When Jews Argue: Between the University and the Beit Midrash [1 ed.] 103242740X, 9781032427409

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Routledge Approaches to History

WHEN JEWS ARGUE BETWEEN THE UNIVERSITY AND THE BEIT MIDRASH Edited by Ethan B. Katz, Sergey Dolgopolski, and Elisha Ancselovits

Praise for When Jews Argue “When Jews Argue is an ambitious and exciting volume that tackles a set of interlocking questions regarding the nature, purpose, and potential of the contemporary academe. The editors have assembled a remarkable group of essays that share a common goal: exploring the fertile contact point between traditional Jewish learning and academic scholarship, highlighting the overlaps between these approaches while demonstrating what they can, and should, learn from one another. Tapping into the resources of both the academy and the rabbinic tradition, the book seeks to chart a new path in which the mutual engagement of these realms is productive and enriching rather than divisive or isolating. The volume is sure to spark important conversations between individuals who hail from these two communities, but it also carves out room for another readership inhabiting the “third space” between the religious study-hall and the university. Anyone who approaches When Jews Argue with an open mind will come away inspired, challenged, and uplifted.” Ariel Mayse, Stanford University “This important and original book introduces us to a range of rigorously considered case studies that break down simplistic dichotomies between academic scholarship and religious devotion. The authors in this volume provide essential historical context for the divide between academy and beit midrash, while also offering conceptual and pedagogical paradigms to bridge the two. This book should be required reading for all those interested in engaging in rich intellectual dialogue across academic and religious difference.” Jane Kanarek, author of Biblical Narrative and the Formation of Rabbinic Law “When Jews Argue is a bold and innovative book. It raises challenging and important questions about Jewish studies for both the academic scholar and the religious Jew with scholarly curiosity. The editors and contributors address the difficult chasm between Jewish studies scholars based in the academy, and those more grounded in the traditional world of the Beit Midrash. The book features highly original essays on numerous fascinating topics, and includes several real models, in a range of areas of Jewish studies, for bringing together different fields and disciplines, and for bringing together knowledge from academic Jewish studies with knowledge from the Beit Midrash. We also learn about important issues or questions that are at the crossroads of those two worlds and that have therefore often been avoided or left unaddressed.” Shai Held, President and Dean, The Hadar Institute

“The contributions in this volume productively analyze and reflect on different modes of studying Jewish thought, culture, and history in our postsecular age. Rather than seeking to reconcile the gap between a reified dichotomy – critical, dispassionate scholarship versus faithful study – these essays engage and refine the scholastic terms of engagement. A refreshing and generative approach to a vexed topic!” Mara Benjamin, author of The Obligated Self: Maternal Subjectivity and Jewish Thought

When Jews Argue

This book re-thinks the relationship between the world of the traditional Jewish study hall (the Beit Midrash) and the academy: Can these two institutions overcome their vast differences? Should they attempt to do so? If not, what could two methods of study seen as diametrically opposed possibly learn from one another? How might they help each other reconceive their interrelationship, themselves, and the broader study of Jews and Judaism? This book begins with three distinct approaches to these challenges. The chapters then follow the approaches through an interdisciplinary series of pioneering case studies that reassess a range of topics including religion and pluralism in Jewish education; pain, sexual consent, and ethics in the Talmud; the place of reason and devotion among Jewish thinkers as diverse as Moses Mendelssohn, Jacob Taubes, Sarah Schenirer, Ibn Chiquitilla, Yair Ḥayim Bacharach, and the Rav Shagar; and Jewish law as a response to the post-Holocaust landscape. The authors are scholars of rabbinics, history, linguistics, philosophy, law, and education, many of whom also have traditional religious training or ordination. The result is a book designed for learned scholars, non-specialists, and students of varying backgrounds, and one that is sure to spark debate in the university, the Beit Midrash, and far beyond. Ethan B. Katz teaches History and Jewish Studies at the University of California, Berkeley. His previous books include The Burdens of Brotherhood: Jews and Muslims from North Africa to France (2015) and Secularism in Question: Jews and Judaism in Modern Times (2015, co-edited with Ari Joskowicz). Sergey Dolgopolski is Gordon and Gretchen Gross Professor of Jewish Thought in the University at Buffalo SUNY. He has written Other Others: The Political After the Talmud (2018); The Open Past: Subjectivity and Remembering in the Talmud (2012); and What is Talmud? The Art of Disagreement (2009). Elisha Ancselovits teaches at the Pardes Institute of Jewish Studies and Yeshivat Maale Gilboa and is a fellow at Emory University’s Center for the Study of Law and Religion. He has published widely in English and Hebrew and is completing a multi-volume history of Judaism through the lens of Jewish law.

Routledge Approaches to History

49 Nation and the Writing of History in China and Britain, 1880–1930 Asier H. Aguirresarobe 50 Ideas and Methodologies in Historical Research Vladimer Luarsabishvili 51 Clarifying the Past Understanding Historical Commissions in Conflicted and Divided Societies Cira Palli-Asperó 52 Combining Political History and Political Science Towards a New Understanding of the Political Edited by Carlos Domper Lasús and Giorgia Priorelli 53 Lebanese Historical Thought in the Eighteenth Century Hayat El Eid Bualuan 54 Polish Theory of History and Metahistory in Topolski, Pomian, and Tokarczuk Jan Pomorski 55 The Cultivation of Character and Culture in Roman Rhetorical Education The Available Means Anthony Edward Zupancic 56 When Jews Argue Between the University and the Beit Midrash Edited by Ethan B. Katz, Sergey Dolgopolski and Elisha Ancselovits

For more information about this series, please visit: https://www.routledge.com/ Routledge-Approaches-to-History/book-series/RSHISTHRY

When Jews Argue Between the University and the Beit Midrash

Edited by Ethan B. Katz, Sergey Dolgopolski, and Elisha Ancselovits

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, Ethan B. Katz, Sergey Dolgopolski and Elisha Ancselovits; individual chapters, the contributors The right of Ethan B. Katz, Sergey Dolgopolski and Elisha Ancselovits to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Katz, Ethan, editor. | Dolgopolʹskiĭ, S. B. (Sergeĭ Borisovich), editor. | Ancselovits, Elisha, editor. Title: When Jews argue : between the university and the Beit midrash / edited by Ethan B. Katz, Sergey Dolgopolski and Elisha Ancselovits Description: New York : Routledge, [2024] | Series: Routledge approaches to history | Includes bibliographical references and index. Identifiers: LCCN 2023020433 (print) | LCCN 2023020434 (ebook) | ISBN 9781032427409 (hardback) | ISBN 9781032427416 (paperback) | ISBN 9781003364078 (ebook) Subjects: LCSH: Jews--Education (Higher) | Judaism--Study and teaching. | Rabbinical literature--History and criticism. | Jews--Intellectual life. | Universities and colleges. Classification: LCC LC3567 .W84 2023 (print) | LCC LC3567 (ebook) | DDC 378.1/9829924--dc23/eng/20230718 LC record available at https://lccn.loc.gov/2023020433 LC ebook record available at https://lccn.loc.gov/2023020434 ISBN: 978-1-032-42740-9 (hbk) ISBN: 978-1-032-42741-6 (pbk) ISBN: 978-1-003-36407-8 (ebk) DOI: 10.4324/9781003364078 Typeset in Sabon LT Pro by KnowledgeWorks Global Ltd.

For Bruce Rosenstock, z”l, who argued often and well, and always about things that matter.

Contents

Acknowledgments List of Contributors Introduction: Engagement Religious Devotion, Academic Relativism, and Beyond

xi xiii

1

ELISHA ANCSELOVITS, SERGEY DOLGOPOLSKI, AND ETHAN B. KATZ

1 Terms Is Jewish Studies Devotionist, Relativist, or Transcendentalist?

37

SERGEY DOLGOPOLSKI

2 Philosophy Moses Mendelssohn, Leo Strauss, and the Relativist/ Devotionist Divide

58

BRUCE ROSENSTOCK

3 History Devotionist Textual Scholarship and Historical Consciousness in Early Modern Responsa

77

TAMARA MORSEL-EISENBERG

4 Law The Mothers, the Mamzerim, and the Rabbis: A Post-Holocaust Halakhic Debate as Legal and Historical Source ELISHA ANCSELOVITS AND ETHAN B. KATZ

103

x Contents 5 Language Did the Medieval Grammarians’ Scientific Approach to Hebrew Reject or Embrace Tradition?

147

DANIEL ISAAC

6 Ethics Debating the Proper Orientation of the Ethical Self in Rabbinic and Monastic Sources from Antiquity

176

MATTHEW GOLDSTONE

7 Pain Milk and Blood, or the Critical Place of Suffering for Sages and Readers of the Talmud

188

YONAH LAVERY-YISRAELI

8 Consent Coercion, Consent, and Self in the Redaction of a Bavli Sugya

205

AVIVA RICHMAN

9 Feminism Relativism and Devotion, the Yarmulke, and the Ex-Bais Yaakov Girl

234

NAOMI SEIDMAN

10 Postmodernism The Soft Radicalism of Rav ShaGaR

250

DAVID N. MYERS

11 Education A Case Study in Devotional and Relativist Learning in Early Childhood Religious Education

260

JACLYN RUBIN-BLAIER

Afterword: Limits Thesis, Antithesis, Synthesis

280

PHILLIP I. LIEBERMAN

Index

288

Acknowledgments

For the editors, it is a true pleasure to thank a number of individuals and institutions for their essential support of this book. The project grew out of a set of fruitful and fortuitous conversations: the first, over two days, were only possible because of invitations from Vivian Liska at the University of Antwerp for Ethan and Sergey each to speak, which happened to bring the two of us together for a memorable Shabbat in that city in November 2016. The second owed much to the intellectual environment of the Pardes Institute of Jewish Studies in Jerusalem, where Ethan took part in Elisha’s shiur from fall 2016 to summer 2017. The volume began to take shape through the rich scholarly and spiritual conversations that occurred at the international workshop “Devotion and Relativity, Text and Context: New Frontiers of Jewish Literacy,” in New York City on October 7-8, 2018, hosted by the Center for Jewish History and Yeshivat Maharat. The editors and contributors would like to thank Patty Dunlap of the Center for the Study of Religion at the University of California, Berkeley, for her indispensable role in the success of the workshop. We are also grateful to David N. Myers, then-president of the CJH, and Jeffrey Fox of Maharat, and the staff of the two institutions, for the warm welcome and crucial logistical support they provided. In addition, we thank all of the workshop participants for their critical engagement, including Herbert Basser, Shira Billet, Yoni Brafman, Eiran Davies, Will Friedman, Steve Greenberg, Noam Pines, Chaim Saiman, Mindy Schimmel, Jonathan Sheehan, David Sorkin, Ute Steyer, and Ethan Tucker. The workshop would not have been possible without the financial or administrative support of key units at UC-Berkeley, including the Center for the Study of Religion, the History Department, and the Center for Jewish Studies. Pivotal financial support also came from the American Academy for Jewish Research, the Salo W. and Jeannette M. Baron Foundation, the Exilarch’s Foundation, and the Gordon and Gretchen Gross Professorship in Jewish Thought, the University at Buffalo SUNY. This book appears initially as an issue of Jewish Law Association Studies, an idea first suggested and supported throughout by its editor Phil Lieberman, and then as a hard-copy book with Routledge Press, where we received immediate and enthusiastic support from Robert Langham. Both have played

xii Acknowledgments a key role in shepherding this project through the editorial process and have offered helpful suggestions that improved the final product. We are deeply grateful to the reviewers for their extremely useful and productive feedback on the manuscript. A key conversation with Sylvia Fuks Fried did much to sharpen the book’s framing. The introduction benefited greatly from the careful comments of Jay Berkovitz, Arna Poupko Fisher, Dana Hollander, and Michal Raucher. John Efron, Derek Penslar, and David Sorkin were helpful in the process of finding a home for the book. The editors would like to thank Anthony Catanese for help in developing the Index. Our families have all lived with this project for longer than any of us predicted. For months on end, we met every Thursday for two hours on Zoom while spouses and children went about their day without us (and occasionally interrupted us with immediate needs or idle curiosity). How, they all undoubtedly wondered, could it take so many conversations and revisions to figure out what we were trying to say? Throughout, they were loving, supportive, and patient. This book has from the outset been a running conversation about the interrelationships, gaps, and tensions between the world of academic Jewish studies and the Beit Midrash. We are grateful that all of the contributors remained engaged in this conversation through its ebbs, flows, and challenges over a period of more than four years. It is our deep regret that in the final days before the manuscript was sent off for copy-edits, one of the contributors, and one of the best conversationalists any of us know, Bruce Rosenstock, died after a long illness. Over a number of years, we all had the opportunity to talk to Bruce at length about challenging and critically important issues within and far beyond this book. He brought an extraordinary passion to these conversations. His commitment to ideas, education, and improving the quality of the discourse was second to none. He could advocate a position fiercely, but he also knew how to listen carefully; in short, he argued well. He left us much too soon. His departure leaves a deep hole in Jewish studies and the wider world. It is to him that we dedicate this book. Ethan B. Katz, Berkeley Sergey Dolgopolski, Buffalo Elisha Ancselovits, Maalei Gilboa

Contributors

Elisha Ancselovits holds a Ph.D. in Religious Studies and has both rabbinic and judicial ordination (Yoreh Yoreh and Yadin Yadin). He teaches Halakha as Practical Wisdom in the kollel of the Pardes Institute of Jewish Studies and in the kollel of Yeshivat Maale Gilboa, in the rabbinic (Yoreh-Yoreh) and judicial (Yadin-Yadin) ordination tracks of his Bet Midrash Hukkim Hakhamim, and in additional Orthodox and secular Israeli institutions. He is currently a fellow at Emory University’s Center for the Study of Law and Religion. In the past, he has been a postdoctoral or visiting researcher and a visiting professor in Halakha, in Mishpat Ivri, in Jewish Thought, in Jewish Education, and in Legal Realism. He has published widely in English and Hebrew, including in Jewish Law Association Studies, the Jewish Law Annual, Ma’galim, Techumim, and the Routledge Encyclopedia of Ancient Mediterranean Religion. He is currently completing the first of a three-volume history of Judaism through the lens of Jewish Law, entitled A Peoplehood of Wisdom: The History of Jews, Study, and Law. Sergey Dolgopolski is Gordon and Gretschen Gross Professor of Jewish Thought in the University at Buffalo SUNY departments of Jewish Thought and Comparative Literature. His general area of interest is the variety of ways in which philosophy and literature interact, creating new philosophical concepts and new literary forms. He specializes in the Talmud as a body of text and thought seen from poetic, rhetorical, and philosophical perspectives. He is the author of Other Others: The Political After the Talmud (Fordham University Press, 2018); The Open Past: Subjectivity and Remembering in the Talmud (Fordham U. Press, 2012); and What is Talmud? The Art of Disagreement (Fordham U. Press, 2009). He is currently working on a monograph on the sense of past and the agency of cited law in the Palestinian Talmud. Prof. Dolgopolski is a founding member and the former chair of the Department of Jewish Thought, which is one of the first comprehensive programs in the US to focus on arts and letters in Jewish languages as bodies and traditions of thought playing an elemental role in Western Civilization.

xiv Contributors Matthew Goldstone is the Assistant Academic Dean and Assistant Professor at the Academy for Jewish Religion, a pluralistic Jewish seminary. He is the author of The Dangerous Duty of Rebuke: Leviticus 19:17 in Early Jewish and Christian Interpretation and co-author of Binding Fragments of Tractate Temurah and the Problem of Lishana Aharina. Daniel Isaac received his BA from SOAS, University of London. He subsequently studied Arabic for three years at SOAS and Bar Ilan Universities. He received his MA in Jewish Languages from the Hebrew University, where he focused on a diachronic, linguistic analysis of two translations of Ecclesiastes from India and Iraq dating from the mid-19th and early 20th centuries into Judeo-Arabic. Currently, he is writing his PhD dissertation on Moses Ibn Chiquitilla’s Psalm commentary at Strasbourg University. In addition to his academic background, he received his rabbinical ordination in 2016 from Rabbi Daniel Landes and Rabbi Elisha Ancselovits. Ethan B. Katz is Associate Professor of History and Jewish Studies and Director of the Center for Jewish Studies at the University of California, Berkeley. He specializes in modern Jewish history and the history of modern France and its empire. He is the author of The Burdens of Brotherhood: Jews and Muslims from North Africa to France (Harvard, 2015), which received a number of prizes; and the co-editor of Secularism in Question: Jews and Judaism in Modern Times (UPenn, 2015) and Colonialism and the Jews (Indiana, 2017), which was a Finalist for a National Jewish Book Award. He is writing a new book preliminarily entitled Freeing the Empire: The Uprising of Jews and Antisemites that Helped Win World War II. His work has been awarded fellowships from the Katz Center for Advanced Judaic Studies at the University of Pennsylvania, the Lady Davis Trust of the Hebrew University, and the Social Science Matrix at UC-Berkeley, among others. Before coming to Berkeley, Katz taught at the University of Cincinnati, where he was a leading architect of a joint graduate program in Jewish History between the Hebrew Union College (HUC) and the University of Cincinnati. This program combines the strengths of HUC as a rabbinical seminary offering deep textual training and source accessibility in Jewish studies, and the History department of Cincinnati with its broad geographical and thematic training. Yonah Lavery-Yisraeli is a rabbi (yoreh yoreh, yadin yadin) who lives in Queens, NYC and works as a ritual scribe. She learns at Beit Midrash Hukkim Hakhamim, and has previously published articles on Talmud and Jewish law. Phillip I. Lieberman is an Associate Professor of Jewish Studies and Law at Vanderbilt University. He is a social, economic, and legal historian of the Jews of the medieval Islamic world. His 2014 book, The Business of Identity: Jews, Muslims, and Economic Life in Medieval Egypt (Stanford University

Contributors xv Press) was a finalist for the National Jewish Book Award. He served as a section editor for the award-winning Encyclopedia of Jews in the Islamic World (2010) and is the editor of the Cambridge History of Judaism, volume 5: Jews in the Medieval Islamic World (2021). His latest book, The Fate of the Jews in the Early Islamic Middle East (2022), challenges the received wisdom of Jewish urbanization under early Islamic regimes and subsequent migration from the East to the communities of the Islamic Mediterranean. His current work interrogates the power of the written word in the medieval world seen through the lens of medical, magical, and commercial advice manuals. Phil holds a BA (with distinction in Economics) from the University of Washington, a MSc in Economics from the London School of Economics, a MA in Talmud and Rabbinic Ordination from the Jewish Theological Seminary, a MA and PhD in Near Eastern Studies from Princeton University, and Semikha from Yeshivat Chovevei Torah. Tamara Morsel-Eisenberg is an Assistant Professor of History at New York University’s Skirball Department of Hebrew and Judaic Studies. She studies the intellectual and cultural history of early modern Ashkenaz, with a special focus on the history of halakha. Tamara approaches Jewish history from the perspective of the social and cultural history of knowledge, including questions of organizing information, transmitting religious knowledge using changing technologies, and the history of law and legal writing. Prior to her current appointment, Tamara was a Junior Fellow at the Harvard Society of Fellows in 2018–2022 and has published articles in AJS Review, the Journal of the History of Ideas, Critical Inquiry, and many others. David N. Myers is a Distinguished Professor of History and holds the Sady and Ludwig Kahn Chair in Jewish History at UCLA, where he serves as the director of the UCLA Luskin Center for History and Policy. He is the author or editor of more than 15 books in the field of Jewish history, including most recently American Shtetl: The Making of Kiryas Joel, a Hasidic Village in Upstate New York (2022) with Nomi Stolzenberg. Aviva Richman is Rosh Yeshiva at Hadar Institute in Manhattan. She received a PhD in rabbinic literature from New York University. Her private rabbinic ordination is from Rabbi Danny Landes, Rabbi Elisha Ancelovits, and Rabbi Arie Strikovksy in Jerusalem. Interests include Talmud, Jewish law, and gender. Bruce Rosenstock was a Professor of Religion at the University of Illinois at Urbana-Champaign from 2002 until 2023. He wrote several important books, which included New Men: Conversos, Christian Theology, and Society in Fifteenth-Century Castile (2002); Philosophy and the Jewish Question: Mendelssohn, Rosenzweig, and Beyond (2009); and Transfinite Life: Oskar Goldberg and the Vitalist Imagination (2017). At the time of

xvi Contributors his death, he was at work on a book about the history of the idea of incest (“revealing nakedness”) as the sin of Israel’s Other from Genesis to the racial “color line” in the modern West. Jaclyn Rubin-Blaier worked for Luria Academy of Brooklyn, where she wrote chumash and Judaics curricula; she taught chumash, Judaics, math, and science in the 7-9-year-old classroom at Luria for three years. Jaclyn received semikhah from Rav Elisha Ancselovits in 2013 and spent several years studying Talmud and halakhah at JTS, Drisha, Yeshivat Hadar, Pardes, Beit Morasha, and Matan. She earned a Master’s degree in Early Childhood Education at Boston University in 2015. Jaclyn has directed preschool summer programs at Ramah Berkshires and Mechon Hadar and led children’s groups in synagogues in Jerusalem and Boston. Naomi Seidman is the Chancellor Jackman Professor of the Arts in the Department for the Study of Religion and the Centre for Diaspora and Transnational Studies at the University of Toronto. She is the author of five books, including Sarah Schenirer and the Bais Yaakov Movement: A Revolution in the Name of Tradition (2019), which was awarded a National Jewish Book Award. She is also a 2016 Guggenheim Fellow.

Introduction: Engagement Religious Devotion, Academic Relativism, and Beyond Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz The World We Could Gain A philosopher, a rabbi, and a historian walk into a coffee shop in Jerusalem. Rather than the start of a bar-joke, this was the scene in early 2017 that marked the inception of this book. On the surface, the three of us made for an unlikely trio. From our upbringing in three very different settings for Jewish and general culture (Rostov on the Don and Moscow, Russia; New York, New York; and Tallahassee, Florida), to our specialties in radically disparate subjects (the interface between Talmud and philosophy, Jewish law as practical wisdom, and Jewish-Muslim encounters in the Francophone world, respectively), we would seem to have little in common. Nonetheless, we homed in quickly on the shared concern that had brought us together. In different ways, we all have a foot in both the world of traditional Jewish observance and study and the world of academic Jewish studies. Despite our different starting points and backgrounds, each of us has benefited from the opportunity to immerse himself in Jewish tradition and learning at a formative moment of personal and intellectual development, and we have all subjected our understanding of Jewish culture and tradition to critical inquiry. Moreover, we all believe that this dual position enhances, rather than imperils, our understanding of traditional Jewish texts and rituals on the one hand, and questions in academic scholarship on Jews and Judaism, on the other. We have all long lamented that such an outlook remains a minority one— either in much of the religious Jewish world or among our colleagues in the university. Yet we realized that the three of us were, within our respective disciplines, particularly drawn to thinkers who have questioned or sought to bridge this divide. And so we turned to a collective, cross-disciplinary project. In an effort to build upon previous and ongoing efforts to address this problem and to better understand the underlying tensions—between what we call here academic relativism and religious devotion—we convened an international working group of academic scholars and rabbis. The first result of our conversations is this book.1 The shared concern that brought us together was ultimately the inability of many academic and traditional Jewish scholars to talk with one another. DOI: 10.4324/9781003364078-1

2  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz We do not know how to argue or listen well, how to disagree in a way that clarifies what we are disagreeing about, or how to hold up simultaneously as relevant and important two differing or even contradictory bodies of knowledge, or how to accept that two parties or groups might each occupy a different vantage point that could be valid, and that it is incumbent upon both sides to try to hear and understand the other’s point of view. The consequence is that whether we are engaged in academic Jewish studies or traditional Jewish learning, we both lose. As we empower our divides, we impoverish ourselves. We study more of the same, but we actually know less. In part, these problems stem from the fact that the academy and the beit midrash each function as self-sufficient projects. For, despite stereotypes of religious dogmatism and academic critique, academics can be religiously dedicated to their methods, and pietists can be insistently skeptical of outside approaches. This book proposes that there is an alternative: where there are currently losses, much can be gained through engagement. We ask the reader to imagine what our understanding of Jews and Judaism might look like if the university and the beit midrash became curious about each other—not in order to produce a third utopian institution, not in order to persuade each other or to reach agreement, but because in so doing, each one would arrive at a radically enriched position. *** What is lost through disengagement takes many, often unnoticed forms. From an academic vantage point, the classic version of losing is that of the graduate of a yeshiva, or traditional Jewish school for boys, who enrolls at Queens College in New York City, for instance, and signs up for Jewish Studies courses. Thinking that his rebbe—his community and personal rabbi with whom he studied for many years—will be proud, he calls to tell him. The rebbe responds instead with dismay: “No, drop the class right away!” When the startled student asks why, the rebbe says: “Don’t you want to still believe in G-d?” Likewise, by now readers of popular ex-Orthodox memoirs like Shulem Dean’s All Who Go Do Not Return will hardly be surprised by stories about students who go away to study at a yeshiva, and stash works of Jewish studies scholarship under their pillow or their bed at night, secretly stealing moments to read them when they can. Such hidden books include works of Jewish history or culture; even tolerated dictionaries and grammar books often only appear with the more academic portions excised. Like other secular books, these are perceived as dangerous: If seen by the instructors of the yeshiva, the books would be confiscated; in some instances, the students could be expelled for reading them. Even in religious institutions where in practice the divide is not so strong, full engagement with academic perspectives that grants them equal weight is looked upon warily. And from the beit midrash perspective such strictures are not losses. Rather, they are the necessary price for maintaining religious devotion.

Introduction 3 From the vantage point of the beit midrash, there are altogether different versions of losing. Take the case of a prominent Jewish studies academic who rejects out of hand the suggestion that faculty from his program and rabbis from the local Orthodox community might both learn a lot by studying major Jewish studies questions and texts together. The very idea violates his basic sense of the pursuit of knowledge as a relativist, rather than a dogmatic, enterprise.2 “The rabbis are going to be coming from a perspective,” he explains, “that relies upon a belief in G-d. And once you bring that kind of outlook into the conversation, it can no longer be a scholarly endeavor.” Pressed that perhaps by hearing out more traditional religious perspectives, the academics could create an environment of mutual respect where the rabbis would be more receptive to their research, he scoffs, “What? So you’re going to educate them?” In another instance, one academic colleague recently asked one of the editors what to do about students who approach her each year having taken courses in a boys’ “yeshiva” or girls’ “midrasha” traditional Torah study program in Israel, seeking college credit for the courses. Looking over the syllabus, she explains, “all I see are law codes or straight Gemara. There is no critical reading of texts, no secondary sources, and the faculty member is not a Ph.D. or a Ph.D. student.” Like her predecessors, she concludes quickly that whatever value such a program may have, it does not warrant university credit at her institution. Chances are, one set of losses makes you shake your head in dismay and the other does not seem problematic to you. But if we suspend judgment for a moment, we can see that in each of these instances, both sides are losing. In every case, a lack of curiosity has stunning and often invisible consequences. The yeshiva student who fails to see the contextualized story of how traditions were forged, maintained, and adapted over centuries assumes that an automated understanding is sufficient. But at the level of one of the highest ideals of traditional yeshiva study—knowledge of the Torah and its greatest Sages—such a de-contextualized understanding is by definition a scant one. For he is deprived of the insights of the leading Torah scholars of generations past who shaped and interpreted those very traditions. At the level of a personal connection to sacred practice and belief, if the student of the beit midrash does not understand how the chain of transmission was constructed, that student cannot appreciate the depth and richness in the tradition to which they relate. Meanwhile, many academics that aspire to describe and analyze Jewish society and culture assume sharp divides between the animating factors in his/her research on the one hand, and the frameworks, practices, and texts of traditional Judaism, on the other. But here too, by the standards of their own highest scholarly ideals, there is tremendous loss: They miss out on entire bodies of source material that provide information on the animating worldview and daily life of the actual people they are studying. For many times and places, rabbinic texts provide one of the few windows—however imperfect—onto the language and practice of Jewish culture and society.

4  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz Moreover, even if one’s interpretation insists that the “real stuff” of Jewish life goes on outside of rabbinic texts, very often that stuff is in direct or implicit conversation with contemporary or previous generations of rabbis. This does not mean that every scholar of Jewish culture must become a socalled “talmid ḥakham”—someone with an encyclopedic, masterful knowledge of traditional texts and modes of study—but rather, the contextualist could learn essential insights from studying traditional texts with someone of significant background and experience with such texts. Even the academic scholar who strives to study classical texts in isolation from their subsequent traditions in order to avoid anachronism, can all too easily run into two opposing problems. First, they might too easily miss the ways that they themselves are making sense of the text under the influence of pre-academic traditions. Second, by ignoring how contemporary traditional frameworks understand the text and related practices, they miss the unique opportunity to gain powerful insights about what the text may have meant to its earliest adherents. However much distance exists between contemporary traditional Jews and the original texts, these Jews do indeed aspire to maintain the significance of texts as originally understood by the rabbis. However much distance exists between contemporary traditional Jews and the original texts, the common thread of their traditionalism—in its historical variety—provides a window onto the possible meaning of the texts as understood by the rabbis. Moreover, these traditional perspectives enable one to perceive within Jewish legal, theological, political, and intellectual writings a dialogue across time. Despite their disparate vantage points, both the traditional Torah scholar and the conventional academic understand at some level that they bring their own biases to the text and seek a kind of “originalism” in their interpretations. Yet by resisting each other’s paradigms and insights, they push aside the very sort of countervailing framework one always needs in order to afford alternative ways of reading textual meaning and interpretation. Blindness to each other’s virtues, in other words, makes it harder for each reader to overcome their own blind spots. Both the student of the beit midrash and Jewish studies in a university setting believe mistakenly that they are approaching something in a “pure” form; in reality, each is the heir to a tradition of thought that shaped, labeled, constructed, framed, and still infiltrates every aspect of the text or practice they are studying today. Only with each other’s help can each unravel the hidden depths, winding paths, and mysteries of their own tradition. Defining Terms: Devotion and Relativism Engagement requires defining the terms of the divide. For most participants in this standoff, the divide between the two camps is perceived as one between religious devotion and academic relativism. In common parlance, relativism means a doctrine that everything is dependent on context, history, and circumstance, and nothing is absolute. Devotion in similarly broad terms means being protective of one certain, and in that sense absolute, truth. Yet a clearer

Introduction 5 grasp of the standoff between the university and the beit midrash requires a more refined understanding. For an academic, devotion connotes religious dogma, attachment to traditional beliefs and practices. Relativism, by contrast, connotes a secular remove from religious dogmatism. Among scholars of Jews and Judaism, those that we call devotionists are often by turn also textualists, i.e., those focused on Jewish texts and traditional practices. These frequently traditionalist scholars possess exceptional knowledge of particular linguistic and cultural codes, and often of ritual experiences, that grants a kind of deeper-level access to the possible valence of these texts and traditions. By contrast, those we call relativists are frequently also what we might call contextualists. That is, they emphasize wider social and cultural contexts in which the Jewish experience has unfolded. Such scholars tend to enrich their research by placing their object of study within wider conceptual and theoretical frameworks. But it turns out that neither term can be mapped neatly with respect to religious or academic perspectives. As we see in the case of the academic who refuses to invite rabbis into a Jewish studies seminar, academic relativism is not necessarily a synonym for tolerance. Often, what passes for tolerance is in fact indifference (the relativist frequently will tolerate the opinions and ways of others only so long as those opposing views are not seen to encroach on his or her own). Put differently, the academic skeptic can be just as devoted to his or her point of view as a religious traditionalist. At the same time, the purported pure devotion of the religious traditionalist presents an equally incomplete picture. From navigating secular legal courts to relations with non-Jewish co-workers and clients, to reliance on social media, traditionally devoted Jews are often more connected to the non-religious world than either their exponents or critics acknowledge. In the process, they bracket—i.e., relativize—various parts of their lives, including their devotion, more than many would readily admit. Moreover, the case of the yeshiva student risking expulsion in order to attain knowledge beyond the insular walls of his learning institution is not unusual; its frequency evinces a widespread interest in other worlds that do not share his opinions or practices. In light of all these realizations, although the contributors to this book more often than not do indeed use the terms devotion and relativism in the first sense given here—of being associated with religious devotion and academic relativism, respectively—every author retains a cognizance of the second sense of devotion and relativism. We are all aware of the dogmatic potential of the academy and of the relativist tendencies of many in the traditionally religious world. *** At a more personal level, engagement requires self-awareness. If we are to be fully honest, disagreements occur not only between individuals, groups, and institutions. Rather, they occur within the self.3 Academic scholars of Jewish

6  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz studies often experience a tension between scholarship and identity. They therefore do not manage to be complete relativists. Traditional Jews who challenge relativist perspectives are, for the most part, persons who have been exposed to academic thinking. This means that, to some degree, we are each in ourselves microcosms of the conflicting devotionist and relativist groups.4 This broader phenomenon is represented well in these pages. While the contributors to this book come from a wide range of backgrounds, most have had at some point or other one foot in the world of traditional Judaism and one foot in academic Jewish studies. A number of the chapters here take up the issue of this personal challenge, explicitly or implicitly, from various angles.5 Many of our authors, or thinkers that they are writing about, manage to carve out a kind of third space that both acknowledges and maneuvers between the poles of relativism and devotion, context and text. They are in some instances making the devotional intelligible to readers more comfortable with contextual and relativist knowledge; this act itself can carry academic meaning for some, while being perceived by others as radically devotional.6 Others of our authors do not find the gap between devotional and relativist frameworks to necessarily be a place where one feels at home. Some of these contributors even address this issue directly, speaking from the gap as a position of critique. For members of various historically marginalized groups within and beyond the Jewish world, a critical perspective toward both devotionist and relativist frameworks can be vitally necessary. *** Engagement also requires historical perspective.7 Such perspective helps reconsider the long-prevailing account of a clearcut, sharp divide between academic and traditional study of Jewish history, culture, texts, and practices.8 Thus, in the introductory chapter to the widely cited Oxford Handbook of Jewish Studies, editor Martin Goodman offers a passing but revealing take on the evolution from traditional Torah study to modern Jewish studies. He writes: The high valuation of learning about the Torah as a pious activity in itself has been a distinctive aspect of rabbinic Judaism since late antiquity. Yeshiva education, centred on expertise in talmudics, has retained a prestigious role among religious Jews down to the present day. But this learning, which aims at the elucidation and reconciliation of texts as the expression of God’s law, is to be distinguished from the study of Jews and Judaism without (at least in principle) any objective beyond a search for the truth.9 Such an account—drawing too neat and tidy a boundary, chronologically and intellectually, between traditional Jewish learning and modern Jewish studies—has long been the standard view.10 It is not altogether different (if surely much starker) than the view articulated twenty years earlier by eminent

Introduction 7 historian Yosef Hayim Yerushalmi, in his classic book Zakhor: Jewish History and Jewish Memory. While Yerushalmi was not strictly observant, he had himself received a yeshiva education and been ordained as a Conservative rabbi at the Jewish Theological Seminary. Zakhor reflects the author’s extraordinary reach as a scholar familiar with not only the extant scholarship on Jewish and wider European history but also the corpus of classical and rabbinic Judaism. The book brought together in a novel way the longstanding traditional rituals of Jewish collective memory and the much more recent practice of academic Jewish history. Yet it combined them only to sever them more firmly apart, as Yerushalmi made a sharp distinction between the former and the latter one of the book’s central points. In the work’s final section, he described the latter as in modern times “the faith of fallen Jews.”11 This expression seemed to imply the incapacity of the Jewish historian to speak to traditional Jews, to replace the eroded collective Jewish memory with the findings of their research. “Those Jews,” he insisted, who are still within the enchanted circle of tradition, or those who have returned to it, find the work of the historian irrelevant. They seek, not the historicity of the past, but its eternal contemporaneity. Addressed directly by the text, the question of how it evolved must seem to them subsidiary, if not meaningless.12 For Yerushalmi, it was all too obvious that “[m]odern Jewish historiography cannot address itself to those Jews who have never fallen.”13 It was unimaginable, he seemed to say, that Jews devoted to observance could also find meaning in academic research on Jews and Judaism, and that rigorous, critical academics could also be persons attached to Jewish tradition. Like many scholars, Yerushalmi traced this divide to the development in nineteenth-century Germany of the Verein für Kultur und Wissenschaft der Juden and its journal the Zeitschrift für die Wissenschaft des Judentums, founded in 1819. Wissenschaft followed in the footsteps of broader contemporary academic culture in Germany, and thus its founders set out to build a “scientific” or academic, indeed a relativist, context-focused field in the study of Jews and Judaism. From its inception, many participants and critics painted Wissenschaft as a sharp rupture with traditional Jewish studies, and insisted upon a growing and eventually unbridgeable chasm between the two. By the late nineteenth and early twentieth century, moreover, many scholars of the nascent academic Jewish studies had indeed turned away from the rigorous study of traditional Jewish texts and practices as the purview of those focused on the study of religion. What to the traditional scholar were the critical discourses around which Judaism revolves, they viewed as relics of mere technical conversations. They saw these as of limited interest against the broader background around which Jewish identity revolves—Jewry’s historical and philosophical developments. At the same time, traditional scholars, for the most part, had indeed turned away from critical context as the purview of skeptical academics,

8  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz preferring to examine rabbinic texts and practices sui generis. In the century before the founding of Wissenschaft, a number of important German religious authorities like Rabbi Yair Ḥayim Bacharach (1638–1702) and Rabbi Aaron Worms (1754–1836) had offered a conception of traditional learning that embodied, as Jay Berkovitz argues, “a critical approach to sources, and an appreciation for the process of historical development, in particularly in relation to Halakhic and Kabbalistic traditions.”14 After the founding of Wissenschaft, however, traditionalists increasingly rejected the critical studies of academic scholars. While academics viewed their efforts as unbiased attempts to chart Jewish history, society, and culture, traditional scholars regarded them as biases that academic scholarship introduced under the guise of rigor and fact. This sociological divide became so severe that by the twentieth century, in extreme cases, Orthodox figures like Rabbi Eliyahu Dessler and Rabbi Shimon Schwab even undertook systematic efforts to undercut the validity of rigorously fact-based critical scholarship.15 And yet throughout there were important and instructive countervailing forces. Many of Wissenschaft’s strongest proponents and critics engaged in heated debate, frequently not talking past each other but rather engaging in a fierce interpretive dialogue. Rabbi Samson Raphael Hirsch, founder of German Neo-Orthodoxy, considered the historicist and critical approaches of Wissenschaft and the Reform movement toward the Bible and the rabbis anathema. Yet rather than ignore them, in the 1850s, for three years running, he devoted portions of his newsletter Jeschurun to criticizing Heinrich Graetz, father of Jewish history, for the way the latter had portrayed the Oral Law in his most recent book.16 Rabbi David Zvi Hoffman, Rosh Yeshiva/ rector of the Hildesheimer Beit Midrash/Seminary in Berlin, even used critical methods to criticize both Wissenschaft conclusions and methodologies. By the mid-twentieth century, in Mandate Palestine and then Israel, increasing numbers of leading Orthodox rabbis began to employ critical-historical methods of research and analysis, even as they eschewed a relativist framework.17 In 1937, the leading Religious-Zionist devotionist publishing house, Mossad Harav Kook, started publishing its journal that includes not only traditionalist articles but those that, while not altogether relativist, employ critical-historical methods.18 Moreover, by the mid-twentieth century the Iraqiborn third Sephardi Chief rabbi of Israel, Rabbi Yitzḥaq Nissim, was publishing critical editions of rabbinic works with critical-historical introductions even as he criticized the relativist assumptions of academic Jewish Studies.19 In parallel, the Yemenite-born member of the Israeli Rabbinate’s High Court, R. Yosef Qafiḥ, even won the Bialik Prize and Israel Prize for both his critical editions of Judeo-Arabic literature and his historical essays that criticized the conclusions of academic relativists.20 And since the 1990s, an Ultra-Orthodox journal in Jerusalem has been publishing non-relativist yet critical biographies and bibliographical essays.21 Inversely, the German thinkers Zacharias Frankel and Abraham Geiger, and the Jerusalemite Abraham Yehudah, all leading advocates for Wissenschaft,

Introduction 9 wrote extensively about subjects like the Hebrew Bible, the Talmud, religious poetry, and rabbinic law—even if they wrote in far too historicist or comparative a fashion for the likes of Hirsch.22 Heinrich Graetz was more than a historian. He was also an impassioned and accomplished biblical exegete. Further east, in Galicia and the Czech lands, important rabbinic figures such as Solomon Judah Loeb Rappaport (the ShiR) and Tzvi Hirsch Chajes hewed strictly to Orthodox Judaism in their practice while being deeply committed to the methodology of Wissenschaft. In Italy, R. Samuel David Luzzatto was a renowned poet, scholar, and participant in the Wissenschaft movement— even as he judged harshly a number of his fellow Wissenschaft scholars for not possessing “the faith which seeks to grasp the Torah and prophets as the word of God, and to see in Jewish history the singular chronicle of a singular people.”23 And with the rise of Zionism, the number of academicrelativist Orthodox scholars of Jewish Studies rose exponentially. Moreover, since 1992 even a Brooklyn-based Torah journal has expanded its devotionist framework to include historical articles that feature relativist approaches.24 In other words, and as we will expand upon below, many scholars of Jews and Judaism have continued to engage across the assumed boundaries between devotion and relativism down to the present. Accordingly, this volume in part highlights some of their frequently neglected work. More importantly, it seeks to think systematically about the nature of the chasm between academic relativism and religious devotion and possibilities and obstacles for moving forward—for engaging beyond the divide. Three Solutions Moving beyond the devotion-relativism conundrum toward additional possibilities for engagement requires new and diverse methods. In the course of the project, three distinct approaches have emerged for thinking through and across the devotion-relativism conundrum, and ultimately for transforming the oppositional into the conversational. Each reflects our particular disciplinary orientation. One of us is a specialist of modern Jewish history in Europe and the Mediterranean. One of us is both a rabbi and an academic researcher of Jewish law. One of us is a scholar of Talmud and philosophy as two ways of thinking about human interactions. Our three approaches all call for a major re-orientation of how Jewish studies is done. They also seek to cultivate engagement, or what we might call a new Jewish conversation—one of reading across canons and aspiring for productive disagreement. The first solution, coming from Ethan Katz as the historian among us, proposes expanding the canons of both the academic and yeshiva world, so that they overlap to a much greater degree than at present. This solution invites historians to become more immersed in the texts and modes of reading of the beit midrash, as well as the ritual practices of traditional Judaism; simultaneously, it makes historical knowledge more inviting for those struggling over difficult traditional texts and practices. The second

10  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz approach, posited by Elisha Ancselovits as both a rabbi and a scholar of Jewish law, proposes that by reading all discourses as if we were in warm conversations with the authors, we understand them much more clearly: we realize that they merely use different terminology to discuss our own real-life problems and solutions. For the final approach, talmudist and philosopher Sergey Dolgopolski reclaims the rabbinic tradition as a discipline of thought where Talmud encounters philosophy as another discipline; the result, he contends, is a kind of rabbinic transcendentalism that moves beyond the devotionrelativism binary. This solution ultimately points toward defining our disagreements, seeing a clear and sharp disagreement as a genuine goal, instead of as an obstacle. In much of the remainder of this Introduction, we explore more fully each of these proposed solutions. At first glance, the approaches may appear radically disparate, but we shall see that all chapters in this book employ or reflect more than one approach simultaneously. In fact, the three proposed solutions are in many respects interwoven, at times even interdependent. From the outset, combining historical, rabbinic, and philosophical approaches in a conversation about academic relativism and religious devotion has pushed each contributor to think and question in ways that they normally would not. I. Expanding the Canons

The first approach focuses on bringing together texts and bodies of knowledge that are typically not in conversation. This requires, as Ethan Katz has put it elsewhere, “taking religion seriously.”25 Such an effort entails several major shifts from today’s common practices. First, academic scholars in Jewish studies who are not specialists in religion need to treat religion as what it is: a vital avenue and lens for understanding the Jewish experience in nearly every time and place up to the present. Even in studies where religion does not figure centrally, researchers invariably can enrich considerably their portrait of Jewish life when they bother to search for religious figures, texts, rituals, and modes of thought and to assume they are engaged in some manner in the most pressing questions of the time. Just as scholars in Jewish studies widely assume that leaving out politics, society, or culture, and increasingly class, race, gender, or sexuality would hamper or impoverish their study on almost any given topic, they should be equally leery of setting religion to the side altogether. Second, all scholars who encounter religious sources need to treat them with what Jonathan Sheehan has termed a “hermeneutics of credulity.”26 By this, Sheehan means that we need to assume that a given religious thinker means what they say, and as importantly, believes in what they say. We would extend the definition to include the assumption that when religious texts, ceremonies, or figures appear in a given context, they are not operating in isolation; that is, they have something to say about the major issues in the surrounding world where they unfold. Conversely, specialists

Introduction 11 in Jewish law and ritual within and beyond the academy would benefit immensely from beginning to see historical, social, and cultural context as much more than mere background, and taking onboard insights from theories of critical reading. By extension, expanding the canons is based on building a consensus that academics in any sub-field of Jewish studies working on nearly any topic or period need: (a) a modicum of serious training in Jewish sources, life, and language(s), and simultaneously and to an equal extent in (b) the various wider cultural, social, and historical contexts in which the Jewish experience they are analyzing has unfolded, and (c) the leading methodological insights of their discipline and specific field.27 Finally, non-academics in the traditional world of Jewish learning have much to gain if they can transcend a parochialism that has become all too normative. What if the shelves of the beit midrash could begin to be filled with not only volumes of Tanakh, Talmud, prominent rabbinic commentaries, and law codes but also the established works and cutting edge of the relevant literature in academic Jewish studies? The impact could be transformative: imagine if the insights of Jewish studies scholars in the academy no longer had to be feared or condemned as heretical or unworthy. Rather, they could be welcomed, scrutinized, debated, and critiqued, with all the seriousness that Judaism and the Jewish experience merits. This, too, could be a form of taking religion seriously. It relies directly on expanding the canon represented along the walls of the traditional Jewish study-house. *** Ethan Katz’s approach of expanding the canons builds upon some useful starting points from Jewish studies scholarship of the past century. In 1920, the eminent talmudist and prominent Conservative rabbi Louis Ginzburg wrote that understanding Jewish history, thought, and society is “impossible” absent knowledge of traditional Jewish texts and practices.28 Traditional sources, he contends, “comprise life in all its manifestations—religion, worship, law, economics, politics, ethics and so forth.”29 He insisted that “all the historians and scholars who devoted their lives and great abilities to the study of Jewish history” could not ignore this traditional corpus. While his focus was Jewish legal sources, he could have made much the same point regarding the study and depth of knowledge (or lack thereof) of ancillary fields such as Jewish ritual, liturgy, and theology.30 In the decades to follow, the first holder of a chair in academic Jewish history in America, Salo Wittmayer Baron, substantially heeded Ginzburg’s call. In his epic, eighteen-volume Social and Religious History of the Jews, Baron made a conscious effort to include religious life. In contradistinction to his predecessors Graetz and Dubnow who, despite their erudition in the wider Jewish corpus, de-emphasized the centrality of Jewish law and practice, Baron saw himself as putting religion back into the writing of Jewish history.

12  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz In a 1963 essay assessing the preceding 25 years of scholarship in Jewish history, Baron criticized both a new generation of historians and the traditionalists of his time, for their incapacity to integrate each other’s insights. He lamented that “the relative unfamiliarity of some newer students of the Jewish past with the Hebraic tradition and source materials,” in many cases resembled a long line of non-Jewish historians who “look at Jewish history from the outside, rather than…as insiders with that unconscious ‘feeling’ for what was historically relevant to the past generations.”31 At the same time, he concluded by noting that the “very attempt at historical objectivity” had “often militated against the full acceptance of historical studies by Jewish thinkers and masses alike.”32 Drawing contrasts that anticipated those of his star disciple Yerushalmi a generation later, Baron wrote that he was witnessing a “return to the study of the classical sources of either Judaism or Christianity, purportedly yielding the more absolute truths of divine revelation, in contrast to the more relativistic truths of any historical research.”33 Yet Baron himself, despite his extraordinary learning in a vast range of academic and traditional materials, failed to offer a solution to this conundrum.34 In the 1960s and 1970s, some scholars like Jacob Katz and Haym Soloveitchik utilized halakhic sources to write social and cultural history, and made Jewish law and ritual central to their accounts of Jewish life from medieval to modern times.35 An entire field of academic scholarship emerged that focused on the study of halakhah.36 In the years ahead, as Katz, Soloveitchik, many of their students, and other scholars ventured toward a widely inclusive patchwork of sources religious and secular, Jewish and non-Jewish, they began to place traditional Jewish sources in conversation with the parallel conversations of broader society. Indeed, a handful of more recent, highly promising studies show possibilities for building upon work like that of Katz and Soloveitchik, while employing new approaches that go beyond their use of halakhah as an essential source for religious and social history. These works have analyzed Jewish law, ritual, piety, and communal practices in learned ways that reflect deep understanding of the tradition’s internal dynamics and cultural codes; at the same time, they have placed these in the context of those of their non-Jewish neighbors and wider societal and cultural forces. It is little accident that, in most cases, the authors have spent considerable time in not only the academy but also more traditional settings of Jewish text study and ritual practice. Moreover, more than their predecessors, they have frequently employed interdisciplinary perspectives such as cultural, feminist, and legal theory to elucidating effect. Altogether, these scholars do what we refer to as taking religion seriously: they analyze Jewish law, belief, and practice as vital historical forces, treat the observant individuals and communities found in their sources as sincerely attached to their traditions, and have the textual, contextual, and conceptual background to carry this off with rigor. Consider examples from a single field, that of the Jews of medieval and early modern Ashkenaz (generally defined as northern France and Germany).

Introduction 13 During the past twenty years, scholars like Elisheva Baumgarten, Elisheva Carlebach, Talya Fishman, and Debra Kaplan have begun to write a history of Jewish life between the tenth and eighteenth centuries in which religious texts, laws, and practices are not static or isolated but figure as central, vital, and dynamic forces that must be studied in relationship to one another and to wider historical contexts. Much of this scholarship shows the dynamism of ritual as much more than a rote religious practice. Here it appears as a critical expression of social and gender roles, collective and individual remembrance of events and persons, and identifications with Jewish and nonJewish culture. In this history, religion is part of a larger social and cultural world of both Jews and the surrounding Christian society.37 For Baumgarten especially, such approaches are seen as necessary to overcome a longstanding tendency of scholars like Katz and Soloveitchik to privilege halakhic writings and intellectual currents—both as causal agents that explain changes in practice and as facsimiles for the realities of practice itself. Often opening a window onto the neglected histories of women in particular, Baumgarten insists that by “taking the vantage point of those who performed rituals rather than those who penned their descriptions and prescriptions,” we can have “an eye to practice rather than textual transmission and to the religious observances of Jews as a social group rather than the behaviors modeled by learned figures.”38 Taking religion seriously in this way has extended to other domains as well. Jay Berkovitz and Ted Fram have both analyzed carefully and made available for the first time new legal sources, specifically pinqasim, or the records of rabbinic courts, of eighteenth-century Metz and Frankfurt, respectively.39 They show the degree to which rabbinic courts under the Old Regime were neither isolated nor static; instead, those rabbinic courts already partook of and negotiated within the state’s larger legal “culture” and apparatus. They display as well what remained the overriding importance of halakhah on the eve of modernity. Therefore, they suggest that these court records—far more than rabbinic responsa—reveal in real time and concrete terms a wide range of practices and relations at various levels of Jewish society. Meanwhile, rethinking responsa themselves is the focus of Maoz Kahana’s close analysis of the corpus of two towering rabbinic figures—the Noda BiYehuda and the Ḥatam Sofer—who navigated the transition to modernity and its challenges to traditional Judaism. While Kahana’s work emphasizes the interplay between the transformative changes of the era and these rabbis’ halakhic writings, he does not see this as a conventional story of secularization or adaptation to change. Rather, he contends that shifting patterns in Jewish and non-Jewish daily life and new Jewish intellectual currents affected how these sages transmitted and conceptualized the rabbinic tradition: as they wrote their responsa, they changed their discursive style and they re-thought the basis and process for arriving at a halakhic decision.40 In a somewhat parallel move, David Sorotzkhin locates the origins of Ultra-Orthodox Judaism not in nineteenth-century responses to Haskalah,

14  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz Reform, and Zionism, but rather in a prior, early modern Jewish educational movement focused on “social disciplining and religious engineering of Jewish societies,” which first emerged in sixteenth-century Safed.41 In the field of intellectual history, David Sorkin has substantially resituated the significance of Moses Mendelssohn and other Haskalah figures within a wider religious branch of the European Enlightenment, in Germany and far beyond.42 Here sacred texts and questions of Divine Providence appear engaged, rather than threatened, by the discoveries of science and philosophy, and vice versa.43 Such scholarship has offered the beginnings of a new model: it features the integration of sources and methods needed to expand the canons and create the critically necessary basis for real engagement between religious and academic frameworks. Yet for many areas of Jewish studies, particularly once we move to the modern period, this sort of integration remains quite rare. As historian Malachi Hacohen has written recently, “Rabbinic scholars and European historians still seem to inhabit different intellectual universes, as if their concerns did not matter to each other.” He further notes the persistent issue of disparate intellectual background: “Divergent training and interests continue to inhibit the extension of European Jewishness to traditional Jews. The painstaking textual labor of Jewish Studies, whether in Talmud, Midrash, rabbinic responsa or Kabbalah, does not make it into European history.” In sum, “[f]or traditional Jewish culture to become part of European history, rabbinic discourses must be ‘Europeanized,’ and Jewish European history written, at least in part, [based upon] traditional Jewish sources.”44 Ultimately, we can only expand the canons if we address this need in Jewish studies more broadly. II. Reading as Warm Conversations

This expanding of the canon—this developing of the skills to read and integrate across a wide body of sources and contexts—is vitally necessary but insufficient, if we want devotionists and relativists to grasp fully each other’s worldviews. We offer, therefore, a second approach to complement the first approach. It emphasizes less the what of content itself and more the how of analyzing sources. It is an approach developed by Elisha Ancselovits of reading sources as if we are in a warm, friendly conversation with the author(s) of the past.45 In warm conversations, people try to determine what experience or insight a person is trying to communicate with their words or concepts46—rather than fixate on the person’s words or concepts. We do this because we realize that we impose our own meaning and even discover non-existent contradictions if we focus on another’s specific words or concepts.47 For instance, consider someone who is going shopping and asks their friend to handle their small dog for an hour. The friend says laughingly, “That dog is so cute. It isn’t a dog; it’s a battery-operated toy. Of course, I can handle him. I had a real dog, a Newfoundland, as a kid. Hey! I’ll see how he handles a large steak.” We understand that the friend is not contradicting themselves in asserting both that this given animal is a dog and not a dog. We understand

Introduction 15 that the friend is not contradicting themselves in asserting both that this pet is a toy and that they will feed this pet. Although the friend both offered to “handle” the dog and to see how the dog would “handle” a steak, we understand that the friend does not mean to eat the dog (even as the dog will eat the steak).48 We understand that our friend had taken care of a dog as a kid although our friend did not elaborate pedantically49 and merely said in shorthand50 that they “had” a dog. We even understand that the friend is agreeing to do a favor and is not demanding payment although our friend did not state anything on the matter one way or another. Moreover, even if we are insulted by the description of our dog or ideologically disagree about the proper size of pet dogs because we believe that people should live in small apartments for ecological reasons, we still understand our friend. We understand why our friend enjoys large open spaces and larger dogs. And our friend does the same for us. If we say slightly peevishly, “hey, my dog is a real dog,” our friend does not misconstrue us as misreading them. Our friend does not point out that we failed to notice that they had indeed recognized our dog as a real dog. Rather, our friend might acknowledge our point by responding mischievously, “Of course, your dog is a real live dog. It’s a real live toy dog.” We understand all this because humans are similar to each other and so we are capable of focusing on what the friend is expressing and communicating in the somewhat poetic51 yet plain52 language of conversation—rather than focusing pedantically on words and concepts or even on their omissions. And we choose to understand, rather than discover contradictions in or impose meaning on our friend’s words, because we are in a warm conversation with a friend. Our friendship reminds us that no specific norms, let alone words, can be the ideal human response for all socio-material conditions.53 Our friendship reminds us that despite our linguistic differences54 and even our ideological differences55 over the proper size for dogs, we both understand the costs and advantages both of keeping bigger dogs and of keeping smaller dogs. We accept rather than try to silence our friend’s difficult reminder of an opposing perspective or insight—one that we actually understand and even share emotionally to some degree56 within our own pet lifestyle or even broader urban ideology. In stronger terms, when one engages in warm conversation with a friend, one overcomes “resistance to finding out that the other is the same.” One overcomes the fearful truth that in order to “recognize that the… [other] was ‘just like him’, he would have to recognize that he was just like the… [other].”57 This standard of engaging with sources as if in a warm conversation is not altogether new.58 It has been applied by a handful of scholars to reading fields such as Greek mythology.59 However, this standard has broader application. It can even be applied to reading jurists,60 whose arguments61 sound strange or poorly incomplete and thus untrue. Rather than read those authors too literally, only to critique or even dismiss their arguments and positions, we can listen to them warmly so as to understand their explanations and rulings.

16  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz When we relate to authorities of Jewish law as warm conversation partners and seek to hear them speaking insights about addressing the human condition—even when their positions insult or horrify our specific beliefs and values—we come to realize the following: As fellow human beings facing similar human problems, they have been talking about the same limited range of real-life concerns and even solutions that we share—even if in different terms shaped by different conditions. We thus come to understand those authorities, whose language for navigating the human condition was rooted in Jewish tradition. When they discussed minute intricacies of Jewish law and practice, this was their commonsensical vocabulary for discussing practical wisdom (phronesis). As Max Weber pointed out about traditional societies that lack a state-imposed judicial hierarchy or education system, one does not become a trusted legal authority by virtue of being an outstanding technically and logically minded legal scholar, codifier, or judge.62 Rather, people identify one as an outstanding sage only if one has internalized the vast wisdom of that culture’s sources and norms to the point that one can be trusted to provide good guidance for navigating life by applying the insights of those earlier sources.63 That is why, according to Weber, talmudic and qadi reasoning is traditional, commonsensical wisdom, in contrast to modern law’s deductions from fixed concepts.64 To be clear, the academic consensus since the early decades of Wissenschaft has read rabbinic law as merely a tool for argumentation based on abstraction and logic—including even scholars such as Leopold Zunz and Sygmund Maybaum, who tried to read previous authors empathetically.65 Moreover, by the nineteenth century, increasing numbers of devotionist rabbis also began reading earlier sources literally, rather than reading warmly for intent, and began creating conceptual models that interpreted laws in ways that the texts’ authors had never intended. 66 The academic modernists among these devotionists began the Mishpat Ivri67 project, designed to organize halakhah scientifically by principles.68 The Eastern European neo-traditionalists of the nascent Lithuanian yeshivas, in parallel, increasingly came to treat halakhic discourse as necessarily abstract. More recently, many have come to insist that all of Jewish law is composed of unfathomable Divine decrees,69 which can be analyzed only via narrow logic.70 In other words, the current stereotype in both academic and beit midrash writings is that halakhah is a tradition of deciding law through abstract conceptual thinking. Both Halakhic formalists and critical scholars (meaning those who have channeled historicism to tell a story of legal adaptations to social pressures and new problems) view rabbinic halakhah as always having been a process of parsing the words and concepts of traditional texts.71 That is, rather than reading past and present Jewish law sources and discourses as directly stating and discussing real human needs and considerations,72 the stereotype views Jewish law throughout history as a dialogue about concepts.73 It reads the halakhic tradition as about semantic and deductive understandings of the authoritative sources and as addressing real-life human needs by

Introduction 17 discovering, or creatively (mis)reading, semantic meanings and conceptual extrapolations in earlier sources.74 This stereotype, in turn, has led academic researchers to reify words and concepts. Moreover, this tendency to reify is true even among scholars who analyze halakhah through the lens of ritual. Imagine a friend who says that one must always eat with a fork and knife rather than with one’s hands— unless one is eating bread or cookies. And that is also how the friend behaves. One day you host your friend at a meal that has small appetizers—finger foods. Your friend turns to you and asks, “Since I only eat with a fork and knife, may I have toothpicks?” Despite the fact that a toothpick cannot slice and is thus not altogether functionally analogous to the combination of fork and knife, you would not misunderstand or criticize your friend for stating a deductively flawed request. You would understand that the use of a toothpick is not derived from the use of a fork and knife, as much as the implements parallel each other for different conditions.75 Yet academic scholars will frequently find a given past ruling “wrong” or creatively distortive of its actual meaning, merely because the ruling violates a specific abstract consistency that those researchers have themselves imposed on a given concept or string of words.76 Likewise, you would not misunderstand or criticize your friend for acting against their ritualistic norms by eating with a toothpick. Yet, scholars of ritual often find inconsistency merely because a given practice violates a specific abstract consistency that those researchers have themselves imposed on a given ritual.77 In this book’s second approach, we avoid these pitfalls. And in these pages, we set the idea of warm conversations on its most ambitious plain yet. Ancselovits’s previous publications discuss examples of principles that have served in talmudic and medieval halakhic discussions as a shorthand vocabulary of human concerns (rather than as ironclad principles that drive conclusions); present analyses of specific law topics as commonsensical; and study how ancient Second-Temple through tannaitic law functioned like warm conversations. In this volume, in contrast, authors utilize the same approach as a broader method of fresh reading and thinking on a range of topics where it can open new lines of communication between what have been perceived as fixed frameworks of devotion and relativism. III. Defining Our Disagreements

Our third approach pushes matters several steps further. It foregrounds the matter of how to argue and listen well across seemingly impregnable barriers. It centers on co-editor Sergey Dolgopolski’s long-developing analysis of the Talmud and its interpretation as not merely a set of texts to be analyzed but rather as a discipline of thought in their own right. This understanding translates into seeing Talmud as a method and theoretical resource for critical thinking. Such an outlook constitutes a major departure from the perspectives of both academic and traditional Jewish studies in modern times, in at

18  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz least two ways: first, most scholars have long confined the Talmud as a lateancient, finite corpus of texts; second, they treat the Talmud and the broader rabbinic corpus as either an object of historical study or an authoritative source for devotional life. Dolgopolski sees Talmud as unfolding over the last two millennia in an ongoing conversation with philosophy and rhetoric, and on a comparable scale to these two disciplines. This understanding of Talmud provides a new perspective on the dilemmas of relativism versus devotion and offers a way beyond these dilemmas. In one version of this perspective highlighted here and further developed in Dolgopolski’s chapter, these resources become available through articulating a difference between Talmud and the philosophy of Immanuel Kant. If Kant’s philosophy offers a way out of the devotion-relativity dilemma, Talmud offers a commensurable but irreducibly different way. Kant undermines both relativist and devotional assumptions about our ability to make claims about the “real world” or the world in and of itself. Instead, for Kant, truth and/or coherence in our knowing of the world or in our practicalethical actions stem not from the “real world” but from inner structures of our own experience, which are nevertheless independent from that experience. (Technically, Kant calls such inner but independent structures “transcendental” structures, coining a term that earned Kant’s philosophy its name, the philosophy of transcendentalism or transcendentalist philosophy.) Invariance in such (transcendental) structures conditions the possibility of knowing the world in a coherent way and of acting toward other people in an ethically coherent way, as well. Kant used that invariance of the structures as a guarantee of the possibility of attaining agreement between two opposing positions. For Kant, like for many other philosophers, ultimate agreement between people was the goal—and the moving force, the telos—of knowing the world and of acting ethically toward other people. The invariance guaranteed this goal and this telos. Like Kant’s philosophy, the discipline of Talmud allows for structures that are both anchored in and situated beyond human experience. It also shares a rejection of both relativist and devotionist claims about the “real” world. This means that again like Kant, Talmud leaves behind the conundrum of relativism versus devotion. Unlike Kant, however, Talmud practices disagreement as the foundational (again, transcendental) structure of human experience—its goal and its telos or moving force. The discipline of Talmud therefore sets a new priority: to discover that structure in every particular instance of human acting and knowing, that is to find and articulate the disagreements both underlying and animating human experience. In this vision of Talmud, the way out of the rift between devotion and relativism lies not in the hope of arriving at an agreement between the two sides, but rather in the method or path in thought predicated on clearly established disagreement and in the resulting radical uncertainty. This we might call rabbinic transcendentalism.

