, for Chapter Two: 2:1-7; and by David Weiner, for Chapter Two: 2:8-16, all taken from Jacob Neusner & Richard S. Sarason, eds., The Tosefta. Translated from the Hebrew. I. The First Division (^eraim). (N.Y., 1985: Ktav). For the Yerushalmi, see The Talmud of the Land of Israel. A Preliminary Translation and Explanation. Volume 10. Orlah and Bikkuúm, translated by J a c o b Neusner.(Chicago, 1991: T h e University of Chicago Press).

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involves a sheaf of barley f r o m the first harvest, presented to the priest o n the d a y after the S a b b a t h of the feast of u n l e a v e n e d b r e a d ; the priest waves it with a p p r o p r i a t e rites. T h a t p e r m i t s grain of the n e w harvest to be e a t e n . Seven weeks l a t e r — P e n t e c o s t — i s the d a y of Firstfruits, two loaves a n d various o t h e r offerings waved by the priest as a wave-offering. T h e H a l a k h a h requires Firstfruits to be p r e s e n t ed a n n u a l l y out of the p r o d u c e native to the L a n d of Israel. T h e y a r e p r e s e n t e d on Pentecost, w h e n the r e q u i r e d d e c l a r a t i o n is m a d e ; carried in a basket that is waved by the priest before the altar. Animals are b r o u g h t as p e a c e - a n d whole-offerings. O n l y the h o u s e h o l d e r presents Firstfruits. A n y o n e m a y declare the classification of a beast or bird or cereal, e.g., a sin-offering, a guilt-offering, a freewill-offering, a peace-offering. B u t — a n d this is the key to the m a t t e r before u s — o n l y the h o u s e h o l d e r m a y classify the p r o d u c e as Firstfruits by a n explicit designation. T h a t act with its a c c o m p a n y i n g n a r r a t i v e is h o w the individual Israelite situates himself within Israel. It is a c c o m p l i s h e d in a n explicit d e c l a r a t i o n of m a t t e r s in t h e p r e s e n t a t i o n of Firstfruits, a n o f f e r i n g p r e s e n t e d in the T e m p l e to the priest by the h o u s e h o l d e r o u t of t h e c r o p s of his l a n d . T h e key t h e n is t h e a c c o m p a n y i n g confession of faith, w h i c h defines w h o the Israelite individual is by telling his story. T h a t is m a d e explicit w h e n sages systematically i n t e r p r e t the d e c l a r a t i o n that the h o u s e h o l d e r m a k e s to G o d w h e n p r e s e n t i n g Firstfruits to the priest in the T e m p l e . A n d , as we shall see, t h a t s t a t e m e n t defines for the Israelite a n d f o r all Israel t h e relationship with G o d at the intersection of possession of the L a n d a n d a genealogical position within original Israel. T h i s is the only rite of the H a l a k h a h t h a t in a n y w a y differentiates the h o m e - b o r n f r o m the convert. Genealogical-Israel's presentation of the Firstfruits a n d d e c l a r a t i o n that the holy offering stands for Israel's response to G o d ' s gift of the L a n d , Israel's act of rejoicing in G o d ' s gift: and he brought us to this place and gave us this land, a land flowing with the milk and honey. And behold, now I bring the first of the fruit of the ground that thou, Ο Lord, have given me. T h e h o u s e h o l d e r ' s is a r e m a r k a b l e statement, b r i n g i n g w h a t he calls his o w n but that he merely possesses on G o d ' s s u f f e r a n c e — a n d t h e n speaking of himself a n d his fathers. T h e rite t h e n defines the relationship of Israel in the p e r s o n of the Israelite a n d G o d in acutely individual terms, invoking the " I " a n d the " m y , " in giving back to G o d

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the first testimonies to G o d ' s o n - g o i n g b e n e v o l e n c e . H o w is c o r p o rate Israel e m b o d i e d ? T h e story of the individual turns out to record the tale of all Israelites, all Israel. T h e n the " I " is representative of the " w e , " the story that is r e c a p i t u l a t e d is the story of everybody, a n d c o r p o r a t e Israel a n d the individual Israelite (male, h o u s e h o l d er) are identified a n d j o i n e d . N o t only so, b u t the focus on the L a n d belonging to all Israel is individuated: it is this particular householder, o w n e r of a plot of land in the L a n d , which he c a n have i n h e r i t e d f r o m his family a n d will b e q u e a t h to his sons. T h e rite of the Firstfruits m a k e s the relationship b e t w e e n G o d a n d Israel p e r s o n a l a n d i m m e d i a t e , familial a n d genealogical—wholly t h r o u g h the nexus of the H o l y L a n d . In this context I c a n n o t overstress the c o r p o r a t e dimension: the story is every Israelite's story, for it is also the n a r r a t i v e of c o r p o rate Israel in the L a n d . If it is e v e r y b o d y ' s story, t h e n h o w is the individual e n g a g e d ? T h e H a l a k h a h answers t h a t question in rich detail. It insists that Firstfruits are presented, their purpose a n d standing explicated, only by the specific Israelite h o u s e h o l d e r b o r n to inherit the L a n d , out of crops raised o n his own fields a n d p r e s e n t e d to t h e p r i e s t h o o d only in t h e T e m p l e . N o w , w h e n the H a l a k h a h wishes to state that Israel in its fleshly e m b o d i m e n t of families through genealogical ties relates to G o d at the T e m p l e t h r o u g h the gifts of grace p r e s e n t e d by the L a n d , it c a n m a k e n o m o r e p a r t i c u l a r a n d c o n c r e t e s t a t e m e n t t h a n that. T h e H a l a k h a h , to which we n o w t u r n in some detail, answers the question, w h o is Israel a n d w h o is not? t h r o u g h its systematic definition. W h o Is truly Israel a n d w h o is not: [1] W h o does not present Firstfruits at all? T h o s e w h o d o not o w n the land that has p r o d u c e d the p r o d u c e d o not p r e s e n t Firstfruits or m a k e the d e c l a r a t i o n that celebrates possession of the L a n d . O n e does not p r e s e n t Firstfruits f r o m p r o d u c e that has g r o w n o n l a n d he does not o w n . M I S H N A H - T R A C T A T E BIKKURIM

1:1-2

M. 1:1 There are [those who] bring [the] Firstfruits [of the produce of their land] and recite [the confession, "I declare this day..." (Dt. 26:310)]. those who bring [Firstfruits] but do not recite, and there are [those] who do not bring [Firstfruits at all]. These are the [people] who do not bring [Firstfruits]: (1) he who plants [a tree] on his own [property] and bends [a branch of the tree and sinks it into the ground so that it grows on private [property] or on public [property, as an independent plant]; (2) [as well as] he who bends [a branch of a tree which is growing] on private [property] or on public [property, and

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sinks the branch into the ground so that it grows] on his own [property]; (3) he who plants [a tree] on his own [property] and bends [a branch of the tree and sinks it in the ground so that it still grows) on his own [property], but a private road or a public road [runs] in between [the tree and its offshoot], lo, this one does not bring [Firstfruits from the offshoot]—R. J u d a h says: "Such a one does bring [them]." M. 1:2 For what reason does he not bring [them]? Because it is written, "[You shall bring] the first of the Firstfruits of your land" (Dt. 26:2). [You may not bring Firstfruits] unless all of their growth [takes place] on your land. (1) Sharecroppers, (2) tenant farmers, (3) a holder of confiscated property, and (4) a robber do not bring Firstfruits, for the same reason: because it is written, "the first of the Firstfruits of your land." So m u c h for those who present and recite the declaration. T h a t brings us to the logically next question. It is, where does individuation enter in? T h e answer is contained within the rule governing w h o presents Firstfruits but does not recite the declaration. M I S H N A H - T R A C T A T E BIKKURIM 1 : 4 , 6 - 7

M. 1:4 These [people] bring [Firstfruits] but do not recite [the déclaration]: a proselyte brings but does not recite, because he is not able to say, "[I have come into the land] which the Lord swore to our fathers to give us," (Dt. 26:3). But if his mother was an Israelite, he brings and recites. And when he [the proselyte] prays in private, he says, "God of the fathers of Israel." And when he prays in the synagogue, he says, "God of your fathers." [But] if his mother was an Israelite, he says, "God of our fathers." M. 1:6 He who buys two trees [that are growing] on [the property] of his fellow brings [Firstfruits from those trees] but does not recite [over them]. R. Meir says, "He brings and recites." [If] the spring [which irrigated the field] became dry, [or] the tree was cut down, he brings [Firstfruits that were picked from that tree before it was cut down] but does not recite. R. Judah says, "He brings and recites." From Pentecost until the Festival [of Sukkot], he brings and recites. From the Festival until Hanukkah, he brings but does not recite. R. Judah b. Beterah says, "He brings and recites." M. 1:7 [If] he separated his Firstfruits and [afterwards] sold his field, he brings [those Firstfruits] but does not recite. And the other one [the one who bought the field]—from the same kind [of produce as was brought by the field's first owner], he does not bring [Firstfruits]: from another kind of produce, [however], he brings [Firstfruits] and recites. R. Judah says, "Even from the same kind, he brings and recites." H e r e individuation enters in. T h o s e whose status, history, a n d cur-

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rent situation contradict the statements in the recitation do not make the declaration. A principal m o d e of individuation involves genealogy. All Israelites participate in G o d ' s kingdom a n d are subject to the T o r a h , but because Israelites are subject to individuation, corporate Israel still is differentiated internally. W h a t makes all the difference here is how one has acquired the land: by inheritance f r o m G o d or otherwise. T h e proselyte who owns land in the L a n d of Israel must present Firstfruits. But he does not make the recitation, since his personal circumstance intervenes, since he cannot refer to G o d ' s oath to "our fathers." H e is interstitial, part of Israel, praying to "God of the fathers of Israel," but he is not equivalent to the h o m e - b o r n Israelite. O t h ers who control the L a n d but not within the tradition of inheritance, e.g., executors, agents, present Firstfruits but do not celebrate their possession of the Land. T h o s e w h o are not definitively male do not make the declaration. Those who owned the field when the crop came in a n d separated Firstfruits but then sold the field do not make the recitation. Not only so, but the Firstfruits that are presented must be the ones originally designated, or the h o u s e h o l d e r makes the presentation but not the declaration. Finally, [3] who presents Firstfruits a n d recites the declaration: T h o s e who come at the p r o p e r time, w h o separate Firstfruits f r o m the correct species, , and who own all the L a n d that has yielded the crops, are the ones who present the Firstfruits and make the récitation. T h e presentation a n d declaration m a y take place f r o m Pentecost to T a b e r n a c l e s M I S H N A H - T R A C T A T E BIKKURIM

1:10

M. 1:10 And these [people] bring [Firstfruits] and recite: [Those who bring Firstfruits] (1) from Pentecost until the Festival [of Sukkot], (2) from the seven kinds [of produce native to the Land of Israel], (3) from fruit of the hill country, (4) from dates of the valley, [and] (5) from olives [used] for oil [that grow] in Transjordan. R. Yosé the Galilean says, "They do not bring Firstfruits from [produce grown in] Transjordan, for [Transjordan] is not a land flowing with milk and honey [Dt. 26:15]." H e r e is the story of the Israelite individual: the Israelite who not only possesses a share in the Land but also derives from the Israel to w h o m the L a n d was initially h a n d e d over. T h a t brings us back to the public narrative that is also personal. T h e presentation of the Firstfruits defines the occasion for declar-

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ing w h o is, a n d w h o is not, that Israel of w h o m Scripture speaks, the one to w h o m reference is m a d e in the statement, A wandering Aramean was my father, and he went down into Egypt and sojourned there, few in number; and there he became a nation, great, mighty, and populous. And the Egyptians treated us harshly and afflicted us and laid upon us hard bondage...and the Lord brought us out of Egypt with a mighty hand and an outstretched arm, with great terror, ...and he brought us to this place and gave us this land, a land flowing with the milk and honey. And behold, now I bring the first of the fruit of the ground that thou, Ο Lord, have given me. Possession of the land forms the final act in the d r a m a of Israel's w a n d e r i n g , descent, exodus, a n d entry into the L a n d . Presenting Firstfruits and reciting the declaration characterize one who is wholly Israel, possessing both the L a n d by inheritance a n d the genealogy that m a r k one as such. Converts, on the one side, a n d non-householders (non-landowners) on the other, fall outside of the rite, the one presenting Firstfruits without a declaration, the other having no Firstfruits to present. T h o s e w h o cannot make that statement find themselves excluded f r o m the Israel, possessed of the L a n d , w h o celebrate their relationship with G o d in the rite at h a n d . T h e link to the L a n d via Israel's history, moreover, is physical a n d personal. N o w "Israel" is the descendants of those w h o were enslaved in Egypt and w a n d e r e d in the wilderness a n d c o n q u e r e d and divided the L a n d a n d received their share by inheritance. H e r e is where the personal history of the householder intersects with the sacred history of all Israel (Rubenstein, p. 47). T h a t is why the householder w h o makes the recitation a n d consecrates the agricultural offering speaks for himself a n d his own personal history, a n d if he does not fit the words of the declaration, he m a y not make the statement. It is the only offering in the T e m p l e that intertwines the personal a n d the public; the communal offerings encompass all Israel, both native-born and converts; everyone contributes to the T e m p l e f u n d that supports the public offerings. Individual offerings, e.g., guilt- or sin- or purification-offerings, derive f r o m private resources. H e r e an individual householder speaks of "we," referring explicitly to his personal ancestry a m o n g those w h o c a m e forth f r o m Egypt. T h e points of stress, then, identify the particularity of the L a n d a n d the singularity of genealogical-Israel's possession thereof. T h e convert w h o possesses a share in the L a n d presents the Firstfruits; G o d wants his share. H e is equal to all other Israelites in his obli-

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gâtions to G o d . But while the convert's children may m a r r y h o m e born Israelites and so through ethnic and territorial assimilation enter into normative Israel, the convert himself cannot fully participate in the rite. H e m a y present his Firstfruits to the priest, but he does so in silence. H e enjoys full equality as G o d ' s p a r t n e r in the ownership of the Land; the priest receives in G o d ' s behalf the Firstfruits that he therefore presents. So in practical terms the convert forms one with all Israel. But having been Israel f r o m the m o m e n t at which Israel set foot in the L a n d is not the same thing as having b e c o m e part of Israel later on. In the end, the e n c h a n t m e n t of the L a n d by the presence of Israel, the imposition of the sanctity of the one u p o n the sanctity of the other—these represent a dimension of being Israel that only time a n d future genealogical integration m a y bring a b o u t : m o r e time within Israel, m o r e time on the L a n d . So the reading of the language of the declaration that sages undertake requires t h e m to reflect u p o n w h a t it means to live on the L a n d , be n u r t u r e d by the L a n d , a n d be c h a n g e d in the passage of time, in the intersection of the two sanctified entities, L a n d a n d People. T h e stress on genealogical l a n d - h o l d i n g — f r o m the very beginn i n g — h a r d l y presents a surprise. W e recall that Israel a n d A d a m correspond, each having been given Paradise and having lost it. T h e n the identification of the householder with corporate Israel through the rite of Firstfruits, e n c o m p a s s i n g the declaration, presents no surprise. T h e h o u s e h o l d e r c o m p a r e s with A d a m , b u t stands for corporate Israel. T o the householder in behalf of Israel has been given "the land of C a r m e l " (Jer. 2:7), and w h e n the householder speaks of descent f r o m the w a n d e r i n g A r a m a e a n a n d entry into the land flowing with milk a n d honey, within the H a l a k h a h an entirely personal declaration, he is in the situation of A d a m . So far as the Israelite e m b o d i e s c o r p o r a t e Israel, it is in his person: ancestry a n d genealogy, j o i n e d in possession of the Land. T h e upshot is not to be missed. Individual Israelite householders f o r m corporate Israel in their situation in the L a n d of Israel. T h e social teaching of R a b binic J u d a i s m aims at realizing the formation of corporate Israel out of individual Israelites. T h e very heart of individuality—possession of property subject to the individual's will and intentionality—is m a d e into the m e d i u m for the actualization of c o m m u n i t y in the recapitulation of a c o m m o n story. But realizing corporate Israel involves m o r e t h a n story-telling, as we shall now see.

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IV. Nurturing Community: Ownership and Possession. Shebi'it N u r t u r i n g c o m m u n i t y a m o n g i n d i v i d u a l Israelites so as to f o r m c o r p o r a t e Israel involves a vast a p p a r a t u s of law m e a n t to effect in p r a c t i c a l policy t h a t g o v e r n i n g t h e o l o g y . N u r t u r i n g c o m m u n i t y imposes strict b o u n d a r i e s to the m e a n i n g of l a n d - o w n e r s h i p , b o t h in the L a n d a n d elsewhere. W i t h i n the H a l a k h a h private p r o p e r t y is not held absolutely, subject only to t h e plans of the l a n d h o l d e r . It is subject to the will of the c o - o w n e r , w h o is G o d . N o t only so, b u t only if for the S a b b a t h the h o u s e h o l d e r gives u p his absolute o w n ership of his p r o p e r t y c a n h e gain access to the p r o p e r t y of others, t h r o u g h the f o r m a t i o n of private p r o p e r t y of a vast, m u t u a l l y - o w n e d d o m a i n . T h e H a l a k h a h does so by e n c o u r a g i n g individual householders to relinquish full rights of d o m a i n over their respective private holdings in favor of all p a r t n e r s in a c o m m o n d o m a i n . T h i s is d o n e in o r d e r to gain rights of u s u f r u c t of the private d o m a i n of all those others. T o state m a t t e r s simply: if the h o u s e h o l d e r e x c h a n g e s his right of entire o w n e r s h i p of his p r o p e r t y for right of access a n d utilization of private p r o p e r t y of all p a r t i c i p a n t s , n o w d e e m e d to b e c o m m o n l y - o w n e d p r o p e r t y e n c o m p a s s i n g his o w n , he greatly augm e n t s his r a n g e of licit activity on the S a b b a t h . In providing for such a n e x c h a n g e of ownership for usufruct a n d possession, the H a l a k h a h fosters s h a r i n g a n d diminishes the rights of total, individual control of real estate. In these two ways, t h e H a l a k h a h limits a u t o n o m o u s rights of o w n e r s h i p a n d regularly abridges t h e m in favor of c o m m o n access to all agricultural p r o p e r t y in the L a n d of Israel, n o w d e e m e d o w n erless. It f u r t h e r m o r e fosters sharing of o w n e r s h i p of private d o m a i n a m o n g m a n y h o u s e h o l d e r s . T o state the u p s h o t m o r e generally: a c o r p o r a t e c o m m u n i t y , a m o r a l entity c o m p r i s e d by individuals b u t t r a n s c e n d i n g the individual parts, c o m e s into b e i n g w h e n the individuality of persons is a b r i d g e d , a n d w h a t they s h a r e in c o m m o n is amplified. T h e H a l a k h a h u n d e r t a k e s strenuous m e a s u r e s to a c c o m plish exactly that goal. It does so in its insistence o n limiting the rights of private o w n e r s h i p of the L a n d a n d of real p r o p e r t y in general. Let us address the first m a t t e r : S c r i p t u r e ' s cyclical c a n c e l l a t i o n — tout court!—of all claim to private o w n e r s h i p of l a n d a n d its p r o d u c e in favor of s h a r e d access a c c o r d e d to all Israel. It w o u l d be difficult to p o i n t to a m o r e d r a m a t i c s t a t e m e n t that individual o w n e r s h i p is c o n t i n g e n t , not absolute, a gift, n o t a given; a n d that c o r p o r a t e Is-

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rael in t h e L a n d of Israel also registers its claim even to p r i v a t e p r o p e r t y . T h e H a l a k h a h does not r e g a r d o w n e r s h i p of the L a n d as absolute. By extension, that policy seeks to link individuals t o g e t h e r into a c o m m u n i t y of c o m m o n d o m a i n , to u n d e r s c o r e the stipulative c h a r a c t e r of possession as against the absolute status of o w n e r s h i p . T h e r e a s o n is that G o d ultimately owns e v e r y t h i n g — " t h e e a r t h is the L o r d ' s , a n d the fullness t h e r e o f ' (Ps. 24:1)—so the individual's rights of o w n e r s h i p to begin with are c o n t i n g e n t on G o d ' s claim. In E d e n e v e r y t h i n g was free to all, within the limit set by G o d ' s will for matters. N o one o w n e d Paradise. W i t h i n that m o d e l , by that definition of the L a n d as c o u n t e r p a r t to E d e n , which we have a l r e a d y m e t , the Israelite h o u s e h o l d e r never is the absolute o w n e r of his possessions. H e holds t h e m , he m a y use t h e m as he likes (also within limits). But as I said, possession is different f r o m absolute ownership. T h e difference corresponds to the distinction between individuation a n d personal a u t o n o m y , so i m p o r tant to o u r analysis in C h a p t e r T w o . T h r o u g h imposing the distinction between possession a n d rights of usufruct, which the social teaching of R a b b i n i c J u d a i s m favors, a n d absolute o w n e r s h i p , which it wishes to a b r i d g e , the H a l a k h a h in practical terms reinforces the b o n d s of c o m m u n i t y . It is h o w Israel is i n c o r p o r a t e d . T r a c t a t e Shebi'it c o n c e r n s h o w in the Sabbatical Y e a r G o d exercises rights of o w n e r s h i p a l o n g with the Israelite h o u s e h o l d e r . It sets f o r t h the law that in relationship to the L a n d of Israel e m b o d ies the conviction of G o d ' s p a r t n e r s h i p in all things. T h e law systematically works t h r o u g h Scripture's rules, t r e a t i n g [1] the p r o h i bition of f a r m i n g the l a n d d u r i n g the seventh year; [2] the use of the p r o d u c e in the seventh y e a r solely for eating, a n d [3] the remission of debts. D u r i n g t h e S a b b a t i c a l y e a r , Israel relinquishes its o w n e r s h i p of the L a n d of Israel. At that time Israelites in f a r m i n g m a y d o n o t h i n g that in secular years effects the assertion of o w n e r ship over the land (Avery-Peck, Yerushalmi Shebi'it, p. 2). J u s t as one m a y not utilize l a n d he does not o w n , in the S a b b a t i c a l year, the f a r m e r gives u p o w n e r s h i p of the land that he does o w n . W h a t the law of the written T o r a h , as e l a b o r a t e d by the O r a l T o r a h , prevents is clear: the h o u s e h o l d e r or l a n d o w n e r or l e n d e r is r e m i n d e d that o w n e r s h i p is not absolute. People possess land or wealth. T h e y d o not o w n it outright. T h e i m p o r t a n c e of the law of the S e v e n t h Y e a r to o u r p r o b l e m

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is clear. T r a c t a t e Shebi'it elaborates the T o r a h ' s c o m m a n d m e n t , at Lev. 25:1-8: When you enter the land that I am giving you, the land shall observe a Sabbath of the Lord. Six years you may sow your field and six years you may prune your vineyard and bather in the yield. But in the seventh year the land shall have a Sabbath of complete rest, a Sabbath of the Lord; you shall not sow your field or prune your vineyard. You shall not reap the aftergrowth of your harvest or gather the grapes of your untrimmed vines; it shall be a year of complete rest for the land. But you may eat whatever the land during its Sabbath will produce—you, your male and female slaves, the hired-hand and bound laborers who live with you, and your cattle and the beasts in your land may eat all its yield. A second, correlative c o m m a n d m e n t , at Dt. 15:1-3, is treated as well: Every seventh year you shall practice remission of debts. This shall be the nature of the remission: every creditor shall remit the due that he claims from his neighbor; he shall not dun his neighbor or kinsman, for the remission proclaimed is of the Lord. You may dun the foreigner, but you must remit whatever is due you from your kinsmen.' W h a t the f o r m e r provision brings about is relinquishing all claim of private ownership of the land of the L a n d of Israel once in every seven years, a n d that is the i m p o r t a n t side to the matter. N o t only m a y the l a n d o w n e r not reserve for his own use the p r o d u c e of his fields, but he also m a y not h o a r d the crop. W h e n a crop has ceased to appear in the fields, moreover, the householder must remove from his household a n d leave for public utilization that same crop that he m a y have in storage. T h i s rule is expressed in the following language, concerning the law of removal: MISHNAH-TRACTATE SHEBI'IT M . TOSEFTA-TRACTATE SHEBI'IT 7 : 1 4 ,

2-9 8:1

M. 9:2-3 Three regions [are delineated] with respect to [the laws of] removal: Judah, Transjordan, and Galilee. And each of these [is divided] into three regions. [The Galilee is divided into]: the upper Galilee, the lower Galilee and the valley. From Kefar Hananiah and ' Throughout I follow the doctoral dissertation, including the Mishnah- and Tosefta-translation, prepared in my seminar, of Louis E. Newman, The Sanctity of the Seventh Year: A Study of Mishnah Tractate Shebi'it (Chico, 1983: Scholars Press for Brown Judaic Studies); and Alan J . Avery-Peck, The Talmud of the Land of Israel. A Preliminary Translation and Explanation. Volume 5. Shebi'it. J a c o b Neusner, General Editor (Chicago, 1991: T h e University of Chicago Press).

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northward, all [places] in which sycamores do not grow] are regarded as] upper Galilee. And from Kefar Hananiah and southward, all [places] in which sycamores do grow [are regarded as] lower Galilee. And why have they stated [that the three main areas are each divided into] three regions? That they may eat [produce of the Sabbatical year] in each region only until the last [produce] of that region is gone [without regard to whether or not such produce remains in the other regions], [At that point people may not hoard the produce but must remove it from their homes, affording all Israelites equal access to the limited food supply (Avery-Peck, p. 305).] M. 9:4 They may eat [produce of the Sabbatical year which they have gathered into their homes only] by virtue of the fact that ownerless produce [is available in the fields], but [they may] not [eat such produce] by virtue of the fact that [it is found] in protected [places, where it is inaccessible to the animals of the field]. T. 7:14 They may [continue to] eat figs [of the seventh year which they have brought into their homes] until the undeveloped figs disappear [from the fields of] Beth Oni [cf. M. Sheb. 9:4], M. 9:8 One who has [in his possession] produce of the Sabbatical year when the time for removal [of that produce] arrives, allots food [enough for] three meals for each [member of his household and then removes any remaining produce; that is now ownerless and not to be hoarded]. Enforcing the law of removal equalized access to the now-ownerless crops for all Israelites, each person receiving a share "in accordance with the size of his household:" T. 8:1 A. In the past, agents of the court would sit near the gates of the cities. [From] each person [who harvested produce of the seventh year and] who carried it [to them, these agents] would take it from him and return to that person [enough] food for three meals [cf. M. Sheb. 9:8A-B], and the remainder they would deposit in the city's storehouse. When the time for [harvesting] figs arrived, the agents of the court would hire workers [to harvest them], harvest [the figs], press them into cakes of pressed figs, place them in jars and deposit [these jars] in the city's storehouse. When the time for [harvesting] grapes arrived, the agents of the court would hire workers [to harvest them], harvest the grapes, press them in presses, place the wine in jars and deposit [these jars] in the city's storehouse. When the time for [harvesting] olives arrived, the agents of the court would hire workers [to harvest them], harvest the olives, pack them in a vat, place them in jars and deposit [these jars] in the city's storehouse. And they would distribute [portions] of this [stored-up produce] on the eve of the Sabbath [and] each person [would receive an amount of produce] in accordance with [the size of his household. T h e law of removal, which prevents hoarding, is part of the larger

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account of w h o m a y eat the p r o d u c e of the ownerless fields that the L a n d comprises in the Sabbatical year, and how people are to obtain food d u r i n g the Sabbatical year. T h e following passage of Sifra expands on the same theme. It stresses that the c o m m o n ownership of the Land is not a means of supporting the poor alone. It is a shared c i r c u m s t a n c e that all Israel enters: the fields are left u n w o r k e d , w h a t e v e r crops they yield on their own b e l o n g i n g to n o one in particular but to everyone in general. SIFRA

CCXLVI:I.12

A. B. C.

"...for yourself and for your male and female slaves": What is the point of Scripture here? Since it is said, "[For six years you shall sow your land and gather in its yield, but the seventh year you shall let it rest and lie fallow,] that the poor of your people may eat; and what they leave the wild beasts may eat. You shall do likewise with your vineyard and with your olive orchard]" (Ex. 23:10-11), D. I might have supposed that produce of the seventh year may be eaten only by the poor alone. E. How do I know that even the rich may eat it? F. Scripture says, "for yourself and for your male and female slaves." G. Lo, wealthy landowners are covered, bondmen and bondwomen are covered. H. Then why is it written, "that the poor of your people may eat"? I. "The poor, but not the rich, may consume the available crop after the removal of stored crops from the household," the words of R. Judah. J. R. Yosé says, "All the same are the poor and the rich: all of them may consume the crop after the time for the removal of stored crops from the household has come." T h e matter of removal of the stored (hoarded) crops f r o m the household to the fields or streets, where they are accessible to everyone, is the key. This is a way of underscoring the c o m m o n circumstance c o n f r o n t i n g all Israel in the Sabbatical Year. T h e remission of debts at the advent of the Seventh Year makes a still m o r e extreme statement of the stipulative character of ownership, here of wealth as m u c h as of property. T h e H a l a k h a h states matters in this way.

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MISHNAH-TRACTATE SHEBI'IT

10:1

AND T O S E F T A - T R A C T A T E S H E B I ' I T

8:4

M. 10:1 The Sabbatical year cancels a loan [which is secured] by a bond and [a loan which is] not [secured] by a bond. A debt [owed to a] shopkeeper is not cancelled [by the Sabbatical year]. But if [the debt] was made into a loan, lo, this [loan] is cancelled [by the Sabbatical year]. The [unpaid] wage of a hired laborer is not cancelled [by the Sabbatical year]. But if [the amount of the wage] was made into a loan, lo, this [loan] is cancelled [by the Sabbatical year]. T. 8:4 A woman's marriage contract [which stipulates the amount of money which her husband owes her if he either divorces her or dies] — [if] she accepted partial payment [of this sum of money from her husband before the seventh year] and converted to a loan [to him the remaining amount], lo, the seventh year cancels [this loan], [But if) she accepted partial payment and did not loan [the remaining amount to her husband, or if] she loaned [to her husband the full amount specified in her marriage document] and did not accept partial payment [of this sum], lo, the seventh year does not cancel [this loan]. T h e remission of debts is tied to the L a n d , but it is practiced outside of the L a n d as well. I cannot imagine a m o r e eloquent statement of the c o m m u n i t a r i a n ideal that is contained within the H a l a khah of the Seventh Year. H e r e is how the m a t t e r is worked out in Sifré to D e u t e r o n o m y : S1FRÉ Τ Ο D E U T E R O N O M Y C X I : I I

A. B.

1

"[Every seventh year] you shall practice remission of debts": so long as you have a release of land, you have a remission of debts.

But the cycle is tied to the Land, the counting beginning, as we shall note presently, f r o m the point at which Israel has taken u p possession of the Land: SIFRÉ ΤΟ DEUTERONOMY C X I : I I

A. B. C. D.

2.

"...Every seventh year": Might one claim that there is a distinct cycle of seven years applicable to each individual person? You may reason to the contrary in the following manner: One is liable to observe seven years in the cycle of release, and one is liable to observe seven years in the matter of loans. Just as the seven years observed in the release of land involves seven years for the entire world, so the seven years in the matter of loans involves seven years for the entire world [and is not measured by the length of an individual loan].

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Ε. F.

But you might take this route: A span of seven years covers the obligation of the Hebrew slave, and a span of seven years covers the obligation of a loan. G. Just as in the case of the Hebrew slave, there is a distinct cycle of seven years applicable to each individual person, so in the case of the loan, there is a distinct cycle of seven years applicable to each individual person. H. Let us then establish the appropriate analogy, comparing a matter that is not dependent on the jubilee year to another matter that is not dependent on the jubilee year, and let the matter of the Hebrew slave not apply, since it does depend on the jubilee year. I. Or take this route: J. We compare a matter which applies both in the land and abroad to another matter that applies in the land and abroad, but let the matter of the release of lands pertain, which applies only in the land. K. [To resolve this impasse,] Scripture states, "seven years," and repeats the same clause. L. This establishes grounds for an analogy. Just as "seven years" states with reference to the release of real estate involves seven years for everyone, so "seven years" stated with reference to the release of loans involves seven years for everyone. So m u c h for the principal provisions of the H a l a k h a h of Shebi'it, as these pertain to the issue of how individuals are f o r m e d into a corporate c o m m u n i t y . But the question remains, what story is e m b o d i e d in the Halakhah before us, corresponding to the story that is told of genealogical, enlandised Israel, in Bikkurim? T h e generative p a r a d i g m has already m a d e its appearance: A d a m and Eve in Eden, compared with Israel in the L a n d of Israel. M a t t e r s m a y be stated simply, since Scripture itself declares that analogy to govern. T h e Land is to have its Sabbaths just as Israel does, a n d if the L a n d is denied its Sabbaths, Israel will lose it: Then the land shall enjoy its Sabbaths as long as it lies desolate, while you are in your enemies' land; then the land shall rest and enjoy its Sabbaths. As long as it lies desolate, it shall have rest, the rest that it did not have in your Sabbaths when you dwelt on it. Lev. 26:34-35 So the comparison of Israel's lost of the L a n d a n d A d a m ' s loss of Eden is not merely to be imputed, in the m a n n e r of the exegete cited

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earlier. It is made explicit. T h e Sabbatical Year recovers in the Land's repose that perfect time of Eden when the world was at rest, all things in place. Before the rebellion, m a n did not have to labor on the land; he picked a n d ate his meals freely. A n d , in the n a t u r e of things, everything belonged to everybody; private ownership in response to individual labor did not exist, because m a n did not have to work anyhow. Reverting to that perfect time, the T o r a h maintains that the land will provide adequate food for everyone, including the flocks and herds, even if people do not work the land. And that brings us back to o u r point of interest: the realization of Israel's corporate character, n u r t u r i n g the c o m m u n i t a r i a n sense a m o n g individual Israelites. T h e Sabbatical Year requires that all claim of ownership lapses; the food is left in the fields, to be picked by anyone w h o wishes, but it m a y not be h o a r d e d by the landowner in particular. Avery-Peck (Avery-Peck, p. 3) states this matter as follows: Scripture thus understands the Sabbatical year to represent a return to a perfected order of reality, in which all share equally in the bounty of a holy land that yields its food without human labor. The Sabbatical year provides a model through which, once every seven years, Israelites living in the here-and-now may enjoy the perfected order in which God always intended the world to exist and toward which, in the Israelite world view, history indeed is moving...The release of debts accomplishes for Israelites' economic relationships just what the agricultural Sabbatical accomplishes for the relationship between the people and the land. Eradicating debt allows the Israelite economy to return to the state of equilibrium that existed at the time of ereation, when all shared equally in the bounty of the Land. T h e Priestly C o d e expresses that same concept when it arranges for the return, at the Jubilee Year, of inherited property to the original family-ownership: "You shall count off seven weeks of years, so that the period of seven weeks of years gives you a total of forty-nine years...You shall proclaim release t h r o u g h o u t the land for all its inhabitants. It shall be a jubilee for you; each of you shall return to his holding a n d each of you shall return to his family" (Lev. 25:810). T h e Jubilee year is observed as is the Sabbatical year, m e a n i n g that for two successive years the land is not to be worked. T h e H a l a k h a h we shall examine in due course will establish that when land is sold, it is for the span of time r e m a i n i n g to the next jubilee year. T h a t then marks the reordering of land-holding to its original

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pattern, when Israel inherited the land to begin with and commenced to enjoy its produce. J u s t as the S a b b a t h c o m m e m o r a t e s the completion of creation, the perfection of world-order, so does the Sabbatical year. So too, the Jubilee year brings about the restoration of real property to the original division. In both instances, Israelites so act as to indicate they are not absolute owners of the Land, which belongs to G o d a n d which is divided in the m a n n e r that G o d a r r a n g e d in perpetuity. Avery-Peck states the m a t t e r in the following way (Avery-Peck, p. 4):

On the Sabbath of creation, during the Sabbatical year, and in the Jubilee year, diverse aspects of Israelite life are to return to the way that they were at the time of creation. Israelites thus acknowledge that, in the beginning, God created a perfect world, and they assure that the world of the here-and-now does not overly shift from its perfect character. By providing opportunities for Israelites to model their contemporary existence upon a perfected order of things, these commemorations further prepare the people for messianic times, when, under God's rule, the world will permanently revert to the ideal character of the time of creation. H e r e we find the Halakhic c o u n t e r p a r t to the restorationist theology that the O r a l T o r a h sets forth in the Aggadah. Israel matches A d a m , the L a n d of Israel, E d e n , and, we now see, the Sabbatical year c o m m e m o r a t e s the perfection of creation a n d replicates it. But the comparison of the L a n d to E d e n is m a d e explicit as well. T h a t is in the law that the Sabbatical year takes effect at the mom e n t of Israel's entry into the Land. T h e n Israel reenacts the dram a of creation, the seventh day m a r k i n g the perfection of creation a n d its sanctification, so, here too, the S a b b a t h is observed for the L a n d as m u c h as for m a n . O b s e r v i n g the c o m m a n d m e n t s of the Sabbatical year marks Israel's effort at keeping the L a n d like Eden, six days of creation, one day of rest, a n d so too here: S1FRA

A. B. C. D.

CCXLV:I.2

"When you come [into the land which I give you, the land shall keep a Sabbath to the Lord]": Might one suppose that the sabbatical year was to take effect once they had reached Transjordan? Scripture says, "into the land." It is that particular land.

N o w comes the key point: the Sabbatical year takes effect only when

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Israel enters the Land, which is to say, Israel's entry into the L a n d marks the counterpart to the beginning of the creation of Eden. But a f u r t h e r point will register in a m o m e n t . It is when E d e n / t h e L a n d enters into stasis, the families receiving each its share in the L a n d , that the process of the formation of the new Eden comes to its climax; then each Israelite bears responsibility for his share of the Land. T h a t is w h e n the L a n d has reached that state of order and p e r m a nence that corresponds to E d e n at sunset on the sixth day: E.

Might one suppose that the sabbatical year was to take effect once they had reached Ammon and Moab? F. Scripture says, "which I give you," G. and not to Ammon and Moab. H. And on what basis do you maintain that when they had conquered the land but not divided it, divided it among familiars but not among fathers' houses so that each individual does not yet recognize his share I. might one suppose that they should be responsible to observe the sabbatical year? J. Scripture says, "[Six years you shall sow] your field," K. meaning, each one should recognize his own field. L. "...your vineyard": M. meaning, each one should recognize his own vineyard. N. You turn out to rule: O. Once the Israelites had crossed the Jordan, they incurred liability to separate dough-offering and to observe the prohibition against eating the fruit of fruit trees for the first three years after planting and the prohibition against eating produce of the new growing season prior to the waving of the sheaf of new grain [that is, on the fifteenth of Nisan]. P. When the sixteenth of Nisan came, they incurred liability to wave the sheaf of new grain. Q.. With the passage of fifty days from then they incurred the liability to the offering of the Two Loaves. R. At the fourteenth year they became liable for the separation of tithes. T h e Sabbatical takes over only w h e n the Israelite f a r m e r s have asserted their ownership of the land a n d its crops. T h e n the process of counting the years begins. S.

They began to count the years of the sabbatical cycle, and in the twenty-first year after entry into the land, they observed the sabbatical year.

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T.

