The Wisdom of the Talmud, by Ben Zion Bokser, [1951], at sacred-texts.com
The Wisdom of the Talmud, by Ben Zion Bokser, [1951], at sacred-texts.com
In the library of the world's literary classics, a place of special distinction belongs to the approximately forty volumes which are designated collectively by the name "Talmud". Formidable in size, written in a difficult Aramaic, elusive in many of its discussions, the Talmud has long been an enigma to many. Can the average reader get some idea of what this vast literature is all about, of the men who produced it, of the ideas which inspired them? Can we open a window to permit the modern reader to behold the world of the Talmud, its culture, its way of life?
The authors of the Talmud did not look upon their teaching as an esoteric doctrine, suited only for the few. They sought to reach all men. They sought to reach the common people no less than the professional scholars. The traditional system of Jewish education began the study of the Talmud in the middle grades of the elementary school, and continued it, on ever deeper levels of analysis, to the academies of highest learning. And one of the objectives of that educational system was to cultivate in the student a taste for the Talmud that was to make of its study his avocation throughout life. Its very name—Talmud derives from the Hebrew lomed which means study—suggests that it was meant to be a rich and fruitful field of knowledge and research. The prize of the knowledge of the Talmud can be found, but it requires toil; it requires disciplined study. Those who are ready to pursue it with the necessary diligence will find awaiting them a treasury of rare wisdom to reward their labors.
The Talmud came into being as a supplement to Biblical Judaism. It was intended to bridge the gap between the Bible and life. It was a new creation of the Jewish people
in response to the facts of a changing world that could no longer be guided by the simple word as enunciated in the Biblical text.
The Bible continues to command the reverent loyalty of Jews, and of countless others who have learnt to look upon it as the embodiment of their basic religious beliefs and moral ideals. But the very effort to make Biblical religion the basis of human living exposes its insufficiency—at least for those who live in another milieu than the one in which the Bible took form.
The Biblical text often needs clarification. The Bible, for instance, allows the termination of marriage through divorce, without, however, defining the grounds for divorce, the procedure by which it was carried out, or the fate that was to befall the children of the dissolved family. The Bible similarly prohibits work on the seventh day of the week, but it does not define what is meant by work. Are we to infer that writing a letter, marketing or preparing food is to be construed as work? Must the country's armed services go off duty on the Sabbath? Was the priest to halt his Temple duties, and must the rabbi suspend teaching and preaching? Was healing the sick work, and must it be discontinued on the Sabbath? The answers to these questions must have been common knowledge at the time Biblical law was formulated, but in the course of the centuries that body of unrecorded knowledge was forgotten, and those provisions of the Bible were, therefore, in need of clarification.
The Bible, moreover, could not have anticipated the specific solutions to the many varied problems created by the altered circumstances of a changing Jewish society. The Bible forbids idolatry as a major sin. When the Jews were drawn into the Roman Empire, they were confronted with the civic duty enforced among all Roman subjects of worshipping
the emperor. Were they to yield, or incur the consequences of disobedience to Rome? The ritual for initiating a proselyte into Judaism included the offering of a sacrifice at the Temple of Jerusalem, but how was that to be carried out after 70 C.E. when the Temple was destroyed? That was no academic problem, for in the first century, large numbers of pagans continued to join the synagogue throughout the Roman world. Indeed, how was Jewish religious life generally to be conducted after the fall of the Temple, when so much of traditional Jewish piety had centered in the sacrificial cult and the various ceremonies surrounding it?
The changes in Jewish society which necessitated the supplementation of the Bible were not only political; they were also cultural and social. The law that decreed "an eye for an eye, a tooth for a tooth" (Ex. 21:23), as a principle in the punishment of crime, represented justice at the time of its enactment, but it seemed morally reprehensible to sensitive men of a later generation. The prohibition of lending money on interest implies a primitive agricultural economy, where money is generally borrowed for the purchase of necessary tools or consumer goods. It is however, incompatible with the complex requirements of a commercio-industrial economy which depends on investments and banking. Similarly, reflecting the rural society to which it originally addressed itself, the Bible has no explicit provision for a legal instrument validating a commercial transaction. In the absence of a specifically formulated law, local custom or minhag, as it was called, often developed to take its place. It is clear, however, that the law could not abdicate to popular improvisation. If the law was to discipline life, it had to be enriched and supplemented with new provisions, to keep pace with a changing world.
Biblical narratives, too, present various theological, historical and linguistic problems that had to be coped with, if people were to master Biblical study, and continue to find in Scripture a source for guidance and authority in their
religious life. How, for example, was the Biblical appraisal of the world as "very good" (Genesis 1:31), to be reconciled with the experiences of evil and death, and the repeated disasters to men championing good causes? With whom did God consult when He was quoted as saying, "Let us make man in our image" (Genesis 1:26)? Does that mean that there are several divine powers, or that God is corporeal and endowed with a concrete image? If Moses was responsible for the writing of the Biblical text, how explain the last eight verses of Deuteronomy, which describe his death and extol the quality of his leadership?
The Bible, finally, had not exhausted the creative genius of the Jewish people. The same creative powers which produced those literary masterpieces of the Bible remained alive in the Jewish community and continued to stir men to see new visions and to incarnate them in new creations of culture.