Introduction 19 The discipline of Talmud aims to uncover the genuine disagreement at stake in a given matter, if the disagreement is indeed genuine. Genuine disagreement is not a clash of personalities or even their most cherished ideals. It is not a plurality of views on a given topic. Nor is it a fight against a strawman position (one that cannot be reasonably supported). Nor is it when two individuals or groups are simply speaking past each other or using the same words to talk about different things. Where, then, does a genuine disagreement take place? A genuine disagreement is one between two positions— philosophical, theological, ideological, juridical, practical, or otherwise—that are intrinsically opposed and that are both defensible. In order to understand properly any claim or statement, we have to assess whether and where it is located within a genuine disagreement. Everyone should approach any discussion cognizant of this crucial distinction between genuine disagreement and simply a difference of opinions. The above comparison with Kant is merely one example of a much more far-reaching program. The Talmud and its interpretation must be read as an ongoing tradition of thought that parallels and converses with philosophy and rhetoric as two other concurrent intellectual traditions in the West. It is only by tracing the conversation between them that we come to understand and reclaim Talmud as a discipline. Simultaneously, in that reclaiming of Talmud as a discipline centered on the art of disagreement, we come to understand that the institutionally supported partition and opposition between Talmud and Western thought is a misleading one. This insight opens the way to a genuine argument that can be drawn out and sharpened; it becomes clear that Talmud and these other disciplines can shed light—and, even more importantly, shed darkness—on one another. That also means the beit midrash and academic Jewish studies can and should move beyond mutual alienation toward articulating their genuine disagreements. This applies to reading the same texts together and to reading each other. In practice, and along the grain of this volume, that opens up a prospect to go beyond the binary of relativism and devotion, and thus to render it false in the future study of Jewish texts. A starting point for this tradition is, in a sense, not the Talmud itself, but rather the understanding of Talmudic thought forged by Rabbi Canpanton (1360–1463) of medieval Spain, in his work The Ways of the Talmud.78 Canpanton operated in a framework of interpreting and conversing with Aristotelian philosophy (more specifically hermeneutics and rhetoric). His understanding of Aristotelian thought shaped the development of his notion and practice of the method of iyyun. Iyyun, translated as “speculation,” denotes rational contemplation of what each turn of the argument on the page of the Talmud accomplishes by way of refuting a position or a view. According to iyyun, the refuted positions are not necessarily explicitly stated on the page, yet the “contemplator” aims to “reconstruct” them in their mind, i.e., literally “to contemplate.” Canpanton argues that only by reconstructing a refuted position can the reader “contemplate” or understand the true meaning of any given argument or wording in the Talmud.79

20  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz Iyyun or “contemplation”/“speculation” perceives talmudic disagreements as neither crucially reflective of a specific time and place nor as debates between correct positions and mistaken positions. Rather, talmudic disagreements are in some sense both eternal disagreements and disagreements between conflicting yet true positions, which are only true precisely because one of them legitimately refutes the other, without denying the other position a right to existence. Canpanton opposed his method directly to a different philosophical tradition, that of Maimonides, that treated the talmudic argumentation as irrational and excessively rhetorical in its form. By contrast, Canpanton saw all arguments in the Talmud as the site of entirely necessary statements, refutations, restatements, and what he called “inventions,” i.e., the improved understanding of the original statement as a refutation of another statement—a process brought about by the entire flow of the argument. Canpanton’s “art of Talmud,” explains Dolgopolski elsewhere, “exemplified an approach in which, unlike false disagreements, true disagreements should be preserved and even developed further.”80 Canpanton’s Talmudic rationalism had a sizable impact for two centuries on the way that Talmud was understood. Even after its heyday, moreover, Canpanton’s legacy carried forward both in the tradition of pilpul as well as in the form of iyyun (rational speculative-contemplative in-depth study of a given pericope in the Talmud as a part of beit midrash curriculum in the nineteenth century and on). In these imperfect or watered-down forms, however, Canpanton’s focus on developing an entire mode of thinking has been lost. Resurrecting this view of Talmud as the art of disagreement and as an entire mode of thinking is vital. For thinking beyond the devotion/relativism binary, this is crucial for at least two reasons. First, it necessarily re-situates Talmud, and by extension the entire rabbinic corpus, as not merely an object of study for some, or a set of laws with Divine sanction for others, but rather as its own academic discipline with analytic power. Second, holding up each side in a disagreement, and seeing the way the one hones the other’s thinking, paves the way for a deliberate and carefully considered uncertainty. This uncertainty can be the basis for authentic human thought and action. Understood in this way, talmudic thought offers what Kant’s transcendentalism offers, but in a radically different way. It offers a transcendentalism based much more on traditional rabbinic sensitivity to details. In fact, Canpanton’s version of understanding Talmud as the art of disagreement leads to such a rabbinic transcendentalism, in which disagreement becomes the transcendental condition of possibility (to use Kant’s vocabulary but to depart from Kant) of human thinking and of human practical life in society. This move echoes in a variety of strands of rabbinic thought in modern times. Two good examples are the Torah im Derekh Eretz worldview of Rabbi Samson Raphael Hirsch (1808–1888) and the sacred-profane axis of Rabbi Abraham Isaac Hakohen Kook (1865–1935). If Hirsch focused more on coexistence and Kook more on a dynamic encounter, both of these eminent religious personalities perceived the simultaneous presence of the

Introduction 21 two sides and a certain confrontation as at once dangerous and necessary. As Norman Lamm characterized the issue for the two of them: Tension is an indispensable concomitant of the interface between two disparate cultures of any variety. Anxiety and doubt and perplexity are necessary side-reactions of the act of encounter. Both Hirsch and Kook recognized this phenomenon, and both thought the benefits worth the mental anguish.81 In his chapter in this book, Dolgopolski focuses on a different exemplary figure, Jacob Taubes (1923–1987), an important rabbi and scholar of Jewish and Christian eschatology whom he places in the same tradition as the talmudic Aristotelians—albeit in the post-Kantian intellectual milieu. Taubes, he argues, made a substantial move in the course of his thought toward a full-throated embrace of uncertainty. He did so via a reading of Midrash alongside the letters of Paul, informed by talmudic rationalist thought. There he found what Dolgopolski perceives as the basis for a “politics of radical uncertainty.” This emerges from the hesitancy of both Moses and Paul regarding leadership, shaped by deep and enduring disagreements (for Moses with G-d, for Paul with the nation of Israel). The importance of this approach for this project is in striving to arrive at true disagreements between the university and the beit midrash, instead of insisting that two allegedly self-sufficient and mutually independent positions are simply divergent and irreconcilable. In this approach, working out the true disagreements becomes a necessary condition for understanding the positions of each party involved. *** Disparate as these three approaches may seem, they are in fact not only compatible but in many cases interdependent. There is an implicit progression in the way we have unfolded them here that reflects their methodological interrelationship. In order to speak across the devotional-relativist divide, one must begin by opening a wider body of sources (expanding the canon), and rubbing sources considered devotional and relativist, respectively, up against each other, seeking to decipher parallels, conversations, and disagreements. Having cracked open the sources, however, to concurrent reading, one must then read them with tremendous care. This is only possible through a deep dive that problematizes one’s fixed impression of a text or practice and helps them become more accessible by reading them as warm conversation partners. By destabilizing formerly fixed impressions, one becomes better prepared for the third approach of defining our (underlying) disagreements and the fundamental tensions within and between sources. Destabilizing fixed impressions is hard. One needs a key to pry the door open. For Elisha Ancselovits, human commonalities across space and time

22  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz are the key: everything I find strange in another and in a society is already in me and my society and everything that I find right about me and my society is already in the person and society that I find strange. For Ethan Katz, the key is temporally specific historical conditions and a wider range of sources that illuminate overlooked ideas and social realities. For Sergey Dolgopolski, the key is the genuine disagreement that hides behind what seem to be selfevident assertions or arguments. We contend that in order to arrive at a new understanding of the arguments that have come to shape so much discussion of Jews and Judaism, all three of these approaches are useful. Key Words This book’s effort to at once probe and move beyond the positions of devotion and relativism has far-reaching implications, and that is reflected in the book’s organization. Every chapter can be understood, among other things, as a case study in thinking beyond the devotion-relativism divide as conventionally understood. Each chapter is introduced with an editors’ note, set off in italics, before the individual contributor’s text. These editors’ notes speak directly to how the given chapter employs one or more of the three approaches to relativism and devotion outlined in this introduction. Since many of our authors understand the terms relativism and devotion in distinctive ways, the editors’ notes explain as well the precise meaning and usage of this terminology for each chapter. Each chapter has a key word title, an important term or concept that the author is rethinking by digging into—and questioning—longstanding binaries. After Sergey Dolgopolski’s initial chapter on Terms interrogates some of the thorniest conceptual matters underlying the book, subsequent chapters feature case studies that recast several subjects and disciplines. This portion of the book begins with Bruce Rosenstock using Moses Mendelssohn and Leo Strauss to interrogate the place of Philosophy in relation to devotion and relativism. In the early modern rabbinic writings analyzed by Tamara Morsel-Eisenberg, History looks very different than in its historicist form of the Wissenschaft era and after. Elisha Ancselovits and Ethan Katz undertake a shared analysis of a stunning debate from 1965 between leading East European rabbis about how soonto-be-fathers might avoid transmitting their mamzer status to their children; there Law stands as a vital source for both halakhah and history. The medieval exegetes of Daniel Isaac’s chapter make clear that the Language of scriptural analysis can be indebted both to Talmudic methods and the grammatical trends of its own time. Ethics in the Talmud, analyzed by Matt Goldstone, become a site for Jewish and Christian, individual and interpersonal, and particular and universal concerns to be articulated simultaneously. From there, we move to chapters centered on more personal dimensions. Yonah Lavery-Yisraeli illustrates how Pain lies at the nexus of conventional understandings of devotion and relativism. The definition and significance of sexual Consent (versus coercion) looks highly contingent in the Bavli, argues

Introduction 23 Aviva Richman. The two penultimate chapters of the book each treat the implications of a major intellectual and cultural force of the late twentieth and early twenty-first centuries. Naomi Seidman shows us a surprising case of early Orthodox Feminism that stands outside of typical devotional or relativist understandings of the term. David N. Myers situates the Rav ShaGar as that rare figure who could incorporate Postmodernism at a deep level into his Hasidic theology—and vice versa. Jaclyn Blaier-Rubin proposes that reading as warm conversation can be applied as a method of Education that enables young children to study halakhah and religious texts and practices in ways that merge text and context, devotion and relativism from a young age.82 Toward Engagement The editors and contributors, for all of their differences, are grappling with a shared human phenomenon of misunderstandings—and therefore failed and futile arguments—between worldviews religious and skeptical, absolutist and relativist, and the need for greater clarity and room to maneuver. When we begin to look more closely, we can see that the devotion-relativism paradigm is almost never as certain in reality as it seems in the abstract. In this manner, our three approaches all reflect and speak to what many have referred to as the postsecular: a context where secularism is no longer seen as a neutral norm but rather as an ideology with deeply religious roots and its own dogmas; and secularization is no longer perceived as inevitable or coterminous with modernity. These perspectives are basic to an understanding that the binary between devotional and relativist is not necessarily synonymous with that between religious and secular. A postsecular outlook has also afforded greater possibilities for scholars to speak about the tensions and interconnections between religious and academic commitments. More specifically, critical perspectives on secularism help open the way to expanding the canons in a way that integrates religious and non-religious sources and methods; and to treating rabbinic law in context as practical wisdom about real life that emerges from within the tradition. Likewise, secularization theory’s longstanding supersessionist assumptions about Christianity supplanting Judaism must be rejected if we are to take seriously Talmud’s importance and vitality as part of the Western canon. In this way, the book implicitly offers a set of answers to the question of “what comes after secularism?”83 Each of our approaches, and every case study of our contributors, explores a third space in between binaries—of devotion and relativism, text and context, and religious and secular—that we might call a space of engagement. Here the term should be understood broadly as a way of opening new lines of communication and clarifying opposed positions. In these pages, such engagement operates at many levels. In the most basic form, it constitutes discussion and debate between opposing sides in a disagreement who are learning how to listen to one another and to argue well: to sharpen each other’s ideas and better appreciate their underlying differences. Engagement can also occur

24  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz between disparate texts and genres of texts, or between contrasting scholarly methodologies. Still other forms of engagement are more outward-looking. These include perceiving rabbinic opinions as, by definition, engaged with the real world in all its practical challenges; and arguing for the engagement of Jewish thinkers and ideas with those of the wider Western tradition (as insiders rather than outsiders). Throughout the book, the authors either model a form of engagement themselves or write about thinkers who undertook engaged approaches to bridging devotion and relativism in their own time. Within and far beyond the Jewish world, engagement that makes room for productive disagreement, and the holding up of multiple, simultaneous truths, is a lost art. Such discussion across myriad divides, and an accurate perception of the respective parties’ actual positions, are preconditions for beginning to solve numerous pressing global and local issues. Thus, this book constitutes more than a rethinking of polarized positions within Jews and Judaism; it offers an opportunity to model better thinking, talking, and indeed arguing across the sharpest of divisions for a deeply fractured world. A Note About Audience and How to Read This Book This is a book that addresses issues that reach well beyond the academy but that speaks largely from the standpoint of academic Jewish studies. Many chapters focus on debates among scholars in a given field or discipline. At the same time, the subjects treated here are of interest to a wider audience, in particular many within the religious world. We hope that the book will prove engaging to not only academics but also to many outside the academy with scholarly curiosity. Readers who seek a theoretical framework that will help to conceptualize the rest of the book may wish to begin from chapter one. This chapter analyzes the dialectical relationship between the concepts of relativism and devotion in a theoretical way. It is followed by a series of more specific case studies. Readers who prefer to begin from case studies may wish to come to the first chapter at the end, as a way to reflect on the larger significance of the rest of the book. The chapters unfold thematically, with the editors’ notes that are set off in italics helping to situate the chapter within the larger book. At the same time, the chapters are all self-contained. The editors’ notes should offer helpful framing for reading the chapters out of order or for focusing on select portions of the book. Notes 1 Participants in the opening workshop, entitled “Devotion and Relativity, Text and Context: New Frontiers of Jewish Literacy,” which took place at the Center for Jewish History and Yeshivat Maharat in New York City in October 2018, included scholars from North America, Europe, and Israel. Their intellectual backgrounds ranged from academic fields like Philosophy, History, Jewish Thought, Linguistics, Gender and Sexuality Studies, Talmud, Ancient Judaism, and Education to the traditional Beit Midrash. Many of their diverse perspectives are developed further as chapters in this book.

Introduction 25 2 Though outside the scope of this volume, there are parallel discussions among religious Christians and academic scholars of Christianity, over whether or not theology can or ought to be done in the academy. See, for example, G. van den Brink, “The future of theology at public universities”, In di Skriflig/In Luce Verbi 54:2 (2020), 1–9, open access: http://www.indieskriflig.org.za; G.R. Peterson, “Theology, the University, Metaphysics, and Respectability: In Praise of Folly? Theology and the University”, Zygon 43:3 (September 2008), 563–577. For a perspective that in some ways is parallel to the problematics of this book, see B. Myers, “Does Theology Belong in the University? Schleiermacherian Reflections from an Australian Context,” International Journal of Public Theology 15:4 (2021), 484–495. 3 If and however much the senses of the self can differ within and between the university and the beit midrash is a complicated question. It deserves its own treatment and lies beyond the boundaries of this book. 4 On the origins and persistence of this fundamental problem, see E. Breuer, The Limits of Enlightenment: Jews, Germans, and the Eighteenth-Century Study of Scripture (Cambridge, MA: Harvard University Press, 1996), 228–229. 5 This personal dimension has received important attention elsewhere. For discussions across confessional lines, see “‘Something Fearful’: Medieval Scholars on the Religious Turn,” special issue of Religion & Literature 42:1/2 (spring-summer 2010). More recently on this issue with specific respect to Biblical criticism, Tova Ganzel, Yehudah Brandes, and Chayuta Deutsch, eds., The Believer and the Modern Study of the Bible (Atlanta: Academic Studies Press, 2019). 6 For this observation, we are indebted to Chaim Saiman. On the emblematic case of Moses Mendelssohn and his complex outlook and position, see esp., Sorkin, Moses Mendelssohn and the Religious Enlightenment (Berkeley: University of California Press, 1996). 7 Due to limitations of space, we are presenting here an overly schematic genealogy that suffices to serve the present conversation. 8 This account represents both a rupture and a continuation of older traditions. In the medieval period, constitutive tensions and mutual engagement existed between Rabbinic disciplines of reading and interpretation on the one hand and the disciplines of philosophy and rhetoric on the other. Pre-modern rabbinic texts, however distinct in their linguistic medium such as Hebrew, Aramaic, and JudeoArabic, were always in conversation with the developments in the disciplines of philosophy, theology, and rhetoric in the surrounding society. In many contexts, Rabbis inscribed themselves into the classical tension between philosophy and rhetoric, often siding with rhetoric and considering philosophy to be an ally of Christian theology and thus an intellectual and political foe. There were, however, counter examples. In the Judeo-Arabic world, where the proponents of rabbinic textual tradition sided with Aristotelian philosophy as the elite method of reading and rereading rabbinic texts, they dismissed the purely rhetorical, i.e., allegedly non-philosophical, elements of Rabbinic literary and intellectual tradition (the best-known example of this strand is Maimonides). But in one form or another, in the pre-modern era, a constant tension existed between the archive of texts and thought advanced by the rabbis and their institutions and those shaped in the Christian and Islamic tradition. In the nineteenth century, tensions grew all the more complex, as the academic study of rabbinic texts and thought became associated with Christian universities and theology. Tellingly, Heinrich Graetz’s project of Jewish history was institutionally positioned within a chair in theology. Moreover, these nineteenth-century tensions were hardly between any kind of purely “scientific” or absolutely “religious” entities. In other words, the chasm between academic and devoted did not unfold without at the same time inaugurating a tension between the new Reform movement linked to academia, and the

26  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz response to it, the so-called “Orthodoxy” associated with the traditional institution of Rabbinic learning, the yeshiva. As a result, not only in its inception but also in its further development, the chasm has never been a clean separation between the putatively “religiously neutral” academy and the “religiously engaged” yeshiva, but rather has always unfolded in the context of a wider reframing of the rabbinic tradition—by Jews and non-Jews alike—as that of a religion and culture of Jews and “Judaism.” In that context, Orthodox Judaism claimed authenticity for its brand of traditional devotion; and the academy, too, claimed authenticity, in its case for relativist, “scientific” knowledge of Jews and Judaism. Authenticity, a specifically modernist notion, thus became the point of contention between knowledge and academy on one side, and traditional observance and the yeshiva on the other side. 9 M. Goodman, “The Nature of Jewish Studies,” in M. Goodman, J. Cohen, and D. Sorkin (eds.) Oxford Handbook of Jewish Studies (Oxford University Press, 2002), 3. 10 At the time of the founding of the Association for Jewish Studies—destined to become the profession’s flagship organization—in 1968, there was even a debate about whether or not rabbis should be permitted to become members. Goodman, “Nature of Jewish Studies,” 10. 11 Y.H. Yerushalmi, Zakhor: Jewish History and Jewish Memory (Seattle: University of Washington Press, 1982; second edition, 1996), 86. 12 Ibid., 96. 13 Ibid., 98. 14 J.R. Berkovitz, “Rabbinic Antecedents and Parallels to Wissenschaft des Judentums”, in P. Mendes-Flohr, R. Livneh-Freudenthal and G. Miron (eds.) Jewish Historiography Between Past and Future (De Gruyter, 2019), 7–23. For quote, see p. 22. 15 M. Shapiro, Changing the Immutable: How Orthodox Judaism Rewrites Its History (Oxford: Littman Library of Jewish Civilization, 2015). 16 “Geschichte der Juden: Von Untergang des jüdischen Staats bis zum Abschluss des Thalmuds”, Jeschurun 2 (1855–56); 3 (1856–57); 4 (1857–58), trans. as The Origin of the Oral Law, vol,. 5 of Collected Writings of Rabbi Samson Raphael Hirsch, 8 vols. (New York: Feldheim, 1997). On the general significance for Hirsch of maintaining proper reverence for the Torah and rabbinic law, M.H. Hacohen, Jacob & Esau: Jewish European History Between Nation and Empire (Cambridge: Cambridge University Press, 2019), 263–264; for a more intricate analysis, M. Gottlieb, “Oral Letter and Written Trace: Samson Raphael Hirsch’s Defense of the Bible and Talmud”, Jewish Quarterly Review 106:3 (Summer 2016), 316–351. Hirsch’s attitude toward academics was complex. There is debate about the translation of his ideal of “Torah im derekh eretz” but Hirsch appeared to mean the combining of Torah with “culture,” which denoted for him the achievements of human civilization through fields like science, history, and philosophy. See S. Roth, “Torah Im Derekh Eretz: An Analysis”, Tradition: A Journal of Jewish Orthodox Thought 24:2 (Winter 1989), 123–27. 17 For parallels in the Hasidic world, see A. Rapoport-Albert, “Hagiography with Footnotes: Edifying Tales and the Writing of History in Hasidism: Fashioning the Past”, in idem, Hasidic Studies: Essays in History and Gender, Littman Library of Jewish Civilization (Liverpool: Liverpool University Press, 2018), 199–266. 18 See esp. the journal Sinai. 19 Most famously, R. Ḥayyim Vital’s responsa and R. Avraham b. Sholomo ibn Tazarte’s Ḥukkot Hadayyanim. 20 For merely one instance, see his preface to his 1984 edition of Rabbeinu Netanel al-Fayyumi‘s Sefer Bustan al-Ukul–Gan ha-Sekhalim. 21 The journal, Jeshurun—in its “The Reed and the Book” section.

Introduction 27 22 Interest in Yahuda, too long neglected, has recently been revived by the work of Allyson Gonzalez and others. See Gonzalez, “Abraham S. Yahuda (1877–1951) and the Politics of Modern Jewish Scholarship”, Jewish Quarterly Review 109:3 (Summer 2019), 406–433. 23 Luzzatto’s letter of June 5, 1860 to S.Y. Rapoport, in Luzzatto’s collected correspondence, ‘Iggerot SHaDaL, 2 vols. (Przemysl and Cracow, 1882–1884; reprint, Jerusalem, 1967), 2 (no. 646): 1367, quoted in Yerushalmi, Zakhor, 92; 143 n.22. 24 Ḥakirah, The Flatbush Journal of Jewish Law and Thought. This evaluation is subjective, of course, and others may argue that all of the journal’s articles should be placed in the camp of those devotionists who have used critical methodologies to criticize the conclusions of academic relativists (some of whom we mentioned above). 25 “Taking Religion Seriously: New Perspectives on Postwar European Jewry” was the name of a panel that Katz organized at the Association for Jewish Studies annual conference in Chicago, December 16, 2012. Two examples from Katz’s work that reflect the approach described here are E.B. Katz, “Between Emancipation and Persecution: Algerian Jewish History in the Longue Durée (1930–1970)”, Journal of North African Studies 17:5 (November 2012), 793–820; idem, “Muslims as Brothers or Strangers? French Jewish Thinkers Confront the Moral Dilemmas of the French Algerian War,” in C. Allache-Bartlett and J. Schlör, The Stranger in Early Modern and Modern Jewish Tradition (Brill, 2021), 202–239. 26 J. Sheehan, “Thomas Hobbes, D.D.: Theology, Orthodoxy, and History,” Journal of Modern History 88 (June 2016), 249–74, esp. 256. 27 With regard to the first issue, we have seen how even those who focus closely on a given set of religious texts can do so with startling misreadings or distortions if their background is not sufficient. Whatever one thinks of their tone, for example, two well-known review articles illustrate well some of the pitfalls: H. Soloveitchik, “Review: Responsa: Literary History and Basic Literacy,” AJS Review 24:2 (1999), 343–357; and S. Lieberman, “Review: A Tragedy or a Comedy”, Journal of the American Oriental Society 104:2 (1984), 315–319. 28 L. Ginzburg, “Jewish Thought as Reflected in the Halaka”, Second Zunz Lecture of the Menorah Society, delivered at the University of Chicago, December 29, 1920, published in Judah Goldin (ed.) The Jewish Expression (New Haven, CT: Yale University Press, 1976), 164. While Ginzburg focuses here on halakhah, the point has broader application. Our thanks to Lewis Gilnert for alerting one of the editors to Ginzburg’s article and sharing a copy of it. 29 Ibid., 166. 30 Indeed, Gershom Scholem famously framed the importance of his scholarship on Kabbalah in part on a fierce critique of Wissenschaft along related lines. While acknowledging the achievements of Wissenschaft and claiming it had not lived up to its full potential, Scholem was highly critical of the way that certain of its scholars treated Judaism as a dead letter rather than a vital organism, eschewed the anti-rational forces of Jewish history like mysticism and messianism, and hitched their scholarly approach too closely to an assimilationist political project. See esp. Scholem, “Reflections on Modern Jewish Studies”, in A. Shapira (ed.) and J. Chipman (trans.) On the Possibility of Jewish Mysticism for our Time & Other Essays (Philadelphia: Jewish Publication Society, 1997), 51–71. 31 S. Baron, “Emphases in Jewish History”, Jewish Social Studies 25:4 (1963), 235–248, here 243. 32 Ibid., “Emphases”, 246. 33 Ibid., 247–248. 34 S.W. Baron, A Social and Religious History of the Jews, 18 vols., 2nd edition (Philadelphia: Jewish Publication Society, 1952–1983). 35 For Katz, see among others his Tradition and Crisis: Jewish Society at the End of the Middle Ages (New York: Schocken, 1961); Exclusiveness & Tolerance:

28  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz Jewish-Gentile Relations in Medieval and Modern Times (New York: Oxford University Press, 1961; reprint, New York: Schocken, 1962); and The “Shabbos Goy”: A Study in Halakhic Flexibility (Philadelphia/New York: The Jewish Publication Society, 1989). For Soloveitchik, see esp. his The Use of Responsa as Historical Source [Hebrew] (Jerusalem: Merkaz Shazar, 1991) and “Can Halakhic Texts Talk History?” AJS Review 3 (1978), 153–96. 36 See discussion below. 37 E. Baumgarten, Practicing Piety in Medieval Ashkenaz: Men, Women, and Everyday Religious Observance (Philadelphia: University of Pennsylvania Press, 2014); E. Carlebach, Palaces of Time: Jewish Calendar and Culture in Early Modern Europe (Cambridge, MA: The Belknap Press of Harvard University Press, 2011); T. Fishman, Becoming the People of the Talmud: Oral Torah as Written Tradition in Medieval Jewish Culture (Philadelphia: University of Pennsylvania Press, 2011); D. Kaplan, Beyond Expulsion: Jews, Christians, and Reformation Strasbourg (Palo Alto: Stanford University Press, 2011); idem, The Patrons and Their Poor: Jewish Community and Public Charity in Early Modern Germany (Philadelphia: University of Pennsylvania Press, 2020). 38 Baumgarten, Practicing Piety, 214–216. 39 J.R. Berkovitz, Rites and Passages: The Beginnings of Modern Jewish Culture in France, 1650-1860 (Philadelphia: University of Pennsylvania Press, 2004); idem, Protocols of Justice: The Pinkas of the Rabbinic Court of Metz, 1771–1789, 2 vols. (Leiden: Brill, 2014); idem, Law’s Dominion: Jewish Community, Religion, and Family in Early Modern Metz (Leiden: Brill, 2019); E. Fram, A Window on Their World: The Court Diaries of Rabbi Hayyim Gundersheim. Frankfurt am Main, 1773-1794 (Cincinnati: Hebrew Union College Press, 2012). 40 M. Kahana, Halakhic Writing in a Changing World, from the ‘Noda B’yhuda’ to the ‘Hatam Sofer’, 1730–1839 (Jerusalem: Zalman Shazar, 2015) [Hebrew]. 41 D. Sorotzkin, “The Formation of Haredism—Perspectives on Religion, Social Disciplining and Secularization in Modern Judaism”, Religions 13:2 (2022), 175. https://doi.org/10.3390/rel13020175. For the fuller argument, see idem, Orthodoxy and Modern Disciplination: The Production of the Jewish Tradition in Modern Times (Tel Aviv: Hakibutz Ha-Meuhad Press, 2011) [Hebrew]. 42 D. Sorkin, The Religious Enlightenment: Protestants, Jews, and Catholics from London to Vienna (Princeton, NJ: Princeton University Press, 2008); idem, Moses Mendelssohn and the Religious Enlightenment; and idem, The Berlin Haskalah and German Religious Thought: Orphans of Knowledge (London: Vallentine Mitchell, 2000); Moses Mendelssohn’s Hebrew Writings, translated by Edward Breuer, introduced and annotated by E. Breuer and D. Sorkin (New Haven: Yale University Press, 2018). 43 As stated, this is only one example of a field that has been substantially reshaped by such approaches in the last two decades. Two others would be the medieval and early modern history of Jews in Eastern Europe and Italy, respectively. Much of the literature in this vein is cited and drawn upon in David Ruderman’s acclaimed synthetic work: Early Modern Jewry: A New Cultural History (Princeton, NJ: Princeton University Press, 2010). 44 Hacohen, Jacob & Esau, 7. 45 For instance, see E. Ancselovits, “Embarrassment as a Means of Embracing Authorial Intent”, in T. Yoreh, A. Glazer, J. Lewis, and M. Segal (eds.) Vixens Disturbing Vineyards: The Embarrassment and Re-embracement of Scripture, A Festschrift Honoring Harry Fox leVeit Yoreh (Brighton, MA: Academic Studies Press, 2010), 351-384; idem, “Prozbul: Not a Legal Fiction”, Jewish Law Annual 19 (2011), 3-16; idem, “Second Temple Phronetic Jewish Law”, Jewish Law Association Studies 26 (2016), 152–189; idem, “Wise Hukkim and the Byzantine Sermonic Ideology of a Divine Fiat” in C. Hutt, H. Kim, and B. Lerner (eds.),

Introduction 29 Jewish Religious and Philosophical Ethics (London: Routledge, 2018), 51–84; and idem, “Science and Knowledge as the Means Back to Phronetic (Wise) Law”, Jewish Law Association Studies 29 (2020), 167–195. 46 On the point of a concept or idea being what one means to communicate through it, see C.S. Pierce, Chance, Love, and Logic: Philosophical Essays, edited by M.R. Cohen (London: Kegan Paul, Trench, Trubner & Co., 1923), 41–45 and W. James, Pragmatism: A New Name for Some Old Ways of Thinking (New York: Longmans Green and Co., 1907), 52–55. 47 W.V.O. Quine, “Notes on Existence and Necessity”, The Journal of Philosophy 40:5 (1943), 113-127; N. Goodman, “On Likeness of Meaning”, Analysis 10:1 (1949), 5–6; E.A. Nida and C.R. Taber, The Theory and Practice of Translation (Leiden: E.J. Brill, 1969), 47; M.G. Murphey, Philosophical Foundations of Historical Knowledge (Albany, NY: State University of New York Press, 1994), 4–9; W. Davies, ”On Servile Status in the Early Middle Ages” in M. L. Bush (ed.) Serfdom and Slavery: Studies in Legal Bondage (London: Longman, 1996), 227. In literature, this is brought out well in the conclusion to the short story about the blind man and his nurse-attendant in R. Krishnaswami-Ayyar Narayan[aswami], Malgudi Landscapes: The Best of R.K. Narayan, edited by S. Krishnan (New Delhi: Penguin Books India, 1992), 300. 48 This is contrary to the standard scholarly assumption that a word used multiple times in a given teaching must carry a consistent meaning (as posited for instance by E.D. Goldschmidt, The Passover Haggadah: Its Sources and History (Jerusalem: Bialik Institute, 1960), 56), even when the teaching is one that was taught orally with intonations. 49 H. Coppe, Elements of Logic (Philadelphia: E. H. Butler & Co., 1857), 147. 50 U. Eco, Kant and the Platypus: Essays on Language and Cognition, translated from the Italian by A. McEwen. (New York: Harcourt Brace, 2000), 224–279. Also see P.J. Rabinowitz, Before Reading: Narrative Conventions and the Politics of Interpretation (Columbus: The Ohio State University Press, 1998), 151-153 and compare W. Iser, The Implied Reader: Patterns of Communication in Prose Fiction from Bunyan to Beckett (Baltimore: Johns Hopkins University Press, 1974), 209-213. It is worth noting that K.K. Pitkänen, The Spatio-Temporal Setting in Written Narrative Fiction: A Study of Interaction between Words, Text and Encyclopedic Knowledge in the Creation of Textual Meaning (PhD Dissertation, University of Helsinki, 2003), 26–28 has added a designation, “trigger words,” for the words that an author does use to evoke a reader’s knowledge of both the world and of context in order to fill in the unstated gaps. 51 J. Saul, Simple Sentences, Substitutions, and Intuitions (Oxford: Oxford University Press, 2007), 146. 52 G. Forbes, Attitude Problems: An Essay on Linguistic Intensionality (Oxford: Oxford University Press, 2006), 167–171—also cited in Saul, Simple Sentences, 145. 53 E.W. Straus, Phenomenological Psychology: The Selected Papers of Erwin W. Straus, translated in part by E. Eng (London: Basic Books, 1966), 193. 54 C. Rabin, “The Translation Process and the Character of the Septuagint”, Textus 6 (1968), 2–5. 55 Cf. H. Jonas (as translated by J.M. Robinson, “Hermeneutics Since Barth”, in idem and J.B. Cobb, Jr. (eds.) New Frontiers in Theology: Volume 2–The New Hermeneutic (New York: Harper and Row, 1964)), 36. 56 Contra H.-G. Gadamer, Truth and Method, translated by W. Glen-Doepel (London: Sheed and Ward, 1979), 387. 57 B. Johnson, A World of Difference (Baltimore: John Hopkins University Press, 1987), 178. [We have substituted the word “other” for the word “Negro”.] 58 Although it is striking how often people can accept Durkheim’s argument that many factors can lead to the same outcome (summarized well in W.L. Wallace,

30  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz Principles of Scientific Sociology (New York: Aldine Publishing Company, 1983), 410–411) and yet argue that the same human needs are not, and cannot be, recognized and addressed in differing conceptual frameworks. 59 See how G.S. Kirk and J.E. Raven, The Presocratic Philosophers: A Critical History with a Selection of Texts (Cambridge: Cambridge University Press, 1957), 8, translated Greek myth as expressions of direct and empirical thought. As regards the need for such explanations in religious studies in specific, see W.C. Smith, “Comparative Religions—Whither and Why?” in M. Eliade and J.M. Kitagawa (eds.) The History of Religions: Essays in Methodology (Chicago: University of Chicago Press, 1959), 42–43. For a good discussion of Wilfred Cantwell Smith’s approach, see A. Sharma, To the Things Themselves: Essays on the Discourse and Practice of the Phenomenology of Religion (Berlin: Walter de Gruyter, 2001), 176–186. 60 This application of an analysis of warm discourse to reading law builds on the semiotic analysis of biblical law in B.S. Jackson, Making Sense in Law (Liverpool: Deborah Charles Publications, 1995), 93–95 and idem, “An Eye for an I? The Semiotics of Lex Talionis in the Bible”, in W. Pencak and J.R. Lindgren (eds.) New Approaches to Semiotics and the Human Sciences: Essays in Honor of Roberta Kevelson (New York: Peter Lang, 1997), 142, but moves beyond B. Bernstein, Class, Codes and Control: Volume One (London: Routledge and Kegan Paul, 1971), 108–110, 123–137’s primitive semiotic concept of “restricted code”. 61 As championed most vigorously by A. Sagi, Elu va-Elu: Mashmaʽuto shel ha-Siaḥ ha-Hilkhati (Tel Aviv: Hakibbutz Hameuchad/Sifriyat Hillel ben Hayyim, Sifrei Yesod Mehkar ve-Hagut be-Maddaei ha-Yahadut, 1996), 223 and idem, “Hirhurim al ha-Mikhshalot ve-al ha-Etgarim be-Philosophia shel ha-Hahalakha”, in A. Ravitsky and A. Rosenak (eds.) New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and Magnes Press Hebrew University, 2008), 40. 62 On the distinction between these, see A. Hacohen, “Meta-Halakhic Considerations in Halakhic Decision Making”, in A. Ravitsky and A. Rosenak (eds.) New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and The Magnes Press, Hebrew University, 2008), 296–297 [Hebrew]. On Islamic law, see G. Burak, The Abu Hanifah of His Time: Islamic Law, Jurisprudential Authority and Empire in the Ottoman Domains (PhD Dissertation, New York University, 2012), 291. 63 This is equivalent to religiously true norms. 64 M. Weber, From Max Weber: Essays in Sociology, translated, edited, and with an introduction by H.H. Gerth and C.W. Mills (New York: Oxford University Press), 216, 219. 65 For a sense of empathy, see L. Zunz, “On Rabbinic Literature (Excerpts)”, in A. Jospe (ed.) Studies in Jewish Thought: An Anthology of German Jewish Scholarship (Detroit: Wayne State University Press, 1981), 23. Compare I. Schorsch on Zunz in From Text to Context: The Turn to History in Modern Judaism (Hanover, NH: Brandeis University Press, published by University Press of New England, 1994), 246. On Sygmund Maybaum also pointing out the necessity of reading with empathy, see the citation in D. Myers, “The Ideology of Wissenschaft des Judentums”, in D.H. Frank and O. Leaman (eds.) History of Jewish Philosophy (London: Routledge, 1997), 717. On Zunz’s perception of traditional rabbinic discourse as vacuous argumentation, nonetheless, see his missive published in H. Graetz, Geschichte der Juden von den ältesten Zeiten bis auf die Gegenwart (Leipzig, 1870), 11:444. On the outsider’s objectivity as the classic approach of Wissenshaft des Judentum, see M. Meyer, The Origin of the Modern Jew (Detroit: Wayne State University Press, 1979), 172 (also cited by D. Myers, “History as Ideology: The Case of Ben Zion Dinur, Zionist Historian ‘Par Excellence’”, Modern Judaism 8:2 (1988),185 n.3) and the critique of that approach by the nineteenth century Orthodox scholar of the Science of Judaism, Samuel David Luzzato

Introduction 31 (as translated in P. Mendes-Flohr and J. Reinharz, The Jew in the Modern World: A Documentary History–Second Edition (New York: Oxford University Press, 1995), 235–236). 66 A. Walfish, The Literary Method of Redaction in Mishnah Based on Tractate Rosh Hashanah (PhD Dissertation, Hebrew University, 2001), 98, 103, 124–125. 67 Academic doctrinal Jewish law. 68 This may have occurred at an even earlier date. See M. Elon, “The Legal System of Jewish Law”, New York University Journal of International Law and Politics 17:2 (1985), 228–229. See also A. Gulak, Yesodei ha-Mishpat haʽIvri, second edition (Berlin: Devir, 1922), 1:3–4, 14, 18; Elon, “The Legal System”, 241. For a review of the twentieth-century debate between the modernist legal-science academics and the traditionalists, see A. Radzyner, “Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the Field”, Journal of Law and Religion 23:1 (2007), 189–248. 69 Y. Grossman, “More on Torah” (2011), http://yitzgrossman.net/torah-yitz-grossman-more. For a striking example, see E.H. Margoliot, Yesodot veʽIkronot Parshanut hatalmud (Bnei Brak: Makhon Palgei Mayim, 2016). The author manages to warmly explain both this approach and the approach of R. Avraham Yeshaya Karelitz (better known by the name of his major work, Hazon Ish). Yet tellingly, Margoliot still finds R. Karelitz’s approach of explaining laws difficult as a framework for Orthodox belief and practice.  Similarly, both D. Ribiat, The 39 Melochos, sixth corrected edition (Jerusalem: Feldheim Publishers, 2001), 1:15, 19, 20, 23 and M.i Housman, “Frequently Asked Questions About Judaism: Part Two” (2008), http://www.beingjewish. com/faqs/faq2.html, accept Hazon Ish Shabbat rulings yet state that the details of the Shabbat injunctions are Divinely ordained, unfathomable details that fail to cohere with even the official principles of the Shabbat laws. To be sure, Y. Lorberbaum, “Decree of King (Gezerat Melekh) and Decree of Scripture (Gezerat ha-Katuv) in Talmudic Literature”, Tarbiz 82 (2014), 5–42 does point out that the Talmudic use of the term “divine decree” does not mean divine fiat. Moreover, Ancselovits “Wise Hukkim” shows that even midrashim and piyyutim that refer to hukkim do not view those specially-designated laws as fiats. And Ancselovits, “Science and Knowledge” shows both that the details of the Biblical through Talmudic law of death impurity were commonsensical and that they were viewed as commonsensical. These publications, however, have not (yet?) changed the dominant neo-traditionalist trend. 70 The conviction that there is no foundation of reason that can lead to specific law conclusions does not contradict using logic to deduce specific rulings. Despite logic’s inability to generate legal truth, there is for many people a ritual sense of discovering truth when engaging with individual questions of law via logical reasoning—in deducing rulings. The use of logical thinking is a ritual that provides many law practitioners with an emotional sense that they are doing something more serious than following individual choice (J. Allen, “The Persistence of Proximate Cause: How Legal Doctrine Thrives on Skepticism”, Denver University Law Review 90 [2012], 125–129) or making random decisions. This is especially the case when practitioners add the belief that Halakha has a unique logical methodology that has nothing to do with a law’s purpose or morality (S. Camry, “Review Essay: Halakhah, Tradition and History”, Tradition 13:3 [1973], 165) and is so not oriented to goals that merely “to formulate the hakirah is to recognize the answer” (J.D. Bleich, “Lomdut and Pesak: Theoretical Analysis and Halakhic Decision-Making”, in Y. Blau (ed.), The Conceptual Approach to Jewish Learning (New York NY: Michael Scharf Publication Trust of the Yeshiva University Press, 2006), 98). To be sure, one might argue that the Orthodox claim for Divine fiat serves merely as a sociological marker and should not be read over-seriously.

32  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz After all, some Orthodox persons who insist that Torah rituals have an unfathomable, culturally unique, Divine depth still offer human, experiential explanations for Jewish rituals—as does M.H. Spero, “Halakhah as Psychology: Explicating the Laws of Mourning”, Tradition 17 (1977), 179. Meaning, one might argue that their theological claim merely plays a cultural-psychological role (as do the culturally-defensive but non-theological discussions in M. Fox, “Maimonides and Aquinas on Natural Law”, Dine Israel 3 (1972), v–xxxvi and M. Rosenak, “Dat, Datiyut ve-Hora’a: Shtei Tefisot Av”, in J. Cohen (ed.) In Search of a Jewish Paideia: Directions in the Philosophy of Jewish Education (Jerusalem: The Melton Centre for Jewish Education/Hebrew University, 2004), 86–87. However, even those who offer experiential explanations should be taken seriously in their theological statement of Divine fiat. After all, they subordinate these explanations to their theological statement of Divine fiat. Ultimately, Spero and the approach that he represents sometimes analyzes rituals as purely symbolic, or carrying a Divinely ordained lesson, rather than any commonsensical function. This periodic inability to access an experiential, commonsensical explanation implies an overriding reliance on the notion that Halakhah is often not commonsensical. 71 For instance, G. Scholem, On the Kabbalah and Its Symbolism, translated by R. Manheim (New York: Schocken Books, 1965), 94-95; S. Albeck, “Torah Law in Tomorrow’s World”, Deʽot 40 (1971), 301–305; Z.W. Falk, Law and Religion: The Jewish Experience (Jerusalem: Mesharim Publishers, 1981), 147; J.P. Schultz, “Max Weber and the Sociological Development of Halakha”, Dine Israel 16 (1992), 71–82; L. Moscovitz, Talmudic Reasoning: From Casuistics to Conceptualization (Tübingen: Mohr Siebeck, 2002), 9, 358; Chaim Saiman, “Legal Theology: The Turn to Conceptualism in Nineteenth-Century Halakha”, Journal of Law and Religion 21:1 (2006), 86–87 and B. Brown, “Formalism and Values: Three Models”, in A. Ravitzky and A. Rosenak (eds.) New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and The Magnes Press, 2008), [244–253], 253–257. 72 Even Jonathan Sacks, who recognized that sages’ decisions emerge wisely from a “broad constellation of values and priorities between them” that sages internalize through life-long study rather than merely from “a narrow range of precedent” sources, argued in line with scholarly consensus that these non-formal considerations do not appear “for the most part in the detailed argumentation” (J. Sacks, Crisis and Covenant (Manchester: Manchester University Press, 1992), 153, 143. Cf. idem, “Creativity and Innovation in Halakhah”, in M. Sokol (ed.) Rabbinic Authority and Personal Autonomy (Jason Aronson, 1992), 156). This mirrors a common legal-theory assumption that bite-size legal argumentation—no matter how complex—inherently cannot express the factual and ethical complexity of a situation. Most famously, see J. Frank, Courts on Trial: Myth and Reality in American Justice (Princeton, NJ: Princeton University Press, 1950), 172–173 and D. Kennedy, “The Stakes of Law, or Hale and Foucault”, Legal Studies Forum 15 (1991), 350. 73 This includes Jewish Studies scholarship that has labeled the rabbinic approach “legal nominalism” (not to be confused with the use of that term in Western legal theory—such as in A.A. Leff, “Economic Analysis of Law: Some Realism About Nominalism”, Virginia Law Review 60:3 (1974), 459). Its leading proponents include D.R. Schwartz, “Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law”, in D. Dimant and U. Rappaport (eds.) The Dead Sea Scrolls: Forty Years of Research (Leiden-Jerusalem: 1992), 229–240; idem, “Bein Hakhamim ve-Kohanim bi-Yemei Bayit Sheini”, in idem (ed.) Mehkarim beToldot Yisrael bi-tequfat ha-Bayit ha-Sheini (Jerusalem: Zalman Shazar Center, 1996), 403-419 (cf. idem, “Josephus on the Pharisees as Diaspora Jews”, in C. Böttrich and J. Herzer (eds.) Josephus und das Neue Testament: Wechselseitige

Introduction 33 Wahrnehmungen (Tübingen: Mohr Siebeck, 2007), 139–140); and E. Regev, The Sadducees and their Halakhah: Religion and Society in the Second Temple Period (Jerusalem: Yad Izhak Ben-Zvi, 2005), 206-207, 390–391. This includes scholarship that has rejected the terminology of legal nominalism but has still explicitly argued that the rabbis engaged in a positivistic approach of mere semantic loyalty and legal fictions include B. Benas, “The Legal Device in Halakha”, Journal of Comparative Legislation and International Law, Third Series 11:1 (1929), 75-80; L. Schiffman, The Halakhah at Qumran (Leiden: E.J. Brill, 1975), 132–133; L. Moscovitz, Talmudic Reasoning: From Casuistics to Conceptualization (Tübingen: Mohr Siebeck, 2002), 131 and n.119; and D. Steinmetz, Punishment and Freedom: The Rabbinic Construction of Criminal Law (Philadelphia: University of Pennsylvania Press, 2007), 51. And this includes scholarship that has argued for rabbinic realism but means merely that the rabbinic approach related to abstract concepts as real—rather than related to the real-life considerations that underlie each norm. For instance, see J.L. Rubenstein, “Nominalism and Realism in Qumranic and Rabbinic Law: A Reassessment”, Dead Sea Discoveries 6:2 (1999), 158–161, 181–183. 74 For instance, among talmudists, see even D.W. Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (New York: Oxford University Press, 1991), 159. Among historians of Medieval Jewish Law, see E.E. Urbach, “On the Consciousness of Continuity and of Change in Our Traditional Literature”, in Z. Malachi (ed.) Aharon Mirsky Jubilee Volume: Essays on Jewish Culture (Lod: Haberman Institute for Literary Research, 1986), 24 and even H. Soloveitchik, “Can Halakhic Texts Talk History?” AJS Review 3 (1978), 180-181 and idem, Pawnbroking: A Study in the Inter-Relationship between Halakhah, Economic Activity and Communal Self-Image (Jerusalem: The Magnes Press, Hebrew University, 1985), 68 nn.30–31, 79. Among philosophers of Jewish Law, see even Y. Lorberbaum, Tselem Elohim: Halakhah va-Aggadah (Tel Aviv: Schoken Publishing House, 2003), 99–101. On necessary misreading, see Aviad Stollman, “World Views in Halakhic Language’s Dialectics”, in A. Rosenak (ed.) Halakhah: Explicit and Implied Theoretical and Ideological Aspects (Van Leer Institute and The Magnes Press, Hebrew University, 2012), 361–362, 365. On the creative use of sources, see, for instance, S. Albeck, “Rabbeinu Tam’s Attitude towards the Problems of his Time”, Zion 19 (1954), 104–141 and even J. Katz, “More on ‘R. Menahem Meir ha-Meiri’s Tolerance’”, in idem, Halakhah and Kabbalah: Studies in the History of Jewish Religion, its Various Faces and Social Relevance (Jerusalem: The Magnes Press, Hebrew University, 1984), 5. (The difference between Albeck and Katz might be described best as merely the difference between the Wisconsin and the neo-Wisconsin American schools of legal history—discussed in M. Grossberg, “Social History Update: ‘Fighting Faiths’ and the Challenges of Legal History”, Journal of Social History 25:1 (1991), 190, 193-194). For those who dismiss past rabbis’ own explanations of their positions and activity because those scholars read those rabbis’ wordings and concepts overly literally and thus find them strange or poorly incomplete and therefore untrue, see—for instance A. Sagi, A Challenge: Returning to Tradition (Jerusalem: The Shalom Hartman Institute, The Faculty of Law, Bar-Ilan University, and Keter Publishing House, 1996), 223 and “Hirhurim al ha-Mikhshalot ve-ʽal ha-Etgarim be-Philosophia shel haHahalakha”, in A. Ravitsky and A. Rosenak (eds.) New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and Magnes Press Hebrew University, 2008), 40. For the notion that rabbinic mis-readings are subconscious, see especially A. Kosman, “More on Associative Thinking in the Midrash”, Tarbiz 63 (1994), 445-450. And for a notion that willful misreading is actually traditional, see T. Ross, “Orthodoxia, Nashim ve-Shinui ha-Halakha”, in A. Berhol (ed.) The Quest for Halakha: Interdisciplinary Perspectives on Halakha (Tel Aviv: Yediot

34  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz Aharonot and Beit Morasha, 2003), 387–437; M. Fisch, “Canon, Controverse et Réforme: Une Réflexion sur l’Autre Voix du Judaïsme Talmudique”, Les Cahiers du Judaisme 18 (2005), 61–75; idem, “Forced Readings and Binding Texts: The Amoraic Ukimta and the Philosophy of Halakha”, in A. Ravitzky and A. Rosenak (eds.) New Studies in The Philosophy of Halakha (Jerusalem: The Van Leer Institute and the Magnes Press, 2008), 311–344; and Z. Zohar, “Iyyun be-Dugmaot Mamashiot shel Pesika Teleologit ve-ba-Mishtameʽa me-Hen”, in A. Ravitzky and A. Rosenak (eds.) New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and The Magnes Press, Hebrew University, 2008), 387–414 [Hebrew]. Regarding the influence of new conditions, see S. Zucrow, Adjustment of Law to Life in Rabbinic Literature (Boston: The Stratford Company, 1928), 54–74, 75–100; E.E. Urbach, The Tosaphists: Their History, Writings and Methods, fourth enlarged edition. (Jerusalem: Bialik Institute, 1980), 177, 351; the summary discussion of such scholarship in I. Ta-Shma, Creativity and Tradition: Studies in Medieval Rabbinic Scholarship, Literature and Thought (Cambridge: Harvard University Press, 2006), 90–97; E. Schweid, “Jewish Law’s Extra-State Handling of the Challenges of the Modern Period”, in B. Ish-Shalom (ed.) BeDarkhei Shalom: Studies in Jewish Thought Presented to Shalom Rosenberg (Jerusalem: Beit Morasha of Jerusalem Press, Robert M. Beren College, 2007), 585; T. Visi, “Halakha and Microhistory: The Shifra-Affair in Brno, 1452”, PaRDeS: Zeitschrift der Vereinigung für Jüdische Studien V. 16 (2010): 23–24; and David Berger, “Texts, Values, and Historical Change: Reflections on the Dynamics of Jewish Law,” in M.J. Harris, D. Rynhod, and T. Wright (eds.) Radical Responsibility: Celebrating the Thought of Chief Rabbi Lord Jonathan Sacks (London: London School of Jewish Studies, Michael Sharf Publication Trust/YU Press, and Maggid Press, 2012), 207; for new values, E. Slomovic, “Toward an Understanding of the Exegesis in the Dead Sea Scrolls”, Revue de Qumrân 7 (1969), 14; R. Gordis, “The Ethical Dimensions of the Halakhah”, Conservative Judaism 26 (1972), 70-74; E. Dorff, “The Interaction of Halakha with Morality”, Judaism 26:4 (1977), 461; R. Gordis, “A Dynamic Halakhah: Principles and Procedures of Halakha”, Judaism 28 (1979), 263–282; D. Shapiro, Studies in Jewish Thought: Volume Two (New York: Yeshiva University Press, 1981), 465-466; L. Jacobs, A Tree of Life: Diversity, Flexibility, and Creativity in Halakha (Oxford: Oxford University Press, 1984), 11; E. Dorff and A. Rosset, A Living Tree (Albany, NY: State University of New York, 1988); M. Halbertal, People of the Book: Canon, Meaning, and Authority (Cambridge: Harvard University Press, 1997), 47–49, 172, 181, 185–186, 198–203; J.L. Kugel, The God of Old: Inside the Lost World of the Bible (New York: Free Press, 2003), 684-685; M. Fisch, “Canon, Controverse et Réforme”; idem, “Forced Readings and Binding Texts”; G. Tucker, “Derosh ve-Kabel Sakhar: Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality”, (2006), 27, at http://www.rabbinicalassembly.org/ docs/Tucker_Final.pdf; J.S. Kaminsky and J.N. Lohr, The Torah: A Beginner’s Guide (Oxford: Oneworld, 2011), 21. Cf. M. Zemer, Evolving Halakhah: A Progressive Approach to Traditional Jewish Law (Woodstock, VT: Jewish Lights, 1999), 57. Taking further the assumption of Jewish law as formalism, A. Schremer, “‘[T]he[y] Did Not Read in the Sealed Book’: Qumranic Halakhic Revolution and the Emergence of Torah Study in Second Temple Judaism”, in D. Goodblatt, A. Pinnick and D.R. Schwartz (eds.) Historical Perspectives: From the Hasmoneans to Bar Kokhba in Light of the Dead Sea Scrolls (Leiden: Brill, 2001),105–126 and “Toward Critical Halakhic Studies”, Tikvah Center Working Papers 04/10 (2010), 1–41 adopted first the approach of the dominant stream of legal-realism and second the approach of critical legal studies to posit that the history of Jewish law revolves around a dichotomous choice between unencumbered revisability, on the one hand, and concern for either original intent or legal fit, on the other

Introduction 35 hand. Even rabbinic choices that merely applied a given law’s original concerns in a manner that seemed appropriate for a new context have been read as technical discussions. (For a statement that calling out changes is the distinguishing mark of critical scholarship as distinct from traditionalist scholarship, see M.I. Kahana, “Meḥkar ha-Talmud ba-Universita ve-ha-Limud ha-Masorti ba-Yeshiva”, in idem (ed.) Be-Hevlei Masoret u-Temura: Asufat Maʻamarim le-Zikhro shel Aryeh Lang (Rehovot: Kivunim, 1990), 122). 75 Contra, for instance, the consensus approach that Second-Temple through rabbinic rules of impurity must have been derived (or misread) from the wording of Biblical laws. That assumption ignores the real-life reality that written norms/laws are merely selected details from among a culture’s multitude of norms. Or if one prefers to phrase this point in the framework of a hierarchal structure that prioritizes official texts, this approach ignores the reality that any collection of norms/ laws on a given issue implies the existence of complementary secondary details that fill in the real-life interstices. Just as one refers to a fork and knife merely as an allusion to discuss toothpicks, Second-Temple through rabbinic sources merely allude to the Biblical laws rather than derive or even validate their details from the Biblical words. For sample influential works of the consensus that ignores this aspect of reality, see M. Halbertal, Commentary Revolutions in the Making: Values as Interpretative Considerations in Midrashei Halakhah (Jerusalem: The Magnes Press, Hebrew University, 1997), 71, and J. Klawans, Impurity and Sin in Ancient Judaism (New York: Oxford University Press, 2000), 94. Moreover, even the few scholars who recognize that there were lived traditions about impurity that were shared by all the known Second-Temple Jewish groups aside from the written Biblical laws nonetheless assume that these traditions were later based on overly close misreadings of Biblical verses (V. Noam, From Qumran to the Rabbinic Revolution: Conceptions of Impurity (Jerusalem: Yad Izhak Ben-Zvi, 2010), 336). For instance, there is a commonsensical tradition that the blood of a dead human impurifies as do flesh and bones. Rabbinically, it was taught to students by playfully emphasizing an Eretz-Israel dialect that swallowed the letter “aleph” so that ba-adam was pronounced ba-dam. Yet even such scholars insist that rabbinic teachings must be deriving laws from Biblical words and evaluate that this unfathomable rabbinic teaching proves that an unattested variant text of dam must have existed (V. Noam, From Qumran, 154–156). For the approach raised here, that Second-Temple through tannaitic Biblical exegesis functioned across groups as allusions to the insights of biblical laws rather than as a form of deriving details from close readings (or misreadings), see E. Ancselovits, “Second Temple Phronetic Jewish Law”; idem, “Encyclopedic Knowledge in Stories and Contextual Knowledge in Law: Rereading Akivean Exegesis of Biblical Laws and Akivean Law Codes”, Jewish Law Association Studies 27 (2017), 10–49. 76 This phenomenon exists among both religiously conservative and religiously liberal scholars. For instance, this assertion has been made by J.J. Petuchowski, Heirs of the Pharisees (New York: Basic Books, 1970), 174; J.D. Bleich, “Lomdut and Pesak: Theoretical Analysis and Halakhic Decision-Making”, in Y. Blau (ed.), The Conceptual Approach to Jewish Learning (New York: Michael Scharf Publication Trust of the Yeshiva University Press, 2006), 98; A. Sagi and Z. Zohar, Transforming Identity: The Ritual Transition from Gentile to Jew: Structure and Meaning (London: Continuum, 2007), 268–271; and N. Zohar, “Pitu’aḥ Theoria Hilkhatit”, in A. Ravitsky and A. Rosenak (eds.), New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and The Magnes Press, Hebrew University, 2008), 50-51. 77 To take one example, those scholars who recognize that lived traditions of impurity were shared by the known Second-Temple Jewish groups aside from the written biblical laws ignore the reality that variant conditions call for slight variation

36  Elisha Ancselovits, Sergey Dolgopolski, and Ethan B. Katz in details. Instead, they posit that those lived traditions contradicted the biblical rules—and that even biblical rules from the same Biblical compositions contradict each other merely because they are slightly different for different conditions. (For a sample influential work, see Noam, From Qumran, 36, 58, 160–162, 292, 299, 328, 355–356.) 78 I. Canpanton, Darkhei ha-Talmud (Constantinople, ca. 1520). 79 We might call Canpanton’s outlook talmudic Aristotelianism or talmudic rationalism, as distinct from the philosophical Aristotelianism and rationalism of Maimonides (who denied what he called the Talmud’s “merely rhetorical” arguments any genuine rational value). Unlike Maimonides, Canpanton believed in the absolute precision of every turn of phrase in either the Tanakh or the Talmud; for Canpanton, understanding that precision required contemplating the refuted position (a refutation of which must also be counter-refutable), in order to arrive at the true rhetorical, that is to say, real life—rather than merely logical—disagreements involved. 80 Dolgopolski, What is Talmud: The Art of Disagreement (Fordham University Press, 2009), 237. 81 N. Lamm, Torah Umadda: The Encounter of Religious Learning and Worldly Knowledge in the Jewish Tradition (Northvale, NJ: Aronson, 1990), 134. 82 Despite this book’s diverse subject matter, we are well aware that it should mark a beginning, and not an end, to the opening of greater approaches and conversations across the devotion-relativism divide. Various chapters treat a range of geographical spaces spanning Poland, Soviet Ukraine, Central Europe, Spain, Israel, and North America, and fields including history, philosophy, rabbinics, Talmud, medieval Judaism, law, gender studies, and education. Yet important subjects such as the Sephardic experience, Hasidism, and non-Orthodox denominations, as well as fields like anthropology, sociology, and literature, are worthy of far greater attention than they receive here. 83 See J. Caputo, “Open Theology—Or What Comes After Secularism?” CCSR Bulletin 37:2 (April 2008), 45–49. Among the most influential analyses of secularism and its discontents have been T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Palo Alto, CA: Stanford University Press, 2003) and C. Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007). For the implications of the debates on secularism for Jewish studies, see A. Joskowicz and E. B. Katz, eds., Secularism in Question: Jews and Judaism in Modern Times (Philadelphia: University of Pennsylvania Press, 2015).

1

Terms Is Jewish Studies Devotionist, Relativist, or Transcendentalist? Sergey Dolgopolski

Editors’ note The chapters that follow utilize specific historical cases as models for reconceptualizing and challenging the binary between relativism and devotion. In this opening chapter, Sergey Dolgopolski gives those case studies conceptual underpinning. He defines and maps the key terms informing the chasm between, on the one hand, relativist approaches to reading rabbinic texts and traditions in the university setting, and devoted approaches to interpreting and following them in the beit midrash, on the other. The author conceives of these terms as products of the classical historical philosophical notions of skepticism and dogmatism. In this paradigm, skepticism posits that everything is relative (hence relativism) and dogmatism insists on the absolute certainty of its claims (hence devotion). Having carefully defined the chasm, the author reconsiders and remaps it in light of Kantian transcendentalism’s proposed solution to the conundrum— and the crucial impact of this supposed solution on the Wissenschaft des Judentums that did so much to shape the contours of academic Jewish studies. After outlining both the necessity and insufficiency of Kantian transcendentalism, Dolgopolski focuses on another suggestive approach to the devotion/ relativism chasm that he finds in the work of the important twentieth-century rabbi and professor Jacob Taubes. Through an excavation of what he terms “Taubesian transcendentalism,” the chapter highlights the intellectual resources of the rabbinic tradition for surpassing the impasse in a different way that overcomes the political and educational implications and limitations of Kantian transcendentalism. Here the author mobilizes the Talmudic rationalism of the early modern era, which sees disagreement as the goal of disputation and the criteria for truth claims. In this talmudic tradition, true disagreements differ fundamentally from logical contradictions, divergent opinions, or two parties

DOI: 10.4324/9781003364078-2

38  Sergey Dolgopolski speaking past each other. Talmudic disagreements require the refutation of a position, in which both the refutation and the position are sustainable. A well-defined disagreement, that is, enriches the relationships between the parties without claiming a “victory” of one of them over the other. The chapter ultimately finds that the talmudic transcendentalism of Taubes is a vital first step, but that a more advanced program is needed, one that dives deeper into pre-modern resources of rabbinic tradition before and beyond the notions of modern subjectivity.

