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