The Bible never became obsolete. Elements of abiding truth shine through all its pronouncements, even when they bear upon them some of the limitations of the people who labored to give the Bible literary form, and of the age in which it arose. But the Bible needed a commentary to close the gap formed by the passing of generations. People who have revered the Bible as the revealed will of God, and have sought to live by its mandate, have therefore generally felt the need of writing commentaries on it. The most imposing of these commentaries is the vast literature of the Talmud.
The characterization of the Talmud as a commentary on the Bible describes the circumstances of its origin, as well as its essential quality. But we must understand the term "commentary" in its broadest sense. It is more than a new exposition of an old document. It is also an original new creation, a means by which the voices of a new age speak out in their discoveries of new truth. That they are willing to speak through a commentary to an older work dramatizes their sense of unbroken continuity with their own past and their acceptance of the Bible as the all-sufficient work for
human guidance in the world. The Talmud is thus of value both as literature of Biblical clarification, and as the depository of the newer cultural achievements within the Jewish people during the years in which it took form.
The Talmud is primarily concerned with law, because the Jews looked upon the legislation in the Bible as its most important element. But the Talmud is also rich in many copious discussions in the field of religion, ethics, social institutions, history, folk-lore and science. Thus we define the Talmud as an encyclopedia of Jewish culture; in form, a supplement to the Bible, and in its contents, a summation of a thousand years of intellectual, religious and social achievements of the Jewish people.
The supplementation of the Bible, in its rich flowering in the literature of the Talmud, was a daring process. It was conceived as a means of fulfilling the law, but it often proceeded in bold new channels. It was in a sense a confession that God's "word" is in some sense not final, and that man must step in to adapt it to the world. Adaptation is akin to change. Dare man "adapt" the word of God? Is it not presumptuous for man to supplement a work through which the Lord hath spoken? The Bible itself seems explicitly to warn against it. Deuteronomy 4:2 speaks out against any tampering with the word of God: "Ye shall not add unto the word which I command you, nor shall ye take aught from it."
The seeming presumption in supplementing the word of God was destined to be an issue on which conservative and progressive schools of thought debated in Judaism. But the spokesmen for supplementation found ample justification for their labor in the hallowed texts of the Bible itself. For the Bible apparently sensed the need of supplementation, and even projected an institution to accomplish it.
An elaborate system of higher and lower courts was established
by Moses, while the Israelites were still in the desert, upon the recommendation of his father-in-law, Jethro; and a supreme court was projected as well, to resolve all legal problems which the lower courts could not pass upon. As Deut. 17:8–12 phrases it: "If there arise a matter too hard for thee in judgment … then shalt thou arise and come unto the priests and the Levites, and unto the judge that shall be in those days; and thou shalt inquire and they shall declare unto thee the sentence of judgment. According to the law which they shall teach thee … thou shalt do …" Every branch of doctrine and law, in other words, seemed to be included in the sphere of authority granted to judicial bodies for clarification and adjustment.
The teachers who supplemented the Bible did not limit themselves to interpretations. At times they promulgated new enactments. But even here they did not inaugurate a revolutionary movement in Judaism. A careful analysis of the historical books of the Bible indicated that Jewish authorities in the past had, under certain circumstances, suspended the procedures of Biblical law. Thus the Bible (Deut. 17:6) requires two witnesses to establish the fact of culpable crime; no one was to be found guilty of crime on the basis of his own confession, without corroborating evidence. But Joshua (Joshua 7:24, 25) executed a soldier by the name of Achan when he confessed violating the orders of the commanding general not to loot the city of Jericho after its capture by the Jews. What can explain the conduct of Joshua, except that it was a time of war and martial law superseded the normal judicial procedure? The prophet Elijah, too, seems to have allowed himself to modify traditional law. He offered sacrifices on Mt. Carmel (I Kings 18), when, according to Biblical legislation, all sacrifices were confined to the central sanctuary in Jerusalem. Apparently the opportunity of discrediting the priesthood of Baal seemed to him sufficient reason to modify the traditional procedure of worship. And did not King Solomon suspend the fast on a Day of Atonement
in order to hold the dedication of the Temple which he had built in Jerusalem?1
It is thus clear that in an emergency traditional law could be suspended for specified or unspecified periods of time. What was justified in the past constituted precedent for the future—if not to abrogate the law, at least to suspend it pending periods of emergency. Even Deut. 4:2, "Ye shall not add unto the word which I command you, nor shall ye take aught from it", was transmuted, through interpretation, into a sanction for the adjustment of tradition. The word which I command you was not taken as a reference to the Bible, but to the final formulation of tradition by later authorities. Contemporary authorities in every age, acting in their best judgment, whether to reaffirm or to revise traditional law, represent the ultimate source of guidance in life; and the general public was not to "add" or "take aught" from their decisions.