This essay focuses on how best to define—and move beyond—the core tension between academic research in Jewish studies and devoted study of Jewish tradition. In the first instance, I propose that the tensions between Jewish studies (as a field of academic research) and Jewish tradition (as a site of piety) are best articulated through the poles of devotion/dogmatism and skepticism/relativism. Second, I contend that while Kantian transcendentalist thought proposes a way out of the devotion versus relativism paradox, it does not suffice. Rather, it is the evolving neo-transcendentalist position of Jacob Taubes (1923, Vienna–1987, Berlin), a rabbi and critical academic scholar of Jewish and Christian eschatology and of its role in Western society that offers a more promising framework to move beyond the dichotomy between devotion and relativism. Relativism, Devotion, (Con)text The key terms of this book: devotion and relativism, text and context. Guided by a version of common sense, one might assume devotion and “text” presuppose religious persons who read texts myopically and dogmatically—without regard to broader context. One might further assume that relativism, and with it “context,” implies academics who read texts “too quickly” or “not carefully” in favor of broadening the context.1 Alas, if only it were so simple! In reality, the terms cannot be divided so simply. After all, “relativist” academic scholars of Jewish studies are deeply committed to their discipline and to academic scholarship. A “contextualist” or “relativist” can be every bit as “devoted” to careful reading of texts as the “textualists” and “devotionists” are. What is more, “textualist” traditionalists take some context into account. And how broad or narrow a context one should take in a given case can easily be a matter of choice, and thus quite possibly a “dogmatic” one. Think, for instance, of Foucault’s essay “What is an Author?”2 There, Foucault brings to the fore the question of where a corpus of text becomes separated from its context. He argues that this is an “ethical” question, or, again, in terms of our binaries, an issue of “devotion” or “dogma”: if you posit the context axiomatically, then setting

Terms 39 it too broadly or too narrowly risks acting without due “respect,” and thus “unethically” or without due “devotion” to the author. This example of setting context by choice or at will illustrates how a relativist adherent of contextualism can turn out to be no less dogmatic than a “devoted” and “narrow” textualist is. By the same token, one can read a text in a very limited context while multiplying the relativist meanings of the text,3 and one can read a text in the context of a very broad body of other texts and data while remaining committed to a dogma she associates with the given text. My head spins! One can travel in these labyrinths and impasses of common parlance and common sense ad infinitum, and this infinity will be spurious. We therefore might be better off trying to define these binaries in theoretical and conceptual terms, as clearly as possible. For reasons that shall be made clear, I have chosen as our example an exploration into what Taubes, the main figure in the analysis below, calls “the essence of history.” Taubes’s work intertwines theoretical definitions and empirical readings of texts; that provides a site on which to explore devotion and relativism, text, and context. Thus, I will talk about Taubes in order to then think about Jewish Studies with him. To that end, readers will find the following: (1) An account of Taubes as an example of a combination of rabbinic tradition of thought and academic scholarship. (2) An analysis via Taubes of the “essence” of the tension between “relativist” academic and traditional “devoted” Jewish studies. The Devotion, the Beruf, and the Demons in Check Before embarking on a study of Taubes, a brief etymological observation is due regarding devotion—a word that is paradoxically the most intuitively clear and the most conceptually obscure of our terms. At play is not only the English “devotion” but also its German parallel Beruf—a term that also means devotion, or is sometimes translated as “calling” or “vocation”—in close connection to the Latin-based word “profession.” Here profession denotes professing one’s belief, theory, and/or claim in public, i.e., making one’s theory, claim, or belief public or even “published,” with an implication that one is demonstrably “devoted” both to the act and contents of publication. This already multilayered field of meaning brings us closer to yet another set of meanings, wherein profession, calling, and Beruf are variants of confession, in the Christian sense of a public declaration of one’s beliefs, opinions, and arguments. Importantly, the matters of such confession or profession first arose—among other places—in a medieval university setting, where it was about a confession of one’s understanding or interpretation of a dogma or of a rule, and of one’s adherence to a purportedly correct or “true” interpretation of it. This concept had particular resonance for explaining and interpreting the meaning of the authoritative books—of Aristotle, the Bible, Church Fathers or, in rabbinic parallel, of the Talmud. All these professions

40  Sergey Dolgopolski had the ultimate goal to advance and sharpen the dogma, to make it stronger, and to guarantee that it was immune to possible criticisms. I mention these multilayered meanings of Beruf, devotion, profession, confession, dogma, and dogmatism at the outset in order to keep the forces of these fields in check. For controlling the notion of devotion as Beruf, let us remind ourselves that according to Max Weber,4 the transition from profession and confession (as ways to publicize and subscribe to a dogma and dogmatism) to Beruf or “calling” as a matter of devoted life with or without recognizing the salvific element of a public confession) is also a move from a medieval Catholic university context to a modern Protestant one. Beruf in the sense of calling, for Weber, is fundamentally a Protestant concept, part of what Weber called “the disenchantment of the world,” and which scholars have since frequently dubbed secularization. As such, “profession” departs (although never fully) from its linkage with the sense of “confession,” and lands (although also never fully) in “calling” or “vocation” as two translations of Beruf.5 In connection with and in contravention to the Beruf, there is yet another powerful form of devotion at work in the intellectual context that is our focus here: the “demonism” of the Wissenschaft des Judentums. That is, the Wissenschaft was defined as being possessed by the spirit of “science,” seen by some of its critics as the “demon” of knowing.6 The “demonic” element of the Wissenschaft des Judentums awakens when devotion as Beruf interacts with what Kant calls the dogmatism of Jewish Law (and by extension of any positive law, for him).7 In his own critique of the Wissenschaft des Judentums, Gershom Scholem followed Kant’s critique of any form of dogmatism whether scientific or mystical.8 I will come back to Kant, but will need to stay with Scholem for the moment. As Vivian Liska9 has argued recently, Scholem rejects what he sees as the demonic element of the Wissenschaft and finds an alternative in philosophical engagement with Jewish thought in his own work.10 To wit: demons kill;11 for Scholem they kill “any living essence” of the Jewish past, “embalming” the events of this past into the books about the facts of the Jews’ history, rather than about the “living forces of Jewish thought.” Scholem found these living forces in mysticism, first of all. In this, Scholem follows Kant. For Kant, “Jews” kill human moral action by reducing it to a behavior that can be expressed through the imagery of exemplary moral and “lawful” acts. Kant insists, by contrast, that unlike the area of cognition, where an image can serve as a very clear schema for a concept—such as a round plate for a circle—image-examples of moral acts cannot stand as direct schematic expressions for a proper moral behavior; rather, these images can only serve as approximate symbols for a properly moral action. According to Kant, by missing that difference in the use of images in cognition (to produce accurate schemas for concepts) and in moral action (to produce approximate symbols for moral behaviors), “Jews” reduced the G-d of the Bible to a commander of the schemas of moral and “lawful” (or, in terms of this volume, “devoted”) behavior. Like Kant, Scholem also maintains that schemas

Terms 41 are image-analogues to concepts they help to grasp. Symbols, by contrast, are images used to make concepts graspable without being analogous to these concepts.12 The demonism of the Wissenschaft amounts in this respect to schematic (“embalmed”) treatment of the Jewish past, instead of looking for its symbolic component, in the life force of Jewish thought. Scholem’s critique of the Wissenschaft’s demonism pertains directly to the issue of devotion at hand. What Scholem considers the “demonic element” of the Wissenschaft des Judentums is arguably a rather specific version of dogmatism, and therefore demands its rather specific characterization as “demonic.” The German word “Wissenschaft” can reveal to an attentive eye and/or ear that it is about some kind of commitment, devotion, expressed by the suffix, “schaft”—a commitment one develops to the “Wissen” or “knowing.” Despite its common translation as “science,” Wissenschaft reveals that its exponent is committed (devoted) to something above or outside of him/ herself, the Wissen, the knowledge. One becomes possessed by the commitment to knowing, and this can always threaten to unleash a demonic side of such a commitment, through which the adherent identifies entirely—at the expense of any other belief or commitments—with what he/she defines as scientific knowledge and its growth and development. In other words, knowledge overtakes those committed to it, thereby exposing them to being possessed by the demon of knowing. This demonic potential of the Wissenschaft can become even clearer in contrast to the contemporaneous ideal of Bildung, a romantic conception of education and self-formation.13 In Bildung, unlike in Wissenschaft, one is not expected to become attached to anything; one is always already at the center, and that is the goal of education. The person or the subject is the one who is being educated, that is to say “built,” as this English verb signals an inner dimension of its German cognate Bildung. The latter, as it were, does not posit any dogmatic commitments or rejections vis-à-vis either pious devotion or scientific skepticism.14 The demonic element that Scholem attacked intensifies even further when one transitions from the science in general to the science on things Jewish, the Wissenschaft des Judentums. The additional intensity and potential of demonism lies in Judentum, an abstract noun derived from Juden, a word originally belonging to the lexicon and optics of Romans, Christians, or both as they depicted and spoke about the Biblical nation of Israel. Alas, this externalist, suppressing vocabulary and optics, becomes interiorized by a group of heirs of Biblical Israel who obediently call themselves Juden, as well. The trouble here is that the demonic potential of committing oneself to a cause outside oneself (here Wissenschaft des Judentums) increases when the same self is at the same moment obediently agreeing to be called by a name given by the outside world, and even to consider this externally imposed name as one’s core. This double demonism of becoming committed to an externalist understanding of oneself, and accepting this understanding as objective, scientific, and therefore “true,” makes one particularly prone to accept a dogmatic position. Indeed, it illustrates well another dimension of dogmatism, this time as a version of

42  Sergey Dolgopolski externalism, that is the internalization of the view of “you” held by the external other, so that it becomes “your” own self-conception. We see here the polyvalent possible meanings of devotion as all at once (as per Weber) acts of professing, confessing, and/or calling (Beruf) and secularizing,15 as well as (according to Scholem) a state of being possessed by “scientific” and/or “demonic” impulses. Together, these meanings contribute to an understanding of dogmatism’s dual significance, as both a possible fulfillment of, and response to, the Beruf of the Wissen (Science) in Wissenschaft. These forces drive Wissenschaft closer to devotion than a “scientist” of Judentum would admit. With these forces on the map and therefore plausibly under control, our exploration of the theme of devotion and relativism is ready to progress from preliminary observations to an illustration of the interplay of these forces, and of a movement forward and away from their sway. I now turn to the example of Jacob Taubes. Taubes offers a vista on the contraventions and convergences of Beruf and “demonism,” as both notions transgress and traverse the black and white separations between the “academic” or “scientific” and the “religious” or “devoted.” As we will see, Taubes’s notion of Western eschatology (an expectation of the world’s coming to its end, which is also the world’s telos) explains what he regards as the transgressive and fluid nature of the “demonic” and of the “Beruf.” Taubes discerns in Western eschatology “the [transcendental] essence of the history” of the West (as distinct from specific events of that history); he further finds a symbolic expression of that essence in an image of foreignness and alienation of one’s relationship to the world. This is the image of die Fremde, i.e., of (the finding oneself in) the foreign land. This image, argues Taubes, provides a symbol, the “base-word” to express the eschatology as the essence of history. The symbol of die Fremde helps to account for both the Beruf and the “demonism” as sides of the academy and the beit midrash alike: In grappling with die Fremde, one either demonizes the world, or considers one’s being therein “a calling [Beruf],” or both. All three moves can characterize a “scientist” as well as a student or teacher in the beit midrash. In what follows, I elaborate on these core concepts and symbols of the eschatological essence of the history of the West as they developed in Taubes’s outlook as a scholar and rabbi alike. I more generally seek to claim the resources Taubes offers to think about relativism, devotion, and, as we will see, transcendentalism—in and between the university and beit midrash settings. Taubesian Transcendentalism: An Exit from the Relativism-Devotion Conundrum In many respects (and not totally unlike Scholem), Taubes is a Kantian transcendentalist in his solution. Kantian transcendentalism offers a conceptual framework to overcome the impasse of relativism versus devotion by discovering a foundation, from which both positions conceptually stem. For Kant, the newly discovered foundation helps to identify and correct mistakes

Terms 43 of both relativism and devotion.16 That foundation, as he argues, is neither transcendent, because it is not outside of the realm of human experience, nor immanent, because even if within the realm of human experience, it does not depend on that experience. Kant calls such a foundation of experience that is neither transcendent nor immanent by a neologism, “transcendental.” That approach maps dogmatism with the transcendent and relativism with the immanent, and places the transcendental as the third (or rather first) way, from which the first two fall out. In Kant’s view, a dogmatic would subscribe to a transcendent truth. An example of such a truth is “G-d is beyond the world,” which Kant would define as a “deist” position. A relativist by contrast would be an “anthropomorphist”; she would subscribe to an immanent truth, i.e., one that is inner or similar and thus reducible to a human experience. The truth therefore would always be “relative.” For example, “gods emerge from the human experience of praying and of the need to pray.” This would be an “anthropomorphist” position, because G-d or gods are reduced to totally human terms. For a further example of how far his critique of anthropomorphism goes, Kant contends that even bestowing G-d with faculties of rational understanding, let alone of jealousy or zealotry, would be anthropomorphic. For Kant, deism exemplifies dogmatism, and anthropomorphism is an example of relativism.17 In response, Kant moves beyond both deism and anthropomorphism (and respectively beyond dogmatism and relativism). If a deist “dogmatically” places G-d out of grasp, and an anthropomorphist thinks about G-d just as he or she thinks about humans, then Kant unlike the both proposes to think of G-d as a “symbol,” as a concept that does not have any direct analogy in human experience (not even the analogy with a concept one can “understand” and express in schematic images). For example, one can use the image of a plate as a scheme (analogy) for understanding the concept of the circle. One can similarly use the image of something always following after something else as a schematic image (or analogy) for the concept of necessity. Yet, there can be no such schematic image to express the concept of G-d, because for this concept images cannot be schemas, but only symbols. Both a dogmatic (deist) and a relativist (anthropomorphist) mistake the images of G-d in the Bible for schemata of the concept of G-d, Kant argues, whereas these images are non-analogous symbols. With no analogy, any image one borrows for the concept of G-d from experience should only be taken as a “symbol” of the concept of G-d. As a result, Kant rejects both the dogmatic analogy of G-d with the “totally unfamiliar,” and the relativist reduction of the concept of G-d to what is familiar to humans from their experience. This differentiation between symbols and schemas extends beyond the concept of G-d to other concepts in Kant. Taubes is a Kantian in that sense. As we will see, he develops a similar line of analysis to discover a transcendental concept of history (“essence of history”) for which images (including accounts of wars, conquests, migrations, etc.) can only

44  Sergey Dolgopolski be symbols, not schemes; and of the respective academic research on history in light of its transcendental “essence.” He does so by asking about transcendental foundations of history, which he elicits from reading Jewish-Christian texts, Midrash, and the letters of Paul. Taubes is of particular interest here for a number of reasons. He belongs to a rich and widely variant tradition of post-Kantian transcendentalisms. Yet his work draws much closer to late ancient rabbinic literature than that of other transcendentalists. That creates a very important vista from which to see how a transcendentalist can approach a rabbinic tradition as a valid and heuristically important tradition of thought, a move Kant himself would never have committed, for he mapped out all “Judaism” as dogmatism. Unlike Kant, who sought firm truths, Taubes contends that statements are not about absolute truths. Rather, they are about accomplishing something— about stating something that is true from the perspective of a specific polemical context. To state this differently, according to Taubes, a truth claim cannot be understood in a vacuum. A truth claim is always a refutation of the absoluteness of a different truth claim. Not to be confused with a relativist position, Taubes’s argument sees truth as composed of these disputed facts/ positions that are each true to the degree of what they are accomplishing. In this, Taubes is an heir to an early modern conceptualization of the Talmud found in what some refer to as Talmudic Aristotelianism or talmudic rationalism (as distinct from the outlook of Maimonides, who denied the Talmud any rational standard). This early modern conceptualization addresses not only a book, “the Talmud,” but also a way of thinking, reading, and living, i.e., “Talmud” without the “the.” In Talmudic rationalism, a student approaches a statement in the Talmud as a refutation of another statement (either explicitly or by implication); this characterizes Talmud as a method, as a way to find a statement’s meaning, validity, and even truth. In this conception, if a statement is not understood as a refutation, the statement is not understood in its full truth. In this approach, refutations and true disagreements feature as the goal in relationships between parties. These desired disagreements must be sharply distinguished from misunderstandings that arise from using the same words to talk about different things; and from actual, formal logical contradictions, which are in fact quite rare, and with which one cannot disagree. True disagreements arise outside of the realm of the logically necessary or logically impossible, i.e., in the realm that in Aristotelian tradition is called the realm of the possible. In Talmudic Aristotelianism, this is the realm of refutable and defensible positions. Only in this realm can true disagreements emerge; and it is also mostly in this realm that the human realities of daily life unfold. Grounded in refutation and defense of a statement (or more precisely in refutation of a statement followed by a counter-refutation), a true disagreement in the realm of the possible becomes an essential basis for a true relationship. This move sets rabbinic thought decisively apart from the dominant philosophical tradition, as the latter always pursues agreement as the goal of any argument or thought process.

Terms 45 In practice, philosophy’s goal of an ultimate agreement is as hard to attain as that of a true disagreement, which Talmud pursues. Taubes follows in this rabbinic talmudic tradition. What makes his work especially important is that he combines such an approach to disagreement and refutation with Kant’s transcendentalism. The result becomes a version of talmudic disagreement as the transcendental condition of knowledge and practical action alike. In this manner, instead of partaking of the Western philosophical search for truths about the world, Taubes draws closer to the talmudic search for disputation as a way to live in this world. He elevates that search for disputation and for true disagreement to the level of a transcendental condition of possibility of an authentic aesthetical, ethical, political, and religious life in society. He further expresses such transcendental conditions in the symbol of die Fremde. For Taubes, the reality of one’s position in the world is that one is ever die Fremde in der Fremde, like a foreigner (one meaning of die Fremde) residing in a foreign land (the term’s other meaning): an immigrant living in a land that is not theirs, but also with no other possible land to return to where he is native. This means that one should see oneself as fundamentally apart from the world and all of its widely accepted precepts and rules. Moreover, the foreign land itself is impermanent, for it is ever moving toward its end (eschaton). That constant movement of the world toward the eschaton translates, contra Kant, into the impossibility of certainty or the search for agreement. In his later work on political theology of Paul, Taubes complements this observation of the reality of one’s being in die Fremde: He points out that everything that we assert or do must be asserted or done with radical hesitation (a term that I will introduce in more detail below); relatedly, he posits that the well-defined disagreement as the goal should shape human acts and relationships in society. Where Kant searches for certitude as the transcendental foundation of authentic human relationships, Taubes isolates uncertainty, disagreement, and hesitation as transcendental conditions or the historical a priori of Western history and society. He further argues that Western society is misreading itself. That is, it constantly borrows rabbinic/Jewish notions of eschatology and uncertainty, yet constantly suppresses these notions with their opposites of perpetuity and certainty as ideals of social life. Taubes can undertake this diagnosis only because of what he calls “academic research”; for him such an approach is coterminous with a rereading of traditional Christian texts from the intellectual vantage point of rabbinic tradition. The result is that his position as a devoted adherent of rabbinic discipline of thought converges with what he sees as the (relativist) position of “academic researcher.” Taubes’s argument is that the West repeatedly (mis)understands itself as “secular” while regularly engaging in, and fighting with, its own apocalyptic element—an element that the West repeatedly borrows from the Jewish tradition. This critique becomes possible through, by, and by means of his rereading of Jewish and Christian texts in a transcendentalist, rather than

46  Sergey Dolgopolski dogmatic or relativist way. Taubes further claims that in light of this dynamic relationship between secularism, apocalypticism, and Jewish tradition, we must drastically adjust the self-understanding and self-remembering of the secular world. Eschatology and Die Fremde Now let us turn to Taubes’s first major work Occidental Eschatology (1947). In this book, Taubes builds on the basic meaning of eschatology as any teaching anticipating the end of the world. His claim there, which is crucial for our purposes, is that history is not a small-h series of events but rather an independent, powerful force with its own “essence,” moving across time. That “essence” is not historical but rather eschatological: History is always moving toward a telos and the ultimate telos of History is the end of this world.18 Seen in this light, History, for him, is a foundational transcendental concept, for which there are only symbols, which he calls “base-words.” The most important base-word is die Fremde. The word’s literal meaning “the stranger,” or “[dwelling in a] foreign land,” expresses a sense of alienation of a person as being a foreigner in the world. Die Fremde serves as a transcendental symbol of the concept or “essence” of history,” i.e., of the eschatology (secularist or not). When approaching the essence of history as “nothing historical” Taubes writes: Amid the confusion over the purpose of history, it is impossible to plumb its depth through individual events. Instead, occurrences must be disregarded and it must be asked: what makes an event history? What is history itself? When the question about the essence of history is posed from the perspective of Eschaton, we have a position and a yardstick. It is in the Eschaton that history reaches beyond its limits and is seen for what it is.19 According to Taubes, the fact that history in its essence is eschatology can only be grasped symbolically, via the foreigner as the symbol of the alienation inherent in the human existence in the world. A dogmatic would say that we all know and accept that the world is going to end; and an anthropomorphist would deny our capacity to know if the world is going to end, and would define such a perception as simply emotional. Neither of these grasps our alienation from the world as the source from which both positions arise. For Taubes, the world is moving forward toward a point at which that alienation ends; and this movement is intrinsic to the very meaning of alienation, which always implies that this world has to come to an end, and that thus I do not fully belong to this world. As Taubes argues, this movement of life in alienation depends on and produces the drama of making choices, or more precisely of making decisions where there are no rules, precepts, or

Terms 47 patterns for imitation—precisely because these rules and patterns are as alien (or foreign) for a person or a group living in history as that person or that group is alien (foreign) to the world that produced them. History is about freedom, Taubes argues; that is, it is about decisions, as opposed to rules and their applications. Ultimately, only a person in der Fremde can be truly free, and can therefore genuinely act in history. Radical Hesitation I introduce here Taubes’s inquiry about the essence of history for the sole purpose of arriving at the point of his argument that is most relevant to our theme of “devotion” versus “relativism” in Jewish Studies. Taubes is heuristic here. His use of a transcendentalist method to determine the essence of history—as symbolized by die Fremde or the fundamental foreignness of a human to the world—leads him, in his later work on Paul,20 to reading rabbinic and Christian texts in a radically new way, which is neither relativist (anthropomorphist) nor dogmatic (deist). From the transcendental, foundational notion of “history” as eschaton (with the base-word of die Fremde as its symbol) he moves to what I will describe as a transcendental positioning in both Moses and Paul, the positioning of radical uncertainty or radical hesitation about their role in the world. One can say that the transcendental radical uncertainty or radical hesitation in his later work is a more advanced and more nuanced version of the symbol of die Fremde in the earlier work. Radical hesitation is thus a version of disagreement in the sense outlined above: in this case, it is a foundational disagreement Moses or Paul enlivens as a disagreement with oneself in relation to others and to G-d. Disagreeing with G-d’s proposal to create a new nation instead of Israel, Moses and Paul alike also disagree with oneself (radically hesitate) about becoming a father of the new nation. With such a rereading of Moses and Paul, Taubes effectively argues that a transcendentalist—rather than either a dogmatic or a devotionist, or a relativist—can read rabbinic texts better. His reading of Paul and Moses together in his book on Paul exemplifies such a claim.21 In Taubesian transcendentalism, both Paul and Moses are figures of programmatic or radical hesitation. This hesitation is a third way between the eschatology of die Fremde and decisionism: Taubes’s vision of hesitation differs markedly from the decisionism famously articulated by Taubes’s rival, the German political philosopher Carl Schmitt. Whereas Schmitt claimed the sovereign is defined by performing an act of decision in a case where they conclude that no judgement and no rules-application can do, Moses and Paul radically hesitate to become sovereigns/fathers of a “new nation” even if G-d offers that. For Moses, the hesitation occurs when G-d proposes to destroy Israel and create a new nation. For Paul, the moment is that of a similar prospect—to become a leader of a “new Israel.” Both resist that temptation of sovereignty—each in his own way. Moses does so by refuting G-d in a direct conversation. Paul, argues Taubes, does so in his letters: he carefully

48  Sergey Dolgopolski chooses his wording in addressing audiences of Israelites and Gentiles in an effort to both evoke and prevent perceptions of him as a founder of a new, divinely chosen nation and to entice Israel to repent. His letters thus become refutations addressed to Jews, dubbed for that purpose as “Israel in flesh.” He calls on Jews, as different from those who can only be “Israel in spirit,” to become Israel in both spirit and flesh in the first place. This line of refutation is in keeping with an effort among the Prophets to move away from defining service to G-d merely through ritual sacrifice. Here, though, it assumes a new form, that of a subtle polemical engagement rather than a direct prophetic reproach. Hence, here it is in the form of hesitation—a hesitation to refute Israel in flesh, a hesitation against becoming a father or sovereign of a new nation defined as Israel in spirit, i.e., the Christian kingdom of the pure Israel in Spirit, the kingdom of the gentiles. Taubes’s argument on Moses’s and Paul’s radical hesitation or in his terms radical “horror” of becoming a sovereign/father of a nation is both transcendentalist and rabbinic. It is transcendentalist in seeing radical hesitation or horror as a transcendental condition of possibility, a horizon defining Moses’s and Paul’s experiences of leadership both from within and independent of their choices. It is rabbinic in the modes of argument. Thus, it is through Taubes’s reading of Midrash that Moses refutes G-d, as G-d proposes to destroy Israel and create a new nation from Moses. The Midrash in question appears in the Babylonian Talmud, on Ber. 32a. It concerns Exodus 32:7 in the Golden Calf episode, where G-d says to Moses “Go, get down [from the Mountain]! For your people whom you brought up from the land of Egypthas wrought ruin!”22 Taubes draws on a Midrash that takes “wrought ruin” to imply “Israel ruined themselves.” That would mean G-d is about to “ruin,” i.e., destroy Israel and create a new nation from Moses. Yet it all depends on Moses’s “getting down.” If he does, then Israel will be destroyed and a new nation will be created from Moses. In Taubes’s reading, Moses radically hesitates to become a father of the new nation, and instead refutes G-d. He does so first by not “getting down” right away, i.e., by showing that G-d himself made the destruction depend on Moses; and second by arguing with G-d that a nation based on three patriarchs is still more stable than a hypothetical nation created from just one father, Moses. For Taubes, that means Moses radically hesitates to become a single and sovereign father of the new nation. In practice, that means Moses chooses refutation as a mode of reverent relationship with G-d over the assertive certitude of decisionism of letting either G-d or himself decide on the birth of a new, hypothetical nation of Moses. Likewise, it is in Taubes’s readings of Romans that Paul writes to Gentiles with a rhetorical strategy intended to refute Israel’s purported sense of selfsufficiency, let alone monopoly in relation to G-d. Paul thereby invites Israel to repent without Paul becoming a founder of a new nation or religion.23 Paul in other words has a radical hesitation similar to Moses. In Paul’s case, it is between becoming a father of a new nation of Christians as new Israel in

Terms 49 Spirit and calling the “old” Israel to arise from being merely carnal Israel, to reach a combination of the carnal and spiritual relation to G-d. Both rhetorics—that of refuting G-d on the part of Moses in order to save the Israelite nation, and that of refuting the Israelites by Paul in order to elicit their repentance—rely on refutation as a fundamental political and existential move. Such refutation becomes a transcendental foundation for both Moses’s and Paul’s modus vivendi. Here, for Taubesian transcendentalism, refutation as a mode of thought and existence plays a role akin to the search for certitude in relations between the humans that emerges from symbolic thinking in Kantian transcendentalism. Where Kant hopes to find a human subject seeking agreement with other human subjects about the principles of his/her action, Taubes finds a fundamental rhetorical exchange of refutations between G-d and Moses; or else between Paul, Israel, and Gentiles. Refutation thus becomes a transcendental condition of society—a move Kantian transcendentalism does not (and cannot) embrace, but that Taubesian transcendentalism does. Refutation (and in that way engagement) as one of the central moves of rabbinic thought and action becomes the transcendental condition, under which a human can engage with other humans, with G-d and with the world adequately, that is to say neither anthropomorphically nor deistically. Moses and Paul become symbols of such engagement. With an emphasis on refutation as the foundation of rational thought and action, Taubes belongs to the tradition of rabbinic Talmudic rationalism unfolding from the Sephardic talmudic Aristotelians to the Brisker schools, which championed refutation as either an ideal and goal or as a conditio sine qua non of human thinking and action. In a way, Taubes mobilizes the intellectual resources of this tradition to do what he calls “academic” work: to read Jewish-Christian texts academically, i.e., as a rabbi (=heir of rabbinic thought) and a scholar (=transcendentalist, an heir of Kant) at the same time and by the same token. Rather than read a given text to match or support a given Jewish or Christian dogma, Taubes interprets texts by identifying that to which the texts were responding, or what they were refuting, and what they thereby put on display as their historical a priori (or historical transcendental condition of possibility, in Kant’s terms). To put it in Taubes’s own terms: [I]f the texts of the Old Testament are interpreted as revelation according to Jewish and Christian dogmatism, there can be and should be no question of proper academic research.24 In other words, if we interpret classical Jewish and Christian texts in accord with assumptions of traditional dogmatism, there remains no room for academic research and interpretation and vice versa. Yet he does not see an actual contradiction between halakhically correct modes of scriptural interpretation and academic research. Using a transcendentalist approach, Taubes isolates what lies at the foundation of the many biblical texts as well as other

50  Sergey Dolgopolski classical bodies of Western thought: hesitation and refutation as constantly borrowed and constantly suppressed modi vivendi of the Western thought and society. He thereby becomes a devoted critical reader of tradition, a rabbinic scholar, and an academic scholar of rabbinic texts, without assuming any strict compartmentalization of the one from the other. In doing so, he offers a reading stemming from the discipline of the Talmud’s study, now understood in terms of refutation as its transcendentalist foundation. But how exactly does this work? What does it mean for thinking about relativism, devotion, and transcendentalism in academic and beit midrash approaches to Jewish tradition? Thinking with Taubes about Jewish Studies What can we learn from Taubes about the rift between relativism and devotion in Jewish studies? With his help, I contend, it becomes possible to reformulate the main question of this chapter. We arrive at a possibility, necessity, and actuality—even if not yet a fully articulated actuality—of an alternative way out of the tension between devotion on the one hand and relativism on the other. We find a mode of thought that first presents itself as talmudic rationalism, but can—and perhaps already did—escape its original historical definition, in particular in Taubes’s work. To pursue this line of thinking more fully, we need a better understanding of Taubes’s definition of “academic” or “scientific” research, and what he means when he counterposes it to dogmatism. A short answer to these questions is that in his early work, Taubes sees “academic research” along the lines of Kantian transcendentalism, and in his later work, as a version of talmudic rationalism—also transcendentalist, but no longer Kantian. In his early work Occidental Eschatology, Taubes is a transcendentalist of Kantian type. Like Kant, he searches for a harmonious foundation of society located at the transcendentalist level. However, in his later work, The Political Theology of Paul, he departs from Kant’s subscription to harmony and lands in the transcendentalism of disagreement, uncertainty, and a Jewish political theology of radical hesitation. In this later phase, he more explicitly engages the thought of Carl Schmitt, pushing back on the striving for certainty of decision found in Schmitt’s later works. Schmitt’s decisionism is a political move promising certitude. Taubes’s hesitation renders such certitude a crime. He does so through the above—idiosyncratic if highly suggestive—reading of Paul. For Taubes, Paul offers a “Jewish” politics of radical hesitation, directing an eye toward and against becoming the sovereign father of the nation. To my mind, both Moses and Paul are for Taubes not only symbols of such a radical hesitation. I contend that Taubes’s political theology of radical hesitation that he finds in both Moses and Paul marks a move from political theology as a theoretical framework of his “academic research” toward a framework of talmudic rationalism (though admittedly, he never completes

Terms 51 this move). As already intimated in narrower terms of refutation, by talmudic rationalism I mean a tradition of thought unfolding from the school of talmudic Aristotelian “speculation” (the method of iyyun) in fifteenth-century Spain25 to the post-Kantian schools of halakhic analysis in the Brisker schools in the nineteenth and twentieth centuries. This tradition of thought attempts to defend the talmudic form of thinking as a rational mode of inquiry against the Maimonidean or, more broadly speaking, philosophical critique of the Talmud as irrational or excessively rhetorical in its form. This tradition underscores the importance of true disagreements and of well-structured uncertainty as conditions for authentic human action and knowledge. In Taubes’s iteration, this tradition moves toward making well-defined disagreement not only into a goal of human discourse but also into a transcendental condition of possibility of the world in which humans live. Disagreement as a goal becomes, in this tradition, a new view of what rationality means: a rationality based on disagreement, as distinct from the outlooks of both philosophy and rhetoric that see agreement as the ultimate ideal and goal. Placing Taubes in the chain of this tradition underscores his (never finished) transition, from the certitude provided and demanded by both Kant’s ethics and Schmitt’s decisionism to the politics of radical uncertainty that Taubes foregrounds and places at the center in his later work on Paul. For Taubes, in his talmudic, rationalistically informed reading of Midrash and of Paul’s letters together, both Moses and Paul are radically hesitant about assuming leadership positions and are therefore in a genuine disagreement (for Moses even with G-d, and for Paul with Israel) about the relationships between the nation of Israel, themselves, and the other nations. Beyond Taubes’s Transcendentalism in Jewish Studies? What we have followed here was a progression from purely devotional and relativist approaches, through Kantian transcendentalism, and then to what I have called Taubesian transcendentalism. Taubes’s framework is highly suggestive but it should by no means be seen as a new paradigm in and of itself. It is useful to conclude by mapping where the approaches described here leave us with respect to the relativism/devotion conundrum in Jewish studies. In an effort to show the implications of this for specific fields of Jewish studies, let us briefly examine how four different approaches that we have outlined apply to the question of the relationship between the law and the past. Both the past and the law (Jewish and general) have dramatic implications for the devotion/relativism binary, because each is invoked so frequently as a source of authority by various devotional perspectives, and treated “critically” or “historically” by those who seek to relativize its authority. Since the past and its forces are always more than any account of the past can provide, the question comes down to how these four approaches situate themselves vis-à-vis these unaccountable powers of the past, as these powers are also the

52  Sergey Dolgopolski sources and forces of authority behind the law. I am calling these unaccountable forces of the past, the faceless past. 1 A relativist uses the past to claim that the present law is merely the product of a series of historical evolutions, and thereby cuts off the law from the past as a source of authority. They reduce the law to a set of cited (and applied) rules; and the authority of the law to circumstances of time and place. 2 A dogmatist (and hence a devoted practitioner) of the law cuts off the law from the past in a different way. For them, law is timeless: they therefore believe that the rules fully represent the authority of the past, as if such full translation of the past into present were possible. This is why, as Chaim Saiman has recently argued, for a “devoted” lawyer (just as for a posek, or Jewish legal decisor), the cited/recorded law is eternal/transhistorical.26 This is also why, according to Saiman’s helpful analysis, for a historian of the law (but not for the lawyer or rabbinic judge), the law is relative and historical. Both historicizing and ahistorical approaches to the law are oblivious to the deeper yet tangible ways in which the past shapes the present. 3 A Kantian transcendentalist cuts the law off from any version of the past whatsoever: the source and authority of the law is in reason, in “me” acting so that (I can believe that) the rule of my will can be a foundation of the general legislation; that source is in “me,” not in the past, according to Kant. 4 Taubes’s iteration of rabbinic transcendentalism of radical hesitation is not oblivious to the precarious nature of the past in relation to law. For Taubes, the past (or in his terms, the history) exerts its law-giving power on us regardless of whether or not we have or can have a sufficient account of it. Radical hesitation is the proper way to situate oneself vis-a-vis the undefinable but immutable impact of the past. In that sense, Taubes broaches a new ground in exploring the relationships between the powers of the past and the competing understandings of Jewish law and the Jewish tradition more broadly. What Taubes points us to is that faceless past. The authority of the past, its imprint upon us, its shaping of our present circumstances—all are crucial but we cannot fully appreciate or account for them. In that sense, they are faceless. When we understand them that way, we move beyond the past as authoritative or historicist. Thinking of the past in this way opens up a new, broader horizon of inquiry about the Jewish past and Jewish tradition that reframes the partitions imposed upon us by devotional and relativist approaches. Conclusion New paradigms and approaches to finding a way out of the conundrum of dogmatism, relativism—and now transcendentalism—in Jewish Studies are needed. By way of anticipating where this argument develops further, I can

Terms 53 only say that Taubes’s move is heuristic in this respect. However conceptually incomplete, his evolution from Kantian transcendentalism in his earlier work on Occidental Eschatology to what can be called Taubesian transcendentalism or a talmudic rationalism in his later, posthumously published work on Paul, The Political Theology of Paul, is highly promising. Taubes’s reading of both Paul and Moses in a talmudic rational mode, rather than a merely transcendental one, moves us away from the Kantian mode of striving to the goal of agreement through certainty and decision, and toward a recognizably talmudic mode of hesitation and disagreement as a goal. Such a line of thought is worthy of much greater exploration. Let me conclude where we have reached so far: dogmatism and relativism belong to the same eon (to use another term from Occidental Eschatology) of Jewish studies, the eon that was both created and undermined at the very inception of Jewish Studies as a modern discipline or field taking its shape through, after, and despite the Wissenschaft des Judentums, after and in conversation with the intellectual work of Kant. The terms of dogmatism (and hence devotion), relativism, and transcendentalism, let alone those of text and context, as necessary as they are, remain insufficient for understanding the inner tension within Jewish Studies. Their insufficiency is that they hide their own limitations. By contrast, analyzing the notions of transcendentalism as well as other positions from which to move beyond the relativismdevotion conundrum helps to put these limits on display. In so doing, we can begin to define the tensions at present in Jewish Studies between these concepts and practices of research. Where, whether, and how far Jewish Studies will move beyond the conundrum of relativism, dogmatism, and transcendentalism is thus the resulting question of the discussion above. If we follow Kant, a way out of relativism (and specifically anthropomorphism) versus dogmatism (and specifically deism) is in differentiating between symbol and schema. Scholem’s critique of the “demonism” of “rational” or “scientific” history is a version of Kant’s critique of those who confused schemas and symbols: if every concept has schema, humans become “embalmed” living bodies (Scholem)—the schemas of a human. Kant’s Schematism or Scholem’s “demonism” is the substitution of hard sciences for humanities, of humans for Barbie-doll analogues. If we follow Taubes, we should say that in lieu of looking for either an agreement around dogma or a spurious disagreement (or even tolerant indifference) between relativists, we should be looking for disagreement (reaching in his case as far as transcendental hesitation) as the goal of the morally good, aesthetically beautiful, and properly political human action. A symbol for that can be die Fremde. Or rather Moses and Paul are symbols for such a radical hesitation, to which neither academic nor religious thinking should be foreign. To come back to the title question of this chapter: academic research and beit midrash study of Jewish texts and tradition are intrinsically neither devotionist nor relativist, nor transcendentalist in Kant’s sense. Rather,

54  Sergey Dolgopolski Jacob Taubes’s works open a new vista, a possibility and a necessity for work in which rabbinic thought and academic research engage one another in a productive way by increasing the distinction and specificity of each other, as they both face what has no face, the faceless powers of the past. What does this analysis mean for the general question of this volume about the future of the relationships between the academy and the beit midrash? I see this future not in a fusion of the two institutions in a hypothetical third, but rather in defining the true disagreements between their respective methods of reading. In pursuing further this line of thinking, the question of the future of the relationships of the beit midrash and the university leads me to two final guiding questions: (1) Does the rabbinic tradition eschew patterns of thought necessary to constructing such a future? (2) Can modern reconsiderations of the impasse between relativism and devotion welcome such a future? On the first question, this essay has sought to illuminate the rabbinic tradition of genuine disagreement as having two important roles. First, it is a goal of disputation. Second, it serves as the truth criteria for whether a given statement promises to help develop the impasse between the university and the beit midrash into a genuine disagreement. The second question is best answered through further research: the combination of the rabbinic tradition with transcendentalism of disagreement does not suffice. We need a more advanced program. This program must dive deeper into pre-modern resources of rabbinic tradition. Those resources both pre-date and can take us beyond notions of modern transcendentalism and its relationship to our individual and collective subjectivity. Notes 1 This chapter employs the terms “dogmatic,” “devoted,” “dogmatism,” and “devotion,” etc., in different contexts. In many turns of the argument, they are used interchangeably. Even if dogmatism and devotion are not always synonymous, the main distinction the chapter draws and builds upon is between dogmatism/devotion versus relativism on the one hand and transcendentalism on the other. 2 M. Foucault, “What is an author?” in Aesthetics: A Reader in Philosophy of the Arts (New York: Routledge: 2018), 284–288. 3 By relativism, I mean here not only or primarily moral relativism, but rather an intellectual position purporting to reject any absolute truth and seeing any truth as a result of the circumstances of its production. 4 See: From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 129–156. 5 I take Weber’s account as a performative moment of leaving the Catholic context of a university, the moment it becomes a “secular” institution—in full structural accordance with the fundamentally Protestant conception of “secular,” a notion or a concept that can still be at work even there where institutional Protestantism is not. Weber helps see the never finished—yet always drastic—transition from profession as “confession” and even “lecture” exemplified in his model of Catholic university to profession as calling (Beruf) exemplified by his model of Protestant profession. The latter can be religious or “secular,” or more precisely it is both—including the profession of a researcher and educator in a university

Terms 55 setting. See: M. Weber and J. Dreijmanis, Max Weber’s Complete Writings on Academic and Political Vocations (New York: Algora Publ, 2008), where he develops the notion of the “disenchantment of the world” and M. Weber, P.R. Baehr, and G.C. Wells, The Protestant Ethic and the “Spirit” of Capitalism and Other Writings (New York: Penguin Books, 2012), where his broader conception of the Beruf finds a fuller expression. 6 This demonism has to do both with the “Wissenschaft” and with the “des Judentums.” The “Wissenschaft” entails being possessed by the demon of (the pleasure of) knowing or by the spirit of “science,” for the latter can also possess one as a demon. Already dogmatic in nature, the possession element doubles in the “des Judentums:” being possessed by the urge to know “scientifically” that which has so far been “learned” in a Yeshiva setting, i.e., only “dogmatically.” The result is double dogmatism: the possession by the spirit of “science” which is repossessing the traditional “learning,” now also understood as being possessed by “nonscientific” (for example, “anachronistic” or “idiosyncratic”) interpretations of rabbinic texts and traditions. 7 Cf., for example, Kant’s dismissal of “the Jewish beliefs” (die judische Glaube) as purely positive (or imposed) laws (statutarische Gesetzte) and of Judaism as purely political belief (politische Glaube) in Religion within the Limits of Pure Reason Alone B 186–A 176. 8 Scholem’s critique of the Wissenschaft was in part about its lack of discussion of mysticism, which he attributed to a deep discomfort with anti-rationalist forces in Jewish history. The dogmatism that he critiques as “demonic” as described below seems consistent with this view, i.e., a critique of a fixation on some sort of “scientific knowledge” in a way that becomes as dogmatic as any form of religious thought or practice. However, his diagnosis of the Wissenschaft in general and the Wissenschaft des Judentums in particular has a more general purchase. The issue of mysticism remains decisive here, for after all, in arguing in favor of “thought” (to include “Jewish Mysticism”) versus “science” (to exclude it, putatively), Scholem nevertheless reads mystical texts “scientifically” and “historically,” in other words not as a devoted mystic. He therefore is running the risk of becoming “possessed” by the “thought” no less than others, who, for him, are possessed by “science.” This link to the Wissenschaft des Judentums is particularly important, for, as outlined briefly in this book’s Introduction, the Wissenschaft played a crucial role in shaping the contours of modern “Jewish Studies,” as well. 9 See: V. Liska, German-Jewish Thought and Its Afterlife: A Tenuous Legacy (Bloomington, IN: Indiana University Press, 2016). 10 On Scholem’s critique of the “demonic figures” in the Wissenschaft, as “all cold and unsentimental in their approach to the Jewish past,” which they “embalm” allowing no “living essence” in them to remain, see: C. Schulte, “Scholem Kritik der Wissenschaft des Judentums und Abraham Geiger”, in C. Weise and W. Homolka (eds.) Jüdische Existenz in der Moderne: Abraham Geiger und Wissenschaft des Judentums, Studia Judaica 57 (German Edition) (De Gruyter, 2013), 407–424, especially 412. 11 On Kant’s critique of Swedenborg’s mysticism, see I. Immanuel, G.R. Johnson, and G.A. Magee, Kant on Swedenborg: Dreams of A Spirit-Seer and other Writings (West Chester, PA: Swedenborg Foundation Publishers, 2007). On Kant’s critique of Jewish law as positive law or “statuary law,” see: I. Kant, A.W. Wood, G. Di Giovanni, and R.M. Adams, Religion within the Boundaries of Mere Reason and Other Writings, (Cambridge University Press, 2019), B 186–A 176. 12 Unlike Kant, however, Scholem sees Jewish mystics as reaching beyond a merely schematic conception of G-d. Rather, the mystics rise to what Kant describes as the symbolic register of the imagery of the Divine.

56  Sergey Dolgopolski 13 For a classic analysis of the formation of the romantic notion of Bildung in Wilhelm von Humboldt, see: D. Sorkin, “Wilhelm von Humboldt: The Theory and Practice of Self-formation (Bildung), 1791–1810”, Journal of the History of Ideas 44:1 (1983), 55–73. 14 The work of George L. Mosse on Bildung and German Jewry reveals how such commitment to a lack of any dogmatism paradoxically could translate into a dogmatic or “blind” commitment to “liberalism.” Arguably, this unbridled embrace of Bildung in time uprooted Jews from their tradition much further than “liberalism” as a broader political or educational program had ever suggested. See G.L. Mosse, German Jews beyond Judaism (Cincinnati: Hebrew Union College Press, 1985). 15 Here secularization not only overtly means what the concept offers its adherents to embrace, namely the separation of the state and of the private life from religion, but also covertly represents a religious, namely Protestant value of individual private faith and thus of the individual private life, however public this life might be as practiced. 16 For an analysis of the relationships between skepticism and dogmatism in Kant, see: P. Franks, All or Nothing: Systematicity, Transcendental Arguments, and Skepticism in German Idealism (Cambridge MA: Harvard University Press, 2005). For an analysis of the skepticism versus dogmatism conundrum in late antiquity, see: M. Burnyeat, “Protagoras and Self-Refutation in Later Greek Philosophy”, in idem, Explorations in Ancient and Modern Philosophy, Volume 1 (Cambridge: Cambridge University Press, 2012), 3–27. 17 See, in particular: Kant, Critique of Judgement, A252–257, B254–260. 18 “In question is the essence of history. The inquiry about the essence of history goes not after singular events in history, after battles, victories, losses, pacts, about occurrences in the politic, about economic connections, about representations in art and religion, about discoveries of scientific knowledge. From all these the inquiry about the essence [of history] turns away and concentrates on only one: how history is possible in the first place, what is its reachable foundation, on which history rests as a possibility.” (Taubes, “Logos and Telos,” Dialectica 1:4 (1946), 319). My translation—S.D. [Nach den Wesen der Geschichte ist gefragt. Die Frage nach dem Wesen der Geschichte kümmert sich nicht um einzelne Ereignisse in der Geschichte, um Schlachten, Siege, Niederlagen, Vertrage, um Geschehnisse in der Politik, um Verflechtung in der Wirtschaft, um Gestaltungen in Kunst und Religion, um Ergebnisse wissenschaftlicher Erkenntnis. Von all dem sieht die Frage nach dem Wesen ab und blickt nur auf das Eine hinaus: wie ist überhaupt Geschichte möglich, welches ist der zureichende Grund, darauf Geschichte als Möglichkeit ruht.] 19 David Ramotko’s translation in Occidental Eschatology, (Palo Alto, CA: Stanford University Press, 2009), 3. To draw a parallel with Heidegger’s inquiry about the essence of technology: If for Heidegger the essence of technology is in Gestell—in making things, nature, and indeed the whole world readily available for human consumption or “use”—so too for Taubes, the essence of history is in eschaton, the sense of my radical foreignness to the world, which makes the world to be over, even if I, paradoxically, may not have any other world to go to either. 20 J. Taubes and D. Hollander (translator) The Political Theology of Paul (Palo Alto, CA: Stanford University Press, 2008). 21 I refer to one of the central lines of argument in The Political Theology of Paul. 22 The Schocken Bible translation: The Schocken Bible: The Five Books of Moses (New York: Schocken Books, 1995). 23 In the framework of this chapter, I can only gesture toward Taubes’s argument in the book. A closer reading would belong elsewhere. In his personal and intellectual biography of Taubes, Jerry Z. Muller highlights a dialectical side of Moses’s

Terms 57 and Paul’s hesitation to become a sovereign and a father of a new nation: a fear for the survival of Israel (for Moses) or of “Israel in Flesh” (for Paul). See: J.Z. Muller, Professor of Apocalypse: The Many Lives of Jacob Taubes (Princeton: Princeton University Press, 2022), 490–491. 24 Taubes, Occidental Eschatology, 48. 25 For a contextualization of iyyun as a method of Talmud study in Talmudic Aristotelianism, see “III. Defining our disagreements” section in the introduction to this volume. 26 See: C.N. Saiman, The Rabbinic Idea of Law: An Introduction to Halakhah (Princeton: Princeton University Press, 2018).

2

Philosophy Moses Mendelssohn, Leo Strauss, and the Relativist/Devotionist Divide Bruce Rosenstock

Editors’ note With this chapter, we move from a conceptual discussion to the first of our case studies: how reading for devotion and relativism together in the same texts can challenge the conventional boundaries of philosophy. The case explored here deals with anachronism as the dividing line between academy and beit midrash. Many academic disciplines find “anachronism” or the reading of later periods, concepts, or questions into earlier texts to be problematic or even forbidden. By contrast, for a devoted reader, to approach earlier texts through the tradition’s later commentaries is a matter of obligation. Here, however, Bruce Rosenstock asks: is the difference as sharp as it seems? This case study compares two eminent Jewish philosophers—Mendelssohn and Strauss—and analyzes their respective readings of tradition. Both insisted that their readings were from a devotional perspective, and yet their intellectual framework stemmed from a question asked by Spinoza, who critically distanced himself from the Bible and tradition in a manner that caused many to see him as the forerunner of a distinctly relativist Jewish modernity. In this chapter, relativism and devotion are a matter of one’s self-perceived intellectual orientation vis-à-vis Jewish tradition. Relativism means treating the tradition with questions that the questioner perceives as external to the tradition, either in space or in time. Devotion means asking questions about one’s tradition that one believes to be internal to that tradition, even if, in the final analysis, these questions arise from an external vantage point that is often critical of tradition. The author employs two of the book’s three overriding methods, outlined in the Introduction, for addressing the relativism-devotion conundrum. Philosophy emerges as a place where thinkers like Mendelssohn and Strauss are exemplary of efforts to think across an expanded canon. They approach traditional Jewish

DOI: 10.4324/9781003364078-3

Philosophy 59 sources devotionally, yet with the critical questions and methods of philosophy as a discipline very much present. Both authors, for all of their differences, take a great interest in the matter of how to reconcile philosophical reason and revealed law. Ultimately, contends Rosenstock, they seek to define—rather than resolve—both sides of the disagreements between Athens and Jerusalem, between the exoteric and the esoteric.

The problem that this volume poses is in part about one’s positionality as a Jewish Studies scholar in relation to the texts (one’s “archive”) that are the object of one’s research. The volume editors write that the “relativist” or “contextualist” frames their archive in a “broader context;” the “devotionist” is “steeped” within the archive. This spatial distinction (is the person looking at their archive from outside or inside) can be restated as a temporal distinction: Do we study past texts by asking questions of them that come from a theory with present currency or do we study past texts by finding the questions that they themselves seek to answer, regardless of their present salience? Every scholar seeks to bring presently unanswered questions to their archive, but there seems to be a difference between anachronistic questions (temporally posterior of the archive’s own horizon of questioning) and, to coin a word, intrachronistic questions (temporally coeval with the archive’s own horizon of questions). The term “anachronistic,” I admit, has a derogatory ring, but I am using it as a neutral description of a set of theoretical questions that the authors of the archive were not themselves seeking to answer. An anachronistic question about a Talmudic text, for example, might be: How does the absence of a female rabbinic authority affect the argument of the sugya? Whether a scholar is “devotionist” or “relativist” in the questions she poses to her archive is perhaps most easily discerned by her willingness to ask such kinds of anachronistic questions about her archive. This essay examines two Jewish thinkers whose work includes detailed exegetical treatments of key documents within the Jewish archive. Both thinkers approached the exegesis of these documents only after having given careful attention to their interpretive methodology and its relation to the texts under study. Both thinkers claim to be answering questions that the archive itself raises; they do not, in their own estimation at least, bring anachronistic questions to bear upon their archive. But despite their claim to be doing intrachronistic exegesis, neither thinker is able to be characterized as unqualifiedly “devotionist.” The thinkers to whom I refer to are Moses Mendelssohn and Leo Strauss. Mendelssohn composed a number of Hebrew commentaries on biblical texts throughout his lifetime, including most notably one (in conjunction with other commentators) on the Pentateuch (Sefer Netivot Hashalom, The Book of the Paths of Peace, or, as it is more commonly known, Beʻur, Inquiry)

60  Bruce Rosenstock and another on Megillat Qohelet. David Sorkin, the co-editor of an important new English edition of selections from these Hebrew writings, argues that they “attest to Mendelssohn’s abiding immersion in the Hebrew textual tradition—biblical, rabbinic, and medieval.”1 From Sorkin’s description of Mendelssohn’s Hebrew works, it might seem that they fall squarely in the “devotionist” camp.2 I will complicate this placement by a close examination of Mendelssohn’s commentary on Qohelet. I will argue that Mendelssohn is reading Qohelet within the horizon of the question of whether the revealed law has any continuing validity in the modern world.3 The latter question is raised by Spinoza in his Theological-Political Treatise (1670).4 Since this is the same question that, as I will argue, Leo Strauss is also addressing in his exegetical work, I need now to say a few more words about Spinoza’s question about the continuing validity of the Torah’s revealed law and the answer he provides.5 Spinoza argued that the Torah’s revealed law was intended for a theocratic polity in the land of Israel, not for any humanly governed polity, not even the monarchic kingdom established under David, let alone the exilic community of Jews under the leadership of the rabbis. Spinoza’s thesis that the revealed law is valid only under the direct rule of God and never within a state whose sovereign is human became a rallying cry for the entire genre of political-theological critique that attacked religion as a tool of political power. Jan Assmann, who has studied this genre in a number of scholarly works, puts the point succinctly: “From Spinoza to Bakunin, political theology is a polemical term, denouncing theology or religion as the handmaiden of politics.”6 Mendelssohn himself contributed to this genre in his Jerusalem, or on Religion Power and Judaism (1783),7 but he was firmly opposed to the view that the Torah’s revealed law was meant only for a theocratic polity. His argument for the continuing validity of Torah law in Jerusalem will not concern me in this essay. Rather, I will focus on his defense of Torah law’s continuing validity in his commentary on Qohelet. The question Mendelssohn addresses to Qohelet is clearly anachronistic, but, as I hope to show, it allows Mendelssohn to enter into the thematic core of the text and uncover its intrachronistic concerns. Leo Strauss also composed exegetical studies of earlier Jewish texts. Like Mendelssohn, he is very much concerned to recuperate the authentic voice of the author with whom he engages, and he has written important methodological studies that explain how his method brings out that voice. I will focus on the essay, “How to Study Medieval Philosophy,” in which Strauss seeks to situate his method of studying medieval philosophical texts against the methods of people as different as Franz Rosenzweig, Hermann Cohen, Gershom Scholem, and Julius Guttmann.8 Strauss claims that all these figures defend their interpretive methods on the ground that their approach is the only one that can inherit the inner Jewish truth of the tradition from out of which the medieval texts emerge. Strauss dismisses this interpretive goal and claims that the student of medieval Jewish philosophy must “have as perfect a freedom

Philosophy 61 of mind as is humanly possible” (HSMP, 98). Strauss therefore argues for a perspective outside the tradition, indeed, outside any tradition. Despite this distanced interpretive perspective, Strauss is not properly characterized as a “relativist.” On the other hand, Strauss is certainly not a “devotionist” either. However, he is willing to entertain the possibility that the texts he studies may contain “the truth” (HSMP, 98). Reading Strauss’s essay in the context of the relativist-devotionist problematic challenges the assumptions upon which this binarism is built: that relativists are truly distanced readers and that only devotionists are faithful to the truth claims of the tradition in which they are “steeped.” Both Mendelssohn and Strauss practice a reading method that crosses anachronism with intrachronism: it situates itself at the farthest possible point beyond the historical context of the archive in order to enter the most intimate point of the archive, the very place of the author. They both recognize that between their position and that of the author there exists a historical rupture, but this rupture actually provides a pathway to a recuperation of the text in its transhistorical truth. As I have said, the historical rupture in Jewish tradition that both thinkers confront is, they believe, given its first expression by Spinoza. This historical rupture can be captured in a single question: Is revealed law of any objectively demonstrable value in the contemporary world? Mendelssohn and Strauss feel the force of Spinoza’s theological-political question about the possible anachronism of revealed law for the Jew in the contemporary world for two basic reasons. First of all, they feel that Spinoza must be answered because they recognize that Spinoza’s question is an organic part of his commitment to another tradition, the tradition of philosophy beginning in ancient Greece. Although Mendelssohn and Strauss both reject Spinoza’s judgment that the Hebrew Bible’s theocratic laws are no longer binding upon the Jew, they do wish to participate along with Spinoza in the tradition of the free exercise of philosophical reason. Therefore, they are compelled to ask: To what extent must a commitment to philosophical reason separate the Jewish philosopher from the Jewish people? This is the first reason of why they feel the force of Spinoza’s theological-political question, namely, because they endorse Spinoza’s commitment to the free exercise of philosophical reason. The second reason that Mendelssohn and Strauss feel compelled to answer Spinoza’s Jewish question is that they also feel the force of Germany’s own version of the question, its so-called Judenfrage. In Germany at the time of both Mendelssohn and Strauss, a modern Jew (one who, like Spinoza, believed that the theocratic constitution of the Hebrew Bible was an anachronism in the modern world) was regarded as just a new (and sinister) appearance of the old theocratic Jew, the Jew whose true allegiance was to his own law and people and not to the civil law and the larger nation. Strauss, in the “Preface to the English Translation” of his 1930 Spinoza’s Critique of Religion, called this the “theologico-political predicament” in which Jews of his generation found themselves trapped.9 Strauss explains that the modern state did not truly seek to replace divine authority with purely human

62  Bruce Rosenstock authority, but that it rather attempted to transfer all the predicates of divine authority to human authority. The Jew, as Spinoza had shown, represents the impossible anachronism of this transference: for the living Jew in any secular polity, theocratic sovereignty was of the past or of the future, but never of the present. “Finite, relative problems can be solved; infinite, absolute problems cannot be solved,” Strauss writes in his “Preface,” referring to the impossibility of realizing the Messianic Age in a particular political order like the future State of Israel. Generalizing, he concludes “human beings will never [have] a society which is free of contradictions.”10 But for a political philosopher like Hobbes (or Carl Schmitt), the state, insofar as it is a “mortal god,” can be “free of contradictions.” Such a state, in effect, has embodied theocratic power within the sovereign person whose power is beyond the constraint of any human law. If there is a tendency within the modern state to arrogate to itself theocratic authority, then, Strauss concludes, “the Jewish problem is the most manifest symbol of the human problem as a social or political problem.”11 While the Jewish problem rises to existential significance in the modern period (with political Zionism one of its consequences, according to Strauss), it is clear from Strauss’s description that it is also a transhistorical problem. Thus, if this problem frames Strauss’s approach to medieval texts, his method is both anachronistic and intrachronistic because it is, at least in his own understanding of it, constitutive of human history as such. Mendelssohn no less than Strauss felt the force of the “theologico-political predicament.” He also vehemently opposed Hobbes’s absorption of divine power into the power of the human sovereign in Jerusalem. Mendelssohn set out to show that “religious power” (religiöse Macht) is an attribute only of God and never of any human sovereign. Mendelssohn and Strauss, thus, understood that, pace Spinoza’s optimism about the possibility of a modern polity coming to be based upon rational consensus rather than upon the “revealed will” of God, the modern state had never really freed itself from the theocratic impulse, the impulse to wield “religious power.” In such a state, the exilic condition of the Jewish people would always represent the “dilemma” of trying to realize the theocratic impulse (substituting the will of the human sovereign for that of a divine sovereign) in any present human collectivity. I will argue in what follows that both Mendelssohn and Strauss turn to earlier Jewish texts to find an answer to Spinoza’s question concerning the validity of Jewish revealed law and also to find an answer to the theologico-political predicament of the (modern) Jew. Their answers to Spinoza’s question, however different they may be, profoundly complicate any attempt to divide devotionists from relativists, intrachronistic questions from anachronistic ones. Mendelssohn’s Commentary on Ecclesiastes Mendelssohn spends a good deal of time in the Introduction to his commentary dealing with the statement in the Talmudic tractate Shab. (30b) that “the sages chose not to conceal [Ecclesiastes] because it begins with words of

Philosophy 63 Torah and ends with words of Torah,” although “in the middle” are words that oppose the Torah, at least according to the sages. Mendelssohn does not mention it, but he certainly knows the passage in Qohelet Rabbah that explains that the rabbis were motivated to “conceal” Ecclesiastes because “the sages found in it words that incline to the side of heresy [minut]” (denial of Divine Providence in human affairs) (Qohelet Rabbah 1:3:1). Mendelssohn argues that there is an apparent conflict between the central sections of Ecclesiastes and the fundamental teaching of the Torah, that the world has been created by a beneficent deity who concerns Himself with the welfare of his people and with all humanity. In apparent contrast with this teaching, Mendelssohn acknowledges that the central sections of Ecclesiastes declare in clear terms “the violence of the world” (Mendelssohn refers to Qoh. 3:16, in the place of justice there is evil and 4:1, I observed the tears of the oppressed with none to comfort them) (MMHW, 132–33). Mendelssohn will argue that only if we take these central sections as the serious reflections of Solomon himself can we reconcile them with the Torah’s teaching about the providential nature of God. These central passages are the words of King Solomon reflecting about the reality of the world and of the kingdom over which he rules. Solomon therefore does not believe that God exercises direct providential care over people anywhere in the world, rewarding their good deeds and punishing their crimes, during their lifetimes. There is no direct theocratic rule here on earth. Yet, nonetheless, there is Divine Justice and Providence, but it is worked out in the immortal life of the soul after death. For Mendelssohn, Solomon’s reflections about the reality of the world are meant to lead to the conclusion that the direct action of Divine Justice can only truly be ascribed to the life after death. In making this point, Mendelssohn was, first of all, rejecting Spinoza’s claim that the revealed law of the Torah was intended for a theocratic kingdom realized on this earth. The Torah remains binding for the Jewish people because God will provide the immortal soul with afterlife rewards for obedience and punishments for infractions. The goal of Torah law was always the beatitude of the immortal soul and not the perfect functioning of a this-worldly polity. It is precisely in the historic period where Jews lost their state and their power to coerce obedience to Torah law that Torah law came into its truth as a blueprint for a freely chosen communal life dedicated to the beatitude of the immortal soul. Mendelssohn cannot deny Spinoza’s thesis that the Torah’s laws were meant for a this-worldly theocratic state without addressing the argument advanced in favor of Spinoza’s claim by Bishop William Warburton in his magisterial seven-volume work, The Divine Legation of Moses (1742).12 Bishop Warburton took Spinoza’s point about the this-worldly theocratic nature of Torah law and used it to make a polemical point in favor of Christian supersessionism. Jan Assmann correctly argues that Warburton stands directly in line with Spinoza’s political-theological critique of the use of religion to support sovereign power in the modern state.13 Warburton found evidence that Moses’s laws were intended for a this-worldly theocratic kingdom because Moses