In the sixty-fourth year they observed the first Jubilee [T. Men. 6:20],

T h e key p o i n t is t h a t the S a b b a t i c a l cycle c o m m e n c e s w h e n t h e Israelite householder has asserted his will to own a n d utilize the L a n d . At that p o i n t , the individual takes his place within all Israel a n d his exercise of will takes place as p a r t of the collective intentionality, to which G o d responds. C o r p o r a t e Israel t h e n e n t e r e d into the situation of A d a m on the d a y of his creation, w h e n , j o i n e d by Eve, t h e first m a n a n d the first w o m a n e n t e r e d into P a r a d i s e — a n d , t h r o u g h a n exercise of will, lost everything. So m u c h for the systematic e x p l o r a t i o n of the e n l a n d i s e m e n t of E d e n in the L a n d of Israel. T h e m o d e l of m a n a n d w o m a n , individuals, in E d e n has n o w served in two contexts, first, to show h o w Israel's relationship to the L a n d r u n s parallel to A d a m ' s a n d Eve's relationship to E d e n ; second, to s h o w h o w c o r p o r a t e Israel c o m e s to realization in relationship to the L a n d . M o r e so, that same p a r a d i g m e m b o d i e s R a b b i n i c J u d a i s m ' s f o r m u l a t i o n of Israel's relationship with G o d t h r o u g h Israel's use of t h e L a n d of Israel a n d its p r o d u c e , in a w a y a n a l o g o u s to A d a m ' s use of E d e n — a n d a b u s e thereof. T h e message of Shebi'it c o n c e r n i n g remission of debts a n d relinquishing all claims of o w n e r s h i p of private p r o p e r t y in the L a n d represents c o r p o r a t e Israel's response as a n entire c o m m u n i t y . In this context, individual Israelites have n o o p t i o n of individuation, a n d , it goes w i t h o u t saying, utter p e r s o n a l a u t o n o m y is b e y o n d c o m p r e hension within the R a b b i n i c s t r u c t u r e a n d system. But the system n u r t u r e s p a r t i c i p a t i o n in c o r p o r a t e Israel b y its r e q u i r e m e n t s , e.g., of p r e s e n t i n g the half-sheqel to p a r t i c i p a t e in the public a t o n e m e n t offerings a n d of presenting the Firstfruits with or without the a c c o m p a n y i n g n a r r a t i v e . It also fosters the individual o p t i o n to relinquish sole o w n e r s h i p of p r o p e r t y in favor of a c o m m u n i t a r i a n c o n c e p t i o n of private domain, a n d to this m o d e of nurture of the corporate model for Israel we n o w t u r n .

V . Reinforcing the Bonds of Community. Relinquishing Ownership in Favor of Possession. Erubin-Shabbat T h i s brings us to the R a b b i n i c r e a d i n g of the s t a t e m e n t of Script u r e c o n c e r n i n g r e m a i n i n g in o n e ' s place o n the S a b b a t h :

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See! The Lord has given you the Sabbath, therefore on the sixth day he gives you bread for two days; remain every man of you in his place; let no man go out of his place on the seventh day. So the people rested on the seventh day. Ex. 16:29-30 T o remain in one's place—within p r o p e r t y one owns or controls, a d o m a i n subject to one's own will—means to eat at h o m e , not to transport objects from that private domain to the public domain ("out of his place"). T h e n how one defines "his place" forms the touchstone of all else. And it is a key point at which R a b b i n i c J u d a i s m trades ownership for possession, so reinforcing the c o m m u n i t y of Israel a n d diminishing the isolated individuality of the Israelite. Let m e spell this out in some detail. O w n e r s h i p of private p r o p e r t y represents the e m b o d i m e n t of the definition of the Israelite: the individual m a y do as he wishes with his land in the L a n d of Israel. U p o n that conception of matters the H a l a k h a h places obligatory limits, as we have seen. T h e s e form of private real property a c o m p o n e n t of a single d o m a i n , the L a n d of Israel; they f u r t h e r define, in a m i n o r m a t t e r to be sure, the way in which individual males signify their participation in corporate Israel through its collective a t o n e m e n t for collective sin. A moral entity that transcends the dimensions of personal autonomy, Israel thus finds its definition in obligations of a n - o t h e r - t h a n votive n a t u r e . But R a b b i n i c J u d a i s m also encourages relinquishing private ownership of real property in favor of participating in the joint possession, with other neighbors, of a m u c h larger, shared area. This it does by providing for the fusion of private domains, individually owned, into a large d o m a i n , also classified as private, but owned by all w h o willingly join their private d o m a i n to the larger, now-jointly-owned, property. W i t h real estate classified as private d o m a i n , the householder then gives up his sole ownership of what is uniquely his in exchange for a share in the property of all others within the pertinent b o u n d a r i e s — t h e whole r e m a i n i n g within its established classification of private d o m a i n . And that fact bears the implication of a redefinition of what is m e a n t by private a n d personal. T h e individual releases his control of property entirely subject to his will, acceding to the sharing of control by other individuals, and gains in consequence access to property over which, during ordinary time, he bears no power of will whatsoever. T h a t is w h a t I m e a n by reinforcing the bonds of c o m m u n i t y through relinquish-

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ing ownership in favor of possession: usufruct of a c o m m o n domain, shared a m o n g m a n y individuals, w h o now own less but use m o r e . At a particular time, the space—private d o m a i n — e n c o m p a s s e d by the household is d e m a r c a t e d , closed off entirely so that the circumstance of the conduct of life therein is deeply affected. At that point the Israelite household comes to spatial realization, keeping within its b o u n d a r y all who belong, walling off the rest. In concrete terms, on the Sabbath, an invisible wall descends to differentiate the private d o m a i n of the individual household f r o m public d o m a i n — the streets a n d marketplaces a n d the r e s t — a n d to close off the one from the other. And, at that time, in that space, the ordinary foci of w o r k a d a y activities—cooking a n d eating, w o r k i n g a n d resting— b e c o m e radically re-configured: no cooking, no working, only eating a n d resting in perfect repose. O n the S a b b a t h , the Israelite householder finds himself restricted to his own property. It is his private d o m a i n , but, unable to carry beyond its limits, it is also his a n d his household's personal prison. But there is an option, vastly e x p a n d i n g the range of the private property to which the householder gains access. By sharing ownership of his private d o m a i n with others in his district, he also acquires a share in the private d o m a i n of others, and the whole forms a single, a u g m e n t e d private d o m a i n , subject to the mingled ownership of m a n y householders. T h a t consequent expansion of the range of the d o m a i n available for permitted utilization is effected by mingling ownership, meaning, giving u p sole, total control of one's own, in favor of gaining c o m m u n i t a r i a n rights. As we shall see, the Halakhah provides for a meal of c o m m i n g l i n g — a fictive meal, theoretically available for all residents of the n o w - a u g m e n t e d private domain, or a fictive b o u n d a r y that demarcates that same d o m a i n . As with Shebi'it, so here too, Eden provides the generative meta p h o r a n d model for all else. T h e advent of the S a b b a t h transforms creation, specifically reorganizing space a n d time a n d reordering the range of permissible activity. First comes the transformation of space that takes effect at sundown at the end of the sixth day and that ends at sundown of the S a b b a t h day. At that time, for holy Israel, the entire world is divided into public d o m a i n a n d private d o m a i n , a n d what is located in the one m a y not be transported into the other. What is located in public domain may be transported only four cubits, that is, within the space occupied by a person's body. W h a t is in private d o m a i n m a y be transported within the entire d e m a r c a t e d

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space of that d o m a i n . All public d o m a i n is d e e m e d a single spatial entity, so too all private d o m a i n , so o n e m a y t r a n s p o r t objects f r o m one private d o m a i n to a n o t h e r . T h e net effect of the t r a n s f o r m a t i o n of space is to m o v e nearly all p e r m i t t e d activity to private d o m a i n a n d to close off public d o m a i n for all b u t the most severely restricted activities. T h a t is, p e o p l e m a y not t r a n s p o r t objects f r o m o n e d o m a i n to the o t h e r , but they m a y t r a n s p o r t objects within private d o m a i n , so the closure of public d o m a i n f r o m most activity, a n d nearly all m a t e r i a l or physical activity, c o m e s in c o n s e q u e n c e of the division of space effected by sunset at the e n d of the sixth d a y of the week. T o u n d e r s t a n d this m a t t e r in its H a l a k h i c realization, we address the H a l a k h a h of E r u b i n , t h e n t u r n b a c k to consider h o w t h e law of S h a b b a t fills out gaps in the larger picture. T o c a p t u r e the governing p r e m i s e of the H a l a k h a h of E r u b i n , o n e might p a r a p h r a s e the familiar Latin a p o p h t h e g m , ubi bene, ibi patria ("where things are good, t h e r e is m y h o m e l a n d " ) in this wise: ubi pane, ibi domus, (in this context yielding, " w h e r e the b r e a d is, there is m y private domain"). T h a t is because, for various purposes of carrying or travel on the S a b b a t h , o n e m a y establish r e s i d e n c e — c o u n t e r p a r t to, but in place of, the h o u s e h o l d w h e r e he n o r m a l l y r e s i d e s — b y identifying a place for e a t i n g o t h e r t h a n the regular one. A n d that c o n c e p t i o n that w h e r e o n e eats, t h e r e is place of residence, b e a r s p r o f o u n d practical consequences for S a b b a t h observance in particular. For one thing it gives a n e w definition for " h o u s e h o l d , " one that removes the h o u s e h o l d f r o m the p r o f o u n d l y material f r a m e w o r k in which it functions as the smallest whole building block of the social o r d e r . T h e W r i t t e n T o r a h defines the S a b b a t h in p a r t by s e n d i n g Israel to its tents on that occasion. R e p o s e involves e n t r y into a stationary condition. T h e H a l a k h a h f o r m u l a t e s m a t t e r s at two levels; on the surface it a t t e n d s to m i n u t i a of c a r r y i n g f r o m one d o m a i n to the o t h e r (Shabbat) a n d to t h e d e t a i l e d , richly i n s t a n t i a t e d d e f i n i t i o n of p r i v a t e d o m a i n (Erubin). But u n d e r n e a t h , at the h e a r t of m a t t e r s , p r o f o u n d reflection on the m e a n i n g of w h a t is private a n d w h a t is shared takes place. T h e tractate in detail t h e r e f o r e addresses the p r o b l e m , h o w can Israelites on the S a b b a t h m o v e a b o u t f r o m one private d o m a i n to a n o t h e r , so a r r a n g i n g m a t t e r s that s h a r e d a n d c o m m o n o w n e r ship of private d o m a i n secures for all parties the right to c a r r y in the space held in c o m m o n ? O n e a n s w e r is, since w h e r e o n e eats, t h e r e one resides, p r e p a r e a symbolic, or fictive, meal, the right to

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w h i c h is s h a r e d by all. All h o u s e h o l d e r s t h e r e b y c o m m i n g l e their p r o p e r t y rights, so that will t h e n f o r m of various private d o m a i n s a single c o m m o n estate. A n o t h e r answer is, establish a b o u n d a r y a r o u n d the entire set of private d o m a i n s , o n e t h a t like a wall f o r m s of t h e m all a single p r o p e r t y . T h e m e d i u m b y w h i c h the one or the o t h e r p r o c e d u r e is carried out is called a n 'erub, a m e d i u m of commingling, thus referring to either the symbolic, shared meal or the equally fictive d e m a r c a t i o n line, as the case requires: a m e a l of c o m m i n g l i n g , or a b o u n d a r y - m a r k e r for c o m m i n g l i n g o w n e r s h i p of private p r o p e r t y . T h e given of the H a l a k h a h of ' E r u b i n is that p e o p l e are to stay in their place o n the S a b b a t h day. T h a t m e a n s e a c h p e r s o n has a place, d e f i n e d as f o u r cubits (enough for a burial plot), a n d , f u r t h e r , that he m a y m o v e f r o m that place for the distance of two t h o u s a n d cubits in a n y direction. H e r e is h o w the T a l m u d finds that law in the W r i t t e n T o r a h (italics signify A r a m a i c , plain type, H e b r e w ) : BAVLI TO M . ERUBIN 4 : 7 - 9

A.

B. C. D. E. F. G.

III.1/50B

If he does not recognize [any landmark], or he is not an expert in the law, and [if he] said, "My place of Sabbath residence is in the place where I am now located," he has acquired two thousand cubits in all directions from the place where he is located: As to these two thousand cubits, where do they occur in Scripture? It is as has been taught on Tannaite authority: "Abide you every man in his place 5 ' (Ex. 16:29)—this refers to four cubits. "Let no man go out of his place" (Ex. 16:29)—this refers to two thousand cubits. And how do we know this? Said R. Hisda, "We derive the meaning of 'place' from the meaning of 'place' at Ex. 21:13, '1 will appoint you a place where he may flee,' and we derive the sense of 'flight' from the meaning of 'flight' at Num. 35:26, 'Beyond the border of his city of refuge, where he flees,' and we derive the meaning o f ' b o r d e r ' from the sense o f ' b o r d e r ' at Num. 35:27, 'Outside the border,' and we derive the meaning o f ' b o r d e r ' from 'without' and the meaning of 'without from the sense of 'without,' since it says, 'And you shall measure without the city for the east side two thousand cubits' (Num. 25:5). [That verse explicitly refers to two thousand cubits and to 'without,' and we move from that 'without' to 'without' at Num. 35:27, and that 'without' is in a verse that refers to 'border,' which yields that

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analogy; and 'border' is compared with 'border' at Num. 35:260, and that is comparable to 'flight' in the same verse; and then 'flight' is comparable to the same usage at Ex. 21:13, which contains the reference to 'place.' 'Place' is compared with 'place' in the matter of the Sabbath, so the limit of two thousand cubits is transferred to this item (Slotki, Erubin [London, 1948: Soncino] ad l0c.).J" Accordingly, the H a l a k h a h set f o r t h principally by tractate E r u b i n focuses on the verses, Ex. 16:29-30, t h a t link the act of e a t i n g with the locus of residence. T h e j u x t a p o s i t i o n of a double-supply of b r e a d for Friday a n d S a t u r d a y a n d r e m a i n i n g in place leaves n o d o u b t that [1] o n e stays h o m e , o n the one side, a n d that [2] h o m e is w h e r e one eats, o n the o t h e r . Fusing the d o m a i n s within the walls of the courtyards a n d alleyways t h e n realizes the intent of the W r i t t e n T o r a h w h e n it says, " R e m a i n every m a n of you in his p l a c e . " C o n s e q u e n t ly, activities in p u b l i c d o m a i n a r e severely c i r c u m s c r i b e d b y t h e p r o h i b i t i o n against c a r r y i n g t h e r e i n , as well as by the one that p r o hibits unlimited travel. But e n o r m o u s incentives e n c o u r a g e the fusion of private d o m a i n s into a large, s h a r e d , still-private d o m a i n . In play t h r o u g h o u t the exposition of the H a l a k h a h of E r u b i n are these propositions, which will presently c o m e to full exposition in the H a l a k h a h of S h a b b a t : [1] o n e m a y not t r a n s p o r t objects f r o m private to public d o m a i n , but [2] there a r e types of d o m a i n that are n e i t h e r the o n e n o r the o t h e r , specifically, the c o u r t y a r d linking a n u m b e r of private properties, a n d the alleyway o n t o which a n u m b e r of c o u r t y a r d s d e b a u c h . T o these givens the H a l a k h a h of E r u b i n takes for granted a n u m b e r of propositions, u p o n which all else is f o u n d e d . T h e s e are as follows: [1] R e m a i n i n g in o n e ' s place does not m e a n o n e m a y not leave his house; one m a y m o v e a b o u t his o w n p r o p e r t y ; he m a y m o v e to the limit of 2,000 cubits f r o m one's o w n residence. [2] T h r o u g h a fictive m e a l or a n 'erub—a m e a l of commingling— one m a y c o m m i n g l e o w n e r s h i p of a c o u r t y a r d s h a r e d with others. Similarly, t h r o u g h a fictive m e a l , or a shittuf, a m e a l of p a r t n e r s h i p , a n alleyway into w h i c h a n u m b e r of c o u r t y a r d s d e b a u c h m a y be f o r m e d into a c o m m o n c o u r t y a r d ; this is signaled by m a r k i n g the alleyway as a single d o m a i n by establishing a gateway, a n d t h e n the s h a r e d m e a l establishes that all of the private d o m a i n s are c o m m i n gled as to o w n e r s h i p .

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[3] O n e m u s t r e m a i n in his o w n village, that is, the settled a r e a a n d its n a t u r a l environs. [4] O n e m a y establish residence at some place o t h e r t h a n his o w n household, by m a k i n g provision for eating a m e a l at that other place. T h e m e a l must be located in its place by s u n d o w n o n the S a b b a t h , but a v e r b a l d e c l a r a t i o n accomplishes the s a m e p u r p o s e . T h a t fictive residence permits h i m to m e a s u r e his allotted area for travel f r o m that o t h e r place. W e n o w survey the H a l a k h a h of E r u b i n , o n c e m o r e n o t i n g the p a r a m o u n t p o s i t i o n of t h e M i s h n a h in l a y i n g o u t t h e law. T h e T o s e f t a , we shall see, clarifies details a n d supplies s e c o n d a r y a n d tertiary cases a n d rules. T h e two T a l m u d s m a k e r e m a r k a b l y m o d est c o n t r i b u t i o n s to the exposition of the H a l a k h a h . T h r o u g h the ' e r u b - b o u n d a r y , owners f o r m their p r o p e r t i e s into a single d o m a i n ; t h r o u g h the ' e r u b - m e a l , the provision of a fictive m e a l does the same. H e r e is the way in which the f o r m e r is set f o r t h by the H a l a k h a h , the law c o n c e r n i n g f o r m i n g a n alley-way into a single d o m a i n : MISHNAH-TRACTATE ERUBIN

1:1,2

TOSEFTA-TRACTATE ERUBIN

1:1

YERUSHALMI T O M . E R U B I N . 1 : 1 BAVLI T O M .

ERUBIN

1:1 I . 1 9 6 A ,

II.9 I.30/8B

M. 1:1 [The crossbeam above] an alley entry which is higher than twenty cubits should one diminish [making it lower]. And [the alley entry] of a breadth [wider] than ten cubits should one diminish [making it narrower]. And if it has the shape of a doorway, even though it is wider than ten cubits, it is not necessary to diminish [it, making it narrower], T. 1:1 A. The crossbeam above the alley-entry which is higher than twenty cubits [ M. Erub. 1:1 A]—higher than the gate of the Temple—lo, this must be diminished [lowered to less than that height]. How does one diminish it[s height]? One puts a crossbeam on it less than twenty cubits high. T h e alley-entry in breadth wider than ten cubits [M. Erub. 1:1C]—wider than the gate of the Temple—lo, this must be diminished [narrowed to less than that breadth]. How does one diminish it[s breadth]? One sets up a board and diminishes it[s breadth] to less than ten cubits. Y. 1:1 II. 9 An alleyway the breadth and length of which are equivalent is not permitted [for carrying<] by promding [merely] a side beam and a crossbeam, but requires setting up boards [to form a symbolic wall and gateway] as in the case of a courtyard. B. 1:1 I.19/6A How do people provide a symbolic fusion boundary for a street that is public domain? [Such a road goes from one end of the

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town to the other, sixteen cubits wide, and the town has no surrounding wall.] One makes a construction in the shape of an entry-way on one side and sideposts and a crossbeam on the other. He makes a door at the one end but sideposts and a crossbeam on the other. B. 1:1 I.30/8B An alleyway that is formed like a centipede [there is a major alley opening into public domain, then minor alleys branch out in the shape of the legs of a centipede, and these have two entrances each, one at the major alley, the other at public domain. The entries don't face each other, since, if they did, they would be regarded as one long alley that opens out at both ends into public domain ]—one makes the shape of a doorway at the entrance of the big alley, and all the others are validated for carrying on the Sabbath by a sidepost and crossbeam [at their entrances onto public domain], M. 1:2 The validation of an alley entry [for carrying of objects on the Sabbath] requires a sidepost or a crossbeam. As to the ' e r u b - m e a l , here is the c o u n t e r p a r t rule governing the symbolic meal for establishing joint ownership of a courtyard or for establishing symbolic residence for purposes of travel on the Sabbath: MISHNAH-TRACTATE ERUBIN 3 : 1 , TOSEFTA-TRACTATE ERUBIN

3

2:14

M. 3:1 With any [food] do they prepare a fictive fusion meal to unite courtyards into a single domain ['erub] or a fictive boundary meal to establish one's point of residence for the Sabbath, except for water and salt. And any [food] is purchased with money set aside as [second] tithe, except for water and salt. He who vows [to abstain] from food is permitted [to make use of] water and salt. They prepare a fictive fusion meal to unite courtyards into a single domain ['erub] for a Nazir with wine [which he is forbidden by his vow to drink], and for an Israelite with heave-offering [which he is forbidden by reason of his caste status to eat]. And for a priest [they prepare a fictive fusion meal to unite courtyards into a single domain ['erub] and locate it] in a grave area. M. 3:3 [If] one put it into a tree—[if] it is above ten handbreadths, his fictive fusion meal is not a valid fictive fusion meal. [If he put it] below ten handbreadths, his fictive fusion meal is a valid fictive fusion meal. [If] he put it in a cistern, even if it was a hundred cubits deep, his fictive fusion meal is a valid fictive fusion meal. [If] he put the fictive fusion meal at the tip of a reed or at the tip of a stick, when it is uprooted and stuck [into the ground], even if it is a hundred cubits high, lo, this is a valid fictive fusion meal. [If] he put it into a cupboard and lost the key, lo, this is nonetheless a valid fictive fusion meal. T. 2:14 All the same is the rule for a tree and for any sort of domestic beast. But in the case of a crevice, pit, cave or fence, one takes hold

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and climbs up, takes hold and climbs down, even a distance of a hundred cubits. W h a t about the commingling of ownership through the 'erub-meal? T h e issues are spelled out in laws that stress the individuality of the householder a n d his responsibility willingly to give u p rights to his private d o m a i n in order to f o r m a partnership in a m u c h b r o a d e r , still-private domain. N o w we speak of courtyards and alleyways and how they are fused as well. MISHNAH-TRACTATE ERUBIN 6 : 3 , 7 : 6 - 8 ,

8:1-2

T O S E F T A TRACTATE E R U B I N 6 : 1

M. 6:3 The men of a courtyard, one of whom forgot and did not partieipate in the fictive fusion meal with the others—his house is prohibited, both for him and for them, from bringing things in and from taking things out. And theirs are permitted both for him and for them. [II] they gave him their right [of access], he is permitted, and they are prohibited. [11] they were two [who forgot], they prohibit one another. For one person gives or takes the right of access. But [while] two can give the right of access, they cannot take it. T h e failure of the individual to join in the fictive fusion-meal brings serious inconvenience and underscores the incentive that the H a l a khah presents to relinquish a u t o n o m o u s ownership in favor of joint control. H o w then does the meal take shape? M. 7:6 How do they make a partnership [through a fusion meal, or a shittuf] in an alleyway? One [of the residents] sets down a j a r [of food or drink] and states, "Lo, this belongs to all the residents of the alleyway." And thus he effects possession for them through his adult son or daughter, his Hebrew slave boy or slave girl, or his wife. But he does not effect possession in their behalf by means of his minor son or daughter, or by means of his Canaanite slave boy or slave girl, because their hand is as his hand. O n c e the institution of the fictive fusion-meal is established, the various participants are assumed to take their share, even w h e n the physical condition of the meal changes: M. 7:7 [If] the food diminished in volume [to less than the prescribed quantity], one adds to it and effects possession for the others. And he need not inform them. [But if] the number [of residents of the alleyway] became larger, one adds to the food and effects possession for them. And he does need to inform them. M. 7:8 What is its prescribed volume? When the [residents] are numerous, food sufficient for two meals for all of them. When they are few

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in numbers, a dried fig's bulk—such that may be taken out on the Sabbath—for each and every one. H e r e is the Tosefta's restatement of how the partnership-meal serving a n alley-way is set forth: T. 6:1 The effecting of a partnership [shittuf] in an alleyway—how [do people prepare it] [M. Erub. 7:6A]? A man sets down a j a r of wine, oil, grain, dried figs, or olives, whether belonging to him or to his fellow, and says, "Lo, this belongs to all the residents of the alleyway" [M. Erub. 7:6B], [If that which was set down] belonged to them, he does not have to make an act of acquisition [in their behalf, since it already belongs to them], [If that which he set down] was his, he raises it above the earth and says, "I have made acquisition for you and for all who will join you." [If] people join them, he makes an act of acquisition but does not have to inform them [cf. M. Erub. 7:7]. M. 8:1 How do they prepare a fictive fusion meal for the Sabbath line? One puts down a jug [of food of some sort] and says, "Lo, this belongs to all the residents of my town," [or:] "To whoever goes to the house of mourning," or, "To the house of celebration." Whoever accepted for himself [a share in the ownership of this meal] while it was still day is permitted [to walk to the limit of two thousand cubits from the location of the fictive fusion meal for the Sabbath line]. [But whoever accepts for himself ownership] after it gets dark is prohibited [from doing so], for they do not prepare a fictive fusion meal once it gets dark. M. 8:2 What is its requisite measure? Food sufficient for two meals for each one. E n o u g h of the H a l a k h a h has now been set forth for readers to see the concrete expression of the abstract principles I outlined at the start. At issue here is the definition of the S a b b a t h as the day to set in place, as cited at the head of this unit: " r e m a i n every m a n of you in his place; let no m a n go out of his place on the seventh day." "His place" explicitly means private d o m a i n . T h e r e , the T o r a h implicitly affirms, people m a y conduct life in an ordinary way. But "private d o m a i n " and householder are not deemed synonymous, and that marks an important j u d g m e n t . N o w "private d o m a i n " means "one's place," a n d that does not have to be the household. N o t only so, but an individual is now free to designate his "place" as other t h a n that of his h o m e a n d extended family, the place where he functions as part of a unit of production. Spending the S a b b a t h in public d o m a i n , d o m a i n not designated for one's place or residence for the holy span of time, means sitting

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in place a n d doing nothing. Private d o m a i n is where one m a y within b r o a d limits of S a b b a t h propriety do what he likes. T h a t is, it is there that, within the f r a m e w o r k of the S a b b a t h they m a y handle what they wish, carry w h a t they wish f r o m spot to spot, conduct all licit actions, one more, within the limits of the Sabbath: actions that are not constructive with e n d u r i n g results a n d that are consonant with the sanctity of the time. Beyond "his place," a householder m a y not conduct himself as if he owned the territory, meaning, handle whatever he wants, move a b o u t w h a t he wishes, do whatever he chooses. Apart f r o m walking about, for all practical purposes on the S a b b a t h all one m a y do in public d o m a i n by his m e r e presence is establish private d o m a i n , m e a n i n g , a space of four cubits; f r o m that point he cannot budge. If prior to the S a b b a t h , however, one has established a place of S a b b a t h residence, then he m a y move t h r o u g h private or public d o m a i n to a limit of two thousand cubits, but still, in public domain, he m a y transport nothing. If one's place of S a b b a t h residence is the household where he normally resides, he need do nothing; but he has the option of selecting some other spot as "his place" for the purpose of the S a b b a t h , a n d then he m a y move about within the range of two thousand cubits f r o m a n o t h e r starting point t h a n the h o u s e h o l d . But either way, the bulk of the H a l a k h a h of E r u b i n concerns conduct in private d o m a i n . But that is deceiving. For central to the H a l a k h a h is encompassing the extension of private dom a i n to the outermost possible limits, the walls of the town, real or fictive, the entirety of the private domain, now melded, held by joint residents of a courtyard or the set of courtyards that d e b a u c h into an alleyway, or the alleyways that all together comprise a village. T h a t commingling of ownership of pieces of private domain into one vast, still-private d o m a i n is a c c o m p l i s h e d by relinquishing one's exclusive proprietorship of his own sector of private d o m a i n . N o w ("his place" vastly extended, but also diluted by the commingled ownership of others. T h e upshot is, t h r o u g h the m e d i u m of an 'erub, a householder gives u p his unlimited p o w e r over his own share of private d o m a i n in order to acquire limited p o w e r over a m u c h larger share of land that is in that same status. And, through that same medium, one may not only commingle his rights of ownership, he m a y also remove himself f r o m the p r o p e r t y that is usually his private d o m a i n a n d establish a n o t h e r d o m a i n . It comes down to the same thing. T h e

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advent of the S a b b a t h redefines what is m e a n t by private d o m a i n , loosing the proprietary rights of the householder f r o m his own dom a i n but extending his rights over the d o m a i n of others. T h e Sabbath then brings about a reorganization of the division of property a n d society alike. In this context what people want to know about each of the two fictive meals is: how is an ' e r u b provided? what sort of food is used? what do we do if the fictive meal is invalidated? W e further ask about the negative side of matters, the consequence of violating the laws of the S a b b a t h limit. W e deal with the ' e r u b that serves the village as a whole as against the ' e r u b that sets limits for the individual's travel in one direction and permits his travel in another. Finally, we inquire about the ' e r u b that serves the courtyard: those who must, a n d those who need not, set out an ' e r u b to establish joint d o m a i n over the shared quarters, with attention first to the courtyard, then to the alleyway. O n c e we know who must set forth the 'erub for courtyards a n d alleyways, we describe the sort of meal that is required, then deal with one w h o neglects to participate in the meal of commingling for a courtyard and the consequences of his inaction. W h a t precipitates detailed inquiry—the problematics of the H a l a k h a h as it is articulated—emerges at the interstices, the primary issues of the topic having been settled. T h e questions concerning the 'erub-meal carry us deeper into the condition of the householder on the Sabbath; the meal is shared, so establishing as "his place" all those who have a right to share in that meal. O n c e more, then, the commingling of ownership bears the m e a n i n g that rights of private property a n d possession on the Sabb a t h give way in the formation of a vast community, closed to the world but fully c o m m u n i t a r i a n in rights of ownership. First, just as courtyards are joined by a symbolic gateway at the entrance of the alleyway that they share, so the households of a given courtyard also m a y be formed into a single private d o m a i n . This is accomplished t h r o u g h the provision of a symbolic, fictive meal that (in theory) all may eat in c o m m o n . T h e 'erub-meal then signifies that all who share it commingle their property into a single property; that is then the "his place" of all of the householders and their dependants, thus one large private domain. Second, just as fellow-travelers form out of public d o m a i n a c o m m o n , shared private d o m a i n , thus establishing for the purpose of the S a b b a t h a point of residence other than the established one (the household of each traveler, respectively), so

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individuals m a y provide a d o m a i n for themselves other t h a n the established one. So in both cases what the ' e r u b accomplishes is to confirm the householder's act of will: here I share my property a n d give u p ownership; there I d e m a r c a t e p r o p e r t y as mine for the pertinent purpose a n d so establish ownership. It is a symbolic transaction, precipitated by the advent of the seventh day at its intersection with the intangible lines of order that m a r k out the spaces of the world. As to the character of the fictive fusion meal, whatever purpose it is m e a n t to serve (courtyards, alleyways), the principle is that it must be theoretically-edible food, even though it is subject to a n ad hoc prohibition, a n d it m a y not be food that is absolutely forbidden. It must be situated where it is theoretically accessible, that is, within private d o m a i n . N o w since the meal establishes either comm o n ownership or c o m m o n residence, we t u r n to how individuals benefit f r o m this provision of the H a l a k h a h . An individual has the right to move from his place of residence for a distance of 2,000 cubits on the S a b b a t h day. Beyond that space, as we recall, he m a y move only four cubits, that is, within the space occupied by his own body. By situating a n erub-meal as the indicator of S a b b a t h residence, an individual has the power to change his residence f r o m the n o r m a l one to some other place. T h a t secures the right to move over the space of 2,000 cubits other t h a n the territory delineated by his regular residence, his household. Positioning the ' e r u b at the outer edge of his village, then, he m a y make it possible to travel to a neighboring village. In addition to using the 'erub-meal for that purpose, under certain conditions he m a y accomplish the same end t h r o u g h a verbal declaration, but he must refer to a particular, identifiable place. A town m a y form a single private d o m a i n if its territory is d e m a r cated in an a p p r o p r i a t e way, by a wall or its surrogate. T h e b o u n d aries m a y be established a n d a u g m e n t e d t h r o u g h established physical markers, e.g., walls, turrets, ruins, a n d the like. T h e gaps in the demarcation-lines m a y be u p to fifty cubits, indicated by a rope. So m u c h for a town divided a m o n g n u m e r o u s householders. A town originally held by a single householder is preserved as private domain, encompassing m a n y owners, by m e a n s of a fictive meal. Clearly distinct p r o b l e m s are j o i n e d together by the c o m m o n principles involved in 'Erubin: commingling ownership of courtyards out of the d o m a i n of individual householders; that of alleyways out of courtyards; that of an entire village out of distinct walled territo-

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ries; the space permitted to an individual to traverse f r o m his established residence; a n d on a n d on. But a m o n g them, the most important is commingling ownership of a courtyard or an alleyway. T h e alleyway j o i n i n g a n u m b e r of courtyards, which we met at the outset, recurs in the provision of a fictive fusion meal of partnership, called a shittuf, that functions for the alley as the fictive fusion meal of shared ownership, called, we know, an 'erub-meal, serves for the courtyard. T h e r e is no functional difference between the two meals. T h e same principles apply, though in some details the one meal meets r e q u i r e m e n t s not d e m a n d e d of the other. As we should expect, in the same context we deal with interstitial cases, where a rite of commingling m a y or m a y not serve, that is, areas that m a y be classified as distinct or as commingled. H e r e is the apex of the H a l a k h a h ' s power to identify a n d resolve interstitial problems, e.g., roofs that are not differentiated sheltering houses that are. So we turn into a vast private households that form courtyards, courtyards that d e b a u c h into a c o m m o n alley, and the alleyways of an entire town, all sheltered within c o m m o n walls or the equivalent thereof. T h e conclusion of the presentation of the law—public dom a i n in general, as distinct f r o m the m u c h differentiated t r e a t m e n t of private domain and individual residence—recapitulates the opening unit of Shabbat: carrying in public d o m a i n in general, now special problems in the same connection. So, throughout, we deal with a symbolic transaction, namely, the commingling, whether of abstract ownership or of abstract lines of delineation of property. In both matters we wish to establish the ways of overcoming, on the S a b b a t h , the boundaries, whether of private ownership or of d e m a r c a t i o n of territory. W h a t we want is to establish the m e a n s of sharing what is private, so that m a n y commingle rights of ownership, a n d unifying w h a t is divided, so that m a n y properties are formed into one. W h a t is at stake? It is the definition, on the S a b b a t h , of holy Israel. Israelites flow together into corporate Israel on that occasion, a n d this in concrete signals, as we have now seen. T h e key-point here is that individuals w h o do not partieipate in the rite of commingling ownership do not benefit f r o m the provision of the law. H e r e Israel defines itself by c o m m o n ownership of property, excluding n o n - c o n f o r m i n g Israelites a n d gentiles. Israel now is the community, the rest, individuals of no standing. In c o n t e m p o r a r y categories, we may define Israel as a c o m m u n i t a r i a n society, called into existence at the m o m e n t of sanctification of time

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at sunset at the a d v e n t of the seventh day. In so stating, we have crossed the b o u n d a r y into the religious i n t e r p r e t a t i o n of the H a l a khah. T o the laws of E r u b i n , those of the native c a t e g o r y - f o r m a t i o n , S h a b b a t supply c o m p l e m e n t a r y i n f o r m a t i o n . O f principal interest to us, a m o n g the divisions of the H a l a k h a h of S h a b b a t , is the m a t t e r of the division of public a n d private d o m a i n . O n the S a b b a t h , as E r u b i n has shown us, the h o u s e h o l d a n d village divide into private a n d public d o m a i n , a n d it is f o r b i d d e n to t r a n s p o r t objects f r o m the one d o m a i n to the o t h e r . Private d o m a i n is d e f i n e d as at the very least an a r e a ten h a n d b r e a d t h s d e e p or high by f o u r wide, public d o m a i n , a n u n i m p e d e d space o p e n to t h e public. T h e r e one m a y c a r r y a n object for n o m o r e t h a n f o u r cubits, w h i c h sages m a i n t a i n is the d i m e n s i o n of m a n T h e sea, plain, karmelit [neutral d o m a i n ] , c o l o n n a d e , a n d a t h r e s h o l d are n e i t h e r private d o m a i n n o r public d o m a i n . T h e y d o not carry or p u t [things] in such places. But if one carried or p u t [something into such a place], he is e x e m p t [from p u n ishment]. If in public d o m a i n one is liable for carrying a n object four cubits, in p r i v a t e d o m a i n , t h e r e is n o limit o t h e r t h a n the o u t e r b o u n d a r i e s of the d e m a r c a t e d area of the private d o m a i n , e.g., within the walls of the h o u s e h o l d . W h a t is w o r n for clothing or o r n a m e n t does not violate the p r o h i b i t i o n against c a r r y i n g things f r o m private to public d o m a i n . If o n e t r a n s p o r t s a n object f r o m private d o m a i n to p r i v a t e d o m a i n w i t h o u t b r i n g i n g the object into public d o m a i n , e.g., by tossing it f r o m p r i v a t e to private d o m a i n , he is n o t culpable. H e r e is h o w the H a l a k h a h f o r m u l a t e s the basic c o n c e p t i o n of the division of space into public a n d private d o m a i n : MISHNAH-TRACTATE SHABBAT TOSEFTA T R A C T A T E SHABBAT

1:1 1:1-6

M. 1:1 [Acts of] transporting objects from one domain to another [which violate] the Sabbath (1) are two, which [indeed] are four [for one who is] inside, (2) and two which are four [for one who is] outside. How so? [If on the Sabbath] the beggar stands outside and the householder inside, [and] the beggar stuck his hand inside and put [a beggar's bowl] into the hand of the householder, or if he took [something] from inside it and brought it out, the beggar is liable, the householder is exempt. [If] the householder stuck his hand outside and put [something] into the hand of the beggar, or if he took [something] from it and brought it inside, the householder is liable, and the beggar is exempt. [If] the beggar stuck his hand inside, and the householder took [something] from it, or if [the householder] put something in it and

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he [the beggar] removed it—both of them are exempt. [If] the householder put his hand outside and the beggar took [something] from it, or if [the beggar] put something into it and [the householder] brought it back inside, both of them are exempt. T h e T o s e f t a n o w clarifies these distinct d o m a i n s a n d their classifications: T.

1:1 Four domains are [constituted by] private domain and public domain. What is private domain? A ditch ten [handbreadths] deep and four wide, and so too: a wall ten handbreadths high and four wide— this constitutes absolutely private domain. T. 1:2 What is public domain? A high road or a larger public square, and alleyways which open out [at both ends]—this constitutes absolutely public domain. N o w the practical effects of the classification of d o m a i n s are articulated: T.

1:3 They do not transport an object from this private domain into that public domain, and they do not transport an object from this public domain into that private domain. And if one transported an object or brought an object in—[if he did so] inadvertently, he is liable for a sin offering. [If he did so] deliberately, he is subject to the punishment of extirpation, and he is stoned. All the same are the one who takes out and the one who brings in, the one who stretches [something] out and the one who throws [something] in—[in all such cases] he is liable. T. 1:4 But the sea, plain, karmelit [neutral domain], colonnade, and a threshold are neither private domain nor public domain. They do not carry or put [things] in such places. But if one carried or put [something into such a place], he is exempt [from punishment]. They do not transport an object either from them to public domain, or from public domain into such areas as these. And they do not bring something in either from such areas as these to private domain or from private domain to such areas as these. But if one took something out or brought something in [as specified], he is exempt [from punishment]. T h e consideration of the ' e r u b - m e a l is i n t r o d u c e d : T.

1:5 [In the case of] a courtyard belonging to public domain and of alleyways which do not open out, [if] they prepared an 'erub , they are permitted [to carry in the court yard or alleyway, across the boundaries from one domain to the other], [If] they did not prepare an 'erub, they are prohibited [from doing so].

N o w the starting point of the M i s h n a h ' s rule is reconsidered: T.

1:6 [If] man stands on the threshold [of a house] [and] hands something over to the householder, or the householder hands something

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over to him, [if] he hands something over to a beggar, or the beggar hands something over to him, [if] he takes something from the householder and gives it to the beggar, [or] from the beggar and gives it over to the householder, all three of them are exempt [from liability to punishment]. T h e point of the division into private a n d public d o m a i n emerges in the exposition of the distinction; it concerns transporting objects. O n e m a y cross the line, but not carry anything in so d o i n g — h e n c e the concern for what m a y or m a y not be worn as clothing. T h e same point emerges in the rule that one m a y move a n object f r o m one private d o m a i n to a n o t h e r , so long as public d o m a i n does not intervene. C a r r y i n g within public d o m a i n forms an equally i m p o r t a n t consideration; one m a y do so only within the space occupied by his very body, his person. But the four cubits a person occupies in public d o m a i n m a y be said to transform that particular segment of public d o m a i n into private d o m a i n , so the effect is the same. T h e delineation of areas that are not definitively public d o m a i n "but also not private d o m a i n — t h e sea a n d the plain, which are not readily differentiated, the space within a colonnade, a threshold—simply refines a n d underscores the generative distinction of the two distinct domains. N o w the exposition of the m a t t e r shifts to considerations integral to the p r e s e n t a t i o n of the H a l a k h a h of S h a b b a t : w h e n is a n act culpable, w h e n not? In general, culpability d e p e n d s on a single, complete action being carried out by one a n d the same individual, start to finish, in the n o r m a l way, with a p e r m a n e n t result: MISHNAH-TRACTATE SHABBAT

10:2-4

TOSEFTA T R A C T A T E SHABBAT 9 : 8 - 1 0

M. 10:2 He who takes out food and puts it down on the threshold, whether he then went and took it out, or someone else took it out, is exempt [from liability to a sin-offering], for he has not [completely] performed his prohibited act of labor at one time. A basket which is full of produce, which one put on the outer [half of the] threshold, even though the larger quantity of the produce is outside—he is exempt, unless he takes out the entire basket. So m u c h for doing the deed completely, start to finish. N o w we turn to doing the deed in the n o r m a l way: M. 10:3 He who takes [something] out, (1) whether in his right hand or in his left, (2) in his lap or (3) on his shoulder, is liable, for so is the manner of carrying [an object] by the children of Kohath (Num. 7:9).