All these considerations crystallized into the realization that the ultimate authority to guide life cannot be a written text, but the living interpreters of those texts, the custodians of religious leadership in every generation. In the words of the famous Talmudist Rabbi Jannai: "If the Torah had been given in fixed and immutable formulations, it could not have endured. Thus, Moses pleaded with the Lord, 'Master of the Universe, reveal unto me the final truth in each problem of doctrine and law.' To which the Lord replied, 'There are no pre-existent final truths in doctrine or law; the truth is the considered judgment of the majority of authoritative interpreters in every generation.' …"2
The legal powers of a generation's duly authorized interpreters of tradition were looked upon as a function of their office, regardless of their individual merits in piety or scholarship. As a well-known Talmudic homily expounded it: "When the most insignificant person is appointed leader over the community, he is to be treated as the most eminent of persons. It is said, 'Thou shalt come unto the priests, the
[paragraph continues] Levites, and unto the judge that shall be in those days' (Deut. 17:9). Could it possibly enter your mind that a person would go to a judge who was not in his days! The meaning is that you are to be guided by a contemporary authority, whoever he be. As Scripture puts it (Eccles. 7:10), 'Say not, How was it that the former days were better than these.'"3
There is a beautiful rabbinic parable which dramatizes man's complete sovereignty in the development of what we may call the supplementary Torah. On one occasion a fierce debate ensued between Rabbi Eliezer and his colleagues on a complicated problem of law. Rabbi Eliezer continued to cite a variety of arguments but his colleagues remained unconvinced. Finally he invoked divine intervention to corroborate his opinion. "'If the law is in accordance with my view,' he exclaimed, 'may this carob tree offer testimony' (by a divine miracle). The carob tree moved a hundred (or, as others related, 400) cubits from its place. They replied to him: 'No proof can be cited from a carob tree.' Thereupon he exclaimed, 'If the law is in accordance with my views, may this stream of water offer testimony.' The stream moved backward from its normal course. They replied to him: 'No proof can be cited from water-channels.' Then he exclaimed, 'If the law is in accordance with my views, may the walls of this Academy offer testimony.' The walls of the Academy began caving in and were already on the point of collapsing when Rabbi Joshua rebuked them, 'If the students of the Torah contend with one another what concern is it of yours?' Out of respect for Rabbi Joshua they did not collapse, but out of respect for Rabbi Eliezer they remained aslope. Finally Rabbi Eliezer pleaded, 'If the law is in accordance with my views, may testimony be offered from the heavens above.' Whereupon a heavenly voice announced, 'What have you against Rabbi Eliezer? The law is in accord with his views.' Rabbi Joshua at once rose to his feet and announced, 'It is not in heaven' (Deut. 30:12). What did he mean by this? Said R. Jeremiah: That the Torah had already been
given at Mt. Sinai; we pay no attention to heavenly voices, because Thou hast long since written at Sinai, 'After the majority must one incline' (Ex. 23:2). R. Nathan met Elijah and asked him: What did the Holy one blessed be He do in that hour? He laughed with joy, he replied, saying, 'My sons have defeated me, my sons have defeated me.'" The Torah was given to men and human minds interpreting the Torah in accordance with their best judgments alone define what is or what is not law.4
For Judaism the most important portion of the Bible is law and one branch of the supplement to the Bible likewise deals with law. It is in part an attempt to clarify Biblical prescriptions and, through analysis, to deduce general legal principles that would be applicable in new situations. Such Bible analysis was designated by the Hebrew name midrash, which may be translated as probing. It was a probing for explanations, provisions and meanings that did not appear on the surface reading of a text but which might be there implicitly, to be discovered through diligent study and research. The midrashic probing of law is technically known as midrash halakah, the term halakah possibly being derived from a root which means to walk, and therefore, appropriately designating law which charts a way of life.
Frequently this midrash defines more precisely the mandate of the Biblical law. Thus the rabbis asked, "What is the meaning of the text, 'The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers'? (Deut. 24:16) If its intention is to teach that fathers should not be put to death for a sin committed by children, and vice versa, behold it is explicitly stated, 'Every man shall be put to death for his own sin!' (ibid) The meaning must therefore be: 'Fathers shall not be put to death by the evidence of children', and vice versa."5
The midrash halakah was, however, equally concerned with discovering in these Biblical provisions, the generalizations that would offer guidance in new situations. This may well be illustrated by the interpretations of Deut. 24:6 and Exodus 21:26, 27. Deuteronomy 24:6 specifies "No man shall take the mill or the upper millstone as pledge; for he taketh a man's life to pledge." This law is specific in its application, but it was clearly designed to protect the poor debtor in his possession of domestic utensils, indispensable in the preparation of food. It was, therefore, generalized to apply to "all tools used in the preparation of food." Similarly the law in Exodus 21:26, 27 provides: "If a man smite the eye of his servant and destroy it, he shall let him go free for his eye's sake. And if he smite out his servant's tooth, he shall let him go free for his tooth's sake." The specifications, eye and tooth, are seen in their common general aspects as vital irreplaceable bodily organs; and the same law is therefore applied to the mutilation of any organ in a slave's body, which is enough to send him to liberty.6
There were times when the midrash could not discover Biblical precedents and it became necessary to legislate, to add to or abrogate traditional laws. The post-Biblical festival of Hanukkah, as well as the organization of the synagogue and the ritual of worship surrounding it, are examples of adjustment in traditional law through the process of legislation. So is the decree suspending all religious observances during the Hadrianic persecutions of Judaism (135 C.E.), except the laws forbidding idolatry, murder and adultery. There were many legislative decrees in the field of civil law, too: the extension of poor relief to poor pagans, the provision that only the least desirable parcels of real estate be taken from orphans in payment of debts, and the institution of universal elementary education in the first century before the common era.
The legislative adjustment of law was described as a takanna, an enactment, or gezera, a decree. These decrees
and enactments were promulgated by individuals or corporate bodies that exercised authority at the particular time. Such legislation has been attributed to Moses, Joshua, David, Solomon, Ezra, as well as to the various subsequent heads of the Sanhedrin, which combined both the supreme judicial as well as legislative powers of the Jewish people.