64  Bruce Rosenstock never employed the doctrine of rewards and punishments in the afterlife to bolster obedience to the laws that he promulgated. In a kingdom where a human sovereign seeks obedience from his subjects, the threat of punishments and rewards in the afterlife strengthens obedience even when a criminal might have good reason to believe that she could evade the detection of the human sovereign. But if the sovereign were God himself, then perfect punishment and reward in this life would follow upon the omniscience of the divine ruler. No criminal can escape the punishment of a divine sovereign and no act of obedience will go unrewarded. Therefore, according to Warburton, the absence of any mention in the Torah of rewards and punishments in the afterlife means that Moses did not need to appeal this belief in order to buttress the obedience of the people. Only if Moses knew that God would be providentially guiding the this-world life of the people could he, as a wise legislator, leave out the afterlife from the Torah. Warburton offered compelling evidence that the Torah never includes a teaching about the rewards and punishments of the afterlife, and Mendelssohn deliberately chose Ecclesiastes, one of the key texts in which one might have looked for this teaching in order to counteract the pessimism about this-worldly Divine Providence, in order to rebut Warburton. And he chose an apparently literalist reading of the text to show that, in fact, Ecclesiastes is a brilliant attempt to demonstrate the immortality of the soul and the rewards and punishments of the afterlife. Warburton himself was responding to the point, advanced by English deists as part of their critique of the authority of the Old Testament, that there is no mention of rewards and punishments in the afterlife. We may therefore say that Mendelssohn is killing two birds with one stone. He is attacking Warburton and the deists together, both of whom relied upon Spinoza. The deists used the absence of the doctrine of the immortality of the soul to show that the Old Testament contained a primitive set of laws directed merely to the material well-being of the people without even an inkling of the spiritual dimension of human existence.14 Warburton accepted the point, but reversed its significance. As I have said, Warburton argued that Moses was no less wise as a legislator than any other ancient legislator (Lycurgus, Solon, and so on), so he must have understood that God Himself would reward and punish the people directly for their obedience and infraction of the law. He called this God’s “extraordinary providence” for Israel. But when the Jewish people so displeased God that he withdrew his extraordinary providential care from them and brought an end to their theocratic polity (with the Babylonian exile), Warburton, agreeing with Spinoza, further argued that the revealed law also ceased to be valid as a way of life for any people. Only with Christ do we find Divine Justice once again applied to the whole of humankind, with Christ’s atoning sacrifice releasing humanity from the guilt of Adam’s sin. With a “religious society” based upon this new revelation of Divine Justice in Christ, a Christian civil society can concern itself with worldly justice, based upon coercion when necessary, and thereby an enlightened and tolerant “alliance” between revealed religion and state power can arise, where the Church promotes the beatitude of the immortal soul and the state concerns

Philosophy 65 itself with the well-being of this-worldly flesh and blood individual. This is Warburton’s argument, one that I do not have time in this essay to expound in further detail. Warburton’s influence on the thinking of Mendelssohn in Jerusalem has been widely acknowledged and studied.15 My point here is that Mendelssohn attempts to show in his commentary on Ecclesiastes that King Solomon was not unlike other rulers: he, too, promulgated the doctrine of reward and punishment in the afterlife, and therefore Torah law is not binding only within a this-worldly theocratic polity, but within any human polity where Jews happen to live. In fact, the exilic condition of the Jews creates the condition for the perfect fulfillment of the purpose of Torah law because the free choice to live by Torah law is the ideal way to commit oneself to the spiritual beatitude of oneself and one’s fellow in this world. It is interesting to contrast Mendelssohn’s interpretation of Ecclesiastes as a rejoinder to Warburton to that of the English Hebraist Theodore Preston who translated Mendelssohn’s commentary into English and used it as part of his own commentary on his new translation of Ecclesiastes.16 Preston argues that Mendelssohn’s commentary proves that Solomon maintained a belief in the immortality of the soul and also in the rewards and punishments of the afterlife. He further claims that this disproves Warburton’s assertion that the Hebrew Bible nowhere gives expression to these beliefs. But this does not lead him to the conclusion that the revealed law was not limited to a thisworldly theocratic polity. As a Christian, Preston wishes to preserve Warburton’s claim about the temporally limited validity of the Torah’s revealed law, so he distinguishes between Solomon’s esoteric private meditations as a philosopher and Solomon’s public proclamations as a king. It is true that when Solomon dedicated his new-built temple, he addressed a long public prayer to the God of Israel, consisting throughout of a solemn petition for the continuance of the old covenant made by the ministry of Moses, (the efficacy of which there was some reason to fear had begun to decline), and that while he therein states at large the sanction of the Jewish institutions, he speaks of nothing but temporal rewards and punishments, without the least intimation of a future state; but this silence cannot be taken to imply anything with regard to his own belief on that subject. He is there praying for the continuance of a temporal Theocracy, of which temporal rewards and punishments, and not future, are the necessary sanction. But in Qohelet, which is evidently the result of mature deliberation, he endeavours to prove, to the satisfaction of the individual reader, the existence of a future state by the same arguments which uninspired reason would use on that subject. He writes in the way of open discussion, employing, to the best of his ability, that degree of wisdom wherewith he was endowed.17 In this passage, we can get an insight into what Mendelssohn was attempting to do in his commentary. He was attempting to forestall Warburton’s reduction of biblical law to a no longer valid theocratic law and also to

66  Bruce Rosenstock forestall an understanding of Solomon in Ecclesiastes as writing only esoterically for a limited group of fellow Jewish philosophers who were eager to use their independent reason to think about the soul’s immortality and the nature of the afterlife, regardless of how their thinking might be inconsistent with their obedience to Torah law merely because of their respect for God’s direct rule over the Jewish people. Mendelssohn would have rejected the esoteric nature of Ecclesiastes. Such a reading would have granted the appearance of “heresy” in the book, thereby rendering it into proof that the Torah was inconsistent with reason. Mendelssohn himself decides to write a Hebrew commentary in order to demonstrate to his Jewish readership that “the way of open discussion” on the part of a philosopher is entirely consistent with Jewish traditional belief in God’s Divine Providence. When a Jew uses philosophical reason, it does not immediately lead to the Spinozistic rejection of revealed law. As we will see, it is perhaps in Mendelssohn’s commentary on Ecclesiastes that he comes closest to the position that will later be the foundational principle of Strauss’s political philosophy. On one point, however, Mendelssohn and Strauss disagree: Solomon’s wisdom as an author was not displayed in his ability to hide an esoteric message in his text, but in his ability to use the literal meaning of the text to express his viewpoint. The reason that Solomon’s message had not previously been seen is that rabbinic literalist hermeneutics had never been guided by a concern for the rational consistency of the whole text, only for the particular word or phrase. Let us look at one stretch of Mendelssohn’s commentary to follow both the content and form of his basic argument. In commenting on Qoh. 3:19 (For men are an accident [Heb: miqre] and beasts are an accident—they are both an accident—and as this one perishes, the other perishes, and both have the same spirit; the superiority of the beast over man is nil, for all is vanity), Mendelssohn says that Solomon wants to point out that insofar as the living human being is not a “permanent substance” [atzmut qayam], the human being’s life is, in truth, no more valuable than that of any other animal (beast). The contingent (accidental and finite) life span of the human being is not arranged to match the moral worth of her “permanent substance” (her soul); only an infinite stretch of time could be the measure of the permanent indwelling value of the human soul insofar as it is able to seek to be as like as possible to its morally perfect Creator. Mendelssohn says that Solomon understood that it would not be enough to show that the human soul was in its essence a “permanent substance” (as Plato had attempted in his Phaedo, for example, and as Mendelssohn himself will attempt to do in his Phädon), if the goal was to foster faith in the beneficence of the Creator. It is possible, for example, that the soul might continue to suffer even after death. This, Mendelssohn avers, is what Solomon intended to say in 3:21, when he wrote I observed that there is no greater good than for man to rejoice in his deeds, for that is his portion; for who will lead him to observe what will be afterward (MMHW, 166). Mendelssohn takes this to mean, “were it not for the correct proof” of the immortality of the soul based upon the “violence of the world,”

Philosophy 67 then all we would have as proof would be the (Platonic) arguments from the substantial permanence of the soul (as a non-composite substance not subject to dissolution into parts). In that case, however, “how will we know what will be afterward,” that is, how will we know that the infinite duration of the soul’s existence will be a continuous increase in its moral excellence and its beatitude? If in this stretch of time during its embodied existence the human’s moral excellence does not match the human’s ideal beatitude, why should it be thought to match in the afterlife? Only if we base our belief in the immortality of the soul on the fact that in the present world moral excellence and its reward (and moral turpitude and its punishment) do not reliably align can we truly conclude that a beneficent God must align these things in the afterlife. Mendelssohn thus reads Solomon as a philosopher and king who seeks to reconcile philosophy with his role as king in a polity based upon revealed laws. Solomon does not rely upon the extraordinary Providence of God to guarantee the obedience of his subjects, but in fact completely rejects that such Providence exists. Solomon accepts the “violence of the world.” Instead of relying upon Divine Providence, Solomon uses philosophical reason to argue for the immortality of the soul and reward and punishment in the afterlife. If Mendelssohn’s reading is persuasive, his own Jewish readers will see that revealed law remains binding even after the end of the Davidic kingship. Revealed law is not incompatible with philosophic reason in the modern world because Israel’s first great philosopher, Solomon, had composed a philosophic treatise in order to strengthen “the words of Torah” with which he begins and ends his treatise. Is this an anachronistic reading of Ecclesiastes? Yes and no. It raises questions that emerge millennia after the text’s composition with Spinoza and Warburton and the deists, but it is intended to enter into the very heart of the text’s own horizon of questioning. It is definitely, therefore, a “devotionist” reading. The fuller defense of Mendelssohn’s reading as not anachronistic, or not anachronistic in the normal sense of the word, comes via Leo Strauss. Strauss will argue that the question which Mendelssohn is bringing to Solomon’s text—what is the relationship between revealed law and philosophy—is in fact the only legitimate question with which to begin an exegesis of any Jewish philosopher (assuming, with Mendelssohn, that Solomon is the author of Ecclesiastes and that he is writing as a philosopher-king in that text). Leo Strauss’s Essay, “How to Study Medieval Philosophy” Strauss’s essay, “How to Study Medieval Philosophy,” was composed in 1944 as a lecture for a biblical and post-biblical studies conference. It was published in two slightly different versions, in 1989 and 1996. It has been republished in a carefully edited new and final version in Kenneth Green’s 2013 collection of the complete writings of Strauss on Maimonides. It was written in English. It is only fourteen pages in length in the Green volume. It begins by asking what it means to pursue a historical understanding of

68  Bruce Rosenstock medieval philosophy. The historical understanding of a past thinker requires that the historian do no more and no less than attempt to understand the earlier philosopher as he understood himself, as he understood his own intentions in writing what he wrote. This is the only possible way to attain what Strauss calls “objectivity” in historical studies. While it is true that a certain philosopher or text will be interpreted differently at different times, these varying and even infinitely varying interpretations do not mean that the author, unless he was “muddle-headed,” did not have a clear idea about what he wanted to say. This is what the historian of philosophy should be concerned about understanding the past author as he understood himself. This is major thesis of Strauss’s essay. The problem that Strauss is pointing to is not merely that a historian today might believe that they are closer to the truth than the earlier text was, but that they can identify a continuous tradition from the earlier text to the present. Strauss denies, for example, that there is a continuous tradition of philosophical reflection on topics such as aesthetics, history, or even religion. The first desideratum of the objective historian is to become conscious of the ruptures in the tradition she believes is simply evolving or progressing. That the modern period is constituted by a rupture with the past is the insight of the historicism of the romantic school, but Strauss faults it for drawing the wrong conclusion. The historicist does have the intention of understanding past authors as they understood themselves, and she is aware that her present moment is divided from the past by a gulf that will require all her self-critical diligence if she is not going to bring her present assumptions to her study of the past. Strauss does not dispute the historicist insight that the modern period is not a continuous development out of the past. In his “Preface to the English Translation” of Spinoza’s Critique of Religion, Strauss describes the rupture between the modern present and the medieval past in his critique of Hermann Cohen’s interpretation of Spinoza. Strauss argues that Cohen assumes that his own liberal Judaism represents a continuous development out of the orthodoxy that Spinoza confronted. Cohen criticized Spinoza for completely denying the relevance of Jewish existence in the modern world and not having become the first liberal Jew (modeling the precepts of ethical monotheism), or for not at least defending Judaism on liberal political principles, rather than embracing the moral teachings of Jesus and saying only negative things about Judaism. Strauss criticizes Cohen for thinking that liberal Judaism is the natural development of Judaism in the modern era and for believing that Spinoza was certainly right to think that orthodoxy’s day was over. “One may say that in his critique of Spinoza Cohen commits the typical mistake of the conservative, which consists in concealing the fact that the continuous and changing tradition which he cherishes so greatly could never have come into being … without discontinuities, revolutions, and sacrileges committed at the beginning of the cherished tradition and at least silently repeated in its course.” It is perhaps confusing to hear liberal progressivism described as “conservative,” but Strauss is saying that both the conservative

Philosophy 69 and the liberal assume that their inheritance of the past is the “natural” one, the one that either best preserves an unchanging past or best preserves the past’s natural growth into the present. What both the conservative and the liberal share is the assumption that the present is not divided from the past by “discontinuities, revolutions, and sacrileges.” There is a lesson here both for “devotionists” and “relativists”: neither has access to the past until their rupture with it is acknowledged. This may sound like Strauss is defending historicism, but he is not. Strauss accepts the insight of the historicist school, that the continuity of any present group of exegetes who claims roots in the medieval period (as preserving its unchanging core or as inheriting its progressivism) is largely a fabrication. This is why he says so emphatically, “The student of medieval philosophy is a modern man. Whether he knows it or not, he is under the influence of modern philosophy” (HSMP, 105). The historicist is fully conscious of the influence of modern (post-Spinoza) philosophy, but concludes that each era possesses an equal claim to the truth, and that therefore each era should be understood within its own proper horizon. This means that each era’s truths are truths that make sense only for that era, within its horizon of understanding. Strauss’s criticism of historicism is that it cannot possibly understand an era that precisely claims to possess truths that are not bound to one era but that are transhistorical in nature. The historicist therefore cannot understand the medieval philosopher as he understands himself. But neither can the devotionist. Let me recapitulate. Strauss’s essay can be read as an attack on both relativists and devotionists in their claims to provide a historical understanding of medieval Jewish texts. For different reasons, both camps are divided from the texts they study because they have not freed their thought from its modern assumptions. These assumptions reflect a rupture with the past. So, how can a historian begin to understand a medieval author? How can the historian free her mind? Strauss argues that the first step toward freedom of mind is to assume that the medieval author might understand the topic better than the contemporary historian, that the past author’s views might be true. The only way to entertain the possibility that the author one is studying might have the truth is to accept that a transhistorical truth is possible, and that it is possible for human beings in history to be situated closer or farther from it. Strauss’s argument is flawed, but it does reveal the limits of historicism. The historian who wishes to understand a text that claims to be true beyond the limits of its age should try to understand the reasons that the author advances for that claim, but this does not require the historian to be open to finding that those reasons are compelling. Even a historian who does not accept the possibility of transhistorical truth can provide a faithful account of why her text argues for a thesis that is supposed to hold true transhistorically. Having said this, we can acknowledge that Strauss does offer guidance for any historian who confronts a text that makes transhistorical claims. Strauss shows that understanding a philosopher as she understood herself requires that the historian

70  Bruce Rosenstock be open to experiencing a shift from being so distant from the truth that it is not even visible to being so close to it that one cannot willingly return to one’s prior position. Strauss puts the shift in dramatic terms, beginning with a loss of one’s bearings as they are given by the “modern signposts” with which the historian is familiar since childhood. In place of the modern signposts, including both modern philosophy and modern science and even modern civilization more generally, the “old signposts” that guided the “thinkers of old” must provide the historian’s bearings. In the transition from one set of bearings to the other, which requires a search through “heaps of dust and rubble” that have caused the signposts to become invisible, and a dismissal of the clichés about the past that are found in modern textbooks, the historian is in a condition of “utter bewilderment” and “universal doubt.” The historian “finds himself in a darkness which is illumined exclusively by his knowledge that he knows nothing” (HSMP, 98). The historian embarks on a journey whose end point is “completely hidden: he is not likely to return to the shore of his time as the same man who left it” (HSMP, 98). I would suggest that this description may aptly characterize a historian who allows herself to experience a text’s defamiliarizing power, but that experience, in itself, does not necessarily lead the historian to renounce all the assumptions about the text that informed her “journey” at its outset. But despite these reservations about Strauss’s description of the historian’s “utter bewilderment,” I want to underscore Strauss’s critique of the historicist mindset as one that unsettles the distinction between devotionist and relativist approaches to one’s historical archive. Whatever we make of Strauss’s claim that the historian must first experience “utter bewilderment” before she can understand her author as the author understands himself, there must be some way to take one’s bearings as one passes over the rupture separating modernity from the past. Strauss offers this advice: find a question that is so broad and comprehensive that it can passionately interest the present historian and the past author. The question is none other than “the question of the truth of the whole” (HSMP, 98). In other words, the only way to approach the study of a past thinker is to doubt every limited truth and search for a truth that is wide enough in its scope that no thinking human being is exempt from it. To find the philosophical question about the truth, Strauss returns to what he calls the classics. It would take me too far afield to discuss what this means in any detail, but the essay does broach the topic sufficiently for us to grasp what Strauss means by the philosophy of the classics. Strauss says that medieval Jewish philosophy was responding to the challenge of Greek philosophy. Greek philosophy, and Strauss would say that Jewish philosophers truly understood Greek philosophy, was “a way of life based on free insight, on human wisdom, alone” (HSMP, 102). The Jewish authors who turned to philosophy did so in order to defend their way of life “based on faith and obedience.” They were motivated by a need to defend “the foundations of belief” (103). Nothing less than the entire edifice of Jewish life was at stake for them. So what is the philosophical question that is the widest

Philosophy 71 one possible from which no thinking human being is exempt? We might answer that it is the question about the truth of the foundation of one’s way of life, whether this foundation consists in more than “beautiful dreams, pious wishes, awe-inspiring delusions, or emotional exaggerations” (HSMP, 103). When Jews confronted Greek philosophy, and Strauss claims that this begins with the Hellenistic era, they were challenged to think about the foundations of their way of life. Greek philosophy had previously challenged the traditional Greek way of life no less significantly in the days of Socrates and Plato, although both of them precisely defended philosophy as being necessary if the city were to be placed on firm foundations and not merely handed over to demagogues and sophists. Strauss focuses the philosophical question about the foundation of one’s way of life by saying that philosophy raises the question about the truth of the foundation of one’s way of life in the way the law is created. The foundation of a culture’s way of life consists in its written and unwritten law. Philosophy by its very nature calls this foundation into question. Philosophy’s assumption is that humans through the free exercise of their thinking can attain to the wisdom needed to create laws that can serve as the foundation of a lasting polity. Therefore, philosophy will call into question the foundation of any way of life based upon an authoritative tradition of law rather than upon a wise man’s (a philosopher’s) free thought. (And, in addition, philosophy will call into question the relativism of law to a specific culture; in other words, the philosopher will deny that nomos is merely conventional.) The Jewish way of life is based on the assumption that the wise man is not the source of the law, but rather that the only foundation of the law that can sustain a lasting way of life is divine revelation. Strauss argues that modern philosophy has abandoned this assumption in favor of a theory that bases the foundation of a lasting polity on non-rational motives, such as the fear of death in Hobbes. Modern philosophy has in effect given up the search for the foundation of the law in the free exercise of reason, except in so far as the law commands the free individual, and even here reason is understood not as pure reason but as practical reason. Strauss points out that modern philosophy has handed over to science the search for rational law, but science’s principle of value neutrality leaves society in a condition “in which wishes and prejudices have usurped the place belonging to reason” (HSMP, 104). Strauss says that in the modern period neither philosophy nor science can secure the foundations of our social order and that we have therefore exposed ourselves to allowing myth to serve this function (he wrote this in 1944, let us recall). In a sense, therefore, the pre-philosophic legitimacy of the polis, belief in the power of the gods rather than in the rational structure of the cosmos, has resurfaced. But philosophy and science had once in Greece been seen to gain their legitimacy only “before the tribunal of the city” (HSMP, 105). The wise man may question the foundations of the city’s law in the non-rational will of the mythic gods, but the wise man would never overturn that law simply because it was not fully conformant with reason. Socrates, knowing himself to be unjustly condemned to death, would

72  Bruce Rosenstock not flee from his punishment. The wise man understands that his ability to question the foundation of the law is premised upon the existence of the law. And similarly, medieval Jewish (and Muslim) philosophers seek to justify philosophy and science “before the tribunal of the law, of the Torah” (105). For Strauss, this means that Jewish and Muslim medieval philosophy is the true heir of classical philosophy and that Christian philosophy misconstrues the nature of philosophy as primarily the pure contemplation of God. Jews and Muslims, unlike Christians, understood that their way of life was based upon revealed law. The existential test of whether the way of life of philosophy was one that could be justified before the tribunal of this law was undertaken by both Jewish and Islamic philosophers. Philosophy, let us recall, is, according to Strauss, the way of life based upon human wisdom alone, and it claims to be able to be the source of the law for a lasting polity. But it must justify itself before the polity in which it seeks the freedom to pursue wisdom. For Jews and Muslims, this meant that philosophy as a way of life was justifiable only if its major claim could be reinterpreted, namely, that philosophy was able to provide the foundation upon which the law of the polity can be constructed. As Strauss points out, this reinterpretation meant turning Plato’s philosopher-king or statesman into a prophet, a person through whom the will of God is revealed. Strauss further suggests that once philosophy has found its legitimacy within the polity whose revealed law was seen to be given its form by philosopher-prophets (Moses, Muḥammad), it can only exercise its way of life by assuming exoteric and esoteric faces. Its exoteric face is the explication of the way that wisdom conforms to and supports the revealed law; its esoteric face is the continued insistence that it is wisdom and not God’s will that is the true foundation of the law, and that to contemplate God’s eternal wisdom in the universe itself is a higher form of life than to live one’s mortal life within the parameters of the revealed law. Philosophy cannot make this claim in the wider world without endangering the law upon which its existence depends. The philosopher possesses the freedom of mind that questions the foundation of the law, but also recognizes the need for a self-imposed limitation upon that freedom necessary for the continued existence of the revealed law. Strauss claims that the questions that philosophy raises in relation to the foundations of the law provide the transhistorical guideposts for any modern historian who seeks to understand both the “classical” texts of Greek philosophy as well as medieval Jewish and Islamic texts. Let me now conclude my discussion of Strauss’s “How to Study Medieval Philosophy” by returning to the binarism of relativists and devotionists that structures the essays in this volume. Strauss asks us to consider the possibility that neither group can be said to search for the historical understanding of the authors they study as the authors understood themselves. Neither group is passionately interested in the past because neither has freed its mind from its modern assumptions. Neither group experiences the “utter

Philosophy 73 bewilderment” of losing one’s bearings in the present and groping for them among the rubble of the past. Strauss believes that the only way to attain to a historical understanding of the past is to lose one’s modern mind and discover a new mind in the texts of the past. Discovering this new mind will restore one’s bearings in the present and the past. It requires that the historian’s mind open itself to a question that is wide enough to confront the past mind and the modern mind alike. Strauss argues that this question, as it relates to Jewish authors of the past and present historians, is “Can the free exercise of human reason provide the foundations of a lasting social order based upon the law?” It might seem that in the essay “How to Study Medieval Philosophy,” Strauss has little sympathy for the side of revealed law. It is important to remember that he insists that historical understanding can only arise from an understanding of the question that the past author confronts, and a person whose way of life is entirely dictated by the law does not confront any question that might also confront the historian qua historian. The historian of medieval philosophy must be open to the question and the questioning of philosophy as a way of life, and this means that she must stand outside, insofar as she is addressed by the question of philosophy, the tradition of the law. But so must the historian of medieval philosophy ask: How does revealed law enter the picture as more than the object of unquestioning dogmatism? Does the understanding of medieval Jewish philosophy have no intrinsic relation to Judaism as a revealed law, as the way of life of obedience? I think Strauss is committed to answering No to that question. A way of life of obedience is not a way of life of philosophical questioning, but it can make room for the life of such questioning. Strauss thinks that this can only happen if philosophy justifies itself before the tribunal of the Torah and wins permission to carry on its task of searching for the foundations of the law on its own terms, although not in the full light of the public. Conclusion In conclusion, I want to say a few words about the relationship that emerges between Mendelssohn and Strauss at the end of the day. Strangely, Mendelssohn and Strauss seem quite close, not only in the question that they bring to their Jewish authors (Solomon, Maimonides) but also in their answers. The question they seek to answer is, What is the relation between revealed law and philosophical reason? Both men argue, contra Spinoza, that reason does not compel the philosopher to conclude that the traditional belief in the authority of revealed law should be abandoned by modern Jews. Both men select texts that exemplarily demonstrate how philosophical reason and obedience to revealed law can live together in a single polity. Both men recognize the historical rupture in Jewish tradition that was marked by Spinoza’s philosophical critique of the Torah’s revealed law as incompatible

74  Bruce Rosenstock with the polity of the modern state. In their own political philosophies, Mendelssohn and Strauss endorse Spinoza’s rejection of any form of this-worldly theocracy as the basis for a modern state, but they defend belief in the validity of the Torah’s revealed law as the only bulwark against the modern state’s arrogation to itself of the power of the divine sovereign, the state as “mortal god” on earth. In their anachronistic reading of Solomon (the putative author of Ecclesiastes) and Maimonides, they could be thought to take a relativist stance to the Jewish archive. On the other hand, they argue that theirs is a deeply intrachronistic approach, one that works within the essential horizon of questioning of the authors themselves. The reason that their work challenges the binarism of devotion and relativism is that it raises the possibility of a transhistorical horizon of questioning that is constituted by the very nature of human social and political existence. As Strauss puts it, human political and social existence confronts the “infinite, absolute problem” of realizing a perfect “contradiction-free” order out of finite, contradiction-riddled beings. Perhaps Strauss overstates his thesis. Perhaps the “infinite, absolute problem” is better described as the problem that arises from the attempt to reconcile two rather particular traditions, those that go by the names of “Athens” and “Jerusalem.” But even though we may wish to situate Strauss’s “infinite” problem in this particular historical conjunction of traditions, we may still agree with Strauss that this problem, even if it is not strictly the case that it is transhistorical, has been consequential across the span of Jewish history since at least the time of the Maccabees. It therefore makes sense that the Jewish archive troubles any single methodological approach, whether devotionist or relativist. I have tried to show that Mendelssohn and Strauss, precisely because of their sensitivity to the hermeneutic issues involved in reading Jewish philosophy, demonstrate just how troubling the Jewish archive can be. Notes 1 Moses Mendelssohn, Moses Mendelssohn’s Hebrew Writings, ed. D.J. Sorkin, trans. E. Breuer (New Haven: Yale University Press, 2018), 1. Hereafter MMHW. 2 In his earlier book on Mendelssohn, Sorkin writes, for example, that in the commentary on Ecclesiastes, “Mendelssohn tried to revive the medieval Jewish exegetical tradition that focused on the text’s literal meaning.” D. Sorkin, Moses Mendelssohn and the Religious Tradition (Berkeley: University of California Press, 1996), 37. 3 My argument complicates the recent study by Elias Sacks of the appropriation of Mendelssohn’s exegetical method in his Ecclesiastes commentary by Nachman Krochmal. Sacks claims that Krochmal repurposed Mendelssohn’s reliance on the peshat (literal) (see prior footnote) for the political goal of the renewal of exilic Jewish national life. Krochmal may have had this intention in mind when he adopted Mendelssohn’s apparent exegetical conservatism for his more radical political agenda, but I believe that Mendelssohn also had the contemporary situation of world Jewry in mind when he wrote his commentary. I argue in this essay that Mendelssohn sought to show that Qohelet, when read through the lens of a traditional hermeneutics that privileges the literal reading, is consistent both with

Philosophy 75 philosophical rationality and with the continued observance of revealed Torah law. See E. Sacks, “Exegesis and Politics between East and West: Nachman Krochmal, Moses Mendelssohn, and Modern Jewish Thought,” Harvard Theological Review 114:4 (2021), 508–535. 4 Benedictus de Spinoza, Theological-political treatise, ed. J.I. Israel, trans. M. Silverthorne (New York: Cambridge University Press, 2015). 5 For an excellent collection of essays addressed to the question of whether Leo Strauss provided a convincing defense of revealed law against Spinoza’s arguments that revealed law no longer applies to the Jewish people in the absence of a Jewish theocratic state (the essayists say “No”), see J. Bloom, A. Goldstein, and G. Student (eds.) Strauss, Spinoza, and Sinai: Orthodox Judaism and Modern Questions of Faith (New York: Kodesh Press, 2022). What the essays clearly demonstrate is that Strauss is definitely not a devotionist, if we ask those who see themselves as such. Paul Franks’s essay comes closest to responding to Strauss’s search for a way to get beyond the limits of historicism and find a cognitive access to transhistorical questions. For Franks, this cognitive access is supplied by the I-Thou relationship of someone who enters into covenantal relationship with the God of the Torah. Although Strauss, as Franks points out (47, n.33), would not accept the dialogic relationship as having cognitive value, I believe that Strauss’s claim that philosophical reason must rely upon covenantally-based law for its survival, which I discuss below, is a political-theological version of Franks’s thesis. See P. Franks, “Reason, Faith, and the Overcoming of Shame: Can Maimonides still serve as a model of inquiry into the rationality of Jewish belief?,” in Strauss, Spinoza, and Sinai, 33–48. What all the essays in the volume have in common is the assumption that Strauss wanted to supply a reason for an individual to choose to believe in and obey Sinaitic revealed law. My argument in this essay is that Strauss wanted to supply a reason for why the pursuit of philosophy, a pursuit that, properly understood, seeks a transhistorical Truth, is only possible within the framework of a social-political communal life grounded in revealed law. The philosopher as an individual can choose to believe in the revealed law, but qua philosopher she is only rationally obligated to acknowledge that her use of reason is conditioned by the existence of her community’s belief in and obedience to revealed law. Her reason, Strauss further argues, cannot refute the possibility that what the community believes is revealed has in fact been revealed and is not merely a historically limited social construction. Thus, Strauss’s arguments are not about individual belief, but about the place of the communal belief in revealed law in making the pursuit of philosophy possible. For an exposition of Strauss’s concern with setting philosophical reason within the framework of revealed law, see L. Batnitzky, Leo Strauss and Emmanuel Levinas: Philosophy and the Politics of Revelation (Cambridge: Cambridge University Press, 2006). 6 J. Assmann, “Political Theology: Religion as Legitimizing Fiction in Antique and Early Modern Critique,” in B. Giesen and D. Šuber (eds.) Religion and Politics: Cultural Perspectives (Leiden: Brill, 2005), 196. 7 M. Mendelssohn, Jerusalem, or, On Religious Power and Judaism, trans. A. Arkush (Hanover: Brandeis University Press, 1983). 8 L. Strauss, Leo Strauss on Maimonides: The Complete Writings (The University of Chicago Press, 2013), 91–116. I will refer to the essay hereafter as HSMP. 9 L. Strauss, Spinoza’s Critique of Religion (University of Chicago Press, 1996), 1. 10 Strauss, 6. 11 Strauss, 6. 12 W. Warburton, The Divine Legation of Moses Demonstrated: In Nine Books (London: Printed for A. Millar, and J. and R. Tonson, 1766). 13 Assmann, “Political Theology: Religion as a Legitimizing Fiction in Antique and Early Modern Critique,” 198.

76  Bruce Rosenstock 4 F.E. Manuel, “Israel and the Enlightenment,” Daedalus (1982), 33–52. 1 15 See, for example, G. Freudenthal, “Moses Mendelssohn: Iconoclast,” in Moses Mendelssohn’s Metaphysics and Aesthetics (Berlin: Springer, 2011), 365–68. 16 T. Preston and M. Mendelssohn, Qohelet: The Hebrew Text, and a Latin Version of the Book of Solomon, Called Ecclesiastes: With Original Notes, Philological and Exegetical, and a Translation of the Commentary of Mendlessohn [Sic] from the Rabbinic Hebrew: Also a Newly Arranged English Version of Ecclesiastes, with Introductory Analyses of the Sections, to Which Is Prefixed a Preliminary Dissertation (Cambridge: John W. Parker; J. & J.J. Deighton, 1845). 17 Preston and Mendelssohn, 28.

3

History Devotionist Textual Scholarship and Historical Consciousness in Early Modern Responsa Tamara Morsel-Eisenberg

Editors’ note How does history as a discipline and a way of seeing the world look different when we question its relationship to devotion and relativism? Or, what happens when we dig into the place and conception of history in pre-modern sources of Jewish law? Tamara Morsel-Eisenberg asks and answers precisely these questions here, by focusing on the role of historical thinking in a rabbinic legal opinion [responsum], of Rabbi Yair Ḥayim Bacharach (1638–1702). Morsel-Eisenberg begins from the premise that we commonly equate history with relativism. That is, we see history through the lens of its nineteenth-century rise as an academic, purportedly scientific discipline that helped to shape the Wissenschaft des Judentums. Thus by definition history is perceived as threatening to devotion, here understood as traditional religious belief and practice. In this paradigm, we assume that history means a kind of relativist, critical contextualization, opposed to the devotionist’s belief in the timeless truth of Jewish texts or Jewish law. Yet in responding to a question about the danger of the qatlanit, or “lethal woman” Rabbi Bacharach employs an argument about historical context for devotional purposes. In order to defend the authority of the Zohar as a source for greater leniency in this case, Bacharach describes rabbinic knowledge of the Zohar as only post-dating the rediscovery and printing of the document. This is important because it places knowledge of the Zohar well after the time of the thirteenth-century Rabbi Asher ben Yeḥiel (the Rosh), with whom Bacharach takes issue in his ruling. In this manner, Morsel-Eisenberg insists that modernist conceptions of history have impoverished our understanding of the multiplicity of ways that historical thinking could relate to devotion and relativism across a wider conceptual and chronological canvas. In order to read the meaning of history for the Rabbinic

DOI: 10.4324/9781003364078-4

78  Tamara Morsel-Eisenberg tradition as it has evolved over time, one needs to expand the canon of sources on historical thinking, to include pre-modern conceptions of history on the part of the rabbis themselves. By the same token, only by regarding the resort to history on the part of a rabbi like Bacharach as part of a warm conversation with an internal logic familiar to its contemporary readers—rather than as a radical or heretical choice—can we appreciate the actual significance of this rhetorical move.

,‫ אוהבת תורה ויראת ה׳‬,‫אשה משכלת‬,)1921-2020( ‫מוקדש לזכרה של ״דודה״ לאה נוסבאום ז״ל‬ .‫אשר הוקירה את מחקר ההיסטוריה היהודית ואהבה לדון עמי בו‬

Introduction In advance of the conference that launched the present volume, one of the editors sent the participants an eloquent description of the primary problem on which our discussions would center: A chasm separates many scholars of Jewish studies into two broad categories. Some, whom we might term relativists or contextualists, emphasize wider social and cultural contexts in which the Jewish experience has unfolded. These scholars tend to enrich their research by placing their object of study within wider conceptual and theoretical frameworks. A second group, whom we might call devotionists or textualists, focuses on Jewish texts and traditions. These scholars possess exceptional knowledge of particular linguistic and cultural codes, and frequently of ritual experiences, that grants a kind of deeper-level access to these texts and traditions. Doubtlessly, these lines accurately describe this chasm as it is often understood in our own time. The following pages will examine this chasm from the perspective of the discipline of history and the figure of the historian as the contextualist par excellence. In turn, a historically conscious examination of the historian’s craft will attempt not only to narrow the chasm between textualism and contextualism but also to call into question the very premise of the chasm. If one had to conjure up the “most contextual of contextualists,” many would immediately think of the historian. This is definitely the case for the confrontation between halakhah and the historical perspective. Whereas the devotionist experiences halakhah as the word of the living God, authoritative, eternally binding, and unchanging, the historian is the ultimate relativist, providing every religious text with its historical context. Jewish historians have often identified the occupation with history as a fundamental

History 79 break with the rabbinic tradition. Yosef Hayim Yerushalmi famously called Jewish history “the faith of fallen Jews.”1 In From Text to Context: The Turn to History in Modern Judaism, Ismar Schorsch considered the decline of the traditional rabbi in favor of a new type of leader in the nineteenth century to be directly related to the establishment of Jewish historical study in the form of the Verein für Kultur und Wissenschaft der Juden.2 In that particular nineteenth-century environment, the historical study of Judaism was elevated above all other modes of scholarly inquiry and, for its proponents, the historical critical study of Judaism did indeed substitute a religious approach to Judaism. One could term this absolute deference to history historicism. The historicist scholar assigns prime explanatory value to context rather than text and privileges the cultural, social, political, economic, intellectual, and material elements of this context at the expense of the text’s absolute authority and its timeless aspirations. All too often, this very specific moment in Jewish scholarship is taken to represent a universal dichotomy between religious history and historical study. But must we consider history to be tied so inextricably with a relativist viewpoint that menaces sacred traditions and threatens the devotionist’s textual approach? Is historicism the only possible historical approach for scholars? Or are there other ways to engage in historical inquiry; ways that do not necessarily exclude devotionism? In order to question this assumption, I will approach the problem not from our contemporary vantage point, but, rather, from the other side of a historical divide: By considering contextualism and historical consciousness before the establishment of history as the scientific discipline into which it eventually developed. A halakhic responsum from the early modern period shows a scholar of halakhah who engages in undeniably historical thinking when studying religious texts. As this source illustrates, scholarly attunement to history has existed prior to its nineteenth-century incarnation. The particular type of historical perspective that we tend to associate with historical consciousness writ large is in itself a historical phenomenon of the nineteenth century rather than the universal form of historical consciousness. While this characterization of the historical attitude as antithetical to religious devotion may be accurate when it comes to nineteenth-century historians such as the proponents of Wissenschaft studied by Schorsch, it is misleading to maintain this characterization for other types of historical attitudes that both preceded and succeeded this very specific moment in the science of history. Historical consciousness manifests in various ways, and the historical consciousness of the early modern scholar—or, indeed, of the postmodernist historian—does not interact with devotionism in the same way as nineteenthcentury historicism does.3 These earlier modes of historical thinking are not necessarily opposed to devotionism. The source discussed in this chapter allows us to inquire into the type of historical consciousness that its author brings to the task, and the ways in which this type of historical consciousness

80  Tamara Morsel-Eisenberg affects his religious scholarship. This scholar’s historical consciousness is a form of contextualism which nevertheless forms an integral part of his intellectual toolkit as a religious, devotionist scholar. Rather than speaking of an undifferentiated historical perspective that is necessarily opposed to religious attitudes, we can instead ask what type of historical attitude a scholar employs, and inquire how that particular type of contextualism interacts with religious approaches. Instances in which halakhah conflicts with teachings from the Zohar provide us with a particularly intriguing case to examine this complex issue as it plays out in the early modern context. The existence of a Jewish mystical tradition had always been an accepted fact in the rabbinical milieu, and zoharic texts and fragments attributed to Rabbi Simeon bar Yoḥai had been circulating for centuries. However, the specific contents and boundaries of this corpus had remained hazy, especially since these teachings had often been passed on orally, and the esoteric nature of this lore shrouded it in secrecy. Around the middle of the sixteenth century, however, the Zohar was printed (in 1558, in Mantua and in Cremona), and a canon of these kabbalistic texts thus came closer than ever to being clearly defined and publicized. These texts were, thus, on the one hand, assumed to be part of a very old and sacred tradition, but, on the other hand, the Zohar emerged on the scene as a defined book only relatively recently and very conspicuously. Unlike other texts, which already had their long-established place within the halakhic textual tradition, the Zohar, as a “newly discovered ancient text,” did not have a comparable traditional location as a written text within the halakhic scholarly world. As a result, rabbinic approaches to the Zohar, especially attempts to integrate its texts within the authoritative canon with the full knowledge that earlier authorities had no access to these texts, provide an enlightening glimpse into the intersection of historical consciousness and halakhah, and thus of devotionists thinking contextually. I will provide one such example: A responsum from the seventeenthcentury Rabbi Yair Ḥayim Bacharach, the author of Shut Ḥavot Yair (Frankfurt, 1699), in which he is enchanted by his own interpretation of a halakhic prohibition inspired by the Zohar, although he is fully aware that his insight does not really square with the traditional interpretations of this halakhah. R. Bacharach’s historical consciousness of the Zohar’s reception, so it appears, by no means contradicted his devotional attitude to this work.4 This example serves to complicate the distinctions between contextualism and textualism, history and religious scholarship, relativism and devotion. While this responsum illustrates the lack of contradiction between contextualism and devotionism in particularly explicit ways, it is by no means exceptional.5 As scholars of texts from the past, rabbis use a plethora of tools to make sense of the texts they encounter, and this toolkit frequently includes a turn to historical context. Such historical inquiries can coexist with, and even serve, a variety of ideological convictions, including devotionist ones. We might assume that ideological outlooks are the result

History 81 of conclusions gained from investigating history. But historical inquiry is not necessarily the origin of ideology.6 Historical perspectives can have different places in a scholar’s approach, and it is only in certain positions that historicism drives ideology. The variety of history practiced by early modern scholars was often positioned differently in their intellectual toolkit than we might expect. These various ways of engaging historical inquiry are not inferior to absolute historicism, they are different approaches in kind. It is perhaps only in the wake of nineteenth-century Wissenschaft and, as Schorsch pointed out, the turn away from traditional Judaism that came along with it that the historical attitude began to be considered a fraught method for religious scholars. Ḥavot Yair and the Lethal Woman

Rabbi Yair Ḥayim Bacharach lived between 1638 and 1702 in the German part of what is known to Jewish historians as Ashkenaz, the area of Europe comprising the Jewish communities with medieval origins in the Rhineland, who had spread from Amsterdam in the west through Italy in the south and to Lithuania in the east. He was a descendant of a prominent rabbinic family from the German area, and published only one work in his lifetime, a collection of Sheʼelot Uteshuvot (lit.: “Questions-and-Answers,” or ShUT for short), known in English as responsa. He named the responsa ShUT Ḥavot Yair, and published it in Frankfurt in 1699 (see Figures 3.A1 and 3.A2 in Appendix). The work is based on R. Bacharach’s responses to questions addressed to him, usually in letter form.7 Rabbi Bacharach’s discussions in the responsa touch upon everything from dietary laws through Kabbalah, monetary disputes, and slander.8 He discusses whether one is to rely upon magical incantations to cure diseases;9 what to do with non-kosher meat; and tackles issues involving marriage, inheritance, taxes, pedagogy, and adultery.10 Beyond his vast talmudic knowledge and his control of the subsequent halakhic literature, Rabbi Bacharach makes reference to locally transmitted Ashkenazic customs and to the Zohar,11 as well as to sources of knowledge such as Euclid12 and Socrates.13 Perhaps because of his eclectic range of sources, historians have branded him in a number of different ways, ranging from an exceptional, misunderstood “forerunner of the study of Judaism in a historical and scientific spirit”14 to the prototypical seventeenth-century German rabbi.15 Rabbi Bacharach opened responsum 197 by paraphrasing a question that he was asked by a man who received a promising match-prospect for his son (see Appendix for full responsum in original Hebrew and English translation). While the man was interested in pursuing the match, he was also worried, because this maiden had already been matched with someone else, who had died a few months after the engagement, due to intestinal sickness. The young woman in question went on to be matched to yet another young man who died about three months before the time of the wedding, due to a very

82  Tamara Morsel-Eisenberg contagious headache that was spreading at that time. At this point, the questioner feared that it was the mazal (astrological sign) of the prospective bride that caused the deaths of her fiancées. In the Talmud,16 a woman widowed twice in succession is considered a qatlanit (lit. a “lethal woman”), after which she is deemed dangerous, and marrying her is prohibited.17 The prohibition to marry her rests in the gray area of sakanah (danger), which is not exactly a legal category, nor is it entirely devoid of halakhic significance. The marriage is off limits because of the danger to life, not for any direct halakhic reason. On the other hand, it is the halakha, citing the idea that “danger is more severe than prohibitions” that forbids one from taking this risk.18 After paraphrasing the question, Rabbi Bacharach started his answer by expressing his reluctance to rule about such life-and-death issues: And concerning the thing you have asked my opinion and advice about, it is very difficult for me to advise you considering these things of which the reasons, rationale and essence are hidden, and it is an issue that can endanger life. In A. Zar. [30a] the sages say “Are you coming to reason about issues of danger”, that is, as a rhetorical question.19 Despite these misgivings, R. Bacharach went ahead to present a rather risky answer: But this I will say, if this would have happened to my son—had they proposed such a match for him—I would not have rejected it, because I have another rationale and another reason about this, although there is no other person who has remembered it.20 Rabbi Bacharach thus stated that he was in possession of a unique interpretation of the laws of qatlanit, which led him not to fear this type of case. He then proceeded in an attempt to distill how the principle of qatlanit functions, first discussing a medieval interpretation of qatlanit and attempting to tease out what it is, exactly, that endangers the prospective husband. Rabbi Asher ben Yeḥiel, the medieval scholar also known by his acronym “Rosh,” was asked whether a male version of this status was conceivable. If a husband had two wives who successively died during pregnancy, would he be considered “lethal”? Rosh’s answer contains an explanation of the dynamics of qatlanit in which R. Bacharach was interested: And this is the statement of Rabbi Asher ben Yeḥiel [Responsa of the Rosh, principle 53] that the reason why there is no q’peida (legal objection)21 for a husband to marry two or more wives in succession is because a husband is halakhically responsible for the sustenance of his wife, which is why a wife who had two husbands die in succession is considered to have a bad mazal, seeing as it apparently decreed that she will not have abundant sustenance from others.22

History 83 According to the talmudic opinions that Jews are subject to the influence of their astrological signs, mazal determines several things, such as intelligence and sustenance.23 For married women, sustenance is channeled via their husbands, because the husband is halakhically required to provide for his wife. Therefore, if a woman’s husbands die, it is a sign that the wife has a bad mazal, preventing her from being properly fed and taken care of by causing death to her husbands. If the status of qatlanit is indeed carried via the wife’s mazal of sustenance, Rabbi Bacharach conjectured, the danger would only start at the point at which a man is halakhically required to provide his wife with food and clothes, that is, marriage. If that is indeed the case, the questioner here had no need to worry, seeing as both previous deaths occurred before marriage and could thus not have been mazal-related. However, Rabbi Bacharach was hesitant to recommend the marriage based on this theory, and pointed out ways in which a woman’s negative mazal could cause a husband to die even prior to the wedding. Assuming that different degrees of bad mazal exist, a very high degree of such bad mazal could very well kill the betrothed before his marriage, in order to ensure that his future wife never benefit from his sustenance, even for the briefest moment after their wedding. It would seem that, according to this reason, there is no basis to fear the mere connection as a kallah (betrothed, prior to marriage) because Rabbi Asher’s reason only applies to a woman who is entitled to her sustenance from her husband (i.e., after marriage), which is not the case for an engaged woman or a kallah who is not entitled to sustenance from her betrothed. But this is not enough to reject the suspicion […] even taking into consideration the reason of Rabbi Asher [Rosh], one could argue that the purpose of being engaged is marriage, and perhaps her mazal decreed that she would never even enjoy the slightest of sustenance from her future husband, due to the extreme level of her bad mazal, because of course there could be different degrees [within a lethal mazal], after all, sometimes the husband does stay alive for a few years after the marriage and she still has the classification of qatlanit [once he dies], and therefore we are forced to reason that sometimes the mazal is extremely, terribly, awfully bad and sometimes it is lighter, […] thus, there is room to separating between a lot [of mazal] and little [mazal] …24 After having thus applied the current case to Rosh’s logic, Rabbi Bacharach went on to later sources. He referred to Rabbi Karo’s code, the sixteenthcentury Shulḥan Arukh, together with its Ashkenazic gloss, Rabbi Moshe Isserles’s Mapah. Rabbi Bacharach inquired into these both as halakhic sources, and as a way to gauge the accepted custom. Rabbi Isserles noted that, in Ashkenaz, the issue of qatlanit was widely disregarded. The source of his observation comes from the responsa of Rabbi Yacov Weil (1390–1453), who lived in in Nuremberg, among other places, over a century earlier. Rabbi Weil

84  Tamara Morsel-Eisenberg wrote a responsum on the issue of qatlanit, in which he mentioned that people did not seem to be very cautious about this particular risk, advancing several explanations for why it was disregarded: “some say that one of them [the husbands] was old and is therefore not included in the count, or if they died of the runs, which were unrelated, it is similarly not counted.”25 Ultimately, Rabbi Weil did not find any justification for this disregard that he deemed satisfactory. Rabbi Isserles, for his part, mentions the rationale for disregarding qatlanit from Rabbi Weil’s responsum without bringing up the fact that Rabbi Weil considered the reasonings faulty. As Rabbi Isserles wrote, on the basis of Rabbi Weil’s explanation, qatlanit was often ignored because many only considered it a problem if the husband died for no apparent reason. As soon as a logical explanation for the death could be found, there was no longer any suspicion of qatlanit. While Rabbi Bacharach accepts Rabbi Isserles’s description of the situation, and the fact that qatlanit was often ignored, he rejects the latter’s explanation for the reason behind the current custom: And in my humble opinion it seems, after the custom has spread that many are lenient on these issues as Rabbi Moshe Isserles wrote [Shulḥan Arukh, Even Haʻezer, Ishut #9]… ‘we do not fear this.’ This custom has already spread and we do not protest those who do this, and the reason with which Rabbi Isserles justifies this lenience is that a woman is considered qatlanit only in the specific case when the husbands die independently, not because of plague or a fall or anything of the sort. However, we should question this, because this is not enough of a reason [to explain the custom], since we see those who are lenient even when he does die independently [for no apparent reason]. According to Rabbi Bacharach, the custom to disregard qatlanit mainly presents itself in cases in which the husbands die after having been married for several years. This makes room for him to finally introduce his own take on how qatlanit functions. His theory will primarily account for cases in which husbands die closely after marriage to the “lethal” woman. Therefore, it seems to me that the reason for the spread of this leniency is because there is no room for reasoning that if her husband lived with her several years after the marriage and died only later, she should be considered a qatlanit. The real reasoning is that the explanation and essence of the qatlanit is similar to the death of sons after circumcision [according to halakhah if two sons of the same person have died from circumcision-related diseases, it is forbidden to circumcise subsequent sons out of fear that they might die as well] and just as, in that case, [the danger] is a result of the circumcision itself, here too, the reason for a woman who married a man, and, shortly thereafter, he becomes weak and deteriorates until he dies [is because of the element that occurs only at the stage of marriage].26

History 85 In an analogy to the case of sakanah for circumcision, in which a couple with two sons who died from the procedure are, from then on, prohibited to circumcise, Rabbi Bacharach insists that the present form of sakanah must likewise be caused directly via the marriage itself, rather than through an indirect path of mazal. Just as the circumcision is the cause of danger in the first case, Rabbi Bacharach ventured, in the case of marriage, that element is sexual intercourse: “And it appears that his having had intercourse with her is what caused his weakness and sickness, and so, too with the second husband, as it sometimes indeed happened…”27 Apparently, it was known that grooms would sometimes die after having intercourse with their brides for the first time. However, Rabbi Bacharach added, not even all of these cases are related to qatlanit, “most of these cases are due to magic: as the targum adds, concerning Deut. 24:6.”28 The passage in question, “No man shall take the lower or the upper millstone in pledge: for he takes a man’s living in pledge,” is explained by Targum Yerushalmi as follows: “And a man shall not asar (forbid/bind) brides and grooms by means of magic, because he is afflicting the soul that will emerge from them in the future.”29 The idea of binding was related to so-called “knot-magic,” which considered anything bound or tied as harboring negative restrictive power. In Germany, this was particularly related to preventing “performance of the marriage act,” or Nestelknüpfen, as Joshua Trachtenberg explained.30 Thus, this aside, in which Rabbi Bacharach seems to subscribe to the common belief at the time about magic being a main source for wedding-night misfortunes, also emphasizes that magic (and conceivably mazal as well) were all plausible causes of death to Rabbi Bacharach’s thinking. Although these were all conceivable causes of death, he did not consider them part of his theory of qatlanit, which he wished to explain in yet another way. Leaving aside magic, Rabbi Bacharach returned to his explanation for the phenomenon of qatlanit: “Our sages knew that sometimes, intercourse with a special specific woman causes a weakness that does not return to its strength.”31 For the worried father in Rabbi Bacharach’s case, of course, this line of reasoning meant that the match could be pursued with a quiet heart, seeing as both of the previous fiancés never married the young woman and, thus, never had intercourse with her, since that would only have happened at the wedding night. Rabbi Bacharach, however, was hesitant to endorse such a risky conclusion wholeheartedly, without issuing a grave warning. He quickly added: “And God save us from being lenient and ruling that it is permitted because of this rationale [that qatlanit is due to intercourse]! I only spoke of this as a possibility…” Despite this warning, which signaled to the reader that he is not about to make any rash decisions, Rabbi Bacharach nonetheless continued to explain why this understanding of qatlanit made eminent sense. This time, however, he invoked Kabbalah: “But, in the words of the sages of the truth [Kabbalah], and its source is in the Zohar, […] there is a wonderful and mysterious

86  Tamara Morsel-Eisenberg reason according to sod (secrets, mystery).”32 This mystery, it turns out, relates to what happens to souls during intercourse: “according to this reason, there is more danger for someone who marries the widow of a man who was great in scholarship or piety (something similar is also mentioned in Maʻavar Yaboq),33 because he spirit that he has left within his wife will defeat and chase away the other doubtlessly, and vice versa…”34 The mystical theory claimed that the soul of the departed husband would remain within his wife after they had intercourse. When this widow subsequently had sexual relations with her new husband, these two souls would face off. Depending on whose soul was greater, the deceased husband could defeat the new husband, or, if the new husband measured up, the departed husband’s soul would leave him alone. While this explanation appealed to Rabbi Bacharach’s sensibilities, it was not, in fact, the best fit for the halakhic concept of qatlanit. He is aware of this, and explains that, “by this reasoning, there is danger in relation to any widow, as is indeed mentioned in the book Novlot Ḥokhmah [by Yosef Delmedigo], see there.”35 As Rabbi Bacharach correctly pointed out, the zoharic explanation was dependent on the relative spiritual greatness of the husbands, regardless of whether the woman had been married once or twice. This did not square well with the concept of qatlanit, which prohibited marriage to a woman if she had been married twice before. In order to solve the discrepancy, R. Bacharach used the halakhic concept of ḥazakah (presumptive state), the principle that a series of repeated occurrences can place something or someone in a particular halakhic presumed status for the future: “…therefore, after the second husband dies, the widow is presumed to have the status of someone whose first husband’s spirit is victorious, and is thus likely to defeat the third husband too.”36 Given this explanation for his theory, the halakhic conclusions remain the same—the match was permitted: “And according to this reason of the Zohar, it is clear that [qatlanit] does not concern [a case]…where they were merely engaged.”37 Clearly taken with this interpretation, Rabbi Bacharach even ventured to explain cases he had previously thought to exclude from the realm of qatlanit, according to his theory. He had claimed that, when the husband remained alive for a while after marrying the qatlanit, the cause-and-effect of the qatlanit upon the husband was difficult to observe, and thus perhaps not similar to the scenario of circumcision, where the procedure clearly caused the baby’s death: [according to this interpretation], too, it is a little difficult to explain what might have happened if the husband continued to live for a while after marriage–although one could claim that a long time passed during which the two spirits were fighting each other and, ultimately the spirit of the first husband won [and the second husband dies], and so it also appears from the Zohar.38

History 87 After having given the complete explanation for his own theory, which would permit the match, R. Bacharach still urged the reader to be careful, seeing as, according to the first opinion he presented, that of Rosh, who linked qatlanit to the mazal of sustenance, there may be some room for danger even prior to marriage. When actions prescribed by the Zohar contradict other halakhic traditions, Rabbi Bacharach warned, it was not at all obvious that the Zohar takes precedence. On the contrary: And sometimes we do not rule according to Rabbi Shimon bar Yoḥai, [the presumed tannaitic author of the Zohar] and we do not behave as the Zohar mandates, as Rabbi Shlomo Luria already details in his responsum,39 cited in Maẓref Laḥokhmah, with several proofs, there are mentioned the details of things in which our custom is against that of the Zohar. All the more so when dealing with the danger of death, one should not support oneself by a reason of the Zohar to be lenient, for perhaps the reason of Rabbi Asher is true too about the simple interpretation, and both reasons exist alongside each other.40 Having placed the two rationales alongside each other, Rabbi Bacharach concluded that one could not be entirely sure which one was correct. Next, he assessed the information provided to him concerning the cause of death of the second match: The contagious headache. Here, Rabbi Bacharach, surprisingly, returns to the distinction between deaths with a clear cause and unexplained deaths, mentioned previously in the name of Rabbi Isserles. The responsum then concludes with an attempt to parallel this distinction between unexplained deaths and deaths with clear causes by a linguistic distinction between the two, the words for plague (dever) and affliction (magefah): And according to what you have written, that the second betrothed died from a headache that was then a contagious affliction, in which case there is a justification to be lenient, because it is similar to someone who died of the plague, as Rabbi Moshe Isserles mentioned in his previous remark…that in such a case she is not considered a qatlanit because of his death. And it seems that this is not only the law when dealing with the plague. The same goes for every affliction and contagious disease, and if it were not for the verse in [Ps. 91:5] “Nor for the pestilence that walketh in darkness”, I would have said that the word dever (plague) is not specifically about the pestilence, but about any lethal disease that is contagious from person to person and from household to household […] and this is not so in the case of the word magefah […] In any case, it seems there is some difference between the two [dever and magefah] because Scripture distinguishes between them in its discussion, we also pray for both separately [in the Avinu Malkeinu prayer] ‘end dever and prevent magefah’.41

88  Tamara Morsel-Eisenberg Without giving explicit encouragement to follow his theory, the conclusion of the responsum clearly communicates that Rabbi Bachrach stood behind his explanation, caution aside: Here, I have written to you what there is to say concerning this, it seems, but to adjudicate and to give practical advice to someone seeking to know how he is to act—who would stick his head to rule in such a matter that could perhaps, lead to death?!, but let us allow it to a member of Israel who already is lenient in this matter in any case, and it can be said that “he who does not take it [the evil eye] into account, it will not take account of him” [Pes. 106b] and do as you wish, and may He protect you from any evil.42 History Thus, Rabbi Bacharach started out by presenting Rabbi Asher ben Yeḥiel (Rosh)’s explanation for the halakhah of qatlanit, which is based on astronomical explanations. Then, he presented his own understanding which is based on the Zohar, claiming that the act of intercourse with a widow involves some sort of confrontation between her prior husband, who is still present within her (as a result of their sexual intercourse) and the new husband. If the earlier husband was of greater spirit, this can affect the new husband and even cause his death. This zoharic explanation is far from perfect. For one, it does not fit the halakhic structure, in which there is only danger for the third husband and onward. According to Rabbi Bacharach’s explanation, the danger would also exist for the second husband, provided the first husband was a great man. Conversely, if the third husband was greater than both previous husbands, he would be safe. Moreover, it did not accord with the traditional opinions of his predecessors, such as Rosh, and Rabbi Bacharach explicitly states that he did not contradict Rosh’s theory in a satisfactory manner, and the two could still stand side by side. Notwithstanding these minuses, Rabbi Bacharach still prefers his own reasoning, which he considers superior. In the process of reassuring the questioner of the superiority of his own argument, Rabbi Bacharach advances a historical claim: Rabbi Asher, having lived before the (re)discovery of the Zohar, could not have known the mystical reason. When he introduced his own reason, he did so as follows: “But, in the words of the sages of the truth [Kabbalah], and its source is in the Zohar, which had not yet been discovered in the days of Rabbi Asher ben Yeḥiel, as we know, there is a wonderful (also ‘mysterious’) reason according to the sod (esoteric knowledge) …”43 Clearly, Rabbi Bacharach was aware of the history of the Zohar, and its implications, namely that the Zohar was only rediscovered later, and printed in the sixteenth century, and the thirteenth-century Rosh could thus not have known about the zoharic reason. However, Rabbi Bacharach seemed to think that this historical development was, in fact, a point in favor of his interpretation over that of Rosh. Rabbi Bacharach was clearly conscious of the historical context of the sacred texts he used, and of the contingencies that history introduces. However, this

History 89 consciousness seems not to have fazed him—on the contrary, it became part of his halakhic argumentation for the superiority of his own theory. Thus, if we accept the devotionism-contextualism binary, Rabbi Bacharach seems to embody some sort of profound contradiction. He displays a very strong historical consciousness, an understanding that sacred texts, too, have a context. At the same time, however, this consciousness is combined with a desire to take these same texts completely seriously as sacred texts. This is even so in cases where the problematic sources could easily have been avoided altogether. Rabbi Bacharach was by no means pushed into an ideological corner that forced him to defend Kabbalah in this responsum. Had his attitude toward the Zohar been one of discomfort, he could easily have given the zoharic interpretations a wide berth, and proceeded on the basis of Rosh’s standard explanations. In fact, those explanations made much more sense with the halakhic structure of qatlanit. More yet, Rabbi Bacharach appeared to prefer the challenging interpretation based on the Zohar over readily acceptable alternatives that posed no such problems. The interpretation based on the Zohar thus had two points in its disfavor: Firstly, it had not been an integral part of the chain of halakhic transmission and thus did not square with the laws as they had been expounded for centuries. Secondly, the Zohar’s interpretation does not even work well to explain the basic workings of qatlanit as halakhically defined (only from the second husband on). There was thus no reason for Rabbi Bacharach to choose the Zohar’s interpretation, and even reasons to the contrary. If we consider the devotionist-contextualist binary to be absolute, Rabbi Bacharach’s insistence on using the Zohar would only have been understandable had he been the type of scholar who approaches the Zohar purely devotionally, without granting the work any history at all. In this responsum, however, Rabbi Bacharach was both fully aware of the Zohar’s historical context and, at the same time, completely devoted to the work as religious truth. If he was capable of being conscious of the Zohar’s late appearance, where were those relativist tendencies when he nonetheless chose to embrace that same interpretation despite the obvious problems that it posed by contradicting earlier traditional interpretations (such as Rosh) and by failing to explain the basic mechanics of the qatlanit phenomenon? The answer to the riddle of this figure can be found by understanding the historical context of historical study and its intellectual and cultural meaning in the early modern period, and in modern times. Wissenschaft: History as Relativism Historical attitudes were not always opposed to religious ones. The conception that a historical outlook taints religious attitudes is particular to a certain moment in the development of the discipline. The view that a historical and a devotional approach to text are incommensurable is an appropriate characterization from the perspective of the discipline of history as it developed in the nineteenth century: The academic study of Judaism started in 1819 with the establishment of Wissenschaft des Judentums in Germany. This was the climate in which Leopold von Ranke famously stated

90  Tamara Morsel-Eisenberg that history should be studied “Wie es eigentlich gewesen [ist].” In this positivistic view, history was considered an objective science, and was elevated as an ultimate arbiter of truth and, as such, history became a candidate to evaluate religious texts and dispel religious truth. Its Jewish members used history, philology, and source criticism to analyze Jewish sources. Many of them viewed their historical approach to the Jewish tradition as a substitute for a religious approach. To put it very simply, Moritz Steinschneider famously described the historical enterprise as crucial in order to give Judaism “a proper burial,” evidently thinking that Judaism had run its course and would be put to rest by historical study. Even Abraham Geiger and Zacharias Frankel, who wished to reinvent rather than bury Judaism, used their historical enterprises as a tool to move away from traditional religion. Geiger, the intellectual father of Reform Judaism, portrayed the Pharisees as having, in fact, been innovators just like him—thus using his historical study of the Pharisees as a tool to justify further innovation, in the form of Reform. Frankel, the precursor of the Conservative Movement, grounds the authority of Judaism as it has been and is practiced and interpreted throughout history, thus positing history as a source of authority in addition to Divine and eternal “pure” halakhah, thereby breaking the religious hold of the halakhic tradition and sanctioning change. As Ismar Schorsch wrote: “Frankel boldly grounded Judaism exactly in the force that challenged its integrity: history.”44 In this specific nineteenth-century school of historical study, history was indeed used to challenge the integrity of religious Judaism by figures who spearheaded explicitly anti-traditional Jewish movements. What these figures have in common is the frustration with the halakhah of traditional Judaism as something ossified and outdated, belonging to the past. The way in which they dealt with this problem, either to reinvigorate it, to bury it, or to justify changing it, was via history. The resulting movements were all bitter enemies of what later came to be called Orthodox Judaism, which reacted to and opposed those movements. In a sense, this moment can be considered the “parting of the ways” between traditional devotionalist and academic relativist scholarship, when contextual thinking was positioned as a source of authority in competition with textualism or devotionalism. Since the historical approach to Jewish texts began in the context of movements trying to change a religion which they viewed as fossilized, it is clear to their view that “shining the light of history” on their sources or “pointing out the context” would liberate a person from being too devotional, from seeing texts as being eternally authoritative—thus allowing for change. For such thinkers, historical consciousness and contextualism changed everything, implying that these texts could now mean different things than they did to their predecessors or traditionally-minded contemporaries. These figures were not merely scholars aware of historical context, they were historicists. Historical study was, for these figures, the ultimate authority. Thinking contextually was for them not simply one tool of textual interpretation but the ultimate tool. Their historical perspective

History 91 functioned as an ideology, and thus their turn to history featured as a type of conversion. They viewed the same texts as their devotionist counterparts, but in a very different way. Their run away from tradition went hand in hand with their historical tendencies. But what of pre-Wissenschaft scholars who looked at these texts? Did they not know that the halakhic sources they were dealing with had a history? Some type of historical consciousness when dealing with religious texts was obviously possible, even before the establishment of the historical approach by scholars of Wissenschaft. What weight, then, does this kind of contextualism have in the pre-Wissenschaftler’s scholarly inquiry? Antiquarianism and Humanism: Devotionist Contextualism? This chapter is not the first to interrogate Rabbi Yair Ḥayim Bacharach’s approach to Kabbalah and its history. Yet by focusing on the heretofore neglected responsum discussed here and placing it in the wider context of early modern historical writing, new answers emerge, or rather, the question itself is transformed. In an article on Bacharach’s attitude toward Kabbalah, Isadore Twersky focuses on a responsum about whether the study of Kabbalah should be prioritized.45 Twersky emphasizes that both the query and the response allude to the questionable antiquity of the Zohar. Bacharach is personally certain that Kabbalah is not as ancient as some make it out to be, and that the talmudic sages had no knowledge of Kabbalah. He compares kabbalistic teachings to an asmakhta in halakhic hermeneutics, a method of relating an existing law to a biblical allusion retroactively, as opposed to deducing a law from the biblical verse. Thus, Bacharach implies that kabbalistic truths do not come out of the ancient texts, but, rather, they are related to these texts after the fact. Twersky emphasizes the “boldness of this suggestion,” and its “radicalism,” summarizing that “[t]his argument should find its place in any study of the development of a historical sense among Jewish writers of this period.”46 The current chapter attempts to do just that (on a small scale) by analyzing Bacharach’s attitude toward the Zohar as part of his historical approach, and how this relates to his religious outlook. Rather than looking for programmatic statements about history, we examine how Bacharach’s historical sense about Kabbalah impacts an actual halakhic investigation. In a more recent article, Jay Berkovitz lists Bacharach’s attitude toward Kabbalah and the Zohar among four trends that mark him as a precursor of Wissenschaft. Berkovitz recognizes that Bacharach’s view of Kabbalah was “not uncomplicated,” but clearly considers the salient aspect of Bacharach’s approach to be his “critical distance” and “ambivalence” toward Kabbalah as a source for halakhah and ritual practice. Berkovitz characterizes Bacharach as “apprehensive towards the authority of Kabbalah,” especially where it contradicted “rationality,” and states that Bacharach “expressed doubts about the antiquity of Kabbalah” on “historical grounds,” all of which Berkovitz considers markers of Bacharach’s affinities with Haskalah ideas in general

92  Tamara Morsel-Eisenberg and Wissenschaft attitudes in particular. Berkovitz mentions the important sources in which Bacharach deals with Kabbalah (including the one Twersky treated), but the responsum discussed in the current article is not among them. This responsum, while not nearly as central as the ones Berkovitz discusses, is all the more important because it emphasizes the more complicated aspects of Bacharach’s approach toward the Kabbalah’s historicity. The added complexity of Bacharach’s approach, so we suggest, resists any attempt to align his attitude neatly with later movements like Haskalah or Wissenschaft.47 Nor will it do to ascribe this complexity to a kind of intellectual and religious split personality. On both points, it is helpful to look at historian Anthony Grafton’s description of a form of early modern criticism. Countering the impression that historical criticism was born in nineteenth century Germany, Grafton reminds us that critical approaches to text and sensitivity to anachronism have existed for as long as forged texts have: If one goes back through the dark forests of early modern learning… one discovers that many of the apparently innovative and apparently sophisticated debates over the nature and authorship of forged and pseudepigraphical texts actually reenacted scripts already written in the Alexandrian Museum or the seventeenth century University of Leiden … both their analytical methods and their substantive conclusions had been anticipated for the most part two centuries and more before them …48 Grafton also draws a helpful distinction between the self-perception of what could be termed modern versus pre-modern critics. Modern critics considered their beliefs to be the result of conclusions drawn directly from their historical investigations, a position we could term “historicism” that places history in a privileged position among the kinds of knowledge that spawn beliefs. But there exist models where the relationship between historical study and ideological convictions are positioned differently. Whereas modern critics viewed themselves as objective, criticism before that time, “was a subjective study applied to sources one wished to attack. The one forms part of philology, the other part of rhetoric; the one takes an impartial and exhaustive approach, the other a subjective and erratic one.”49 While later scholars considered their criticism to be a cutting-edge, objective, and scientific mode of thinking, the earlier critics saw what they did as a more subjective and traditional form of scholarship, led as much by their critical sensibilities as by their own religious convictions. According to this description of the self-perception of early modern critics, their work may have seemed like a precursor of modern scholarship to historians who succeeded the age of Wissenschaft, but the early modern rabbi himself might have seen his writing as an activity that is devotional and historical critical at the same time. Rabbi Bacharach, in his responsum, was thinking devotionally; but that did not exclude thinking contextually. He knew when Rosh lived and in what context, knew the books he had available, and knew the fact that the Zohar had a problematic history and had made a late appearance, and he well comprehended what this meant for his halakhic interpretation.