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[If he takes something out] (1) on the back of his hand, (2) on his foot, (3) in his mouth, (4) in his elbow, (5) in his ear, or (6) in his hair, (1) in his wallet with its mouth downward, (2) between his wallet and his cloak, (3) in the hem of his cloak, (4) in his shoe, (5) in his sandal, he is exempt [from liability to a sin-offering]. For he has not carried [the object] out the way people [generally] carry out [objects]. T h e next consideration is that the action carry out the intention of the person who has done it. If the person did not plan things as they took place, the act is not culpable: T. 9:8(9) He who intends to take something out in his wallet with its mouth upward and took it out in his wallet with its mouth downward [M. Shab. 10:3D], inside his wallet and took it out between his wallet and his cloak or in the neck of his cloak [M. Shab. 10:3D2], is exempt [from liability to a sin offering], M. 10:4 He who intends to take out something before him, and it slipped behind him is exempt. [If he intended to carry it out] behind him and it slipped in front of him, he is liable. Truly did they say, A woman who wore drawers [and took something out in them], whether in front of her or behind her, is liable, for they are likely to be moved around. T. 9:9 He who intends to take something out in his wallet with its mouth upward and took it out in his wallet with its mouth downward, inside his wallet and took it out between his wallet and his cloak or in the neck of his cloak, is exempt; he who intends to take something out in his wallet with its mouth downward is exempt. N o w comes a reprise of the basic principle that the action must be the responsibility of one actor: M. 10:5 He who takes out a loaf of bread into the public domain is liable. [If] two people took it out, they are exempt. [If] one person could not take it out, but two people took it out, they are liable. He who takes out food in a volume less than the specified measure in a utensil is exempt even on account of [taking out] the utensil, for the utensil is secondary to it [the food]. [He who takes out] a living person in a bed is exempt even on account of [taking out] the bed, for the bed is secondary to him. [If he took out] a corpse in a bed, he is liable. And so [one who takes out] an olive's bulk of corpse matter and an olive's bulk of carrion and a lentil's bulk of a dead creeping thing is liable. T. 9:10 Two people holding on to a pitchfork and stacking, to a shuttle and pressing, to a pen and writing, to a reed, and they took it out to the public domain-—both of them are exempt [from liability to bring a sin offering]. [If they were holding on to] a wheel of dried figs, and they took it out to the public domain, to a beam, and they took it out to the public domain.

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BAVLI T O M I S H N A H - T R A C T A T E SHABBAT

10:5E-K

I.1/93B

He who takes out food in a volume sufficient to meet the specified measure—if he does so in a utensil, he is liable for taking out the food but exempt for taking out the utensil. But if the utensil was necessary for carrying out the food, he is liable also for the utensil [so he is liable on two counts].

So when it comes to space, the advent of the Sabbath divides into distinct domains for all practical purposes what in secular time is deemed divided only as to ownership, but united as to utilization. Sacred time then intensifies the arrangements of space as public and private, imparting enormous consequence to the status of what is private. There, and only there, on the Sabbath, is life to be lived. The Sabbath assigns to private domain the focus of life in holy time: the household is where things take place then. When, presently, we realize that the household (private domain) is deemed analogous to the Temple or tabernacle (God's household), forming a mirror image to the tabernacle, we shall understand the full meaning of the generative principle before us concerning space on the Sabbath. Now we turn to the question, What about throwing objects from one private domain across public domain to another private domain? MISHNAH-TRACTATE SHABBAT

11:1

T O S E F T A - T R A C T A T E SHABBAT

10:1

M. 11:1 He who throws [an object] from private domain to public domain, [or] from public domain to private domain, is liable. [He who throws an object] from private domain to private domain, and public domain intervenes is exempt from penalty. How so? Two balconies opposite one another [extending] into the public domain—he who stretches out or throws [an object] from this one to that one is exempt. [If] both of them were [different private domains on the same side of the street and] at the same story, he who stretches [an object over] is liable, and he who throws from one to the other is exempt. For thus was the mode of labor of the Levites: Two wagons, one after the other, in the public domain—they stretch beams from this one to that one, but they do not throw [them from one to the other], T. 10:1 He who throws an object from private domain to private domain and public domain intervenes [M. Shab. 11:1 B]—[if he throws to a distance of less than] four cubits, he is exempt [If he throws] beyond four cubits, he is liable. Two promenades, one above the other [if] one threw from the top to the bottom one, beyond a distance of four cubits, he is liable. [If this was] within a distance of four cubits, he is exempt. [If] he threw from a promenade to a shed, a stable, a storage

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area, or a courtyard, even though they are in a valley, lo, this one is liable. He who throws from a store through a stoa to the plaza is liable. [If he threw an object] from the store to the stoa, and from the stoa to the plaza, he is exempt. T h e contribution to the issue before us that is m a d e by the Halakhah of S h a b b a t is clear. T h e delineation of private d o m a i n , the restrictions on m o v e m e n t between public and private d o m a i n , the introduction of interstitial d o m a i n s — a l l of this c o m p l e m e n t s the principal concern affecting the relationship of the individual householder, the Israelite, to corporate Israel, embodied in the c o m m u nity beyond his gates. E r u b i n in its sustained exercise of thought on the commingling of ownership of private property for the purpose of S a b b a t h observance a n d on the commingling of meals to signify shared ownership, accomplishes for Israel's S a b b a t h w h a t Shebi'it achieves for the Land's. O n the S a b b a t h i n a u g u r a t e d by the Sabbatical Year the Land, so far as it is otherwise private property, no longer is possessed exclusively by the householder. So too, the produce of the L a n d consequently belongs to everybody. It follows that the H a l a k h a h of Erubin realizes for the ordinary S a b b a t h of Israel the very same principles that are embodied in the Halakhah of Shebi'it. T h a t Halakhah defines the Sabbath of the L a n d in exactly the same terms: the Land is now n o longer private, a n d the Land's p r o d u c e belongs to everybody. T h e S a b b a t h that the L a n d enjoys marks the advent of shared ownership of the L a n d and its fruit. Sharing is so total that h o a r d ing is explicitly forbidden, a n d w h a t has been h o a r d e d has now to be removed from the household and moved to public domain, where anyone m a y come a n d take it. H e r e we find the Sabbath of Creation overspreading the S a b b a t h of the Land, as the Priestly C o d e at Genesis 1 a n d at Leviticus 25:18 define matters. T h e Sabbatical year bears the message, therefore, that on the S a b b a t h , established a r r a n g e m e n t s as to ownership and possession are set aside, and a different conception of private property takes over. W h a t on ordinary days is d e e m e d to belong to the householder a n d to be subject to his exclusive will on the S a b b a t h falls into a m o r e complex web of possession. T h e householder continues to utilize his property but not as a proprietor does. H e gives u p exclusive access thereto, a n d gains in exchange rights of access to other peoples' property. Private property is commingled; everybody shares in everybody's. T h e result is, private property takes on

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a new meaning, different f r o m the secular one. So far as the householder proposes to utilize his private property, he must share it with others, w h o do the same for him. T o own t h e n is to abridge ownership in favor of commingling rights thereto, to possess is to share. A n d that explains why the p r o d u c e of the L a n d belongs to everyone as well, a corollary to the f u n d a m e n t a l postulate of the S a b b a t h of the L a n d . N o w the H a l a k h a h of Shebi'it appeals to the m e t a p h o r of Eden, a n d , along those same lines, if we wish to u n d e r s t a n d how sages thought about the S a b b a t h , we have here to follow suit. But that is hardly to transgress the character of the evidence in h a n d , the story of the first S a b b a t h as the celebration of the conclusion a n d perfection of creation itself. Since, accordingly, the S a b b a t h c o m m e m o rates the sanctification of creation, we cannot contemplate Sabbathobservance outside of the f r a m e w o r k of its generative model, which is Eden. W h a t sages add in the H a l a k h a h of the O r a l T o r a h becomes self-evident: Eden provides the m e t a p h o r for imagining the L a n d of Israel, and the Sabbath, the occasion for the act of metaphorization. T h e governing question to which the details of the law respond, specifically, what, about E d e n on the Sabbath, defines the governing m e t a p h o r out of which the principles of the H a l a k h a h work themselves out in the articulation of acute details that yields our H a l a k h a h . W o r k i n g back f r o m the details to the organizing topics, a n d f r o m the topics to the principles that govern, we find ourselves able to f r a m e the right question. It is, W h a t qualities of E d e n impress sages? W i t h the H a l a k h a h as the vast corpus of facts, we focus u p o n two matters: [1] time a n d space, [2] time a n d activity. H o w is space d e m a r c a t e d at the specified time, how is activity classified at that same time, a m a t t e r that is not relevant to our inquiry? T h e f o r m e r works itself out in a discussion of where people m a y move on the S a b b a t h a n d how they m a y conduct themselves (carry things as they move). T h e latter finds its definition in the model of labor that is prohibited. W i t h E d e n as the model a n d the m e t a p h o r , we take a simple sighting on the matter. First, A d a m and Eve are free to move in E d e n where they wish, possessing all they contemplate. G o d has given it to t h e m to enjoy. If E d e n then belongs to G o d , his private d o m a i n , he freely shares ownership with A d a m a n d Eve. A n d — a l l the m o r e so—the p r o d u c e of E d e n is ownerless. With the well-known exception, all the fruit is theirs for the taking. So we find ourselves d e e p within the H a l a k h a h of Shebi'it.

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For the H a l a k h a h of Shebi'it sets forth in concrete terms what is implicit in the character of Eden. In the Sabbatical Year the L a n d returns to the condition characteristic of Eden at the outset: shared a n d therefore accessible, its p r o d u c e available to all. T h e Sabbatical Year recovers that perfect time of Eden when the world was at rest, all things in place. Before the rebellion, m a n did not have to labor on the land; he picked a n d ate his meals freely. And, in the nature of things, everything belonged to everybody; private ownership in response to individual labor did not exist, because m a n did not have to work anyhow. Reverting to that perfect time, the T o rah maintains that the land will provide a d e q u a t e food for everyone, including the flocks a n d herds, even if people do not work the land. But that is on condition that all claim of ownership lapses; the food is left in the fields, to be picked by anyone w h o wishes, but it m a y not be h o a r d e d by the l a n d o w n e r in particular. It is in this context that we return to the H a l a k h a h of ErubinShabbat with special reference to the division of the world into private a n d public d o m a i n , the f o r m e r the realm of permitted activity on the S a b b a t h , the latter not. If we m a y deal with an 'erub-fence or a n ' e r u b meal, how are we to interpret w h a t is at stake in these matters? It in both instances is to r e n d e r private d o m a i n public through the sharing of ownership. T h e 'erub-fence for its p a r t renders public d o m a i n private, but only in the same sense that private d o m a i n owned by diverse owners is shared, ownership being commingled. T h e 'erub-fence signals the formation for purposes of the sanctification of time of private d o m a i n — b u t with the ownership commingled. So w h a t is "private" a b o u t "private d o m a i n " is different on the S a b b a t h f r o m in secular time. By definition, for property to be private in the setting of the S a b b a t h , it must be shared a m o n g householders. O n the S a b b a t h , d o m a i n that is totally private, its ownership not commingled for the occasion, becomes a prison, the householder being unable to conduct himself in the n o r m a l m a n n e r in the courtyard beyond his door, let alone in other courtyards in the same alleyway, or in other alleyways that debauch onto the same street. A n d the H a l a k h a h , as we have seen, makes provision for t h o s e — w h e t h e r Israelite or gentile—who do not offer their proprietorship of their households for commingling for the Sabbath. W h a t happens, therefore, t h r o u g h the 'erub-fence or ' e r u b meal is the re-definition of proprietorship: w h a t is private is no longer personal, and no one totally owns what is his, but then everyone (who

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wishes to participate, himself and his household together) owns a share everywhere. So m u c h for the "in his place" part of "each m a n in his place." His place constitutes an area where ordinary life goes on, but it is no longer "his" in the way in which the land is subject to his will a n d activity in ordinary time. If constructing a fence serves to signify j o i n t ownership of the village, n o w t u r n e d into private d o m a i n , or constructing the gateway, of the alleyway a n d its courtyards, w h a t a b o u t the meal? T h e ' e r u b - m e a l signifies the shared character of what is eaten. It is food that belongs to all w h o wish to share it. But it is the provision of a personal meal, also, that allows an individual to designate for himself a place of S a b b a t h residence other than the household to which he belongs. So the S a b b a t h loosens bonds, those of the householder to his property, those of the individual to the household. It forms of Israelites n o t h i n g less t h a n corporate Israel. T h a t is embodied in communities, the householders of a courtyard into a community of shared ownership of the entire courtyard, the individual into a c o m m u n i t y other than that formed by the household to which he belongs—now the community of disciples of a given sage, the community of a family o t h e r t h a n that in residence in the household, to use two of the examples c o m m o n in the H a l a k h a h . J u s t as the S a b b a t h redefines ownership of the L a n d a n d its p r o d u c e , turning all Israelites into a single social entity, "all Israel," which, all together, possesses the Land in c o m m o n ownership, so the S a b b a t h redefines the social relationships of the household, allowing persons to separate themselves from the residence of the h o u s e h o l d a n d designate some other, some personal, point of residence instead. T h e m a i n point of the law of private d o m a i n in S h a b b a t a n d Erubin seen in the model of Shebi'it then is to redefine the m e a n ing of "private d o m a i n , " where each m a n is to remain in "his" place. T h e law aims to define the m e a n i n g of "his," a n d to remove the ownership of the land a n d its p r o d u c e f r o m the d o m a i n of a householder, rendering ownership public a n d collective. T a k i n g as our model Shebi'it, we note that in the year that is a Sabbath, the land is held to be owned by n o b o d y a n d everybody, a n d the p r o d u c e of the L a n d belongs to everyone and no one, so that one may take a n d eat but thank only G o d . It is n o one's, so every m a y take; it is everyone's, so everyone may eat, and G o d alone is to be acknowledged. Since, on the Sabbath, people are supposed to r e m a i n within their own d o m a i n , the c o u n t e r p a r t to Shebi'it will provide for the shar-

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ing of ownership, thus for extending the meaning of "private domain" to encompass all the partners in a shared locus. "Private d o m a i n , " his place, now bears a quite different m e a n i n g from the one that pertains in profane time. T h e S a b b a t h recapitulates the condition of E d e n , when A d a m and Eve could go where they wished and eat what they wanted, masters of all they contemplated, along with God. Israel on the Sabbath in the Land, like A d a m on the Sabbath of Eden that celebrates Creation, shares private domain and its produce. And that is only appropriate, for Israel forms a moral entity, a corporate body, c o m p a r a b l e to A d a m a n d Eve, moral entities of an individual character: Israel, not just Israelites.

VI. The Halakhic Definition of Israel, Individual and Corporate U n d e r particular circumstances, the individual Israelite must identify himself with Israel, specifically, for sharing in the collective atonement for collective sin, so Sheqalim. In addition, the individual must relinquish claim to ownership of his private d o m a i n , so far as productive agricultural lands are concerned, in the Seventh Year, thus Shebi'it. Along these same lines, a particular class of individuals— householders who trace their genealogy back within Israel and receive their land-holdings by inheritance—narrates a family story that recapitulates Israel's history, so Bikkurim. And, further, the individual Israelite m a y identify himself with that Israel that is embodied in the c o m m u n i t y where he lives, relinquishing ownership of his singular property in favor of possession through sharing a m u c h wider space, thus Erubin-Shabbat. But the cjuestion remains, at what point must the individual give up all semblance of individuality—life itself, the ultimate realization of individuality—and submit to the public interest? T h a t is the final question to be answered in an account of how corporate Israel is actualized by the a d h e r e n c e of individual Israelites. T h e law makes a critical distinction, between one's obligation when on his own, in private, a n d one's duty w h e n in public. W h e n in private, the individual Israelite represents only himself. But when in public, he embodies corporate Israel. T h e rule is then simple. O n e must accept martyrdom in public. Not only so, but, surrendering one's self, his individuality, he m a y not expect a miracle to be done on such an occasion; miracles are done only on worthy occasions. But

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God exacts vengeance for the blood of the martyrs, as we shall now see: S1FRA

4.

A. B. C. D. E.

5.

6.

A.

CCXXVII:I.4-8

"And you shall not profane [my holy name]:" I derive the implication from the statement, "you shall not profane," that sanctification is covered. And when Scripture says, "but I will be hallowed," the sense is, "Give yourself and sanctify my name." Might one suppose that that is when one is all alone? Scripture says, "among the people of Israel." A. In this connection sages have said: B. Whoever gives his life on condition that a miracle is done for him—no miracle will be done for him. C. But if it is not on condition that a miracle be done for him, a miracle will be done for him. D. For so we find in the case of Hananiah, Mishael, and Azariah, that they said to Nebuchadnezzar, "We have no need to answer you in this matter, for if so it must be, our God whom we serve is able to save us from the burning fiery furnace, and he will save us from your power, Ο king. But even if he does not, be it known to you, Ο king, that we will not serve your god or worship the statue of gold that you have set up" (Dan. 3:16-18). E. And when Marianos seized Pappos and Lulianos, brothers in Laodicea, he said to them, "If you come from the people of Hananiah, Mishael, and Azariah, let your God come and save you from my power." F. They said to him, "Hananiah, Mishael, and Azariah were worthy men, and Nebuchadnezzar was a king worthy of having a miracle done on his account. G. "But you are a wicked king, and you are not worthy of having a miracle done on your account, and, for our part, we are liable to the death penalty inflicted by Heaven, so if you do not kill us, there are plenty of agents of punishment before the Omnipresent, plenty of bears, plenty of lions, plenty of panthers, plenty of fiery snakes, plenty of scorpions, to do injury to us. H. "But in the end the Omnipresent is going to demand the penalty of our blood from your hand." I. They say that he did not leave there before orders came from Rome, and they chopped off his head with axes. "who brought you out of the land of Egypt'':

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"I brought you out of the land of Egypt on a stipulation that you be prepared to give yourselves to sanctify my name." "I to be your God": like it or not. "I am the Lord": "I am faithful to pay a reward.

W h a t is explained is the right attitude for m a r t y r d o m . It is one that accepts death for the sake of sanctifying G o d ' s n a m e , without the expectation that God will intervene with a miracle. Further, why does G o d intervene sometimes but not others? T h a t too is given a reasonable explanation. But the main point should not be missed. W h e n corporate Israel is present, then G o d is engaged a n d his n a m e must be sanctified, and when not, not. T h a t is the fixed point at which the Israelite must surrender to Israel: for G o d ' s sake. I can think of no more extreme case of individual self-abnegation t h a n the act of voluntarily giving u p one's life. T h a t , in the case of Israel, is called not m a r t y r d o m but the act of "sanctifying the divine n a m e , " accepting (even courting) m a r t y r d o m in G o d ' s service. T h a t is h o w Israel's ultimate calling, to b e a r witness to the unity a n d dominion of G o d in the world, is realized. It is the point, therefore, at which the individual Israelite completely surrenders himself to the calling a n d mission of corporate Israel. H e r e is how the H a l a k h a h mediates between the natural instinct of Israelite individuals to live, a n d the divine imperative addressed to all Israel to e m b o d y G o d ' s share in the world: those that know a n d affirm the unity of G o d , m a d e manifest in the T o r a h . Such a one will live too, at the resurrection at the end of days. Giving u p one's life to sanctify God's n a m e is for a brief interim. In his person, at the occasion of m a r t y r d o m , the Israelite m a r t y r incorporates Israel. B u t — a n d here is the key p o i n t — t h a t takes place only in the presence of Israel. T h e n by its prèsence corporate Israel defines the reference-point, the template, for the individual Israelite. C o r p o r a t e Israel defines the occasion and sets the n o r m , the individual Israelite represents the anomaly. W h a t I see here is this: Israel is truly Israel all together: in community. N o w we recall that h u m a n i t y is m a d e up of individuals, each a moral entity. But all together, they represent no more than the sum of their parts. And that was the starting point for this inquiry, which deemed the Israelite to c o m p a r e to the gentile, both representing individuals, unique in some aspect, before G o d . T h e n the Israelite joined with other Israelites to form Israel, those f o r m e d into a so-

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cial entity that imparts its imprint u p o n the individual constituents. But that progression now meets a challenge. Specifically, if corporate Israel forms the Israelite's natural condition, not his individuality, then, it must follow, Israel is discontinuous with humanity. T h e collective entity differs in its very character f r o m that constituted by the individual—even the individual Israelite. T h a t is indicated, within the system's deepest thought, by the fact that being Israel defines a situation in a way that the presence of the Israelite does not: thus the m a t t e r of m a r t y r d o m . And that observation, based on the H a l a k h a h at h a n d , dealing with the final act of incorporation of the Israelite into Israel, signals a conception that we might have missed, h a d the f u n d a m e n t a l distinction in the Halakhah of m a r t y r d o m not alerted us to it. W e began with the assumption that the natural condition of h u m a n i t y is individual, that h u m a n beings, both gentile a n d Israelite, by nature are individuated. T h e n corporate Israel, a moral entity, a p p e a r e d unnatural, a huge a n o m a l y to the rule of individuated humanity. W e thus treated Israel as part of h u m a n i t y , so that Israelite individuality simply represented a continuity with the n o r m for everybody. So we f o u n d the corporate character of "all Israel," its constituting a m o r a l entity out of individuals, to represent the exceptional, the differentiating quality of Israel in particular. But that premise does not hold u p for corporate Israel. C o r p o r a t e Israel comes prior to individual Israelites a n d imposes imperatives on its own, which individual Israelites cannot accomplish, represented by the requirement to give u p life for the sanctification of G o d ' s n a m e : in public, but not in private, in the context of Israel, but not otherwise. T h e n o r m is then clear: Israel is Israel corporately, the individual Israelite enters into his Israelness—in this case, the obligation to sanctify G o d ' s n a m e t h r o u g h m a r t y r d o m — o n l y via corporate Israel. T h a t is w h y to e n t e r Israel, one is b o r n into the pre-existing c o r p o r a t e c o m m u n i t y . T r u e , individuals m a y a d h e r e by personal choice, a fact that for all time forecloses the classification of "Israel" as an ethnic group. But birth to an Israelite m o t h e r suffices as well; then no personal choice is required, no act of admission of this individual d e m a n d e d (circumcision m a y be foregone if life is e n d a n gered thereby). Israel accounts for its enduring, corporate existence through the narrative of mythic monotheism, invoking the m e t a p h o r of family as m u c h as elected social entity ("chosen people") formed at Sinai. W h e t h e r G o d ' s call to A b r a h a m or his imposition of the

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T o r a h at Sinai, the starting point of Israel precedes the advent of Israelites, one by one. T o state matters slightly differently: the n o r m for Israel is its corporate existence; the individual Israelite stands for an anomaly within the "Israelness" of Israel. For what we see here is, the natural condition of the Israelite is within corporate Israel. T h e Halakhah leaves no doubt: when on his own, the Israelite need not submit to m a r tyrdom. T h e n there is no question of sanctifying G o d ' s name. G o d ' s n a m e is sanctified in the corporate body, Israel. T h a t is what "in public" means. But when he is within corporate Israel, the individual. Israelite loses dimensions of his individuality. In the present Halakhic circumstance, he surrenders his individual existence altogether, his very being, for the sake of corporate Israel. T h a t seems to me to state the m e a n i n g of the distinction so f u n d a m e n t a l to the H a l a k h a h of m a r t y r d o m : obligatory in the presence of "all Israel," (ordinarily) optional otherwise.'‫י‬ T o conclude: corporate Israel realized above and beyond the individual persons of Israelites, a whole that exceeds the sum of the parts, then represents the n o r m for Israel. T h e Israelite individual, then, is necessary, but not sufficient, to Israel. How, precisely, R a b binic J u d a i s m explains to itself the Israel-ness of Israel then presents a puzzle, as the description of what is by definition sui genens always does. '‫ י‬I say "ordinarily" because one cannot save one's life by murdering another person, and there are other refinements to take into consideration. These do not affect my argument here.

4.

WHEN ISRAELITES DO NOT LIVE UP TO THE NORMS OF CORPORATE ISRAEL I. The Social Hierarchy of Rabbinic Judaism: Corporate Israel at the Apex R a b b i n i c J u d a i s m places corporate Israel at the apex of the social order. T o corporate Israel the Israelite is subordinated. T h a t is for taxic reasons to begin with: the one is a genus a n d unique, the other is a species of a genus. T h u s in the hierarchical classification of the social order, the community of Israel is p r i m a i y and autonomous, the individual Israelite secondary a n d contingent. In the setting of the priority of corporate Israel over the individual Israelite, Rabbinic J u d a i s m must mediate between the conflicting claims of individuality a n d collectivity. W h e n , specifically, the individuars interests intersect with those of corporate Israel, the Halakhah teaches that those of corporate Israel take priority. T h a t accounts for the manifest policy that favors communitarian theories of stipulative proprietorship over absolute ownership, shown at E r u b i n - S h a b b a t , for one striking example, and at Shebi'it for another. But the priority of corporate Israel, expressed in the imposition of heavy sanctions on the a b e r r a n t individual, requires explanation in its own terms: at just what turnings, for precisely what considerations, does corporate Israel find itself e m p o w e r e d to impose the interests of the c o m m u n i t y on the individual Israelite? T h e r e are two answers to that question, one given here, the other in the following chapter. W h a t we shall now see is how the social teaching of R a b b i n i c J u d a i s m evinces tolerance of individual deviation f r o m the n o r m . W h a t we shall see next is what considerations motivate the social o r d e r to intervene a n d sanction individual aberration: w h a t makes all the difference? F r a m i n g matters in this w a y — w h e n the c o m m u n i t y imposes its collective will u p o n the individual, w h e n n o t — d o e s not m e a n to suggest that the system for its p a r t even acknowledges, let alone undertakes to resolve, tension between the individual a n d the community. It does not address the m a t t e r in o u r terms. At issue for

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systemic construction is not finding a balance between the Israelite a n d corporate Israel. It is, rather, articulating the hierarchical classification that places corporate Israel at the top, the individual Israelite beneath. For—as the m a t t e r of m a r t y r d o m indicates—no negotiation is possible w h e n it comes to realizing the T o r a h ' s imperatives for corporate Israel. T h e individual Israelite, whether by choice or by birth, never can claim utter personal autonomy, only limited individuality. H e has n o options in the T o r a h but to obey or to rebel (a j u d g m e n t to be revised in this chapter, with its account of systemic remissions). It would be anachronistic to impute a doctrine of unrestricted individuality, limited (for example) only by the c o m m o n good a n d self-interest actuated thereby. These in toto represent anachronism. R a t h e r , while the social policy recognizes a n d values the Israelite's individuality, e m b o d y i n g as it does the f r e e d o m of will a n d the free exercise of intentionality with which everyone by n a t u r e , at creation, is endowed, the Israelite subordinates his individuality to his place within corporate Israel. T o revert to my favored formula: the whole not only imparts its imprint upon the parts, the whole also exceeds the sum of the parts. H o w this works is easily explained in the limits of a single case. T h e effect of the ' e r u b in commingling possession while limiting ownership embodies the social teaching. It holds that the individuality of private property owned in fee simple diminishes, the c o m m u n i t a r i a n definition of private property, with ownership relinquished but possession augmented and shared a m o n g many, takes over. So too is the case with the individual Israelite vis à vis corporate Israel. N o t h i n g that has been said contradicts the systematic account of the media of individuation that the H a l a k h a h affords. W e already have reviewed the forces that sustain individuation. T h e Israelite differentiates himself t h r o u g h virtue a n d p e r m i t t e d idiosyncrasy (Chapter Two, Arakhin, Taanit, Berakhot, Nazir and Nedarim). T h a t takes his place in the social order that collectively sins a n d atones (Chapter T h r e e , Sheqalim). T h e Israelite moreover situates himself within Israel by telling a b o u t himself the story that accounts for corporate Israel (Chapter T h r e e , Bikkurim). And he has every enc o u r a g e m e n t at his own volition to relinquish ownership in favor of possession, giving up private property in favor of sharing. In all these ways, individuality governs (Chapter T h r e e , Shebi'it, E r u b i n - S h a b bat). In all these ways we have asked about the legitimacy of indi-

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viduality a n d how the social teaching of the H a l a k h a h establishes it. W e therefore have viewed individuality as the n o r m a n d considered how the private person exercises his personal will. But, within corporate Israel, the Israelite in some matters exercises no choice, has no f r e e d o m of will at all. T h e n corporate Israel takes over, and its perspective governs. So in this c h a p t e r a n d the next we look at matters f r o m the perspective of corporate Israel. If the Israelite proposes but corporate Israel disposes, then what follows, in consequence, for the mediation between corporate a n d personal interest? W e now take u p the angle of vision of corporate Israel on individuality. F r o m asking where a n d how the individual takes legitimate, or tolerated, initiatives on his own, we raise the question, what are the m e d i a for defining a n d m a i n t a i n i n g the social o r d e r available to corporate Israel? A n d in that context, what remissions does corporate Israel extend to the Israelite, a n d on what basis? T h a t involves identifying choices that the H a l a k h a h assigns to corporate Israel, the social policies that effect not the c o m m o n good (as we might p u t it) but the u n i f o r m definition of Israelite imposed by corporate Israel to begin with (as I think the R a b b i n i c sages would have phrased matters). C o r p o r a t e Israel imposes on all Israelites the r e q u i r e m e n t to obey the law: do what the T o r a h requires, refrain f r o m what it prohibits. But corporate Israel also accords toleration to Israelites, within the f r a m e w o r k of the law identifying areas in which meeting lower than the optimal standards bears no sanctions. So we pursue these questions in consequence. First, how does corporate Israel deal with deviancy, a n d are there areas in which the c o m m u n i t y tolerates less t h a n perfect conformity to the H a l a k h a h on the part of individuals? A n d if there are, on what basis? In detail the question of systemic remissions is answered in the native-category-formation, D e m a i . Second, recognizing the diversity of Israelites within c o m m o n , corporate Israel, how does the H a l a k h a h estimate the probabilities of law-conformity, a n d what is its assessment of the social realities of Israelites, as they comprise c o r p o r a t e Israel in practice, not in theory? T h i s is a question justified by the recognition that the system imposes its n o r m s in a n u a n c e d way, negotiating the gap between ideal a n d reality, distinguishing the p r i m a r y f r o m the secondary. T h e s e two questions carry us f r o m the theory of corporate Israel to the Halakhic theory of responding to manifest practicalities of the

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c o m m u n i t y formed by Israelites. H e r e we see how the social teaching a c c o m m o d a t e s itself—within its theory of matters—to the workaday world that it imagines to flourish in the world beyond the circles of the utterly faithful and virtuous. I underscore that our interest is not in the facts of the J e w s ' social behavior in various times and places of late antiquity. W e focus only u p o n how, within its theory, the Rabbinic social doctrine proposes to mediate between corporate Israel and the individuated a n d therefore diverse Israelites by w h o m the social body is realized. For, in the social teaching of R a b b i n i c J u d a i s m , corporate Israel stands for not a theoretical construct generated by theological necessity. In that teaching corporate Israel sets the measure a n d the standard for what actual Israel ought to be and possesses the potentiality to realize. J u s t as the builders of the T o w er of Babylon resorted to slime for their m o r t a r , just as out of Egypt c a m e a mixed m u l t i t u d e , c a r o u s i n g while Moses tarried on the m o u n t a i n , so the sages of J u d a i s m bore no illusions about the reality of which they spoke when the used the word, "Israel." W h a t we see in the present a n d following chapters is how the social teaching differentiates between the failure to live u p to the n o r m s of corporate Israel a n d the deliberate violation of those norms, a very different thing. H e r e we take u p the f o r m e r matter: the ordinary, eve r y d a y failures of a fair p a r t of the Israelite p o p u l a t i o n , which nonetheless embodies corporate Israel. T h e sages did not accuse the less t h a n perfectly virtuous of deliberate rebellion against G o d , a n d they did provide for systemic remissions. But these remissions in acknowledgement of good intention but b a d execution of the H a l a k h a h did not extend to deliberate violation of the T o r a h ' s law. In Chapter Five, therefore, we ask two further questions. T h e first is, how does the Israelite deal with corporate deviancy of a deliberate character. T h a t is in two aspects. First, what if the c o m m u n i t y as a whole, e m b o d i e d in its leadership, errs a n d violates the H a l a k h a h , how is the Israelite to assume responsibility, a n d how is corporate Israel to atone? T h e answer comes to us in tractate H o r a y o t . Second, how does corporate Israel deal with the a b e r r a n t individual Israelite? T h a t issue encompasses two distinct matters. First, how does the community dispose of individuals marked by H e a v e n as excluded from the c o m m o n rites? Scripture requires removing unclean persons f r o m the c a m p of Israel, understood as the T e m p l e . H o w , exactly, does the H a l a k h a h interpret that matter? Second, along these same lines, how does the c o m m u n i t y exer-

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eise legitimate violence, that is, political power, to enforce its n o r m s a n d protect itself? S a n h e d r i n - M a k k o t tell us the answer. In the category-formations examined in this chapter and the next, then, we explore the perspective of corporate Israel u p o n the individual Israelite: w h a t will the c o m m u n i t y tolerate, h o w will the community right the wrongs for which it is responsible, a n d how will the c o m m u n i t y exert its interest over that of the private individual?

II. Accommodating Acceptable Difference: Tolerated Law-breaking. Demai All Israel relates to G o d within the single, governing p a r a d i g m . But not all Israelites conduct themselves in accord with the strict requirements of the T o r a h , though they r e m a i n wholly part of corporate Israel. T h e H a l a k h a h therefore takes for its problem, how to arrange matters within Israel so as to preserve the correct relationship between Israel a n d G o d ? T h e answer is, the trustworthy within Israel undertake responsibility for the condition of all Israel, so far as they are able to correct matters. W e deal with a complicated solution to a simple problem. T h e p r o b l e m is, can the H a l a k h a h tolerate widespread individual deviation f r o m the highest standards of corporate Israel, a n d , if so, how is this to be accomplished? T h e answer is the H a l a k h a h can legislate for a social o r d e r in which standards of conformity to the law vary in a large population. It does so by devising an elaborate system for mediating the relationships between the perfectly-punctilious, for w h o m the law legislates, a n d those w h o keep the law but do so in a less t h a n meticulous m a n n e r , w h o m the law would accommodate. T h e purpose of the legislation is to instruct the perfectlypunctilious on how to a c c o m m o d a t e themselves to the realities of the social world r o u n d - a b o u t . W h a t the social teaching requires is that the faithful take account of the failure of neighbors a n d so act as to secure b r o a d a d h e r e n c e to the requirements of the law. Such provision for the facts of life represents not compromise—those who e m b o d y corporate Israel with those Israelites that do n o t — b u t remediation. F r o m the very particular case at h a n d , we can readily extrapolate the social teaching that would cover comparable circumstances. It is: identify acceptable difference, but provide for realizing the n o r m so far as is feasible.

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T h e issue concerns p r o p e r tithing of the agricultural p r o d u c e of the L a n d of Israel by the Israelite householder. Law breaking enters in, because, while everybody separates some classifications of the tithes, m a n y are also assumed not to separate other classifications of tithe, as I shall explain. All Israelites, the H a l a k h a h takes for granted, separate heave-offering. But the other pertinent agricultural offerings, first t i t h e — a tenth of the c r o p r e m a i n i n g w h e n heaveoffering has been removed, given to the Levite, heave-offering of the tithe, that is to say, a tenth removed from the Levite's tithe and given to the priest, a n d second tithe or p o o r m a n ' s tithe (depending on the year of the Sabbatical cycle, first, second, fourth, a n d fifth, or third a n d sixth, respectively)—are designated only by those faithful to the rule. So the premise of the H a l a k h a h is, people do generally keep the law. H e r e we deal with the laws that dictate how a responsible person makes certain that what he purchases in the marketplace and eats or gives to a n o t h e r to eat will be properly tithed. W h a t marks the outer limit of responsibility of the Israelite toward corporate Israel for the conduct of third parties? T h e specific problem that provokes the formation of the H a l a k h a h before us concerns the heave-offering of the tithe given to the Levite, which heave-offering further goes to the priest. If not removed, the heave-offering of the tithe given to the Levite imparts the status of holiness to the p r o d u c e in which it is mixed, even as would the heave-offering of the entire crop that everyone is assumed to designate and remove for the priest. T h e issue is what belongs to the priest out of that same tithe for the Levite. T h a t is called heave-offering of the tithe, a h u n d r e d t h of the whole. If people do not know w h e t h e r it has been separated f r o m p r o d u c e that they purchase, it is to be separated f r o m that p r o d u c e , the status of which is unclear, and is to be given to the priest. Produce that has not certainly yielded that heave-offering of the tithe to the priest is called dema'i, doubtfully-tithed produce. D e m a ' i - p r o d u c e , c o n c e r n i n g the tithing of which d o u b t exists, requires special treatment. 1 Sarason states the matter in this language: 1

Reference is made throughout to Richard S. Sarason, A Histoiy of the Mishnaic Law ofAgriculture. Section Three. A Study of Tractate Demai. Part One. Commentary (Leiden, 1979: E . J . Brill. S T U D I E S IN J U D A I S M IN L A T E A N T I Q U I T Y , Volume X X V I I . Edited by J a c o b Neusner); and The Talmud of the Ijind of Israel. A Preliminary Translation and Explanation. Volume 3. Demai, translated by Richard S. Sarason (Chicago, 1993: T h e University of Chicago Press).

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The specific problem...is that, as long as first tithe has not been separated, the produce remains inedible, because it still contains terumah [heave offering] of the tithe, the priest's consecrated portion, which has yet to be separated from the first tithe. A specific, secondary tithing procedure is provided in our tractate...: When it is not known if tithes have been separated from an item of produce, only terumah of the tithe (and dough-offering, in the case of bread) need actually be separated, since they may not be eaten by non-priests. First tithe need only be designated, that is, localized, in the produce (this is a prior requirement for removing terumah of the tithe, since this offering must be separated from first tithe). It is up to the Levite who wishes to claim his portion to prove that the produce certainly was not tithed. Second tithe also need only be located in the produce, since it immediately may be redeemed with coins. In the third and sixth years of the Sabbatical cycle, the tithe for the poor also need only be designated, and it is up to the poor person who wishes to claim his portion to prove that the produce certainly was not tithed. The preeminent concern expressed in this tithing procedure...is not to violate the taboo against eating something that belongs to the priest. 2 As we shall see, the precipitating issue leads to a systematic discussion of large questions of social policy, with special reference to how the m o r e observant negotiate life in the c o m m u n i t y of the less observant, all of t h e m parties to the condition of Israel. T h e specific issue is simply stated: " T a k e n as a whole, only those tithes which a non-priest is forbidden to eat (heave-offering of the tithe and doughoffering) must be separated f r o m d e m a ' i p r o d u c e a n d given to the rightful recipient [so as] not to violate the t a b o o against eating a priestly offering." 3 T h e generative issue is how those who properly separate tithes are to relate, commercially a n d commensally, to those that do not: what is their responsibility for p r o d u c e that they transfer to others, w h a t is their obligation in regard to p r o d u c e that they receive f r o m others? T h e Halakhic problematic then defines the theological issue: how do J e w s (using the t e r m to refer to those d e e m e d to belong to a c o m m o n ethnic group) relate to corporate Israel, meaning, the holy people w h o m G o d b r o u g h t into being through the T o r a h at Sinai? A n d the answer that the H a l a k h a h sets forth is, all Israelites by definition belong to corporate Israel. Each is responsible, within limits, for the standing of all others. C o r p o r a t e Israel imposes u p o n Israel‫ ־‬Sarason, Talmud of the Iund of Israel, pp. 3-4. ! Sarason, History of the Mishnaic Law of Agriculture, p. 10.