This legislation did not have the status of Biblical amendments. Conceived as a divinely revealed document, the Torah could not be altered by the hands of men. But this legislation was harmonized with the Torah through a similar technique of midrashic probing which discovered in the Torah itself the sanctions for change.
Occasionally the old law was merely circumvented so that, in a technical sense, its mandate remained intact. This is illustrated by Hillel's reform which did away with the cancellation of debts every seventh year, as provided for in Deut. 15:1–3. This law proved a serious barrier to the development of Jewish trade and commerce. People refused to extend credits and loans for fear that their debts would not be repaid before the general cancellation time. Hillel's remedy, called prosbul, was the execution of a document which designated the court as the collection agent, and stipulated that the usual law of debt cancellation on the Sabbatical year shall not apply to this particular loan. The court was not included in the provisions of the Biblical law and was, therefore, technically free to carry on collections until the complete liquidation of the debt.7
It was similarly through the circumvention that the rabbis reformed the Biblical code of criminal law. There had developed among the rabbis a strong abhorrence of capital punishment. The Bible, of course, recognized a wide variety of crimes for which the death penalty was to be inflicted. Instead of abrogating the Biblical law, the rabbis circumvented it. They limited capital punishment to circumstances which made it practically inoperative. They ruled out all circumstantial evidence, no matter how convincing. They
went beyond the Biblical requirement of two eye-witnesses to the crime. The two witnesses were expected to have warned the culprit of the criminality and legal consequences of his projected act; and the criminal was expected to have defied the warning with the assertion that he refuses to be deterred by them!8
But the midrash, through an ingenious technique of reinterpretation, discovered sanctions for the formal abrogation of old laws as well. Thus the law which decrees that a criminal be punished "an eye for an eye" (Ex. 21:24) was shown to be but an application of the general principle that the punishment must be proportionate to the crime. For, as one rabbi explained, suppose a blind man injured the eye of another person, how shall the law be applied? Clearly there was only one way—compensation; the Biblical injunction is carried out by making the compensation commensurate with the injury. The new legislation universalized this rule of compensation. The Biblical application of the principle was taken as contingent and therefore dispensable, but the principle itself lived on in the new law.
Similarly the institution of the Sabbath was appraised as a means of enhancing human life. Where, therefore, the observance of the Sabbath endangered an individual's existence, it was obviously to be disregarded, for in the words of Rabbi Jonathan ben Joseph, "The Sabbath is delivered in your hand and not you in its hand." The Babylonian teacher Samuel grounded this ruling on the verse: "And he shall live by them" (Lev. 18:5). The commandments of the Torah were to be the means of enhancing life, not for destroying it. This reinterpretation has been traced to the time of the Maccabean revolution against the Syrian-Greeks. The prevailing observance of the Sabbath had endangered the national cause; the enemy simply delayed military operations until the Sabbath when the Jews would not resist. The modification of the law superseded temporarily the accustomed
[paragraph continues] Sabbath observance, but its essential purpose was vindicated in the national and religious liberation that followed.
This interpretation is of course applicable to all law, for it is the purpose not only of the Sabbath, but of all law, to enhance human life; and all law must therefore be superseded where the broader interests of life demand it. As one rabbi, ingeniously rendering the ambiguous verse in Psalm 119:126 expressed it: "When it is time to do for the sake of the Lord, they voided Thy Torah."9
The supplementary Torah also deals with the non-legal aspects of tradition, with the doctrines and values which are equally an integral part of Judaism. It seeks to clarify various historical, theological, and ethical assertions of the Torah, to rationalize them in the light of current knowledge and prevailing moral ideals, and to derive from them the generalizations that can inspire, guide, and edify life, in the existing conditions under which men lived. The non-legal branch of the supplementary Torah is called haggadah, meaning utterances; and the interpretive analysis of the haggadah has been designated as midrash haggadah.
The following citations will illustrate the nature and function of the midrash haggadah. Genesis 12:5 declares: "And Abram took Sarai his wife, and Lot his brother's son, and all their substance that they gathered, and the souls that they had made in Haran; and they went forth to go into the land of Canaan." Rabbi Elazar bar Zimra offered the following comment on this: "If all people in the world should attempt to create a single insect they would be unable to breathe the breath of life into it, and here it is said and the souls that they had made in Haran. What Scripture really refers to is the proselytes they won to their way of life. And why does Scripture use the term made for the winning of proselytes? It is to teach us that whoever draws a pagan
close to himself and influences him to become a proselyte, it is as though he had begotten him. And why does not Scripture use the singular he had made, instead of the plural, they had made? R. Huna suggested that it refers to both Abraham and Sarai. He made proselytes among the men, and she among the women."
The rabbis speculated as to why the Book of Nehemiah was denied an independent place in the Holy Scriptures, but was incorporated into the Book of Ezra (this was the arrangement in the Biblical canon which was accepted at that time). The answer they offered is "Because he thought of his own welfare; as it is said 'Think upon me my God for good' (Neh. 5:19). Another reason is that he spoke disparagingly about his predecessors; as it is said, 'But the former governors that had been before me were chargeable unto the people and had taken of their bread and wine, beside forty shekels of silver.'" The discussion of the authorship of the different books of the Bible also led to the question who composed the last eight verses in Deuteronomy, which describe the death of Moses, and they were ascribed by some to the disciple of Moses, Joshua.10
Midrash haggadah is frequently a defense of traditional doctrines against the challenge of contemporary skepticism. On one occasion Rabban Gamaliel was challenged: "You rabbis declare that wherever ten people assemble to worship, the Divine Presence abides amongst them. How many presences of God are there?" Gamaliel called his interrogator's servant and struck him. "Why didst thou allow the sun to enter and heat the home of your master?" "But the sun shines all over the world," the servant protested. Rabban Gamaliel drew the point of the analogy. "If the sun which is only one of the million myriads of God's servants, can be in every part of the world, how much more so can the Divine Presence radiate throughout the universe?"