History 93 However, Rabbi Bacharach in fact seized upon this knowledge to propose his alternative reason, boasting that it is an interpretation that Rosh could not possibly have known. On the other hand, however, Rabbi Bacharach did not consider the historical advantage to sufficiently undo the previous reason, and he recognized that both theories were forced to coexist. Rabbi Bacharach was definitely not willing to risk halakhic transgression or—worse—mortal danger, based on his historical discovery. Instead, he suggested a structure to deal with this: His own discovery was valid, and he expressed his confidence that one could act accordingly, but Rosh’s reason remained valid as well. Here is an example of a halakhic thinker encountering history, understanding context, acknowledging it and … continuing to do just what he started. He did not need Frankel to tell him that Rosh did not have access to the Zohar. However, rather than trying to make the sort of claim we may have tended to ascribe to irrational devotionists, that Rosh knew the Zohar by divine inspiration, or that the authority of the Zohar has primacy because it is more sacred, R. Bacharach simply recognized that context matters, and acknowledged it as one of the reasons why his own approach was so unique—without any of this shaking the foundations of the validity of these texts for him in any way. Rabbi Bacharach is not an exception. Given the very particular moment in which historicism emerged as an approach that viewed history as objective and absolute, and its specific use as a foundation for non-traditional Judaism at precisely that time, the coexistence of a religious attitude and historical consciousness before this moment should be unproblematic. Rather than being an absolute feature of the historical attitude, the dangers of historical study for devotion are but the trait of a very specific approach in a very specific time and milieu. If we hold on to the premise of an eternal contextualist-textualist chasm, this figure and his scholarship seem insincere or schizophrenic. But if we understand this chasm as the product of the nineteenth century, and place R. Bacharach’s earlier brand of historical consciousness in the context of early modern scholarship, a devotionist form of contextualism emerges. This adjustment makes it possible to reconcile the attitudes of one rabbi, which first stuck us as contradictory, and encourages us to call into question the binary definitions that we had taken for granted before. *** Notes 1 Y.H. Yerushalmi, Zakhor: Jewish History and Jewish Memory (Seattle: University of Washington Press, 1996), 86. 2 I. Schorsch, From Text to Context: The turn to History in Modern Judaism (Hanover, NH: Brandeis University Press, 1994). 3 It is often such a generalization of the historical attitude and its caricature of the antidevotionist historian that underlies some contemporary approaches that describe history as universally at odds with halakha. For instance, in C.N. Saiman, Halakhah: The Rabbinic Idea of Law (Princeton: Princeton University Press, 2018), the author posits such a sharp distinction between historical inquiry and religious halakhic scholarship. Concerning this, see my discussion of the book: T. Morsel-Eisenberg, “Implications

94  Tamara Morsel-Eisenberg of The Rabbinic Idea of Law for the History of Halakhah: Dialectics, Apologetics, Fractalization?” in Villanova Law Review 64:5 (2020), 733–741. As Robert Bonfil has stated in an article that problematizes the assumptions of Yerushalmi’s Zakhor, once the definition of historiography is refined, a genuinely Jewish historiography becomes possible. This assertion is true both for premodern historical approaches as well as for postmodern ones. See R. Bonfil, “How Golden was the Age of the Renaissance in Jewish Historiography,” History and Theory 27:4 (1988), 78–102. 4 Isadore Twersky touches upon Bacharach’s historical understanding of Kabbalah in an article that deals with Bacharach’s attitude toward the study of Kabbalah more generally: See I. Twersky, “Law and Spirituality in the Seventeenth Century: A Case Study, in R. Yair Hayyim Bacharach,” in I. Twersky and B. Septimus (eds.) Jewish Thought in the Seventeenth Century (Cambridge: Harvard University Press, 1987), 447–467. In that article, Twersky’s main proof text is Bacharach, Ḥavot Yair, # 210, a responsum about whether the study of Kabbalah should be prioritized. Both the query and the response allude to the questionable antiquity of the Zohar. 5 Indeed, wherever Jewish texts are interpreted scholars will sometimes turn to historical contextualization to explain issues in the text. For an example that resembles the one in this present article in that it also brings up the historicity of the Zohar within a halakhic discussion, see my article on the eighteenth-century Rabbi Jacob Emden, “Mysticism, Rationalism, and Criticism: Rabbi Jacob Emden as an Early Modern Critic and Printer” (forthcoming, Harvard Theological Review 2021/2022). As I discuss there, Emden’s enthusiastic reception among nineteenth-century proponents of Haskalah (the Jewish Enlightenment), who promoted Wissenschaft and the broadening of education beyond traditional Jewish subjects, clearly shows how Emden’s critical historical attitude marked him—in the eyes of nineteenth-century maskilic Jews—as a precursor of their own tendencies, liberated from the ignorance of religious devotionism. However, when considered on his own terms and in an Early Modern context, we discern in Emden a genuine devotionism that is not in the least opposed to his faith in the very same texts that he criticizes and contextualizes. 6 This dynamic is not limited to rabbis. For an example from early modern scholarship outside the Jewish world, consider this quote from Richard Popkin about a Quaker Bible scholar from the same period: “None of the manuscripts now existing is a holograph manuscript written by Moses...The upshot for Fisher [Samuel Fisher (1605–1665)] is that one cannot tell whether a given manuscript or book contains the Word of God exact and entire, unless one knows independently what the Word of God is.” R.H. Popkin, “Spinoza and Bible Scholarship,” in The Cambridge Companion to Spinoza (Cambridge: Cambridge University Press, 1996), 383–407; 393. 7 On Bacharach, see D. Kaufmann, R Jair Chayim Bacharach und seine Ahnen (Trier: Sigmund Mayer, 1894); idem, “Jair Chayim Bacharach: A Biographical Sketch,” Jewish Quarterly Review 3:2 (1891), 292–313; idem, “Jair Chayim Bacharach (Concluded)” Jewish Quarterly Review 3:3 (1891), 485–536; Twersky, “Law and Spirituality”; J. Berkovitz, “The Self-Portrait of a SeventeenthCentury Posek: Between Biography and Autobiography,” in Y. Goldstein (ed.) Yosef Daʻat: Studies in Modern Jewish History in Honor of Yosef Salmon (Beer Sheva: Ben-Gurion University Press, 2010); J. Berkowitz, “Custom in the Halachic view of Rabbi Yair Chaim Bacharach,” in G. Bacon, D. Sperber, and A. Gaimani (eds.) Studies on the History of the Jews of Ashkenaz: Jubilee Album Presented to Eric Zimmer (Ramat Gan: Bar Ilan University Press, 2008). 8 Bacharach, Ḥavot Yair, #183. The edition referred to in this article is Yair Ḥayim Bacharach, ShuT Ḥavot Yair, ed. Shimon Ben-Zion HaCohen Qotes (Ramat Gan: Eked Sefarim, 2007). Whenever possible, I refer to section numbers, which are almost all identical throughout the different editions. When referring to specific page-numbers, or in case of divergences in the section-numbers, I am referring to the 2007 Ramat Gan edition.

History 95 9 Bacharach, Ḥavot Yair, #234. 10 Bacharach, Ḥavot Yair, #211. 11 Bacharach, Ḥavot Yair, #210. 12 Bacharach, Ḥavot Yair, #172 and #109. 13 Most famously, Bacharach, Ḥavot Yair, #211: “‫”אהוב סוקראט אהוב אפלטין והאמת אהוב יותר‬ [“Love Socrates, love Plato, but most of all, love truth”]. It seems as though he did not necessarily read philosophy from non-Jewish sources. When he mentions philosophy, he usually refers to works by Jewish philosophers such as Yehuda ha-Levi, Ḥasdai Crescas, and Joseph Albo, or to discussions of non-Jewish philosophy and sciences in Hebrew works by Jewish authors like Joseph Delmedigo’s Novlot Ḥokhmah and Mitzraf Laḥockhmah (see: Bikk., 7–8). He also seems to have read works by Azariah de Rossi [Aharon Jellinek, “Qorot Seder Halimmud,” (Hebrew), Bikkurim Leshnat 5’765, ed. N. Keller (Vienna: K.M. Hellman Printers, 1864), 8,15n**]. Bacharach does mention having seen Euclid and Avicenna’s Canon of Medicine in Hebrew type, Bacharach, Ḥavot Yair, #109: ‫סופדב תירושא בתכב תואופר לש יניס ןבאו סודילקא רפס יתיאר םגו‬.... [“and I also saw the book of Euclid and Avicenna’s Canon of Medicine in Ashuri Hebrew script in print...”]. 14 Kaufmann, Jair Chayim Bacharach (Concluded), 536. 15 For instance, M. Breuer, German-Jewish History in Modern Times, vol. 1 [Tradition and Enlightenment 1600–1780], ed. M.A. Meyer (New York: Columbia University Press, 1996), 213–214: “There were now quite a few outstanding scholars born in the empire as well. Only a few typical representatives can be mentioned here. [...] Yair Hayim Bacharach (1638–1702), an outstanding Talmud scholar who also possessed considerable general knowledge, was the most typical exponent of the new intellectual orientation that began to take hold among scholars in Germany.” 16 Yeb. 64b. 17 On qatlanit, see A. Grossman, “The Widow and the ‘Murderous Wife’,” in Pious and Rebellious: Jewish Women in Medieval Europe (Waltham: Brandeis University Press, 2004), 253–272, 304–305; S. Yahalom, “Scientific Knowledge in Nahmanides’ Halakhic Rulings: The Case of the ‘Joint of the Sinews’ and the ‘Killer Wife’,” in Temps i espais de la Girona jueva (Girona: Patronat del Call de Girona, 2011), 329–334; S. Weiss, “Free Choice in the Responsum of Joseph Albo: The Case of the Katlanit,” Jewish Quarterly Review, 105:4 (2015), 440–455. 18 Ḥull. 10a:. ‫“( חמירא סכנתא מאיסורא‬Danger is graver than prohibitions.”) 19 All the subsequent quotes are from Bacharach ShUT Ḥavot Yair, # 197. The translation is my own. I have maintained the original choice of words and structure as much as possible, but have added punctuation in some cases where it seemed necessary for clarity. 20 Ibid., continued. 21 The word literally means being particular, caring about or being strict about something, implying that a certain situation would be acceptable in one case, but unacceptable if that detail about which one is “particular” were different (in this case, the sex of the qatlanit). See Jastrow, ‫( קפידא‬m): minding, caring for, an intimation that you care for a thing to be exactly as you want it, a legal objection. 22 Ibid., continued. 23 Shab. 156a: ‫ מזל מעשיר‬,‫מזל מחכים‬. (“Mazal makes wise, mazal makes wealthy.”) 24 Bacharach, ShUT Ḥavot Yair, # 197, continued. 25 Weil, ShuT, §183. ‫י״א שאחד מהם זקן אינו מן המניין או היכא שמתו בחולי ההילוך בר מינן גם כן אינו מן המנין‬ (“There are those what say that if one of them is old, he is not counted, or where they died of the runs, may we be preserved, it is also not counted.”) 26 Bacharach, ShUT Ḥavot Yair, # 197, continued. 27 Ibid., continued. 28 Ibid., continued.

96  Tamara Morsel-Eisenberg 29 This is a translation of the Pentateuch into Aramaic, which was known in the Middle Ages as Targum Yerushalmi, but later accidentally attributed to the tanna Rabbi Jonathan ben Uzziel and called Targum Yonathan when it was printed. Azariah de Rossi already points out this mistake. :‫לָ א ַיְמ ְׁשּכַ ן ּגְ ַבר ֵר ַיחיָא וְ ִריכְ ָבא … וְ לָ א ֱיֶהוֵ י גְ ַבר ֲא ַסר ַח ְתנִין וְ כַ ּלִ ין ְּב ַח ְר ִׁשין ֲארּום ְנַפ ָׁשא ְדעָ ִתיד לְ ֵמ ַיפק ִמנְ הֹון הּוא ְמ ַח ֵּבל‬ Targum Yerushalmi to Deut. 24:6. (“A man should not pawn a millstone…and a man should not bind grooms and brides with spells, for he harms those that will come from them.”) 30 See J. Trachtenberg, Jewish Magic and Superstition (New York: Atheneum, 1939), 128: “The belief that anything that binds or in any way implies a binding may have a restrictive or harmful effect is widespread in ancient and modern superstition […] the most usual effect of knot-magic which, it was commonly believed, could prevent the performance of the marriage act. In medieval Germany this practice was known as Nestelknüpfen. There is at least one reference in Talmudic literature to ‘binding’ a bride and groom on the prima nox, but the general credence placed in the power of this device by medieval Jewry was due more to the example of their German neighbors than to this remark. We hear much complaint in medieval Hebrew literature about the bewitching of man and wife so that they cannot cohabit, and the word asar, ‘to bind,’ occurs more than once with the meaning ‘to tie somebody by a knot-charm so that he cannot enjoy relations with his wife.’” 31 Bacharach, ShUT Ḥavot Yair, # 197, continued. 32 Ibid., continued. 33 A book concerning death and what happens after death by Aaron Berechia of Modena, 1626. 34 Bacharach, ShUT Ḥavot Yair, # 197, continued. 35 Ibid., continued. Novlot Ḥokhmah, by Yosef Delmedigo (1591–1655), was first printed in Hanau, 1629, as part of Taalumot Ḥokhmah, which included two volumes, Maẓref Laḥokhmah and Novlot Ḥokhmah. The book also included the author’s predecessor, Elijahu Delmedigo’s Beḥinat ha-Dat. Beḥinat ha-Dat was a critique of the Zohar on a rationalist philosophical basis, written in the second half of the fifteenth century, which did not appear in print before this. The shift from Elijahu Delmedigo, the rationalist Aristotelian philosopher who criticized the Zohar, to Yosef Shlomo Delmedigo, who tried to defend kabbalah and unite it with natural philosophy (although some claim the defense was purposefully weak), represents the “mainstreaming” of Kabbalistic thought in the early modern period. For the mention of the dangerous widow (including recognition that this mystical concept had little precedent in mainstream halakhic sources and an attempt to rectify this impression), see Maẓref Laḥokhmah (Odessa, 1925), 82:  ‫ואילו הפוסקים‬...‫ הנה חכמי הקבלה מקפידים מאד כנראה בכמה מקומות בזוהר‬,‫וכן בענין הזיווג עם האלמנה‬ ‫ הגם שע״ד [על דרך] עצה טובה אז״ל בפ׳ ע״פ [על פסוק] ׳לא תבשל בקדירה‬,‫שלנו לא הזכירו מזה דבר‬ ‫ ואמר החכם בעל‬,‫ שאין כל האצבעות ולא כל הכחות שוות‬,‫שבשל בה חבירך׳ שאין לו לאדם לישא אלמנה‬ ‫ ימלט מאלמנה ושומר נפשו ירחק הימנה…הראיתיך בעיניך‬,‫להים‬-‫הנסיון ׳כל זה נסיתי בחכמה טוב לפני הא‬ .‫ והירא את דבר ה׳ חש לדברי המקובלים והמשכילים‬,‫שמעט מזער הוא הנמצא בפוסקים נגד הזהר‬ (“And so, too, when it comes to the coupling with a widow, the sages of the Kabbalah are very strict about it, as it appears from several places in the Zohar… whereas our halakhic decisors did not mention any of this, although, as good advice, our sages of blessed memory said, in the chapter ‘Eves of the Passover,’ [of Pes. 112a], ‘do not cook in the pot in which your friend has cooked,’ that one should not marry a widow, for not all fingers [euphemism] and not all forces are equal, and the wise man with experience [Solomon] said, ‘All this I tried with wisdom,’ [Ecclesiastes 7:23] it is good before God, flee from a widow and whoever

History 97 guards his soul should stay far from her. […] So I have showed you clearly that there is very little in the halakhic decisors against the Zohar, and whoever fears the word of God should take heed of the words of the kabbalists and the wise ones.”) 36 Bacharach, ShUT Ḥavot Yair, # 197, continued. 37 Ibid., continued. 38 Ibid., continued. 39 Shlomo Luria, ShUT MaharShaL (Lublin, 1573), #98. 40 Bacharach, ShUT Ḥavot Yair, # 197, continued. 41 Ibid., continued. 42 Ibid., continued. 43 Ibid., continued. 44 I. Schorsch, “Zacharias Frankel and the European Origins of Conservative Judaism,” Judaism 30:3 (1981), 344–354. See also Schorsch, From Text to Context, 162–173 45 I. Twersky, “Law and Spirituality,” passim. Twersky’s main proof text is Bacharach, Ḥavot Ya’ir, # 210. 46 Ibid., 458–459. 47 J.R. Berkovitz,“Rabbinic Antecedents and Parallels to Wissenschaft des Judentums,” in P. Mendes-Florhr, R. Livneh-Freudenthal, and G. Miron (eds.), Jewish Historiography Between Past and Future: 200 Years of Wissenschaft des Judentums (Berlin: De Gruyter, 2019), 13–14. 48 A. Grafton, Forgers and Critics: Creativity and Duplicity in Western Scholarship (Princeton: Princeton University Press, 1990), 96–72. 49 Ibid, continued. 50 Translation is mine, I have attempted to keep the English translation as true to the original wording as possible and have only introduced slight changes in punctuation and sentence structure to aid clarity. Emphases are mine. 51 Since the Middle Ages, qiddushin (or, erusin) and nisu’in were done at the same time. Before that, qiddushin was a separate stage from nisu’in. He was not allowed to have intercourse with her before nisu’in, but if they chose to break it off at that point, she would need a get. She was not entitled to sustenance from him yet. Nevertheless, the Talmud in Yeb. distinguishing between maʻayan (the qatlanit’s womb) and mazal (the qatlanit’s sign) as the cause of death affirms that mazal applies to an arusah (post-kiddushin but pre-nisu’in). See Arbaʻah Turim, Even Haʻezer, # 55: ‫ האשה משנתארסה אע”פ שהיא כאשת איש לחייב הבא עליה ואינה יוצאה אלא בגט‬: ‫טור אבן העזר נ״ה‬ ‫אינה חשובה כאשתו שהרי אסור לו לבא עליה ואם בא עליה היו מכין אותו מכת מרדות ואפילו אם קדשה‬ .‫בביאה אסור לבא עליה ביאה שנייה עד שתכנס לחופה ואינו חייב במזונותיה‬ 52 See Arbaʻah Turim, Even Haʻezer, #9: ‫טור אבן העזר הלכות אישות‬ ‫ אשה שנשאת לשנים ומתו‬.‫ט‬ ‫ שכבר הוחזקה להיו׳ אנשיה מתים‬,‫אשה שנשא׳ לשניים ומתו לא תנשא לשלישי‬ ‫ כתב א״א הרא״ש ז״ל שכופין אותה להוציא‬,‫ואם נשאה לשלישי‬ .‫ כך חייבין למונעו שלא יפשע בעצמו‬,‫ וכמו שב״ד חייבין להפריש האדם מאיסור‬,‫וחמירה סכנתא מאיסורא‬ And see Darkhei Moshe, there: ‫דרכי משה הקצר אבן העזר סימן ט‬ ‫וכתב המ"מ שם (הלכות איסו"ב פכ"א הל"א) והגהות (אות פ) דאף אם נתארסה לשנים ומתו דינא הכי‬ ‫ וכן כתב נמוקי יוסף פרק הבא על יבמתו (דף תכ"ה‬,‫דהלכתא כרב אשי דאמר מזל גרם ולכן סתם רבינו עכ"ל‬ ‫ ד"ה גמ') וכתב בהגהות מימוני סוף פרק כ"א דאיסורי ביאה (אות פ) וז"ל דוקא מתו אבל נתגרשה‬.‫ע"א) (כ‬ ‫ ד"ה אגירושין) ודלא כרש"י סוף פרק ב' דיבמות (שם‬.‫כמה פעמים אין בכך כלום כך פירשו התוספות (יבמות כו‬ ‫ ד"ה גמ' תו) ובנמוקי יוסף‬.‫ד"ה בתרי זמני) דאף בנתגרשה עכ"ל וכן כתב הר"ן ריש פרק נערה שנתפתתה (טו‬ :‫ ד"ה בתרי) כתב כדברי רש"י ועיין בתשובת הרא"ש כלל נ"ג (סי' ח) פירוש מזל גורם‬.‫סוף פרק ב' דיבמות (ז‬

‫‪98  Tamara Morsel-Eisenberg‬‬ ‫‪ 53 Shab. 156a:‬‬ ‫בבלי שבת קנו‪ .‬ר' חנינא אומר מזל מחכים מזל מעשיר ויש מזל לישראל‪ ,‬רבי יוחנן אמר אין מזל לישראל‬ ‫רש"י שם – מזל מחכים לפי המזל היא החכמה כדאמר דבחמה נהיר וחכים ויש מזל לישראל שאין תפלה‬ ‫וצדקה משנה את המזל‪.‬‬ ‫‪ 54 The philosopher Elijah Delmedigo criticized the Kabbalah in Beḥinat ha-Dat in the‬‬ ‫‪late fifteenth century, but the work came to print only in 1629, when it was pub‬‬‫‪lished by a younger relative, Joseph Delmedigo of Candia, who added a defense of‬‬ ‫‪Kabbalah and printed the two as Matsref Laḥokhmah. See supra, n.35‬‬ ‫‪ 55 See Berachia of Modena, Maʻavar Jabboq (1626), Sefat Emet, ch. 10:‬‬ ‫ובסבא דמשפטים (זוהר משפטים) דף ק״ב‪ .‬נתן טעם למה אין האשה מתיישבת כראוי עם בעלה השני‪,‬‬ ‫ושם פירשו סוד הקטלנית‪ ,‬וסכנה גדולה ממי שנושא אלמנה‪...‬ובפרט אם בעלה הראשון הוא תלמיד חכם‬ ‫שבמיתתו הוא חי‪...‬ובפרט אם יהיה אחרון לגבי ראשון‪ ,‬ושניהם מסתכנים‪ ,‬ונראה זה פעמים הרבה לחוש‪.‬‬ ‫‪ 56 Shlomo Luria, ShUT Maharshal (Lublin, 1573), #98:‬‬ ‫חדשים מקרוב באו ורוצים להיות מכת המקובלים וממדרשי הנעלמים ומחלשי הראות לא יביטו באור הזוהר‬ ‫ולא ידעו מוצאו ומבואו וכוונתו אלא שכך מצאו בספרי רשב״י ודע אהו׳ שכל רבותי ואבותי הקדושים ששמשו‬ ‫גאוני עולם ראיתי מהם שלא נהגו כך אלא כדברי התלמוד והפוסקים ואם היה רשב״י עומד לפמימו וצוח לשנות‬ ‫המנהג שנהגו הקדמוניים לא אשגחינן ביה כי ברוב דבריו אין הלכה כמותו‪...‬‬ ‫‪ 57 See supra, n.35.‬‬

‫‪Appendix‬‬ ‫‪Image, Text, and Translation of the Responsum‬‬

‫ ‬ ‫‪Figures 3.A1 and 3.B2 Title page and teshuva from original Havot Ya’ir. Given to the‬‬ ‫‪author by her great aunt Leah Nussbaum, z”l.‬‬

‫‪History 99‬‬ ‫שו"ת חוות יאיר סימן קצז‬ ‫שאלה שאלני הראש והקצין האלוף התורני ר' פלוני שנדבר בבנו זיווג הגון בת פלוני עשיר מופלג ורוצה ליתן‬ ‫לו נדן מסוים רק שלבו נוקפו כי הבתולה כבר נזדווגה עם בן פלוני ואחר ג' חדשים אחר הקנס מת בשלשול‬ ‫הרע וחזרה ונזדווגה עם בן פלוני וכמשלש חדשים לפני זמן חתונה חלה ומת בחולי הראש שהיה מתפשט‬ ‫בזמן הרע ההוא עד שכמעט אין בית נקי ממנו וירא פן מזלא של הבתולה גרם כמ"ש רז"ל בדין קטלנית‪.‬‬ ‫והשבתי לו אחר שאר דברי האגרת וז"ל וע"ד בקשתך דעתי ועצתי קשה מאד ליעץ בדבר נעלם סיבתו‬ ‫וטעמו וענינו והוא דבר שבו סכנת נפש ובמס' ע"ז ארז"ל פירוקא לסכנת' ר"ל בתמיה אבל את זה אומר‬ ‫אלו אירע הדבר בבני שנדבר לו שידוך כזה לא נמנעתי כי יש לי סברא אחרת וטעם אחר בדבר זה אף כי‬ ‫לא זכרו אדם והוא כי הרא"ש ז"ל כתב טעם שאין קפידה באיש שנשא ב' נשים או יותר מפני שהבעל‬ ‫חייב במזונות אשתו לכן אשה שמתו ב' אנשים חזינן דמזלה רע שנגזר שלא יהיה לה מזונות בריווח מאחר‬ ‫והנה לכאורה נראה דלפי טעמי' אין לחוש בקישור בעלמא ככלה דלא שייך הטעם רק באשה שיש לה‬ ‫מזונות מבעלה מש"כ ארוסה וכלה אין לה מזונות מהחתן אבל אין זה מספיק לדחות החשש דא"כ ארוסה‬ ‫דדהו בימי חכמי הש"ס דק"ל ג"כ שאין לה מזונות מן הארוס כמ"ש בא"ה סי' נ"ד נמי לא נחוש והרי‬ ‫לא ק"ל הכי רק גם בארוסה יש לה דין קטלנית כמ"ש שם סי' ט' וע"כ נאמר שגם לטעם הרא"ש שייך‬ ‫לומר מפני שתכלית האירוס הוא הנישואין פן נגזר עלי' שלא תבא לכלל זה להיות ניזון אפילו שעה אחת‬ ‫משל בעלה לתוקף והפלגת רוע מזלה‪ ,‬דודאי יש חילוק שהרי לפעמים נתקיים בעלה בחיים כמה שנים אחר‬ ‫הנשואין ומ"מ יש לה דין קטלני' וע"כ נאמר כי לפעמים המזל רע בהפלגה רבה נמרצת ולפעמים יקל ידו‬ ‫וזה מצד עצמו כי אע"פ דמזל מחכים מזל מעשיר לחד מ"ד מ"מ יש בו חילוק בין רב למעט וכל שהמזל‬ ‫בעת לידה במעלתו וחוזקו בגובה רום יחזק כחו‪ .‬וא"כ ה"ה קישורין דידן דלסברא זו אין חילוק‪.‬‬ ‫…‬ ‫אבל בדברי חכמי אמת ומקורו בזוהר שלא נתגלה עדיין בימי הרא"ש כנודע נמצא טעם נפלא ע"פ‬ ‫הסוד ולאותו טעם יש סכנה בכל אלמנה הביאו בספר נובלות חכמה יע"ש ולפי אותו טעם יש סכנה יותר‬ ‫בנושא אלמנת גדול ומופלג בתורה או בחסידות [וכ"כ בספר מעבר יבק חלק שפת אמת פ"ט] כי רוחו‬ ‫שהשאיר בקרב אשתו ינצח ויגרש השני בלי ספק וההיפך בהיפך לכן במת בעלה השני הוא בחזקת שרוח‬ ‫בעלה הראשון מנצח ולפי טעם הזוהר פשיטא דאין חשש בארוסה אפילו ארוסה דדהו שכבר נתקדשה‬ ‫כ"ש ע"י שידוכין בעלמא אע"פ שג"כ ק"ק אם כבר היה הבעל אחר הנישואין קיים דמ"מ י"ל דעבר‬ ‫זמן רב שהיו נלחמים שני הרוחות עד שנצח הראשון והכי משמע בזוהר‪.‬‬ ‫וכבר כתבנו דלפי טעם שכתב הרא"ש יש לחוש אפילו בארוסה דידן שהוא רק שידוכין ובכמה דוכתי לא‬ ‫פסקינן כרשב"י ולא נהיגינן כדעת הזוהר כמ"ש רש"ל בתשובה והביאו בספר מצרף לחכמה עם כמה‬ ‫ראיות וזכר פרטי הדברים אשר מנהגינו נגד דעת הזוהר מכ"ש בספק נפשות דאין לסמוך על טעם הזוהר‬ ‫להקל דדלמא גם טעם הרא"ש נכון לפי פשטן של דברים והא והא איתא‪ .‬ולפי מה שכתבת שהחתן‬ ‫השני מת בחולי הראש שהיה אז מכה מהלכת ודובקת באם כן יש צד היתר דדמי למת בדבר שמייתי‬ ‫בהג"ה סי' ט' בא"ה דלא נחשב על ידו לקטלנית ונראה דלאו דווקא דבר ה"ה כל מכה וחולה המדבק‪.‬‬ ‫…‬ ‫הרי כתבתי לך מה שיש לדבר בזה לכאורה אבל להכריע ולתת עצה למבקש לדעת מה יעשה מי יכניס‬ ‫ראשו להורות בדבר שיש בו ספק נפש והנח לישראל שכבר מקילין בה וי"ל דקפיד קפדינן בהדי' ועשה‬ ‫כחפצך וה' ישמרך מכל פגע רע‪.‬‬ ‫כנפשך ונפש ד"ש ואהובך יאיר חיים בכרך‪:‬‬ ‫‪Shut Ḥavot Yair, Responsum #19750‬‬ ‫‪I was asked by the head and the leader, the torah general, Rabbi ploni (anon‬‬‫‪ymous), that a proper match was proposed for his son, the daughter of ploni‬‬

100  Tamara Morsel-Eisenberg (anonymous) a rich person and he wants to give him a certain nadn (dowry), but his heart is worried, because this maiden had already been matched with the son of ploni and three months later the son died due to harmful flux, after which she went on to be matched to the son of ploni and about three months before the time of the wedding he became ill and died of the headache that was spreading at that evil time, until there was almost no home left unafflicted, and now he fears lest it was the mazal (sign) of the maiden that caused it, as the sages say [Yeb. 64b] about the issue of qatlanit. And I answered him after the other things in the letter, and these are my words: Concerning the thing you have asked my opinion and advice about, it is very difficult for me to advise you considering these things of which the reasons, rationale and issues are hidden and it is a question that can endanger life as the Sages say in A. Zar. [30a] “Are you coming to reason about issues of danger,” that is, as a rhetorical question. But this I will say, if this would have happened to my son, that they would have proposed such a match to him, I would not have rejected it, because I have another theory and another reason for this, although there is no person who mentions it. And this is the statement of Rabbi Asher ben Yeḥiel [responsa, principle 53] that the reason why there is no qʼpeida (suspicion, fear) for a husband to marry two or more wives is because the husband is responsible for the sustenance of his wife, which is why a wife who had two husbands die is considered to have a bad mazal, because it decreed that she will not have abundant sustenance from others. And, here, it would seem that, according to this reason, there is no basis to fear the mere connection as a kallah [once the couple has agreed to get married, but neither erusin nor nisuin has taken place] because Rabbi Asher’s reason only applies to a woman who already is entitled to sustenance from her husband, which is not the case for an engaged woman [arusah] or a kallah who is not entitled to sustenance from her betrothed. But this is not enough to reject the suspicion, because if so, for an arusah [first stage of marriage, before qiddushin or marital relations took place] who during the times of the Talmud did not receive sustenance from her husband, as it is written in [Shulḥan Arukh, Even Haʻezer, #55—that an arusah does not receive sustenance]51 there should also be no suspicion [of qatlanit], but it is not stated thus, instead, also for an arusah there is the law of qatlanit as it says there #9.52 And, we are forced to say, that even taking into consideration the reason of Rabbi Asher, one could [make sense of this], saying that the purpose of erusin is marriage and perhaps her mazal decreed that she would never even enjoy

History 101 one moment of sustenance from her future husband, due to the extreme level of her bad mazal, because of course there would be different degrees because sometimes the husband does stay alive for a few years after the marriage and she nonetheless has the classification of qatlanit and therefore we are inclined (forced) to say that sometimes the mazal is extremely, very, strongly bad and sometimes it is lighter, and this is true, on its own because while “mazal makes intelligent, mazal makes rich” according to one opinion [Shab. 156a], there is still room for separating between a lot [of mazal] and little [mazal], and as much as the mazal at birth is at its peak of strength, thus it gets stronger.53 And if so, this is the law too for such connections [when they are engaged but not married] because according to this rationale, there is no difference. … But, in the words of the sages of the truth [Kabbalah], and its source is in the Zohar, which had not yet been discovered in the days of Rabbi Asher ben Yeḥiel [1250 Cologne-1328 Toledo] as we know, there is a wonderful (also “mysterious”) reason according to the sod (esoteric knowledge), and for this reason, there is danger in relation to any widow as is brought in the book Novlot Ḥokhmah, see there [by Yosef Delmedigo, “Yashar” of Candia, 1591–1655], and according to the reason mentioned there, this is more dangerous for someone who marries the widow of someone who was great in study or piety54 [and something similar is also mentioned in Ma’avar Yabok by Rabbi Aaron Berakhiah of Modena section Sefat Emet: 9]55 because the spirit that he has left within his wife will defeat and chase away the other doubtlessly, and vice versa [according to whoever is greater], therefore, after the second husband dies she is considered as one of whom the spirit of the first husband will win [and is thus likely to defeat the third husband too]. And according to this reason of the Zohar, it is clear that this does not concern erusin, even the arusah in their case [that is, in the Talmud’s time], where a part of the marriage is already fulfilled, and definitely so [in our case], where they were merely engaged. However, here, too, it is a little difficult to explain what might have happened if the husband continued to live for a while after marriage—although one could claim that a long time passed during which the two spirits were fighting each other and, ultimately the spirit of the first husband won [and the second husband dies], and so it also appears from the Zohar. However, as we have already written, it can also be argued how, according to the reason of Rabbi Asher one could extend the suspicion even to an arusah in our case when it is merely an engagement, and in some places we do not rule according to Rabbi Shimon bar Yochai [the Tannaitic source of the Zohar] and we do not behave as the Zohar mandates, as Rabbi Shlomo Luria (1510-1573) already mentions in his answer,56 which was cited in Maẓref  Laḥokhmah57 with several proofs, and it mentions the details of things in which our custom is against that of the Zohar, all the more so when dealing with the danger of death, one should not support oneself by a reason

102  Tamara Morsel-Eisenberg of the Zohar for being lenient because perhaps the reason of Rabbi Asher, too, is true about the simple meaning of things, and both reasons exist alongside each other. And according to what you have written, that the second betrothed died from a headache that was then a contagious affliction, in which case there is a justification to be lenient… Here, I have written to you what there is to say concerning this, it seems. But adjudicating and giving practical advice to someone seeking to know what he is to do—who would stick his head to rule in such a matter that could perhaps, lead to death, and let us permit it to a member of Israel who already is lenient in this matter, and it can be said that “he who does not take it [the evil eye] into account, it will not take account of him” [Pes. 106b] and do what you desire, and may He protect you from any evil. [Close to you as] your soul, and a soul seeking your wellbeing and love, Yair Ḥayim Bacharach

4

Law The Mothers, the Mamzerim, and the Rabbis: A Post-Holocaust Halakhic Debate as Legal and Historical Source1 Elisha Ancselovits and Ethan B. Katz

Editors’ note This chapter posits that when we combine devotionist and relativist methods, from multiple disciplines, case studies in Jewish law look different. Here again, law’s relationship to history is at play. But whereas Chapter 3 examined the changing significance of historical thinking for rabbinic law, this chapter puts law and history in conversation – as windows onto post-World War II Jewish life and as analytical frameworks. The co-authors, a specialist of Jewish law and a historian, analyze what at first seems a stunning debate from 1965 between leading European rabbis. Many women who returned from the Shoah to the town of Munkacz in 1945 had lost their husbands in the war or in the camps. However, a few who presumed their husbands dead, remarried and had children, would later see their husbands return from the camps. Their children were therefore deemed to be Mamzerim – misbegotten offspring from a highly problematic union – in Jewish law. Now, with these Mamzerim coming of age and looking to marry, the rabbi of Munkacz seeks help from two leading Jewish law decisors to halt the transmission of classical Mamzer status from one generation to the next. The authors critique the devotion-relativism binary at two levels. The first level concerns our contemporary, backward-looking perception of historical actors. Too often, we still assume Jews in most times and places were divided sharply between those who, on the one hand, were so devoted religiously that they adhered strictly to rabbinic law as inviolable; and those who, on the other hand, were relativists, concerned entirely with the practical realities of everyday

DOI: 10.4324/9781003364078-5

104  Elisha Ancselovits and Ethan B. Katz life. The second level concerns contemporary scholars themselves. Devotionist scholars have understood this historical rabbinic discussion as an example of how Jewish law evolves as a technical, internalist way of thinking about problems; and relativists have understood this historical rabbinic discussion as an example of modern Jewish history having increasingly little to do with traditional practice, let alone halakhic thinking. The authors set out to show that even in post-1945 Eastern Europe, the first division is a false one. Simultaneously, they offer a model for how scholars today can overcome the second division. For those situated in the beit midrash, the case study reveals that when studying a given halakhic opinion, it is essential to understand the specific historical predicament to which it responds, in order to assess properly what is actually being said. In so doing, they combine their two approaches, as outlined in the book’s introduction. First, they argue that robust historical context is necessary to make sense of the rabbinic arguments, situating them alongside discussions of the same issues on the part of contemporary relief agencies, states, Jewish organizations, and health professionals. The rabbinic text, moreover, serves as an important resource for analyzing this wider historical context. Second, the authors insist that the debate is not the highly formalist matter that it at first glance appears to be. Both rabbis sought to uphold the classic Jewish norm for a spouse to loyally wait for their partner who is struggling to return home. And yet, at the same time, they recognized that the soon-to-be-fathers should be treated differently than full mamzerim who transmit their status as a mamzer to their children. As Ancselovits and Katz show, the seemingly technical halakhic arguments only make sense in light of competing views between these two rabbis about the ever-present question of how best to preserve the Orthodox community and to perpetuate classical Jewish values in the wake of the Shoah.

The Case and the Setting In 1965, a seemingly stunning rabbinic discussion and debate arose in Europe around the young men of a small Jewish community of the Subcarpathian city of Munkacz (in Hungarian, Munkács). Like many of their peers in Europe, a number of young men in that community had been born to mothers who, after surviving the Holocaust, had “remarried in the belief that their first husbands had been murdered by the Nazis.”2 In the case of these young men, however, the original husbands of their mothers had subsequently returned alive. In the midst of that emotional and communal messiness, the mothers stayed married to the sons’ fathers, the sons grew up, and now, twenty years later, a rabbinic discussion and debate transpired between two leading Orthodox figures of Jewish law (poskim). At issue: since the sons of an adulterous

Law 105 wife are halakhically forbidden in marriage to fellow Jews, might these young men acquire gentile women for wives as semi-converted “slave-women”?3 In the state where this issue had appeared – the then-Soviet Ukraine – actual slavery was outlawed and ownership of a person completely nonexistent under state law. Nonetheless, this halakhic option – if it were still halakhically valid despite modern legal prohibitions – would allow these young men to subsequently “free” each of their children into a full and new Jewish status untainted by descent from adulterously-conceived fathers.4 And so, Rabbi Tzvi Elimelekh Kalish of Munkacz turned to two leading rabbinic authorities to ask whether this halakhic option was indeed still valid. Without entering into the details of this halakhic option, which will be discussed below, one rabbinic authority, R. Mordechai Yaakov Breisch, responded that these young men should be allowed to marry and acquire “slave-women” and then free their children into a full Jewish status untainted by an adulterous lineage. Against him, R. Yitzchok Yaakov Weiss responded that the secular law of non-slavery raised doubt about the halakhic validity of such acquisition and of the Jewishness of the young men’s children. These women also needed, therefore, to undergo a full conversion to Orthodox Judaism after being acquired as slave-women. Only then could they be viewed halakhically as “slave-women,” rather than as gentile women with whom marriage is forbidden. As “slave-women,” their subsequent children could be considered slaves who can be freed into a full and untainted Jewish status, rather than gentile offspring who remained forbidden to Jews. For the authors of this chapter, when encountering this case, our initial reaction was simply astonishment. While fellow Jews were rebuilding Jewish life in Europe under the most dire conditions, we wondered, how could rabbis appear so divorced from those efforts? How could they wallow in religious-legal questions and categories that were disconnected from European Jewry’s real-life challenges? Did any Jew really view these young men as equivalent to sons of wantonly adulterous women whom a socially conservative person might be wary of marrying? And if some Jews did so look askance at the mothers’ behavior that they were wary of having their daughters and granddaughters marry these men and these men’s children, was such wariness ameliorated by an elaborate construct rendering these men’s wives’ halakhic status that of semi-convert “slaves”? Or, had halakhah devolved into solving problems of its own creation? At first glance, here seemed to be an unmitigated instance of the divide between a devotional dedication to a cloistered and formalistic halakhic Judaism, and the modern world’s relativization of the concerns of halakhic discourse. The war and the Shoah had already had a devastating impact upon the children who survived.5 Roughly 13 million European children had seen one or both of their parents die in the most devastating conflict in recorded human history.6 According to a 1946 estimate of the newly created United Nations Educational, Scientific, and Cultural Organization (UNESCO), staggering numbers of children were homeless: 8 million in Germany (including both

106  Elisha Ancselovits and Ethan B. Katz citizens and refugees), 6.5 million in the USSR, and 1.3 million in France.7 Children’s languages, nationalities, and religious beliefs had frequently been transformed in the course of the war; some young children had no memory of their parents.8 Moreover, many children had disappeared and remained unaccounted for. Between 1945 and 1958, the German Red Cross alone was flooded by more than 300,000 requests to trace missing children; from 1945 to 1956, the new International Tracing Service registered 343,057 such requests.9 Among Jews, furthermore, even fewer Jewish children actually survived, since the Nazis had murdered most Jews too young to work. An estimate from the French Oeuvre de Secours aux Enfants (OSE) claimed that less than 12% of Jews younger than 16 had survived the war. And even that number managed to survive only because 30,000 young Jews had been exiled during the war in the U.S.S.R.10 In Hungary, the Nazis had killed 76.6% of the Jews under the age of twenty.11 The war and the Holocaust had been so devastating that newborn children became the metaphor and means for reconstruction for Jewish (and many non-Jewish) communities across Europe. According to a widely disseminated discourse, Hitler and the Nazis, in the words of one declaration of the United Nations, had waged “war against children,” further “against their security in the family, against their education and general welfare, against their very lives, the fascists directed a deliberate campaign of destruction that has nothing to do with the incidental.”12 As the European director of the American Joint Distribution Committee (JDC), Dr. Joseph Schwartz, wrote to his board in 1947, “children have become a kind of religion here … a symbol of the continuity of a people.”13 And yet Rabbis Kalish, Breisch, and Weiss worried about some technical category of halakhah? Furthermore, those who had survived faced myriad obstacles to a normal life. In 1946, a British-American author, Alice Bailey, described for the American public “those peculiar and wild children of Europe and of China to whom the name ‘wolf children’ has been given. They have known no parental authority; they run in packs like wolves; they lack all moral sense and have no civilized values and know no sexual restrictions; they know no laws save law of self-preservation.”14 Such cases were among the numerous circumstances of displacement and trauma implicated in the constantly invoked figure of the “lost children” of the war and the Shoah. Among aid workers, state officials, and psychiatrists, the formulation of “the best interests of the child” became ubiquitous. Vinita A. Lewis, a social worker for the International Refugee Organization (IRO) in Germany, declared in 1948: “The lost identity of individual children is the Social Problem of the day on the continent of Europe.”15 In many instances, Jewish organizations worked assiduously in order to place Jewish children in families, educational settings, or collectives where their strong Jewish identity might be assured. Such efforts ranged from the formation of kibbutzim in Eastern Europe that planned to move to Palestine, to the formation of Jewish children’s homes, to custody disputes over children hidden during the war by

Law 107 Catholic families, to the defense of “indoctrination” as a mode of Jewish education in DP camps.16 Dr. Liebmann Hersch of the OSE in France expressed well the stakes for many Jewish leaders when he borrowed Shakespeare’s classic formula in a 1947 essay regarding the challenges facing French Jewry: “To be or not to be, that is the question,” he exclaimed. The task at hand was not simply about saving the lives of France’s 30,000 surviving Jewish children, he contended, but the more difficult task of “saving [them] for Judaism …. A difficult job … because we have to keep in mind the realistic interests of the child, avoid all utopian attempts to return to the reactionary mentality of the medieval ghetto, raise and nourish amongst the children an attachment to the Jewish people, to its history, to its culture, to its suffering, its battles, its hopes. And accomplish all of this during a period in which the Jewish people no longer consist, anywhere in Europe, of a mass as before the war.” He concluded with the famous Yiddish adage, “S’iz shver tzu zayn a yid” [It’s hard to be a Jew].17 Thus, given these stakes, if persons who had emerged from such scarred backgrounds were now the young adults of 1965 European Jewry, was there really a need to be wary about a young Jewish woman marrying some young Jewish man from a stable family – merely because his father and his mother had married not knowing that the mother’s original husband was still alive? Perhaps some readers will be more shocked by our astonishment than they are by the actual case. Take, for instance, one of the few scholars to treat this case previously – historian David Katz. Katz is a product of the “Litvish” approach to Talmudic and halakhic analysis. He accordingly presents this European rabbinic discussion and debate as nothing more or less than a formalist legal discussion and debate.18 This is in line with a supposed truism among both conservative and liberal Jewish academics: that abstract formalism is[5] and always was[6] typical of the (devotional) rabbinic tradition.19 From its Talmudic roots, many scholars insist, the Halakhic discourse has always been a process of excessive textual20 or abstract-conceptual loyalty21 – even if many of the same scholars claim that it was also balanced with addressing human needs (ethics)22 by necessarily23 reading law sources creatively,24 whether subconsciously25 or willfully,26 in order to solve internal halakhic obstacles to living under new conditions27 or new values.28 This is in line with a more limited supposed truism that, with the advent of modernity, European Ashkenazic rabbinic culture increasingly turned to engage with the logical structure and the precise terminological and conceptual definition of Jewish law.29 Mamzerut as a Question of Formalism or of Real Life And here we come to this chapter’s core purpose and its relevance for this volume. Contemporarily, many academicians of Jewish studies, and many Orthodox Jews who are not engaged with academic Jewish studies, do indeed distinguish between addressing real-life concerns, on the one hand, as a purportedly relativist, pragmatic enterprise, and solving the internal problems of

108  Elisha Ancselovits and Ethan B. Katz Jewish law, on the other hand, as a matter of religious devotion. This is not surprising. Anyone who is fluent enough in English to read this volume lives in a reality in which there are different languages for addressing real life and for discussing halakhah. Nonetheless, we will see that it is anachronistic to project this distinction backward onto persons whose primary language of serious discussion was traditional-rabbinic. The same persons were trusted by fellow traditional Jews for real-life advice and day-to-day guidance; even as these persons spoke in rabbinic language, they ultimately discussed reallife concerns in that traditional-rabbinic language. To repeat: such persons did more than base their lives on received customs and traditions. They were not focused only on semantic and conceptual analysis of written law texts – an approach that Haym Soloveitchik points out was destroyed by the rupture of the Holocaust. Such persons read and spoke of law as a framework for apprehending the most pressing real-world challenges of their time, rather than as a semantic-conceptual project.30 Moreover, mamzerut is one of the topics with regard to which the traditional pre-Holocaust approach to Jewish law as commonsensical discussion is most obvious. To wit, Biblical law forbids the “congregation of God” to allow entry even unto the tenth generation of the category of people called mamzer (Deuteronomy 23:3). Whatever the original definition of the term mamzer may have been31 and whatever political considerations a critical reader may identify with that law, the biblical law expresses a wariness about the behavior of people from a certain lineage (gene pool or upbringing, in modern terms). In the Second Temple period and through rabbinic tradition, this concern meant a wariness about any person who conducted themselves in an evil or violent or even socially “heretical” (minut32) manner, or even any family in which some person regularly behaved this way. Such a person, and even the person’s family, was viewed as tainted by mamzerut. A person of good quality was expected to keep their distance from such person’s company to avoid physical harm or harmful influence (especially when worshipping God), and certainly to avoid marrying them; a city composed mostly of such persons was considered a city where a girl or her parents are expected to know that rape and licentiousness are tolerated; and an ideal city (typologically, Jerusalem33) would never allow entry to such persons.34 Even in ancient times, however, legal authorities understood that problematic persons and even families can often hide their bad traits, while good and emotionally stable people may act out of character under exceptional circumstances. Not surprisingly, therefore, legal texts reflecting the Second Temple period and the post-Temple rabbinic tradition are careful not to be overly wary of any but the most outlandish behavior. Rabbinic figures might, in their own circles, denounce marrying off one’s daughter to an uncouth man as comparable to binding her in front of a mauling lion, or forbid men of educated circles to marry a girl from an uncouth family – comparing such marriage to copulating with an animal born of a disgusting-creature father and a swarming-creature mother.35 But nonetheless, they legally forbade

Law 109 in-marriage only to fellow Jews who had overtly acted problematically by indiscreetly engaging in sex with someone whom they could not have considered marrying. This prohibited category could include almost anyone whom biblical law (and thus society) forbade marrying and at minimum comprised those whom biblical law (and thus society) viewed as incestuous or adulterous. Once Jewish society knew of a person born of the union of two such parents, it was wary of that person and viewed him or her and – in principle – any descendants as potentially dangerous mamzerim.36 Yet precisely because this law reflected wariness about marrying demonstrably problematic spouses and about interweaving with demonstrably problematic families, rabbinic teaching was not particularly wary of the children of a woman who merely had a child out of wedlock. The rule held so long as the woman had not been so promiscuous that she could not even claim to know the father’s identity.37 Some rabbis were not even significantly worried about the child of a woman who was merely single and overly promiscuous,38 but rabbinic consensus did eventually forbid such a child in marriage – albeit to a lesser degree (mi-derabannan).39 Moreover, despite the reservations of some Talmudic rabbis,40 rabbinic teaching even developed a consensus view that there was no need to be wary of marrying the child of an adulterous woman who merely had not been completely discreet in her behavior, so long as she had not flaunted her illicit affair. The child is simply viewed as her husband’s.41 And that has remained the halakhah through to today.42 Some medieval rabbis in heavily mercantile Jewish cultures even argued that a child born any time during the husband’s travels is acceptable as long as the woman was chaste and asserts that the child is from her geographically distant husband,43 with the notion being that she emotionally desired her husband despite physically being with another man. Other rabbis did not accept this but did agree that a child born to a chaste married woman up to twelve months after her merchant husband (or such) had left on his travels is acceptable. Such a child was simply assigned to her husband. In brief, all medieval rabbis agreed at minimum that if a woman had continued an affair for weeks or potentially for even a few months after her merchant husband left and had become pregnant in that time, they need not be wary of her offspring.44 More tellingly, Talmudic rabbis further decided that there is no need to be wary of the eleventh-generation or even third-generation daughter descended from a pair of flagrantly sexually inappropriate forebears – if, that is, she and her own immediate family are considered upright. She is not a mamzeret.45 Most relevant to this chapter, R. Tarfon offered a path by which one need not be wary even of the children of a mamzer son of flagrantly sexually inappropriate parents. R. Tarfon taught that the son of the mamzer could humble himself by foregoing a normal wife and children in favor of a slave partner. This would enable the mamzer to free their children to become Jews of a new familial identity.46

110  Elisha Ancselovits and Ethan B. Katz In short, the history of the Jewish law discussions about mamzerut had been a history of straightforward discussion (notwithstanding the individual reader’s political or ideological sensibilities). And this returns us to our question. Were fellow Jews really wary of marrying the sons of these women of Munkacz (which by 1965 was Mukacheve in Soviet Ukraine), who had married in order to rebuild their lives after the Holocaust? And if there were fellow Jews who were wary for some reason, would marrying these sons to women who were not really slaves (who were “slave-women” merely by a legal fiction) actually alleviate any wariness about the subsequent children of these sons? Or had the venerable tradition of halakhic discourse as a straightforward discussion about real-life issues, frequently defined by practical context, devolved such that R. Breisch and R. Weiss were instead devotionally solving internal legal problems of a purely technical character? We will see that the answer to the last question is no. Beyond the study of halakhah, this discovery has purchase for the field of Jewish history, especially in the modern era. Read carefully, these responsa show that it is more comfortable than accurate to rely solely on the seemingly more direct statements and activities of postwar refugee aid workers, state actors, medical professionals, and international Jewish organizations who sought to address the dilemmas of postwar European Jewry in their own terms. Likewise, it is more comfortable than accurate to study Jewish social-political history by including merely the outcomes of rabbinic legal discussions, while relegating the arguments to an internal intellectual rabbinic discourse about conceptual intricacies. In fact, even the seemingly abstract arguments found in the responsa of the socially trusted among Eastern-European rabbinic survivors, once decoded, emerge as straightforward discussions of the problems and needs of postwar European Jewry – albeit in traditional-rabbinic language.47 Legal Arguments as Sources of History and Historical Sources as Translation Keys to Law This essay tells a story that we aim to make accessible to Westerners – including even Western yeshiva scholars – about both the post-Holocaust survival and reconstruction of Jewish life and about the survival of a Jewish langue that has become increasingly lost since the Holocaust. With the term langue, we mean a language with all the cultural and habitual features that are implicitly understood by its users. In our case from Munkacz, a modern reader (a person whose primary language of discourse about daily life is not rabbinic discourse) can understand the detailed arguments of Rabbi Weiss and Rabbi Breisch only by translating the arguments in parallel to the efforts and statements of better-known postwar actors oriented toward the human needs and problems of Jewish survivors and refugees. Only by understanding the issues that these rabbis faced can one successfully translate their seemingly technical arguments. After all, these traditional rabbis spoke in a langue that Westerners today do not use and that thus sounds technical – as all foreign langues do.