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ites that obligation to the c o m m o n w e a l t h . N o one is excluded, exc o m m u n i c a t e d , s h u n n e d , or boycotted; there are no children of darkness in Israel, as distinct f r o m the children of light of Israel, so far as R a b b i n i c J u d a i s m is concerned. A n d everyone is obligated to take account of everyone else's condition. T h a t is what imparts to the Halakhic category-formation, D e m a ' i , its exemplary standing. W h a t the H a l a k h a h of D e m a ' i emphatically registers is that the Israelites w h o do not observe cultic cleanness in the household intermarry with, and will respect the convictions and conduct of, those that do. O t h e r c o m p o n e n t s of the H a l a k h a h stress that those w h o do not observe cultic cleanness in the household will not wantonly or deliberately impart cultic uncleanness to the secular food of that c o m p o n e n t of Israel that does so. T h e premise of the H a l a k h a h in both cases is one a n d the same: all Israel keeps some of the H a l a k h a h , a n d some of Israel keeps it all—and all together, the two c o m p o n e n t s form a single, corporate, holy Israel. T h a t is why the H a l a k h a h legislates for the situation that it treats here and in tractate T o h o r o t , considered in the next two sections. A n d viewed as a m a t t e r of social policy, that conviction underscores the wisdom of the H a l a k h a h in requiring the observant to make provision for the unobservant, doing so, however, without intruding into their affairs in a h a u g h t y or hostile m a n n e r . O f such intrusion in the spirit of holier-than-thou, in the H a l a k h a h , I can identify not a trace. T h a t does not m e a n everyone is as good as everyone else. C o r porate Israel is differentiated from within. T h a t is accomplished by the action of self-selected individuals, who undertake to keep the law in a trustworthy m a n n e r , bearing responsibility for those who do not keep the law in the way explained just now. T h e one undertakes a discipline that does not bind the other. T h e trustworthy Israelite is called a haber, the one w h o does not undertake to tithe as the H a l a khah requires is called an 'am ha'ares. T h e f o r m e r tithes whatever he transfers to others so that on his responsibility everyone eat p r o p e r ly-tithed produce. H e r e is how the H a l a k h a h lays matters out: MISHNAH-TRACTATE DEMAI

2:2-3

TOSEFTA-TRACTATE DEMAI

2:2-4

M. 2:2 He who undertakes to be trustworthy [one who is assumed to tithe all of his produce] tithes (1) what he eats, and (2) what he sells, and (3) what he purchases, and (4) does not accept the hospitality of an 'am ha'ares. R. Judah says, "Also one who accepts the hospitality of

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an 'am ha'ares is trustworthy" They said to him, "[If he is not trustworthy concerning himself [viz., concerning food which he himself eats], how should he be trustworthy concerning that of others [viz., concerning food which he feeds or sells to others] ?,‫י‬ There are two levels of u n d e r t a k i n g , the one w h o pledges to be "trustworthy,' ‫ י‬described just now, a n d the one w h o pledges to be a haber, at a higher level of meticulous observance, as follows: M. 2:3 He who undertakes to be a haber ["comrade," "fellow," "member," "associate"; member of a group which scrupulously observes the laws of Levitical cleanness] (1) does not sell to an 'am ha'ares wet or dry [produce, either produce which has been rendered susceptible to uncleanness or produce which has not been rendered susceptible], and (2) does not purchase from him wet [produce, produce which has been rendered susceptible to uncleanness], and (3) does not accept the hospitality of an 'am ha'ares, and (4) does not receive him [the 'am ha'ares] as his guest while he [the 'am ha'ares] is wearing his [the 'am ha'ares'] own clothes. R. Judah says, "Also (1) he should not raise small catde, and (2) he should not be profuse in [making] vows or in levity, and (3) he should not defile himself for the dead, and (4) he should minister in the study house." They said to him, "These [rules] do not enter the category [under discussion, viz., they do not deal with matters of cleanness]." T h e Tosefta's version is somewhat m o r e n u a n c e d , as is c o m m o n l y the case, but does not greatly change the picture: T. 2:2 He who takes upon himself four things, they accept him as a haber. (1) not to give heave-offering and tithes to [a priest who is] an 'am ha'ares, and (2) not to prepare foodstuffs requiring conditions of cleanness for an 'am ha'ares. and (3) to eat unconsecrated food in a state of cleanness [cf. Dem. "He who undertakes to be trustworthy—tithes (1) what he eats and (2) what he sells and (3) what he purchases, and (4) does not accept the hospitality of an 'am ha'ares," the words of R. Meir. And the sages say, "One who accepts the hospitality of an 'am ha'ares is trustworthy." Said to them R. Meir, " If] he is not trustworthy concerning himself should he be trustworthy concerning me?" [M. Dem. 2:2]. They said to him, "Householders have never refrained from eating with one another, nonetheless the produce in their own homes [viz., the homes of those who have undertaken to be trustworthy] is properly tithed." T h e dispute leaves no d o u b t on the universal n o r m , which is as the M i s h n a h has f r a m e d matters. N o w f u r t h e r deviance is examined: T. 2:3 "An 'am ha'ares who took upon himself all the obligations of haberut [belonging to the association of those that observe the tithing laws in the proper manner] and is suspected with regard to one item is

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suspected with regard to all of them/' the words of R. Meir. And sages say, "He is only suspected with regard to that particular item." T. 2:4 A proselyte who took upon himself all the obligations of the Torah and is suspected with regard to one item—even with regard to all [the obligations of] the Torah—behold, he is [deemed to be] like an apostate Israelite. So the point of differentiation is public life, the marketplace, not private life, the household. Samaritans a n d Israelites w h o are not trustworthy in the governing sense are assumed to honor the requirements of those who are. A n d , reciprocally, the h a b e r to w h o m the H a l a k h a h speaks takes responsibility not only for what he eats but also for what he provides to others. E a c h Israelite bears responsibility for the condition of corporate Israel, so the differentiation distinguishes a hierarchy of accountability that one assumes for himself. O n e w h o a d v a n c e s to a higher level of responsibility takes responsibility also for the cultic cleanness of produce. T h o s e who discard vegetables must tithe t h e m first; those w h o purchase vegetables in the market and return t h e m must tithe them first. O n e w h o finds produce in the road and takes possession of it must tithe it before putting it aside. But not everybody bears the same responsibilities. O n e also m a y not take for granted the reliability of third parties, for example, he w h o gives his tithed p r o d u c e to the mistress of an inn so that she m a y p r e p a r e it for him to eat tithes that which he gives to her and that which he receives back f r o m her, since she is suspected of exchanging her own doubtfully tithed p r o d u c e for his tithed produce. Bakers do not have to separate second tithe and carry huge volumes of stale bread to Jerusalem; wholesalers enjoy the same leniency. T h e complications of the H a l a k h a h now enter in. W h a t is produce for which one takes responsibility? Produce that enters the status of d e m a ' i derives f r o m p u r c h a s e in the m a r k e t (and equivalent sources). Its status as to tithing is unclear. W h a t is not liable to tithing also involves no f u r t h e r consideration as dema'i. T h a t is, for exampie, inferior produce. W h a t is not purchased for h u m a n use, e.g., as food or soap, is not liable. H e w h o purchases (1) grain f r o m an ' a m ha'ares for seed or for cattle viz., grain which is to be used as fodder, (2) flour for dressing hides, (3) oil for the lamp, (4) oil for greasing cleaning utensils the p r o d u c e is e x e m p t f r o m tithing as d e m a ' i produce. W h a t is p r o d u c e d in territory outside of w h a t is assuredly within the L a n d of Israel is not liable. As to p r o d u c e the possessed

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in partnership, the faithful need not tithe what belongs to the other, but if the faithful hand over any produce in which they have a share, that must be tithed. Thus: he who sharecrops a field for an Israelite, for a gentile, or for a Samaritan, receiving for his work a fixed percentage of the total yield, divides the produce in their the owner's presence. He who leases a field from an Israelite, paying the owner a fixed amount of produce, regardless of the total yield, separates only heave-offering from the whole) and then gives to him to the owner, his rental from the tithed produce. How about relationships between partners, one of whom separates, the other of whom does not separate tithes? To what extent does the common ownership permeate the whole, so that the faithful one of the two is responsible for tithing, out of his share, the entire crop? The answer is contained in this group of rulings: MISHNAH-TRACTATE DEMAI

6:6-10

M. 6:6 Two [men] who gathered [the grapes of] their vineyards into a single winepress—one [who] separates tithes and the other [who] does not separate tithes—the one who separates tithes tithes his own [share of the wine] and his portion [of the grapes] wherever it may be.

The Haber takes responsibility for his own part of the whole. M. 6:7 Two [men, viz., one who separates tithes and one who does not separate tithes] who [jointly] sharecropped a field, or inherited [a field], or became joint owners—he [the one who separates tithes] may say to him [the one who does not separate tithes], "You take the wheat in such-and-such a place and I [will take] the wheat in such-and-such a place; "you [take] the wine in such-and-such a place and I [will take] the wine in such-and-such a place." But he may not say to him, "You take the wheat and I [will take] the barley; you take the wine and I will take the oil."

The Haber also can participate in the division of the crop, but he may not consign an entire component of the crop to the ownership of the one who does not properly separate all the tithes. What about a common inheritance? M. 6:8 A haber and an 'am ha'ares who inherited [the property of] their father, [who was] an 'am ha'ares—he [the haber brother] may say to him [the 'am ha'ares brother], "You take the wheat in such-and-such a place and I [will take] the wheat in such-and-such a place; "you [take] the wine in such-and-such a place and I [will take] the wine in suchand-such a place." But he may not say to him, "You take the wheat and I will take the barley; "you take the wet produce [susceptible to uncleanness] and I will take the dry [insusceptible] produce."

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M. 6:9 A proselyte and a gentile who inherited [the property of] their father, [who was] a gentile—he [the proselyte brother] may say to him [the gentile brother], "You take the idols and I [will take] the coins; "you [take] the wine and I [will take] the produce." And if [be said this] after it [the property] came into his possession, this [arrangement] is forbidden. T h e same basic rules govern. M. 6:10 He who sells produce in Syria and said, "It is from the Land of Israel [and thus liable to tithing]"—he [the purchaser] must tithe [the produce]. [If the vendor subsequently said,] "It is tithed," he is believed, for the mouth that forbade is the mouth that permitted. [If the vendor said,] "It is from my [field, and thus liable to tithing]"—he [the purchaser] must tithe [the produce]. [If the vendor subsequently said,] "It is tithed," he is believed, for the mouth which forbade is the mouth which permitted. But if it was known that he [the vendor] owns a field in Syria, he [the purchaser] must tithe [the produce]. T h e Israelite who is meticulous about matters thus bears responsibility both for himself and for the other, but the range of responsibility is not u n b o u n d e d . W h e n one is an agent of another, the latter bears responsibility for the former's actions. Otherwise, that is not the case. T h i s distinction is spelled out in the following way: TOSEFTA-TRACTATE DEMAI

5:15-18

T. 5:14 A man says to his friend and to his laborers, "Go and eat [food purchased] with this denar," "go and drink [wine purchased] with this denar," and he does not scruple about tithes, or about seventh-year produce, or about libation-wine [of gentiles]. But if he said, Go and eat the loaf, and I will pay for it, go and drink the quarter[-log of wine], and I will pay for it," behold, this one scruples about seventh-year produce, and about tithes, and about libation-wine [T. 7(8): 10], T. 5:15 He who gives wool to the gentile dyer does not scruple lest he [the dyer] have dyed it in vinegar of libation-wine. But if he made a detailed reckoning, it is forbidden. T. 5:16 A man should not give the heave-offering of his wine-vat to the guard of his wine-vat [who is a priest], nor the firstling of his flock to the shepherd of his flock [who is a priest]. If he gave them their wages, he may give them [the priestly gifts] as a favor. T. 5:17 An Israelite should not give his animal for slaughter to a butcher who is a priest, nor for shepherding to a shepherd who is a priest, unless he gives them their wages. H e r e again, we see how the one party bears responsibility for the other, but also the limits set to that provision that he is to make for the other's condition.

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W h a t is required, overall, is the simplest declaration, sometimes involving a substantive deed, sometimes not. As to the former, we have the following: MISHNAH-TRACTATE DEMAI

7:1

He who invites his friend to eat with him on the Sabbath, and the friend does not trust the host in the matter of tithing—the friend says stipulates on the eve of the Sabbath before the Sabbath begins, "That which I shall separate tomorrow one hundredth part of the whole, behold, it is made first tithe, and the remainder of the first tithe is adjacent to it. That which I have made first tithe is now made heaveoffering of the tithe for it for the remainder of the first tithe, nine hundredths of the whole, adjacent to the specified hundredth part, and second tithe is to the north of it, or to the south of it of the designated remainder of the first tithe, and is redeemed with coins." So by the statement m a d e prior to the S a b b a t h , the conditions take effect on the S a b b a t h , a n d the requirements of the T o r a h are carried out. It follows that we deal with abstract, impalpable issues, not with substantive o n e s — m a t t e r s of relationship a n d relativity. T h a t is shown by the procedures that are defined for dealing with the tithing of dema'i. All that is involved is the recitation of a formula over a bit of dough. With this brief précis of the H a l a k h a h before us, we are ready to return to our issue, the social teaching for Israelites w h o do not live u p to the n o r m s of corporate Israel. In the present instance individuality is no concern; the m a t t e r of individual attitude or intentionality does not enter in; those w h o do not meticulously tithe are not d e e m e d deliberate law-violators; they do not place themselves outside the pale. R a t h e r , Israelites exert themselves, each according to his sense of matters. T h e m o r e observant so conduct themselves as to take responsibility for the presence of the less observant, w h e r e they appropriately are able to do so. T h a t is so as to diminish the occasion for the less observant to err. But the H a l a k h a h imputes the same obligations to all a n d presupposes that everyone maintains a relationship with G o d characterized by conscientious observance of the law. But it recognizes that differences of opinion will divide Israel a n d a c c o m m o d a t e s that fact. In that complex law, the Halakhah preserves the a u t o n o m y of corporate Israel while a c c o m m o dating the presence of individual Israelites of diverse customs. So as a m a t t e r of social teaching, the H a l a k h a h ' s recognition of the heterogeneity of Israel forms a religious j u d g m e n t . Everyone is

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Israel, responsible to G o d a n d for Israel equally. Even Samaritans, even the less observant Israelites are assumed to exhibit integrity and good will, since they are held to keep the law correctly, as we noted: " H e who leaves [his tithed] p r o d u c e in the keeping of a S a m a r itan or an ' a m h a ' a r e s — [ t h e p r o d u c e remains] in its p r e s u m e d status with regard to tithes and with regard to Seventh-Year p r o d u c e . " W h e r e they err, they err, where not, not. T h a t latitudinarian definition of the holy people, corporate Israel, emerges in the laconic character of the rules that instruct those w h o are m o r e observant on how to deal with those who are less so. T h e H a l a k h a h sets forth no recriminations a n d p r o n o u n c e s no exclusions. T h o s e w h o keep the tithing law relate to those w h o do not in three ways. First, they form a single c o m m u n i t y . Failure to keep the law does not b r i n g a b o u t exclusion f r o m Israel. In C h a p t e r Five we shall examine what does. N o r do the H a b e r i m (in this context) separate themselves f r o m the rest of ordinary Israelites. T h o s e d e e m e d reliable do not aspire to segregate themselves in public life f r o m others or expect to do so, though home-hospitality is a n o t h e r matter. But that underscores the public focus of the law, which is u p o n all Israel. A n d the H a l a k h a h presupposes, as we noted, that Israelites (here including Samaritans) respect the convictions of those who keep the law differently, more strictly t h a n they do. So the m o r e reliable m a y rely u p o n the honesty of the less observant. T h a t is—the H a l a k h a h rules—as a m a t t e r of the n o r m , not merely of whim or will. Second, they take precautions to preserve the integrity of their observance. T h e y keep the rules a m o n g those who do not. T h a t is why they can participate in public life, in the market or the synagogue for example. T h e y properly tithe what they are given o r — more to the p o i n t — w h a t they give away. So the more reliable within Israel do make provision for the failure of the others to tithe in the correct manner; they do not adapt themselves to a lower requirem e n t of the T o r a h but preserve their own integrity. T h i r d , the m o r e observant take responsibility for the observance of those who do not observe. T h e y regard themselves as their brothers' keepers. T h a t is what is at stake in properly tithing all food that goes back into the market or passes into u n k n o w n hands. So far as they can correct the prevailing situation, they do so, tithing properly what they introduce into c o m m o n usage, e.g., in the market or in transfer-payments through gifts. T h e h a b e r prepares for others food

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that meets his high standards, but he does not thereby impose his practice u p o n others. If, therefore, we h a d to identify the religious principle that animates the Halakhah of Demai, it is to affirm the integrity of all Israel, to make a statement of the f u n d a m e n t a l coherence of the Israelite community in the Land. All Israelites now are shown to bear responsibility for themselves a n d others; without regard to their situation in relationship to the L a n d , all engage with G o d . And that points toward what the H a l a k h a h does not n u r t u r e — a sentiment of superiority by reason of higher standards of tithing. 4 T h a t absent attitude complements the engagement with the other that the H a l a k h a h does m e a n to foster, which is unobtrusive provision for the lessobservant other. T h a t is an attitude of responsibility for the condition of the other, so far as one can provide the other with p r o d u c e that meets the d e m a n d s of the law. T h e responsibility then is met by the observant Israelite's m a k i n g provision for w h a t the other on his own does not do, not by coercion or imprecation. All Israel bears m u t u a l responsibility for one a n o t h e r ; in the m a t t e r at h a n d no Israelite m a y interfere in the affairs of the o t h e r — a neat balance. All Israel enters into a covenanted relationship with G o d through possession (by only some) of the L a n d , a n d the conduct of all Israel u p o n the L a n d , in respect to its p r o d u c e , bears heavily on Israel's e n d u r i n g possession of the L a n d . So when it comes to doubtfullytithed p r o d u c e , the practice of all Israel is taken into account, a n d the condition of all Israelites registers. T h a t is why, the H a l a k h a h insists, the faithful shop in the same market as the less or the nonobservant, diminishing so far as possible the occasions for the less faithful to misuse produce. It is the very insistence of the H a l a k h a h u p o n rules for dealing with the public square of Israel that makes the most eloquent statement: all Israelites, when it comes to relating to G o d t h r o u g h the p r o d u c e of the L a n d , forms a single Israel before G o d . Sanctification overspreads Israel w h e r e v e r situated, however the individual Israelite conducts himself.

4

T h a t calls into question the identification of the haber, meticulous about tithing and cleanness rules, with the "abstainer," called in Hebrew perushi or Pharisee. T h e Rabbinic characterization of that group has already come to our attention, and it is not consonant with the Halakhah that describes the ne'eman/haber.

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III. Negotiating with Widespread Indifference: Assessing Probabilities of Conformity to the Law. Tohorot J u s t as some Israelites fail meticulously to tithe, but corporate Israel takes responsibility for separating the crops' full tithe, so when it comes to matters of cultic cleanness, some observe, but all are responsible to keep, the law. And here again, corporate Israel finds a way to negotiate w h a t is clearly widespread indifference to the requirements of the law, fully in play. T r a n s l a t e d "purities," generically, the Halakhah of Tohorot covers four topics, of which the fourth concerns us here, and the third in the next section. T h e s e are as follows: [1] Fathers a n d Offspring of uncleanness; [2] removes of uncleanness, from the original source, and the affect of what is made unclean at one or more removes upon food in various degrees of sanctification; [3] matters of d o u b t in connection with the uncleanness of food a n d utensils a n d principles for their resolution; [4] relationships between those w h o keep the purity laws within the domestic household a n d those w h o do not, and how ambiguities are resolved in that connection. T h i s fourth correlates with D e m a i but makes its own points. T h e H a l a k h a h of T o h o r o t addresses the topic of the uncleanness affecting food and drink, offering some large-scale generalizations a n d — f o r the shank of the t o p i c — a set of guidelines on how to resolve cases in which the status of food as to uncleanness is subject to d o u b t . T h e m a t t e r of d o u b t f u r t h e r encompasses relationships between those who at h o m e for the domestic table keep the cleanness-laws a n d those, also Israelites, w h o do not keep those laws a n d hence are subject to cultic uncleanness. T h e connections that, deeming t h e m self-evident, the sages d r a w a m o n g the four distinct categories of H a l a k h a h having to do with purities expose the rationality that animates their thinking t h r o u g h o u t . T h a t fact becomes clear w h e n we set forth as a sequence the topics at h a n d : [1] the relationship between sources of uncleanness and removes or successive levels of sanctification; [2] the relationship between Fathers and Offspring of uncleanness; [3] sorting out matters of doubt a n d determining probabilities; [4] as at D e m a i , once m o r e , the relationship of the haber a n d the 'am ha'ares.

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Stated in that sequence, then, the four m a i n foci of T o h o r o t hold together because to the sages they m a k e a single statement, f r o m logical beginning to necessary end, a n d the order is critical to the message that is set forth. Before us, as p o r t r a y e d by sages, we contemplate an intangible world of confusion between classes of things a n d persons that are both alike a n d not alike: things that m a y contract uncleanness but also attain sanctification; sources of uncleanness; things that m a y be unclean or clean; persons w h o are Israelites all together, but who m a y or m a y not keep certain laws of the T o r a h . W h a t the H a l a k h a h accomplishes in each case is to identify things that are to begin with alike—that stand along a single cont i n u u m , that b e a r traits in c o m m o n — b u t that also exhibit differentiating qualities. Extrapolating f r o m cases, the H a l a k h a h then offers the governing rules that sort out these mixtures of things that are both alike and unlike. T h e H a l a k h a h tells us how to differentiate the unlike a m o n g the like, so to sort out confusion a n d clarify the categories that pertain. O n c e m o r e we see how the sages reckon with individuals w h o do not measure up, but w h o belong to corporate Israel. N o w the problern is not how to take responsibility for the effects of their recalcitrance, but how to prevent one's being affected by it. Since day-today relationships are assumed to be close a n d constant, the issue arises: h o w to sort out cases in which such an outsider, the nowfamiliar 'am ha'ares, has h a d access to the things belonging to an observant person and in the status of a person afflicted with flux (zab) imparts uncleanness to what he touches, the haber, and therefore m a y or m a y not have imparted to t h e m cultic uncleanness. T h e principal statements of the H a l a k h a h follow. MISHNAH-TRACTATE T O H O R O T TOSEFTA-TRACTATE T O H O R O T

7:1-8:5 8:1-9:12

M. 7:1 The potter who left his pots and went down to drink—the innermost ones are clean. And the outermost ones are unclean. He who gives over his key to an 'am ha'ares—the house is clean, for he gave him only [the charge of] guarding the key. T h e premise here is that the a m ha'ares follows orders. H e will not malicious impart uncleanness in violation of the householder's instructions. But the less observant Israelite also will not take care to avoid contaminating that concerning which he has not been instructed. So the H a l a k h a h presupposes responsibility and good will on the

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p a r t of the Israelite individual. T h e Tosefta's amplification refines matters. T. 8:1 He [the context requires: the haber] who gave a key to an 'am ha'ares—the house is unclean. [If] he gave him the [key to the] outer [room] and did not give him [the key to] the inner [room], the outer one is unclean. And as to the inner, unclean is only [the space] up to the place to which he can stretch out his hand and touch. [If] there were there shelves ten handbreadths high and niches ten handbreadths high, unclean is only [the space] up to the place to which he can stretch out his hand and touch. [If] the outer room belongs to one [person] and the inner room to another [person], even though the clean things are placed on the side of the door of the inner [room], lo, they are clean. He who enters without permission, even though he stands at the side of clean things—they are clean. And so in the case of a gentile: one does not take into consideration [the possibility of his touching things] in connection with wine used for purposes of idolatry. N o w we turn to the principle that we confirm the status quo, and in a case of doubt, we resolve matters in accord with that principle. Within the same context, we f u r t h e r m o r e assume the non-observant Israelite will not deliberately impart uncleanness hither and yon. M. 7:2 He who leaves an 'am ha'ares inside his house awake and found him awake—asleep and found him asleep—awake and found him asleep—the house is clean. [If he left him] sleeping and found him awake—unclean is only [the space] up to the place to which he stretch out his hand and touch. T. 8:2 A haber who was sleeping in the house of an 'am ha'ares, with his clothing folded up and lying under his head, and his sandals and his jug before him—lo, these are clean because they are in the presumption of being guarded. T h e same principle governs workers: M. 7:3 He who leaves workers in his house—unclean is only [the space] up to the place to which they can reach out their hands and touch. T h e Tosefta's case has the h a b e r give the other access to the entire house; or to a particular bed. T h e other is assumed to obey instructions. T. 8:3 A haber who said to an 'am ha'ares, "Go and sleep in the house" the whole house is in his domain. "Go and sleep on such-and-such a bed"—unclean is only that very bed, and the space up to which he can reach out his hand and touch from the bed. [If] he said to him, "Keep this cow for me, that it not enter the house"—"Keep this heifer for me, that it not break the utensils"—lo, these are clean, for he gave him only the task of guarding the cow alone. But if he said to him,

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"Guard this house for me that the cow should not enter it"—"Guard these utensils for me that the cow should not break them"—lo, they are unclean.] T. 8:4 The wife of an 'am ha'ares grinds [grain] with the wife of a haber when she is unclean, but when she is clean, she should not grind [wheat with her]. M. 7:5 He who leaves an 'am ha'ares in his house to guard it—when he sees those that enter and those that leave, the foods, liquids, and open clay utensils are unclean. But the couches and seats and clay utensils which are sealed with a tight seal are clean. And if he does not see either those that enter or those that leave, even if he was immobilized, even if he was tied up, everything is unclean. T. 8:7 He who leaves an 'am ha'ares in his house to guard it and this one is immobile or tied up—when he can see those that enter and those that leave unclean is only [the space] up to the place which they can make unclean. In the next case Israelite tax collectors, assumed to search through property for seizure, i m p a r t uncleanness to the house. But they will not go out of their way to impart uncleanness to objects used for sitting or lying, which would involve a special effort (sitting or lying d o w n on beds or couches. T h e y are not assumed deliberately to impart uncleanness. M. 7:6 The tax collectors who entered the house—the house is unclean. If there is a gentile with them, they are believed to state, "We did not enter.' ‫ " י‬But they are not believed to state, "We entered, but we did not touch [anything]." The thieves who entered the house—unclean is only the place [trodden by] the feet of the thieves. And what do they render unclean? The foods, and the liquids, and clay utensils which are open. But the couches and the seats and clay utensils which are sealed with a tight seal are clean. If there is a gentile with them, or a woman, everything is unclean. T. 8:5 The tax-collectors who went into the house—if they said, "We entered the house, but we did not touch anything," lo, these are believed, for the testimony which prohibited is the testimony which permitted. If there were others giving testimony concerning them that they entered the house, and they said, "We did not touch anything," they are not believed. When the pledge is in their hand, even though others do not give testimony about them, they are not believed, because the pledge gives testimony about them. If there was a gentile with them, even though the pledge is in their hand, even though the gentile gives testimony concerning them that they entered, and they said, "We did not touch anything," lo, these are believed, because the fear of the gentile is upon them. T. 8:6 The thieves who entered the house—unclean is only [the space]

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up to the place to which they can stretch out their hands and touch from the place of the robbery. M. 7:7 He who leaves his clothing in the wall niche of the bathhouse— they are not clean] unless one give him [the attendant] the key, or a seal, or unless he will make a mark. He who leaves his utensils from one vintage to the next vintage—his utensils are clean. And in the case of an Israelite, [they are not clean] unless he will testify, "In my heart was [the intention] to guard them." T. 8:8 He who leaves his utensils in the wall niches of a bath house—he locked and sealed—even though he came and found the lock open, and the seal spoiled—it is clean. The seal of which they spoke [sulfices] even if [it is] of mud, even if [it is] a spindle. He who stulfs his utensils in the wall niches of a bath house—they are unclean, because the gentile may be interrogated concerning them. In the following case, we see, attitude is everything. If a person was clean but no longer preserved the intention of remaining clean for the eating of heave-offering in a state of cultic cleanness, that change of attitude marks the m a n as unclean. M. 7:8 He who was clean, and changed his mind about eating [heave offering]—they [the foodstuffs] are unclean. [If] his hands were clean, and he changed his mind about eating, even though he said, "I know that my hands have not been made unclean/' his hands are unclean, for the hands are busy. M. 7:9 The woman who entered in to take out a piece of bread for a beggar, and she came out and found him standing by the side of loaves [of bread] of heave offering—and so, the woman who went out and found her girl friend stirring up coals under a pot of heave offering— it is clean. T. 8:9 He who purchases utensils from gentile craftsmen, and he who gives over utensils to gentile craftsmen—they are unclean with midras-uncleanness and clean of corpse-uncleanness. And he who purchases utensils from craftsmen who are 'ammé ha'ares and he who gives over utensils to craftsmen who are 'ammé ha'ares they are unclean with midrasuncleanness and unclean with corpse-uncleanness. [If] one left his utensils before an 'am ha'ares and said to him, "Guard these for me"— they are unclean with midras-uncleanness and clean of corpse-uncleanness. [If] he put them on his shoulder, they are unclean with midrasuncleanness [and unclean with] corpse-uncleanness. T. 8:11 [If] one left his utensils in the bath and came and found them as they were [originally left]—lo, these are clean. But they instruct him not to do so with clean things. [If] one left his wine-press and his cistern and entered the town, even though he came and found an 'am ha'ares beside them, they are clean. And so in the case of a gentile: One does not take into consideration the matter of wine used for the purposes of idolatry.

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T h e next rule presupposes that the outsider is unclean with corpseuncleanness but does not know it; hence he is sprinkled on the third day after the imputed contamination. But the h a b e r knows his own condition, a n d if he comes to be sprinkled with purification-water a n d alleges that the original uncleanness took place three days prior, he is believed: T. 8:12 An 'am ha'ares who came to be sprinkled—they sprinkle on him and on his utensils only after three days. But a haber who came to be sprinkled—they sprinkle on him and on his utensils forthwith. O n c e m o r e , the attitude governs the rule, a n d this is m a d e explicit: that for which the Israelite was c o n c e r n e d is assumed to have been protected f r o m contamination, that not, not: T. 8:13 [If] one was dressed in a shirt and wrapped in a cloak, and he said, "My concern was for the shirt, and my concern was not for the cloak" the shirt is clean, and the cloak is unclean. [If] a basket was on his shoulder, and a shovel was in it, [if] he said, "My concern was for the basket, and my concern was not for the shovel," the basket is clean, and the shovel is unclean. T. 8:14 [If] one was making use of the jar in the assumption that it was of unconsecrated food and afterward it was found to contain heaveoffering, lo, this is clean, and it is prohibited to be eaten, because it is a matter of doubt concerning one who has immersed on the selfsame day and awaits sunset for the completion of purification. [If] they said to him concerning that which was clean, "It is suspended"—lo, this is unclean. And if he said, "Lo, I shall leave it until I shall inquire concerning it"—lo, this is clean. T. 8:15 Unclean and clean liquids [are] in the house—they follow [the status of] the larger part. WM'SH A woman filtered unclean and clean liquids into a jar of heave-offering, and the case came before sages. And they did not declare it unclean, because she did not cease to be concerned for it. H o w do the h a b e r a n d ' a m ha'ares share a c o m m o n courtyard? As with the m a t t e r of the fictive fusion-meal or b o u n d a r y , the Halakh a h makes provision for the diversity of Israelite observance, at the same time m a k i n g possible the m a i n t e n a n c e of the high standards of sanctification d e m a n d e d of corporate Israel: M. 8:1 He who lives with an 'am ha'ares in a courtyard, and forgot utensils in the courtyard—even jars tightly sealed with a stopper, or an oven tightly sealed with a stopper—lo, these are unclean. W h e r e the H a b e r has not total control, we assume that the ' a m ha'ares will thoughtlessly c o n t a m i n a t e w h a t is left in c o m m o n prop-

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erty; he has every right to walk about there and to touch what is located in the shared domain. But this is not an act of malice, only of ordinary routine. In fact, as we shall now see at some length, we do not impute to the ' a m ha'ares any malice whatsoever. If property is signified as private, the ' a m ha'ares will not go to lengths to c o n t a m i n a t e it at all. H e will h o n o r the practices of his neighbor. T. 9:1 A haber and an 'am ha'ares who were dwelling in a courtyard and who forgot utensils in the courtyard—that which is suitable to become unclean with midras-uncleanness is [deemed to have been] made unclean with midras-uncleanness, and that which is suitable to become unclean with corpse-uncleanness is [deemed to have been] made unclean with corpse-uncleanness. This one has a Sukkah before his door, and that one has a Sukkah before his door—this one has a partition before his door, and that one has a partition before his door—this one leaves his utensils in his Sukkah, and that one leaves his utensils in his Sukkah, this one leaves his utensils by his partition, and that one leaves his utensils by his partition—all [the objects] are clean. T. 9:2 This one has a Sukkah or partition before the door of his fellow, and that one has a Sukkah or partition before the door of his fellow— this one leaves his utensils in his Sukkah or partition before the door of his fellow, and that one leaves his utensil by the Sukkah or partition before his fellow's door—lo, these are unclean, for this one has the right to enter, and that one has the right to enter. So m u c h for the household. W h a t about the market a n d the comm o n well? T. 9:3 A haber who left food and liquid on a well and went down to drink they are clean, for others do not handle them. But a haber who was selling food and liquid at the door of his shop and went inside [the shop]—lo, these are unclean, because others do handle them. H o w do we assess produce, the status of which is unclear to us? T. 9:5 A haber who died and left produce—they follow the status of the greater part of that which is brought in [to storage]. If the greater part of that which is brought in [to storage] is unconsecrated food, [the whole is regarded as] unconsecrated food, and if the greater part of that which is brought in [to storage] is heave-oifering, [then the whole is deemed] heave-oifering. W e tend to confirm the status q u o a n d affirm the prevailing status of that which is subject to doubt: T. 9:6 [If] he [a haber] left clean [foods], lo, they are [regarded as] clean [foods]. [If] he left utensils, lo, they are regarded as unclean, for I say, "They were sprinkled, but not repeated[ly sprinkled], or repeated, but not immersed, "or possibly he did not sprinkle them at all." A haber

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who died and left produce, even if on that very day he gathered them in, lo, they are in the presumption of having been properly prepared [tithed]. An 'am ha'ares who took on himself [the obligations of the haber], and who had clean foods, and who said, "It is perfectly clear to me that they have not been made unclean"—When others had been engaged therewith, they are prohibited to him and prohibited to everyone else. [If] only he himself [was engaged therewith], they are permitted to him and prohibited to everyone else. T. 9:7 A gentile who converted and who had wine and who said, "It is perfectly clear to me that it has not been made unclean"—when others were engaged therewith, it is prohibited to him and prohibited to everyone else. [If the man] himself [was engaged therewith], it is permitted to him and prohibited to everyone else. M. 8:2 He who deposits utensils with an 'am ha'ares—they are unclean with corpse uncleanness and unclean with midras uncleanness. If he [the am ha'ares] knows him [the depositor], that he eats heave offering, they are clean of corpse uncleanness but unclean with midras uncleanness. T h e m a t t e r of probabilities, which we consider in the next section, comes u p here as well: M. 8:3 He who loses something on one day and found it on the same day— it is clean. [If he lost it) by day and found it [the next] night, [lost it] by night and found it [the next] day [lost it] by day and found it on the next day—it is unclean. This is the general principle: Any object over which has passed the night or part of it [the night]—it is unclean. He who spreads out utensils [to dry]—in the public domain—they are clean. And [if he did so] in private domain—they are unclean. And if he was guarding them [in private domain], they are clean. [If] they fell, and, [having lost sight of them], he went to bring them in, they are unclean. [If] his dipper fell into the well of an 'am ha'ares and he went to get some—thing with which to get it up—it is unclean, because it rested in the domain of an 'am ha 'ares for one moment. O n c e m o r e in a case of d o u b t we confirm the status quo: M. 8:4 He who leaves his house open and found it open, locked and found it locked, open and found it locked—it is clean. [If he left it] locked, and found it open—it is clean, for there were thieves, but they changed their minds and went away. A n d once m o r e , we assume that the Israelite individual will h o n o r the c o m m i t m e n t s of the h a b e r a n d not deliberately impart uncleanness to his possessions: M. 8:5 The wife of an 'am ha'ares who went into the house of a haber to get his [the haber's] son, or his daughter, or his beast—the house is clean, because she entered without permission.

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T. 9:11 The roof of a haber is beside the roof of the 'am ha'ares—the haber lays out utensils there and leaves clean things there, and on condition that the 'am ha'ares cannot reach out his hand and touch. The roof of the haber is above the roof of the 'am ha'ares—even though the 'am ha'ares can reach out his hand and touch—the haber lays out utensils there and leaves clean things there. And so with a gentile: one does not take into consideration the possibility of wine used for idolatrous practice. T. 9:12 [If] his dipper fell into the well of an 'am ha'ares—lo, this is unclean. But it is clean when it comes up At issue for us is the relationship of the Israelite w h o observes purity in connection with ordinary food and the one who does not. T h a t area of the law allows sages to spell out their deepest convictions about how to live in a diverse society. T h e H a l a k h a h means not only to take account of the diversity of the Jews, but also to confirm a basically affirmative reading of the intentionality of all parties to the Israelite social order: fully a n d partially observant alike. Essentially we deal with sages' estimate of how people concern themselves with issues of cultic contamination, a n d that in the end testifies to the intentionality of the concerned parties. If they want to preserve the cultic cleanness of their food a n d utensils, we translate that intention into fact: we assume they have accomplished their goal. If they do not form such an intentionality, then we dismiss the possibility that purity has been maintained. T h e m a t t e r of intentionality is expressed in so m a n y words, not only implicitly, in the following; the pertinent phrase is italicized: MISHNAH-TRACTATE T O H O R O T 7 : 7

He who leaves his clothing in the wall niche of the bathhouse—they are not clean unless one give him the attendant the key, or a seal, or unless he will make a mark. He who leaves his utensils from one vintage to the next vintage—his utensils are clean. And in the case of an Israelite, they are not clean unless he will testify: "In my heart was the intention to guard them. " O n the other h a n d , if someone h a d the intentionality of eating food in the status of priestly rations a n d so was in a state of cultic purity, as soon as he changes his m i n d about doing so, we classify the m a n as unclean; once the intention changes, the consequent attitude and activity no longer suffice to preserve, by happenstance, the cleanness of the person. Either he intends to keep the purity rules a n d so is assumed to succeed, or he does not intend to keep them, a n d , sources of contamination being a b u n d a n t , we simply assign the nowthoughtless person to the status of uncleanness.