On another occasion Gamaliel was taunted, "Your God is a thief, because it is written, 'The Lord caused a deep
sleep to fall upon Adam and he slept; and He took one of his ribs'" (Gen. 2:21). In this instance Gamaliel's daughter volunteered the answer. "Thieves," she related, "broke into our house during the night and stole our silver goblet but left a golden one behind." "Would that such a thief visited me every day," the skeptic exclaimed. "Was it not a splendid thing then for the first man when a single rib was taken from him and a mate was supplied to him in its stead?" she retorted.
Midrashic probing was similarly utilized in the new formulations of doctrine. This is well illustrated in the famous homily on the theme of human equality. Probing into all the implications of the verse "Ye shall therefore keep My statutes and Mine ordinances, which if a man do he shall live by them" (Lev. 18:5), one teacher asked: "Whence may it be demonstrated that a pagan, when he conforms to the moral law of the Torah, becomes the equal of a High priest in Israel? From the words, 'which if a man do he shall live by them', the term man being universal and referring equally to Jew and pagan. Similarly it is said 'This is the law of mankind, Lord God' (2 Samuel 7:19, a possible rendition of the original Hebrew)—it is not stated, 'This is the law of priests, Levites and Israelites, but the more inclusive term the law of mankind.' In similar manner, too, Scripture does not say, 'Open the gates, that priests, Levites, and Israelites may enter,' but, 'Open the gates that a righteous goy keeping faithfulness may enter' (Is. 26:2)—goy means a people or nation generally, Jewish or pagan. And again, it does not say, 'This is the gate of the Lord, Priests, Levites and Israelites shall enter into it', but 'the righteous shall enter it', which is more universal (Ps. 118:20). Likewise, it does not say, 'Rejoice in the Lord, O ye priests, Levites and Israelites', but, 'Rejoice in the Lord, O ye righteous' (Ps. 33:1). And finally it does not say, 'Do good, O Lord, to the priests, Levites and Israelites,' but 'unto the good' (Ps. 125:4), which clearly refers to good men among all nations. It is
thus abundantly demonstrated that even a pagan, provided he adheres to the moral discipline of the Torah is the equal of the highest ranking priest in Israel."11
The earliest literary form we have of the supplementary Torah is the Midrash, which proceeds through a deduction of law or opinion through Biblical interpretation, and it is organized as a running commentary on the books of the Bible. It includes halakah and haggadah in accordance with the varying contents of the respective books in the Bible. A number of these early Midrashim have been preserved to our day. The best known are the Midrash on Exodus, Mekilta, the Aramaic for measure, rule or norm; the Midrash on Leviticus, Sifra, abbreviated from Sifra de-be Rab, the Book of the School; and the Midrash on Numbers and Deuteronomy, Sifre, similarly abbreviated from Sifre de-be Rab, the Books of the Schools. All these books were composed in the early part of the second century, by teachers who for the most part remained anonymous but who functioned in the great academy of Torah studies which was established in Jabneh after Jerusalem's fall in 70 C.E.
The following citations illustrate the method of the Midrash and the results in halakah and haggadah achieved by it. When the Israelites on their way out of Egypt found themselves in the difficult position between the pursuing hosts of Pharaoh and the menacing waters of the Red Sea, Moses turned to God in impassioned prayer. But the Lord responded with a sharp rebuke: "Wherefore criest thou unto me? Speak unto the children of Israel, that they go forward" (Exodus 14:15). Rabbi Eliezer elaborates on this: "Thus did God speak unto Moses: 'Moses, my children are in great distress; they are hemmed in by the sea on one side and the pursuing enemy on the other. And yet you stand and indulge in prolonged prayer. Wherefore criest thou unto me? There
are occasions when it is proper to prolong and there are occasions necessitating action when prayer is to be abbreviated.'"
Another revealing example is offered us in the comment on Exodus 18:12. This Biblical verse reports: "And Jethro, Moses’ father-in-law, took a burnt offering and sacrificed for God; and Aaron came and all the elders of Israel to eat bread with Moses’ father-in-law before God." The rabbis wondered why Moses was not mentioned in the episode, and they inferred: "He must have stood by to wait on them and serve them. In doing this he followed the precedent of father Abraham who personally waited on the three angels who came to him in the disguise of itinerant strangers. Similarly, when Rabban Gamaliel arranged a banquet in honor of his fellow scholars, he stood by personally to wait on them and serve them. Some felt reticent, regarding it as improper that they be waited on by the head of the Sanhedrin. But Rabbi Joshua reassured them, 'Let him serve. There is the precedent of a greater man than he who served the three angels who came to him posing as pagan Arabs.'"