Law 111 R. Yitzchok Yaakov Weiss was culturally not a Westerner. He was part of the Galician Jewish tradition that dominated the region around Munkacz – more specifically, of the Hassidic tradition that spanned Eastern Galicia and Subcarpathia.48 To be even more precise, Weiss’s Galician father, Yosef Yehuda Weiss, had been a follower of the Eastern-Galician Belz Hassidut. During the First World War, the father had moved the family to Munkacz where he joined the small Belz Hasidic community and served for a period as its “dayyan u’moreh tzedek” (righteous judge and teacher).49[20] And R. Yitzchok Yaakov Weiss later followed his father’s footsteps when he left years of study in Munkacz to become the “dayyan u’moreh tzedek” of a different Eastern-Galician Hasidic dominated community – the community of Grosswardein/Nagyvárad (now, Ordea, Romania).50 Similarly, R. Mordekhai Yaakov Breisch was culturally not a Westerner. He had also been born in Galicia, had been raised as a hassid of the Belzer Rebbe, had served the Galician congregation of Duisburg in Germany, and had after the rise of the Nazis served the independent ultra-Orthodox Eastern-European community of Zurich.51 Meaning, although R. Breisch was more lenient in 1965 than was R. Weiss, who ruled strictly that a convert “slave-woman” must undergo a further full conversion (discussed more fully below), R. Breisch was through and through a posek of the ultra-Orthodox community. R. Breisch’s strictness on the issues of marriage and of Jewishness can be seen, moreover, from his pre-Holocaust rulings. In one responsum from before the Holocaust,52 for instance, R. Breisch forbade a man to marry a new wife without either granting his original wife – no longer affiliated with the community – a religious divorce or receiving one hundred Torah scholars’ permission to remarry. He made this strict demand although the original wife was halakhically forbidden to her husband because she had admitted to an affair, her adulterous correspondence had been made public, and the Swedish courts had granted a civil divorce on the grounds of her adultery with her gentile paramour (Shut Helkat Yaakov EH #1). In another responsum composed before the Holocaust,53 R. Breisch suggested that the marriage of a woman in Brussels was so invalid – once it was discovered that she was still halakhically married to a man in Poland – that she must not receive a divorce from her second husband. He refused to recognize the second marriage in the slightest despite the fact that the woman had been perceived locally as the second man’s wife (Shut Helkat Yaakov EH #57). These rulings reveal R. Breisch to have been a pre-Holocaust posek who strove to reinforce the standards and restrictions that had protected the traditional marriage structure, battling against the individualistically-inclined modern option of civil divorce. In short, both R. Weiss and R. Breisch were Galician ultra-Orthodox Jews. They felt at home in the norms and values of the Eastern-European variation of traditional Judaism. And they felt at home in its langue. And they shared a common culture and langue to such an extent that R. Weiss’s only child, a son, and one of R. Breisch’s daughters had married each other by the time

112  Elisha Ancselovits and Ethan B. Katz that these two rabbis found themselves discussing the question about the young men of Munkacz.54 The responsa of R. Weiss and R. Breisch, accordingly, provide a window onto an overlooked tributary in the river of post-Holocaust Jewish survival and reconstruction. The responsa themselves are markers of the post-Holocaust survival of a specific rabbinic-Jewish langue. And, most importantly, the responsa provide an overlooked window onto an overwhelmingly displaced Jewish tradition of speaking. Historical Munkacz: Before and During the War In order to appreciate fully the arguments in these teshuvot, we need an element that is rarely brought to bear on such readings: a window onto the lived reality of the time and place from which they emerged. In the immediate postwar moment, nowhere was massive displacement or the challenge of transmitting Judaism to the next generation more pronounced than across the Soviet bloc in Eastern Europe – including in the borderlands of Transcarpathia, where the town of Munkacz, or Mukacheve, resides. Transcarpathia, also rendered Sub-Carpathian Rus or Ruthenia, is set in the Pannonian Basin, nestled at the foot of the Carpathian Mountains. Much of the region is surrounded by rivers: the Tisza to the east and south, and the Hornáde and Poprad in the West. Sovereign rule over the region had shifted repeatedly. In the late nineteenth and early twentieth century, Transcarpathia was part of the Kingdom of Hungary within the Habsburg empire; during the interwar years, it became part of Czechoslovakia, until it was taken back by the now independent Hungary on the eve of World War II. At this time, it was bordered to the south by Northern Transylvania, to the west by Slovakia, and to the north and east by Nazi Germany. The interwar Jewish community in Munkacz had been one of extraordinary vibrancy. It was here that a young Yitzchok Yaakov Weiss had grown up, received his training, and first taught in Yeshiva. Jews formed as much as 43 percent of the town’s overall population (Jews were 14 percent of the population across Transcarpathia as a whole).55 The community’s considerable welfare and educational institutions included its own hospital system, a very active Hevra Qadisha, a Maccabee youth athletic association, an old age home, a publishing house and thriving local Jewish press, a Hebrew gymnasium known to Jews across Czechoslovakia, and a rising and diverse scene of Zionist activity. The Munkacz Yeshiva, run by the town’s rabbi, Hayyim Elazar Shapira (1872–1937), was the leading center for Torah learning in Transcarpathia, enrolling 280 students as of 1939. The town featured multiple Hasidic courts, most notably those of the Shapira or Munkatcher Hasidim, the Belz Hasidim, and the Spinka Hasidim.56 Rav Shapira was widely respected for his Torah learning but opposed by many due to his politics, tactics, and the corruption that in time occurred under his leadership. An ardent traditionalist who fought vociferously against Zionism, the

Law 113 ultra-Orthodox Agudat Yisrael, and any threat to his own authority, Shapira dominated much of Jewish life in interwar Munkacz.57 Struggles between Rav Shapira and other forces within the Jewish community became ubiquitous and intense. The Rav was substantially successful: whatever inroads Zionists, communists, and other secularists made in the 1920s and 1930s, on the whole, most of Munkacs’s Jews maintained a more traditional outlook and lifestyle.58 Moreover, Rav Shapira’s followers were proud of his success in creating and serving as the most renowned figure of the anti-Agudat Yisrael camp, which was composed of “ultra-conservative segregationist Hungarian, Rumanian and Czechoslovakian Rebbes.”59 Regardless, the heated debates over the future of Munkacz’s Jews were themselves a measure of the community’s size, strength, diversity, and vitality. At the death of Rav Shapira in 1937, he was succeeded by Boruch Yehoshua Yerachmiel Rabinovich (1914–1997). Rabinovich, or Boruchel as he was known, not only lacked a blood connection to his predecessor but also, despite his own prodigious Torah learning, did not appear to possess his father-in-law’s personal charisma. His mother-in-law, Rachel Perl, the dowager rebbetzin of Parczew, was an ongoing, crucial, and domineering presence at the court during Boruchel’s tenure. With her late husband’s successor an outsider whose roots lay in Poland, she was far more knowledgeable of all things Munkacz; she was prepared to insist that he follow his predecessor’s dying wish that he maintain the practices of Munkacz Hasidism. Before he could establish his authority on solid footing, her son-in-law became overwhelmed by the events of the Shoah. Thus, an emerging dynastic crisis for the Hasidim of Munkacz in the late 1930s soon became inseparable from the community’s larger collapse under the weight of World War II and the Shoah. During the period from the Hungarian repossession of Transcarpathia in late 1938 to the spring of 1944, the community struggled to stay afloat. The Far-Right Hungarian regime imposed increasing antisemitic restrictions that shuttered or impoverished numerous Jewish institutions, drove Zionist activity completely underground, and left large segments of the community in penury. Large numbers of Jewish men in Munkacz were drafted into the labor forces of the Hungarian army, many never to return. During the summer and fall of 1941, in a brief wave, several hundred Jews from the area were deported, including Boruchel. Despite these escalating measures, rumors that circulated widely about antiJewish atrocities, and even several eye-witness accounts by those who had returned from the East, many town residents clung with persistence to whatever hope they could that they would survive, maintaining such an outlook till the bitter end. After being deported and narrowly surviving by hiding for months, Boruchel returned to Hungary; he sought desperately to save as many Polish and Slovakian Jews as he could and to alert Hungarian Jewry to its imminent danger. He worked tirelessly at this task for the next two years, basing himself largely in Budapest, where he had hoped anyway he would ultimately move his court.

114  Elisha Ancselovits and Ethan B. Katz In March 1944, the Germans occupied Hungary. By that time, Boruchel had concluded that the time had come for him to leave. In February, he wrote a letter to his flock informing them that he – scion to a vociferously anti-Zionist rabbinic dynasty – was about to emigrate to Palestine. He gave a speech in Budapest in March to a packed crowd at the Grand Synagogue, begging them to come with him and expressing pessimism over the future of the Jews of Europe. He then left the next day with his family, though his mother-in-law insisted on remaining behind. In May of the same year, when the Nazis began the deportations of 29,000 Jews from the Munkacz Ghetto on nine trains, Boruchel was far away in Palestine.60 Already earlier, in the face of growing antisemitic pressures and uncertainties, the absence of rabbinic leadership in Munkacz had been felt acutely, particularly among the religious community.61 Many would never forgive Boruchel for leaving Munkacz in its hour of greatest need and for turning against his father-inlaw’s anti-Zionism.62 For Rabbi Kalish specifically, the sense of abandonment of the tradition, community, and dynasty must have been at once physical and ideological. R. Kalish had studied under the vibrant Rebbe Shapira. And yet R. Kalish had personally spent most of the war in a Munkacz already bereft of Hasidic leadership, had been deported, had survived the worst horrors of the Shoah only to return to a struggling community of survivors; he was then deported yet again by the Soviets to the Gulag, only to return later to a town that had become a mere shadow of the former Munkacz. It is telling that in the opening paragraph of his query to Rabbi Weiss, R. Kalish refers to the absence of rabbinic leadership that existed in Munkacz at the time of the ill-fated unions that begot the mamzerim. This reference was much more than a simple practical observation. It was an implicit contrast to his own fealty to the community, and a possible reflection of one more element in the wider sense of loss and crisis that the community faced following the Shoah. Post-Holocaust History, I: The Return to Munkacz Following the Holocaust, most of the Jews deported from Munkacz would never return. The chaotic nature of the summer of 1945, particularly in this borderlands region, makes it difficult to estimate the overall numbers of survivors: 4,000 returnees from wider Transcarpathia relocated to Rumania in 1945; another 6,000–8,000 went instead to Bohemia or Moravia, while 2,000 others from the Czech units within the Soviet army who had come from the Transcarpathian region settled in western Czechoslovakia; several thousand (the number is very difficult to approximate) ended up in Hungary, and a number of less than 1,000 in Slovakia. Among the 15,000–20,000 survivors of the Shoah in the region, some 2,000 were from Munkacz. Although contemporary estimates varied widely, it is clear that many fewer Jews returned to Munkacz than had left. Roughly 85% of the town’s Jewish population had perished.63

Law 115 Those survivors who came back earliest were often shocked to find what seemed like a ghost town. For example, one survivor, Miriam Tchebiner, describes the experience of wandering empty streets and finding abandoned homes, waiting for any survivors to return, and asking herself “What happened here?” before encountering a Roma boy who asked her if she was looking for Jews.64 By June 7, 1945, the numbers had increased slightly. A delegate of the Red Cross to Transcarpathia reported: “At Munkacz merely 1200 people returned to the city and live there.”65 And among those who came back, most would not stay for long. In addition, many who came to Munkacz were not native to the town but were transient migrants from neighboring regions. Furthermore, by late June 1945, the formerly-Hungarian Munkacz – which had been occupied by the Red Army in the fall of 1944 – became Mukacheve in the Soviet Ukraine province of Transcarpathia. Thus, as a survivor of Auschwitz reported, out of 1,100 returnees native to Munkacz, only 600 stayed after the Soviet takeover.66 By April 1946, a report from the American Joint Distribution Committee (JDC) said that while the town initially had as many as 10,000 Jews right after the war ended, now only 100 Jewish families remained. By July 1945, moreover, those women returning to Munkacz who still awaited their husband had good reason to presume him dead. They had good reason to presume that the men who would return to Soviet Mukacheve had already returned. Many of the women (and men) who were returnees to Munkacz had passed through Budapest, checking daily the bulletin board at the Great Synagogue and looking through long lists of names for those of their relatives. They had also checked newspapers, appeared at the offices of international agencies, posted notes in community centers, listened for rumors of their loved ones, and gone each day to the train station hoping for a sign of life.67 By mid-summer 1945, furthermore, three successive waves of returnees had arrived back in Munkacz: first, in early 1945, were those who had been conscripted into the Soviet army as labor servicemen; then in March the deportees freed from the camps of Eastern and Central Poland; some returned from Budapest thereafter once the Allies pushed the Germans out of Hungary; the final wave, just liberated by American or British forces, came in June 1945.68 With the last group, therefore, even the many who returned to Munkacz specifically in search of relatives and were willing to wait a while69 would have reasonably inferred that anyone who had not either returned or made contact was dead. After all, even Tubi Halbert – whose fiancé would not reappear in Munkacz until March 1947 – established contact with him much earlier, shortly after returning to Munkacz following the end of the war.70 For better or worse, the presumption of death was not always accurate. Some women remarried, only to be shocked later when their first husbands reappeared. Presumably these first husbands included men who reappeared very late. After all, 10 million displaced persons across Europe sought to return to their homes in the spring and summer of 1945. The majority came from Eastern Europe. As of September 1945, military authorities and the

116  Elisha Ancselovits and Ethan B. Katz United States Relief and Rehabilitation Administration (UNRRA) had helped 7,270,000 displaced Soviet laborers and prisoners of war; 1.6 million Poles; 1.8 million French citizens; some 696,000 Italians; 389,000 Yugoslavs; 348,000 Czechs; and 285,000 Hungarians.71 Nearly 1 million refugees were still in Germany one year after the Allied liberation; almost all of them were East Europeans who refused or were unable to board repatriation trains.72 Moreover, unknown numbers of prisoners of war and refugees were being retained by the Soviet Union in labor camps. The first husbands who returned after their wives had remarried included men who reappeared in one of the initial waves of refugees to Munkacz, only to find that their wives had remarried even before July 1945 (unlike Tubi Halbert, who lived with her sister as she waited for her fiancé).73 This was reported by Rabbi Tzvi Elimelekh Kalish of Munkacz. R. Kalish had also returned to Munkacz after surviving Auschwitz. And R. Kalish returned there yet again from Siberia following Stalin’s death in 1953.74 R. Kalish viewed life in a nuanced manner – exemplified by the following teaching. He taught that a person must recognize and accept the truths that exist even within false assertions and ideologies.75 Nonetheless, he wrote from Munkacz in 1965 that, in the immediate aftermath of destruction, “newlywed young men had not checked properly and had married whatever women they chose, and in those days immediately in the first months after the liberation, there was no leader in the city that could awaken them [to the danger].”76 Even as R. Kalish recognized that the women who had returned had “gathered together from exile in Germany” and were “far away from” their husbands,77 he described the speed with which many remarried as heedless.78 Although it might seem contradictory to display both compassion and judgment toward these women, such an outlook was hardly unusual. We will see from rabbinic and broader historical sources that both Jews and gentiles recognized that a nuanced approach to life called upon society to address, rather than deny, the real-life messiness of men returning to discover wives who had not waited for them and had married anew. Women in the Postwar Devastation Those men and women of Munkacz who remarried without consulting with experts were not exceptions. Across Europe, the war and genocide had been particularly devastating for many women. Staggering numbers of rapes and sexual assaults occurred in the course of the war, the Shoah, the liberation, and post-war occupations. In Germany alone, between 20,000 and 1 to 2 million sexual assaults and rapes occurred at the hands of Soviet soldiers; in Hungary, Soviet soldiers raped some 50,000 to 200,000 victims; to the West, American soldiers raped an estimated 14,000 women in France, Germany, and the United Kingdom. The Nazi race laws that prohibited sexual contact between “Aryans” and Jews were regularly violated, in many cases with the knowledge of local Nazi leadership.79

Law 117 In her book about the immediate postwar period, Jews, Germans, and Allies, historian Atina Grossmann sums it up well: Women survivors carried with them memories of rape and sexual violation, not only by Germans, local fascists, and Soviet liberators, but also in forest encampments, ghettos, and hiding, where women were subject to sexual coercion by partisans, rescuers, and fellow victims. Many had endured the sheer bodily terror and humiliation imposed by Nazi roundups and concentration camp processing, when they were ordered to undress or their pubic hair was shaved along with the hair on their head. Women especially had buried within them complicated, uncommunicable stories about prostitution and rape, about instrumental sex, or even about genuine love affairs – and all the “gray zone” situations in which sex functioned as a crucial currency of survival. Because of those experiences and precisely because “after liberation, when chaos reigned … all women were considered fair game by Soviet liberators,” the experience of liberation (and the prospect of future heterosexual relations) may have been profoundly different for women and men.80 Survivors, however, women and men, overwhelmingly did not speak about this. Just as shame quickly shelved men’s discussions of Holocaust memories of degradation,81 women stayed silent about having been raped82 – despite both men and women survivors knowing that women and girls83 had been raped, and even as a 1944 special task force of UNRRA already recognized the need of refugee women and girls for sexually-safe spaces.84 And this studied silence finds a coded echo in an unexpected place – the rabbinic langue of R. Yitzchok Yaakov Weiss. In 1946, Weiss was asked whether women who had been liberated from concentration camps should be treated as “captives” who had been servient to men, placing them in a category of women whom a priestly/kohen may not marry or even keep. Rav Weiss ruled that these women could in fact be married to kohanim. He argued, in part, that the woman could not have saved her own life in the camps by having sexual intercourse with a Nazi, because any German officer who would engage in such acts would have been severely punished. He wrote: “although they [the Germans] intended evil against us [by issuing the Rassengesetze, or racial laws], God meant it for good,” since women were not raped by the Nazis.85 Meaning, Weiss ignored the reality that rape among Jewish prisoners of the Nazis occurred regularly and that in these areas the race laws were frequently honored in the breach. Although that response may first strike us as grossly disrespectful of the horrific trauma suffered by many women victimized by the Nazis, it reflected in rabbinic language the attempt, by women and men, to regain dignity and to attempt to piece back together the fabric of home, society, and community. Being the victim of rape or sexual assault, or being sexually “impure” (whatever the reasons), at this time were both – as they remain – frequent sources of shame. And just

118  Elisha Ancselovits and Ethan B. Katz as most women and men after the war proved extremely reluctant to speak publicly about experiences and knowledge of women’s rape, sexual assault, or self-protective participation in the “sexual economy” of the camps or life under occupation,86 Weiss protected these women’s honor and their privacy – at a time when those were in short supply – by stating a default assumption that such things had not happened. Instead of speaking about this, numerous women in the wake of such experiences sought out children and marriage. Both phenomena were widely remarked upon at the time. The years after the war witnessed an astonishing baby boom in the DP camps. By late 1946, a survey of the American Joint Distribution Committee (JDC) showed 750 babies born each month in only the official DP camps of the U.S. zone in Germany. According to the same study, “nearly one third of the Jewish women in the zone between 18 and 45 were either expectant mothers or had new-born babies,” and there were 8,000 Jewish infants under a year old, after there had been hardly any under 5 at the start of the year. JDC observers noted an “unprecedented rise in [the] Jewish birthrate,” that they attributed to “the overwhelming desire of Jewish DPs, most of them sole survivors of destroyed families as a result of Nazi persecutions and horror, to propagate and perpetuate their kin.”87 Even as birth rates slowed a bit by 1948 as it became more likely that Jews would emigrate either to the new State of Israel or to the U.S. with its recently relaxed immigration restrictions, the annual birthrate remained between 31.9 and 35.8 per 1000, greater than that of the United States, Sweden, or Switzerland, experiencing their own postwar baby booms, and far higher than the prewar Eastern-European Jewish birthrate.88 Grossmann has argued compellingly that this reflected a life-affirming instinct born of having endured the mass murder and terrible persecution of the Shoah. Of course, given women’s frequently precarious economic situation, affirming life could also mean finding an urgently needed breadwinner. Some vocalized quite explicitly the urge to reproduce. Many women had not had their period for months or even years and feared that they had lost the capacity to have children, making them eager to marry and see if such a thing might still be possible after all.89 Indeed, for a host of reasons, many women would marry soon after the war’s end. U.S. chaplain George Vida, himself a refugee from Eastern Europe, observed the tremendous sense of urgency among DPs not only to bear children but simply “to love and be loved. To be accepted, to be respected far more than normally needed by every human being.” JDC workers struggled to meet demands for chuppahs, mikvehs, traditional plain gold wedding rings, and sheytels for Orthodox brides.90 As we will now see, already during and immediately following the war, leading halakhic authorities recognized and even validated this human need. At the same time, however, they recognized another human need. They recognized the survivors’ emotional need to regain and even rebuild whatever aspects of their former lives that they could. This need was expressed both

Law 119 communally and personally. We saw above that this need was expressed personally by finding survivor hometown acquaintances, relatives, sometimes even cousins, and more rarely even siblings. More relevant to the focus of this essay, this need was also expressed personally by finding that one’s husband was alive and had waited for her, or that one’s wife was alive and had waited for him.91 The Rabbis Respond Just like relief agencies, medical professionals, international rescue organizations, and children’s advocates, Rabbis Weiss and Breisch recognized the unprecedented nature of the events unfolding around them. They did so consistently, with a series of halakhic rulings meant to support, by turns, the emotional needs of women, the collective goals of procreation and renewal, and the maintenance of traditional Jewish society. We begin our discussion with a mid-war responsum from R. Yaakov Breisch. It was written in December 1943 or January 1944, for a husband.92 It was a responsum for a young man and a child who had lost their wife-mother a year earlier when they had become separated while illegally crossing into Switzerland through deep snow. R. Breisch pointed out that it was clear that the missing wife-mother had died since a coat that was definitively identified as hers had been found near a frozen body of her build and height and same clothes on that route. He thus permitted the young man to remarry and even called upon him to begin the mourning process (Shut Helkat Yaakov EH #48). That ruling was simple. Shortly after October 1944, R. Breisch wrote a more telling responsum.93 He permitted a young orphaned Jewish woman to marry a fellow Jew despite the fact that her official birth certificate in Klausenburg (Kolozsvár/Cluj-Napoca) stated that her father’s identity was unknown and that survivors from her hometown knew that her mother had been a maid who bore her out of wedlock. According to the halakhic tradition, the children of a single mother who cannot identify the father – meaning that she was so promiscuous that she cannot even successfully lie and claim to identify the father – are viewed as possible mamzerim (ShA EH 4:26; 6:6). Nonetheless, pointed out R. Breisch, the mother is not known to have been promiscuous. Thus, she may have simply refused to identify the father for other reasons. More to the point of our discussion, R. Breisch pointed out that the whole question of personal status has to be reexamined “after the destruction of the Jewish nation, and the uprooting and dispersion of the few [surviving] boys and girls who grew up without their parents.” Ergo, he argued further, any orphan born of a single mother may marry any fellow Jew as long as the dead mother is not known to have been promiscuous. If there is no evidence of promiscuousness, there is no need to suspect promiscuousness. As we will see further in our discussion below of Jewish men marrying not fully converted “slave-women,” R. Breisch added an ultra-Orthodox consideration to rule leniently about such young women. He argued that

120  Elisha Ancselovits and Ethan B. Katz even if such women could find a gentile man willing to undergo Orthodox conversion, such gentiles rarely, if ever, converted with the intent to obey the Torah (Shut Helkat Yaakov EH #10). And such men, according to Breisch’s understanding, were not valid converts (Shut Helkat Yaakov YD #150, 151). Therefore, a Jewess – who is Jewishly expected to build a household – must be allowed to marry a Jewish husband. Allowing a woman to marry, noted Breisch, is the reason that halakhic tradition assesses leniently even the question of whether a woman’s husband is dead and so, all the more so, it is a good reason to rule leniently about less severe concerns – such as assessing a merely possible, doubtful mamzeret as actually an acceptable spouse (Shut Helkat Yaakov EH #10). After all, as R. Breisch reminds a questioner in a different responsum, sexual relation with an actual mamzer is a lesser Biblical sin – not at all equivalent to incestuous or adulterous sex (Shut Helkat Yaakov #67). Unfortunately, messier questions now began arising. These were not a matter of accepting that some dead body is truly the body of a given missing person. These were not questions about avoiding unnecessary wariness about merely possibly doubtful mamzerim (as we also discussed above). The messier question was what survivors should do when they were not sure whether their spouses were truly dead – when bodies of spouses were not found. As Russian forces liberated/conquered Hungary in late 1944 and early 1945, this question increased in intensity. Already during the war, Hungarian rabbis – such as R. Tzvi Meisels, R. Moshe Hayyim Grunfeld, and R. Yoel Teitelbaum – were asked about women who had reason to believe that their husbands, drafted into the dangerous Hungarian forced labor force, had died among the overwhelming numbers of dying drafted; the rabbis insisted on exercising caution. They were sympathetic to the women (and particularly their desire to say Kaddish) but very cautious about drawing or implying any firm conclusions regarding their husbands’ fates.94 In 1944, as Hungary collapsed, so did the hope of finding answers.95 Moreover, as battle fronts shifted, Hungarian Jewish men of the labor force were often shipped off by the Soviets as prisoners – and even Jewish men liberated from camps sometimes found themselves conscripted. Meanwhile, after the death of his wife on November 26, 1944,96 R. Weiss returned to Grosswardein (once the Hungarian city of Nagyvárad, now the Romanian city of Oradea) to search for his abandoned writings. Against his original plans, R. Weiss stayed to rebuild the Jewish community and Orthodox Jewish life. And as the war ended, the issue of returning spouses became more acute. R. Weiss quickly observed what he described as “many [people] hurrying to marry and getting married,” and became concerned about “the possibility of making mistakes.” In response to Jewish survivors – men – intermarrying, or even cohabitating, or sleeping casually with women without getting married, R. Weiss addressed the question of men remarrying.97 The period following the end of the fighting began to bring clarity regarding which women did or did not survive. Although

Law 121 Jewish women were raped alongside other women (above), they were not shipped off to Soviet prison camps and such. Thus, it became relatively easy to evaluate whether a given man’s wife had survived or had died (or at least run off). By July 1945, R. Weiss organized a convention of the Romanian Orthodox rabbis that publicized a standard for all rabbinic courts to determine when given men survivors were to be evaluated as widowers who may remarry.98 That, however, was only half the picture. Even as R. Weiss condemned the ease with which survivors were finding partners and possibly committing adultery, or marrying the sister of a still-living wife (or a childless but living husband’s brother), he also pointed out that despite the mayhem in Europe there were already good grounds to allow women to remarry if there was some witness who saw evidence of their husbands’ deaths – such as their husbands being sent to the left in the Auschwitz selektion or their husbands not appearing in the groups that were sent to the right.99 Finally, on November 26, 1945,100 R. Weiss accepted responsibility to publicize a document – kunteres agunot – for all rabbinic courts in Europe that this was a definitively sufficient standard on which all rabbis could rely automatically.101 A special Beit Din was immediately set up in postwar Budapest to release 3,408 men and 1,385 women from their previous marriage ties.102 Moreover, R. Weiss’s kunteres agunot became influential for shaping the standard rabbinic opinion on the matter even beyond Hungary.103 Another responsum from 1947, reflecting internal disputes among Hungarian Jews, underscores further that in these halakhically fraught matters related to marriage, Weiss was concerned about real human issues and messiness rather than about technical legal discourse. Despite the absolute opposition of Weiss and other ultra-Orthodox decisors to the rabbinic courts of the “Status Quo” stream of Hungarian Judaism, and also to their religious divorces, Weiss did not treat a woman divorced by her husband in such a rabbinic court as still married.104 He all the more so did not view any children that she bore from the second man as mamzerim, as if they were children born of adultery. According to Weiss, in other words, if a man actually divorced his wife willingly in front of fellow Jews,105 then the messiness of the woman moving on to another man has been addressed and it makes no sense to view the woman as an adulteress merely because of the composition of the rabbinic court that issued her divorce, let alone to view her subsequent kids as mamzerim.106 A more telling piece of evidence that R. Weiss and R. Breisch – and other rabbinic sages – were actually addressing the messiness of all this is from a bit later. Eventually, in light of the work of relief and aid organizations it became clear that it was most likely that a husband who had not yet returned and of whom there was still no trace must have died. This was the presumption even if he had simply been sent to a death camp and nobody saw specific evidence that he had been selected for death. Thus, on May 26, 1947, R. Breisch ruled that if a woman already remarried because all traces of her husband were

122  Elisha Ancselovits and Ethan B. Katz lost after he had entered or even been sent to a death camp, she need not be divorced and that allowing marriage de jure in such circumstances was not completely unreasonable.107 In part, Breisch worried about what these women might do if they were not allowed to remarry. Moreover, by at least June 1949,108 R. Weiss – in an article published in a rabbinic journal – now also gave weight to this point. In part, he merely made explicit some of his earlier implications. For instance, he pointed out that it could make sense to set up higher de jure status when one might hope to find an actual body of the person one day. He maintained that it makes no sense, however, when one realizes that the body has been burned to ashes or such. It makes no sense to impose “eternal enchainment (igun [grass widowhood]).” More significantly, R. Weiss now stated explicitly that that even testimony that the husband had been sent to a death camp is strong evidence of his death.109 Like their contemporaries ministering to refugees, orphans, and shattered communities across Europe, both of these rabbis understood that in Breisch’s words, European Jewry now faced an “emergency” situation.110 Post-Holocaust History, II: Rebuilding Self-Identity through Purpose and Myth Given the level of devastation around Munkacz/Mukacheve, it is unsurprising that this region too felt the impact of broader patterns of massive displacement, including an observable rush to marry and bear children. The trickle of refugees awaiting word of loved ones in distant lands was felt in the atmosphere of the postwar Jewish community. According to a report delivered a few years after the war’s end to the World Jewish Congress by Dr. Mordecai Martin Nahum (a prominent leader in the postwar community of Sub-Carpathian Jews), between 1945 and 1947, numerous new and growing Jewish families had been established among the survivors of the region; as of 1948, many of these families had between three and five children, though two was more the norm.111 Likewise, the destruction and trauma of the war years catalyzed a quest for new beginnings in the form of rapid marriages. One returnee to Munkacz recounts in her memoir: [T]he mood was not one of grief, perhaps because there was simply too much to grieve. As I had experienced in the hospital, people lived for the day, for the moment, not worrying too much about the future and yet not quite believing in it either. The main thing, once again, was to have someone. There were weddings every day. People would hear about one couple getting married and say to each other, ‘Why don’t we get married too? The Gypsy musicians are already here, the wine is open, the food has arrived – why not?’ And so they did. People got married in groups, in epidemics. Why not?112

Law 123 Similarly, numerous women interviewed by anthropologist Anya Qwilitch spoke about weddings in the years following the war as widespread, small, hastily convened, and concerned as much with starting a viable new life as with finding a love match. Piri Berger, for example, after learning that her husband-to-be Moyshe had perished, was ready to move to the U.S., but then a cousin of her fiancé showed up: “I was so glad that I finally met someone close. He was looking for family. I was looking for family and we didn’t meet anyone […] There was a wedding. We put up for ourselves a chuppah. And this was the beginning of a new life.”113 Once again, we should not lose sight of the way that the pragmatism of these matches was often as much about economic subsistence as emotional support or starting a new family. Thus, although R. Kalish described the speed with which many remarried as heedless (above), Kalish also recognized – and was cited by R. Weiss as recognizing – that the women who had returned had “gathered together from exile in Germany,” were “far away from” their husbands, and had no rabbinic leader in the city to awaken them to the problem of remarrying quickly.114 He recognized that these unions occurred, “on account of the chaos from the movement of families in scattered lands.”115 Similarly, R. Breisch – in his follow-up to the responsum about the young orphan girl (above) – recognized that “the terrible destruction” had led to the phenomenon of traditionally educated and observant youth whose paternity was unknown; he thus pointed out that one must avoid being too concerned about such questions when those youth reach the age of marriage.116 Thus, we finally return to one of our opening questions. Why were the sons of women, who had married quickly and whose original husbands happened to turn out to be alive, considered mamzerim? After all, the same rabbis who categorized them this way sympathized with the reasons that had led to less-than-ideal sexual unions. Before we can answer that question, however, we must recall a point that we made at the outset. In key respects, R. Weiss and R. Breisch actually did not treat these young men altogether as mamzerim. They sought to allow such a man to marry a free convert, who was merely designated “a slave-woman,” and thereby to sire children who would not be mamzerim. That is not the same as allowing a mamzer man to sire non-mamzer children through an actual slave-woman. To make the distinction more precise: we mentioned earlier that the tanna R. Tarfon had taught that that one sometimes need not be wary of the character of children born to a mamzer father who had himself been born to flagrantly sexually inappropriate parents. If the son managed to humble himself by foregoing a wife and legal inheritors of his line for a slave partner whose children he freed into Jewish citizenship and a new familial identity in which they could move up the social ladder,117 one need not be wary of marrying that humble son’s children. Nonetheless, in the case at hand, R. Breisch and R. Weiss seemingly should not have entertained this option in a country that did not have slavery. If a country does not have slavery, a man

124  Elisha Ancselovits and Ethan B. Katz does not humble himself when he marries a wife that some rabbinic figures merely label a slave-woman. Under state law, she is his full wife. If a country does not have slavery, a man does not humble himself by having children who are not his legal inheritors under rabbinic law. Under state law, they are his children.118 Yet, both R. Weiss and R. Breisch answered yes – at least in principle. Ergo, R. Weiss and R. Breisch are saying something nuanced here. On the one hand, R. Weiss and R. Breisch were not concerned about these young men or any of these men’s children expressing “mamzer-like” negative behaviors. That is why they validated any children that these men might sire through a free convert wife who was merely designated “a slave.” On the other hand, they were not willing to forego this designation. Although they were not wary of the children that these mamzer men might sire, R. Weiss and R. Breisch forbade marriage between these men and Jewish women and even required that free convert wives be designated slaves. De-Coding the Responsa How we make sense of this cuts to the heart of this book’s purpose. Both academic and yeshiva students spend our time analyzing texts based on the premise that “if we merely know that someone holds a certain sentence to be true, we know neither what he means by the sentence nor what belief his holding it to be true represents.”119 Worse, we know from personal experience that a fellow person’s words can actually confuse us.120 Thus, we know that we must discover what people mean to say in the langue, and not only the vocabulary, that they speak. So, we will now analyze the langue of R. Weiss and R. Breisch. We will analyze their langue by examining the point over which R. Breisch and R. Weiss disagreed. We will examine the disagreement between R. Weiss and R. Breisch over whether a slave-woman must fully convert to a punctilious observance of halakhic Judaism in order for her to be recognized as a slave-woman, or whether she might merely reject idolatry and loosely accept Judaism. And we will see that the rabbis’ competing arguments seem merely technical but actually make sense only when read as straightforward arguments about real life. Then, having seen how to read their langue, we will draw on our historical findings to explain the substantive reason that R. Weiss and R. Breisch considered it relevant to have these young men marry someone who merely in terms of rabbinic discourse could be considered a slave-woman. As regards the viability of a gentile woman becoming a “slave-woman” even by merely rejecting idolatry and loosely accepting Judaism, R. Breisch ruled that it suffices. This was the same R. Breisch who, had written above, during the last months of the war, that a person is not a convert unless they accept all of halakhic Judaism.121 Now, however, R. Breisch contended that

Law 125 one could become a “slave-woman” without accepting all that. And he seemingly offered merely technical arguments, ones that both appear weak and do not address the underlying question of why he did not consider a full Orthodox conversion necessary. R. Breisch argued as follows: It is obvious that if a gentile was to convert in a state that forbade conversion he would nonetheless be a Jew… [since] the [halakhic law that mandates to obey the] law of the state applies only to economic matters… One could argue that slavery is different since slaves are acquired to be owned for servitude …. Thus if there is no economic ownership due to State Law the man or woman would also not be considered a slave [for religious matters, i.e.] as regards an injunction [against marrying gentiles]…. However… [some classic Central and Eastern European authorities ruled that] the [the rule that the] law of the State overrides [halakhah] is merely rabbinic; Biblically [i.e. in principle], State Law does not override [halakhic norms]. … Furthermore, in this case in which we all know that the man does not intend to actually acquire the woman for servitude … State Law [on slavery is] irrelevant …. And even if one is unsure of the validity of this [responsum’s argument] and views such a woman as not sufficiently a slave [but rather as apparently still a gentile woman] … this is [a] better [arrangement] than having him [= the mamzer] marry an actual gentile woman who has not immersed and accepted the [Jewish] commandments …. (Responsa Helkat Yaakov EH #23) If we read him technically, R. Breisch argued that: (1) a contemporary mamzer does not actually need and wish to own a woman’s person as a slave but rather to have her become a semi-Jewish member of his household, a “partial-convert.” Therefore, he does not need this acquisition to be valid under State Law. (2) That being the case, inasmuch as State Law is irrelevant when the issue is an exclusively religious one – such as the issue of conversion – State Law is not relevant here. (3) Moreover, it may very well be the case that the Jewish rule to accept the overriding validity of State Law in economic matters is a relatively minor (rabbinic) regulation and not a critical (biblical) rule – and the general principle in halakhah is to be lenient regarding doubts about merely minor (rabbinic) laws. Thus far, all this sounds merely technical. Worse, R. Breisch embarrassingly argued further that (4) even those who are not convinced by his arguments should recognize that it is better to allow a Jewish mamzer man to marry such a woman than to leave the mamzer to marry a (completely) gentile woman. But that seems to make no sense. Those who disagreed with R. Breisch viewed such a woman as a gentile. Why should they agree that it is better for a mamzer to marry one gentile woman over a different gentile woman?

126  Elisha Ancselovits and Ethan B. Katz R. Weiss disagreed with R. Breisch and took a different approach. He argued that a slave-woman must fully convert to a strict observance of halakhic Judaism, in order for her to be recognized as a slave-woman: Regarding the question whether the category of slaves exists today when it is in violation of the law of the land … we must be strict regarding this biblical injunction [against marrying a gentile woman]… Although, had we the right to decide a matter debated between great rabbis of the past, I would justify the position that the law of the land is irrelevant. … Accordingly, I suggest a cover-all-angles solution that will definitely allow a mamzer to marry such woman and will permit the children de facto. … To wit: he should acquire as a slave a gentile woman who wishes to enter the Jewish religion… and then the slave-woman should independently accept the commandments and immerse herself for the sake of conversion. [That way] if she does become a slave [according to halakhah], her independent conversion will be meaningless since she [as a slave] cannot convert [into full civic Jewish status] without the permission of her master … and if she does not become acquired, her conversion is valid. By doing so, a mamzer may marry her with a completely clear conscience … since she is … either a slave woman or a convert, both of which are permitted. The children[’s status] would [still] be debatable since if the mother has the status of a slave they may enter the congregation after they have been freed, and if she is a full convert then they may not do so [since they are born as Jewish mamzerim]. However, since their situation is a post facto situation … and the view that permits [halakhah to function independently of state sanction and the mamzer to acquire such a “slave”] is more convincing, we may rely on the lenient view. (Responsa Minḥat Yitzhak 5:47) If we read him technically, R. Weiss proposed a multi-step process: First, the woman should be acquired under halakhah as a slave-woman. Second, she should convert normally as if she were a free gentile converting to Judaism. That way if the acquisition of a slave is invalid due to modern law and she has remained a gentile, her subsequent full conversion allows her and the mamzer to marry. But the children would definitely be considered “slaves,” who could be freed into taintless Jewishness. Although there was a doubt as to the viability of a slave status in regard to marriage, the children would be considered slaves because the more correct legal opinion is that the acquisition of a slave-woman is valid despite State Law to the contrary. Putting aside the minor problem of this responsum’s inconcinnity regarding the viability of slave status, the responsum sounds like an instructional guide for how to overcome a technical problem. Moreover, even the solution sounds

Law 127 technical. Even were a mamzer to refrain from explicitly authorizing a given so-called “slave-woman” to convert fully, he would know in advance and would accept that the woman was going to next undergo a full conversion. Ergo, such woman should cease to be a “slave-woman.” Worse, R. Weiss – in the course of the six responsa in which he addresses this case – goes on to offer seemingly self-contradictory technical arguments. For instance, he argued that R. Tarfon only permitted living with a nonJewish woman if she is an actual slave: Regardless of civil law, inasmuch as a contemporary mamzer himself does not really intend to acquire the woman as a slave, he should be forbidden to cohabit with her since R. Tarfon only permitted living with a non-Jewish woman if she is an actual slave. Thus, the step of regular conversion is necessary in order to ensure that the mamzer may live with her. (Responsum 5:49) If R. Tarfon had forbidden cohabitating with a “slave-woman” who is not an actual slave and a full conversion would save the day, that must mean that the woman is definitely a full convert. After all, if she were merely a doubtful convert but possibly neither a convert nor an actual slave, sex would have to be forbidden. As R. Weiss argued earlier, sex between a Jew and a gentile is a serious sin halakhically and thus the halakhic rules call for being strict in matters of doubt. But, if the woman is considered a definite convert, the children would be mamzerim rather than freed slaves. Similarly, R. Weiss seemingly argued poorly again when he asserted that a full conversion solves the problem of contemporary slavery being merely fictional: Even if such a person is indeed a slave, she is clearly merely a fictitious slave, and such fiction could be legally unacceptable since it has no connection to real slavery – in which a person owns another to the point that the other cannot be released except by the documented will of the owner. Thus a real conversion is necessary in order to substantiate the fiction. (Responsum 5:52) Once again, if being a legal-fiction slave does not suffice to allow a mamzer and such woman to be together, that means that the woman must definitely become a full convert. After all, if she were merely a doubtful convert but possibly neither a convert nor an actual slave, sex would have to be forbidden. And, once again, if the woman is considered a definite convert, the children would be mamzerim rather than freed slaves. Fortunately, R. Weiss did also explain himself in terms that we Westerners can understand. He pointed out that inasmuch as slaves need not accept halakhah as absolutely as full-fledged Jews must,122 one must require regular conversions for all such women. Otherwise, one will end up creating

128  Elisha Ancselovits and Ethan B. Katz homes of Jewish men married to women who, for all intents and purposes, did not fully accept Judaism (Responsum 5:50). Even if a given mamzer is a truly God-fearing individual who would choose only a righteous and pious woman to be his slave-spouse, one cannot validate this option lest it come to be abused by others (Responsum 5:48). R. Weiss thus argued straightforwardly that one cannot accept into Judaism persons who are not committed to halakhah. And he pointed out forthrightly that to accept the mere designation of “slaves” as valid, for persons who were in practice free spouses, is in actuality to accept converts who are not committed to halakhah.123 More importantly for the purposes of this article, this forthright explanation provides the key for understanding how R. Weiss’s seemingly technical arguments were also direct discussions of this very explanation. It provides the key for seeing the sensibleness of his seemingly flawed argumentation. Moreover, this explanation even provides the key for understanding R. Breisch’s arguments. Finally, it provides the key for understanding why R. Breisch adamantly refused to accept R. Weiss’s solution. With this key, R. Weiss’s arguments read as follows: (1) Although he does not normally grant a state authority over Jews’ internal relationships and arrangements under Jewish law, R. Weiss argued that a state law forbidding slavery does make it problematic to live with a “slave” spouse. Inasmuch as state law makes ownership over another a practical impossibility, the designation of “slave-woman” turns into a fiction. In practice, a Jewish man has no power to enforce Jewish observance on this woman who is actually his wife – not his slave. Thus, just as intermarriage is forbidden so is this form of intermarriage forbidden. And R. Tarfon would, indeed, not have permitted intermarriage. Therefore, the woman must fully accept all the religious obligations in order for the mamzer to be allowed to partner with her. (2) Once a full conversion is done, however, rabbinic society could still choose to view the woman as a “slave-woman” and to view the children as “slaves” who are freed into a new familial identity. As promised, we will soon explain more of why R. Weiss cared to retain those statuses. For now, however, we have begun to see that R. Weiss’s seemingly technical and poor arguments are actually substantive arguments and that these are well argued. R. Breisch, in contrast, opposed R. Weiss’s solution. He argued that a mamzer should not be required to find the most pious convert (a woman who is also committed enough to halakhah to undergo a full conversion). R. Breisch argued that the conversion status of semi-Jews is one that Jewish society had granted in the past. In fact, slaves were semi-Jews. Thus, just as R. Tarfon had recognized that some Jewish men might sometimes be allowed exceptionally to live with semi-Jews, this lesser conversion can suffice for the Munkacz mamzerim – who would easily choose to marry a gentile woman if they could not find a Jewish spouse.124 As R. Breisch stated it, even if you weren’t fully convinced by his argument, having these men marry such Jewishly-identifying women was better than having them marry outright gentile women.

Law 129 To put it differently, R. Breisch first argued straightforwardly that Jews do not grant legitimacy to state laws that forbid conversion. Then he added that there is no reason to babble about the halakhic rule that the law of the state is binding when nobody is actually engaging in slavery and when Jews are merely conducting their own internal Talmudic-Jewish dialogue. Finally, he pointed out that even if one is not fully convinced by his position that semiconvert slave status is acceptable even without actual slavery, this option is better than having the mamzerim men intermarry. As to why R. Breisch forbade the mamzerim to simply marry natural-born Jewesses, that is a question that we promised to address. And now we can do that. Polygamy, Abandonment, and Communal Tension Now that we have seen that R. Breisch and R. Weiss did nothing more than discuss and debate straightforwardly, in rabbinic vocabulary, whether it would be a good idea or a bad idea to allow mamzer men to marry women who are not full converts, we can return to our opening question. Why did R. Breisch and R. Weiss even care to view the sons of the unfortunate wives whose original husbands returned as mamzerim? Or, to question this from the opposite end: If they truly were concerned about the potential problematic qualities of these sons, how did having these sons marry merely fictional slaves erase the concern about the next generation – about these sons’ children? To those questions, we must add a third one. Why do they not discuss the fact that they are seemingly doing something strange? Why do they not even acknowledge that they are seemingly diverging from the halakhic tradition with regard to potential mamzerim? That is, they are neither hesitating to label given persons and their descendants as potentially problematic (mamzerim) nor completely distancing given persons and their descendants from marriage with fellow Jews when there are strong indications that they may be problematic. As usual, the answer lies in the question – and in historical context. For historical context, we should recall that though the ten mamzerim from Munkacz may not have been seen precisely like the “wolves” described above by postwar British-American author Alice Bailey, they remained the very embodiment of the collapse of the traditional Jewish family structure, norms, and values at the hands of the Germans and their collaborators. Rav Kalish’s account that Rabbi Weiss had reproduced described the marriages that produced these offspring as “impure unions.” Here were children whose families had been irrevocably upended and stained due to the Nazis; their fathers and mothers had made decisions in the wake of the Shoah that were comprehensible in their time, but ultimately proved disastrously ill-advised. In short, these became in their own way, among Europe’s millions of “lost children.” Typically, those defined with this label had lost parents in the war or in the Holocaust, or had been hidden or exiled in strangers’ houses or

130  Elisha Ancselovits and Ethan B. Katz faraway lands. Such children’s future security, home, and identity were now matters of considerable doubt and contestation. Yet these mamzerim, even if their parentage, religion, and place of residence were clear enough, were in their own way lost children. They were children of parents who were looked askance at by at least a portion of the community, because of the choice to marry while an original husband proved to still be alive. To be sure, nearly all survivors who managed to return to EasternEuropean communities knew the experience of finding desolation upon their arrival and seeking to begin a new life. Yet they also knew the experience of having survived in part through maintaining the hope that they would not be forgotten by their loved ones, and that they might even be able to rebuild their former lives after the war. Which of these experiences created a stronger emotional response to the situation of the mamzerim would have varied within the community – from household to household and social group to social group. Since the mothers of the mamzerim in Munkacz remained married to their new husbands, divisions over how to respond to this unfortunate situation deepened. Children of such unions could not gain full acceptance, and would have been treated by parts of the community as being in some manner outcasts – lost to full integration into Judaism or into the Munkacz community. Moreover, the specter of the lost child, and the extraordinary potency of children as symbols of reconstruction, community, family, and collective belonging, meant that, unless the “cycle of the generations” could be broken, the same dilemmas would persist in the lives of these mamzerim’s children. Finding a solution required tempering one’s moral judgment with some degree of compassion and pragmatism. Consider a further illustration in the story of the following married couple – the gentile Austrian Anton Weber and the gentile English Dorothea Le Brocq of the British island of Jersey. Following the German occupation of the island, Anton was drafted into the German army. From the time of the Allied invasion of Normandy, however, the couple lost contact with each other. Unbeknownst to Dorothy, Anton was taken prisoner by Soviet forces in May 1945 and was not liberated and returned to Austria until September. Meanwhile, Dorothea (famous today for having sheltered a Jewess) married a liberating British soldier on August 23, 1945, and moved to London. Thus, she received none of the letters that Anton sent to her in Jersey. The couple met only in 1949, when Anton finally returned to Jersey after his letters had been unanswered. Dorothy was then charged with bigamy and brought back to Jersey. In the end, and this is most relevant, Dorothy both was convicted yet also merely placed on probation.[49] On the one hand, Dorothy’s behavior was judged as immoral. On the other hand, Dorothy was morally exculpated, to a degree. Perhaps she was exculpated because she had had no children with Anton, nor even with the second husband, and so had caused no tangible harm to her husbands other than forcing them to seek new wives. Perhaps she was exculpated because of bias against her first husband, who was Austrian. Perhaps she was exculpated

Law 131 because British mores were changing as the marital unit was becoming less integral to husbands’ economic survival. Whatever motivations and socially broad factors one may seek, however, Dorothy was exculpated because she had not simply abandoned a shared house with a husband to move in with another man. Rather, after both the hardship of war and not hearing from Anton after the war, she had sought to build a life. And yet Dorothy was also judged morally. She was judged morally because she did not wait for her husband, a suffering prisoner of war. For yet another, older historical context, consider Jewish tradition. It also had laws about wives waiting for husbands, rather than marrying other men, and about husbands waiting for wives, rather than marrying the wife’s sister. In Second Temple times, when some Jews earned money either through land ownership – sometimes in far-off lands – or through international trade, society did not tolerate a wife betraying her husband by marrying another man while her husband was away. Society considered this adultery. Or if a wife went off to deal with her birth family’s assets, society did not tolerate her sister and husband betraying the wife by marrying each other while the wife was away. Society considered this incest. Nonetheless, pointed out the Tannaim, there is no room to judge a wife, or to judge a husband and sister, if they married after they received incontrovertible evidence that the husband or wife was dead. Even if the definitively dead husband, or definitively dead wife, were subsequently to show up alive despite what had been considered firm evidence they were dead, the wife – or husband and sister – are still considered completely innocent. Admittedly, the Tannaim and the later accepted halakhic view did not allow the wife to stay with her second husband, or the sister and husband to stay together, but all parties and children were considered innocent. However, there was yet another scenario. In this other scenario, a wife or husband heard from only one person that the spouse had died. Or they heard of their spouse’s death from even multiple persons – but from persons who were not all known to be completely upright persons, were related to each other or to one of the parties, and/or had not been cross-examined intensively. In these scenarios, the ideal expectation from a wife or husband was to wait for their spouse who had traveled on behalf of family interests. Although Pharisaic and rabbinic society did not stop the wife from marrying another man, or the husband from marrying his wife’s sister, it viewed such behavior with a degree of suspicion. Thus, if a husband later returned, the wife and her second husband were viewed as a mere pair of adulterers and their children as mamzerim. If a wife later returned, her husband and sister were viewed as incestuous and their children were seen as mamzerim.125 Even if the husband or wife did not return, those most judgmental of such a wife and her new partner, or of such a husband and his new wife/sister-inlaw, might choose to be wary. They might be wary of having their children marry the children of such parents. As they might express it, the missing husband or wife could return. Moreover, even if the missing husband or wife

132  Elisha Ancselovits and Ethan B. Katz never returns, the missing spouse could be alive somewhere wishing to get home. Admittedly, this avoidance of marriage with the children of such a union was not an absolute standard – unless the spouse returned (above). Naturally, the reality of being an abandoned wife could carry a high price for some women. That is why rabbinic society was not able to leave the whole question of marrying anew without some useful guidance.126 Furthermore, sometimes everyone was truly convinced that the husband or wife had died, despite the lack of incontrovertible evidence, and the post-Talmudic rabbinic tradition famously ruled leniently whenever rabbinic judges were convinced that the missing spouse was truly dead. Nonetheless, the character of a wife and a man who married although the woman’s original husband might be alive – or of a woman’s husband and sister who married although the woman might be alive – sometimes eventually raised significant concerns among fellow Jews about the couple and their children. This could end up being viewed as worse than a wife discreetly committing adultery while continuing to live with her husband as a mostly dutiful spouse (above). With these two histories in mind, the rabbinic one and the contemporaneous European one, we can now understand why Rabbis Weiss and Breisch described the sons as mamzerim but actually viewed the sons as merely somewhat mamzerim. Most importantly, we can now understand why Rabbis Weiss and Breisch never discussed the fact that they were relating to these sons as merely “somewhat mamzerim.” On the one hand, R. Weiss and R. Breisch strove to rebuild Jewish life – traditional Jewish life with its parameters of ethics and piety. Meaning, they did not merely seek to increase the number of people who self-identified as Jews. Rather, they sought to rebuild Jewry as they had lived it and as they understood it – as did a number of other secular and religious Jewish leaders and organizations in the postwar years.127 Thus, they had sought right after the Holocaust to convince men and women to wait for their spouses or to verify their spouses’ deaths (above). And thus, they felt a need in 1965 to send a message against women and men marrying without a woman having been divorced from her first husband. As we saw, they understood the behavior of these women and men who had married quickly, but they were still horrified by it (above). Moreover, the fact that these women and men had inappropriately stayed married (above, Talmudic discussion) worsened the situation. Thus, R. Weiss and R. Breisch forbade these sons from freely marrying into the community like there was nothing wrong about their parents’ behavior. On the other hand, they simply sought to rebuild Jewish life in any possible form. This could be seen already in the immediate postwar period, when Breisch wrote about the urgent need to support Jewish procreation. He was thus relatively permissive regarding fertility medication made from plasma, citing concerns not only of domestic peace but also “the importance of the mitzvah of Jewish procreation after the great destruction.”128 Regarding abortion, by contrast, he was quite strictly opposed, but for similar reasons: “to our great sorrow, we have seen after the great destruction, large families from which

Law 133 only the youngest survived – the one whom the parents would have foregone having had they the means.”129 Here he echoes loudly the rhetoric of Jewish medical and religious officials in the DP camps when they wrote that “every Jewish child survivor, every Jewish child to be born, represents for us the most precious and inestimable treasure. We may not freely renounce any single one of them; on the contrary, it is our sacred duty to develop all our energy and agree to no matter what effort to preserve them.”130 Likewise, the rabbis understood that wives (and husbands) who survived the Holocaust did not have stable communities in which they could idealistically await their lost spouses. Moreover, they had suffered severe trauma, death, destruction, and often even rape, that called forth a basic human response to rebuild. Thus, as R. Weiss and R. Breisch acknowledged, the behavior of the women who remarried before verifying that their husbands were dead was understandable (above). It was not a sign of a potentially dangerous character. Moreover, as R. Weiss and R. Breisch further acknowledged, the ideal was meant for the few spouses of international merchants and such – not to block procreation and the continuity of the Jewish people. That is why R. Weiss and R. Breisch had ruled to permit remarriage with increasingly less evidence as the years passed and it became clear that the missing spouse was dead (above) – or pretending to be dead. Thus, it was only necessary to name the sons “mamzerim” rather than to treat them as actual mamzerim. The sons did not need to denigrate themselves by siring children with real non-citizen slaves. In other words, when R. Weiss and R. Breisch used the term “mamzer,” they slipped into the vocabulary of their native langue to describe the phenomenon before them. What they meant was something more like “mamzer-ish.” And in the nature of people who speak about real-life matters in their native tongue, R. Weiss and R. Breisch casually stretched the semantic range of the word that most appropriately described what they were seeing and doing. There is a classic mamzer, and there is a post-Holocaust mamzer. Both types are real-life concerns, rather than technical concerns. Both also fit in the same semantic range. Thus, inasmuch as R. Weiss and R. Breisch saw nothing to debate about designating these sons as “mamzer-ish,” the word mamzer rolled off their tongues without any thought that they need to explain the commonsensical point (from their cultural perspective) that these sons are somewhat mamzerim. The End of the Story In the end, it seems that neither the suggestion of R. Weiss nor that of R. Breisch was carried out. Stalin’s death in 1953 had ushered in a merely temporary window of time when Soviet Jews felt free to reconnect to Judaism. Although the remaining Jews of Munkacz had felt free enough in 1956 to decry to national authorities the 1952 closure of their synagogue through the local authorities’ use of bureaucratic rules, Soviet authorities began cracking down again on religion in 1959.131 In the Ukraine, authorities declared that synagogues are Zionist institutions,132 and Mukacheve’s last officially

134  Elisha Ancselovits and Ethan B. Katz recognized synagogue building was closed down133 and turned into a warehouse.134 Thus, in 1966, R. Kalish was gotten rid of, or managed to leave the Soviet bloc (Soviet and Jewish accounts differ).135 The traditional EasternEuropean rabbinic langue finally disappeared from Munkacz. We do not know the next stages of the saga of the young mamzer men. Some may have married gentile women and yet remained in the Jewish community, a common phenomenon. Some may have married Jewish women who did not care about the men’s parental drama. More importantly, after the Munkacz community scattered in the post-Soviet era, the question of the status of these sons or their descendants disappeared from halakhic literature. This is not surprising. The drama of being mamzer-ish only made real-life sense in a community that knew the mothers and the two husbands. Conclusion: Toward an Integrated History of Postwar European Jewry This article has had a twofold aim – the first methodological, the second substantive. First, the authors have shown the way that scholars of Jewish law and modern Jewish history, respectively, can powerfully rethink each other’s assumptions by engaging with one another’s approaches and findings. Second, we have aimed to remove the history of postwar Jewish law from what we might call the traditionalist Jewish history ghetto. In both cases, this has meant questioning the neat dichotomy between halakhic perspectives and writing conventions as devotional, on one side, and those of the surrounding modern, frequently secular society as relativist on the other. The historiography of postwar European Jews really has only come into its own in the past decade, as the end of the Cold War, the greater distance of time, renewed crisis for many European Jewish communities, and the availability of a host of new sources have generated greater scholarly interest in the topic.136 The results have been in many respects impressive. Scholars have examined in depth a host of important issues. Conventional social and political approaches have treated themes like the stark postwar transformations of Jewish demography and the process of rebuilding Jewish communities at the level of institutions and shattered individual lives (often through the work of international organizations, like the American Joint Distribution Committee, and country-based ones, like the Oeuvre de secours aux enfants (OSE) or the Central Committee of Jews in Poland), as well as issues like the matter of persistent antisemitism in many European host societies and the emigration of post-Holocaust Jews within and far beyond Europe.137 More cultural approaches have studied the challenges for survivors of re-entering their host society; national and Jewish commemorations and articulations of collective memory; issues of identity for the post-Holocaust generation; and, in particular, the plight of children and women that was at once linked to, and distinct from, a wider crisis for the family in postwar Europe.138 Our case at once departs from these foci and casts many of the same issues in a crucial new light. Scholarship on postwar Jewish life has had little

Law 135 or nothing to say on matters of religious life, or about how religious thinkers and ideas were part of confronting broader dilemmas.139 Those who have written about postwar Orthodoxy have typically treated matters of halakhah or theology in relative isolation from wider historical developments.140 When we decide to take seriously religious thinkers, texts, and frameworks, as both vital to, and profoundly revealing of, the larger postwar Jewish condition, we can see the moment of 1945–1967 in fundamentally different, more richly textured, and, we contend, more realistic terms. We find that across Europe, there were a range of competing solutions to the real-life challenges of a Jewish (and frequently overlapping non-Jewish) existence haunted by the war experience and by the fate of those who had perished. Moreover, fascinating intertextualities can emerge across halakhic, literary, historical, policyoriented, and medical writings of the era around these shared concerns. Likewise, this enables us to move beyond conventional rabbinics or Jewish law frames of analysis, to see rabbinic texts as part of a set of longer-standing religious and cultural conversations (and frequently struggles) within European Jewish and non-Jewish contexts from the 1940s to 1960s. The study of the Jews of Europe in the second half of the twentieth century would do well to join a growing clamor to reclaim religious sources as historical sources. It is more natural, perhaps, to undertake this engagement for pre-modern historical settings, but equally valuable – perhaps even more so precisely because it has become so counter-intuitive – to do so for the period that some refer to as “contemporary history.”141 This new approach will not always yield happy results. Indeed, we may arrive at uncomfortable conclusions. In the end, neither R. Breisch nor R. Weiss was willing to make his views in the case we have studied halakhically binding. Each had significant reservations about if and how their approach could overcome what was ultimately the devastating impact of the Nazi assault on the Jewish family in the Holocaust.142 In this manner, we see that like aid workers, artists, state officials, refugees, migrants, survivors, novelists, and more, the rabbis of the generation that lived through the Shoah grappled mightily with the charred landscapes of Europe. For them too, the ghosts of the continent’s murdered Jews were never far from sight and the past could never be mastered in the present.143 Notes 1 The authors would like to thank Aviva Richman, Noam Pines, Yonah LaveryYisraeli, David Sorkin, Derek Penslar, and David Myers for their comments on earlier drafts, and the participants in the October 2018 workshop for their encouragement and critical engagement with a very long paper. Michael Silber provided helpful bibliographical suggestions. 2 Louis Jacobs, A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law (Oxford: Oxford University Press, 1984), 275. See also in H.J. Zimmels, Echoes of the Nazi Holocaust in Rabbinic Literature (New York, NY: Ktav, 1977), 142, 312–313. 3 In every civilization in which the economy has been based (or still is based) on slavery, fellow free citizens can only become indentured servants but cannot

136  Elisha Ancselovits and Ethan B. Katz become slaves. In classic Jewish sources, specifically, a slave was a foreigner or a descendant of foreigners and had a semi-insider status. 4 Admittedly, a freed person did have a low social standing (M. Rosh Hashanah 1:7 and T. Zevahim 13:11). Nonetheless, except for marriage with priests and appointments to positions of authority, Jewish law did not make the legal distinction found in Roman law between a libertinus (freed slave) and an ingenuus (born citizen). 5 Tara Zahra, The Lost Children: Reconstructing Europe’s Families After World War II (Cambridge, MA: Harvard University Press, 2011). For Jewish children, see esp. Daniella Doron, Jewish Youth and Identity in Postwar France: Rebuilding Family and Nation (Bloomington: Indiana University Press, 2015); Atina Grossmann, Jews, Germans, and Allies: Close Encounters in Occupied Germany (Stanford, CA: Stanford University Press, 2007), Chapter 5. 6 Zahra, Lost Children, 6. 7 Ibid., 4. 8 Ibid., 6. 9 Cited in Ibid., 3. 10 Ibid., 11. 11 Mark Landes-Rosen, “Hungary”, The American Jewish Year Book 52 (1951), 364. 12 Zahra, Lost Children, 17. 13 Grossmann, Jews, Germans, and Allies, 196. 14 Cited in Zahra, Lost Children, 4. 15 Ibid. 16 See Zahra, Lost Children, 132–45. Quotation from one participant at a 1947 teachers’ meeting in Berlin. Cited in Ibid., 135. And see the earlier David Weinberg, “The Reconstruction of the French Jewish Community”, in Yisrael Gutman and Avital Saf (eds.) She’erit Hapletah 1944–1948: Rehabilitation and Political Struggle (Jerusalem: Yad Vashem), 172–173; Joseph Michman, “Jewish War Orphans in Holland”, in idem, 192–193, 196–208. 17 Quoted in Doron, Jewish Youth and Identity in Postwar France, 18–19. 18 David Katz, “The Mamzer and the Shifcha”, Journal of Halacha and Contemporary Society XXVIII (1994), 73–104. 19 For instance, Chaim N. Saiman, Halakhah: The Rabbinic Idea of Law (Princeton NJ: Princeton University Press, 2018), 12–13; 86–87; Eliezer Shimshon Rosenthal, “Tradition and Innovation in the Halakhah of the Sages”, Tarbiẓ 6 (1994): 321-374 [Hebrew], esp. 325; Benjamin Brown, “Formalism and Values: Three Models”, in Aviezer Ravitsky and Avinoam Rosenak (eds.) New Streams in Philosophy of Halakhah (Jerusalem: Van Leer Institute and The Magnes Press, Hebrew University, 2008), 233–257 [Hebrew]. Saiman’s dichotomous choice between studying law internally and externally (Ibid.) is challenged by the focus on traditional, pre-modern method of learning and the application of insights from earlier sources embraced in this book. For a fuller discussion, see the Introduction. 20 For an example that relates to this article, see the claim of Leib Moscovitz, Talmudic Reasoning: From Casuistics to Conceptualization (Tübingen: Mohr Siebeck, 2002), 69, that this is the only possible explanation for why Bet Hillel accepted a woman’s testimony that her husband died when they were overseas but refused to accept a woman’s testimony that he died when they were in the fields. 21 For some scholarship on the early generations of rabbinic Judaism, consider the following: (1) Jewish Studies scholarship that has labeled the rabbinic approach “legal nominalism” (not to be confused with the use of that term in Western legal theory – such as the condemnation of the Economic Analysis of Law in Arthur A. Leff, “Economic Analysis of Law: Some Realism About Nominalism”, Virginia Law Review 60:3 (1974), 451–482, here 459). Its leading proponents include Eyal Regev and Daniel R. Schwartz. See Eyal Regev, The Sadducees and Their Halakhah: Religion and Society in the Second Temple Period (Jerusalem: Yad

Law 137 Izhak Ben-Zvi Press, 2005) [Hebrew], esp. 206–207, 390–391; Schwartz, “Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law”, in Devorah Dimant and Uriel Rappaport (eds.) The Dead Sea Scrolls: Forty Years of Research (Leiden-Jerusalem: Brill, 1992), 229–240; idem, “Bein Hakhamim ve-Kohanim bi-Ymei Bayit Sheini”, in Schwartz (ed.) Mehkarim be-Toldot Yisrael bi-tekufat ha-Bayit ha-Sheini (Jerusalem: Zalman Shazar Center, 1996), 403–419 [Hebrew]. See also idem, “Josephus on the Pharisees as Diaspora Jews”, in Christfried Böttrich and Jen Herzer (eds.) Josephus und das Neue Testament: Wechselseitige Wahrnehmungen (Tübingen: Mohr Siebeck, 2007), 137–46, esp. 139–40. (2) Scholarship that has rejected the terminology of legal nominalism but has still explicitly argued that the rabbis engaged in a positivistic approach, characterized by mere semantic loyalty and by legal fictions, includes Bertram Benas, “The Legal Device in Jewish Law”, Journal of Comparative Legislation and International Law, Third Series 11:1 (1929), 75–80; Lawrence H. Schiffman, The Halakhah at Qumran. Leiden: E.J. Brill, 1975), esp. 132-133; Moscovitz, Talmudic Reasoning, 131 and n.119; and Steinmetz 2007, 51. (3) Scholarship that has argued that the rabbinic tradition(s) treated only those laws that become substantively irrelevant under changed realities in a nominalist fashion, but that nevertheless argues that rabbinic realism related merely to abstract concepts as real – rather than related to the real-life considerations that underlie each norm. For instance, see Jeffrey L. Rubenstein, “Nominalism and Realism in Qumranic and Rabbinic Law: A Reassessment”, Dead Sea Discoveries 6:2 (1999), 158–161, 181–183. 22 For instance, among Talmudists, see even David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (New York, NY: Oxford University Press, 1991), 159. Among historians of medieval Jewish Law, see Ephraim E. Urbach, “On the Consciousness of Continuity and of Change in Our Traditional Literature”, in Zvi Malachi (ed.) Aharon Mirsky Jubilee Volume: Essays on Jewish Culture (Lod: Haberman Institute for Literary Research, 1986), 24 [Hebrew]), and even Haym Soloveitchik, “Can Halakhic Texts Talk History?” AJS Review 3 (1978), 180–181 and idem., Pawnbroking: A Study in the Inter-Relationship Between Halakhah, Economic Activity and Communal Self-Image (Jerusalem: The Magnes Press, Hebrew University, 1985) [Hebrew], 68 nn.30–31, 79. Among philosophers of Jewish Law, see even Yair Lorberbaum, Ẓelem Elohim: Halakhah va-Aggadah (Tel Aviv: Schocken Publishing House, 2003), 99–101. 23 For instance, Aviad Stollman, “World Views in Halakhic Language’s Dialectics”, in Avinoam Rosenak (ed.) Halakhah: Explicit and Implied Theoretical and Ideological Aspects (Jerusalem: Van Leer Institute and The Magnes Press, Hebrew University, 2012) [Hebrew], 361–362, 365. 24 For instance, Shalom Albeck, “Rabbeinu Tam’s Attitude towards the Problems of his Time”, Zion 19 (1954): 104–141 [Hebrew], 104–141 and even Jacob Katz, “More on ‘R. Menahem Meir ha-Meiri’s Tolerance’”, in Katz, Halakhah and Kabbalah: Studies in the History of Jewish Religion, its Various Faces and Social Relevance (Jerusalem: The Magnes Press, Hebrew University), 291–310 [Hebrew]. The difference between Albeck and Katz might be described best as merely the difference between the Wisconsin and the neo-Wisconsin American schools of legal history – discussed in Michael Grossberg, “Social History Update: ‘Fighting Faiths’ and the Challenges of Legal History”, Journal of Social History 25:1 (1991): 190, 193–194. 25 An approach presented in most elaborated form in Admiel Kosman, “More on Associative Thinking in the Midrash”, Tarbiẓ 63 (1994): 443–450 [Hebrew]. 26 This approach is elaborated fully in Menachem Fisch, “Canon, Controverse et Réforme: Une Réflexion sur l’Autre Voix du Judaïsme Talmudique”, Les Cahiers du Judaisme 18 (2005), 61-75 and idem, “Forced Readings and Binding Texts: The Amoraic Ukimta and the Philosophy of Halakhah”, in Aviezer Ravitzky and Avinoam Rosenak, eds., New Streams in the Philosophy of Halakhah (Jerusalem: The Van Leer Institute and the Magnes Press, 2008), 311–344 [Hebrew].