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W e should not miss what is subject to doubt. It is not only whether or not a pot has contracted uncleanness w h e n it was not watched. It is how persons are likely to behave in situations w h e n they are not supervised. A n d the problematics of the law finds definition in the question: to what extent do those at the u p p e r side of the hierarchy of sanctification impute good faith to people at the lower end of the same hierarchy, that is, those w h o in the household observe purity-laws only at specified times and occasions but not all the time? W h a t the H a l a k h a h has shown is now self-evident. People will not touch a n d so c o n t a m i n a t e what is not theirs, especially if they are w a r n e d not to do so: T h e w o m a n w h o entered in to take out a piece of b r e a d for a beggar, a n d she c a m e out a n d f o u n d him standing by the side of loaves of b r e a d of heave offering still has cultically-clean loaves. T h a t is so in certain transactions. But if someone takes the view that he has every right to utilize a n area, then he is assumed to h a n d l e whatever is lying about. H e n c e in a courtyard shared with an ordinary person, all utensils that are left forgotten there are assumed to be h a n d l e d by that person a n d so to be c o n t a m i n a t e d . If, by contrast, the ordinary person is w a r n e d of the concerns of the observant one, he is assumed to take ordinary precautions. H e will not expose to corpse-uncleanness what belongs to the observant person, but he m a y well sit d o w n on his garments or other utensils or step on t h e m , with the result that they contract pressure (midras) uncleanness: H e w h o deposits utensils with an 'am ha'ares—they are unclean with corpse uncleanness a n d unclean with midras uncleanness. If the 'am ha'ares knows him the depositor, that he eats heave offering, they are clean of corpse uncleanness but unclean with midras-uncleanness. T h e key here, revealing the Halak h a h ' s basic premise a b o u t the good faith a n d good will of the outsider, is the knowledge a n d the assumed response to that knowledge exhibited by the 'am ha'ares. T h e H a l a k h a h rests on the foundations of a single condition: Israel is holy, wherever located; that is its n a t u r a l condition. W h a t removes Israel f r o m its status as sanctified is u n n a t u r a l to Israel, but a given of the world. Sanctification is the established condition for family a n d property (food, drink, clothing, utensils). W h a t removes the family, its food, drink, clothing a n d utensils, f r o m the status of sanctification interferes with what ought to be natural. Sources of uncleanness also come about by nature; sages a d h e r e rigidly to the definition of those sources that Scripture establishes a n d do not add

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a single new source or extend an existing source in any consequential way (a j u d g m e n t that will be modified only slightly when we come to the H a l a k h a h of Niddah). Holy Israel, then, confronts r o u n d about the sources of c o n t a m ination; its task is constantly to r e m a i n alert a n d watchful, lest those contamination affect Israel. And, we now see, that means, Israel must watch not only what it eats and drinks a n d wears and where it stands a n d sits a n d lies. Israel also must pay attention to what the food it eats m a y have touched, who m a y have stood or sat upon the clothing that it wears a n d the beds on which it takes a rest. T o preserve the condition it ought always to enjoy, which is, the state of sanctification, Israel has then to maintain a constant surveillance of the present and past of the world in which it lives and the people a m o n g w h o m it makes its life. M a r r y i n g without carefully investigating the genealogy of the Israelite family into which one marries can produce M a m z e r i m , a n d sitting on a bench without finding out who has sat there before can p r o d u c e uncleanness that can c o n t a m i n a t e m u c h else, a n d eating a piece of b r e a d without knowing where it has been a n d w h o has touched it can diminish one's standing in the hierarchy of sanctification.

IV. Interstitiality: Dealing with Matters of Doubt. Tohorot Resolving cases of d o u b t involves an assessment of what is likely to h a p p e n , that is, forming a theory of probabilities. T h e governing principles in determining matters of probability prove few, but sufficient for a b r o a d variety of cases. First, as we have already noted, we confirm the status q u o whenever possible. So too, we rely u p o n evidence interpreted in a commonsense way. We deal with ordinary persons, not virtuosi of the H a l a k h a h . In the present context it is the one w h o most of the time, except for the menstrual taboo, does not observe the purity laws in his household as these extend to the cultic status of food a n d drink. H o w such a person is assumed to conduct himself in relationship to the food and utensils of a virtuoso of the H a l a k h a h , who does keep those laws, is at issue. A fine example of how that works is in the following:

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MISHNAH-TRACTATE T O H O R O T

7:4

The wife of a haber who left the wife of an 'am ha'ares grinding [grain] in her house—[if the sound of] the millstones ceased—the house is unclean. The millstones did not cease—unclean is only [the space] up to the place to which she can reach out her hand and touch. [11] they were two, one way or the other [whether or not the grinding ceased], unclean is only [the space] up to the place to which they can reach out their hands and touch. If the wife of the o r d i n a r y person stops grinding, we assume she touches whatever is at h a n d anywhere in the house. If she keeps grinding, we assume she touches only what she can reach f r o m her place at the grindstone. Second, where the ordinary person has no instructions, he will not take heed of those concerns important to the one who observes cultic cleanness even in connection with everyday food. But where there are instructions, the ordinary person will follow instructions faithfully a n d m a y be relied u p o n . T h a t distinction, between the ordinary person who is u n d e r no charge a n d the one w h o has been given a responsibility, is expressed in simple a n d in complex rulings. W e recall the simple case: " H e w h o gives over his key to an 'am ha'ares— the house is clean, for he gave him only the charge of guarding the key." N o w what the H a l a k h a h expresses is confidence in the good faith of the 'am ha'ares. But where no one is in charge, then we take for granted w h a t can contract cultic uncleanness ordinarily will do so. T h u s if the potter leaves the pots, the ones that people can h a n die, at the outside, are assumed to be unclean, the ones that people cannot reach retain their prior status. T h r o u g h the H a l a k h a h the sages set forth their confidence that people exhibit good will for the concerns of their neighbors, and if informed, they will avoid imparting uncleanness to their neighbors' property. N o w let us b r o a d e n the discussion of matters of probability, beyond the limits of the j u d g m e n t as to the character of Israelite individuals w h o are not fully observant by the standards of sages' theory of corporate Israel. Reckoning with how to sort out and resolve cases of doubt affecting food invites sages to lay forth their j u d g m e n t s on matters of probability. T h e first principle, confirm the status quo, governs most of the time. Food a n d utensils subject to uncleanness are a d j u d g e d in accord with their condition at the m o m e n t that they are found. W h e n

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an unclean thing has a place, a m a t t e r of doubt affecting that place is resolved as unclean; when not, not. T h e second is, where one m a y find grounds for a ruling in favor of cleanness, the decision should rest on those grounds. W h e r e there are grounds to assume something is unclean, e.g., proximity to a grave area, to dirt that comes f r o m a b r o a d , to clothing of a n Israelite w h o does not keep the purity laws, a n d the like, we treat what is subject to doubt as having been c o n t a m i n a t e d , and so, if that is food in the status of heave offering, we b u r n the food. O n the other h a n d , sages resolve as clean conditions of d o u b t concerning a variety of less weighty matters, e.g., unconsecrated food (not heave offering), matters of d o u b t concerning the hands, matters of d o u b t concerning rulings of the scribes (at a lower level of authority t h a n those of the T o r a h itself), a n d the like. This is a variation of the first principle. T h i r d , we rely on the most likely outcome; we assign a doubtful case to the condition of the majority of pertinent cases or persons; where one doubt piles up u p o n another, we resolve doubt in favor of cleanness w h e n public d o m a i n is involved, uncleanness w h e n private d o m a i n is involved. T h i s too refines our opening criterion. But, fourth, we take full account of peoples' sensibility, meaning, they are assumed to pay attention to what they touch and where they walk or sit. If they can be interrogated a n d cannot give a reason to assume something has not been c o n t a m i n a t e d , that testimony to thoughtlessness suffices to rule unclean the m a t t e r subject to doubt. T h e y must be p r e p a r e d to state in positive terms that they have grounds for maintaining food has not been c o n t a m i n a t e d , as in the following exemplary instance: TOSEFTA-TRACTATE T O H O R O T 4 : 8

A person went into an alley and made dough, and afterward a creeping thing was found—and the person said, "If it were here, I would have seen it"—it is unclean, until he will state, "It is clear to me that it was not here beforehand." H e r e again, what intervenes is the householder's own attitude toward these matters: is he alert a n d careful, or mindless a n d careless? N o w attitude and intentionality form the foundation for assessing probabilities on what might have h a p p e n e d . T h e same basic tendency to confirm the status q u o explains the principle that what is dragged is assumed to have been c o n t a m i n a i ed, but what is thrown, not. But other considerations enter in. T h e

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first of these is the distinction between public d o m a i n a n d private d o m a i n . A m a t t e r of doubt concerning what is in public d o m a i n is resolved as clean, in private d o m a i n , unclean. T h a t is to say, within the household itself, people are expected to pay extra care to avoid sources of uncleanness. In the public domain, where matters are more difficult—but the stakes m u c h lower—matters of doubt are resolved as unclean. T h a t decisions are guided by circumstance a n d relationship, not by intrinsic considerations, is m a d e explicit time and again, e.g., a m o n g m a n y cases: A place which was private d o m a i n a n d b e c a m e public d o m a i n a n d once again was m a d e private d o m a i n — when it is private domain, a matter of doubt concerning it is deemed unclean. W h e n it is public d o m a i n , a m a t t e r of d o u b t concerning it is clean. So again we find no trace of a fixed a n d physical foundation to the m a t t e r of uncleanness; all things are relative, each in its context. H e r e is the Halakhic account of the resolution of cases of doubt in matters of uncleanness: M I S H N A H - T R A C T A T E T O H O R O T 3 : 5 - 6 : 9 , PASS. TOSEFTA-TRACTATE T O H O R O T

3:5-7:11

PASS.

M. 3:5 All unclean things [are adjudged] in accord with [their condition] at the moment that they are found. (1) If they are [appear to be] unclean, they are unclean; and (2) if they are clean, they are clean; (3) if they are covered up, they are covered up; and (4) if they are uncovered, they are uncovered. A needle which is found full of rust or broken is clean. For all unclean things [are adjudged] in accord with [their condition] at the moment that they are found. T h e M i s h n a h commences with governing principles, and, as we now see, the Tosefta makes matters concrete: T. 3:5 If an olive's bulk of corpse-matter was lost in the house—they sought and did not find it—the house is clean. When it will be found, the house conveys uncleanness retroactively. T. 3:6 The woman is raking stubble in the courtyard and a dead creeping thing is found inside the stubble—she is clean. [If it is found] on top of the stubble, she is unclean. [If] she was winnowing wheat in a sieve and a creeping thing is found in the sieve, she is clean. [If it is found] on top of the sieve, she is unclean. T h e next generalization concerns the possibility of interrogating a p a r t y to the case. If we can do so, we resolve matters of d o u b t in favor of uncleanness, in the theory that, if the person of sound senses is alert, he will know that he has not been c o n t a m i n a t e d , a n d if not—if he c a n n o t be i n t e r r o g a t e d — h e will not know that fact.

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M. 3:6 A deaf-mute, an imbecile, and a minor who are found in an alley in which is uncleanness, lo, these are assumed to be clean. But any person of sound sense is assumed to be unclean. And whoever lacks understanding to be interrogated—a matter of doubt concerning him is resolved in favor of cleanness. T. 3:7 A child who was holding on to his father's hand or was riding on his father's shoulder—a matter of doubt concerning him is unclean, because his father may be interrogated about him. A deaf-mute, an imbecile, and a child—a matter of doubt concerning them is clean, because they do not have intelligence to be interrogated. T. 3:11 A blind man and one who is sleeping and one who walks by night matters of doubt which concern them are resolved in favor of cleanness, because they have intelligence to be consulted. An ass which was standing in a clean place, and it is possible for him to pass over into an unclean place—utensils which are on him are clean. Children's' habitual modes of play are taken into account. T o begin with, we accord the benefit of the d o u b t . But if there is sound reason to rule in favor of uncleanness, the H a l a k h a h does so, thus M.

3:8:

M. 3:7 A child who is found on the side of a graveyard, and lilies are in his hand, and lilies are [located] only in the place of the uncleanness is clean, for I say, "Someone else gathered them and gave them to him." And so an ass among the graves—his utensils are clean. M. 3:8 A. A child [who is unclean] who is found at the side of the dough and the dough is in his hand—it is declare unclean, for it is the way of the child to slap [dough]. Dough which had on it marks of hens' [beaks], and unclean liquids are in the house, if there is between the liquid and the loaves sufficient [space] for the hens to dry off their beaks in the ground, lo, these are clean. And in the case of the cow and in the case of the dog—sufficient space in which they may lick their tongue. And in reference to all other cattle, sufficient space in which they may dry themselves. T. 3:12 A child who is found standing at the side of a basket of dough— [or] at the side of a jar of liquids—it is unclean, for it is the way of a child to slap [dough]. N o w the m a t t e r of doubts concerning children is systematized: T. 3:8 Four [stages of] doubts have the sages stated in connection with the minor: [If] his mother left him and came and found him as he was, he is clean. T. 3:9 [If] he began to go out and come in, his clothing is clean. But they do not prepare clean things depending upon his being clean. And Israelites did not refrain from this point [onward]. [If] he has intelligence to be consulted about his condition, a matter of doubt concerning

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him in private domain is resolved in favor of uncleanness; in the public domain, it is resolved in favor of cleanness. T. 3:10 [If] he knew how to keep his body food which is on his body is clean. [If he knew how] to keep his hands, food which is on his hands is clean. And how do they examine him? They immerse him and give him unconsecrated food, saying that it is heave-offering. If he knows how to guard his body, food which is on his body is clean. [If he knows how] to guard his hands, food which is on his hands is clean. H e r e are cases in which f u r t h e r classifications of matters of d o u b t are resolved as clean: M. 4:1 He who threw something unclean from place to place—a [clean] loaf of bread among [unclean] keys—an [unclean] key among the [clean] loaves of bread—it is clean. T. 3:14 Whatever is suspended and whatever is dragged—matters of doubt concerning them are resolved in favor of uncleanness because they are [regarded] as if they were lying. And whatever is thrown—a matter of doubt concerning it is clean; except for an olive's bulk of corpsematter, and whatever overshadows—they convey uncleanness from above as from below. But if something clean was thrown over an olive's bulk of corpse-matter—it is clean. M. 4:2 The creeping thing is in the mouth of the weasel, and it [the weasel] walks on loaves of heave offering—there is doubt whether or not it [the creeping thing] touched [the loaves]—its matter of doubt is deemed clean. In the following case, if there is no place to put down the source of uncleanness, we assume it has not been put down: M. 4:3 The [dead] creeping thing is in the mouth of the weasel—and a bit of carrion is in the mouth of the dog—and they passed among clean things, or clean things [or: people] passed between them, their matter of doubt is deemed clean, because the unclean thing has no place. [If] they were picking at them while [these lay] on the ground—and a person said, "I went to that place, but I do not know whether I touched or whether I did not touch"—his matter of doubt is deemed unclean, because the unclean thing has a place. In the following amplification, the generally prevailing attitude of leniency is qualified slightly. If it is not possible that contamination has not taken place, we of course accept the fact. T. 4:1 [If a person] was wrapped in his cloak, with unclean things and clean things at his side, and unclean things and clean things above— there is doubt whether he touched or did not touch—his matter of doubt is deemed clean. And if it is not possible for him [not to come] into [contact] his matter of doubt is deemed unclean. (How so?) [If] there was a creeping thing suspended between the walls, and it is not

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possible to pass without touching—[if there] is doubt whether one touched or whether one did not touch his matter of doubt is deemed clean. And if it is not possible [to pass] there [without touching] his matter of doubt is deemed unclean. T. 4:3 [If] there was a [live] creeping thing suspended between the walls one rubbed against it, and it fell on his garments or on a loaf of heaveoffering—it is clean. And if they found it dead before him, it is unclean. And if they saw it that it was alive between the walls, even though one found it dead before him, it is clean. [If the dead creeping thing] rested on his shoulder, lo, this one is unclean. We furthermore invoke a range of possibilities that will weigh in favor of a decision of cleanness, as in the following formulation: T. 4:4 A loaf of heave-offering which was placed on top of the board something unclean with midras-uncleanness is set beneath it—and it is not possible for it [the loafj to fall without touching that which is unclean with midras-uncleanness—and one came and found it on top of something else which is unclean with midras-uncleanness— it [the loaf] is clean. For I say, "Another person took it and placed it on that place." And if one said, "It is clear to me that no man has come here," it is unclean. T. 4:5 A creeping thing in the mouth of the weasel and it walks on top of loaves of heave-offering—it touches it- there is a doubt whether it is alive or whether it is dead it is clean. Under what circumstances? When it took it and went on its way. But if one found it dead in its mouth—if one saw it alive in its mouth—even though it [then] is found dead in its mouth—it is clean. T. 4:7 The creeping thing is in the mouth of the chicken—and a bit of carrion is in the mouth of the dog—they pass through the courtyard— they do not convey uncleanness retroactively. For I say, "From some other place did they bring them." [If] they were pecking at them on the ground, they do convey uncleanness retroactively. T h e Tosefta's improvement is to insist that we resolve a case of doubt only on grounds of explicit claims of certainty. If someone can say, "It is clear to m e . . . , " then the doubt is resolved—but that is because it is removed. T. 4:8 A person went into an alley and made dough, and afterward a creeping thing was found—and the person said, "If it were here, I would have seen it"—it is unclean, until he will state, "It is clear to me that it was not here beforehand." Lo, he who immersed and went up, and afterward there was found on him something which interposes [between his flesh and the water], even though he was occupied with that very sort of thing after he immersed, lo, this one is unclean, until he will state, "It is clear to me that it was not on me before hand." T. 4:9 A grave which is discovered conveys uncleanness retroactively. If

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a person came and said, "It is clear to me that it was not here twenty [years ago]," it is unclean only from the time that it was discovered and thereafter. T. 4:10 An unclean olive-pit which was found inside a loaf on top of a boiling stew, even though flowing liquid is not on it [the pit], it [the loaf] is unclean. [II] it was discovered on top of a loaf inside of a cold broth, even though there is flowing liquid on it, it is clean. This is the general principle: Whatever is discovered in something which is boiling, even though there is running liquid on it, is unclean. Whatever is found in something which is boiling, even though there is no flowing liquid on it, is unclean. [If] it is found in a loaf in a cold broth, even though there is flowing liquid on it, it is clean. A pit which is in the house—they follow the majority. M. 4:4 An olive's bulk of corpse matter is in the mouth of the raven— there is doubt whether it overshadowed the man and the utensils—in the private domain—the doubt concerning the man is deemed unclean; the doubt concerning the utensils is deemed clean. He who draws with ten buckets, and a creeping thing is found in one of them—it is unclean, and all [the rest of] them are clean. He who empties from utensil to utensil and a creeping thing is found in the lower one—the upper one is clean. Food in the status of heave-offering that has been r e n d e r e d unclean is to be b u r n e d , not eaten. But if its status is subject to doubt, then b u r n i n g food in that status involves destroying Holy Things without good reason. In the following cases of d o u b t , the d o u b t is resolved, nonetheless, in favor of destroying the food: M. 4:5 On account of six matters of doubt do they burn heave offering: 1. concerning a doubt in regard to a grave area; 2. and concerning a doubt in regard to dirt which comes from abroad; 3. because of a doubt concerning the clothing of an 'am ha'ares; 4. and because of a doubt concerning utensils which were found; 5. because of a doubt concerning drops of spit which were found; 6. because of a doubt concerning human urine that was nearby the urine of a beast—because of certainly touching them, which is a matter of doubt in respect to their [imparting] uncleanness, they burn the heave offering. [Because of a doubt about having touched them] in the private domain, they leave it in suspense. And in the public domain, it is clean. T. 11:14 A dead creeping thing which is found floating on the rim of the cistern of a vat for heave-offering—its matter of doubt is deemed unclean. [If it is doubt as to] the workers, the matter of doubt is deemed clean, because it is a matter of doubt concerning that which floats. Matters of doubt in private property are resolved in favor of uncleanness, in public property, cleanness: M. 4:6 Two [drops of] spit—one unclean, and one clean—they suspend

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[a decision on the status of what as affected by them, in this wise: (1) on account of having touched them, and (2) on account of having carried them, and (3) on account of having moved them—in private property; and on account of having touched them in public property—-when they are moist; and on account of having carried them, whether they are moist or whether they are dry. [If] there was a single drop of spit and one touched it, and carried it, and moved it in public domain—they burn the heave offering on its account, and it is hardly necessary to rule, [if one did so] in private property. T. 4:11 Flax which a menstruating woman has spun—he who moves it is clean. And if it was moist, he who moves it is unclean, because of the liquid which is in his [better: her] mouth. T h e classification of mixtures has its own range of established principles, which are spelled out in the next entry: T. 5:1 Unclean blood which was mixed with clean blood—they regard it as if it were wine in water. If its color is diluted, it is clean, and if not, it is unclean. Unclean spit which was mixed with clean spit—they regard it as if it were water. If its color is diluted, it is clean; and if not, it is unclean. [If] it fell into water, [if] it remains cohesive, it is unclean. [II] it dissolved, if its taste and its color are diluted, it is clean, and if not, it is unclean. T. 5:2 Urine which was mixed with wine—they [do not] regard it as if it were water. [If] it was mixed with water, they regard it as if it were wine. If its color is diluted, it is clean, and if not, it is unclean. Urine of a gentile [mixed with other urine]—they follow the status of the majority [of the mixture], T. 5:3 They purchase and borrow urine from any source, and they do not take account of the possibility that it derives from menstruating women, for the daughters of Israel are not suspected of collecting their urine when they are menstruating. The chamber pot of a Zab and of a Zabah—the [water of] the first and of the second [washings of the pot] convey uncleanness. The [water of the] third [rinsing] is clean. Under what circumstances? When he put water into it. But when he did not put water into it [but washed it with urine]—even up to the tenth [rinsing]—it is unclean. By contrast to the cases catalogued at M. 4:5, the following cases of doubt are resolved in favor of cleanness: M. 4:7 These are [conditions of] doubt which sages have declared clean: 1. A doubt concerning drawn water [that falls into] the immersion pool. 2. A doubt concerning uncleanness floating on the surface of the water. 3. A doubt concerning liquids, in respect to contracting uncleanness— it is unclean. [A doubt concerning liquids, in respect to] conveying uncleanness—it is clean. 4. A doubt concerning hands, either in respect to contracting uncleanness, or in respect to conveying unclean-

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ness, or in respect to being made clean—it is clean. 5. A doubt concerning public domain. 6. A doubt concerning rulings of the scribes. 7. A doubt concerning the unconsecrated food. 8. A doubt concerning creeping things. 9. A doubt concerning plagues. 10. A doubt concerning Naziriteship. 11. A doubt concerning firstlings. 12. A doubt concerning sacrifices. In its highly systematic m a n n e r , the M i s h n a h with the Tosefta's assistance now spell out these governing principles for resolving doubt in favor of cleanness. I review some of the illustrative entries. T. 5:6 And just as they declared clean a matter of doubt concerning uncleanness floating on the surface of the water, whether it is in utensils or whether it is on the ground, so they have declared clean a matter of doubt concerning cleanness floating on the surface of the water, whether it is in utensils or on the ground—how so? A trough which is unclean with corpse-uncleanness—a loaf of heave-offering wrapped in bast or wrapped in paper is in it and the rains came and it was filled up, and it [the loaf-wrapper] is unfolded [by the flow's force] lo, this [loaf] floats on the surface of the water—there is doubt whether it touched the sides of the trough or whether it did not touch—its matter of doubt is deemed clean, because it is a matter of doubt concerning something clean which was floating. T. 5:8 And what is the doubt concerning creeping things which the sages declared clean? This is a matter of doubt concerning things which are thrown. And he who eats heave-offering which is suspended is clean. And any one whose matter of doubt is deemed clean—a matter of doubt concerning its offspring is clean. Anything the matter of doubt concerning which is unclean, a matter of doubt concerning its offspring likewise is unclean. M . 4:7 is taken up in the following: M. 4:9 A doubt concerning liquids to contract uncleanness is deemed unclean—how so? An unclean person who put out his foot among clean liquids—it is a matter of doubt whether he touched or did not touch— his matter of doubt is deemed unclean. [If] there was an unclean loaf of bread in his hand, and he threw it among clean liquids—it is a matter of doubt whether it touched or whether it did not touch—his matter of doubt is deemed unclean, And to convey uncleanness—it is clean— how so? [If] there was a staff in his hand, and on the end of it are unclean liquids, and he threw it among clean loaves—it is a matter of doubt whether it touched or whether it did not touch—its matter of doubt is deemed clean. T h e next amplification moves forward: M. 4:10 A matter of doubt in respect to liquids—in what concerns food, it is unclean, and in what concerns utensils, it is clean. How so? Two

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jars, one is unclean and one is clean—and one made dough [with water] from one of them—it is a matter of doubt whether he made it from the unclean or whether he made it from the clean—This is [the matter of which it is said]: A matter of doubt concerning liquids- if it has to do with foods, it is deemed unclean, and if it has to do with utensils, it is deemed clean." T. 5:11 A staff which is full of unclean liquids and one threw it among clean loaves—it is a matter of doubt whether it touched or whether it did not touch this is not the matter of doubt concerning liquids about which sages have disputed. But what is the matter of doubt concerning liquids about which sages have differed? Two jars—one unclean, and one clean—·it is a matter of doubt whether he made the dough from the unclean water or whether he made the dough from the clean water—this is the matter of doubt concerning liquids: [if it concerns] foods, it is unclean. And [if it concerns] utensils, it is clean. T. 5:12 [If] one went into an alley and prepared dough, and afterward a creeping thing was found there—it is a matter of doubt whether he touched or whether he did not touch it—a matter of doubt concerning foods and liquids is deemed unclean; and [a matter of doubt concerning] utensils is deemed clean. And one who had immersed on the selfsame day who put his hand into the airspace of a jar—it is a matter of doubt whether he touched or whether he did not touch—concerning foods and liquids, the doubt is deemed unclean, and concerning utensils, it is deemed clean. T h e issues of doubt, in the original list, are further amplified: M. 4:11 A matter of doubt concerning the hands, to contract uncleanness and to convey uncleanness and to be made clean—it is clean. A matter of doubt having to do with the public domain is deemed clean, A matter of doubt having to do with the rules of scribes—One ate unclean foods, drank unclean liquids—his head and the greater part of his body come into drawn water—or three logs of drawn water fell on his head and on the greater part of his body‫ ־‬a matter of doubt concerning him is deemed clean. But in respect to something which is a Father of Uncleanness, and it [the uncleanness at the level of the Father] derives from the rulings of scribes—its matter of doubt is deemed unclean. M. 4:12 A matter of doubt concerning the unconsecrated food this has to do with the cleanness of abstinence [Perishut, alt.: Pharisaism(!)]. A matter of doubt having to do with creeping things—it is adjudged in accord with their condition when they are found. A matter of doubt having to do with plagues—in the first instance, it is clean, before it has been subjected to a ruling of uncleanness. Once it has been subjected to a ruling of uncleanness, a matter of doubt concerning it is deemed unclean, A matter of doubt concerning Naziriteship—it is permitted. A matter of doubt concerning firstlings—all the same is the rule for the first-born of man and the first-born of cattle, whether

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unclean or clean, for: he who would take something away from his fellow, upon him is the burden of proof. M. 4:13 A matter of doubt concerning sacrifices—a woman suffered five miscarriages that were in doubt—five fluxes that were in doubt—she brings a single offering, and eats sacrifices, and the remainder is not an obligation for her. As is its way, the Tosefta having clarified the cited passages of the Mishnah proceeds to complement the repertoire of the Halakhah with free-standing illustrations. T h e s e show us in concrete ways how the principles just now set forth actually function. T. 5:13 Two jars, one unclean and one clean—and they were broken, and [the liquids therein] came onto clean things—it is a matter of doubt whether it is [liquid of the] unclean [jar] or whether it is [liquid of the] clean—a matter of doubt concerning foods and liquids is deemed unclean; [a matter of doubt concerning] utensils is deemed clean. A jar which is half filled with clean liquids and liquids fell into its airspace—it is a doubt whether they are clean or whether they are unclean—the liquids [in the jar] are clean, for they convey uncleanness only on account of the jar. [If] they fell on liquids [in the jar], the liquids are unclean, but the jars are clean. T. 5:14 [If] one baked a loaf of bread in an oven, and liquids fell into its airspace—it is a matter of doubt whether they were unclean or whether they were clean—the bread is clean, because it is made unclean only on account of the oven. [If] they fell on the loaf of bread, the bread is unclean, and the oven is clean. T h e next case shows how we assess probabilities. Essentially, if we can declare something clean, we do, but if there is no possibility that something has not been affected, it is classified as unclean: T. 5:15 He who sprinkles his house with unclean water, and there were clean things there—it is a matter of doubt whether it [the water] splashed or whether it did not splash—its matter of doubt is deemed clean. [If] it is not possible for him to [sprinkle unless the water does touch the clean things], its matter of doubt is deemed unclean. T. 5:16 A person who launders his garment—and washes his hair—and boils his flax—and there were clean things there—it is a matter of doubt whether they are unclean or whether they are clean, their matter of doubt is deemed clean. [If] it is not possible for him [to do so without splashing]—its matter of doubt is deemed unclean. T. 5:17 [If] a person splashed unclean and clean liquids in the house and afterward liquids were found on a loaf of heave-offering—and [if] one took it [forthwith] to inquire concerning it, lo, this is clean. [If] he waited for it until it dried off, lo, this is unclean.

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E n o u g h of a sample has been set forth to allow for some generalizations. W e resolve d o u b t as to the classification of food a n d drink by appeal to a variety of probabilities. It is more probable that the status q u o has prevailed t h a n that it has not; it is m o r e probable that what is dragged, a n d so can touch something, has touched the thing t h a n that what is tossed, and so cannot touch, has m a d e contact with that the status of which is uncertain. C o m m o n sense about the m o r e or the less probable, however, is joined to certain principles that app e a r to be arbitrary. Because we want the householder to maintain a high state of alertness concerning sources of uncleanness, we declare that cases of doubt in private p r o p e r t y are treated as unclean. Because the public d o m a i n contains m a n y imponderables and cannot be closed off to the faithful, we declare cases of doubt in public property to be treated as clean. N o w that position is counter-intuitive, since in the public domain circulate gentiles, whose persons and secretions are by definition severely unclean, as well as Israelites w h o do not keep this aspect of the H a l a k h a h . And, given the distractions of crowds, one is m o r e likely there t h a n in private d o m a i n to step on unclean spit or urine deriving f r o m gentiles. And w h o is to know the "history" of an object—what the one who touched it has touched, a n d w h a t that has touched, b a c k w a r d for however m a n y removes from the initial source of uncleanness? Reason therefore suggests that a case of d o u b t in public d o m a i n should be resolved in favor of uncleanness, a n d in private, cleanness. So here the system concerns itself with its larger goal—sanctifying the household a n d its table— a n d mitigates its m o r e extreme possibilities. W h e r e people can and should take care, they are held to a high standard. W r here circumstances make difficult a constant state of alertness amid a b a r r a g e of occasions for contamination, they are not. T h e H a l a k h a h rests on the foundations of a single condition: Israel is holy, wherever located; that is its natural condition. W h a t removes Israel f r o m its status as sanctified is u n n a t u r a l to Israel, but a given of the world. But individual Israelites m a y or m a y not be sanctified, a n d w h a t removes t h e m f r o m their status as clean is c o m m o n to their condition. Sanctification is the established condition for family a n d property (food, drink, clothing, utensils). W h a t removes the family, its food, drink, clothing a n d utensils, from the status of sanctification interferes with w h a t ought to be n a t u r a l . Sources of uncleanness also c o m e a b o u t by nature; sages a d h e r e

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rigidly to the definition of those sources that Scripture establishes and do not a d d a single new source or extend an existing source in any consequential way (a j u d g m e n t that will be modified only slightly when we come to the H a l a k h a h of Niddah). C o r p o r a t e Israel, t h e n , c o n f r o n t s r o u n d a b o u t the sources of contamination; its task is constantly to r e m a i n alert a n d watchful, lest those sources of c o n t a m i n a t i o n affect Israel. And, we now see, that means, the Israelite must watch not only what he eats and drinks a n d wears a n d where he stands a n d sits and lies. T h e Israelite also must pay attention to what the food he eats m a y have touched, who m a y have stood or sat u p o n the clothing that he wears a n d the beds on which he takes a rest. T o preserve the condition it ought always to enjoy, which is, the state of sanctification, the Israelite has then to maintain a constant surveillance of the present a n d past of the world in which it lives a n d the people a m o n g w h o m it makes its life. M a r r y i n g without carefully investigating the genealogy of the Israelite family into which one marries can p r o d u c e Mamzerim, and sitting on a bench without finding out w h o has sat there before can p r o d u c e uncleanness that can c o n t a m i n a t e m u c h else, a n d eating a piece of b r e a d without knowing w h e r e it has been a n d w h o has touched it can diminish one's standing in the hierarchy of sanctification. Individual intentionality time a n d again f o r m s the t a x o n o m i c indicator of cleanness or uncleanness. W e have seen that fact everywhere. Intentionality marks a person as alert to the possibilities of contamination. N o w we see the context in which the texts that invoke intentionality find their place, the reason that the entire system treats cleanness a n d sanctification, or uncleanness a n d desacralization, as relative to the individual Israelite's attitude and will. W h a t the Israelite values as food receives or conveys uncleanness as food. W h a t he does not value does not contract or transmit uncleanness; only that to which an Israelite to begin with pays attention counts for anything in the system of watchfulness with which we deal. W h a t the Israelite values as a useful utensil may contract uncleanness. W h a t the Israelite deems an essential p a r t of a piece of fruit or vegetable is integral to the fruit or vegetable, adds to its volume, contracts from, or transmits to, the fruit or vegetable such uncleanness as takes effeet. W h a t the Israelite holds inedible or disgusting even for dog-food does not contract uncleanness as food. W h e n the Israelite subjects to the cleanness-regulations of consecrated food what is merely ev-

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eryday edibles, the rules of consecrated food pertain—even though the substance of the food is unchanged. In these and numerous other details the relativity of all things to intentionality comes to full and rich instantiation. So the H a l a k h a h manages to say the same thing about m a n y things.

V. Intentionality: Where Israelite and Corporate Israel Cohere W h a t we have seen in the details of the law yields a massive generalization: Rabbinic J u d a i s m tolerates deviation from the norms of corporate Israel when deviant actions do not express a rebellious attitude and do not e m b o d y the intention to defy the T o r a h . T h a t is where individuality reaches the outer limits of the system's n o r m . Beyond is the line of rebellion against G o d , setting one's own will in opposition to God's, as A d a m and Eve did in Eden, a n d that deliberate conflict of wills Rabbinic J u d a i s m will not tolerate. Wehere Israelites within corporate Israel to not conform to the law, it is in details of an otherwise-obedient pattern of life, on the one side, or within a pattern of amiable good will, on the other. T h e Halakhah of D e m a i illustrates the former matter, that of T o horot, the latter. As to Demai, we have seen that the law affirms: Israelites generally tithe. Some individuals, haberìm, distinguish themselves by meticulous provision of the last details of the priestly share of the crop. T h e y , moreover, attain the virtue of attending not only to their own food but to that which they supply to others; they distinguish themselves individually by the responsibility that they undertake for the community at large. H e r e corporate Israel figures in the definition of virtue. Some individuals—a great many, the law takes for granted, called ammé ha'ares—conform to the law in general a n d give the principal offerings, but they do not necessarily give the tithe of the Levite's tithe to the priest that the law requires. T h a t they keep the basics indicates an attitude of responsibility for the condition of not only themselves but corporate Israel in the Land. Not doing so is to be regretted, but it is not a brazen violation of the law of tithing. So the Halakhah of Demai focuses not on the lawviolation by the individual but on the way in which other individuals virtuously take responsibility for others. N o one imputes to the ammé ha'ares an attitude of rebellion against God, only slovenliness, ignorance, or benign indifference.

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T h e H a l a k h a h of T o h o r o t goes over the p a r a d i g m defined in the H a l a k h a h of Demai, rules for the few w h o keep the law meticulously in the c o m p a n y of the m a n y who keep the law but not meticulously. T h e issue now is eating secular food, in the household, in accord with the rules governing the eating of priestly rations of the priests. T h e H a l a k h a h takes for granted that when Israelites ascend to J e r u s a l e m for the pilgrim festivals, Passover, Pentecost, a n d T a b ernacles, they all enter into the condition of purity required for participation in the cult, e.g., for eating Holy Things, shared with the altar. Since on the festivals they will eat a share of the festival offering they are obligated to present (Hagigah) a n d supplementary offerings as well, they conform to the purity laws. But when they are at home, the Halakhah assumes, most people do not keep those laws. An act of will on the part of some Israelites takes effect: they eat their secular food within the discipline of the priests eating their rations. This is expressed in the following language, given in italics: MISHNAH-TRACTATE T O H O R O T 2 : 2 ,

6

M. 2:2 He who eats food unclean in the first remove and food unclean in the second remove is unclean in the second remove. (2) [He who eats food] unclean in the third remove is unclean in the second remove so far as Holy Things are concerned, (3) and is not unclean in the second remove so far as heave offering is concerned—in the case of unconsecratedfood which is prepared in conditions of cleanness appropriate to heave offering. M. 2:6 Unconsecrated food: in the second remove renders unconsecrated liquid unclean and renders unfit foods of heave offering. Heave offering: at the third remove renders unclean liquid of Holy Things and renders unfit foods of Holy Things, if it [the heave offering] was prepared in conditions of cleanness pertaining to Holy Things. But if it was prepared in conditions pertaining to heave offering, it renders unclean at two removes and renders unfit at one remove in reference to Holy Things. T h e key language speaks of p r e p a r i n g food in conditions pertaining to heave-offering or Holy Things. T h a t is to say, the householder undertakes to obey the rules of cleanness that pertain not to the actuality of the food in h a n d , which is secular, but to food that is in the status of heave-offering or Holy Things. T h e n his act of intention has changed the status, as to the m a t t e r of removes from the original source of c o n t a m i n a t i o n or the sensitivity of the food to contamination (which need not detain us). His intentionality takes effect to the degree that he is subject to those rules, in diminished effect to be sure, by reason of his c o m m i t m e n t to keep them. T h e householder who does so, like the householder for w h o m D e m a i

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legislates, w h o takes responsibility for what he controls even in behalf of others (what he sells or gives away, for instance), then sets the standard for Israel. But he does not e m b o d y the corporate community to the exclusion of others. T h e issue, then, is how he relates to the others, a n d the m a t t e r of intentionality of the less-than-perfectly-observant Israelite enters in, just as in the case of D e m a i . N o w when matters of p r o b a b l e c o n t a m i n a t i o n are investigated, the governing principles derive f r o m an assessment of the attitude of the other-than-fully-observant Israelite individuals. T h e y are known not to eat their secular food with concern for cultic cleanness. But the H a l a k h a h takes for granted that they are motivated by good will a n d respect for those that do, a n d therefore for the H a l a k h a h that insists that they should. T h e y exhibit no malice and will not deliberately contaminate food or utensils of those that keep the law. T h e y are indifferent but not hostile. If the ' a m ha'ares is supervised, he will c o n t a m i n a t e nothing. If not, he will c o n t a m i n a t e only by inadvertence. If he is placed in charge, he will c o n t a m i n a t e that which is subject to his charge. H e r e , too, therefore, the H a l a k h a h works out in detail the principle that Israelites respect the law even when they do not keep it in every detail. In that same setting we address the resolution of matters of doubt. T h e theory of probabilities transcends the j u d g m e n t of prevailing good will in a setting of uneven a d h e r e n c e to the H a l a k h a h ' s m a r ginal details—for eating secular food as though one were a T e m p l e priest is represented as an activity that distinguishes the individual Israelite, not that characterizes, or is supposed to characterize, all Israel as a corporate body. At issue is the same notion we have just met: the less-than-fully-observant Israelite will not violate the H a l a khah through malice, only through indifference. T h a t is why the law can go on a n d insist on confirming the status quo, a principle that comes to expression in diverse ways. T h e single most pertinent rule is, w h e n a person can say, "It is clear to m e t h a t . . . , " we accept his j u d g m e n t of the case. So too, if we can find grounds for resolving d o u b t in favor of cleanness, we do so: "For I say, ' S o m e o n e else gathered t h e m a n d gave t h e m to h i m . ' " So imperfectly-observant Israelites r e m a i n part of corporate Israel. T h a t is because at no point are they accused of rebelling against the T o r a h , that is, so acting as to indicate through their law-violation the will to sin. At every point where attitude enters in, we impute to the individual Israelite an obedient attitude and interpret the law-

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violation in a context of general conformity to the H a l a k h a h . C o r porate Israel is comprised by Israelites w h o accept the will of G o d a n d so live in G o d ' s kingdom. T h a t observation brings us back to the recognition that the Halakhah affords legitimate media for the expression of individuality. T h a t turns out to encompass not only the singularity of persons but even their n o n - c o n f o r m i t y with the H a l a k h a h . T h e upshot is that the individual enjoys a wide range of possibilities of personal expression. But, we now realize, that is because of the governing premise, which is, Israelites participate in corporate Israel, which, all together a n d all at once, has declared its acceptance of G o d ' s will, embodied in the T o r a h . Remissions then are afforded, non-conformity is tolerated, where G o d is not defied. T h i s is expressed in positive language in the following way: MISHNAH-TRACTATE ABOT

A.

B.