Another illustration of the midrashic method may be found in the rabbinic discussion of Exodus 20:18. "'And the people stood afar off; but Moses drew near unto the thick darkness where God was.' What was responsible for this unique distinction accorded Moses? His humility, as it is written (Nu. 12:3) 'and the man Moses was very humble'. The general inference suggested by this verse is that whoever is of a humble spirit will in the end experience the presence of God, as Isaiah (57–16) also suggests, 'I dwell in the high and holy place, with him also that is of a contrite and humble spirit …' But he that is proud and arrogant renders the land unclean and causes the withdrawal of God's presence, as it is written, 'Every one that is proud in heart is an abomination to the Lord' (Proverbs 16:5), the very phrase used in Deuteronomy 7:26 to describe idolatry."
The following citation is a good example of the midrashic analysis of the Bible for the derivation of law, "'And if a man come presumptuously upon his neighbor, to slay him with guile; thou shalt take him from Mine altar, that he may die' (Exodus 21:14). The verse obviously excluded from the prescribed punishment those who cannot be said to have acted with presumption, such as one who is deaf and dumb, an imbecile or a moron … the physician accidently causing death while working for the patient's recovery or the executioner inflicting death under the order of the court."
The following selection from the Sifre shows the same methodology as the above. "'And it shall come to pass, if ye shall hearken diligently unto My commandments … to love the Lord your God' (Deut. 11:13). One may be tempted to say, 'I will study the Torah so that I become rich, that I may be called master, that I may receive rewards in the world to come'. It is for this reason that the verse emphasizes, to love the Lord your God; whatever you do, let it be only with the motivation of true love."12
The Midrash was particularly suited for preaching purposes. In following the continuous text of the Bible it enabled the preacher to draw his lesson each week from the Scriptural lesson designated for that particular Sabbath. For the scholar it was also an advantage to see in each instance how a particular law or moral utterance is traced to its Biblical source. From the standpoint of those interested in law, however, the Midrash is an awkward literary form. Relevant legal material is scattered throughout the Biblical books. The presentations are long and involved. The formulation of law is constantly interrupted by haggadah, by historical, theological or homiletical discussions. Nor was the Midrash a convenient depository for enactments and ordinances promulgated without specific reference to Scriptural derivations. There was obviously a need for a work of literary reorganization that would separate halakah from haggadah, that would reduce the law to simple succinct statements,
systematically organized along thematic lines, and that would include, also, independent legal traditions which the Talmudic supplementers inherited from the past.
The next product in this process of literary creativity is the Mishnah, a term derived from shanah, which means to repeat or study. This Mishnah in the form that we have it today is a product of the scholarly editorship of Rabbi Judah the Prince, and his Palestinian disciples who were active in the 3rd century. But there were other Mishnah collections which paved the way for their labors, going in some instances back to the 1st century. In this final product the language is a clear and lucid Hebrew; the statements are succinct and the principle of organization is subject matter. There are six main sections to the Mishnah which are in turn subdivided into an aggregate of 63 tractates. The tractate is subdivided into chapters and the chapter into individual paragraphs or Mishniot.
The six main sections to the Mishnah are called Sedarim, orders, derived from the fact that each section represents an orderly arrangement of the laws on its particular subject. The six Sedarim are Zeraim, Moed, Nashim, Nezikin, Kodashim, Toharot. Zeraim, or seeds, deals with agriculture; appended to it is the all important tractate Berakot which deals with prayer. Moed, festivals, deals with the Sabbath, holidays, fasts and feasts of the Jewish calendar. Nashim, which means women, discusses marriage, divorce and other phases of family life. Nezikin, injuries, deals with civil and criminal law. Kodashim, Holy Things, discusses the sacrificial cult and other details of the Temple service. The last section, Taharot, cleanliness, deals with all questions of ritual purity.
The stylistic and methodological character of the Mishnah is well illustrated by the following selections: Mishnah Gittin 9:3, 4
discusses inadequately executed documents of divorce: "Three kinds of bills of divorce are invalid, yet if she married again the offspring is legitimate; one that a man wrote with his own hand but there were no witnesses to it; one to which there were witnesses but which bore no date; and one which bore the date but had one witness only. Lo, these three bills of divorce are invalid, yet if she married again the offspring is legitimate. Rabbi Eliezer says: Even though it was not signed by witnesses yet was delivered before witnesses, it is valid, and she may exact her Ketubah from mortgaged property; for the witnesses sign only as a precaution for the general good."
Mishnah Baba Batra 5:1 discusses the transfer of property: "If a man sold a ship, he has sold also the mast, the sail, the anchor, and all the means for steering it; but he has not sold the slaves, the packing-bags, or lading. But if he had said, 'It and all that is in it', all these are sold also. If a man sold a wagon he has not sold the mules; if he sold the mules he has not sold the wagon. If he sold the yoke he has not sold the oxen, and if he sold the oxen he has not sold the yoke. Rabbi Judah says: The price makes it manifest: thus if one said to him, 'Sell me thy yoke for 200 zuz', it is manifest that no yoke costs 200 zuz. But the sages say: The price is no proof."
The procedure in courts of law is described in Mishniot Sanhedrin 1:1 and 3:7. It reads thus: “Cases concerning theft or personal injury are judged by three (judges); claims for full damages or half-damages, two-fold restitution, or fourfold or five-fold restitution, and (claims against) the violator, the seducer and him that hath brought an evil name (must be judged) by three, so says Rabbi Meir. But the other sages say that the latter should be judged by twenty-three, for there may arise therefrom a capital case …
“When the judges reached their decision they brought in the suitors. The chief among the judges says, 'Thou, such-a-one, art not guilty', or 'Thou, such-a-one, art guilty'. And
whence do we know that after one of the judges has gone forth he may not say, 'I declare him not guilty and my fellows declare him guilty; but what may I do, for my fellows outvoted me?' Of such a one it is written, Thou shalt not go up and down as a talebearer among thy people (Lev. 19:16); and it also says, He that goeth about as a talebearer revealeth secrets, but he that is a faithful spirit concealeth the matter” (Proverbs 11:13).