138  Elisha Ancselovits and Ethan B. Katz 27 For instance, Solomon Zucrow, Adjustment of Law to Life in Rabbinic Literature (Boston MA: The Stratford Company, 1928), 54–74, 75–100; Ephraim E. Urbach, The Tosaphists: Their History, Writings and Methods, fourth enlarged edition (Jerusalem: Bialik Institute, 1980), 177, 351. (Hebrew); the summary discussion of such scholarship in Israel Ta-Shma, Creativity and Tradition: Studies in Medieval Rabbinic Scholarship, Literature and Thought (Cambridge MA: Harvard University Press, 2006), 90–97; Eliezer Schweid, “Jewish Law’s Extra-State Handling of the Challenges of the Modern Period”, in Benjamin Ish-Shalom (ed.) BeDarkhei Shalom: Studies in Jewish thought Presented to Shalom Rosenberg (Jerusalem: Beit Morasha of Jerusalem Press, Robert M. Beren College, 2007), 581–587 [Hebrew]; Tamás Visi, “Halakha and Microhistory: The Shifra-Affair in Brno, 1452”, PaRDeS: Zeitschrift der Vereinigung für Jüdische Studien e.V. 16 (2010), 20–49, esp. 23–24; and David Berger, “Texts, Values, and Historical Change: Reflections on the Dynamics of Jewish Law”, in Michael J. Harris, Daniel Rynhold, and Tamra Wright (eds.) Radical Responsibility: Celebrating the Thought of Chief Rabbi Lord Jonathan Sacks (London: London School of Jewish Studies, Michael Sharf Publication Trust/YU Press, and Maggid Press), 207. 28 For instance, Elieser Slomovic, “Toward an Understanding of the Exegesis in the Dead Sea Scrolls”, Revue de Qumrân 7 (1969), 3–15, esp. 14; Robert Gordis, “The Ethical Dimensions of the Halakhah”, Conservative Judaism 26 (1972), 70–74; idem, “A Dynamic Halakhah: Principles and Procedures of Jewish Law”, Judaism 28 (1979), 263–282; Elliot Dorff, “The Interaction of Jewish Law with Morality”, Judaism 26, 4 (1977), 445–456; Elliot Dorff and Arthur Rossett, A Living Tree (Albany, NY: State University of New York, 1988); David S. Shapiro, Studies in Jewish Thought: Volume Two (New York, NY: Yeshiva University Press, 1981), 465–466; Jacobs, A Tree of Life, 11; Moshe Halbertal, People of the Book: Canon, Meaning, and Authority (Cambridge MA: Harvard University Press, 1997), 47–49, 172, 181, 185–186, 198–203; James L. Kugel, The God of Old: Inside the Lost World of the Bible (New York, NY: Free Press, 2003), 684–685; Fisch, “Canon, Controverse et Réforme” and idem, “Forced Readings and Binding Texts”; Gordon Tucker, “Derosh ve-Kabel Sakhar: Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality” (2006), p. 27, found online at URL: http://www.rabbinicalassembly.org/docs/Tucker_Final. pdf; Joel S. Kaminsky and Joel N. Lohr, The Torah: A Beginner’s Guide (Oxford: Oneworld, 2011), 21; Moshe Zemer, Evolving Halakhah: A Progressive Approach to Traditional Jewish Law (Woodstock, VT: Jewish Lights, 1999), 57. 29 See the research of Norman Solomon, “Definition and Classification in the Works of the Lithuanian Halakhists”, Diné Israel 6 (1975), 82–88, 91–94, 96–112; idem, The Analytic Movement: Hayyim Soloveitchik and His Circle (Atlanta, GA: Scholars Press, 1993), 89; and Chaim N. Saiman, “Legal Theology: The Turn to Conceptualism in Nineteenth-Century Jewish Law”, Journal of Law and Religion 21:1 (2006), 39–100. See also Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy”, Tradition 28:4 (1994), 64–131, and Marc B. Shapiro, “Talmud Study in the Modern Era: From Wissenschaft and Brisk to Daf Yomi”, in Sharon Liberman Mintz and Gabriel M. Goldstein (eds.) Printing the Talmud: From Bomberg to Schottenstein (New York, NY: Yeshiva University Museum, 2005), 103–110. 30 See Soloveitchik, “Rupture and Reconstruction”. 31 A key Biblical source for deciding the meaning is Zacharias 9:6, but the question is irrelevant to our discussion. 32 Although the literature on this term seeks to identify ideological groupings, such as Jewish Gnostics or followers of Jesus, one of the authors of this paper hopes to publish in the future on how the term simply means those who alienate themselves from the people (and for our current purposes we do not need to answer

Law 139 the historical-political question of whom those ancient rabbis viewed as “the people”). 33 Contra Shaye J. D. Cohen, “From the Bible to the Talmud: The Prohibition of Intermarriage”, Hebrew Annual Review 7 (1983), 23–39, who (see esp. pp. 31–32) offers the strange contention that there was no judgmental wariness of mixing socially with mamzers and pagans – just a sui generis law against them entering the Temple. 34 Book of Jubilees 16:33; 1QHa XXIV (top) 10-12 (bottom) 2-3; 4QFlor (4Q174 1i,21,2 3-4); 4QMMT (4Q394 8.iii 8-18; 4Q396 I.5-6; 4Q397 5.1-6); 4QShir (4Q510 10.5; 4Q511 2.ii.3; 35.7; 48, 49 + 51.2-3); M. Shebi. 8:9-10; M. Ket. 1:10; Ḥull. 2:20; Abot de-Rabi Natan [A] ch.12, [B] ch. 27; Rav in Kidd. 71b, 76b; Y. Kidd. 4:1; Yeb. 79a; Shulhan Arukh, EH 2:2. All this should not be conflated with the law in Neg. 6:2 to refrain from displacing or weakening the native population of the Jewish people’s capital city, Jerusalem, by granting permanent residence to converts – to newly-Jewish foreigners [contra Shaye Cohen 1983, 32, which mistranslates not “to make room” at all for converts and thus conflates ancient rabbinic attitudes to converts with ancient rabbinic attitudes to mamzerim]. 35 R. Meir in baraita Pes. 49b; R. Yossi in Y. Shebi. 8:8; baraita in Pes. 49b. 36 Philo, Special Laws 3.11; M. Yeb. 4:13; Yeb. 49a. 37 M. Kidd. 4:1–2. 38 R. Zeira in Y. Ket. 1:9. 39 Rava in Kidd. 73a. 40 Shmuel argued that it is better to marry a woman who had acted out inappropriately at some point in her life (acted like a dumah demon that entraps the dead), but now seems to be behaving uprightly, than to marry a girl who seems to be behaving uprightly but was born to (and raised by) a mother who had behaved like a dumah demon. The former is more likely to have returned to the good conduct of her background, while the latter is more likely to be hiding the effects of her bad background. R. Yohanan, however, argued that even if the mother of a given upright girl behaved like a dumah demon, it is better to marry such a girl than a woman who had been born to an upright mother but had behaved in her past like a dumah demon (Sotah 27a). 41 Baraita Sot. 27a. 42 For instance, see the ruling of the Haifa rabbinic court to reject genetic evidence that a given child is not the husband’s (Piskei Din Rabbaniyim 2:119). 43 The phrase that she asserts that her husband “had sex with her using the [Divine] name” does not mean that people believed that a woman could know what magic her geographically distant husband performed or that they really thought that a woman could become pregnant without semen. 44 See – for instance – Rambam Mishneh Torah, Laws of Forbidden Relations 15:1; Tosafot Kidd. 73a; Responsa RaShBa”Sh #92; Shulhan Arukh, Even Ha-Ezer 4:14. 45 Reish Lakish and R. Eliezer in Yeb. 78b-79a. 46 M. Kidd. 3:13. 47 For a rare and fascinating examination of religious authorities – Jewish military chaplains – and their decisions alongside the other responses of postwar European Jews to dilemmas around marriage (including some of the very issues explored here), see Robin Judd, “‘The authorities just won’t take chances’: Trying to Marry Abroad”, Chap. 4 in idem, Love, Liberation, and Loss: Jewish Military Marriages After the Holocaust (Chapel Hill: University of North Carolina Press, forthcoming). Our thanks to the author for sharing a pre-publication draft. 48 Galician Jews increasingly settled there after the region became part of the AustroHungarian Empire. Joseph Eden, The Jews of Kaszony, Subcarpathia (Great Neck, NY: Self-published, 1988), 100; Yeshayahu A. Jelinek, The Carpathian Diaspora: The Jews of Subcarpathian Rus’ and Mukachevo, 1848–1948, East

140  Elisha Ancselovits and Ethan B. Katz European Monographs (New York, NY: Columbia University Press, 2007), 7–8, 339. On the Eastern-Galician influence in Subcarpathian Hassidut, see Jelinek, The Carpathian Diaspora, 68. 49 Yitzhak Yosef Cohen, Hakhmei Hungaria VeHaSafrut HaToranit Bah [Sages of Hungary and her Torah Literature] (Jerusalem: Machon Yerushalayim, 1997), 510, includes R. Weiss’s father, R. Yosef Yehuda Weiss, in a long unelaborated double-column list of killed rabbinic authors whose responsa R. Meisels published in the first volume of Mekadshei Hashem. Kohen adds the initials “dayyan u-moreh zedek” (column 2). Meisels lists him as of Mukacheve [Meisels, Mekadshei Hashem, name index at the end, not numbered]. Moreover, in the title page of the first published responsa of our R. Weiss [autumn 1942], he lists his father as “a.b.y. in Munkatch”, which means nothing and must be a typo for ““a.b.d. in Munkatch” – av beit din. This means that when our R. Weiss finally moves away from Mukacheve and publishes in Grosswarden/Nagyvarad, he still referred to his father as an official dayyan in Mukacheve – although his father apparently lost the official role as part of the peace settlement between the feuding Hasidic groups of Munkacz. 50 Anna Szalai, Rita Horváth, and Gábor Balázs, Previously Unexplored Sources on the Holocaust in Hungary: A Selection from Jewish Periodicals, 1930-1944 (Jerusalem: International Institute for Holocaust Research, Yad Vashem, 2007), 118. 51 For a description of the degree to which that community, Agudas Achim, functioned as an independent community, see Stefanie Mahrer, “Les Russes – The Image of East European Jews in La Chaux-de-Fonds and Zurich: A Discourse of Power and Fear”, in Tamar Lewinsky and Sandrine Mayoraz (eds.) East European Jews in Switzerland (Berlin/Boston: De Gruyter, 2013), 13-34, esp. 32. 52 The responsum was written after R. Breisch arrived in Zurich and before R. Eliezer Berlinger left Malmo (Sweden) for Finland in 1946. See Abraham Brody, “Sweden”, The American Jewish Year Book 49 (1948), 354–362, esp. 362. Brody does not mention a date but the article discusses events only of 1946 and not of 1947. It was written before R. Yaakov Yisrael Zuber left Stockholm (Sweden) for the United States in 1947. See the Jan 2, 1953, JTA report (p.6) on his death from a violent mugging for a mention of his length of residence in the United States – http://pdfs.jta.org/1953/1953-01-02_001. pdf?_ga=2.4834867.1201323942.1635488762-1350694763.1635488762. 53 The responsum was written to R. Hayyim Zvi Kruger, before the latter fled Brussels in the face of the Nazi invasion. 54 For instance, see the son’s obituary in https://hamodia.com/2020/10/29/bdeharav-yissachar-dov-berish-weiss-ztl/ and a biography of the son and of also of R. Weiss himself in https://mishpacha.com/all-the-answers/. 55 These figures come from the 1941 census, the last before large parts of the community departed. Tamás Stark, Hungarian Jews During the Holocaust and After the Second World War, 1939–1940: A Statistical Review, trans. Christina Rozsnyai (Boulder: East European Monographs, distributed by Columbia University Press, New York, 2000), 105. 56 Regarding the vibrancy of interwar Munkacz Jewry, see Jelinek, Carpathian Diaspora, Chapter 12. On rising Zionist activity, see ibid., and Raz Segal, Days of Ruin: The Jews of Munkacs During the Holocaust (Jerusalem: Yad Vashem, 2013). Figure of yeshiva students from ibid., 27. 57 On Shapira’s place in interwar Munkacz, see Jelinek, Carpathian Diaspora, chap. 12. On his anti-modernism and ideological worldview, see Allan L. Nadler, “The War on Modernity of R. Hayyim Elazar Shapira of Munkacz”, Modern Judaism 14:3 (1994), 233–64. 58 Segal, Days of Ruin, 28–29, bases this on a systematic assessment of the interwar population.

Law 141 9 Nadler, “The War on Modernity”, 240. 5 60 For a helpful account, see SegaL, Days of Ruin, 73–110. The exact figure was 28,587 and included many Jews from the wider vicinity who had been brought to Munkacz in the preceding weeks. Ibid., 92–3. 61 See Segal, Days of Ruin, 62-63; n122. 62 This account of Boruchel is drawn mostly from Samuel Heilman, Who Will Lead Us? The Story of Five Hasidic Dynasties in America (Berkeley: University of California Press, 2017), 31–41. On the issue of subsequent resentment at a sense of abandonment, see also Dov Kesselman, “The Wandering Rabbi”, Segula 20 (January 2014), 52–53. 63 See figures in Segal, Days of Ruin, 109. 64 Cited in ibid., 73. We borrow the characterization of “ghost town” from Anywa Qwilitch, “Everyday Judaism on the Soviet Periphery: Life and Identity of Transcarpathian Jewry After World War II” (Ph.D. Dissertation, Indiana University, 2016). 65 Overall figures and account drawn closely from Segal, Days of Ruin, 108–9. Last figure and quotation from Stark, Hungarian Jews During the Holocaust and After the Second World War, 107. 66 Qwilitch, “Everyday Judaism on the Soviet Periphery”, 67. 67 Recounted in Qwilitch, “Everyday Judaism on the Soviet Periphery”, 55. For an example of checking at the train station each day, ibid., 120. 68 Stark, Hungarian Jews During the Holocaust, 106. 69 This motif of searching for relatives in Munkacz reappears numerous times in the National Committee for Attending Deportees (DEGOB) testimonies, protocols number 123, 132, 137, 140, 169, 183, 254, 520, 614, 620, 670, 929, 1014, 1049, 1299, 1452, 1459, 1475, 1513, 1523, 1533, 1970, 2043, 2342, 2532, 2719, 2820, 2824, 2902, 3092, and 3137, found with “Munkacs” as “place of residence” in search engine at http://degob.org/index.php. 70 Qwilitch, “Everyday Judaism on the Soviet Periphery”, 78. 71 Zahra, Lost Children, 7. 72 Ibid. 73 Qwilitch, “Everyday Judaism on the Soviet Periphery”, 78. 74 https://www.hyomi.org.il/page.asp?id=672. 75 Tzvi Elimelekh Kalish, Sefer Kevod Hakhamim al Aggadot Hazal (Jerusalem: 1970), 176 [§79]. 76 Quoted at the start of Responsa Minḥat Yitzhak 5:47. 77 Ibid. 78 Ibid. 79 For German figures, see Grossmann, Jews, Germans, and Allies, 49. For figures of Soviets in Hungary and Americans in Western Europe, Gergely Kunt, “Wartime Sexual Economy as Seen Through a Hungarian Woman’s World War II Diary”, Feminist Studies 43:1 (2017), 108–133, here 113. Regarding American troops and sexual assaults and rapes, see Mary Louise Roberts, What Soldiers Do: Sex and the American GI in World War II France (Chicago: University of Chicago Press, 2013). Regarding rapes of Jewish women specifically by German men during the Holocaust, see Helene Sinnreich, “‘And it was something we didn’t talk about’: Rape of Jewish Women during the Holocaust”, Holocaust Studies 14, 2 (Autumn 2008), 1–22; Dagmar Herzog, Sex After Fascism: Memory and Morality in TwentiethCentury Germany (Princeton, NJ: Princeton University Press, 2005), Chap. 1. 80 Grossmann, Jews, Germans, and Allies, 188. Emphasis ours. 81 This is conceded even in a recent volume that sets out to challenge the historical claim that survivors were silent about their experiences – see Alan Rosen, “‘We Know Very Little in America’: David Boder and Un-Belated Testimony”, in David Cesarani and Eric J. Sundquist (eds.) After the Holocaust: Challenging the Myth of Silence (London: Routledge, 2012), 121–123.

142  Elisha Ancselovits and Ethan B. Katz 82 Sinnreich, “‘And it was something we didn’t talk about.’” Nazis also often raped within the letter of the racial law forbidding actual intercourse. For instance, see Sara Helm, Ravensbrück: Life and Death in Hitler’s Concentration Camp for Women (New York, NY: Nan A. Talese/Doubleday, 2014), 184. 83 For accounts by former children of sexual abuse and rape, see – for instance – Paul Valent, Child Survivors of the Holocaust (New York and London: Routledge, 2013), 24, 38, 42, 92, 115, 215, 238, 264, 270, 274. 84 Zahra, Lost Children, 111–112. 85 Responsa Minḥat Yitzhak 1:87 (also cited in Zimmels, Echoes of the Holocaust, 197). 86 For more on the relative silence about these rapes and the complex reasons behind it, see Sinnreich, “‘And it was something we didn’t talk about’”, 3–4; Kunt, “Wartime Sexual Economy”, 108–111. 87 Cited in ibid., 188. 88 Ibid., 190. 89 See Judith Tydor Baumel, “DPs, Mothers and Pioneers: Women in the She’erit Hapletah”, Jewish History 11:2 (1997), 99-110, esp. 102. 90 See Grossmann, Jews, Germans, and Allies, 186–7. At times here as well, women could not establish with certainty that their husbands had died and occasionally one presumed dead would indeed return. See ibid., 187. 91 These phenomena find frequent echoes in the same period in cases of marriages between Jewish civilians and military personnel. See Judd, “‘The authorities just won’t take chances.’” 92 Although R. Breisch did not normally date his responsa, he did date this responsum. However, he dated it merely by the month – “Tevet 5704”. 93 The responsum was written to R. Moshe Zev Halevi Pollack while the latter was in Vienna, after leaving post-Holocaust Großwardein/Nagyvárad/Ordea but before continuing to New York. 94 See Judit Kónya, “Halakha and Anti-Jewish Legislation: Responsa Literature Written in the 1930s and 1940s in Hungary” (Ph.D. Dissertation, Eotvos Loránd University, 2014), 85–91. 95 The uncle of one of the authors of this paper was in the labor force. His death was never officially determined. 96 Responsa Minḥat Yitzhak, 1:133; Volume One – appended autobiographical essay, “Pirsumei Nisa” §20. 97 Responsa Minḥat Yitzhak, Volume One – appended autobiographical essay, “Pirsumei Nisa” §21. 98 Responsa Minḥat Yitzhak 1:1. 99 Responsa Minḥat Yitzhak 1:3:1-2, 7; 1:133. 100 In Minḥat Yitzhak 1:1, R. Weiss simply wrote that at the time that he publicized his document on behalf of women survivors, the June 1945 convention had been “last year”, meaning the last Hebrew year. Nonetheless, although Weiss does not state the date there, in Minḥat Yitzhak 1:4 he omits mention of a year but does state that the document was publicized on 21 Kislev. Ergo, the document was publicized on November 26, 1945. 101 Responsa Minḥat Yitzhak 1:1:1, 16; 1:3:1-2, 7. 102 Kónya, “Halakha and Anti-Jewish Legislation”, 214. 103 See ibid., 214–215; 215nn6. 104 After the Hungarian Jewish Congress of 1866–1869, a significant body of Hungarian communities refused to join either the separatist Orthodox or the separatist Neolog movements and became known as the “Status Quo” stream. See Howard Lupovitch, “Between Orthodox Judaism and Neology: The Origins of the Status Quo Movement”, Jewish Social Studies 9:2 (Winter 2003), 123-53.

Law 143 105 Rather than merely having had the experience of divorce being imposed on him by a state court. 106 Responsa Minḥat Yitzhak 1:91. 107 Responsa Helkat Yaakov 42:2-5. Admittedly, Rabbi Breisch was more exacting regarding what was permissible de jure, drawing a distinction between those cases and de facto situations that only arose after the fact. Shortly after Sep 11, 1947, for instance, he ruled simply that no divorce is necessary de facto for a woman who remarries after her husband had been missing for five years and was last known to have been sent to a death camp. As regards marrying de jure, he required more direct evidence of the husband’s death (such as the husband going to the left in a selection). But even then, R. Breisch still accepted the testimony of persons who did not necessarily share the rabbinic values (that a wife heroically waits for her husband). Moreover, R. Breisch imposed no negative judgment on the woman or her new husband de facto. In other words, when asked, R. Breisch did continue to hold up the ideal of a spouse waiting for possibly suffering partner, but he did not press the issue. Responsa Helkat Yaakov EH 42:2-5. 108 Responsa Minḥat Yitzhak 1:5 (heading). 109 Responsa Minḥat Yitzhak 1:5:1, 6. 110 As cited in Zimmels, Echoes of the Nazi Holocaust, 282. 111 American Jewish Archives, World Jewish Congress Collection, Box H-99, folder, “Rat der judischen Gemeinden in der Tschechoslowakei”, Sub-Carpathian Jews, address of M. Nachum, LA, to the WJC (no date given), cited in Jelinek, Carpathian Diaspora, 329; 377 nn1. 112 Agi Rubin and Henry Greenspan, Reflections: Auschwitz, Memory, and a Life Recreated (St. Paul, MN: Paragon House, 2006), 95. 113 Qwilich, “Everyday Judaism on the Soviet Periphery”, 195. 114 Responsa Minḥat Yitzchak 5:47. 115 Ibid. 116 Responsa Helkat Yaakov EH 11:7. 117 On the low social status of freed slaves, see M. Rosh Hashana 1:7 and T. Zevahim 13:11. This was comparable to the low social status of freedmen in Roman society. 118 Due to constraints of time, space, and evidence, we are not able to treat the meaning of the designation from all angles. What it might have meant from a woman’s perspective to allow oneself to be designated halakhically as a “slavewoman” in Soviet Ukraine during this era is a difficult and worthwhile question, but one that lies beyond the purview of this essay. 119 Donald Davidson, “On the Very Idea of a Conceptual Scheme”, Proceedings and Addresses of the American Philosophical Association 47 (1974), 18. Compare idem, Problems of Rationality (Oxford: Clarendon Press, 2004), 182 on the meaning of a sentence. Also compare Terrence W. Tiley, The Wisdom of Religious Commitment (Washington, DC: Georgetown University Press, 1995), 54, on faith propositions. 120 Ludwig Wittgenstein, Philosophical Investigations. Translated by G. Elizabeth M. Anscombe (New York, NY: MacMillan, 1953), [§109]; and idem, The Blue and Brown Books: Preliminary Studies for the ‘Philosophical Investigation’. Second Edition (Oxford: Blackwell Publishers, 1969), 56. Compare Carleton Allen, Law in the Making: Sixth Edition (Oxford: Clarendon Press, 1958), 292–293. 121 See Shut Helkat Yaakov EH #10, discussed above. 122 The debate on how much of halakhah a slave must accept in order for the master to be permitted to keep him in his household goes back to the Geonim (see Rafael Shmuel HaKohen Weinberg, “Introduction”, to idem, ed. Teshuvot Rav Sar Shalom Gaon [Jerusalem: Mossad Harav Kook, 1975], 31).

144  Elisha Ancselovits and Ethan B. Katz 123 This reflected a considered position on what counted most in the construction (and reconstruction) of community. Elsewhere, in a sermon at a Neturei Karta rally in the early 1970s against the Israeli army’s continuous drafting of women, R. Weiss openly represented intermarriage as a lesser offense than false conversion, declaring: “The falsification of the name ‘Israel’ that is done by the wholesale naming of gentiles as Jews without a proper Halakhic conversion is worse than intermarriage...” Yitzchok Yaakov Weiss, Sefer Minchos Yitzchok on the [Weekly] Torah Portions and Sermons for Shabbat HaGadol, Shabbat Teshuva, and Sundry Occasions (Jerusalem: BaHaRa”N Press, 1975), 462. [Hebrew] 124 R. Breisch probably reflected that if the Jewry of the Communist world would become more observant in the future, these children or their children also could easily become more observant as part of the community. Perhaps he even expected that a mamzer father may strengthen the family’s weak Judaic coloring as the father internalizes his own responsibility for his children’s Jewishness by having to free them from the not fully-Jewish status of his spouse. 125 M. Yevamot 10:1-2, 4; 15:1, 4; T. Yevamot 14:1 (and baraita Yevamot 88b); Y. Yevamot 15:4; Yevamot 88a-b; 91a-b. Note: These paragraphs have been worded so as to accommodate both an academic understanding of the Talmudic sources and a synchronic yeshiva understanding of the law. On the children not being considered mamzerim in the later halakhic tradition if the husband or wife returned but the couple had married based on incontrovertible testimony, see – for instance – R. Dov Berish Weidenfeld (1881–1965), “Dovev Meisharim” 3:51. 126 Yevamot 88a. 127 See, for instance, Nathan Rotenstreich’s insistence in 1947 that the Aliyat HaNoar (Youth Aliyah) movement not adapt itself to the gravity of the human catastrophe but rather focus on educating socialist-Zionist pioneers. The English translation is found in Chaim Schatzker “The Role of Aliyat Hanoar in the Rescue, Absorption and Rehabilitation of Refugee Children”, in Yisrael Gutman and Avital Saf (eds.) She’erit Hapletah, 1944–1948: Rehabilitation and Political Struggle (Jerusalem: Yad Vashem, 1990), 365–387. On the opposition of leaders of the Socialist Dror movement and the Marxist HaShomer HaTzair movement to close cooperation between the survivors, see Anita Shapira, “The Yishuv’s Encounter with the Survivors of the Holocaust”, in Yisrael Gutman and Avital Saf (eds.) She’erit Hapletah, 1944–1948: Rehabilitation and Political Struggle (Jerusalem: Yad Vashem, 1990), 80–106. For Litvish rabbis who built new yeshivot in France, England, and the United States and turned after the Holocaust to even Moroccan Jewry to find students for rebuilding the Lithuanian yeshiva tradition, see Yaakov Lupo, “The Rescue of Moroccan Jewry for Torah:’ The Transfer of Moroccan Students to ‘Lithuanian’ Yeshivot after the Shoah”, Pe’amim 80 (1999), 112–128. [Hebrew]. 128 M.J. Breisch, Helkat Yaakov EH # 62. 129 M.J. Breisch, Helkat Yaakov, EH # 61. 130 Cited in Grossmann, Jews, Germans, and Allies, 192. 131 Mordechai Altshuler, Religion and Jewish Identity in the Soviet Union, 1941–1964, trans. Saadya Sternberg (Waltham, MA: Brandeis University Press 2012), 70, 98, 102. 132 Joshua Rothenberg, “Jewish Religion in the Soviet Union”, in Lionel Kochan (ed.) The Jews in Soviet Russia since 1917 (London: Oxford University Press for the Institute of Jewish Affairs, 1970), 179. 133 Emmanuel Litvinoff, Jews in Eastern Europe: A Periodical - Volume One (London: European Jewish Publications, 1960), 24. The closure is also noted but without any dating in Rothenberg, The Jewish Religion in the Soviet Union

Law 145 (New York, NY: Ktav Publishing House and the Philip W.  Lown Center  for Contemporary Jewish Studies, Brandeis University, 1972), 49. 134 Biography of R. Kalish at https://www.hyomi.org.il/page.asp?id=672. 135 Biography of R. Kalish at https://www.hyomi.org.il/page.asp?id=672. 136 For overviews of the literature, see Françoise Ouzan and Manfred Gerstenfeld, “Introduction—Diverging Groups of Jewish Displaced Persons”, in Ouzan and Gerstenfeld (eds.) Postwar Jewish Displacement and Rebirth, 1945–1967 (Leiden: Brill, 2014); Lura Brazzo and Guri Schwarz, “Jews in Europe after the Shoah. Studies and Research Perspectives: Introduction”, Quest. Issues in Contemporary Jewish History 1 (April 2010). https://www.quest-cdecjournal.it/ jews-in-europe-after-the-shoah-studies-and-research-perspectives/ 137 For early treatments of many of these issues in various European locales, see David Bankier, The Jews Are Coming Back: The Return of the Jews to Their Countries of Origins After World War II (Jerusalem: Berghahn and Yad Vashem, 2005). Two major, pioneering studies with a country-specific focus remain: Michael Brenner, After the Holocaust: Rebuilding Jewish Lives in Postwar Germany, trans. Barbara Hershav (Princeton: Princeton University Press, 1999); and Maud Mandel, In the Aftermath of Genocide: Armenians and Jews in France (Durham, NC: Duke University Press, 2003). An important initial treatment that focused largely on destruction and demographic decline (and has increasingly been superseded in subsequent work) is Bernard Wasserstein, Vanishing Diaspora: The Jews in Europe Since 1945 (Cambridge, MA: Harvard University Press, 1996). A cross-national comparative perspective on institutional rebuilding is offered by David Weinberg, Recovering a Voice: West European Jewish Communities After the Holocaust (Liverpool: Littman, 2015). On the role of the Joint and other American organizations, see esp. Laura Hobson Faure, A “Jewish Marshall Plan”: The American Jewish Presence in Post-Holocaust France (Bloomington: Indiana University Press, 2022). For a micro-history of persistent postwar antisemitism see Jan T. Gross, Fear: Anti-Semitism in Poland After Auschwitz: An Essay in Historical Interpretation (New York, NY: Random House, 2007). 138 Many of the above-cited works, especially those of Bankier, Brenner, Mandel, and Weinberg, treat the challenges of return and identity re-formation. The literature on Holocaust memory has become vast. For comparative perspectives, see esp. Pieter Lagrou, The Legacy of Nazi Occupation: Patriotic Memory and National Recovery in Western Europe, 1945-1965 (Cambridge: Cambridge University Press, 2000); James E. Young, The Texture of Memory: Holocaust Memorials and Meaning (New Haven: Yale University Press, 1993). On gender, family, and children, see esp. Doron, Jewish Youth and Identity; Grossmann, Jews, Germans, and Allies; Zahra, Lost Children; Lynn Taylor, In the Children’s Best Interests: Unaccompanied Children in American-Occupied Germany, 1945–1952 (Toronto: University of Toronto Press, 2017). 139 Nearly all of the above-cited titles mention rabbis or rabbinical thought only in passing, if at all, and neither do they engage rabbinical sources, not as part of a wider set of responses nor on the rabbis’ own terms. For a rare and valuable early exception, see David G. Roskies, Against the Apocalypse: Responses to Catastrophe in Modern Jewish Culture (Syracuse, NY: Syracuse University Press, 1984). Another effort to push in a related direction, taking much greater account of the persistent importance of religion, appears in Katerina Čapková, “Beyond the Assimilationist Narrative: Historiography on the Jews of the Bohemian Lands and Poland after the Second World War”, Studia Judaica 19:1 (2016), 129–55. See also Judd, “‘The authorities just won’t take chances.’”

146  Elisha Ancselovits and Ethan B. Katz 140 The classic case remains the fundamental and deeply informed (if narrowly focused) work of Zimmels, Echoes of the Nazi Holocaust. 141 Čapková, “Beyond the Assimilationist Narrative”, levels a similar critique. One of the authors has attempted a start at this in another context as well: Ethan Katz, “Muslims as Brothers or Strangers? French Jewish Thinkers Confront the Moral Dilemmas of the French Algerian War” (interpretive essay and four translated texts) in Catherine Allache-Bartlett and Joachim Schlör (eds.) The Stranger in Early Modern and Modern Jewish Tradition (Leiden: Brill, 2021). 142 See Katz, “The Mamzer and the Shifcha”, 97–101. 143 Charles Maier, The Unmasterable Past: History, Holocaust, and German National Identity (Cambridge, MA: Harvard University Press, 1997).

5

Language Did the Medieval Grammarians’ Scientific Approach to Hebrew Reject or Embrace Tradition? Daniel Isaac

Editors’ note This chapter moves our field of reassessment from History and Law to Language and takes us far from post-Shoah Eastern Europe to a very different time and place – medieval Iberia. As the book steps back from the modern period in this and the three chapters that follow, it offers the capacity to assess with greater precision what is distinct within each historical era – including the modern one – for tensions between relativism and devotion. Eschewing longstanding approaches that have assumed that the biblical commentary of medieval Jewish grammarians was largely shaped by contemporary methodological innovations in exegesis, Daniel Isaac urges us to widen the canvas of possible decisive elements, to consider the internal rabbinic approaches and beliefs that persisted in the new commentaries of the medieval era. He does this through a linguistic and philological comparison of the way that several exegetes with contrasting methods interpreted the word shiggāyōn in similar terms. Ultimately, he focuses on the figure Ibn Chiquitilla and on his understanding of this word in portions of the books of Psalms and Habbakuk. The author demonstrates how Ibn Chiquitilla merges the hermeneutical methods drawn from Qurʾānic exegesis with rabbinic exegesis. In its own manner, this case study combines the same two methods as the preceding two chapters: expanding the scholarly canon on the one hand, and warm conversations on the other. Only by taking full account of the grammarians’ traditionalism, he shows, can we understand that new conceptual thinking served a specific purpose and had a limited impact on their textual arguments. In Isaac’s rendering, medieval Jewish grammarians perceived themselves to be in an ongoing, centuries-long exegetical (and warm) conversation with the writer they were reading, and to be using the latest analytical methods simply because they regarded them as critical tools for accurate comprehension. In this manner,

DOI: 10.4324/9781003364078-6

148  Daniel Isaac we find here echoes of the case examined in Chapter Three: grammatical exegesis in the biblical commentaries of medieval Iberia had a function somewhat parallel to that of historical thinking for Rabbi Bacharach and others in many responsa of early modern Ashkenaz. The author argues that these grammarians’ approach to their texts thus fits neither under the rubric of devotion nor that of relativism as conventionally understood in the modern period. Here devotional perspectives are defined as emic, or internalist within a culture or social group; and relativist ones are defined as etic, or coming from a detached, outside observer’s position. The medieval grammarians, according to this chapter, found a third way.

Introduction The extraordinary Jewish intellectual and spiritual ferment in medieval Iberia offers a revealing site for rethinking the problem of devotion and relativism. The historical actors of Iberia exhibited patterns of thought and interaction that defy any sharp polarity between traditional and academic approaches to Jewish religion and culture. At the same time, modern scholarship on this period has often accepted uncritically the frame of the devotion-relativism divide.1 Philologists and historians, as representatives of the relativist side of the divide, have taken divergent approaches to medieval Jewish grammarians as biblical commentators. The former focus on identifying grammarians’ debates and explanations as arising from the philological considerations with which those pioneer scholars of Hebrew grammar grappled.2 The latter focus on identifying the social considerations that affected them – primarily a desire to elevate the Hebrew language and biblical theology to the level of Arabic language and theology.3 What the philological and historical studies share in common is a tendency to present the fruit of Iberian Jewish grammatical exegetes as innovative biblical exegesis. This chapter suggests an alternative approach: we contend that these grammarians, at least in their own consciousness, worked from within their received traditional Jewish understanding of given biblical texts. Such an understanding served to ground and limit their determination of the rules of Hebrew word forms (which sometime match and sometimes differ from Arabic grammar) and to ground and limit the innovative readings of theologically laden passages. In other words, even when the scholarship of classical medieval grammarians “feels” conceptual, and thus would be classified by many as “relativist,” in the main it continues to provide a viable version of traditional, i.e. “devotionist” readings of the text.4 To clarify this point, it is useful to draw upon a distinction made by anthropologists and other social and behavioural scientists, between emic and etic forms of research and knowledge. Emic perspectives come from within a culture or social group. They reflect myriad, often unspoken understandings

Language 149 and patterns of thought and speech internal to the group. Etic perspectives, by contrast, are those of outside observers attempting to use broader categories to analyse the dynamics of a group to which they do not belong. Etic perspectives correspond to what we here call relativism; emic perspectives are, by contrast, devotional. To state this differently, devotionists and relativists ground their approaches to meaning in different assumptions. To illustrate the point, consider the following example from a speech delivered by J. Enoch Powell on the prerequisites for the enactment of a law in the British Parliament. This speech emphasises the devotionist elements over the relativist. … a bill becomes a law because certain words of Norman French are pronounced in specific circumstances: the same words in other circumstances and synonymous words in the same circumstances would not make law.5 Powell’s statement shows how devotionist knowledge of Parliamentary procedure is essential for mutual comprehension between the speaker and listener.6 The same locutionary acts, inside and outside of Parliament, differ in that only in one context does the listener comprehend reality differently, as a reality in which law has been promulgated. This is not to fall into the platitude of context, but to reject the process by which the relativist determines contextual meaning. The relativist forms a set of parameters, whose values delimit the semantic value of expressions with variable references according to context, whilst the “devotionist” understands context as the interaction between two parties where the “salient mutual knowledge between conversants, and the relevant broader common knowledge”7 forge comprehension. In the above pronouncement, the speaker and listener already presupposed the “specific circumstances” to which Powell refers – laws are made in the Houses of Parliament. The devotionist need not understand anything about the linguistics of Norman French or any of the specific circumstances, in Parliament, to comprehend what is communicated – a law.8 This is because Powell’s listeners know what is being talked about without saying it. Communicative intent and utterance remain distinct, but, when revealed in the mind of the listener, join to impart what anthropologists sometimes call emic knowledge (internal group knowledge). Or as Bach puts it, “Saying something is one thing, stating or otherwise meaning it is another.”9 The relativist, in contrast, must discover the extralinguistic knowledge by which to make sense of the presence of Norman French in the Speaker’s statement. And when the relativist lacks access to such historical knowledge, such as when one analyses many Biblical texts, the relativist focuses on understanding the text semantically to then hypothesise a context that matches their semantic understanding and literary analysis. In order to test if the devotionist-relativist divide can be overcome, therefore, we will examine several medieval biblical exegetes whose methods of textual analysis are incompatible with each other. We will discover that they

150  Daniel Isaac produced similar if not identical conclusions. Meaning, when faced with the question of adopting a relativist position that identifies meaning via the semantic context in which either a word or phrase is used or a devotionist position, in which meaning arises from the emic interactive relationship between speaker and listener that is necessary for successful communication, the medieval exegetes chose a third path. They based their analysis on being in a relationship with the writer as understood by the tradition to which the exegete belongs and then added their new medieval grammatical tools to better understand that writer within the already extant conversation. They confirmed the necessity for the unspoken, emic knowledge of the devotionist as the driver of meaning even when using objective tools to analyse meaning. Outline The outline of this chapter is as follows: Following a short historical survey, the first half of the chapter provides an analysis of the various traditional translations of the word shiggāyōn. It includes non-Iberian exegetical opinions and demonstrates that the new grammatical rules formulated by leading medieval exegetes Judah Ḥayyūj and Jonah Ibn Janāḥ result in either no shift or only a slight shift in emphasis when compared to earlier Talmudic and non-Talmudic interpretations of the text. This undermines the assumption that relativist philological or social considerations are essential to the grammarians’ conclusions. Following that, the second half of this chapter analyses Moses Ibn Chiquitilla’s application of his lexical solutions on shiggāyōn to the question of prayer and prophecy on Ps. 7 and chapter 3 of the book of Habakkuk.10 Here too, the devotionist scholar retains a singular explanation of shiggāyōn irrespective of the relativist knowledge provided by either eschatology or philosophy. In other words, knowledge for the devotionist is absolute and bound to a communal tradition, even as their scholarship innovates in relativist ways through new techniques and solutions. The divide, that is, between the grammarian’s devotion and relativism is overcome in the context of shiggāyōn (Ps. 7) and shighyōnōth (Hab. 3:1) because it is possible to calibrate the new medievalist techniques and solutions derived from Qurʾānic exegesis, rhetoric and theology, with earlier traditions of Jewish exegesis. Such an exegetical approach regarded the emic methodology of the devotionist as essential for basic knowledge, whilst viewing the relativist categories of analysis as essential for more accurate comprehension.11 Historical Background Before testing for a devotionist-relativist divide, we shall briefly sketch a history of Hebrew language study in Iberia. In the post-Talmudic period, the independent study of Hebrew grammar in Rabbanite12 circles began with Saadiah Gaon (882–942).13 In earlier periods, Hebrew was instead studied

Language 151 within the context of Massoretic studies.14 Subsequently, in the second half of the 10th century, the North African rabbi Judah Ibn Quraysh wrote alRisāla (The Epistle), the first known comparative language study of Arabic, Aramaic and Hebrew.15 Afterwards, in the 11th and 12th centuries, the development of Hebrew grammatical studies shifted to Iberia.16 This strand of grammatical scholarship is described by Geoffrey Khan as the “Western Hebrew Grammatical Tradition,”17 to distinguish it from the divergent developments of a Karaite grammatical and exegetical tradition.18 Although the history of the “Western Hebrew Grammatical Tradition” remains unclear, we do know that under the patronage of Ḥasdai Ibn Shaprūṭ (910–970), one of the earliest and most important breakthroughs began with the Maḥbereth (Dictionary) of Menaḥem Ibn Sarūq (c. 910/20–970)19, which identified the roots of words, the paragogic (or weak) letters and the elements added to the Hebrew root. While this provided an early theoretical foundation for the future discussion of roots, Menaḥem failed to identify the three-letter roots system familiar today. Instead, he listed entries under one, two or three letters depending on the number of paragogical letters in a root. Despite this obvious limitation vis-à-vis future developments, his decision to write in Hebrew and not in Arabic resulted in the Maḥbereth’s widespread dissemination in Europe.20 In the centuries following the appearance of the Maḥbereth, the language of writing grammatical studies in Iberia shifted to Judaeo-Arabic, while Hebrew grammatical studies reached their apex of creativity. The most important figure of this period was Judah ben David Ḥayyūj (approx. 945–1000).21 His discovery of the now universally accepted tri-literal root system was set down in his book Kitāb al-Afʿāl Ḏuwāt Hurūf al-Līn (Book of Weak Verbs).22 The second figure is Jonah Ibn Janāḥ (b. 985/990),23 considered by many as one of the greatest Hebrew linguists. His most important work was Kitāb alTanqīḥ (Book of Detailed Investigation), which is split into two books: Kitāb al-Lumaʿ (Book of Variegated Flower Beds), the first book on Hebrew syntax, and Kitāb al-ʾUṣūl (Book of Roots), containing a complete vocabulary of Biblical Hebrew without personal or place names. Earlier in his career, Ibn Janāḥ wrote Kitāb al-Mustalḥaq (The Complement), in which he critiqued and refined Ḥayyūj’s conclusions. In response to Ibn Janāḥ’s works, Samuel Ibn Naġrīlla (b. 993, died after 1056)24 was inspired to write several important treatises of Hebrew grammar of his own, of which only a few citations survive from Kitāb al-Istiġnāh (The Book of Renunciation) and Rasāʾil alRifāq (Epistle of the Companions).25 Following this period in which the philological research was first set down, Iberian authors began writing grammatical commentaries on the Bible verse by verse. One of the earliest, who is at the centre of our discussion, was Moses ben Samuel Ha-Kohen Ibn Chiquitilla (11th century).26 Little is known about his life. However, we learn from Ibn Chiquitilla’s secular Hebrew wine poetry – written for either Samuel Ibn Naġrīlla or his son Joseph (died 1066) – that he was born in the city of Cordoba27 prior to al-fitan al-kubrā (1013),28

152  Daniel Isaac whereupon he moved to Saragossa.29 A few of his strophic girdle poems (Arab. muwaššaḥ, Heb. ‫ )שירי אזור‬survived and have been published.30 We are also informed by Moses Ibn Ezra (1055–after 1138) that Ibn Chiquitilla excelled in writing poetry in Hebrew, Arabic and Latin, and that he was one of the leading scholars of the Hebrew language, despite what Ibn Ezra describes as his intellectual confusion (lawṯa).31 This seems to refer to Ibn Chiquitilla’s rejection of the interpretation of certain biblical passages as miraculous and others as referring to the messiah.32 Yet, we are informed by Abraham Ibn Daud’s Sefer Ha-Qabbālāh (Book of Tradition, written in Toledo in 1161) that Ibn Chiquitilla was one of the scholars who “wrote books, liturgies [piyyūṭim], hymns, and praises to our Creator, … and consolations for Israel to encourage them in the lands of their exile.”33 The Iberian grammarian Judah Ibn Sheshāt (active 1060–1090) recorded further that Ibn Chiquitilla was an accomplished chess player and that his younger contemporary, Judah Ibn Balʿam34 (second half of the 11th century), sharply criticised his biblical commentary.35 Later Ibn Chiquitilla was commissioned to write one of the first translations from Arabic into Hebrew: the grammatical treatise of Judah Ḥayyūj, which he annotated.36 Of his main works, only an incomplete commentary on Psalms and some fragments of his Twelve Minor Prophets in Judaeo-Arabic have survived.37 Additional citations from later writers, primarily Abraham Ibn Ezra (born 1089/1092, died 1164–1167),38 indicate that he wrote a commentary on most of the Bible. Ibn Chiquitilla’s own contribution to the study of Hebrew grammar is Kitāb al-Taḏkīr wal-Taʾnīṯ (The Book of Feminine and Masculine Nouns) – the little of which that has survived has been published by Nehemya Aloni (rep. 1970)39 and subsequently republished with additional material by JoseMartinez Delgado.40 We can deduce that Ibn Chiquitilla wrote this grammatical work prior to his commentary on Psalms from references he makes to it in his commentary on Psalms 17:3, 35:25, 42:2, 56:1, 65:3 and 119:176. As a text, the systematic arrangement of Kitāb al-Taḏkīr wal-Taʾnīth is unique, listing biblical nouns alphabetically according to their morphological forms. The list of nouns is restricted to those masculine and feminine nouns whose plural is opposite to the gender of their singular form, as in masculine singular nouns with a feminine ending and vice versa. First Analysis – shiggāyōn The first analysis will examine ways of overcoming the devotionist-relativist divide by comparing the definition provided by Iberian and non-Iberian exegetes, respectively, for the meaning of shiggāyōn and related terms. It will demonstrate that the new grammatical rules formulated by the medieval Iberian grammarians are incidental to defining the meaning of the word. Where they place emphasis on context it reflects their relative interpretation of the biblical text vis-à-vis those interpretations from the Talmudic epoch (100–600 CE).

Language 153 The result is only a slight shift in emphasis of meaning. The text chosen is Ibn Chiquitilla’s glosses on Ps. 7:1, which are preserved in one manuscript, EVR ARAB I 3583.41 Psalm 7:1 opens: ‫י־כּוׁש ֶּבן־יְ ִמ ִ ֽיני‬ ֗ ֝ ‫ל־ּד ְב ֵר‬ ִ ‫ר־ׁש֥ר לַ ה’ ַע‬ ָ ‫“ ִׁשּגָ י֗ ֹון לְ דָ֫ ִו֥ד ֲא ֶׁש‬shiggāyōn by David which he sang to the Lord, concerning Cush, a Benjaminite.” The difficulty encountered by medievalists, repeated in modern analysis of the text, is that the term shiggāyōn, as with all the superscripts found in Psalms, is not organically connected to the text that follows.42 Modern philologists and historians, following a relativist view, explain this as the historic development towards a final edition of Psalms, as attested to in the variation in the text and the internal development of the Hebrew language. But for those devoted to traditional exegesis, treating the superscripts as accidents of history would have been irrelevant,43 as they appear in their final form coaeval with the body of the text. Therefore, even though Ibn Chiquitilla made surprising historical claims about the text, in so far as he disagrees with his contemporary,44 his historicisation of the text is predicated on the traditional devotionist view, either the fulfilment of a biblical prophecy prior to the Second Temple or the impossibility of prophetic prayer. For Ibn Chiquitilla, the rubrics are either eschatological, instructional or figuratively significant.45 What he is not motivated by is an abstract concept called “Biblical Textual Criticism.” His dissent from majoritarian interpretation of biblical prophecies in Isaiah, Ezekiel and elsewhere, which understands them as unfulfilled, reflects the devotional question of his age: what inferences can we draw from the Bible about the future messianic redemption? This lack of concern for abstract history directed Ibn Chiquitilla’s attention towards the literary connection between the rubric and the body of the text. This literary question had been broached by Səʿadyah Gaʾon (882–942), who treated Psalms as a rhetorical book reworking the entire Bible in poetic form, representing the word of God to King David and the “totality of edification.”46 Saadiah listed two prevalent errors: seeing the multiplicity of verbal and grammatical forms as evidence of multiple topics and speakers; and understanding indirect forms of address literally. According to Saadiah Gaon, only a simplistic rhetorical theory considers form and content to be necessarily identical; he thereby dismissed claims that a psalm worded as a man’s address to his Maker must be interpreted as either a request or as praise, or that third-person speech was inappropriate in the Lord’s direct injunction to his creatures that they obey him. Saadiah Gaon used these approaches to defend the unity and Davidic dating of the book of Psalms and to explain their connection to Temple worship.47 Saadiah Gaon’s methods synthesised tradition with the literary methods that he borrowed from Qurʾānic exegesis and contained elements which are difficult to reconcile with a traditional explanation. His solution was to appropriate the now oft repeated rabbinic maximum, ‫( דברה תורה כלשון בני אשם‬the Bible speaks in the language of men),48 and other rational arguments to

154  Daniel Isaac justify the introduction of the relativist literary methods of Qurʾānic exegesis.49 This Judaic veneer provided a kind of “certification” of Qurʾānic literary methods, particularly as it was used to defend a traditional interpretation of the text. It was only those polemical elements which were, at least from the vantage point of his contemporaries, external to the tradition and thus remained outside of the framework. For example, the Karaites viewed the book of Psalms as Israel’s mandatory book of prayer.50 Saadiah’s polemics against them was something recognisable to his Rabbanite successors and easily disregarded once the conflict with Karaite scholarship was no longer relevant.51 What remains of the relativist approach is Saadiah’s attitude towards grammar and rhetoric. Those Iberian exegetes who followed in his intellectual footsteps shared a belief that tradition must be situated within the conceptual framework of grammatical, literary, rhetorical and theological forms. It therefore behoves us to seek continuity between Səʿadyah Gaʾon’s approach and that of his Iberian successors, even as the emphasis shifts from period to period and from author to author. Saadiah Gaon’s introduction of rigorous grammatical and rhetorical categories in his interpretation of the Bible was illustrated by Ibn Chiquitilla’s own analysis of the nominal form shiggāyōn, which appears only once in the Hebrew Bible. In order to explain its meaning here, Ibn Chiquitilla combines semantics, grammatical analogy (Arabic qiyās, Hebrew hēqesh) and rhetoric.52 He wrote that: ‫א) יעני מא שגَל‬:‫וקו' שגיון לדוד (תהלים ז‬ The phrase; “a Shiggāyōn of David” means what distracted his heart regarding the ‫באלה מן אמר כוש חתי כ'פאה אללה פקאל‬ incident with Cush until God protected him ‫אלשיר פכאנה קאל שיר שגיון לדוד פאקאם‬ (from Cush), therefore, he said the shīr (song) ‫אלמצ'אף אליה מקאם אלמצ'אף כמא קאל‬ as if it said (ka-ʾannahu qāla); ‘shīr Shiggāyōn )‫לג‬:‫ואת רעבון בתיכם קחו ולכו (בראשית מב‬ of David’ as (what is) annexed to it (muḍāf ‫יעני ואת שבר רעבון בתיכם כקו' פי אלפסוק‬ ʾilayh) is in the place of the annexed (muḍāf), .)‫יט‬:‫אלאכ'ר שבר רעבון בתיכם (בראשית מב‬ as if it states (ka-ʾannahu qāla) “and take ‫ א] ונתן לכהן את הקדש (ויקרא‬49[ ‫וכד'לך‬ something for your starving households.” ‫יד) יעני את תמורת הקדש לאן אלקדש‬:‫כב‬ 53 (Gen. 42:33). Meaning; and take rations for .‫בעונה קד אסתהَלِך‬ your starving household, as it states in another verse “rations for your starving households”; (Gen. 42:19). Also, “he shall pay the priest instead of the sacred” (Lev. 22:14), means ‘in exchange for the sacred’ as ‘sacred’ is in place of his sin, which was consumed.

Ibn Chiquitilla uses grammatical and syntactic terminology to explain the word order of shiggāyōn in the psalm’s superscript shīr (song) Shiggāyōn.54 The grammatical terms muḍāf (annexed) and muḍāf ʾilayh (annexed to it) describe the relationship between the words shīr and Shiggāyōn as a proleptic ellipsis (a hint to the reader that is supposed to help them to fill in an

Language 155 important but missing part of the text). It is as if shiggāyōn occupied the syntactic position of shīr.55 To illustrate what is omitted, he used the term, ka-ʾannahu qāla (as if he said)56 to recover the unuttered intent of the speaker: shiggāyōn is the name of a musical mode.57 This syntactic explanation for the meaning of shiggāyōn was buttressed by analogous examples of proleptic ellipses from other biblical texts in which the semantic meaning is unequivocal yet the reader becomes obligated to supply the omitted element of the text. For example, the abstract noun form ‫( רעבון‬raʿavōn) “famine” (Gen. 42:33)58 was used, but the meaning of the sentence demands a concrete noun referent. In the first example, Gen. 42:33, Ibn Chiquitilla inserted the concrete noun ‫( שבר‬shever) “ration” as the missing referent.59 The second example, Lev. 22:14, similarly demands a concrete noun before ‫( קדש‬qōdhesh) “sacred,” which is identified as the previously mentioned ‫( תרומה‬terūmāh) “heave offering”60 in verse twelve.61 This contextual philological approach62 functions as a way of integrating the less familiar word into the global system of grammar, but it also answers the devotionist question, what does shiggāyōn mean? His answer has its precedence in midrashic-homiletical literature from the rabbinic period. In the earliest stage of exegesis, the midrashic tradition presented a plethora of explanations that imply a definition of shiggāyōn on Ps. 7 as “occupied.” The Midrash to Psalms 7:3 wrote that: According to the Rabbis, it means that if a man occupies himself with the Torah, the Torah will occupy him “Be it indeed that I am occupied (šaḡiṯi) that wherewith I am occupied will stay with me” (Job. 19:4), and as it also said “Because of thy love of her, thou art always occupied (tišgeh) (Prov. 5:19).”63 The midrashic text later on continued that David’s “occupation” was with his sin of having rejoiced at the downfall of Saul. It states that: And David went on: “Even as the Cushite woman, the wife of Joseph’s master, used lies against him, so Saul the Benjamite used lies against me.” R. Aḥa replied: “But is it not true that when a man requests God to rebuff the insult offered to him, he will not be punished for such a request. Why, then should David have spoken of his request as Shiggayon, ‘impulsive speech’?” R. Ḥinena answered: Because David rejoiced in song at the fall of Saul, as is said “he sang unto the Lord, concerning the matter of Cush the Benjamite, though it is written Rejoice not when thine enemy falleth (Prov. 24:17).”64 Although the historic origin of David’s impulsiveness was disputed by the Rabbis, they concluded that shiggāyōn was a confessional mode of music. This was reflected, too, by Iberian philologists like Menaḥem Ibn Sarūq, who

156  Daniel Isaac interpreted shiggāyōn as a musical instrument, played to a mode that evokes consternation and repentance. He wrote in the Maḥbereth that: The Second: “Shiggāyōn of David, which he sang to the Lord, concerning Cush, a Benjaminite” (Ps. 7:1) refers to singing as its context demonstrates. It is possible that the expression ʿal šiggyónót in the “Prayer of Habakkuk” (Hab. 3:1) is from the same root and that it is synonymous with ʿal šiggyónót ‘with music‘.” Moreover, the close of its [the Prayer of Habakkuk’s] context demonstrates that this is so [for it states], “for the leader; with instrumental music [binĕgînôtāy].”65

‫ שגיון לדוד אשר שר ליי על דברי כוש‬:‫השנית‬ 66 .‫ וענינו יורה עליו‬.‫ ענין רבן הוא‬.‫בן ימיני‬ ‫ תפילה לחבקוק הנביא על‬:‫ויתכן להיות מגזרות‬ .‫ כמו על הנגינות‬.‫שגיונות‬

Menaḥem imagined David instructing the musicians to play the shiggāyōn, an instrument associated with a type of consternation caused by sin, identifying the psalm as a confessional genre.67 Solomon Yisḥāqī (Troyes, 1040–1105, much more commonly known by his acronym Rashi) cited Menaḥem’s opinions and in the name of the Rabbis accepted the confessional genre for shiggāyōn, although he added a philological layer, from the word mišgeh (error).68 With the discovery of the tri-literal root system for Hebrew words, Judah Ḥayyūj grouped the meaning of shiggāyōn under the root §‫( שגה‬SH-G-H).69 This relativist advance in the study of Hebrew grammar, however, did not alter the meaning of shiggāyōn as a confessional genre. Indeed, the traditional association of the root with sin is implied by the way Ḥayyūj grouped other words under this root. Ḥayyūj, however, rarely cited nominal examples in his book; we must therefore infer conclusions from his discussion of other passages using the same root. One such example is an exhortation by the father to his son to be “occupied” ‫( תשגה‬tishgēh) (Prov. 5:19) only with his wife. This conclusion, though not explicit in the text of Ḥayyūj (who never offered translations of words), is inferred by the way he grouped words within a single root according to their meaning. Ḥayyūj placed ‫( תשגה‬Ps. 5:20) alongside unequivocal biblical citations meaning “occupied” from Job 6:24 and Lev. 4:13 and although he did not cite Prov. 5:19, its proximity and shared sense with Prov. 5:20 allows for a single meaning for the word in both verses. Therefore, if Prov. 5:20 means, “Why be occupied, my son, with a forbidden woman?”,70 then Prov. 5:19 is an ironic statement encouraging a man to only “err” with his wife, “Let her breasts satisfy you at all times; Be occupied with love of her always.”71 This reading of Prov. 5:19 was criticised by Jonah Ibn Janāḥ as contrary to the contextual sense of the passage. In al-Mustalḥaq, he critiqued Ḥayyūj’s limited semantic range for the root §‫( שגה‬SH-G-H) and added two meanings, ‫( טרבא‬ṭarabān) “to be excited” or '‫( אלתד'אד‬iltidād) “to rejoice.”72 This might seem like an outright rejection of Ḥayyūj’s meaning, but it is relative

Language 157 to how Ibn Janāḥ interprets the text. How, according Ibn Janāḥ, can one literally “err” with one’s wife? The meaning is “Rejoice with love for her continually.”73 Later, Ibn Janāḥ adds a second meaning. Writing in his larger work ʾUṣūl, he repeats the first explanation “Rejoice” before adding a second:74 ‫יט) פי מעני‬:‫ומעני אכ'ר באהבתה תשגה תמיד (משלי ה‬ Another meaning of “Be excited with love of her always” (Prov. 5 :19) is ‘be )‫א‬:‫אלטרב ואללתד'אד' מת'ל שגיון לדוד (תהלים ז‬ excited’ and ‘rejoice’, as in “Shiggāyōn ‫או פי מעני אלאשתגאל בחבהא ען חב גירהא והכד'א‬ of David” (Ps. 7:1) or meaning ‫פשר בן קריש וזעם אנה סמע אלרג'ל אלדאני יקול יש‬ ‘delve’ into love of another. This is ‫לי שגויה במעני לי חאג'ה ושגל וכל שוגה בו לא יחכם‬ 75 the explanation of Ibn Quraysh who .)‫א‬:‫(משלי כ‬ claimed he heard the Danite Man say ‘I am delving’ meaning ‘I have a need and distraction’ and “He who delves into them will not grow wise.” (Prov. 20:1).