2:4

Rabban Gamaliel, son of R. Judah the Patriarch, would say, "Make his wishes into your own wishes, so that he will make your wishes into his wishes. "Put aside your wishes on account of his wishes, so that he will put aside the wishes of other people in favor of your wishes."

W h a t the T o r a h demands, then, is that individual Israelites conform their wills to G o d ' s will. At that point we reach the resolution of the tension between the Israelite a n d c o r p o r a t e Israel. It is in the m a t t e r of will that the Israelite a n d corporate Israel come together. Will a n d intentionality express what is private a n d p e r s o n a l — b y definition. For nothing so distinguishes one p e r s o n f r o m a n o t h e r as intentionality. T h e definition, for Halakhic purposes, of the Israelite individual is, one w h o has the power to form an a u t o n o m o u s act of will, not being subject a priori to the will of some other person (parent, master, husband). T h a t is why the Israelite is responsible for what he does, a n d therefore is subject to sanctions for doing wrong. N o t only so, but within the mythic statement of m o n o t h e i s m , it is possession of an autonomous will, the favor of which G o d can crave but not coerce, that marks m a n as "in our image, after our likeness." T h a t defines, as we shall see, the one way in which m a n is like G o d . T h e correspondence of m a n ' s will a n d G o d ' s will comes to expression, in the H a l a k h a h , in n u m e r o u s contexts. A single one suffices to represent all of them. At what point does a crop become liable

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to tithing? Before it ripens, it is not subject to tithing. At the moment at which the farmer takes the view that the crop is ready for harvest and forms the plan to take the crop from the Land, God's interest in the crop is aroused and his share must be set apart for the priests, the poor, and other scheduled castes. T h e point of the H a l a k h a h of Ma'aserot, p e r m e a t i n g all categories, is that when Israel asserts its rights of possession, G o d ' s interest is aroused and he lays claim to his share in the crop of Land that ownership of which is held in partnership between G o d and the Israelite farmer. T h e n the rest follows, a vast exercise in how the will of G o d and the will of the Israelite meet in concord, Israel obeying God's laws about the disposition of the a b u n d a n c e of the Land. T h e H a l a k h a h then indicates the point in the growth of various species at which tithes may be removed. T h a t is the moment at which the p r o d u c e is d e e m e d edible. If someone picks and eats unripe p r o d u c e , that does not impose the obligation to tithe, since the commonality of people do not regard unripe produce as food and do not eat it. O n l y when people ordinarily regard the produce as edible does consideration of tithing arise. T h e n there are two stages in the process, votive and obligatory. Crops may be tithed when the produce ripens. T h e n the produce becomes useful, and it is assumed that the f a r m e r values the produce. But crops must be tithed when the farmer claims the produce as his own. So what makes the difference? It is not the condition of the produce at all, but, rather, the attitude toward the produce that is taken by the f a r m e r who has grown it. T h a t attitude takes effect t h r o u g h the f a r m e r ' s act of ownership, beyond possession. Asserting ownership takes place when he brings untithed produce from the field to the courtyard or prepares it for sale in the market. At that m o m e n t , the farmer having indicated his claim to the produce and intent to use it for his own purposes, G o d ' s interest is aroused, his share then is due. G o d responds to m a n , specifically, G o d ' s attitudes correspond to those of m a n : when (Israelite) m a n wants to own the crop and dispose of it as he wishes, then, G o d d e m a n d s his share. T h e upshot is, G o d and m a n are, so far as attitude and emotion register, consubstantial. T h e intentionality of the one is comparable to the intentionality of the other. In this matter, attitude and intention form both singularly individual exercises and occasions for the uniform affirmation of corporate Israel, a moral entity that encompasses and transcends the individuality of Israelites. T h a t is because

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Israelites find their being within corporate Israel, a n d because, I cannot overstress, corporate Israel constitutes a moral entity subject to j u d g m e n t just as does the individual Israelite, intentionality also defines the corporate character of Israel: "we shall do and we shall obey," spoke the intention of not only individuals who met that day but the e n d u r i n g corporate c o m m u n i t y at Sinai. Israel's collective attitude therefore registers, and the individual Israelite cannot opt out. Within that given, which is not negotiable, two principles follow. First, when the individual Israelite does not c o n f o r m to the law, if the act that distinguishes him from the n o r m does not express the attitude of defiance of the T o r a h , the assertion of individuality (however passively, through non-activity) finds toleration. T h e faithful sector of Israel a c c o m m o d a t e s the h a p p e n s t a n c e of difference of opinion on marginal matters. T h a t is what we have learned about Israelites who do not live u p to the n o r m s of corporate Israel. Second, when the individual Israelite does not conform to the law, if the act in violation of the law expresses an attitude of rebellion against G o d ' s will, to which corporate Israel, as a moral entity, is answerable, then corporate Israel asserts its interest and attends to the a b e r r a n t individual. T o the way in which deliberate violation of the T o r a h is addressed, a n d the purpose accomplished in doing so, we now turn.

5

WHEN ISRAELITES DELIBERATELY TRANSGRESS THE NORMS OF CORPORATE ISRAEL I. Intentionality: Where the Israelite and God Conflict N o n e of the classes of tolerated failures to live u p to G o d ' s will is d e e m e d to convey a rebellious spirit. O n the contrary, the H a l a k h a h time a n d against underscores the good will imputed to the less-thanperfectly-observant Israelite. T h a t is the lesson of D e m a i a n d T o horot. T h e n what, by contrast, defines the kind of transgression for which corporate Israel bears responsibility for the conduct of individuals a n d on account of which the c o m m u n i t y intervenes when individuals transgress the norms? C o r p o r a t e Israel intervenes forcefully to m a i n t a i n the n o r m s of the c o m m u n i t y against individual aberration when the law-violation represents an act of rebellion, m a n setting his will over against G o d ' s . A single condition will precipitäte such intervention, one that threatens the integrity of corporate Israel by reason of such individual attitude embodied in action. T h a t brings us to the systemic center of the social teaching of R a b b i n i c Judaism. T o address the matter, we have first to see how, even w h e n the H a l a k h a h itself differentiates the individual Israelite f r o m corporate Israel, d e e m i n g the latter to f o r m a moral entity subject to is own rule, corporate Israel itself is subject to sanction by reason of collective rebellion: rejection of G o d ' s dominion. T h a t distinction is m a d e explicit, a n d corporate Israel is punished collectively, in the case of an entire town that has c o m m i t t e d apostasy: MISHNAH-TRACTATE SANHÉDRIN

A. B.

C.

11:4

The townsfolk of an apostate town have no portion in the world to come, as it is said, "Certain base fellows [sons of Belial] have gone out from the midst of thee and have drawn away the inhabitants of their city" (Deut. 1 3 : 1 4 ) . And they are not put to death unless those who misled the [town] come from that same town and from that same tribe,

TRANSGRESSING THE NORMS OF CORPORATE ISRAEL 2 1 1

D. E. F. G. H. I. J.

and unless the majority is misled, and unless men did the misleading. [If] women or children misled them, of if a minority of the town was misled, or if those who misled the town came from outside of it, lo, they are treated as individuals [and not as a whole town], and they [thus] require [testimony against them] by two witnesses, and a statement of warning, for each and every one of them. K. This rule is more strict for individuals than for the community: L. for individuals are out to death by stoning. M. Therefore their property is saved. N. But the community is put to death by the sword, O. Therefore their property is lost.

T h e T a l m u d (B. San. 111b) explicitly identifies the crime or sin of the "base fellows:" they are "those who have broken the yoke of the T o r a h from their shoulders," meaning, who have rejected the dominion a n d kingdom of G o d . T h a t is the circumstance in which corporate Israel intervenes against the embodiment of corporate Israel in some one place. Here, in so m a n y words, we distinguish individual from corporate sin; both are punished, each in its own way. W h a t they have in c o m m o n , we shall now see, is rejection of God's rule: the sinful exercise of the freedom of will that all humanity enjoys. At the heart of the matter is the doctrine of why Israel collectively and Israelites individually bear responsibility for their actions, respectively. It is because they make choices and so bear responsibility for outcomes.. M a n , Israelite a n d otherwise, matches G o d in possessing utter freedom of will. M a n ' s will is the sole power in the world that in any aspect matches the power of G o d . A n d it is that variable in creation that accounts for the present imperfection of creation. T o understand why, we recall that by his act of will G o d created the orderly world of justice, one that exhibits a b u n d a n t , indicative marks of perfection. T h e n whence chaos embodied by disorder a n d dissonance? And, when the rules that embody rationality—that g u a r a n t e e measure for m e a s u r e above all—cease to describe the everyday experience of mankind and the here and now of Israel, where shall we find the reason why? In the logic of a world order based on exact justice, in the T o r a h G o d accords to m a n a statement of his own will, a c o m m a n d m e n t , a n d one who issues a c o m m a n d both wants the c o m m a n d to be obeyed but also accords

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to the other the power to disobey. T h a t is the very premise of comm a n d m e n t s . And these f u n d a m e n t a l s of the Rabbinic system carry us to the final c o m p o n e n t of the social teaching of Rabbinic J u d a ism as it focuses u p o n corporate Israel and the Israelite: dealing with the willful violation of the T o r a h by the Israelite. C o r p o r a t e Israel bears responsibility for its condition before God; the stakes are high. T h e condition of Israel today, its Temple in ruins, its m e d i u m of a t o n e m e n t compromised, defines the matter. T h e n corporate Israel cannot ignore the rebellion of individual Israelites, their exercise of free will to rebel against God. G o d judges what m a n does by reason of the exercise of free will. Set forth in m a n y ways, the simplest statement is m a d e when R. Aqiba says, "Everything is foreseen, and free choice is given; in goodness the world is judged; a n d all is in accord with the a b u n d a n c e of deeds" (Tractate Abot 3:15A). Alongside G o d ' s j u d g m e n t , then, comes the engagement of corporate Israel. Accordingly, to sustain the social structure of corporate Israel, Rabbinic J u d a i s m designs e n d u r i n g structures, institutions for the governance of Israel as a Godly realm. In its very doctrine of how corporate Israel is governed, intentionality forms the critical point of differentiation even of institutional politics—the power legitimately to inflict violence. W h e n they describe the government of corporate Israel, they carry out a labor of differentiation of power, indicating what agency or person has the power to precipitate the working of politics as legitimate violence at all. T h r o u g h the provisions that they make for various institutional foci of power to carry out diverse tasks, it is at the point of intentionality, with the story of Eden in h a n d , that sages accomplish their goal. Were we to ignore Eden, we could make no sense of their concrete provisions for c o r p o r a t e Israel's government. When, therefore, we understand the differentiating force of intentionality at the most practical level of sages' theory of the social order, the power of the h u m a n will that imparts to politics its activity and dynamism, we shall grasp how intentionality everywhere animates the structures of the politics and propels the system. T h e encompassing political framework of rules, institutions and sanctions is explained a n d validated by appeal to G o d ' s shared rule. T h a t dominion, exercised by G o d and his surrogates on earth, is focused partly in the royal palace, the king, partly in the T e m p l e , the priesthood, a n d partly in the court a n d its sages. T h e system

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2 1 1

focuses u p o n finding answers to the question of w h o imposes which sanction, a n d why. T h r o u g h the examination of sanctions, we identify the foci of power. At that point we ask how power is differentiated. W e find four types of sanctions, each deriving from a distinct institution of political power, each b e a r i n g its own mythic explanation. [1] T h e first comprises what G o d a n d the Heavenly court can do to people. [2] T h e second comprises what the earthly court can do to peopie. T h a t type of sanction embodies the legitimate application of the worldly a n d physical kinds of violence of which political theory ordinarily speaks. [3] T h e third comprises what the cult can do to the people. T h e cult through its requirements can deprive people of their property as legitimately as can a court. [4] T h e fourth comprises conformity with consensus—self-imposed sanctions. Here the issue is, whose consensus, and defined by whom? Across these four types of sanction, four types of coercion are in play. T h e y d e p e n d on violence of various kinds—psychological a n d social as m u c h as physical. Clearly, then, the sanctions that are exercised by other t h a n judicial-political agencies prove violent a n d legitimately coercive, even though the violence and coercion are not the same as those carried out by courts. O n this basis we can differentiate a m o n g types of sanctions—and hence trace evidences of how the differentiation is explained. Since our data focus u p o n w h o does w h a t to w h o m , the myth of politics must explain why various types of sanctions are put into effect by diverse political agencies or institutions. T h e exercise of power, invariably a n d undifferentiatedly in the n a m e and by the authority of G o d in H e a v e n to be sure, is kept distinct. A n d the distinctions in this case signal important differences which, then, require explanation. C o n c r e t e application of legitim a t e violence by [1] H e a v e n covers different matters f r o m parts of the political and social world governed by the policy and coercion of [2] the this-worldly political classes. A n d both sorts of violence have to be kept distinct from the sanction effected by [3] the c o m m u n i t y t h r o u g h the weight of attitude a n d public opinion. H e r e , again, we find a distinct set of penalties applied to a particular range of actions.

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O u r task therefore is to figure out on the basis of sanctions' distinct realms, H e a v e n , earth, a n d the mediating range of the T e m pie a n d sacrifice, which p a r t y imposes sanctions for (in m o d e r n parlance) w h a t crimes or sins. W h e r e H e a v e n intervenes, do other authorities participate, a n d if so, w h a t tells m e which party takes charge a n d imposes its sanction? Is the system differentiated so that where earth is in charge, there is no pretense of appeal to H e a v e n ? O r do we find cooperation in coextensive jurisdiction, such that one party penalizes an act u n d e r one circumstance, the other the same act u n d e r a different circumstance? So we w o n d e r w h e t h e r each of these three estates that enjoy power and inflict sanctions of one kind or a n o t h e r — H e a v e n , earth, T e m p l e in-between—governs its own affairs, without the intervention of the others, or whether, working together, each takes charge in collaboration with the other, so that power is parceled out a n d institutions simultaneously differentiate themselves f r o m one a n o t h e r and also intersect. T h e politics works in such a way that all three political institutions, G o d , the court (sage) a n d the T e m p l e (priest), the three agencies with the power to bestow or take away life a n d p r o p e r t y a n d to inflict physical pain a n d suffering, work together in a single continuum and in important ways cooperate to deal with the same crimes or sins. W e m a y divide sanctions just as the authorship of the M i s h n a h did, by simply reviewing the range of penalties for law-infraction as they occur. T h e s e penalties, we realize, fall into four classifications: [1] w h a t H e a v e n does, [2] w h a t political institutions do, [3] what religious institutions do, a n d [4] what is left to the coercion of public opinion, that is, consensus, with special attention to the definition o f t h a t "public" that has effective opinion to begin with. T h e final realm of power, conferring or withholding approval, proves constricted and, in this context, not very consequential. A survey of [1] types of sanctions, [2] the classifications of crimes or sins to which they apply, a n d [3] w h o imposes them, now yields these results. First come the death-penalty on earth a n d its c o u n t e r p a r t , which is extirpation (death before one's allotted time) imposed by Heaven:

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HEAVEN Extirpation

EARTH Death-penalty

TEMPLE Death-penalty

FOR DELIBERATE ACTIONS sexual crimes:

sexual eûmes:

incest violating sex taboos (bestiality, homosexuality)

in improper relationships: incest

religious crimes against God:

religious crimes against God:

blasphemy idolatry magic sorcery profaning Sabbath

blasphemy idolatry magic sorcery profaning Sabbath religious sins against family: cursing parents social crimes: murder communal apostasy kidnapping social sins: public defiance of the court false prophecy

religious sins, deliberately committed, against God unclean person who ate a Holy Thing uncleanness in

COMMUNITY

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sanctuary violating food taboos making offering outside of Temple violating taboos of holy seasons replicating Temple incense or oil outside Next we deal with court-inflicted sanctions carried out against property or person (e.g., fines against property, flogging or other social or physical violence short of d e a t h for the felon or sinner): HEAVEN

EARTH

TEMPLE

COMMUNITY

F O R INADVERTENT A C T I O N fogging exile

obligatory offering and/or fogging

shunning

manslaughter incest violation of menstrual taboo marriage in violation of caste rules

uncleanness eating Temple food in violation of the law

repay moral obligation (debt cancelled by sabbatical year)

replicating Temple oil, incense outside violating Temple food taboos

stubbornly rejecting majority view opposing majority will

violating taboos of holy days (Passover, atonement)

opposing patriarch disobedience to majority or patriarch

uncleanness (Zab, mesora, etc.) Nazirite violating food taboos unclean Nazirite testimony removing removing dam with offspring violating negative commandments

illicit sex with bondwoman false oath of testimony false oath of deposit

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T h e operative distinction between inflicting a flogging and requiring a sacrifice (Temple sanctions against person or property), and the sanction of extirpation (Heavenly death-penalty), is made explicit at Mishnah-tractate Keritot 1:1-2, as we shall see in the next section. T h e points important here are these: Scripture refers to thirtysix sorts of transgressions subject to the penalty of extirpation. If one deliberately does any of these transgressions, he is liable to extirpation; if he does t h e m inadvertently, he brings a sin-offering, and if he is not sure whether or not he has done them, he brings a suspensive guilt-offering, as noted above. If a person is in d o u b t a b o u t whether or not he has accidentally entered the T e m p l e while in a state of uncleanness, or whether or not he has eaten Holy Things in a state of uncleanness, he brings a sliding-scale offering (Lev. 5:2). W h a t about penalties imposed by the T e m p l e ? These take the form of sanctions assessed against property. T h e T e m p l e does not take an active role in imposing such sanctions. Rules apply, a n d the consequence of the rules in some instances is that the Temple is owed, a n d collects, property and passes it on to Heaven. T h e penalty of loss of property means that one is required ex opere operato to present to Heaven, through the T e m p l e , something of value. T h e wealth to be given up must of course be given the form that the T e m p l e can receive a n d transmit to Heaven, that is, an appropriate animal or vegetable product. This s u m m a r y yields a simple a n d clear fact, and on the basis of that simple fact we m a y now reconstruct the entire political myth of the O r a l T o r a h . This myth accounts for the differentiation a m o n g penalties and institutions that impose them, and from the facts we reach backward to the myth that explains them. T h e basis for all conclusions, let me emphasize, is this fact: some of the same crimes or sins for which the Heavenly court imposes the penalty of extirpation are those that, under appropriate circumstances (e. g., sufficient evidence admissible in court) the earthly court imposes the death-penalty. T h a t is, the Heavenly court and the earthly court impose precisely the same sanctions for the same crimes or sins. T h e earthly court therefore forms down here the exact replica and counterpart, within a single system of power, of the Heavenly court u p there. This no longer looms as an empty generalization; it is a concrete and systemically active a n d indicative detail, a n d the system speaks through its details. But this is not the entire story. T h e r e is a second fact, equally

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indicative for our recovery of the substrate of myth. W e note that there are crimes for which the earthly court imposes penalties, but for which the Heavenly court does not, as well vice versa. T h e earthly a n d Heavenly courts share jurisdiction over sexual crimes and over what I classify as serious religious crimes against G o d . T h e Heavenly court penalizes with its form of the death-penalty religious sins against G o d , in which instances a person deliberately violates the taboos of sanctification. A n d that fact calls our attention to a third p a r t n e r in the distribution a n d application of p o w e r , the T e m p l e with its system of sanctions that cover precisely the same acts subject to the jurisdiction of the Heavenly and earthly courts. T h e counterpart on earth is now not the earthly court but the T e m p l e . This is the institution that, in theory, automatically receives the appropriate offering from the person who inadvertently violates these same taboos of sanctification. T h e juxtaposition involves courts and T e m p l e , and the upshot is that both are equally matters of theory. In the theory at hand, then, the earthly court, for its part, penalizes social crimes against the c o m m u n i t y that the Heavenly court, on the one side, and the T e m p l e rites, on the other, do not take into account at all. These are m u r d e r , apostasy, kidnapping, public defiance of the court, a n d false prophecy. T h e earthly court further imposes sanctions on matters of particular concern to the Heavenly court, with special reference to taboos of sanctification (e.g., negative commandments). These three institutions, therefore, exercise concrete and material power, utilizing legitimate violence to kill someone, exacting penalties against property, and inflicting pain. T h e sages' modes of power, by contrast, stand quite apart, apply mainly to their own circle, and work through the intangible though no less effective means of inflicting shame or paying honor. T h e facts we have in h a n d draw us back to the analysis of our differentiation of applied and practical power. In the nature of the facts before us, that differentiation tells us precisely for what the systemic myth will have to give its account. Power flows through three distinct but intersecting dominions, each with its own concern, all sharing some interests in c o m m o n . H o w are the agencies differentiated? [1] T h e Heavenly court attends to deliberate defiance of Heaven. [2] T h e T e m p l e pays attention to inadvertent defiance of Heaven. [3] T h e earthly court attends to matters subject to its jurisdiction

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by reason of sufficient evidence, p r o p e r witnesses, and the like, and these same matters will come u n d e r Heavenly jurisdiction when the earthly court finds itself unable to act. Accordingly, we have a tripartite system of sanctions—Heaven cooperating with the T e m p l e in some matters, with the court in others, and, as noted, each bearing its own distinct media of enforcing the law as well. W h a t then can we say concerning the systemic myth of politics? T h e forms of power and the modes of mediating legitimate violence draw our attention to a single political myth. T h e unity of that myth is underlined by the simple fact that the earthly court enters into the process right along side the Heavenly court and the T e m p l e ; as to blasphemy, idolatry, and magic, its jurisdiction prevails. So a single myth must serve all three correlated institutions. It is the myth of G o d ' s authority infusing the institutions of Heaven and earth alike, an authority diffused a m o n g three principle foci or circles of power, Heaven's court, the earthly court, and the T e m p l e in-between. Each focus of power has its own jurisdiction and responsibility, H e a v e n above, earth beneath, the T e m p l e in the position of mediation—transmitting as it does from earth to Heaven the penalties h a n d e d over as required. And all media of power in the matter of sanctions intersect at some points as well: a tripartite politics, a single myth drawing each c o m p o n e n t into relationship with a single source and origin of power, G o d ' s law set forth in the T o r a h . But the myth has not p e r f o r m e d its task until it answers not only the question of why, but also the question of how. Specifically, the details of myth must address questions of the details of power. W h o then tells w h o m to do what? And how are the relationships of dominion and dominance to compliance and obedience m a d e p e r m a nent through myth? W h e r e power is differentiated and parceled out we see the workings of the political myth, and there we should find the facts that we seek. So we ask, how do we know who tells whom to do, or suffer, what sanction or penalty? It is the power of myth to differentiate that defines the generative question. T h e key lies in the criterion by which each mode of power, earthly, mediating, and Heavenly, identifies the cases over which it exercises jurisdiction. T h e criterion lies in the attitude of the h u m a n being who has done what he or she should not: did he act deliberately or unintentionally? T h e point of

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differentiation within the political structures, supernatural and natural alike, lies in the attitude a n d intention of a h u m a n being. We differentiate a m o n g the application of power by reference to the attitude of the person w h o comes into relationship with that power. A person who comes into conflict with the system, rejecting the authority claimed by the powers that be, does so deliberately or inadvertently. T h e myth accounts in the end for the following hierarchization of action a n d penalty, infraction a n d sanction: [1] If the deed is deliberate, then one set of institutions exercises jurisdiction and utilizes supernatural power. [2] If the deed is inadvertent, another institution exercises jurisdiction a n d utilizes the power m a d e available by that same supernatural being. A sinner or criminal who has deliberately violated the law has by his action challenged the world order of justice that God has wrought. Consequently, G o d or G o d ' s surrogate imposes sanctions—extirpation (by the court on high), or death or other appropriate penalty (by the court on earth). A sinner or criminal who has inadvertently violated the law is penalized by the imposition of T e m p l e sanctions, losing valued goods. People obey because G o d wants t h e m to and has told them what to do, a n d when they do not obey, a differentiated political structure appeals to that single hierarchizing myth. T h e components of the myth are two: first, G o d ' s will, expressed in the law of the T o r a h , second, the h u m a n being's will, carried out in obedience to the law of the T o r a h or in defiance of that law. Since the political myth has to explain the differentiation of sins or crimes, with their associated penalties or punishments, a n d so sanctions of power, I have to find that story in the T o r a h that accomplishes that labor of differentiation. A n d given the foci a n d premises of the present study of the governing theology of the O r a l T o r a h , that story must pertain to the nature of things and concern beginnings. And in Scripture there is a very precise answer to the question of how to differentiate a m o n g sins or crimes a n d why to do so. N o t only so, but, in the framework of the present chapter of that theology, the point of differentiation must rest with one's attitude or intentionality And, indeed, I do have two stories of how the power of G o d — t h e power to command—conflicts with the power of h u m a n i t y — t h e power to obey or to rebel—in such wise as to invoke the penalties a n d sanctions in precisely the differentiated modes we have before us. W h e r e do I find such stories of the con-

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flict of wills, G o d ' s a n d h u m a n i t y ' s , c a p t u r e d by the words, "will," or "intentionality"? T h e first such story of power differentiated by the will of the h u m a n b e i n g in c o m m u n i o n or conflict with the w o r d of the c o m m a n d i n g G o d c o m e s to us f r o m the G a r d e n of E d e n / W e c a n n o t too often r e r e a d the following astonishing words: T h e Lord God took the man and placed him in the garden of Eden...and the Lord God commanded the man, saying, "Of every tree of the garden you are free to eat; but as for the tree of knowledge of good and bad, you must not eat of it; for as soon as you eat of it, you shall die." ...When the woman saw that the tree was good for eating and a delight to the eyes, and that the tree was desirable as a source of wisdom, she took of its fruit and ate; she also gave some to her husband, and he ate... The Lord God called out to the man and said to him, "Where are you?" He replied, "I heard the sound of You in the garden, and I was afraid, because I was naked, so I hid." Then He asked, "Who told you that you were naked? Did you eat of the tree from which I had forbidden you to eat?" ...And the Lord God said to the woman, "What is this you have done!" T h e woman replied, "The serpent deceived me, and I ate." Then the Lord said to the serpent, "Because you did this, more cursed shall you be than all cattle...." So the Lord God banished him from the garden of Eden... Genesis 2:15ff. N o w a reprise of the e x c h a n g e b e t w e e n G o d , A d a m , a n d Eve, tells us that at stake was responsibility: w h o has violated the law, but w h o b e a r s responsibility for deliberately violating the law. E a c h b l a m e s the next, a n d G o d sorts things out, r e s p o n d i n g to each in accord with the facts of the case: whose intentionality m a t c h e s the actual d e e d ? "The woman You put at my side—she gave me of the tree, and I ate." "The serpent duped me, and I ate." Then the Lord God said to the serpent, "becauseyou did this...." T h e ultimate responsibility lies with the o n e w h o acted deliberately, not u n d e r constraint or o n a c c o u n t of d e c e p t i o n or m i s i n f o r m a tion, as did A d a m b e c a u s e of Eve, a n d Eve because of the serpent T r u e e n o u g h , all are p u n i s h e d , the serpent, b u t also w o m a n , "I will m a k e m o s t severe y o u r p a n g s in c h i l d b e a r i n g , " a n d A d a m , "Because you did as your wife advised a n d ate of the tree a b o u t which

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I c o m m a n d e d you, 'you shall not eat of it,' cursed be the g r o u n d because of y o u . " T h u s all are p u n i s h e d — b u t the p u n i s h m e n t is differentiated. Those who were duped are distinguished from the one w h o acted wholly on his o w n , the serpent himself is cursed; the w o m a n is subjected to pain in childbearing, which ought to have been pain-free; because of m a n , the earth is c u r s e d — a diminishing scale of penalties, each in accord with the level of intentionality or free, uncoerced will, involved in the infraction. T h e n the sanction applies most severely to the one w h o by intention a n d an act of will has violated G o d ' s intention a n d will. T h e operative criterion in the differentiation of sanction—that is, the exercise of legitimate violence by H e a v e n or by earth or by the T e m p l e — i s the h u m a n attitude a n d intention in c a r r y i n g out a culpable action. So what is rehearsed is the myth of A d a m a n d Eve in Eden. T h e social teaching finds its dynamic in the correspondence between God's will and humanity's freedom to act however it chooses, thus freely incurring the risk of penalty or sanction for the w r o n g exercise of f r e e d o m . At stake is what A d a m a n d Eve, Moses a n d A a r o n , a n d n u m e r o u s others intend, propose, plan, for that is the point at which the teaching makes its points of differentiation between a n d a m o n g its sanctions a n d the authorities that impose those penalties. Power comes f r o m two conflicting forces, the c o m m a n d i n g will of G o d a n d the free will of the h u m a n being. Power expressed in i m m e d i a t e sanctions is also m e d i a t e d t h r o u g h these same forces, H e a v e n above, h u m a n beings below, with the T e m p l e m e d i a t i n g between the two. Power works its way in the interplay between what G o d has set forth in the law of the T o r a h a n d what h u m a n beings do, whether intentionally, whether inadvertently, whether obediently, whether defiantly. W h e n we consider sins that are penalized, at every point we are reminded of the most formidable source of power, short of G o d , in all. T h a t always is the will of the h u m a n being. A n d that is why only m a n has the power to disrupt that world order so painstakingly created a n d m a i n t a i n e d by G o d . O n l y m a n is sufficiently like G o d to possess the utterly free will to corrupt perfection. A n d that brings us to the social teaching of Rabbinic Judaism at the crucial point: how to deal with Israelites w h o transgress the T o r a h , G o d ' s will?

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II. Expiation of I71advertent Sin. Ken tot W e begin with law-violation that is inadvertent. T h e r e the action does not m e a n to express a n attitude of defiance or an intention to rebel against G o d ' s will. M a n bears responsibility for what he does, and the H a l a k h a h provides the opportunity to atone for doing what G o d has c o m m a n d e d is not to be done. T h e Written T o r a h explicitly imputes guilt even for actions committed inadvertently and not with the intention of violating the T o r a h . T h e T o r a h further provides for m e d i a of a t o n e m e n t in such an instance. It follows that the Halakhah has to provide for penalties to expiate sin or crime, whether deliberate or otherwise. H e r e m a k i n g its statement concerning the taxonomic power of intentionality, the H a l a k h a h distinguishes deliberate f r o m inadvertent sin or crime. A sin-offering is required in the case of an action, the deliberate commission of which is penalized by extirpation (early death, before the age of 60), a n d a suspensive guilt offering in the case of doubt. T h e principal interest then is in animal-offerings that expiate sin. T h e Written T o r a h contributes to the topic the following statement, at Lev. 5:17-19: If any one sins, doing any of the things that the Lord has commanded not to be done, though he does not know it, yet he is guilty and shall bear his iniquity. He shall bring to the priest a ram without blemish out of the flock, valued by you at the price for a guilt offering, and the priest shall make atonement for him for the error that he committed unwittingly, and he shall be forgiven. It is a guilt offering; he is guilty before the Lord T h r e e divisions make up the topical presentation, occasions on which the sin-offering or extirpation, as the case may be, is required, a single sin-offering a n d multiple sins, a n d the suspensive guilt-offering, required where one inadvertently m a y or m a y not have committed a sin. T h e order is logically necessary, since the suspensive guilt-offering c a n n o t come before the sin- or guilt-offering for what one is certain he has done. T h e governing principle is stated as follows: MISHNAH-TRACTATE KERITOT

1:2

TOSEFTA-TRACTATE KERITOT

1:6

M. 1:2 For those [thirty-six classes of transgressions] are people liable, for deliberately doing them, to the punishment of extirpation, and for accidentally doing them, to the bringing of a sin offering, and for not being certain of whether or not one has done them, to a suspensive guilt offering [Lev. 5:17]—[except for] the one who blasphemes, as it

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is said, "You shall have one law for him that does anything unwittingly" (Num. 15:29)—excluding the blasphemer, who does no concrete deed. T. 1:6 This is the general principle: [For violation of] any negative commandment containing within itself a concrete deed do [violators] receive the penalty of forty stripes. And for the violation of any which does not contain within itself a concrete deed they do not receive the penalty of forty stripes. And as to all other negative commandments in the Torah, lo, these are subject to warning. He who transgresses them violates the decree of the King. E x t i r p a t i o n — d e a t h before age 60—is inflicted for deliberate violation of the T o r a h , presentation of a sin-offering is the sanction for inadvertently committing any of the thirty-six classes. T h e s e are the pertinent transgressions: MISHNAH-TRACTATE KERITOT

1:1

M. 1:1 Thirty-six [classes of] transgressions set forth in the Torah are subject to extirpation: he who has sexual relations with (1) his mother, and (2) with his father's wife, and (3) with his daughter-in-law; he who has sexual relations (4) with a male, and (5) with a beast; and (6) the woman who has sexual relations with a beast; he who has sexual relations (7) with a woman and with her daughter, and (8) with a married woman; he who has sexual relations (9) with his sister, and (10) with his father's sister, and (11) with his mother's sister, and (12) with his wife's sister, and (13) with his brother's wife, and (14) with his father's brother's wife, and (15) with a menstruating woman (Lev. 18:6ff.); (16) he who blasphemes (Num. 15:30), and (17) he who performs an act of blasphemous worship (Num. 15:31), and (18) he who gives his seed to Moloch (Lev. 18:21), and (19) one who has a familiar spirit (Lev. 20:6); (20) he who profanes the Sabbath day (Ex. 31:14); and (21) an unclean person who ate a Holy Thing (Lev. 22:3), and (22) he who comes to the sanctuary when unclean (Num. 19:20); he who eats (23) forbidden fat (Lev. 7:25), and (24) blood (Lev. 17:14), and (25) remnant (Lev. 19:6-8), and (26) refuse (Lev. 19:7-8); he who (27) slaughters and who (28) offers up [a sacrifice] outside [the Tempie court] (Lev. 17:9); (29) he who eats leaven on Passover (Ex. 12:19); and he who (30) eats and he who (31) works on the Day of Atonement (Lev. 23:29-30); he who (32) compounds anointing oil [like that made in the Temple (Ex. 30:23-33)], and he who (33) compounds incense [like that made in the Temple], and he who (34) anoints himself with anointing oil (Ex. 30-32); [he who transgresses the laws of] (35) Passover (Num. 9:13) and (36) circumcision (Gen. 17:14), among the positive commandments.

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In a case of doubt whether or not a sin has inadvertently been committed, a suspensive guilt offering is presented, counterpart to the sin-offering, illustrated by the following: MISHNAH-TRACTATE K E R I T O T TOSEFTA-TRACTATE K E R I T O T

3:1,4:1 2:4-5

M. 3:1 [If] they said to him, "You have eaten forbidden fat," he brings a sin offering. [If] one witness says, "He ate," and one witness says, "He did not eat"—[of if] a woman says, "He ate," and a woman says, "He did not eat," he brings a suspensive guilt offering. [If] a witness says, "He ate," and he says, "I did not eat"—he is exempt [from bringing an offering]. [If] two say, "He ate," and he says, "I did not eat"—he is exempt. M. 4:1 It is a matter of doubt whether or not one has eaten forbidden fat, And even if he ate it, it is a matter of doubt whether or not it contains the requisite volume—Forbidden fat and permitted fat are before him, he ate one of them but is not certain which one of them he ate—His wife and his sister are with him in the house—he inadvertently transgressed with one of them and is not certain with which of them he transgressed—The Sabbath and an ordinary day—he did an act of labor on one of them and is not certain on which of them he did it—[in all the foregoing circumstances] he brings a suspensive guilt offering. T. 2:4 [If] it is a matter of doubt whether or not one has sinned, he brings a suspensive guilt-offering [M. Ker. 4:1, 2A-B]. [If] he has sinned, but is not certain what particular sin he has committed, he brings a sinoffering. [If] he has sinned and is informed of the character of his sin but he as or gotten what sin he has committed, Lo, this one brings a sin-offering [M. Ker. 4:2C-D], and it is slaughtered for the sake of whichever [sin he has committed] and it is eaten. Then he goes and brings a sin-offering for that sin of which he is informed, and It is slaughtered for the sake of whatever [particular sin he has done] and it [too] is eaten. As we see, the key-language comes at M . 1:2: inadvertence vs. deliberate law-violation. For us the important point is, if someone has transgressed unintentionally, a sin-offering suffices. T h a t underscores the critical center of the social teaching, its focus on intentionality. Extirpation, by contrast, is inflicted by H e a v e n for one's deliberately doing the sins specified above, m a t c h e d by the sin-offering, required when said sins are inadvertent. T h e second penalty for inadvertent sin is the offering of variable value, and once more, we list those who are required to present such an offering, and special situations in that regard. T h e third is the suspensive guilt-offering, presented when one has some reason to suppose that he has carried

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out a sin but lacks adequate, positive grounds for confessing inadvertent commission of a sin. T h a t once more carries us to address cases of doubt a n d how these are to be resolved. T h e H a l a k h a h of Keritot f u r t h e r m o r e encompasses the atoning power of the D a y of Atonement: MISHNAH-TRACTATE KERITOT

6:4

M. 6:4 Those who owe sin offerings and unconditional guilt offerings for whom the Day of Atonement passed [without their making those offerings] are liable to bring [the offerings] after the Day of Atonement. Those who owe suspensive guilt offerings are exempt. [The Day of Atonement has atoned for those transgressions that may or may not have taken place.] He who is subject to a doubt as to whether or not he has committed a transgression on the Day of Atonement, even at twilight, is exempt. For the entire day [of atonement] effects atonement. T h e affect of the D a y of A t o n e m e n t comes u n d e r consideration. It functions as does a suspensive guilt offering, that is, to make atonement in cases where whether the sin has been committed is in doubt. T h a t accounts for the role of the D a y of A t o n e m e n t in the atonement process; it has no bearing on the requirement of sin-offerings or unconditional guilt-offerings; these must be paid for the specified deed. T h e key doctrine before us concerns the distinction between an act that is deliberate a n d one that is inadvertent. In its principal divisions—the sin-offering as against extirpation, the suspensive guiltoffering as against the unconditional guilt-offering—the H a l a k h a h treats in concrete terms the distinction between deliberate, intentional sin a n d unintentional law-violation. Nowhere else in the H a l a k h a h do we find so sharp a line distinguishing the unintentional sin, penalized by an offering, a n d the intentional one, penalized by extirpation. T h e reason that that critical distinction concerns us in the particular H a l a k h a h at h a n d is self-evident. H e r e is where G o d intervenes, a n d it is G o d above all who knows what is in m a n ' s heart a n d can differentiate intentional f r o m unintentional actions. And it also is G o d who has the heaviest stake in the matter of intentional sin, for intentional sin represents rebellion against the T o r a h and G o d ' s rule through the T o r a h . Offerings, we have seen, expiate those sins that do not are not committed as an act of rebellion against G o d . T h e s e G o d accepts, graciously, as an appropriate act of atonement for an act for which

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one bears responsibility but which was not meant as defiance of God. T h e ones that embody an attitude of rebellion, by contrast, can be expiated not t h r o u g h the surrogate, the blood of the beast, but through the sinner himself, who is put to death by the court here on earth or is flogged by the court's agents or is cut off in the prime of life. So Keritot translates into social teachings the theology that holds, G o d sees into m a n ' s heart.