Mishnah Abot 5:7 offers a precious insight into the kind of character prized by the rabbis: "There are seven marks of the clod and seven of the wise man. The wise man does not speak before one that is greater than he is in wisdom; and he does not break in upon the words of his fellow; and he is not hasty in making answer; he asks what is relevant and makes answer according to the halakah, and he speaks on the first point first and on the last point last, and of what he has heard no tradition he says, 'I have not heard'; and he admits the truth, and the opposite of these are the marks of the clod."
The Mishnah as finally compiled was a milestone in the history of tradition. It was the summation, the climax of centuries of intellectual labors. It was welcomed particularly by the Jewish community in Babylonia since it offered them religious guidance without necessary recourse to the academies of Palestine. But the process of judicial creativity did not cease with the creation of the Mishnah. Because of its very brevity, the statements in the Mishnah required constant amplification and interpretation. Moreover a great deal of material was omitted altogether, whether because the editors of the Mishnah did not consider it important or because they felt they had already covered it in another form. Such material was technically known as "Baraita", outside, that is, relevant data left outside the Mishnah text.
[paragraph continues] For a scholarly grasp of the full range of tradition it was, however, invaluable.
The shortcomings of the Mishnah must have been recognized in the very generation that produced it; the Tosefta, meaning supplement, compiled apparently during the same period that saw the reaction of the Mishnah, frequently offers essential amplifications to the Mishnaic text, as well as, of course, certain independent material. The Tosefta's function as a supplement to the Mishnah is well illustrated by a comparison of Mishnah Shekalim 1:1, and Tosefta Shekalim 1:1. Thus the Mishnah: "On the first day of the month of Adar announcements are made concerning the payment of the annual half-shekel due to the Temple Treasury (Exodus 30: 13 ff). … And on the fifteenth day of that month the roads are repaired …" Apparently presupposing the Mishnah, the Tosefta merely amplifies: "On the fifteenth day of that month emissaries of the court attend to the repairing of the roads, which have become damaged in the rainy season." Without the Mishnah we should indeed remain in the dark as to what the Tosefta meant by on the 15th day of that month. It is only by drawing on the information of the Mishnah that we may identify on the 15th day of that month as referring to the month of Adar.
The most important supplement to the Mishnah is the Gemara, created after the completion of the Mishnah in the third century. Derived from the Aramaic gemar and meaning study or teaching, the Gemara exists in two versions, both in the Aramaic vernaculars current respectively among the Jews of Palestine and Babylonia. For in post-Mishnaic times, the Jewish community in Babylonia had overtaken Palestine as a center of Jewish learning, and the Babylonian schools developed a parallel supplement to the Mishnah,
which indeed proved even more influential than the Palestinian supplement. Frequently the same teachers are represented in both Gemaras, for there was a constant interchange of visits among the Palestinian and Babylonian rabbis and the academies in each country were fully informed on the work being done by their sister academies in the other country. Not all tractates of the Mishnah are supplemented by the Gemara—only those that were of interest to the teachers that created the Gemara. The Palestinian Gemara, frequently called Yerushalmi or Jerusalem Gemara, supplements thirty-nine tractates; the Babylonian only thirty-six and a half. In scope, however, the latter is three times as large as the former, the Babylonian Gemara being more elaborate and more copious in its expositions.
In its discussions the Gemara introduces citations from the Tosefta, the various Midrashim, the records of old customs, legislative enactments and ordinances, haggadic discourses and ethical observations. A tendency to digress and interpolate various obiter dicta in halakah and haggadah has, in addition, enriched the Gemara with a vast store of anecdotes, parables and folk lore. The Gemara is thus the most comprehensive of all the texts in the supplementary Torah. The Mishnah and Gemara, as an integrated text, taken together comprise the Talmud.
The following Talmudic selections illustrate the style and method of the Gemara and its supplementary relations to the Mishnah. The Mishnah declares: "Seven days before the Day of Atonement the High Priest was removed from his home and confined to the office of the counsellors … They delivered to him elders from the elders of the court and they read before him (throughout the seven days) from the ritual of the day. They said to him, Sir High Priest, read yourself with your own mouth, perchance you have forgotten or perchance you have never learnt …"
To this declaration of the Mishnah there now follows a Gemara supplement: "It is understandable that they assume
he may have forgotten, but would a High Priest ever be appointed if he had never learnt? Has it not been taught: The Torah describes the High Priest as the priest that is highest among his brethren (Lev. 21:10, 14), which means that he must excel his colleagues in vigor, in personality, in wisdom, and in financial independence … R. Joseph explained: This is no difficulty. The one characterization refers to the High Priests who functioned in the First Temple. The other refers to the corrupt High Priests who held office in the Second Temple. As is illustrated in the report of Rab Assi: A tarkubful of dinars did Martha, the daughter of Boethus give as a bribe to King Jannai (a general designation in the Talmud for Hasmonean or Herodian rulers) to nominate Joshua b. Gamala as one of the High Priests."
From the same tractate is also drawn the following Mishnah: "A sick person is fed (on the Day of Atonement) at the word of experts, and if no experts are there one feeds at his own wish till he says: 'Enough'". And there follows immediately the vital supplement of the Gemara: "Rabbi Jannai explained: If the patient says, I need food and the physician says that he does not, we hearken to the patient. What is the reason? The heart knoweth its own bitterness (Prov. 14:10). But isn't it self-evident? We might have assumed that the physician's knowledge, being more authentic, ought to carry greater weight. If the physician says that he needs food, while the patient says that he does not, we heed the physician. Why? There is always the fear that the patient may be in stupor."13
Here is another Mishnah: "If debris falls on someone and it is doubtful whether or not he is there or whether he is alive or dead, one should open the heap of debris to rescue him, even on the Sabbath." The Gemara supplement follows: "One must remove debris to save a life on the Sabbath, and the more zealous one is in doing so the more praiseworthy he is; and one need not seek permission from religious authorities. How so? If one saw a child … fall into a pit,
he breaks loose one segment (of the entrenchment) and pulls it up—the faster the better; and he need not obtain permission from religious authorities. … If he saw a door closing upon an infant thereby frightening or endangering the infant, he may break it so as to get the child out—the faster the better; and he need not obtain permission from religious authorities. … One may extinguish or isolate the flames in the case of a fire—the sooner the better; and he need not obtain permission from the religious authorities.
"Rabbi Ishmael, Rabbi Akiba and Rabbi Eleazar b. Azariah were once on a journey, with Levi ha-Saddar and Rabbi Ishmael, the son of Rabbi Eleazar following them. This question was asked of them: 'Whence do we know that in the event of danger to human life all laws of the Sabbath are superseded?' Rabbi Ishmael answered and said: 'If a thief be found breaking in' (Ex. 22:1), it is permissible to kill him in self-defense, though the shedding of blood pollutes the land and causes the divine spirit to depart from Israel. If the defense of life takes precedence over another life—that of the burglar—it certainly takes precedence over the Sabbath. … Rabbi Simeon b. Menasya said, 'And the children of Israel shall keep the Sabbath' (Ex. 31:16). The Torah obviously implied: 'Suspend for his sake one Sabbath, so that he may keep many Sabbaths.' Rab Judah said in the name of Samuel: 'If I had been there, I should have suggested a more convincing explanation. The Torah appraises its rules of life with He shall live by them (Lev. 18:5), implying clearly that one must not thwart life because of them.' Raba said: 'The other explanations may be refuted but that of Samuel is irrefutable'".14
Our final illustration is taken from the field of civil law. The Mishnah provides: "If a person found something in a shop, it belongs to him; should it have been between the counter and the shopkeeper, it belongs to the latter. If he found it in front of a money-changer, it belongs to him; should it have been between the form (on which the coins
are displayed) and the money-changer, it belongs to the latter. If a person purchased fruits from his fellow or the latter sent him fruits, and he found coins among them, they belong to him; but should they have been tied in a bundle, he must advertise."
The Mishnah's discussion of found property evoked the following story from the teachers of the Gemara: "Alexander of Macedon visited King Katzya, who displayed to him an abundance of gold and silver. Alexander said to him, 'I have no need of your gold and silver. My only purpose is to see your customs, how you act and administer justice.' While they were engaged in conversation, a man came before the king with a case against his fellow from whom he had bought a field with its scrap-heap and in it discovered a bundle of coins. The purchaser contended, 'I bought the heap but not the treasure hidden in it' and the vendor asserted, 'I sold the heap and all it contained.' While they were arguing together, the king turned to one of them and asked, 'Have you a son?' 'Yes,' he replied. He asked the other, 'Have you a daughter?' and he answered, 'Yes'. 'Let them marry and give them the treasure', was the king's decision. Alexander began to laugh, and Katzya inquired, 'Why do you laugh? Did I not judge well? Suppose such a case happened with you, how would you have dealt with it?' He replied, 'I would have put them both to death and confiscated the treasure.' 'Do you, then, love gold so much?' said Katzya. He made a feast for him at which he was served with golden cutlets and golden poultry. 'I do not eat gold,' he exclaimed; and the king retorted, 'A curse alight upon you! If you do not eat gold, why do you love it so intensely?' He continued to ask, 'Does the sun shine in your country?' 'Certainly,' was the reply. 'Does rain descend in your country?' 'Of course.' 'Are there small animals in your country?' 'Of course'. 'A curse alight upon you! you only live, then, by the merit of those animals!'"15
All these literary productions of the academies in Palestine and Babylonia from the close of the Biblical canon to the close of the fifth century comprise the supplementary Torah. This includes the various midrashim; the Tosefta; the Mishnah and the Gemara, or, taken together, the Talmud. It has generally been called the Oral Torah because for centuries it was expounded and transmitted orally. Individual students probably employed notes to aid their memories, but none of these compilations were officially edited until a considerably later date. The Palestinian Talmud came to an end some time in the 5th century as a result of the general decline of the Jewish community in Palestine, marked by the abolition of the office of patriarch, as the head of the Jewish community was called, in 425 C.E. The Babylonian Talmud was concluded toward the end of the same century, for in Babylonia, too, Jewish life was declining, following the persecution of Jews under the Sassanian Kings Yezdegerd II (438–457) and Peroz (459–484). The final edition of the supplementary Torah in the volumes of the Talmud as we have them today, brought to a close one of the most creative epochs in the history of Jewish tradition.