III. Removing the Aberrant Individual from the Social Order: Negaim But that is not the end of the story. T h e social teaching of Rabbinic J u d a i s m , in line with Scripture, removes from the corporate community certain classes of persons d e e m e d to have been singled out by Heaven for exclusion. T h e y are sinners capable of contaminaiing corporate Israel a n d therefore to be removed from the c o m m u nity. But the community does not single them out and then inflict punishment upon them; H e a v e n does. T h e y are persons suffering bodily discharges that signify uncleanness. T h a t circumstance affecting the natural body is taken to indicate the afflicted persons have sinned in some way. Since by the definition of the H a l a k h a h bodily uncleanness must come about by nature, not by h u m a n intervention, an indicator of uncleanness is taken to represent H e a v e n ' s penalty on the person who suffers the ailment. W h e n we examine details of the Halakhah, we shall see the connection that Rabbinic J u d a i s m draws b e t w e e n uncleanness a n d individual a b e r r a t i o n . Uncleanness stems f r o m deliberate actions that violate the integrity of the community of Israel and its relationship with God. T h e exclusion of the aberrant individual from the camp, or community of Israel is explained at Lev. 16:31: " T h u s you shall keep the people of Israel separate from their uncleanness, lest they die in their uncleanness by defiling my tabernacle that is in their midst," and this instruction explicitly covers "him who has a discharge and him who has an emission of semen, a menstruating w o m a n , male or female suffering a discharge, and the like." T h e matter is reinforced at Lev. 13:44-46: When a man has on the skin of his body a swelling...Then the priest shall examine him, and if the diseased swelling is reddish-white on his bald head or on his bald forehead, like the appearance of leprosy

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in the skin of the body, he is a leprous man, he is unclean; the priest must pronounce him unclean; his disease is on his head. The leper who has the disease shall wear torn clothes and let the hair of his head hang loose, and he shall cover his upper lip and cry, "Unclean, unclean." He shall remain unclean as long as he has the disease; he is unclean; he shall dwell alone in a habitation outside the camp. W h a t is at stake in this disease signifying uncleanness a n d the contamination of the c o m m u n i t y remains to be seen. T h e ailment of Lev. 13-14, which has nothing to do with Hansen's Disease ("leprosy"), is treated in Scripture as c o m p a r a b l e to death. T h a t is stated in so m a n y words. W h e n Miriam and Aaron questioned Moses's supreme leadership ("Has the Lord indeed spoken only through Moses? Has he not spoken through us also? [Num. 12:2]), Miriam was punished with an attack of leprosy: "Miriam was leprous, as white as snow." Aaron then turns to Moses and says, "Let her not be as one dead, of w h o m the flesh is half consumed when he comes out of his m o t h e r ' s w o m b " (Num. 12:12). T h e explicit comparison of the skin ailment to death—the skin is like a corpse's— is realized in the H a l a k h a h at two weighty points. First comes the definition of the symptoms of the skin-ailment, in particular the characteristics of the afflicted skin which signify the presence of the ailment: MISHNAH-TRACTATE NEGAIM

6:1

M. 6:1 The body [requisite space] of the bright spot is [not less than] a Cilician split bean squared. The place of the split bean is nine lentils. The place of a lentil is four hairs. It comes out thirty-six hairs. T h e spots or marks must be square-shaped, and of the size of a Cilician bean. T h e raw flesh must be the size of a lentil in b r e a d t h and length or larger, and it must be located in the middle of the bright spot. W e shall return to this m a t t e r in a m o m e n t . Second, the status of the demolished house a n d of the person afflicted with the skin ailment is comparable to the status of corpsematter and the corpse, and this is m a d e articulate in the following: MISHNAH-TRACTATE NEGAIM

13:4, 7-9,

11

TOSEFTA-TRACTATE NEGAIM 6 : 1 1 , 7 : 2 , 3 , 4 , 6 - 9 ,

11

M. 13:4 A house which is shut up renders unclean on its inside. And one which is certified unclean [renders unclean] inside and outside. This and this render unclean through [one's] coming [inside them], A house in which a corpse is located conveys corpse-uncleanness to

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everything beneath its roof. What overshadows a corpse likewise contracts corpse-uncleanness. Now, we see, the marks of the skin ailment, whether afflicting a person or contaminating a house, produce the same effect. T. 6:11 These and those render unclean through contact and render unclean through carrying and do not render unclean on top of a stone to the nethermost deep. And they are sent forth outside of every town to an unclean place. And even though there is no unclean place there, its place is unclean. Here is another indication of overshadowing as a m e d i u m of transferring contamination: Τ. 7:3 He whose hands overshadow a stone, whether above or below, is clean. A loaf of heave-offering wrapped in bast or in paper placed over a stone afflicted with plague, whether above or below, is clean. Τ. 7:4 A house which is shut up renders unclean on its inside, and the one certified unclean [does so] on its inside and on its outside. This and that render unclean through entry. And stones which have a plague render unclean from their outer sides. M. 13:7 The unclean [person] stands under the tree, and the clean person passes—he is unclean. The clean person stands under the tree, and the unclean passes—he is clean. If he stood, he is unclean. And so with the stone which is afflicted with plague—he is clean. And if he put it down, lo, this one is unclean. T. 7:5 The unclean person passes under the tree, and the clean one stands [there]—he is clean. He [the unclean person] stands under the tree and the clean person passes—he is unclean. And if he stood [still], he is unclean. A stone afflicted with plague—he is clean. Stones afflicted with plague returned under the tree—he is clean. And [if] they were unbound, he is unclean. As it is said, "His dwelling place"—his dwelling place is unclean. W h a t about the affect of the r o o m afflicted with the ailment upon a person who enters it? T h e result is as if he entered a house in which a corpse was located: M. 13:8 A clean person who put his head and the greater part of his body inside an unclean house is made unclean. And an unclean person who put his head and the greater part of his body inside a clean house has made it unclean. A clean cloak, three-by-three finger-breadths of which one put inside an unclean house, is made unclean. And an unclean [cloak], any [size] piece, even an olive's bulk, of which one put inside a clean house—it [the cloak] has rendered it [the house] unclean. T. 7:6 An unclean cloak of a size of three-by-three finger-breadths, but not [of a volume of] an olive's bulk—one put the larger part of it into a clean house—it has made it unclean. And a clean [cloak], of which

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one put three-by-three finger-breadths into an unclean house, is made unclean. And an unclean [cloak], of which one put even as much as an olive's bulk into a clean house, has made it unclean. T. 7:7 He who puts his head and the greater part of his body into a house afflicted with plague is unclean. A clay utensil, the airspace of which one put into a house afflicted with plague, is unclean. Benches and chairs, the larger part of which one put inside a house afflicted with plague, are unclean. T h e matter is m a d e explicit in other language as well, now covering the garments of a person w h o enters such a room or house: M. 13:9 He who entered a house afflicted with plague, with his garments over his shoulder, and his sandals and rings in his hands—he and they are unclean forthwith. He was dressed in his garments, with his sandais on his feet and his rings on his fingers—he is unclean forthwith. But they are clean until he will remain for a time sufficient to eat a piece of bread—a piece of bread of wheat, and not a piece of bread of barley—reclining and eating it with condiment. T. 7:8 He who entered a house afflicted with plague with his garments folded up and lying on his shoulder, and his sandals and his ring in the palm of his hand—he and they are unclean forthwith. But if he were dressed in them, they [would have been] clean until he remained a sufficient time to eat a piece of bread. M. 13:10 He was standing inside [an unclean house] but put his hand outside, with his rings on his fingers, if he remained for a time sufficient to eat a piece of bread, they are unclean. He was standing outside [an unclean house], and put his hand inside, with his rings on his fingers- [They are clean] until he will remain for a time sufficient for eating a piece of bread. While we do not ordinarily take u p controverted matters of the law, in the following dispute we find a principle expressed that is of considerable interest: gentiles are not subject to the differentiated uncleanness of the present context and do not enter into the system at all: T. 7:9 [If] one was standing inside and stretched his hand outside, and his fellow gave him his sandals and his rings in the palm of his hand, he and they are unclean forthwith. But if he had been dressed in them, he would have been clean until he had remained long enough to eat a piece of bread. [If] he was standing outside, with his sandals on his feet, and he stretched [his hand] inside, with his ring on his finger, and he stretched them [it] inside—R. Judah declares unclean forthwith. And sages say, "Until he will remain there [for an interval] sufficient for eating a piece of bread." They said to R. Judah, "When his entire body is unclean, he does not render what is on him unclean until he remains for a sufficient time to eat a piece of bread. So when

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his entire body is not unclean, should he (not) render unclean what is on him before he remains for a time sufficient to eat a piece of bread?" Said to them R. Judah, "The reason is that the power of that which is capable of becoming unclean is stronger to afford protection than is the power of the clean to afford protection. Israelites receive uncleanness and afford protection for clothing in the house afflicted with plague. But the gentile and the beast do not receive uncleanness and do not afford protection for clothing in the house afflicted with plague." M. 13:11 A person afflicted with the skin-ailment who entered the house— all the utensils which are there are unclean—even up to the beams. Utensils are unclean forthwith. T. 7:11 A leper who entered a house—all the utensils which are there, lo, they are unclean. [If] he enters a synagogue, they make for him a partition. He enters first and leaves last. This repertoire of rulings leaves no doubt that the simile stated by Aaron for the skin-ailment expresses in Aggadic terms the conception actualized in Halakhic ones as well. We are dealing with an ailment akin to death, the person afflicted affects those round about like a corpse. In a m o m e n t we shall ask, what has the afflicted person done to be removed from the land of the living? But first let us review the details that permit us to compare the person afflicted with the skin ailment to a corpse. T h a t conception that the skin-ailment ("nega'-uncleanness") is contaminates like a corpse is embodied in the details of the law. T h e stones, wood, a n d dirt of a house that is demolished disseminate uncleanness in a m a n n e r comparable to corpse-matter, and that is stated explicitly: its stones and its wood a n d its dirt render unclean in the quantity of an olive's bulk. A house that is shut u p bottles u p its own uncleanness, and one that is declared unclean imparts uncleanness both inside and out. T h e uncleanness, then, functions as does corpse-uncleanness, disseminating its effects t h r o u g h o u t the space that is contained by the walls and roof of the unclean house. But the language that is used is "shade" (msk) and not "overshadow" ('hi). Specifically, there are points of differentiation from the corpse and the Zab. T h e unclean parts of the house impart uncleanness through contact and through being carried, but not through a stone, e.g., pressure, and not t h r o u g h overshadowing: H e whose hands overshadow a stone, whether above or below, is clean. A loaf of heave-offering w r a p p e d in bast or in p a p e r placed over a stone afflicted with plague, whether above or below, is clean. Corpse- and nega*-uncleanness intersect in the effects of an unclean house on a clean person, or an unclean person on a clean house. In both cases,

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uncleanness is disseminated, from house to person, or person to house. T h a t is clearly uncleanness through overshadowing, limited, however, to contained space. While corpse-matter that is overshadowed not in contained space emanates uncleanness, that is not so for "-uncleanness. But while corpse-uncleanness contaminates without regard to residency or ownership, «ega'-uncleanness involves the diseased person's taking up a dwelling. If he designates a dwelling as his own, the dwelling contaminates. If he merely passes u n d e r a tree or roof but does not remain there, that is not yet his dwelling a n d it is not contaminated by him. T h a t distinction is expressed at M . 13:7: passage u n d e r a tree where an afflicted person has taken u p residence imparts uncleanness to the clean person walking by. But if an unclean person passes under a tree under which a clean person is standing, the clean person is unaffected. M . 13:8 makes the same point: A clean person who put his head and the greater part of his body inside an unclean house is m a d e unclean. And an unclean person who put his head and the greater part of his body inside a clean house has m a d e it unclean. A clean cloak, three-by-three finger-breadths of which one put inside an unclean house, is made unclean. And an unclean cloak, any size piece, even an olive's bulk, of which one put inside a clean house—it the cloak has rendered it the house unclean. So too, if a clean person was standing outside an unclean house, a n d put his h a n d inside, with his rings on his fingers—they are clean until he will remain for a time sufficient for eating a piece of bread. So too, a person afflicted with the skin-ailment brings uncleanness to all the utensils contained therein, even to the beams. C o r p o r a t e Israel, in the form of the Israelite household, not only the individual Israelite, is represented here; the household suffers collectively; here is a form of uncleanness that is particular to not only the Israelite person a n d his clothing and covering (analogous to his skin) but the Israelite household, with the very building subject to uncleanness, not only the persons of the Israelite residents. But the reason that the building and clothing are affected is explicit and we noted it earlier. It is, when an Israelite possesses, dwells in the building, or purchases and makes use of the clothing, then his status as to sanctification extends to the house or the garment. So it is the Israelite that imparts the capacity to receive uncleanness, because it is the Israelite, dwelling in the land of Israel, that also imparts the

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status of sanctification. JVega'-uncleanness affects only a house in the L a n d of Israel in which Israelites live, a n d w h e n the gentile sells the house, t h e n a n d only then is it inspected afresh, a n d only f r o m that point is weg«'-uncleanness a n issue. T h e same is so for garments. O n l y Israelites are subject to the uncleanness of plagues, just as only Israelite corpses emit corpse-uncleanness. O n l y the Israelite possesses a soul t h a t , u p o n d e a t h , e x u d e s a n d f o r m s a p r i n c i p a l source of uncleanness, a n d the same conclusion pertains to nega -uncleanness a n d its signification. T h e status as Israelite makes a p e r s o n susceptible to uncleanness but also allows the Israelite to interpose against uncleanness, a n d in a c c o r d with susceptibility is the possibility of sanctification: Israelites receive uncleanness a n d afford protection for clothing in the house afflicted with plague. But the gentile a n d the beast d o not receive uncleanness a n d do not afford protection for clothing in the house afflicted with plague. Presently we shall see how, within the very context of the H a l a k h a h , sages e x p o u n d the m e a n i n g , for the Israelite household, of this p a r t i c u l a r f o r m of uncleanness, d r a w i n g m o r a l conclusions a b o u t the Israelite social o r d e r f r o m the a p p e a r a n c e of nega.'-uncleanness therein. N o w to r e t u r n to the first of the two points of the H a l a k h a h on w h i c h we c o n c e n t r a t e d . T h e d e f i n i t i o n of the irregularities in a person's skin or in the m o u l d affecting g a r m e n t s or a house makes sense in the context of corpse-uncleanness. T h e H a l a k h a h persists in insisting on a square shape for the m a r k s of uncleanness. W h y must the spot be square-shaped? T h e answer presents itself w h e n we invoke the analogy of corpse-uncleanness, which also passes through a square-shaped space, specified in M i s h n a h - t r a c t a t e O h a l o t at great length: a s q u a r e d h a n d b r e a d t h of o p e n space affords passage to the egress of corpse-uncleanness, a n d a s q u a r e d h a n d b r e a d t h of closed space closes off its egress. But h e r e the space is m u c h smaller, a n d it m a y well be diffused t h r o u g h the body. So too the r a w flesh must be f o u r sided. T h e decisive issue is the size a n d shape of the sign, a n d w h e t h e r it grows or diminishes. If the raw flesh loses its four sided c h a r a c t e r , it ceases to signify uncleanness: the size a n d shape m a t t e r . T h a t is the c o n t r i b u t i o n of the O r a l T o r a h . So the key is the insistence of the H a l a k h a h on the s q u a r e shape of the indicator of uncleanness a n d w h e t h e r , retaining its p r o p o r tions, it grows or diminishes to nullity. T h e uncleanness of nega'im is as t h o u g h — a s with the egress of corpse-effusion f r o m the c o r p s e —

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so here too the soul were leaking out of little square holes, rather t h a n p o u r i n g forth f r o m a large square hole affecting the entire corpse, such as takes place with the uncleanness of the soul that exudes at death. T w o white hairs in the bright spot signify the same, and they must be equal in length. T h e signification of the raw flesh m a y derive f r o m the decay that takes place after death; that is less certain in my view. W h a t is clear is that the T o r a h insists that the markings endure for a period of time, a week, m a t c h i n g the week's uncleanness that the corpse causes, and the week of the purificationrite—all correlated with the seven days in which the world was created. H e r e is a m a r k that the created world is not functioning in accord with its nature. T h e analogy to corpse-uncleanness persists throughout. But while comparable to corpse-uncleanness, the condition of nega -uncleanness differs, in that we deal with an interstitial condition. It is with someone who puts out the markings of a corpse but is not a corpse. If the person is wholly covered by a bright spot, his condition no longer is interstitial; he is now a breathing corpse and in no way unclean (Lev. 13:10 is then read to cover all markings of uncleanness). So a person m a y be classified in one of three ways: wholly a corpse, wholly natural and alive, and somewhere in-between, and that is where uncleanness signifies abnormality. But entering the interstitial situation is only for the Israelite. Israelites alone emit corpse-uncleanness, and they alone contract uncleanness from the skin-ailment (and related markings). T h e upshot is, if the bright spot flowered over the entire body, then, as Scripture says, the m a n is clean. T h e H a l a k h a h then clarifies, since the spot that breaks forth when the m a n is unclean clears him, one that breaks forth when the m a n is clean certifies that he is unclean. If the spot recedes f r o m the tips of the limbs, then the m a n reverts to uncleanness. So the interstitiality of the m a n ' s appearance, resolved in favor of his appearing entirely like a corpse, is resolved and the uncleanness ends: he obviously is not a corpse, so he is now clean. T h a t — a s we noted earlier—Israelites alone are subjected to the uncleanness of the skin-ailment, analogous to corpse-uncleanness, confirms that only Israelites enter into the system of uncleanness, purification, a n d sanctification. A gentile who has accepted the Seven C o m m a n d m e n t s that pertain to the children of N o a h is not affected, any more than is a gentile who has not. But, m o r e to the point,

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Israelites become susceptible to nega -uncleanness only after the giving of the T o r a h : MISHNAH-TRACTATE NEGAIM 7 : 1

These are clean bright spots: Those which were on him before the giving of the Torah, 2. on the gentile, and he converted, 3. on the child, and it was born. Birth into Israel anytime after (but not before!) the giving of the T o r a h , or conversion to J u d a i s m — t h e s e mark the point at which bright spots indicate uncleanness. I cannot imagine a more explicit way of making the point that the entire system concerns itself with the condition of Israel when subject to the T o r a h . T h e difference between corpse- and nega -uncleanness lies in the p e r m a n e n c e of the f o r m e r a n d the i m p e r m a n e n c e of the latter. Scripture introduces that conception that nega '‫־‬uncleanness is transient and may disappear by requiring an inspection a week after the original a p p e a r a n c e of the m a r k of uncleanness. T h e entire system of inspections, so well elaborated by the Halakhah, underscores that same quality of impermanence. T h e marks come and go, sometimes working together, sometimes working on their own. Here, again, the interstitiality of the condition of the afflicted person—like a corpse but not entirely like a corpse—shapes the problematics of the Halakhah. O n c e the affliction gets underway, it may disappear on its own, even before the person is declared definitively unclean. O r it may take p e r m a n e n t f o r m a n d m a r k the victim as unclean. T h e r e is nothing the victim can do to change his condition, and should he remove the marks of uncleanness, he is penalized. T h e upshot is, like death and the a p p e a r a n c e of the fluxes, for male and female, that mark procreative organs unable to carry out their assigned purpose, nega '-uncleanness comes and goes by nature. And that raises the question, how do sages account for the uncleanness at hand, the situation of death-that-is-not-permanent? T h e answer draws us back to our problem, the aberrant Israelite and his exclusion from the c o m m u n i t y of Israel, which is to say, the land of the living (a matter to which we return in the next section). T h e advent of nega '-uncleanness signifies that the victim gossiped or behaved arrogantly. Rabbinic J u d a i s m in its authoritative documents does not impute a negative moral j u d g m e n t to the natural conditions of the Z a b and Z a b a h , the menstruating w o m a n , the w o m a n after childbirth, all the more so the corpse. None of these sources of

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uncleanness involves repentance as a condition of purification, though a p u r i f i c a t i o n - r i t e is involved for all p e r s o n s t h a t h a v e served as a n i m a t e sources of uncleanness. H e r e , by contrast, an explicit j u d g m e n t is m a d e , in the context of the H a l a k h i c exposition: TOSEFTA-TRACTATE NEGAIM

6:7:

He would come to the priest, and the priest says to him, "My son, Go and examine yourself and return from your evil ways. "For plagues come only because of gossip, and leprosy comes only to those who are arrogant. And the Omnipresent judges man only in mercy." lo, they plagues come on his house: if he repents, it requires dismantling; and if not, it requires demolishing, lo, they appear on his clothing: if he repents, it requires tearing; and if not, it requires burning, lo, they appear on his body: if he repents, he repents; and if not, "Solitary shall he dwell; outside of the camp is his dwelling Lev. 13:46. C o r p o r a t e Israel enters in via the n e i g h b o r of a wicked m a n . H e too pays a price: He does not bring one stone for to replace two, nor two for one, but he brings two for two, for three, for four. On this basis have they said, "Woe to an evil person. Woe to his neighbor." The two of them tear down the stones, the two of them scrape the walls, the two of them bring stones. But he alone brings the dirt. As it is said, "And he shall take other plaster and plaster the house" (Lev. 14:40). T h e upshot is, in cause a n d effect, nega '-uncleanness is a social disease. H e r e is h o w t h e cited p a s s a g e of T o s e f t a o n t h e m a t t e r is amplified: A. B.

C. D. E. F.

G. H.

S I F R A CLV:I.8 "...saying" (Lev. 14:35) The priest will say to him words of reproach: "My son, plagues come only because of gossip [T. 6:7], as it is said, 'Take heed of the plague of leprosy to keep very much and to do, remember what the Lord God did to Miriam' (Dt. 24:80. "And what has one thing to do with the other? "But this teaches that she was punished only because of gossip. "And is it not an argument a fortiori? "If Miriam, who did not speak before Moses' presence, suffered so, one who speaks ill of his fellow in his very presence, how much the more so?" R. Simeon b. Eleazar says, "Also because of arrogance do plagues come, for so do we find concerning Uzziah, "as it is said, 'And he rebelled against the Lord his God and

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he came to the Temple of the Lord to offer on the altar incense and Azariah the Priest came after him and with him priests of the Lord, eighty strong men, and they stood against Uzziah and said to him, It is not for you to do, Uzziah, to offer to the Lord, for only the priests the sons of Aaron who are sanctified do so. So forth from the sanctuary. And Uzziah was angry,' etc. (II Chr. 26:16)" [T. Neg. 6:7H], T h e Halakhic texts then state explicitly that the a b e r r a n t individual has deliberately violated the integrity of corporate Israel. Gossip endangers the health of the household of Israel. All forms of wicked speech fall within that same category. In the principle of measure for measure, gossip, which disrupts c o m m u n i t y h a r m o n y , finds its penalty in ostracism, inflicted on the person who gossips through the m e d i u m of the skin ailment that is treated by excluding the afflicted from the c o m m o n life. T h e Aggadic exposition of the matter is mirrored in the norms of the H a l a k h a h , which stress the affect, upon the Israelite household, of the dwelling therein of a person afflicted with nega '-uncleanness: LEVITICUS RABBAH

1.

A. B. C. D. E. F.

G. 2.

A.

XVI:VI.L

Said R.Joshua b. Levi, "The word'torah'law occurs with regard to the leper on five different occasions: '"This is the Torah governing a spot of leprosy' (Lev. 13:59). '"This is the Torah governing him on whom is a spot of leprosy' (Lev. 14:32). '"This is the Torah governing every spot of leprosy and itch' (Lev. 14:54). '"This is the Torah governing leprosy' (Lev. 14:57). "And the encompassing reference: 'This will be the Torah governing the leper' (Lev. 14:2)—the Torah governing the common gossip. "This teaches you that whoever repeats gossip violates all five scrolls of the Torah." Therefore Moses admonished the Israelites, saying to them, "This will be the Torah governing the leper (mesora)" (Lev. 14:2)—the Torah governing the gossip.

T h e sages' familiar interest in showing the match between an offering and the sin for which it atones is followed up once more:

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LEVITICUS RABBAH X V I : V I I . 1

A.

B. C.

"The priest shall command them to take for him who is to be cleansed two living clean birds and cedar-wood and scarlet stuff and hyssop" (Lev. 14:4). Said R. Judah b. R. Simon, "Birds chirp a lot. This one who speaks gossip. "Said the Holy One, blessed be he, 'Let the one with a voice the bird come and effect atonement for what the voice of the gossip has done.'"

This reference to atonement through an appropriate m e d i u m establishes the careful match between sin a n d punishment. But what is striking is, in the entire presentation by the H a l a k h a h of the sources of uncleanness, it is only here that moral issues intervene. A critical motif of Rabbinic theology, the justice of G o d expressed through reward for righteousness a n d p u n i s h m e n t for sin, overspreads the H a l a k h a h governing the Israelite social order In general, uncleanness a n d sanctification form ontological, not moral categories. U n cleanness must come about naturally and not by h u m a n action, and must be removed by nature too, a rule in connection with removing the significations of nega '-uncleanness. Gossip a n d arrogance represent aspects of the same wicked attitude toward others, and both affect the community at large. T h e sages have corporate Israel take responsibility for such attitudes, because these endanger the c o m m u n i t y at large. For its part, H e a v e n takes responsibility where the attitude of the aberrant individual concerns H e a v e n only or mainly, corporate Israel only marginally or collaterally. W h e n sages account for other indications of Heavenly displeasure besides nega'-uncleanness, it ordinarily is in the context of relationships between Israel a n d G o d : MISHNAH-TRACTATE SHABBAT 2 : 6

On account of three transgressions do women die in childbirth: because they are not meticulous in the laws of (1) menstrual separation, (2) in those covering the dough offering, and (3) in those covering the kindling of a lamp for the Sabbath. T h e first clearly matches in a particular way, the second and the third are more general. Various specific penalties are incurred for specific sins. T h u s far we have dealt with the aberrant individual and how he is excluded f r o m the social order. H e a v e n ' s intervention has marked him off, and the rest follows.

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But Heaven intervenes not only when individuals rebel. God takes an active interest in corporate Israel. T h a t is when the c o m m u n i t y at large fails to carry out its obligations properly. Here is how the T a l m u d of Babylonia amplifies the principle just now set forth at M . Shab. 2:6, that there is a correlation between what one does or fails to do a n d what happens in succession. W h a t is important is the end-point: death represents the h u m a n condition by reason of man's exercise of free will to rebel against G o d ' s will. T o that proposition, everything else forms a footnote. First, we take up Heaven's response to the individual's neglect of his vows: BABYLONIAN T A L M U D T R A C T A T E S H A B B A T 2 : 6

1.12

A. B.

C.

1.13

A. B. C.

I.12FF./32B:

It has been taught on Tannaite authority: R. Nathan says, "On account of the sin of a man's unfulfilled vows a man's wife dies: 'If you have not wherewith to pay your vows, why should he take away your bed from under you?' (Prov. 22:27)." Rabbi says, "On account of the sin of a man's unfulfilled vows a man's children die when they are young: 'Suffer not your mouth to cause your flesh to sin, neither say before the angel that it was an error. Wherefore should God be angry at your voice and destroy the work of your hands?' (Qoh. 5:5). What is 'the work of a man's hands'? Say: It is his sons and daughters." Our rabbis have taught on Tannaite authority: "On account of the sin of unfulfilled vows children die," the words of R. Eleazar b. R. Simeon. R. Judah the Patriarch says, "It is on account of the sin of negleet of the Torah."

In the next item if one preserves a grudge, his own household will be disrupted by discord as well, so what the m a n has kept going will in the end affect his own home, a principle that has been enunciated in earlier passages; what one wants one does not get, but one loses what one already has: 1.17

A. B.

It has been taught on Tannaite authority: R. Nehemiah says, "For the sin of nursing a grudge [causeless hate], discord grows in someone's house, his wife will miscarry, and his sons and daughters will die young."

T h e household marks the b o r d e r between the Israelite and corporate Israel.

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N o w we move on to Heaven's disposition of the rebellion of corporate Israel. T h e dough-offering, a bit of dough removed before baking the bread, gives back to the priesthood, one of God's surrogates, p a r t of the grain that is used. Since it is a m a r k of a b u n d a n c e of food, failure to give that offering leads to a scarcity of food: II. 1

A.

B.

[The dough-offering:] R. Eleazar b. R. Judah says, "For the sin of neglect of the dough-offering, no blessing comes upon what is in storage, prices are cursed, seed is sown but others eat it up: '1 also will do this to you: I will visit you with terror, even consumption and fever, that shall consume the eyes and make the soul to pine away, and you shall sow your seed in vain, for your enemies shall eat it' (Lev. 26:16). Read the word translated as terror as though it were written, dough-offering. "But if they give it, they are blessed: 'You shall also give to the priest the first of your dough, to cause a blessing to rest on your house' (Ezek. 44:30)."

T h e gathered crops are liable to the separation of grain for heaveoffering a n d tithes, which represent G o d ' s share of the crop; these are given to the surrogates, the priests, Levites, or poor, and some of the tithes also are to be consumed by the farmer in Jerusalem; here too, G o d has a claim, a n d if that is not met, then rain is withheld. II.2

A.

For the sin of neglect of heave-offering and tithes, the heavens are shut up from bringing down dew and rain; prices are high; wages low; people pursue a living but don't catch up to it: "Drought and heat consume the snow waters, so does the grave those who have sinned" (Job 24:19).

Locusts represent thieves of the farmers' crops; for robbery, locusts come u p and steal the crops: II.4

A.

C.

For the sin of robbery, locusts come up and famine follows, and people eat the flesh of their sons and daughters: "Hear this word, you cows of Bashan, who are in the mountain of Samaria, who oppress the poor, who crush the needy" (Amos 4:1). And it is written, "I have smitten you with blasting and mildew; the multitude of your gardens and your vineyards and your figs trees and your olive trees has the palmer-worm devoured" (Amos 4:9); and further, "That which the palmer-worm has left has the locust eaten; that which the locust has left the cankerworm has eaten; that which the cankerworm has left the caterpillar has eaten" (Joel 1:4); "And one shall snatch on the right

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239

hand and be hungry and he shall eat on the left hand and they shall not be satisfied; they shall eat every man the flesh of his own arm" (Is. 9:19). Don ! t read the consonants that yield "the flesh of his own arm" in that way but as though they bore vowels to yield "the flesh of his own seed.,‫י‬ T h e failure of the political system—of the just use of the sword for acts of legitimate violence in recompense for violation of the just law—produces political crisis: war and disruption, a view we already have seen in another context: 11.5

A.

For the transgressions of the delay of judgment, perversion of judgment, spoiling judgment, and neglect of the Torah, sword and spoil increase, pestilence and famine come, people eat and are not satisfied, and they measure out the bread that they eat by weight: "And I will bring a sword upon you, that will execute the vengeance of the covenant" (Lev. 26:25). Covenant refers only to the Torah: "But for my covenant of day and night, I had not appointed the ordinances of heaven and earth" (Jer. 33:25), and "When I break your staff of bread, ten women shall bake your bread in one oven and they shall deliver your bread again by weight" (Lev. 26:26), "Because, even because they rejected my judgments" (Lev. 26:43).

Scripture itself precipitated thought along these lines, as a reading of Leviticus C h a p t e r 26 will readily reveal. W e should not find surprising that sages turned directly to that passage to expound in general terms the particular cases set forth there: 11.6

A.

For the sin of vain oaths, false oaths, profanation of the Divine Name, and desecration of the Sabbath, wild beasts multiply, domestic ones become few, the population declines, the roads become desolate: "And if by these things you will not be rebuked by me" (Lev. 26:23); Read the letters translated by "these things" as though they bore vowels to yield "by reason of oaths" [that are false]. Further, "and I will send the beast of the field among you" (Lev. 26:22). In regard to false oaths it is written, "And you shall not swear by my name falsely, so that you profane the name of God" (Lev. 19:12), and of the profanation of the Divine Name it is written, "that you do not profane my holy name" (Lev. 22:2), and the profanation of the Sabbath is set forth, "every one who profanes it shall surely be put to death" (Ex. 31:15), and the penalty for profanation derives from the penalty for a false oath. [Just as this is punished by the sending of wild beasts, so are the others.]

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A n d we come back to the point at which we began, the camp, or Temple, o f l s r a e l , and the exclusion of those that stand for the death of the community. If the T e m p l e is not kept pure and holy, God's Presence will depart from there: II. 7

A.

For the sin of bloodshed the Temple was destroyed and the Presence of God left Israel: "So you shall not pollute the land in which you are, for blood pollutes the land. And you shall not defile the land which you inhabit, in the midst of which I dwell" (Num. 35:33-4). "Lo, if you do make it unclean, you won't live there, and I won't live there."

Public sins against the social order, such as incest, idolatry, a n d neglect of the Sabbatical Year, are penalized by exile; others, m o r e worthy to live in the Holy L a n d t h a n Israel, will take over. 11.8

A.

For the sin of incest, idolatry, and neglect of the years of release and Jubilee, exile comes into the world, they go into exile, and others come and take their place: "For all these abominations have the men of the land done" (Lev. 18:27), "and the land is defiled, therefore I visit the iniquity thereof upon it" (Lev. 18:25), "that the land vomit you not out also when you defile it" (Lev. 18:28). With regard to idolatry: "And I will cast your carcasses upon the carcasses of your idols" (Lev. 26:30), "and I will make your cities a waste and will bring your sanetuaries into desolation" (Lev. 26:31), "and you will I scatter among the nations" (Lev. 26:33). In regard to the years of release and Jubilee Years: "Then shall the land enjoy her Sabbaths, as long as it lies desolate, and you shall be in your enemies land" (Lev. 26:34), "as long as it lies desolate it shall have rest" (Lev. 26:35).

11.9

A.

For the sin of a foul mouth, troubles multiply, evil decrees are renewed, Israel's youth die, and the fatherless and widows cry out and are not answered: "Therefore shall the Lord not rejoice over their young men, neither shall he have compassion over their fatherless and their widows; for every one is profane and an evil doer, and every mouth speaks folly. For all this his anger is not turned away, but his hand is stretched out still" (Is. 9:16).

So too b. Shab. 5:3 X I I . 1 2 / 5 5 a - b adds the more general statement of the governing rule of justice: sin brings on death, transgression, suffering. T h e point then is clear. But the principal source of uncleanness, the corpse, comes about

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by reason of death, and death comes about by reason of sin, as is stated in so m a n y words: PES1QTA D E R A B K A H A N A X I V : V . L

J.

L.

"So too all the generations came to the first Man, saying to him, 'Is it possible that the Holy One, blessed be He, is imposing the attribute of justice on you?' "He said to them, 'God forbid. I am the one who has brought about my own death. Thus did he command me, saying to me, 'Of all the trees of the garden you may eat, but of the tree of the knowledge of good and evil you may not eat' (Gen. 2:17). When I violated his instructions, I brought about my own death, for it is written, O n the day on which you eat it, you will surely die '(Gen. 2:17)."

D e a t h does not define the purpose of the life of A d a m a n d Eve but violates the teleology that governed God's making of them. So linking death to sin, the H a l a k h a h of Negaim states what we now realize is implicit in the definition of sources of uncleanness, beginning with the principal, the Father of Fathers of uncleanness, death itself. And that carries us to the social teaching concerning the death penalty inflicted by m a n .

IV. Restoring the Deliberately Sinful Individual to the Community of Israel: Sanhedrin-Makkot At issue in the death penalty imposed by the earthly court is the restoration of the deliberately sinful individual to the life of corporate Israel, which is to say, to eternal life, such as is promised to corporate Israel. T h a t is stated in so m a n y words and forms the principal social teaching of Rabbinic J u d a i s m : "All Israel possesses a portion in the world to come," meaning, life after the grave, with a few exceptions of classes of persons and individuals (M. San. 10:1 A). Certain sins or crimes that affect the social order, those carried out by individual Israelites (in the main) that endanger the health of the commonwealth, come to trial in the court conducted by sages and are penalized in palpable and material ways: death, flogging, a n d the like. H e r e G o d does not intervene, because m a n bears responsibility for this-worldly transactions. But, as we saw at Keritot, just as m a n shortens the life of the criminal or sinner in the matters specified in Sanhédrin and exacts physical penalty in the matters

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covered by Makkot, so G o d shortens the life of the criminal or sinner in matters of particular concern to G o d . These are matters that, strictly speaking, concern only G o d and not the Israelite c o m m o n wealth at large: sex, food, the T e m p l e and its cult, the laws of proper conduct on specified occasions. W h e r e the c o m m u n i t y does not and cannot supervise, G o d takes over. Israel does Israel's business, G o d does God's. For both the upshot is the same: sin or crime is not indelible. An act of rebellion is expiated through life's breath, an act of inadvertent transgression through the blood of the sacrificial beast, with the same result: all Israel, however they have conducted themselves in their span of time on earth, will enjoy a portion in the world to come: all but the specified handful, enter to eternal life beyond the grave. Promising an account of the courts and their procedures in adjudicating both property and capital cases, the H a l a k h a h in detail (not surveyed) delivers a systematic exercise to show how the various sins or crimes defined by Scripture are hierarchized, leading to the clim a x — t h e worst possible penalty—of denial of a portion in the world to come, which is to say, life eternal beyond the grave. T h e most p r o f o u n d question facing Israelite thinkers concerns the fate of the Israelite at the hands of the perfectly just a n d profoundly merciful G o d . T w o principles come to bear. First, essential to their thought is the conviction that because they enjoy f r e e d o m of will and make choices on their own, all creatures are answerable to their Creator. Second, absolutely critical to their system is the fact that at the end of days the dead are raised for eternal life. Accordingly, the criminal justice system encompasses deep thought on the interplay of God's justice and God's mercy: how are these reconciled in the case of the sinner or criminal? Within Israel's social order the H a l a k h a h addresses from a theological perspective the p r o f o u n d question of social justice: what shall we make of the Israelite sinner or criminal (there is no categorical difference)? Specifically, does the sin or crime, which has estranged him f r o m G o d , close the door to life eternal? If it does, then justice is implacable a n d perfect, but who can survive? If it does not, then G o d shows his m e r c y — b u t what of justice? W e can understand the answer only if we keep in mind that the H a l a k h a h takes for granted the resurrection of the dead, the final j u d g m e n t , and the life of the world to come beyond the grave. From that perspective, death becomes an event in life but not the end of life. And, it must follow,

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the death penalty too does not mark the utter annihilation of the person of the sinner or criminal. O n the contrary, because he pays for his crime or sin in this life, he situates himself with all of the rest of supernatural Israel, ready for the final j u d g m e n t . Having been j u d g e d , he will "stand in j u d g m e n t , " meaning, he will find his way to the life of the world to come along with everyone else. Within the dialectics formed by those two facts—punishment now, eternal life later o n — w e identify as the two critical passages in the Halakhah of Sanhedrin-Makkot M . Sanhédrin 6:2 and 10:1: MISHNAH-TRACTATE SANHÉDRIN

6:2

A.

[When] he was ten cubits from the place of stoning, they say to him, "Confess," for it is usual for those about to be put to death to confess. B. For whoever confesses has a share in the world to come. C. For so we find concerning Achan, to whom Joshua said, "My son, I pray you, give glory to the Lord, the God oflsrael, and confess to him, [and tell me now what you have done; hide it not from me.] And Achan answered Joshua and said, Truly have I sinned against the Lord, the God oflsrael, and thus and thus I have done" (Josh. 7:19). And how do we know that his confession achieved atonement for him? For it is said, "And Joshua said, Why have you troubled us? The Lord will trouble you this day" (Josh. 7:25)—This day you will be troubled, but you will not be troubled in the world to come. D. And if he does not know how to confess, they say to him, "Say as follows: 'Let my death be atonement for all of my transgressions.'" MISHNAH-TRACTATE SANHÉDRIN TOSEFTA-TRACTATE SANHÉDRIN

10:1

12:9,

13:5

M. 11:1 [Mishnah = 10:1, and so throughout] All Israelites have a share in the world to come, as it is said, "your people also shall be all righteous, they shall inherit the land forever; the branch of my planting, the work of my hands, that I may be glorified" (Is. 60:21). And these are the ones who have no portion in the world to come: He who says, the resurrection of the dead is a teaching which does not derive from the Torah, and the Torah does not come from Heaven; and an Epicurean. T. 12:9 They added to the list of those [who have no portion in the world to come] [M. San. 10:1]: he who breaks the yoke, violates the covenant, misinterprets the Torah, pronounces the Divine Name as it is spelled out [M. San. 10:1G], who have no portion in the world to come. T. 13:5 But heretics, apostates, traitors, Epicureans, those who deny the

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Torah, those who separate from the ways of the community, those who deny the resurrection of the dead, and whoever both sinned and caused the public to sin and those who sent their arrows against the land of the living and stretched out their hands against the "lofty habitation" [the Temple], Gehenna is locked behind them, and they are judged therein for all generations, since it is said, "And they shall go forth and look a he corpses of the men who were transgressors against me. or their worm dies not, and heir pre is not quenched. And they shall be an abhorring unto all flesh" (Is. 66:24). Sheol will waste away, but they will not waste away, for it is written, "and their form shall cause Sheol to waste away" (Ps. 49:14). What made this happen to them? Because they stretched out their hand against the "lofty habitation," as it is said, "Because of his lofty habitation, and lofty habitation refers only to the Temple, as it is said, I have surely built you as a lofty habitation, a place for you to dwell in forever" (I Kings 8:13). Achan pays the supreme penalty but secures his place in the world to come, all Israel, with only a few exceptions, is going to stand in judgment and enter the world to come, explicidy including all manner of criminals a n d sinners. H e r e is the ultimate point of resolution of the tension between the Israelite and corporate Israel. C o r p o r a t e Israel enters eternal life, carrying within all Israelites over all time, with the stated exceptions. C o r p o r a t e Israel takes pains to secure a place within its limits for every Israelite. W h a t the H a l a k h a h wishes to explore is, how is the Israelite sinner or criminal rehabilitated, through the criminal justice system, so as to rejoin Israel in all its eternity? T h e answer is, the criminal or sinner remains Israelite, no matter what he does— even though he sins—and the death-penalty exacted by the earthly court So the H a l a k h a h of Sanhédrin embodies these religious principles: [1] Israel endures for ever, encompassing (nearly) all Israelites; [2] sinners or criminals are able to retain their position within that eternal Israel by reason of the penalties that expiate the specific sins or crimes spelled out by the H a l a k h a h ; [3] it is an act of merciful justice that is done when the sinner or criminal is put to death, for at that point, he is assured of eternity along with everyone else. G o d ' s justice comes to full expression in the penalty, which is instrumental a n d contingent; G o d ' s mercy endures forever in the forgiveness that follows expiation of guilt through the imposition of the penalty. T h a t explains why the governing religious principle of SanhédrinMakkot is the perfect, merciful justice of G o d , and it accounts for

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the detailed exposition of the correct form of the capital penalty for each capital sin or crime. W e recall the same emphasis at the Halakhah of Keritot on the exact match between the sin-offering and the particular sin for which the offering atones. All the more so here, where the death penalty atones! T h e punishment must fit the crime within the context of the T o r a h in particular so that, at the resurrection a n d the j u d g m e n t , the crime will have been correctly expiated. Because the H a l a k h a h rests on the premise that G o d is just and that G o d has m a d e m a n in his image, after his likeness, the H a l a k h a h cannot deem sufficient that the punishment fit the crime. Rather, given its premises, the Halakhah must pursue the issue, what of the sinner once he has been punished? And the entire construction of the c o n t i n u o u s exposition of S a n h e d r i n - M a k k o t aims at making this simple statement: the criminal, in God's image, after God's likeness, pays the penalty for his crime in this world but like the rest of Israel will stand in justice and, rehabilitated, will enjoy the world to come. Accordingly, given their conviction that all Israel possesses a share in the world to come, meaning, nearly everybody will rise from the grave, the sages took as their task the specification of how, in this world, criminals-sinners would receive appropriate punishment in a p r o p e r procedure, so that, in the world to come, they would take their place along with everyone else in the resurrection and eternal life. So the religious principle that comes to expression in Sanhedrin-Makkot concerns the m e a n i n g of m a n ' s being in G o d ' s image. T h a t means, it is in m a n ' s nature to surpass the grave. And how, God's being just, does the sinner or criminal survive his sin or crime? It is by paying with his life in the here and now, so that at the resurrection, he may regain life, along with all Israel. T h a t is why the climactic m o m e n t in the H a l a k h a h comes at the end of the long catalogue of those sins and crimes penalized with capital punishment. It is with ample reason that the Bavli places at the conclusion and climax of its version the ringing declaration, "all Israel has a portion in the world to come, except " And the exceptions pointedly do not include any of those listed in the long catalogues of persons executed for sins or crimes. T h e sole exceptions, indeed, pertain to persons who classify themselves entirely outside of the criminal justice system: those who deny that the resurrection of the dead is a teaching of the T o r a h or (worse

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still) that the T o r a h does not come from God. 1 Now, as we realize, these classes of persons hardly belong in the c o m p a n y of the sinners and criminals catalogued here. T h e n come specified individuals or groups: T h r e e kings a n d four ordinary folk have no portion in the world to come. T h r e e kings: J e r o b o a m , Ahab, and Manasseh. Four ordinary folk: Balaam, Doeg, Ahitophel, and Gehazi. T h e r e follow the standard trilogy, the generation of the flood, the generation of the dispersion, the generation of Sodom and G o m o r r a h . We note the difference between the individual who commits an act of idolatry and the entire community, the townsfolk of the apostate town, that does so; G o d punishes a n d forgives the individual, but not an entire generation, not an entire community. T h a t is the point at which the criminal justice system completes its work. So within the very center of the Halakhic exposition comes the theological principle that the death-penalty opens the way for life eternal. It follows that at stake in the tractate Sanhedrin-Makkot is a systematic demonstration of how G o d mercifully imposes justice upon sinners and criminals, a n d also of where the limits to G o d ' s mercy are reached: rejection of the T o r a h , the constitution of a collectivity—an "Israel"—that stands against G o d . G o d ' s merciful justice then pertains to private persons. But there can be only one Israel, a n d that Israel is m a d e up of all those who look forward to a portion in the world to come: who will stand in justice a n d transcend death. In humanity, idolaters will not stand in j u d g m e n t , a n d entire generations who sinned collectively as well as Israelites who broke off f r o m the body of Israel a n d formed their own Israel do not enjoy that merciful justice that reaches full expression in the fate of Achan: he stole from G o d but shared the world to come. A n d so will all of those who have done the dreadful deeds catalogued here. But there is more. Sages recognize that, in the setting of this life, the death penalty brings anguish, even though it assures the sinner or criminal expiation for what he has done. T h a t matter is stated in so m a n y words: MISHNAH-TRACTATE SANHÉDRIN

A.

1

6:5

Said R. Meir, "When a person is distressed, what words does the Presence of God say? As it were: 'My head is in pain, my arm is in pain'.

I cannot pretend to explain the third item, the Epicurean, in so portentous a setting.

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"If thus is the Omnipresent distressed on account of the blood of the wicked when it is shed, how much the more so on account of the blood of the righteous!"

G o d is distressed at the blood of the wicked, shed in expiation for sin or crime, so too m a n . So while sages recognize the mercy and justice that are embodied in the sanctions they impose, they impute to G o d , and express in their own behalf, c o m m o n sentiments and attitudes. T h e y feel the same sentiments G o d does. What about corporate Israel's punishment? It is different from that inflicted on the individual Israelite. T h e Written T o r a h leaves no doubt about the penalties inflicted upon deliberately-sinful Israel: loss of the Land and exile. T h e narrative from Genesis through Kings fully spells out the m e a n i n g of national sin and exile. T o that set of facts, the O r a l T o r a h , for its part, contributes a separate consideration: the disposition of a sinful (idolatrous) community. T h e law calls that collectivity to j u d g m e n t before the court of seventy-one m e m bers such entities that sin collectively as the c o m m u n i t y formed by a sinful town, one that goes over to idolatry: MISHNAH-TRACTATE SANHÉDRIN

1:5

(1) They judge a tribe, a false prophet [Dt. 1 8 : 2 0 ] , and a high priest, only on the instructions of a court of seventy-one members. (2) They bring forth [the army] to wage a war fought by choice only on the instructions of a court of seventy-one. (3) They make additions to the city [ofJerusalem] and to the courtyards [of the Temple] only on the instructions of a court of seventy-one. (4) They set up Sanhédrins for the tribes only on the instructions of a court of seventy-one. (5) They declare a city to be "an apostate City" [Dt. 13:12ff] only on the instructions of a court of seventy-one.

Deliberately committed sins by the c o m m u n i t y at large—a tribe, a town—provoke j u d g m e n t by the great Sanhédrin, and the penalty for articulate rebellion against G o d , e.g., through idolatry, is the destruction of the entire community, which, furthermore, loses its portion in the world to come: MISHNAH-TRACTATE SANHÉDRIN

11:4

The townsfolk of an apostate town have no portion in the world to come, as it is said, "Certain base fellows [sons of Belial] have gone out from the midst of thee and have drawn away the inhabitants of their city" (Dt. 13:14). And they are not put to death unless those who misled the [town] come from that same town and from that same tribe, and unless the majority is misled, and unless men did the misleading.

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[If] women or children misled them, or if a minority of the town was misled, or if those who misled the town came from outside of it, lo, they are treated as individuals [and not as a whole town], and they [thus] require [testimony against them] by two witnesses, and a statement of warning, for each and every one of them. This rule is more strict for individuals than for the community: for individuals are out to death by stoning. Therefore their property is saved. But the community is put to death by the sword, Therefore their property is lost. So m u c h for the sanctions imposed for collective guilt that is deliberately incurred, e.g., by an entire tribe that willfully and knowingly violates the law or a city that all together opts for idolatry. W e turn to the final problem: when the community collectively errs, what penalty is exacted from the individual who participates?

V. The Responsibility of the Individual when the Community Collectively Errs: Iiorayot So m u c h for corporate Israel's provision for the Israelite's eternal life. W h a t about the contrary situation, when corporate Israel errs and in the deal causes individual Israelites to do so as well? T h e native-category-formation, Horayot, deals with collective sin through erroneous decisions m a d e by instruments of government, as distinct from those of individuals or towns (e.g., the one that goes astray through public idolatry). Scripture makes provision for collective expiation of guilt incurred on account of collective action effected through public institutions of government or instruction. T h e Written T o r a h refers to a sin committed in error. A court instructs the c o m m u n i t y to do something that should not be done, thus the erroneous instruction to which the Halakhah pertains. Lev. 5:1-5, 13:21, 22:26, a n d N u m . 15:22-26, deal with that situation. Cultic penalties for official instruction—that of the anointed priest—in error and the consequent sin are specified at Lev. 4:1-5. T h e entire congregation's doing so is taken up at Lev. 4:13-21. Lev. 4:22-26 move on to the ruler. Finally, at N u m . 15:22-29, the unwitting sin of the entire c o m m u n i t y is addressed (the deliberate sin of the entire c o m m u n i ty, in the case of idolatry, already having been taken up elsewhere. So the ruler, the high priest, or the people all are subject to the sanction invoked by the erroneous ruling, which has caused this unwitting sin. And, conversely, individuals are not. Interstitial issues— did the court and the public act together, did the court issue the ruling

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while the public carried it out, and the like?—are addressed in the Oral T o r a h ' s contribution to the Halakhah. T h e court, the ruler, and the high priest embody the community at large, the body of political institutions that, each in its own realm, bears responsibility for the whole. This tripartite division of political power dictates the organization of the Halakhic exposition before us. As usual, the center of interest is divided between the crime and its penalty. 111 the present instance of inadvertent crime penalized by a particular offering, the careful specification of which sort of beast matches which condition of inadvertent sin demands close attention. Sages clearly knew the code of animal offerings, understanding why a given situation dem a n d e d a particular type of beast, and how to decipher that code is to be reconstructed out of the facts at hand. T h e basic principle is expressed at the very outset: MISHNAH-TRACTATE HORAYOT 1:1, 3, 4 TOSEFTA-TRACTATE HORAYOT

1:1,7

M. 1:1 [If] the court gave a decision to transgress any or all of the commandments which are stated in the Torah, and an individual went and acted in accord with their instructions, [so transgressing] inadvertently, (1) whether they carried out what they said and he carried out what they said right along with them, (2) or whether they carried out what they said and he carried out what they said after they did, (3) whether they did not carry out what they said, but he carried out what they said—he is exempt, since he relied on the court. [If] the court gave a decision, and one of them knew that they had erred, or a disciple who is worthy to give instruction, and he [who knew of the error] went and carried out what they said, (1) whether they carried out what they said and he carried out what they said right along with them, (2) whether they carried out what they said and he carried out what they said after they did, (3) whether they did not carry out what they said, but he carried out what they said—lo, this one is liable, since he [who knew the law] did not in point of fact rely upon the court. This is the governing principle: He who relies on himself is liable, and he who relies on the court is exempt. T h e main point is clear: the individual who has violated the law relying on the instructions of the court is exempt from having to present an offering on account of his inadvertent sin. H e is in no way responsible for what he has done. But this basic rule requires refinement, as we shall see. T.

1:1 [If] the court gave a decision, and one of them knew that they had erred [M. Hor. 1:1H], or if one of the experienced disciples was sitting before them and worthy of giving a decision, like Simeon b.

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Azzai, and he went and carried out what they had said Lo, this one is liable, since he did not [in point of fact] rely upon the court [M. Hor. 1:1J, N-O]. [If] the court gave a decision, and the entire community, or the majority of the community, carried out their decision, when their decision is the decision of a court, they are exempt. And those who carry out their decision bring a sheep and a goat. T h e main point is as stated at M. 1:1: he who relies on himself is liable, on the court is exempt. M. 1:3 [If] a court gave a decision to uproot the whole principle [of the Torah]—[for example,] (1) [if] they said, "[The prohibition against having intercourse with] a menstruating woman is not in the Torah [Lev. 15:19]." (2) "[The prohibition of labor on] the Sabbath is not in the T o r a h . , 3 ) ‫[" ) י‬The prohibition against] idolatry is not in the Torah." Lo, these are exempt [from the requirement of Lev. 4:14], [If] they gave instruction to nullify part and to carry out part [of a rule of the Torah], lo, they are liable. How so? (1) [If] they said, 'The principle of prohibition of sexual relationships with a menstruating woman indeed is in the Torah, but he who has sexual relations with a woman awaiting day against day is exempt." (2) "The principle of not working on the Sabbath is in the Torah, but he who takes out something from private domain to public domain is exempt." (3) "The principle of not worshipping idols is in the Torah but he who bows down [to an idol] is exempt."—lo, these are liable, since it is said, "If something be hidden" (Lev. 4:13)—something and not everything. W h e r e the T o r a h is explicit and unambiguous, error provides no excuse; there is no mitigating circumstance, and false instruction carries no weight. T.

1:7 A. [If] a court gave a decision to uproot the whole principle [of the Torah] [M. Hor. 1:3A]—[if] they said, "The prohibition of blood is not in the Torah," and, "The prohibition of forbidden fat is not in the Torah," and, "The prohibition of refuse [sacrificial meat] is not in the Torah," Lo, these are exempt. [If] they gave instruction to nullify part and to carry out part, lo, they are liable [M. Hor. 1:3F], How so? [If they decided,] "There is blood prohibited in the Torah, but they are not liable on account of blood which is offered as peace-offerings"—"There is the prohibition of refuse in the Torah, but peopie are liable only in regard to refuse deriving from peace-offerings"— Lo, these are liable, as it is said, "The word of the Lord" (Dt. 17:8). Word is said here, and word is said below. Just as word stated later on refers to part of a word but not the whole of it, so word stated in this context means part of a word but not the whole of it. You maintain that word refers to part but not the whole of it. But perhaps it refers only to the whole of it. Scripture says, "Between blood and blood" (Dt. 17:8)—and not all types of blood. "Between judgment and judg-

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ment"—and not the whole of a judgment. Between Nega'" and nega'— and not the whole nega'. Lo, one need not state matters in accord with the latter version but only in accord with the former version. It is stated here, word, and later on, word also is stated. Just as word which is stated later on refers to part of it but not the whole of it, so word which is stated here refers to part of it and not the whole of it. M. 1:4 (1) [If] the court gave a decision, and one of the members of the court realized that they had erred and said to them, "You are in error," or (2) if the head of the court was not there, or (3) if one of them was a proselyte, a mamzer, a Netin, or an elder who did not have children—lo, these are exempt [from a public offering under the provisions of Lev. 4:14], since "Congregation" is said here [Lev. 4:13], and "Congregation" is said later on [Num. 15:24]. Just as "congregation" later on applies only in the case in which all of them are suitable for making a decision, so "congregation" stated here refers to a case in which all of them are suitable for making a decision. [If] the court gave an incorrect decision inadvertently, and the entire community followed their instruction [and did the thing in error] inadvertently, they bring a bullock. [If the court gave an incorrect decision] deliberately, but the community, following their instruction, did the thing in error] inadvertently, they bring a lamb or a goat (Lev. 4:32, 27). [If the court gave incorrect instruction] inadvertently, and [the community followed their instruction and did the thing in error] deliberately, lo, these are exempt [under the provisions of Lev. 4:4]. W h a t links the individual to the c o m m u n i t y , so assigning to the collectivity the consequence of private behavior? H e r e we turn to the m a t t e r of where a n d how the public bears responsibility for private, individual conduct—collective guilt for individual action. T h e individual is subsumed within the c o m m u n i t y when his action resuits from a c o m m o n misconception fostered by the community's representative agencies. W h a t triggers the application of the collective penalty provided by the H a l a k h a h of Horayot is reliance upon the community's court. H e who relies on himself is liable, a n d he who relies on the court is exempt. H e r e is a case, then, in which "he told me to do it" represents a valid claim; the case is carefully restricted. T h e H a l a k h a h ordinarily does not accept such a claim, as we noted in the explicit statement that ordinarily no one can blame a third party for damages that he does, with the allegation that soand-so told me to do it: MISHNAH-TRACTATE BABA QAMMA 8 : 7

Even though [the defendant] pays off [the plaintiff], he is not forgiven until he seeks [forgiveness] from [the plaintiff]. He who says, "Blind my eye," "Cut off my hand," "Break my leg"—[the one who does

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so] is liable. [If he added,] ". . . on condition of being exempt," [the one who does so] is liable [anyhow]. "Tear my cloak," "Break my jar," [the one who does so] is liable. [If he added,] ". . . on condition of being exempt," [the one who does so] is exempt. "Do it to Mr. So-and-so, on condition of being exempt," he [who does so] is liable, whether this is to his person or to his property. So the H a l a k h a h is clear in a variety of contexts: people are responsible for their own deeds. W h e n , then, does the person who does a deed validly assign guilt to a third party? It is when the court speaks in the n a m e of the T o rah—erroneously. But even here, the conditions u n d e r which such a claim may register are narrowly defined. T h e only case in which the c o m m u n i t y at large does not deliberately violate the T o r a h and incur the penalty of death now and the loss of eternity at the last j u d g m e n t involves erroneous instruction on the part of the court. T h e n , w h e n an individual sins in ignorance, he is exempt f r o m penalty, having relied on the court. Even though an individual knows the law, if he relies u p o n the court, he is exempt. T h e court is liable. But the error of the court must pertain to details, not to the basic rule, which the court is expected to know. T h e individual, as m u c h as the community, bears responsibility to know the T o r a h ' s explicit laws. Inadvertent errors in detail based on court instruction alone allow the individual to assign guilt to the c o m m u n i t y at large. And then Scripture then provides for a means of expiating the collective sin. But inadvertence affects both the c o m m u n i t y and the court, so a range of possibilities comes u n d e r consideration, e.g., if the court gave an incorrect decision inadvertently, and the entire c o m m u n i t y followed their instruction and did the thing in error, if the court gave an incorrect decision deliberately, but the community, following their instruction, did the thing in error inadvertently, if the court gave incorrect instruction inadvertently, and the community followed their instruction and did the thing in error deliberately, and so on. So m u c h for the court a n d community. N o w we proceed to the high priest: MISHNAH-TRACTATE HORAYOT

2:1-4

M. 2:1 [If] an anointed [high] priest made a decision for himself [in violation of any of the commandments of the Torah], doing so inadvertently, and carrying out [his decision] inadvertently, he brings a bullock (Lev. 4:3). [If] he [made an erroneous decision] inadvertently, and deliberately carried it out, deliberately [made an erroneous decision] and inadvertently carried it out, he is exempt. For an [erro-

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neous] decision of an anointed [high] priest for himself is tantamount to an [erroneous] decision of a court for the entire community. T h e same p a t t e r n that governs is n o w r e p e a t e d for a new authority. T h e Yerushalmi, given in italics, clarifies matters. H e r e we find a c o m p l i c a t i o n in the distinction b e t w e e n c o r p o r a t e Israel a n d the individual Israelite. T h e high priest is a n individual but represents c o r p o r a t e Israel. T.

2:1 1:1 ["If any one sins unwittingly in any of the things which the Lord has commanded not to be done and does any one of them, if it is the anointed priest who sins, thus bringing guilt on the people, then let him offer for the sin which he has committed a young bull" (Lev. 4:2-3).] "Anyone ..." "if it is the high-priest ...,"—10, [the Scripture would seem to imply that] the high priest is tantamount to an individual. [In this case, Scripture's purpose is to say:] Just as an individual, if he ate [something prohibited] at the instruction of a court is exempt, so this one [subject to court authority], if he ate something at the instruction of the court, is exempt. Just as an individual, if he ate [something prohibited] without the instruction of a court is liable, so this one, if he ate something not at the instruction of a court, is liable. [To encounter that possible interpretation] Scripture states, "Thus bringing guilt on the people," [meaning] 10, [the high anointed priest's] guilt is tantamount to the guilt of the entire people [just as M. 2:IF states]. Just as the people are not guilty unless they gave instruction [Lev. 4:13], so this one is not guilty unless he gave instruction.

Because of the office that he holds, the high priest is b o t h a public figure a n d a private person, a n d that distinction registers here: M. 2:2 [II] lie made an [erroneous] decision by himself and carried it out by himself, he effects atonement for himself by himself. [If] he made [an erroneous] decision with the community and carried it out with the community, he effects atonement for himself with the community. For a court is not liable until it will give an erroneous decision to nullify part and to carry out part [of the teachings of the Torah], and so is the rule for an anointed [high priest] [M. 1:3]. And [they] are not [liable] in the case of idolatry [subject to an erroneous decision] unless they give a decision to nullify in part and to sustain in part [the requirements of the Torah] [M. 1:3]. W h e n is the court liable, a n d for w h a t kind of a t o n e m e n t ? M. 2:3 They are liable only on account of something's being hidden (Lev. 4:13) along with an act [of transgression] which is performed inadvertently, and so in the case of the anointed [high priest]. And [they are] not [liable] in the case of idolatry except in the case of something's being hidden along with an act [of transgression] which is performed inadvertently. The court is liable only if they will give an erroneous decision in a matter, the deliberate commission of which is punish-

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able by extirpation, and the inadvertent commission of which is punishable by a sin offering, and so in the case of the anointed [high priest], and [they are] not [liable] in the case of idolatry, except in the case in which they gave instruction in a matter the deliberate commission of which is punishable by extirpation, and the inadvertent commission of which is punishable by a sin offering. T h e main point is, if the inadvertence covers a well-known rule of the T o r a h , no one can claim exemption: M. 2:4 They are not liable on account of [a decision inadvertently violâting] a positive commandment or a negative commandment concerning the sanctuary. And they do not bring a suspensive guilt offering on account of [violation of] a positive commandment or a negative commandment concerning the sanctuary. But they are liable for [violating] a positive commandment or a negative commandment involving a menstruating woman. And they do bring a suspensive guilt offering on account of [violation of] a positive commandment or a negative commandment concerning a menstruating woman. What is a positive commandment concerning a menstruating woman? To keep separate from a menstruating woman. And what is a negative commandment? Not to have sexual relations with a menstruating woman. W h a t about unwitting sin carried out by the two other institutions of politics and public policy, the high priest and the ruler? These two also fall into the class of the c o m m u n i t y at large. H e r e too, inadvertent sin is wiped away by an appropriate collective offering, the bullock in the present case. T h e n the issue concerns whether the priest or ruler erroneously decided and acted by himself or did so with the community. T h e n the same rules that govern a mistaken decision taken by the court come into play. As to the ruler or high priest, a sequence of situations is worked out: what offering pertains to an anointed priest who sinned upon leaving office, so too a ruler; what do we do with one who sinned before a p p o i n t m e n t and then were appointed? These are peripheral questions indeed. W h a t we address, therefore, is the problem of the individual a n d the c o m m u nity. T h e issue is f r a m e d in terms of not private sin and collective guilt, but collective sin a n d individual responsibility therefor. W h a t is at stake in the H a l a k h a h of Horayot? It is not so m u c h the distinction between the c o m m u n i t y and the individual as the interrelationship of the Israelite with corporate Israel as an autonomous moral entity. T h a t is represented by the e m b o d i m e n t of Israel in the high priest or the ruler or the court, the three foci of politics that serve to govern Israel a n d inflict the this-worldly sanctions that

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pertain. W h e n the H a l a k h a h deals with the deliberate sin or crime of the individual, it inflicts capital or corporal punishment, as the case requires. W h e n the H a l a k h a h deals with the deliberate sin or crime of the individual or of the community, it for the most part falls silent: G o d intervenes, and (outside of the framework of prophecy) we have little Halakhah that spells out the rules for divine intervention: we know who is subject to extirpation but not how extirpation is imposed upon the individual, and only a handful of rules pertain to how extermination or exile is imposed upon the community. What sages wished to say through the H a l a k h a h of Horayot is, when it comes to deeds performed in good faith by the individual at the instance of the community and its authorities, the community, not the individual, bears collective guilt, and the individual is atoned for within the offerings of the community at large. Horayot in its way bears all of the messages that Sanhedrin-Makkot or Keritot, respectively, delivers in their m a n n e r . All insist upon an exact match between inadvertent sin or crime, whether personal or public, and the animal offering that expiates the sin or crime and that accomplishes Israel's atonement. O n that basis, eternal life must come to (nearly) all Israel, one by one and all together.

VI. Eternal Israel and the Individual Israelite's Conquest of Death We have already seen that the basic logic of the system requires the doctrine of personal resurrection, so that the life of this world may go onward to the next. T h e entire system of criminal justice, involving corporal and capital punishment, revolves around the conception of life beyond the grave, which requires punishing sinners or criminals in this world so that they may be fully at one with G o d at the resurrection and the last j u d g m e n t . Indeed, without the conception of life beyond the grave the system as a whole yields a mass of contradictions and anomalies: injustice to the righteous, prosperity to the wicked, never recompensed. Without resurrection and judgment, the system cannot account for the very being of the private person. T h a t explains why at one point after another, the path to the future passes through, and beyond, the grave and the judgment that, for all Israel with few exceptions, leads to eternity. T h e principal continues and yields interest, or punishment may take place in this world, while eternal punishment goes onward as well, especially for the trilogy

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of absolute sins, idolatry, incest (or fornication) and murder, capped by gossip. But how all of this squares with the conception of "all Israel"—that autonomous, unique moral entity, corporate Israel— that transcends individual Israelites remains to be seen. T h e individual Israelite is the focus of resurrection and judgment, for people die one by one. "Israel" the holy people, by contrast, never dies. It is the enduring component of humanity, that part of humanity that knows G o d through God's own self-manifestation in the T o r a h . T h e sector of mankind that accepts the law of the T o r a h as the will of God, corporate Israel cannot die any more than G o d can. T h e n to corporate Israel, resurrection categorically does not pertain. True, j u d g m e n t does. Corporate Israel is subject to j u d g m e n t as much as individual Israelites are. But for Israel the people j u d g m e n t is not left to the end of days, when the dead will rise from their graves. For corporate Israel j u d g m e n t takes place in this world and in this age. O f t h a t Scripture leaves no doubt. T h e Written T o r a h laid down the principle that Israel suffers for its sins, and everything that has happened since the closure of the Written T o r a h only confirms that principle. T h e very continuation of Scripture beyond the Pentateuch and the account of the inheritance of the Land makes that point. T h e explanation of Israel's subjugation to the gentiles and their idolatry carries within itself a profound statement about corporate Israel's identity, its enduring presence, from this age to the world to come, without interruption. Corporate Israel is j u d g e d and suffers its punishment in the here and now. T h a t conviction animates the entire theological system before us. T h e n that same Israel, the never-dying people, emerges in the world to come fully at one with G o d . Indeed, that is the m e a n i n g of the advent of the world to come: "today if all Israel will it," "today if all Israel keeps a single S a b b a t h . " T o corporate Israel, a moral entity without c o u n t e r p a r t , the resurrection of the dead therefore bears no categorical relevance. T h e advent of the world to come and eternal life bears its own meaning for Israel the holy people. T o Israel the Israelite, the resurrection of the dead forms the beginning of the restoration of Eden, now meaning, the restoration of Israel to the Land of Israel, as we have noted many times. As it happens, the documents of the O r a l T o r a h tend to sustain the distinction between the individual Israelite and corporate Israel in the end of days. T h e sources that deal with resurrection rarely refer to the world to come, except as an ordinal consequence of

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257

resurrection. W h e n it comes to speak of resurrection, the Oral T o r a h rarely speaks of Holy Israel, but nearly always addresses the individual Israelite. Along these same lines, gentiles occur only as the null-collectivity, non-Israel, and except in a special case of a gentile who had a special relationship with Israel, such as Balaam. Nearly all proofs in the T a l m u d , for example, for the facticity of resurrection invoke the m e t a p h o r of individual, not collective life; even with the opportunity near at h a n d , in the very hermeneutics of the discourse, not a single one in the sizable exercise in Bavli-tractate Sanhédrin C h a p t e r Eleven points to the eternity of corporate Israel as evidence, in Scripture, for the resurrection of the dead. Most cases, most analogies, most arguments appeal to the condition of the individual. And, concomitantly, the sources that address the world to come ordinarily refer to corporate Israel, speaking of the Israelite only in the setting of the beginning of the age that will not end. The Israelite is subsumed within, though never obliterated by, corporate Israel. T o be sure, the promise of "the life of the world to c o m e " addresses individual Israelites, whose conduct dictates their ultimate destination; but there, implicit is the intervention of the last j u d g ment, which assures the correct reward or punishment. T h a t is how individual Israelites conquer death. But corporate Israel never dies, so G o d promised long ago. Speaking to the present: so far he has kept that promise.

INDEX

Abstinence, 72-74 Achan, 50, 243-244 Adam and Eve, 12-13, 114-115 intentionality of, 219-220 as Israel, 130-131, 134 Aggadah category-formations in, 7 - 8 Alleyways, commingling of, 147 'Am ha'ares, 178-187, 201 Analogies, conflict of, 32, 33 Apostasy, 208-209 Arakhin, 55, 65 Atonement for sin, 13-14 individuals and, 6 0 - 6 1 , 2 2 1 - 2 2 5 , 235-236 Israel's, 53-54, 59, 61, 108-113 Attribution in Halakhah, 26 Autonomy, personal defined, 45-47 individuation and, 97-103 intentionality and, 5 2 - 5 3 Bikkurim, 116-123 Category-formations about, 5 - 8 Children, purity and, 191-192 Christian theology, 29-30 Citation, 4 Civil order, 14 Cleanness/uncleanness, 15, 16, 177 187 bodily discharges, 225-229 corpse-uncleanness, 182, 227-228, 229-230, 232-233 gentiles and, 228-229 nega'-uncleanness, 2 2 6 - 2 2 7 , 2 2 9 236 probability of, 187-201 skin-ailments, 226-227, 229-236 Coercion, 211-212 Coherency, 34-39 Coherency of Halakhic discourse, 4 - 6 , 5n2, 20-21, 23, 34-39 Collective responsibility, 4 9 - 5 0 , 108 113, 247-255

Commingling, meal of, 137-138, 139143, 145-146, 156 Community apostasy of, 208-209 collective atonement, 108-113 divine activity creates, 104 individual responsibility in sin of, 248-255 individuals make up, 104-107 individuals subservient to, 162-164 joint possession and, 135-137, 139143, 147-148 political power of, 211-212 property and, 124-134 removing aberrant individuals from, 225-241 restoring sinful individuals to, 2 4 1 248 ' tolerated law-breaking, 166-176 Composites, positional statements of, 26, 27 Consensus of the faithful, 51-52 Conversion/converts, 105, 122-123 Corpse-uncleanness, 182, 2 2 7 - 2 2 8 , 229-230, 232-233 Creation in repose, 11-12 Crimes, 213 Crops, 126-128 Culpability, 150-153 Cultic cleanness, 169, 177-187, 187201 Day of Atonement, 224 Death, 159-161, 229-236, 240-241 Death-penalty, 213, 215-216, 245, 246247 Debts, remission of, 128-129, 134 Dema'i, 166-177 Differentiation, hierarchical, 57-58, 9 0 91 Domain, householders, 124-134, 135139,143-144 Donation, personal, 54-56 Dough-offering, 238

260

INDEX

Eden, 11-12, 13, 18 enemies of Eden, 14—15 enlandisement of, 132-134 intentionality in, 2 1 9 - 2 2 0 m e t a p h o r of, in Sheb'it, 154-155 Enemies of Eden, 14-15 Enlandisement, 6 3 - 6 5 , 106, 121-123 Erub meal, 137-138, 139-143, 145-146, 156 Erubin, 134-147 Exile, 2 1 3 - 2 1 4 , 214, 240 Extirpation, 213, 215, 222, 223 Family, 13, 104-105 Fasting, 7 2 - 7 4 Firstfruits, presentation of, 116-123 Flogging, 214 F o o d / d r i n k , purity of, 185-187, 198, 202-203 Garments, 231 Genealogy, 1 2 1 - 1 2 3 Gentiles, 47, 57, 9 8 - 9 9 , 104-105, 112, 228-229 Gifts, donating to T e m p l e , 5 4 - 5 5 , 62 God's will, 2 0 3 - 2 0 5 , 2 0 8 - 2 0 9 Gossip, 2 3 4 - 2 3 5 Guilt, of individuals, 54 Habenm, 178-187, 201 Hagigah, 60 Halakhah contradictions within, 19-20 documents of, 10 hierarchical classification, 9 0 - 9 1 language, as power in, 94, 95 native category-formations in, 7 - 8 , 11-17 n o r m a t i v e n a t u r e of whole documents, 2 7 - 2 8 theological narrative of, 9 - 1 1 , 1 7 19 " Half-sheqel offerings, 108-113 Hansen's Disease, 226 Heave-ofTerings, 167-169, 181, 194, 238 Hierarchical classification, 9 0 - 9 1 High priests, 2 5 2 - 2 5 4 Hoarding, 126-128 Holy Things, 7 8 - 7 9 , 2 0 2 - 2 0 3 Horayot, 2 4 8 - 2 5 5 Households, 137-139 Humanity, unsocialized, 105

Humility, 7 4 - 7 6 Idiosyncrasy, 52, 7 9 - 8 0 , 8 3 - 8 7 Idolatry, 2 4 5 - 2 4 8 Individuation a u t o n o m y and, 9 7 - 1 0 3 , 142 defined, 45, 4 6 - 4 7 , 4 9 - 5 3 enlandisement and, 6 3 - 6 5 Firstfruits and, 120-121 language and, 8 4 - 8 5 law-breaking, tolerated, 166-176 m a r t y r d o m , 157-159 offerings, personal, 6 0 - 6 1 opportunities for, 52 in piety, 5 3 - 5 7 , 6 7 - 6 9 self-aggrandizement, 6 6 - 7 8 vows, 8 7 - 8 8 Intentionality, 14, 5 2 - 5 3 in acts, 151 inadvertence, 2 2 1 - 2 2 5 , 2 4 9 - 2 5 5 of language, 7 9 - 8 0 , 8 3 - 8 5 , 97 law-breaking and, 2 1 8 - 2 2 0 purity laws and, 185-186, 189-190, 200-206 in vows, 8 9 - 9 5 see also will, M a n ' s Israel atonement for sin of, 5 3 - 5 4 , 59, 61, 108-115 counterparts to, 47, 99 duties of, 47 formation of, 44—45, 159-161 m e a n i n g of, 18-19, 4 0 - 4 3 as unique social entity, 50, 104 Jews, 21 Jubilee Year, 64, 131-132 J u d a i c Reformation, 42 Justice, 2 0 9 - 2 1 0 , 2 4 2 - 2 4 3 Keritot, 2 2 1 - 2 2 5 K i n g d o m of God, 16-17, 18 Kohens, 81 Land ownership vs. possession, 124-134 see also e n l a n d i s e m e n t ; Firstfruits, presentation of Language ambiguity, 8 7 - 9 0 intentionality in, 79-80, 8 3 - 8 6 , 8 8 92, 97

INDEX

power in, 94-95 specificity/classification, 90-91 Law(s) crimes and penalties, 213-215 indifference to, 177 187,201 206 and individuation, 52, 164 observancy of, 174-176 purity, 177-206 tithing, 167-168, 170-173, 205 tolerated law-breaking, 166-176 tripartite authority, 215-218 Legal principles, 35 Leprosy, 226, 235 Levite's tithe, 167-169 Life and death, 14-15 Life eternal, 100-101, 103, 241-248, 255-257 Locusts, 238-239 Luther, 46 Makkot, 241-248 Mamzerim, 200 Markets, 183 Marriage-agreements, 13 Martyrdom, 157-159 Mercy, 243, 244-245, 246 Miracle-workers, 76-77 Miriam, 226 Mythic monotheism, 1 Native category-formations, syntax, 7 8 Nazirites, 80-83 Nedarim, 78-97 Negaim, 225-235 .%a'-uncleanness, 226-227, 229-236 Normative vs. schismatic data canonical signs of normativity, 25 30 logic in determining, 19-25 Norms of behavior, 165, 166-167 Obedience, 42 Offerings, obligatory, 53-54, 108-113, 214 Offerings, personal, 60-61 Offerings, sin, 221-222 Opinion, 51 Ownership, 12 Partnership, meal of, 139, 143 Paul, 46

261

Pentecost, 117, 118 Pharisaism, 70-71 Piety, 52, 53-57, 66-78 Power, political, 210-211, 216-217 Priestly Code, 131, 153 Priests, 8 1 - 8 3 Principles, determining from cases, 3 2 40 Private/public domains purity and, 190, 199 Sabbath and, 135-147, 148-153, 155-157 Probabilities (purity), 187-201 Produce, tithing, 171-173 Property debts, remission of, 128-129, 134 joint possession, 135-137, 140-146, 156-157, 183, 185 186 Jubilee Year, 64, 131-132 ownership vs. possession, 106, 124134 Sabbatical year, 125-128, 134 Protestant Reformation, 42 Public life, 1-2, 157-161, 171 Public speech, 80-81, 83-86 Public use, 112 Purity/purification laws, 177-187 certainty needed, 189, 193-194 children and, 191-192 indifference to, 201-206 intentionality and, 185-186, 189190, 200-206 public/private domains and, 190, 199 Qorban, 78-79, 84 Rabbinic sages determining representative positions, 28-30 interpreting vows, 88-92 thought-patterns of, 30-34, 39 Rabbis, see Rabbinic sages Real estate, 55 Rebellious acts, 208-209 Religious crimes, 213 Renewal of Man, 16-17, 18 Residence, 137-139 Resurrection of the dead, 100-101, 103, 241-248, 255-257 Roman Catholicism, 42

262

INDEX

Sabbath joint possession and, 135-137, 140146, 156-157 ownership and, 136-137 private/public domains, 135-147, 148-153, 155-157 and Sabbatical Year, 153-154, 155 Sabbatical year, 125-128, 134, 153154, 155 Sacrifices, 79 Sanctification, 15, 85, 231 Sanctions, 211, 212-217 Sanhédrin, 241-248 Sarason, Richard S., 167-168 Scripture basis of Halakhah, 17-18 citations of, 4 Secular food, 202-203 Self-aggrandizement, 65-78 Sexual crimes, 213 Shabbat, 106, 147-153 Shebi'it, 124-134 Sheqalim, 108-115 Shittuf meal, 139, 143 Shunning, 214 Simeon the Righteous, 82-83 Sin atonement, 13-14, 235-236 individuals and, 6 0 - 6 1 , 221-225, 235-236, 248-255 Israel's, 53-54, 59, 61, 108-113 Sins, 213-214 community, 247-255 inadvertence, 221-225, 249-255 intentionality and, 218-219, 2 2 1 225 Skin-ailments, 226-227, 229-236 Social philosophy determining, in Halakhah, 2-3, 24, 30-40 Speech, wicked, 234-235 Syntax, 6 - 7 Tax collectors, 180-181 Temper, losing one's, 96

Temple obligatory half-sheqel offering, 108113 personal donations to, 54—55, 62-65 sanctions imposed by, 213-217 Theology of Rabbinic Judaism, 2, 3-9, 24 see also Halakhah Theology of the Oral Torah, 6, 25 Tithing, 167-168, 170-173, 201, 205 Tohorot, 177-187 Torah, Oral modes of thought that govern, 2 3 24 as representative of contemporary thought, 21 self-evidence of principles, 27 systemic coherence, 24, 28 Torah, Written denying divine source, 101-102, 103 theological narrative of, 9 - 1 0 Transporting objects, 139, 144, 148-150 Trustworthiness, 170, 1 71 Uncleanness/cleanness, 15, 16, 177-187 bodily discharges, 225-229 corpse-uncleanness, 182, 227-228, 229-230, 232-233 gentiles and, 228-229 fliga'-uncleanness, 226-227, 2 2 9 236 probability of, 187-201 skin-ailments, 226-227, 229-236 Usufruct, 106 Valuations, 55-59, 62 Virtue, personal, 65-78 Vows, 80-83, 84, 85-95 Wells, common, 183 Will, Man's, 16-17, 19, 203-205, 2 0 8 209, 219-220 Women, 53, 233