He also offered a positive meaning for shiggāyōn (Ps. 7:1), either “be excited” or “rejoice.” The psalm is a song of victory; “David’s elations, which he sang to the Lord,” ex post-facto thanking God for granting victory over his enemy.76 Ibn Janāḥ applied this meaning from Prov. 5:19, to “delve” or “distract” oneself with wisdom.77 He attributed this opinion to Eldad the Danite (8th century), who translated Prov. 20:1 as “distract oneself with love of wisdom.”78 Ibn Janāḥ’s perspective towards the Danite could be read through the devotionist-relativist dichotomy. A devotionist would view the verisimilitude of the Danite’s statement as a given, as Ibn Janāḥ seemingly did by treating it as coaeval with statements by speakers of Biblical Hebrew.79 The relativist would view the Danite’s sudden appearance on the stage of Jewish history in the 8th century as delegitimising him as a reliable source for biblical Hebrew. However, if we are to bridge the gap between the two, we might approach the problem pragmatically. For Ibn Janāḥ as both a devout Jew and a highly sophisticated linguist, what really mattered is whether the informant’s use of the Hebrew language matches what he already knew about the language. This was achieved by integrating it into the global system of grammatical categories, whether they be ʾasl (root), ʾiḍāfa (annexation), muḍaf (annexed) or muḍaf ʾilayh (annexed to it). The possibility that Ibn Janāḥ might reject a received interpretation is certainly valid. However, as Mordechai Z. Cohen demonstrates in his analysis of Ibn Janāḥ’s exegetical methods, his solution is to craft multiple interpretations of the text which can sit side-by-side and remain valid in different contexts.80 In summary, the meaning of shiggāyōn divided into two camps. The majority of opinions, Menaḥem, Ḥayyûj and the Midrash to Psalms, concurred that the meaning of shiggāyōn is “occupied,” “distract” or “delve”: the psalm is a penitential prayer for an error or sin. A minority opinion, quoted by Ibn Janāḥ, concluded that shiggāyōn means “elations” and “rejoice”: the psalm

158  Daniel Isaac is a song of salvation. Crucial to this division over the meaning is the relative context by which the psalm is interpreted. This divide between the two positions is adopted by subsequent generations. Ibn Chiquitilla sides with the penitential interpretation. He makes use of the same semantic link between Ps. 7:1, and Prov. 5:19 and Prov. 20:1: (The following quotations are all instances of SH-G-H) having the meaning of occupied the mind, “always distract oneself” (Prov. 5:19) and “whoever distracts oneself will not grow wise” (Prov. 20:1).

‫ כל שוגה בו לא יחכם‬.)‫יט‬:‫וכד'לך תשגה תמיד (משלי ה‬ 81 .‫א) מן הד'ה אלמעני‬:‫(משלי כ‬

Ibn Chiquitilla implicitly translated shiggāyōn as “David’s distraction, which he sang to the Lord.” He described its meaning in semantic categories of grammar, which link the theme of Psalm 7 with David’s remorse for either an error or sin to reflect the meaning offered by Menaḥem, Ḥayyūj and the Midrash to Psalms on Psalm 7.82 Despite the negative-positive divide over the meaning of shiggāyōn, those who subscribed to a negative meaning also accept that David was forgiven for his sin and is expressing his joy. Likewise, the positive meaning found in Ibn Janāḥ implies rejoicing upon forgiveness.83 The convergence of the opinions of Səʿadyah, Menaḥem, Ḥayyūj, Ibn Janāḥ, Ibn Chiquitilla, Ibn Ezra and even Rashi assumes a priori knowledge of the concepts and traditions of the polysemic meanings of SH-G-H.84 This view is largely shaped by a devotion to rabbinic tradition rather than because of any historical or philological requirement, as studies have traditionally conceded. The proof is a lack of correlation between grammatical knowledge and interpretation. It was not because of the introduction of abstract grammatical-literary concepts that the boundaries of acceptable and unacceptable interpretation of language were determined. Rather, grammatical opinion was shaped by tradition.85 Further examples of this in biblical and rabbinic law are found in the writings of Bernard Jackson and Elisha Ancselovits.86 In summary, the introduction of philology (and other branches of science) with its culmination in the triliteral root system of Ḥayyūj did not lead to a radical departure from the traditional conclusions found in the phonetic system of the Rabbis. This suggests that most semantic conclusions were not dependent upon relativist theory. Relativists and devotionists draw a clear line between what they consider the semantic meaning of a word to be (i.e. an adequate translation) and the relativist manner in which that meaning is interpreted.87 Below, the different lexical explanations of shiggāyōn are arranged according to their various grammatical phases and interpretation of Psalm 7.

Language 159 David seeks forgiveness: negative meanings Phonetic system Interim stem system Post-Ḥayyūj

Midrash to Psalms/BT Moʿed Qatan 16b Menaḥem/Rashi

Ḥayyūj, Ibn Chiquitilla, Ibn

Balʿam, Ibn Ezra, Maimonides

David rejoices upon forgiveness: positive meanings

Saadiah Gaon/Ibn Quraysh via Ibn Janāḥ Ibn Janāḥ

Second Analysis In the previous section of this chapter, we saw that despite the different methodologies of the exegetes examined, they share a uniform opinion on the semantic meaning of shiggāyōn. In the second half of this chapter, we show how the devotion to tradition is reworded in the language of contemporary theology and rhetoric. In addition to Ibn Chiquitilla’s commentary on Psalms, we also look at the biblical commentaries of Abraham Ibn Ezra and Tanhûm Yerushalmi (d. 1291, Fusṭāṭ, Egypt).88 Our discussion of the midrashic material on Psalm 7 linked shiggāyōn with David’s occupation with seeking forgiveness for his impulsive behaviour towards Saul. David’s precise sin, according to R. Ḥinena,89 was that he rejoiced at Saul’s downfall. This interpretation was adopted by Ibn Chiquitilla in his reading of Psalm 7.90 He linked the theme of Shiggāyōn with David’s remorse for cutting the corner of Saul’s garment (I Sam. 24:6).91 This dominated David’s thinking to the point that his thoughts were consumed by it. The psalm indicates release from his impulsive behaviour. Similarly, Shiĝyônôth appears in the first verse of chapter three of the book of Habakkuk, “A prayer of the prophet Habakkuk. In the mode of Shigionoth.” In chapter one of the book, Habakkuk cried out, troubled by the lack of justice in the world. In verse 1:2, he challenged God, “How long, O LORD, shall I cry out And You not listen, Shall I shout to You, ‘Violence!’ And You not save?” This is followed by a catalogue of woes in chapter two and Habakkuk’s psalm in chapter three, in which the word Shiĝyônôth appears. The errors (shiĝyônôth) are Habakkuk’s impulsive behaviour and his lack of faith in God’s promise that Israel will be redeemed from exile. The Midrash on Ps. 7:17 refers back to Hab. 3:1, as it fleshes out the dialogue between Habakkuk and God: And the Holy One, blessed be He, replied to Habakkuk: “Thou art not an ignorant man, but art a learned man. And so go write [thy] vision of iniquity and perverseness plainly on thy tablets, and then say, ‘Cause me to know the time of redemption.’” As God said: Write the vision and make it plain upon tablets (Hab. 2:2). And The Holy One, blessed be he, also said to Habakkuk: “At the time of the first exile into Babylon I said: After seventy years are accomplished at Babylon, I will visit you … to give you an expected end (Jer. 29:10, 11), but the children of Israel did

160  Daniel Isaac not believe that they would have to wait for the time of their redemption, and Jeremiah had to urge them, Build ye houses, and dwell in them (Jer. 29:6). … This time also, when the year of redemption comes, I shall redeem the children of Israel, for it is written The day of vengeance that was in My heart, and My year of redemption is come (Isa. 63:4).” As soon as Habakkuk heard this, he fell upon his face, and, supplicating, said: “Master of the universe, punish me not as one who was wilful, but rather as one who was impulsive.” Of this it is written A prayer of Habakkuk the prophet upon Shigyonoth (“impulsive speech”) (Hab. 3:1). David used the same word of his speech: Shiggayon of David, which he sang unto the Lord concerning the matter of Cush the Benjamite; ….92 Just as the Israelites did not believe Jeremiah that the first, 70-year exile in Babylon would last that long, so too Habakkuk did not believe the second exile would end. Habakkuk engaged in a dialogue with God, in which he expressed remorse for his impulsive behaviour and sought forgiveness for it. Explicit in this interpretation is that Habakkuk’s prayer included prophetic information. This final claim is the subject of disagreement in the medieval period, pitting Ibn Chiquitilla against Abraham Ibn Ezra and many other exegetes.93 The disagreement centres on how to interpret the final verses of the chapter in the book of Habakkuk, 3:16–19: (16) I heard and my bowels quaked, My lips quivered at the sound; Rot entered into my bone, I trembled where I stood. Yet I wait calmly for the day of distress, for a people to come to attack us. (17) Though the fig tree does not bud and no yield is on the vine, Though the olive crop has failed and the fields produce no grain, Though sheep have vanished from the fold And no cattle are in the pen, (18) Yet will I rejoice in the LORD, Exult in the God who delivers me. (19) My Lord GOD is my strength: He makes my feet like the deer’s and lets me stride upon the heights. For the leader; with instrumental music. In Ibn Chiquitilla’s commentary on Ps. 7:1, he addressed this issue: An identical meaning “upon shighyōnōth” (Hab. 3:1). Meaning what distracts the prophet’s heart, for his intellect [ʿaql] has rejected in the verse: “why do you show me iniquity” (Hab. 1:3). He then requested God’s forgiveness again through entreaty and revision of his opinion on the “unjust retribution” accruing to the wicked which he said of them (the wicked); “for the wicked surround the righteous” (Hab. 1:4). Thereafter he (Habakkuk) says that their (the wicked’s) circumstances will lead to what is described in “a fig-tree will not flower.” (Hab. 3:17). (The failing of their harvest) results in the cutting off of their sustenance, whereas he is spared what befalls them (the wicked), “I will rejoice in my salvation.” (Hab. 3:17–18)

‫ומן הד'א אלמעני על שגיונות (חבקוק‬ ‫א) יעני מא שגל באל אלנבי ממא‬:‫ג‬ ‫אנכרה עקלה פי קו' למה תראני‬ ‫ג) פעאד‬:‫און ועמל תביט (חבקוק א‬ ‫יסתגפר אללה מנה באלדעא ותצחיח‬ ‫אלנט'ר פי סו עאקבה אלט'אלמין‬ ‫אלד'י קאל ענהם כי רשע מכתיר את‬ ‫ד) פקאל אן חאלהם‬:‫הצדיק (חבקוק א‬ ‫תלך תוٔול אלי מא דَ'כר מן קו' כי תאנה‬ ‫יז) וג' וד'לך‬:‫לא תפרח (חבקוק ג‬ ‫יקתצ'י קטע ארזאקהם ואנה אלמעאפَי‬ ‫ ד'לך קו' ואני בייי‬.‫ממא יבתלון בה‬ 94 .)‫יח‬:‫אעלזה (חבקוק ג‬

Language 161 Ibn Chiquitilla’s opening comments adopted the same semantic link between shiggāyōn (Ps. 7:1) and shighyōnōth (Habakkuk 3:1) from the root SH-G-H (Ar. ʾaṣl). As in the Midrash on Psalms 7, here David and Habakkuk sought forgiveness for an error. However, by contrast, Ibn Chiquitilla couched Habakkuk’s error in the language of Neo-Platonic philosophy: an intellectual (Ar. ʿaql) error and misunderstanding of the fairness of God’s dispensation of justice. This charge of injustice against God was answered in chapters one and two in a dialogue and culminated in Habakkuk seeking forgiveness for doubting Divine Justice. His prayer was an acknowledgement of Divine Justice: the wicked are punished and the righteous (i.e. himself) saved at the end of chapter three.95 This thematic link between Divine Justice and human misunderstanding is also found in Psalm 7, which is why we find Ibn Chiquitilla referring in his commentary on Ps. 7 to the book of Habakkuk.96 In the former instance, apart from David’s initial error, rejoicing at King Saul’s defeat, Ibn Chiquitilla interprets Ps. 7:9, as David claiming his actions in the book of I Samuel 24:19 against Saul were defensible; “Yes, you have just revealed how generously you treated me, for the LORD delivered me into your hands and you did not kill me.” He wrote that: The phrase, “Judge me, Lord, as (I judge) myself ‫ט) יריד‬:‫וקו' שפטני ייי כצדקי וכתמי (תהלים ז‬ righteous and blameless,” (Ps. 7:9) intends, ‫אחכם לי כמא אחכם עלי נפסי יעני אני אנא‬ ‘Judge me as I judge myself.’ Meaning, I took '‫אכ'ד'ת אלחק מן נפסי לכ'צמי כד'לך פכ'ד‬ 97 my dues against my opponent, also give me ‫לי אלחק ממן הו לי עליה‬ (God) my dues against him (Saul).

David implied he is innocent of any wrongdoing against Saul. In the following verse, Ibn Chiquitilla interpreted David as saying his conscience is also clean. The phrase, “Who probes the heart and kidneys” ‫י) אי אנך‬:‫וקו' ובוחן לבות וכליות (תהלים ז‬ (Ps. 7:10), as in ‘You know the integrity of my ‫תעלם מן צדק צ'מירי מא תחק לי אלאג'אבה‬ 98 conscience therefore You must answer me when .‫פי מא אדעו אליך ענה‬ I beseech You.’

By identifying the figurative language of verse 10 with David’s clean conscience, Ibn Chiquitilla linked verse 10 with his general theme of the psalm and the claim that David sincerely regretted his rejoicing at Saul’s downfall. This approach linked Psalm 7 with thanksgiving prayers, said ex-post facto, on forgiveness for his impudence in I Samuel 24:19. Similarly, Habakkuk’s prayer in chapter 3:1 is also a thanksgiving prayer for forgiveness for his questioning of the equity of God’s judgement. In contrast to the Midrashic interpretation, Ibn Chiquitilla stripped the text of its prophetic references to a messianic allusion, dating the statements of Habakkuk to the Babylonian exile. Even as he broke with Midrashic

162  Daniel Isaac tradition, he retained the same semantic and thematic meaning of the words between shiggāyōn (Ps. 7:1) and shighyōnōth (Habakkuk 3:1).99 This distinction is important in our discussion of the devotionist-relativist dichotomy, as it supports both continuity from one exegetical epoch to another and selective innovation. It also shows that when Ibn Chiquitilla rejects the notion that Habakkuk Chap. 3 and Psalm 7 (and the book as a whole) contain prophetic content, this rejection has nothing to do with modern historicism. Instead, it is the product of medieval-philosophical reasoning that claims that one cannot sincerely pray while having foreknowledge of the outcome. The extent to which Ibn Chiquitilla rejected eschatological references to the messianic redemption in biblical books is, so far as we know, unique to him.100 No other exegete from the period went to such lengths to remove messianic allusions from so many biblical books and dated their prophecies as post-exilic.101 One should not, however, conflate modern historicism with the medieval historicism. Despite his rejection of many messianic allusions, Ibn Chiquitilla’s historicisation of the Bible is derived from a devotional belief in a messianic redemption. His methods are no different from those of his peers who accept messianic allusions as being found in the very passages he rejects. Therefore, a commentator’s position in the debate about dating is not derived from relativist knowledge about either historical era in question. It comes instead from a difference originating in contrasting devoted beliefs about specific biblical passages. Ripples of a negative attitude towards Ibn Chiquitilla’s opinion surfaced in Tanḥūm’s commentary on Habakkuk. Writing in the Eastern Mediterranean, he recorded two anonymous opinions which identified the purpose of Habakkuk’s prayer as prophetic and non-prophetic, respectively. The second of these opinions is that of Ibn Chiquitilla.102 In his opening remarks, Tanḥūm stressed the difficulty inherent in interpreting this genre: “The word prayer, wherever it is present, signifies invocation, prayer. This prayer is [composed] in the manner of a song, [in a] concise [manner] whereby the subjects are only alluded to without clear expression.”103 Tanḥūm identified rhetorical difficulties with Habakkuk’s prayer:104 variations in voice, metaphor, simile, obscure images, the use of the past tense to refer to future events, supplications and prayers. He concluded: “It is for this reason that it is difficult to fully comprehend the meanings and the many various opinions by which these texts are interpreted and what is implied there.”105 Tanḥūm’s observation shows that linguistic analysis of the meaning of words is insufficient to explain what they signify. Rather, an ability to identify rhetorical and theological language is a prerequisite for the identification of

Language 163 messianic allusions in the biblical text. Tanḥūm offered two answers; both agreed that the body of chapter 3 (3:3–15) contains a description of the miracles wrought by God on behalf of Israel and that the section is said with ‫“( רוח הקדש‬holy spirit”). However, “holy spirit” was understood differently by the two opinions. The first opinion summarised the prayer as a retroactive description of the domination of Israel by its enemy, their salvation and the subsequent punishment of their oppressors. The final four verses are the words of the oppressors, the Assyrians and the Chaldeans,106 and are described by the prophet as the inevitable Divine vengeance for their excessively harsh treatment of Israel. In this opinion, holy spirit imbued the prophet with correct “intellect” (Ar. ʿaql) to interpret events unfolding before his eyes, and the prayer retained its literal meaning. Habakkuk erred by impulsively speaking out, rather than requesting help with understanding the Divine Will [Ar. ʾirāḍa].107 In the second opinion, the holy spirit also imbued the prophet with “intellect” (ʿaql), except the interpretation of the prayer included prognostication about future events. A famine and drought will occur in Israel when an oppressor unsuccessfully arises against them. Habakkuk’s prayer contained reflections and a prophecy in which he lobbied (impulsively) on Israel’s behalf for a promise that the persecution will cease. In the final four verses of chapter 3, he voiced his fears that the suffering of Israel will endure.108 According to this second opinion, Habakkuk’s prayer is a rhetorical device expressing the intellectual problems which he impulsively uttered against Divine Providence in history both past and future. This second prophetic approach is found in Abraham Ibn Ezra. In what he called “prophetic prayer” in his introduction to Psalms and his commentary to Habakkuk, he countered Ibn Chiquitilla’s rejection of prophecy in Psalms.109 Uriel Simon described it as follows: This prayer was uttered with prophetic inspiration; he is prophesying about a famine that will occur, as becomes clear at the end of the prayer [verse 15-17], when Israel will not have the strength to withstand its enemy.110 According to this interpretation, the first fifteen verses are Habakkuk’s reflection on Israel’s inability to withstand the onslaught of her enemies. The final lines are Habakkuk’s prognostication about the coming years of famine and God’s salvation.111 Ibn Ezra reasoned, therefore, that verse 16, “I heard and my bowels quaked,” was not spoken in Habakkuk’s own voice, but on behalf of Israel. This turn to rhetoric limits Habakkuk’s prophecy to a single verse on behalf of Israel about their future redemption. Thereafter, Habakkuk returned to his own voice in verses 18–19, when he expressed his confidence that God will fulfil the prophecy by saving Israel.112 Ibn Ezra used rhetoric to circumvent the form-meaning dichotomy, offering an answer to Ibn Chiquitilla’s rejection of prayer as non-prophetic in the

164  Daniel Isaac form of “prophetic prayer.” It serves as an answer to Habakkuk’s initial question why do the wicked suffer,113 to which he offers a short prayer of thanks on receiving an answer.114 Such an argument matches the closing comments of Tanḥūm to the first opinion: “they [3:18-19] are the words of the Prophet about himself, in which he announces that he has faith in God, therefore, he will not turn his thoughts to anything else described.”115 Tanḥūm also placed the final verse in Habakkuk’s own voice. In Tanḥūm’s view, this reading was necessary, otherwise Habakkuk is reduced to a hagiographic form of writing about theodicy, containing no prophecy. This runs counter to Habakkuk’s status as a biblical prophet. Tanḥūm clearly preferred Ibn Ezra’s explanation, although we do not know if he read this opinion in Ibn Ezra or Ibn Balʿam.116 However, we do know that Ibn Ezra’s answer was a direct response to Ibn Chiquitilla’s opinion. Support for this is found in Ibn Ezra’s introductions to his Psalms commentary. There he focused on several stylistic similarities between Habakkuk and Psalms and directed his disapproval towards what he characterised as Ibn Chiquitilla’s historicisation of biblical prayer. Habakkuk became his archetype for prophetic prayer, which he justified by the hasty responses given to the prophet’s entreaties by God.117 This matched Tanḥūm’s comments that the Bible is filled with various genres and rhetorical devices including songs and prayers in the middle of prophetic books. Conclusion To conclude, let us return to our initial question about overcoming the divide between the devotionist and relativist, or as we recast them, emic versus etic perspectives. This dichotomy usually pits philological and historical studies against those of tradition. However, we see that it is possible to weave a thread through meaning and time which preserves a consistent answer as to what the text is talking about. In the case of shiggāyōn and shighyōnōth, the reinterpretation of these words and their accompanying biblical passages does not reframe in each epoch the semantic meaning of the words. This is because the medieval exegetes realised that semantic meaning (unless considered incorrect) is contextual, relative to the etic categories invented by the rhetorician, philologist or historian. These categories, unless incorporating genuine unknown information, are no more than a rearranging of the pre-existing knowledge in a manner more suited to the methods and agendas of the exegete. Similarly, the medieval exegetes’ prophetic versus non-prophetic debate draws on their shared emic knowledge about the meaning of Biblical passages to then move to an interpretive process that contextualises the semantic meaning of words (i.e. adequate translation) according to the eschatological, historical or rhetorical beliefs of the exegete.118 In short, the medieval exegetes opened the door both to the retention of elements from tradition and to innovation, weaving them alongside one another.

Language 165 Notes 1 Norman K. (Norman Karol) Gottwald, The Hebrew Bible – a Socio-Literary Introduction, 1st pbk. ed. (Philadelphia: Fortress Press, 1987), chap. 1. 2 Nehemya Allony, “The Multilateral System of the Verb in Medieval Hebrew,” Beit Mikra 19:2 (1974), 202–24; Nehemya Allony, “From the Language of Dûnāš Ben Labrāṭ,” Ləšônenu 69 (1947), 161–72; Nehemya Allony, Shelomo Morag, and Joseph. Tobi, Studies in Medieval Philology and Literature: Collected Papers, vol. 1, Saʿadia’s Works (Hebrew and Judeo-Arabic), vol. 1 (Jerusalem: Ben Zvi Institute, 1991); José Martínez Delgado, “The Philosophical Background of the Andalusian Hebrew Grammar (10th Century),” Zutot 3:1 (2003), 42–48, https:// doi.org/10.2307/415489; José Martínez Delgado, “Judaeo-Arabic Culture in alAndalus,” in Proceedings of the 13th Conference of the Society for Judaeo-Arabic Studies Cordoba, ed. Amir Ashur (Cordoba, 2007), 121–52; José Martínez Delgado, “On the Phonology of Hebrew in Alandalus as Reflected by the Adaptation of Arabic Grammar and Poetry.,” Series Semitica Antiqva 1 (2013), 73–86; José Martínez Delgado, “Secularization Through Arabicization: The Revival Of The Hebrew Language In Al-Andalus,” in Jahrbuch des Simon-Dubnow Instituts, ed. Dan Diner, vol. XII (Vandenhoeck and Ruprecht, 2013), 299–317; José Martínez Delgado, “Morphology Versus Meaning: Biblical Mixed Roots and Andalusi Hebrew Lexicographical Theories,” in A Universal Art. Hebrew Grammar across Disciplines and Faiths, ed. Nadia Vidro Zweip, Irene E., Olszowy-Schlanger, Judith, vol. 15 (Leiden, Boston, 2014), 34–58. 3 Haggai Ben-Shammai, “The Tension between Literal Interpretation And Ex� egetical Freedom,” in Medieval Jewish Exegesis of the Bible, 2003, 33–50; Ross Brann, Power in the Portrayal: Representations of Jews and Muslims in Eleventh- and Twelfth-Century Islamic Spain (Princeton: Princeton University Press, 2002); Mordechai Z. Cohen, “Radak vs. Ibn Ezra: A New Approach to “Derekh Mashal” in the Bible,” Proceedings of the World Congress of Jewish Studies 12 (1997), 27–41; Mordechai Z. Cohen, “Imagination and Logic, Truth and Falsehood: The Approaches of Moses Ibn Ezra and Maimonides to Biblical Metaphor in Light of Arabic Poetics and Philosophy,” Tarbiẕ 73:3 (2003), 417–58; Paul Fenton and Moses Ibn Ezra, Philosophie et exégèse dans le Jardin de la méthaphore [sic] de Moïse Ibn ʻEzra, philosophe et poète andalou du XIIe siècle, Etudes sur le judaïsme médiéval (Leiden: Brill, 1997); Shamma Friedman, “Anthropomorphism and Its Eradication,” in Iconoclasm and Iconoclash (Stuggle for Religious Identity Second Conference of Church Historians Utrecht, Leiden, Boston: Brill, 2007), 157–78; Albert D Friedberg, “Maimonides on Anthropomorphism: Should Scripture Be Read Philosophically?,” in As a Perennial Spring: A Festschrift Honoring Rabbi Dr. Norman Lamm, ed. Bentsi Cohen (New York: Downhill Publishing, 2013), 189–228; Simon Rawidowicz, “Saadya’s Purification of the Idea of God,” in Saadya Studies: In Commemoration of the One Thousandth Anniversary of the Death of R. Saadya Gaon, ed. Erwin I. J. Rosenthal (New York: Arno Press, 1943), 139–66; Simon Rawidowicz, Studies in Jewish Thought, ed. Nahum N. Glatzer, 1st ed. (Philadelphia: Jewish Publication Society of America, 1974); James T. Robinson, “Maimonides, Samuel Ibn Tibbon, and the Construction of a Jewish Tradition of Philosophy,“11:1968 (2005), 291–306; Gregg Stern, “Philosophic Allegory in Medieval Jewish Culture: The Crisis in Languedoc (1304–6),” in Interpretation And Allegory: Antiquity to the Modern Period, ed. Jon Whitman (Boston and Leiden: Brill, 2003), 189–209; Marzena Zawanowska, “The Bible Read through the Prism of Theology: The Medieval Karaite Tradition of Translating Explicit Anthropomorphisms into Arabic,” Journal of Jewish Thought and Philosophy 24:2 (2016), 163–223; Marzena Zawanowska, “Where The Plain Meaning Is Obscure Or Unacceptable…:” The Treatment of Implicit

166  Daniel Isaac Anthropomorphisms in the Medieval Karaite Tradition of Arabic Bible Translation,” European Journal of Jewish Studies 10:1 (2016), 1–49. 4 James L Kugel, “Poets and Prophets: An Overview,” in Poetry and Prophecy: The Beginnings of a Literary Tradition, 1990, 4. Also cf. “Imagining Prophecy” Alan Cooper, “Imagining Prophecy,” in Poetry and Prophecy: The Beginnings of a Literary Tradition, ed. James L Kugel (Ithaca: Cornell University Press, 1990), 26–45, which suggests that often too much weight is given in modern Biblical scholarship to creating conceptual understandings of texts. 5 Speech to the Carlisle Club, Peterhouse, Cambridge, 24 May 1980. Roger Scruton, “The Language of Enoch Powell,” in Enoch at 100, ed. Lord Howard of Rising (Hull: BitebackPub, 2012), 119. 6 Grice’s cooperative principle. H.P. Grice, “Logic and Conversation,” in Syntax and Semantics: Speech Art, ed. Cole P, vol. 3 (New York: Academic Press, 1975), 41–58. Iser describes the problem as, “the whole text can never be perceived at any one time” and that the reader “has to build up the object for himself – often in a manner running counter to the familiar world evoked by the text.” Thus, he writes that the “incompleteness of each manifestation necessitates syntheses, which in turn brings about the transfer of the rest to the reader’s consciousness.” Wolfgang Iser, The Act of Reading: A Theory of Aesthetic Response (Baltimore: Johns Hopkins University Press, 1978), 108–9. 7 Kent Bach, “Context ex Machina,” in Semantics versus Pragmatics, ed. Zoltan Gendler Szabo (Oxford: Clarendon Press, 2005), 21. On the common knowledge being held by the community of speakers, see Ferdinand de Saussure et al., Course in General Linguistics (New York: Philosophical Library, 1959), 113. 8 Bach, “Context ex Machina,” 18. 9 Ibid. 25. Also “extratextual” Frank Kermode, “The Plain Meaning,” in Midrash and Literature, ed. Geoffrey H. Hartman and Sanford Budick (New Haven, Conn.: Yale University Press, 1986), 192. 10 The eighth book of the Minor Prophets in the Hebrew Bible, preceded by Nahum and followed by Zephaniah. 11 Even where direct comparison is made with the Arabic, it is grounded in the longstanding tradition of peshaṭ exegesis – a system which is not contingent upon knowledge of any particular conceptual framework. Mordechai Z. Cohen, Opening the Gates of Interpretation: Maimonides’ Biblical Hermeneutics in Light of His Geonic-Andalusian Heritage and Muslim Milieu (Leiden: Brill, 2011), see chapter 1 for a description of the Andalusian tradition and chapter 3 for the Northern French exegete Rashbam. 12 I use this term to distinguish it from Karaite historical exegesis. 13 Haggai Ben-Shammai, “Saʿadya Gaon,” in Encyclopedia of Jews in the Islamic World (Leiden: Brill, 2010). Accessed online: http://dx.doi.org/10.1163/18789781_ejiw_COM_0018750 14 Aharon Dotan, Or rishon be-ḥokhmat ha-lashon: Sefer Tsaḥut leshon ha-ʻIvrim, Ha-Igud Ha-ʻolami Le-Madaʻe Ha-Yahadut, Ḳeren Ha-Rav Daṿid Mosheh ṿeʻAmalyah Rozen (Jerusalem: ha-Igud ha-ʻolami le-madaʻe ha-Yahadut, Ḳeren haRav Daṿid Mosheh ṿe-ʻAmalyah Rozen, 1997), 19. 15 Judah Ibn Quraysh and Dan Becker, ha-Risalah (Tel-Aviv: Universitat Tel-Aviv, 1984), Introduction. 16 This era has often been misrepresented as the “Golden Age of Spanish Jewry”, Mark R. Cohen, Under Crescent and Cross: The Jews in the Middle Ages (Princeton, NJ: Princeton University Press, 1995); Bernard Lewis, Islam in History: Ideas, People, and Events in the Middle East, new ed., rev. expanded. (Chicago: Open Court, 1993/2011), http://www.gbv.de/dms/bowker/toc/9780812692174.pdf. 17 One important proponent of this tradition is Jonah Ibn Janāḥ, whose importation of Arabic terms and definitions is discussed extensively by Dan Becker,

Language 167 “The Dependence of R. Yona b. Ǧanāḥ on the Arab Grammarians,” Lĕšonénu 2017, 137–45. Also see Dan Becker, “An Abridged” Kitāb al- ʿAyn “: One of the Main Arabic Sources of the Lexical Comparisons in Isḥāq Ben Barūn’s “Kitāb alMuwāzana””, Lĕšonénu 1–2 (March 1999), 125–35. 18 This does not discount crossover from one to the other, imposes different limitations deriving from a different tradition and, therefore, lies outside the purview of this investigation. However, where overlap does exist, and it should not be discounted, it would be surprising if no convergence were found. Geoffrey Khan, “The Early Eastern Tradition of Hebrew Grammar”, in Hebrew Scholarship And The Medieval World, ed. N.R.M. De Lange (Cambridge: Cambridge University Press, 2001), 77–92. 19 José Martínez Delgado, “Ibn Sarūq, Menahem”, in Encyclopedia of Jews in the Islamic World (Leiden: Brill, 2010). Accessed online: http://dx.doi.org/10.1163/18789781_ejiw_COM_0011100. 20 José Martínez Delgado, “El Uso Del “Maḥberet” Entre Los Principales Filólogos Hebreos de Alandalús (Siglos X-XI)”, Misc. Estud. Árabes Heb., Secc. Arab. Islam 59 (2010): 135–65. Angel Sáenz-Badillos, “Early Hebraists in Spain: Menahem Ben Saruq and Dunash Ben Labrat”, in Hebrew Bible—Old Testament: The History of its Interpretation I/2: The Middle Ages, ed. Magne Saboe (Göttingen: Vandenhoeck & Ruprecht, 2000), 96–109. 21 José Martínez Delgado, “Ḥayyūj, Judah (Abū Zakariyyā Yaḥyā) Ben David al-Fāsi,” in Encyclopedia of Jews in the Islamic World (Leiden: Brill, 2010). Accessed online: http://dx.doi.org/10.1163/1878-9781_ejiw_COM_0009580 22 He established three rules: (1) all roots must have three letters, (2) a word must have at least two letters, of which the first letter is always vocalised and last letter unvocalised. The middle letter may be vocalised or unvocalised and (3) classification of phonetics changes affecting those roots that see elisions of one of their root letters when they undergo morphological changes. 23 José Martínez Delgado, “Ibn Janāḥ, Jonah (Abū ʾl-Walīd Marwān),” in Encyclopedia of Jews in the Islamic World (Leiden: Brill, 2010). Accessed online: http:// dx.doi.org/10.1163/1878-9781_ejiw_COM_0010730 24 Alfonso Esperanza, “Ibn Naghrella, Samuel (Abū Ibrāhim Ismāʿīl) Ben Joseph Ha- Nagid,” in Encyclopedia of Jews in the Islamic World (Leiden: Brill, 2010). Accessed online: http://dx.doi.org/10.1163/1878-9781_ejiw_COM_0010950 25 For a history of the period, cf. Aaron Maman and David Lyons, Comparative Semitic Philology in the Middle Ages: From Sa’adiah Gaon to Ibn Barun (10th-12th c.) (Leiden: Boston, 2004), 261–81. 26 Often spelled as Jiqatīla or Giqatīla. José Martínez Delgado, “Allusions to Christian Sources in a Manuscript of Ibn Giqatela’s Commentary on Psalms”, in Eastern Christians and their Written Heritage: Manuscripts, Scribes and Context, ed. Juan Pedro Monferrer Sala, Herman G.B. Teule, and Sofía Torallas Tovar (Leuven: Peeters, 2012), 247. Strictly speaking, Judah Ḥayyūj’s Kitāb al-Nutuf (The Book of Pearls) preceded Ibn Chiquitilla. It was primarily a series of grammatical additions to his main works and in any case was immediately lost to the following generation, Nasir Basal, Kitāb Al-Nutaf by Judah Ḥayyūj (Tel Aviv: Tel Aviv University, 2001), Introduction. Maaravi Perez, “A Vestige of R. Jonah Ibn Janaḥ’s Commentary on the Book of Chronicles”, Tarbiẕ 58:2 (1990), n. 1. 27 Moseh ben Yacob Ibn Ezra and Montserrat Abumalham Mas, Kitab al-Muhadara wal-Mudakara (Madrid: Instituto de Filologia/Consejo Superior De Investigaciones Cientificas, Serie A. Literatura Hispano-Hebrea, 1985), 63; Abraham S. Halkin, Muḥāḍarah Wa-l-Mudhākarah Liber Discussionis et Commenorationis (Jerusalem: Hotsaʼat Mekitse Nirdamim, 1975), 68.

168  Daniel Isaac 28 The name refers to the Berber armies which ravaged southern Iberia. They deposed the ʾUmayyad Caliph of Córdoba Hisham II (966–1013) at the behest of his brother Sulayman II (d. 1046). Sulayman could not control their armies and was forced to hand out provincial governorships to Berber chiefs. He was also forced to expel Córdoba’s Jewish population. Included among those who fled were Samuel Ibn Naġrillah and his son, Joseph and the child, Ibn Chiquitilla. Shortly afterwards, the Caliphate of Córdoba began to disintegrate, leading to the period of Ṭāʾifas (petty kingdoms). 29 Evariste Lévi-Provençal, Histoire de l’Espagne musulmane (Paris/Leiden: G.P. Maisonneuve/E.J. Brill, 1950), vol. II, 281 nn. 4; 293; III, 138. The city was besieged by the Berber troops of Prince Sulaymân b. al-Ḥakam, on the 25th July 1013. On the intellectual circles in Saragossa, George Beech, The Brief Eminence and Doomed Fall of Islamic Saragossa: A Great Center of Jewish and Arabic Learning in the Iberian Peninsula during the 11th Century, Serie Estudios Árabes e Islámicos (Zaragoza: Instituto de Estudios Islámicos y del Oriente Próximo, 2008). 30 Haim Brody, From the Poetry of R. Moses ha-Kohen Ibn Chiquitilla, vol. 3 (Berlin: Shocken, 1937); Jefim Schirmann and E Fleischer, “Toldot ha-shirah ha-ʻIvrit bi-Sefarad ha-Notsrit uvi-derom Tsarefat’ (Jerusalem: Hotsaat sefarim ‘a. sh. Y.L. Magnes, ha-Universitah ha-’Ivrit: Mekhon Ben-Tsevi le-heker kehilot Yisrael baMizrah, 1997), 350–54. 31 Moseh ben Yacob Ibn Ezra and Montserrat Abumalham Mas, Kitab al-Muhadara wal-Mudakara (Madrid: Instituto de Filología/Consejo Superior De Investigaciones Científicas, Serie A. Literatura Hispano-Hebrea, 1985), 63; Abraham S. Halkin, Muḥāḍarah Wa-l-Mudhākarah Liber Discussionis et Commenorationis (Jerusalem: Hotsaʼat Mekitse Nirdamim, 1975), 68. Simon identifies this as excessive intellectualism, Uriel Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra (State University of New York Press, 1991), 113; Delgado, “Allusions to Christian Sources in a Manuscript of Ibn Giqatela’s Commentary on Psalms”, 246. 32 See my forthcoming PhD. 33 Abraham ben David Halevi Ibn Daud (c. 1110-c. 1180). and Gershon Cohen, The Book of Tradition: Sefer Ha-Qabbalah, Judaica, Texts and Translations, 1st Series, no. 3 (Philadelphia: Jewish Publication Society, 2010), Heb. 73, Eng. 300–3. 34 His name derives from ben-al-ʿam (son of his paternal uncle). Goshen-Gottstein and Maaravi Perez, Perush R. Yehudah Ibn Balʿam le-Sefer Yeshaʿyahu: ha-makor haʿArvi ʿal-pi ketav-yad Firkovits (Ramat-Gan: Universitat Bar-Ilan, 1992), 11, n. 1. 35 Delgado, “Allusions to Christian Sources in a Manuscript of Ibn Giqatela’s Com�mentary on Psalms”, 246. Also see my forthcoming PhD. 36 José Martínez Delgado, “El Kitāb Al-Tadkīr Wa-l-Taʾnīt de Moseh Ibn Giqatela (S. XI): Edición y Traducción”, MEAH 57 (2008), 206; Roger J. Kaplan, “Abraham Ibn Ezra’s and Moshe Giqatilla’s Translation of the Linguistic Term “AṢL” in Ḥayyuj’s Writings”, in Proceedings of the Eleventh World Congress of Jewish Studies 1993 (1994), 17–24; John W. Nutt and Judah Ḥayyuj, Two Treatises on Verbs Containing Feeble and Double Letters by R. Jehuda Hayug of Fez, Translated into Hebrew from the Original Arabic By R. Moses Gikatilia of Cordova; to Which Is Added the Treatise on Punctuation by the Same Author Translated by Aben Ezra, 1870. 37 He gave references in his Psalms commentary to other commentaries: Exodus, Leviticus, Joshua, Isaiah, Jeremiah, Ezekiel, Habakkuk, Amos, Proverbs, and what is probably a translation of Job. This translation was identified by Bacher with an anonymous translation of Job, but its provenance is questionable. Wilhelm Bacher, Targum Arvi ʻal Sefer Iyov ʻim Beur ʻarvi/Mosheh Ben Shemuʼel Ha-Kohen Ha-Niḳra Ben Giḳaṭilah (Hotsaʼah meyuḥedet mi-tokh hameʼasef

Language 169 ‘zikaron le-Avraham Eliyahu’ asher yatsa la-or li-melot shivʻim shanah le-Dr. A.A. Harkavi, 1909); Joshua Finkel, “The Commentary of Moses Ibn Chiquitilla to Psalms 3, 4 and 8”, Ḥoreb 3–4 (1936), 153–62. For further samples from his commentary to Isaiah, see my forthcoming PhD. 38 Rodríguez Arribas Josephina, “Ibn Ezra, Abraham (Abū Iṣḥāq),” in Encyclopedia of Jews in the Islamic World (Leiden: Brill, 2010). Accessed online: http://dx.doi. org/10.1163/1878-9781_ejiw_COM_0010510 39 P.K. Kokovtsov, Yeter ha-peleṭah: min Kitab al-muwazanah bayn al-lughah alʻIbraniyah wa-al-ʻArabiyah (Jerusalem: Ḳedem, 1890). 40 Delgado, “El Kitāb Al-Tadkīr Wa-l-Taʾnīt de Moseh Ibn Giqatela (S. XI): Edición y Traducción”, 205–36. 41 Courtesy of the Russian National Library. 42 Mitchell J. Dahood, Psalms, Anchor Bible (New Haven/London: Yale University Press, 1965), vol. I, 40–41. 43 For a helpful but dated review of traditional interpretation, Adolf Neubauer, “The Authorship And The Titles Of The Psalms According To Early Jewish Authorities”, Studia Biblica et Ecclesiastica 2 (1890), 1–58. Ibn Chiquitilla read the Vulgate and other Christian interpretations, but these did not alter his understanding of the text. James L. Kugel, “David the Prophet”, in Poetry and Prophecy: The Beginnings of a Literary Tradition, ed. James L Kugel (Ithaca, NY: Cornell University Press, 1990), 49–55; Delgado, “Allusions to Christian Sources in a Manuscript of Ibn Giqatela’s Commentary on Psalms”, 245–63. In addition, Ibn Chiquitilla identifies Ps. 51:20 as a latter addition by the pro-sacrificial party to the text. For further analysis cf. Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, chap. 3. For historic criticism in France, see Ta-Shama, “Open Bible Criticism in an Anonymous Commentary on the Book of Psalms”, Tarbiẕ 66 (1997), 417–23. 44 Chiefly Judah Ibn Balʿam, but for further comment see my forthcoming PhD. 45 For discussion of grammatical questions, see Cohen, Opening the Gates of Interpretation: Maimonides’ Biblical Hermeneutics in Light of His Geonic-Andalusian Heritage and Muslim Milieu, 31–74. For grammatical and philosophical concerns, see Fenton and Ibn Ezra, Philosophie et exégèse dans le Jardin de la méthaphore [sic] de Moïse Ibn ʻEzra, philosophe et poète andalou du XIIe siècle., and for an in-depth discussion of Psalms, see Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra. Also see Ibn Ezra gloss on Ps. 7.1 ad loc. For further analysis, see my forthcoming PhD dissertation. 46 Joseph Qafih, Targum: ʻim targum u-feruš ha-Gaʼon Saʻadyah ben Yosef Fayumi ; we-ḥeleq ha-diqduq le-Mahari”z̲ ; targum le-ʻivrit, Qeren ha-Rav Yehudah Leyb we-ʼišto Menuḥah Ḥanah ʼEpšṭayn š[e]ʻa[l]”y[ede] ha-ʼAqademiyah ha-ʼAmeriqanit le-Madaʻe ha-Yahadut (Jerusalem: Qeren ha-Rav Yehudah Leyb we-ʼišto Menuḥah Ḥanah ʼEpšṭayn š[e]ʻa[l]”y[ede] ha-ʼAqademiyah ha-ʼAmeriqanit le-Madaʻe haYahadut, 1966), 22. 47 Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, 3. Baba Bathra 15b. 48 Berakhoth 31b, Kethuboth 67b, Sanhedrin 56a, 64b, etc. 49 Ben-Shammai, “The Tension between Literal Interpretation And Exegetical Freedom”; Rawidowicz, “Saadya’s Purification of the Idea of God”; Rawidowicz, Studies in Jewish Thought. 50 Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, 31–42, 65–71. 51 This is self-evidently a weakness in Seʿadyah Gaʾon’s approach. His imposition of rhetorical rereading of Psalms as a philosophical rendering of the Pentateuch leaves no trace on the view of the book held among Iberian exegetes. Simon, chap. 1.

170  Daniel Isaac 52 Georges Bohas, Jean-Patrick Guillaume, and D.E. Kouloughli, The Arabic Linguistic Tradition, Routledge London and New York (London and New York: Routledge, 1990), 22–26. The same is true of modern translations. Dahood, Psalms, vol. I, 40–41. Other examples of cautious translation include: “Shiggaion of David, which he sang to the Lord, concerning Cush, a Benjaminite.” (New JPS); “Shiggaion of David, which he sang unto the LORD, concerning the words of Cush the Benjamite.” (King James): “A Shiggaion of David, which he sang to the LORD concerning Cush, a Benjamite.” (New American Standard Bible). Also Franz Delitzsch and Francis. Bolton, Biblical Commentary on the Psalms (Edinburgh: T. & T. Clark, 1893), vol. I, 138–39, and the literature cited there. Similarly, Muraoka writes this pattern (i.e. ‫ )פעלון‬is abstract in meaning and means a kind of song. T. Muraoka and Paul Joüon, A Grammar of Biblical Hebrew Part Three: Syntax Paradigms and Indices (Rome: Editrice Pontificio Istituto Biblico, 1991), sec. 88Mb 264. 53 The citation is taken from a manuscript held by the Russian National Library as part of the Firkovitch collection. Its collection number is Evr.-Arab. I 3583, 8v, 49r. 54 Ibn Chiquitilla identifies the missing word prior to shīr as derived from the subjunctive sentence that follows Shiggāyōn, “which he sang to the Lord” (Ps. 7:1). 55 This opinion is also found in Ḥayyūj’s al-Nutaf, although Ibn Chiquitilla did not know this work. Aharon Maman and Ephraim Ben-Porat, Kitāb al-Nutaf: R. Yehuda Ḥayyūj’s Philological Commentary To The Book of Prophets in ʿAli Ibn Suleymān’s Compendium (Jerusalem: The Academy of the Hebrew Language, 2012), 190, 298. 56 More frequently known as taqdīr (approximation) (Heb. shiʿūr). On the meaning of taqdīr and its equivalent term Aryeh Levin, “The Theory of Al-Taqdir and Its Terminology”, JSAI 21:142–166 (1997), 151. 57 The term “mode” includes the genre, musical scale and instrument used to play the psalm. This is to distinguish it from those explanations which emphasise the text’s genre or the name of an instrument. We, therefore, leave shiggāyōn untranslated, as will become clearer later. All three explanations agree that it is impossible to deduce the oral tradition relating to how to play the Psalms, which creates severe limitations. Bohas, Guillaume, and Kouloughli, The Arabic Linguistic Tradition, 10. 58 ‫( פעלון‬Paʿalōn). 59 Unlike in Ps. 7:1, the ellipsis is analeptic, as it is located earlier in the narrative in Gen. 42:19. This opinion is also found in Ibn Janāḥ who writes: “And take something for your starving ‫לג) תקדירה‬:‫ואת רעבון בתיכם (בראשית מב‬ households.” (Gen. 42:33) is approximately ‫ואת שבר רעבון בתיכם כמא קיל פי מוצ'ע‬ (taqdīr) as it states elsewhere and that ‫אכ'ר וד'לך רעבון הו אסם אלגו'ע נפסה כמא‬ “starving” is the nominal (form) of hunger ,‫קיל במימי רעבון ישבעו‬ itself, as if it said ‘in the days of famine.”’ Abū al-Walīd Marwān Ibn Janāḥ, Yehudah ibn Tibbon, and Michael Wilensky, Sefer ha-riḳmah = (Kitāb al-lumaʿ) (Jerusalem: The Academy of the Hebrew Language, 1964), 258, 6–7. Joseph Derenbourg and Abū al-Walīd Marwān Ibn Janāḥ, Le Livre Des Parterres Fleuris : Grammaire Hébraïque En Arabe d’Abou’l-Walid Merwan Ibn Djanah De Cordoue (Paris: F. Vieweg, 1886), 373, 12–14. So too the Targum Psalms adds, ‫יבּורא‬ ָ ‫( ִע‬passing) to its translation, but this text was unknown to Spanish Rabbis in the 11th century. I have found no examples where Chiquitilla quotes or directly refers to Targum Psalms. Many of the apparent similarities are possibly the product of other Talmudic texts or textual analysis. David M.

Language 171 Stec, The Targum of Psalms: Translated with a Critical Introduction, Apparatus, and Notes (London: T & T Clark, 2004), 2. 60 The terumah, “heave offering.” In rabbinic literature, its consumption was limited to priests, their families and servants. The terumah had to be consumed in a state of purity and, if eaten by someone prohibited to do so, required replacement the following year. The opinion of Rabbi ʿAkiva (Mishnah Terumah 6:1) is that a person must pay the priest the following year in kind (‫ )מין‬and add a fifth to it. This is accepted law, cf. Rashi and Ramban ad loc. and Mishneh Torah 10:2. 61 Also, Saadiah Gaon’s tafsīr: ‫( אלי אלאמאם ען אלקדס‬for the priest of the holy Temple)  And Ibn Janāḥ in ʾUṣūl who translates ‫( את‬ʾęth) as ‫( תחת‬taḥath) ‘instead of”. “‫( את‬ʾęth) has the (meaning), instead, etcetera. It is like, “he shall pay the priest instead of the sacred” (Lev. 22:14), as in ‘instead of the holy’.

.‫ויכון את (במעני) בדל כד'א וכד'א‬ ‫ומת'לה ונתן לכהן את הקדש (ויקרא‬ ‫יד) אי תחת הקדש‬:‫כב‬

Abū al-Walīd Marwān Ibn Janāḥ and Adolf Neubauer, The Book of Hebrew Roots (Oxford: Clarendon Press, 1888), sec. ‫את‬. Ibn Ezra, translates it as ‫( עם‬with). 62 The term contextual-philological approach was coined by Cohen; Mordechai Z. Cohen, Three Approaches To Biblical Metaphor From Abraham Ibn Ezra and Maimonides to David Kimhi (Leiden, Boston: Brill, 2003), 61, 83. 63 Midrash to Psalms 7:3, William G. Braude, The Midrash on Psalms, Yale Judaica Series, v. 13 (New Haven: Yale University Press, 1959), vol. I, 103. Bold text my own. Another example of David cursing Saul is cited in Midrash to Psalms 7:1, Ibid 101. Various other derivations for the meaning of shiggāyōn, though offered, do not pass muster against the prescriptive analogy of later philology and would have been rejected as implausible in the mind of a later philologist. What interests us is the selective process by which rabbinic passages are transformed into philologically sound interpretations of the text, even if other eschatological or interpretive implications are ignored or rejected.  Also cf. Targum 7:1. 64 Midrash to Psalms 7:3, Braude, vol. I, 103. 65 Ángel Sáenz-Badillos, Maḥberet - Menaḥem Ben Saruq (Granada: Universidad De Granada; Universidad Pontificia De Salamanca, 1986), 360. For a HebrewEnglish translation, see Mayer I. Gruber, Rashi’s commentary on Psalms, vol. 1 (Leiden/Boston: Scholars Press, 2004), 195, n. 1. 66 ‫ = וענינו יורה עליו‬min jahat al-maʿnā, Cohen, Opening the Gates of Interpretation: Maimonides’ Biblical Hermeneutics in Light of His Geonic-Andalusian Heritage and Muslim Milieu, 96, n. 29. 67 He might have imagined a musically induced prophecy, as with Saul and the com�pany of prophets (I Sam. 10:19), in which the shiggāyōn induces a frenzy. In such a scenario, the frenzy induced one to confess a sin. Cf. Rashi on Ps. 7:1 ad. loc. 68 Mišgeh derives from the same three radicals making up the word shiggāyōn, SHG-H. Rashi criticises the historic dating by rabbis of Ps. 7:1, “However, the content of the psalm does not support such an interpretation because [the context] speaks about the affairs of the Gentiles; As for the LORD, may He punish the Gentiles” (Ps. 7:9). I, however, say that he [David] composed it with reference to the machinations of Ishbibenob (2 Sam. 21:16), who attacked him [David] as a punishment for [the death of] Saul, as our rabbis have explained …” Gruber, Rashi’s Commentary on Psalms, 1:195. Rashi identifies it with the cutting of Saul’s garment in BT Moʿed Qatan 16b and derives the meaning “sin” from BT San. 95a.

172  Daniel Isaac 69 Ḥayyūj §‫שגה‬, 294–295. See also David Ben Abraham Al-Fāsi and Solomon Leon Skoss, The Hebrew-Arabic Dictionary of the Bible Known as Kitāb Jāmiʿ Al-Alfāẓ (Agrōn) of David Ben Abraham Al-Fāsī the Karaite (Tenth Cent.): Edited from Manuscripts in the State Public Library in Leningrad and in the Bodleian Library in Oxford (New Haven/London/Oxford: Yale University Press/Humphrey Milford/ Oxford University Press, 1936), 649. Unfortunately, Ḥayyūj’s work does not provide translation for roots. However, it is possible to infer with some certainty Ḥayyūj’s understanding of the meaning of words from how he arranges lexical entries into groups of morphemes that share the same meaning. 70 Modified from JPS 1917 edition. 71 Modified from JPS 1917 edition. 72 Ibn Janāḥ glosses Ḥayyūj’s arrangement; ‫ תשגה‬as ‫“ אכ'תא‬sin” or ‫“ שהו‬neglect” and ‫ שגיונות‬as “to occupy.” Joseph Ibn Djanah, Abou ’L-Walid Merwan Derenbourg and Hartwig Derenbourg, “Opuscules et traites d’Abou ’L-Walid Merwan ibn Djanah de Cordoue: Texte arabe publie avec une traduction francaise” (Paris: Impr. Nationale de France, 1880), sec. §‫שגה‬. = Abū al-Walīd Merwan Ibn Janāḥ and Jehuda Ibn Tibbon, Sepher Haschorachim, ed. Wilhelm Bacher (Berlin, 1896), 497. 73 On the Iberian shift towards minimal definitions for words, see Richard C. Steiner, “Saadia vs. Rashi: On the Shift from Meaning-Maximalism to MeaningMinimalism in Medieval Biblical Lexicology”, The Jewish Quarterly Review 88:3/4 (January 1998), 213–58, https://doi.org/10.2307/1454663. For the negative connotation of ṭarab in Islamic musical theory, see Amnon Shiloah, “Maïmonide Et La Musique”, in Music and Its Virtues in Islamic and Judaic Writings (Aldershot: Ashgate, 2007), chap. XVIII, 502; Amnon Shiloah, “Musical Concepts in the Works of Saadia Gaon”, in ibid., chap. XXII, 4, 5. Maimonides, in his responsa to the Jews of Ḥalab, uses iltidād to describe all music whose form diverts the soul and excites it with sensual emotions as illicit; Shiloah, “Maïmonide Et La Musique,” chap. XVIII, 502. 74 Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, 237, and Alexander Altmann, “The Delphic Maxim in Medieval Islam and Judaism”, in Studies in Religous Philosophy and Mysticism (Ithaca, NY: Cornell University Press, 1969), 1–41. 75 ʾUṣūl, Ibn Janāḥ and Neubauer, The Book of Hebrew Roots, 702–3. 76 Also Saadiah Gaon: ‫“ תסביח אסתנצאר‬a song requesting victory”. Qafih, Targum: ʻim targum u-feruš ha-Gaʼon Saʻadyah ben Yosef Fayumi ; we-ḥeleq ha-diqduq le-Mahari”z̲ ; targum le-ʻivrit, 62., included in Seʿadyah’s commentary, where he justifies his argument based on the content of the psalm. He ignores the ex-post facto argument for rhetorical reasons outlined in his Introduction to Psalms. 77 Ibn Janāḥ and Neubauer, The Book of Hebrew Roots, sec. §‫שגה‬. Radaq criticises this allegorical explanation of Ps. 5:18–20 and specifically that of Prov. 5:19 ‫“ תתעסק באהבתה‬to occupying yourself with her love.” Cohen, Three Approaches To Biblical Metaphor From Abraham Ibn Ezra and Maimonides to David Kimhi, 153–54. Cohen identifies his criticism as Ibn Janāḥ’s failure to explain the literal meaning of the text. However, a more nuanced reading indicates that Ibn Janāḥ offers two distinct readings, the first the philological contextual interpretation and the second the rhetorical meaning. This reflects strongly the application of the Janaḥian hermeneutics of ẓāhir al-naṣṣ and taʾwīl as summarised by Cohen, Ibid. 82–83. 78 S.v. Lane, Sh-Gh-L “busied him”, “occupied him” or “distract oneself”. The identification of this meaning with Ibn Quraysh is not found in al-Risāla and is mistakenly attributed to Ḥai Gaon by Radaq Ibn Quraysh and Becker, ha-Risalah, 342–43. It is in fact Səʿadyah’s explanation to the verse in his commentary to Proverbs ad. loc and cited by Maimonides’ Mishneh Torah Hilkhot Teshuvah 10:6, cf. Cohen, Three Approaches To Biblical Metaphor From Abraham Ibn Ezra and Maimonides to David Kimhi, n. 65.

Language 173 79 Elnatan Chen, “Four Comments On The Text Of Rabbi Yonah Ibn Janāḥ’s Kitāb Al-Mustalḥaq,” Iberia Judaica X (2018): 112, n. 6. 80 Cohen, Three Approaches To Biblical Metaphor From Abraham Ibn Ezra and Maimonides to David Kimhi, 62–63. 81 Evr.-Arab. I 3583, 49r. 82 Midrash to Psalms 7:3, supra. 83 This straddling of the two positions was clearly expressed by Abraham Ibn Ezra when he adopted the philological conclusions that shiggāyōn carries a negative connotation, but identified the psalm as post-facto, indicating forgiveness. 84 For a similar approach, see Bohas, Guillaume, and Kouloughli, The Arabic Linguistic Tradition, 19. They use the term primary data to refer to the Arabic linguistic tradition. In the case of Hebrew, that tradition is comprised of the Bible and rabbinic material – Mishnah, Midrash, Talmud, Targum, etc. 85 Bohas, Guillaume, and Kouloughli, 22–26. 86 Bernard S. Jackson, “Models in Legal History: The Case of Biblical Law”, Journal of Law and Religion 18:1 (2002), 1–30; Elisha Ancselovits, “Second Temple Phronetic Jewish Law”, Jewish Law Association Studies 16 (2004), 152–189; Elisha Ancselovits, “Encyclopedic Knowledge In Stories And Contextual Knowledge In Law: Rereading Akivean Exegesis Of Biblical Laws And Akivean Law Codes”, Jewish Law Association Studies 17 (2007), 10–49. 87 Cohen notes a similar point in his summary of the Geonic-Andalusian tradition and the Northern French system: “for the most part the Geonic-Andalusian mostly work to clarify the theological tenets of Judaism and the system of talmudic halakhah … [whilst] recent studies of the northern French peshat school … reveal that they derived inspiration from the contemporaneous Christian interest in interpreting Scripture philologically and historically according to its sensus litteralis.” Cohen, Opening the Gates of Interpretation: Maimonides’ Biblical Hermeneutics in Light of His Geonic-Andalusian Heritage and Muslim Milieu, 2–3, nn. 3–5. 88 Raphael Dascalu, “Philology, Philosophy, And Sufism: Towards An Understanding Of Tanḥum Ha-Yerushalmi’s Exegesis And Thought, With A Focus On His Commentaries On Jonah, The Song Of Songs, And Qohelet” (University of Chicago, PhD dissertation, 2016). 89 Supra. 90 Supra. 91 It may refer to other instances when Saul tried to kill or have David killed, for example TB Môʿeḏ Qāṭān, 16b. Cf. Rashi, Ibn Ezra and Radaq, ad. locum, and Talmuḏic sources cited by them. 92 Braude, The Midrash on Psalms, vol. I, 115–116. 93 See my forthcoming PhD, «Une analyse critique du commentaire de Moïse Ibn Chiquitilla sur le livre des Psaumes». 94 Evr.-Arab. I 3583, 49r. 95 The fig-tree is a metaphor for the destruction of the wicked and not Israel; see below for Tanḥūm’s discussion of Habakkuk. 96 Also, see Tanḥūm Yerushalmi Hab. 1:3. Hadasa. Shai, Tanḥum Ha-Yerushalmi’s Commentary on the Minor Prophets: A Critical Edition With An Introduction Translated into Hebrew And Annotated (Jerusalem: Magnes Press Hebrew University, 1991), 340. 97 Evr.-Arab. I 3583, 9r. 98 Evr.-Arab. I 3583, 9r. 99 Unfortunately, Ibn Chiquitilla’s commentary to Habakkuk survives in only a few fragments. We cannot turn to the extensive citations of him by Ibn Ezra, as he did not know Ibn Chiquitilla’s commentary to the Minor Prophets, Maaravi Perez, “Ketaʿ Mi-Perush Moses Ibn Gikatilah to the 12 Minor Prophets: Micah 7: 3–20, Nahum, Habakkuk 1:1–9”, ed. Rimon Kasher and Moshe Zipor, Studies in Bible Exegesis 6 (2002), 253–80.

174  Daniel Isaac 100 This reflects the view taken by Ibn Chiquitilla that many passages found in books of prognostication contain nothing more than historical references. The most famous being his opinion that the second half of the book of Isaiah (Chapter 40 onwards) was written by a figure living in exile. Abraham Ibn ʿEzra and Michael Friedlaender, The Commentary of Ibn Ezra on Isaiah (New York: Philip Feldheim, 1878), chap. 40:1; Jair Haas, R. Abraham Ibn Ezra’s Commentary on Isaiah 40–66 (Ramat Gan: Bari-Ilan University Press, 2020), Introduction. 101 For a discussion of historicisation in the medieval period, see Uriel Simon, The Ear Discerns Words (Ramat-Gan: Bar Ilan University, 2013), chap. X, XII; Ta-Shama, “Open Bible Criticism in an Anonymous Commentary on the Book of Psalms”. 102 On Tanḥūm’s familiarity with Ibn Chiquitilla’s commentaries, see Samuel Poznański, “Mose B. Samuel Hakkohen Ibn Chiquitilla, Nebst Den Fragmenten Seiner Schriften. Ein Beitrag Zur Geschichte Der Bibelexegese Und Der Hebräischen Sprachwissenschaft Im Mittelalter”, ZAVA 26:1–3 (1912), 154–5; Maaravi Perez, “A Fragment of Moses Ibn Gikatilah to the 12 Minor Prophets: Micah 7: 3–20, Nahum, Habakkuk 1:1–9”, ed. Rimon Kasher and Moshe Zipor, Studies in Bible Exegesis 6 (2002), Introduction. 103 Tanhum ben Joseph and Shy, Hadassa Perush Tanḥum ben Yosef ha-Yerushalmi li-Tere-ʿasar, Hab. 3:1, 222. 104 Other examples are the song of Ex. 15 and Deut. 32, Deborah, Hezekiah’s letter (Is. 38:9) and Ps. 91. 105 Ibid. 106 Tanḥūm cites a second option that the oppressors are the Canaanites, but he expresses reservations. 107 On ʾirâda [Divine Will], see Louis Massignon, Essai sur les origines du lexique technique de la mystique musulmane (Paris: Editions du Cerf, 1999) 16; Louis Massignon, “Riḍā,” in Encyclopédie de l’Islam (Leiden: Brill, 2010). All citations to the Encyclopédie de l'Islam are from the online edition: https://referenceworks.brillonline.com/entries/encyclopedie-de-l-islam/*-SIM_6285. Raphael Loewe, Ibn Gabirol, Jewish Thinkers (New York: Grove Weidenfeld, 1989), 181, n. 50; Paul Fenton and Moses Ibn Ezra, Philosophie et Exégèse dans le Jardin de la Méthaphore de Moïse Ibn ʻEzra, Philosophe et Poète Andalou du XIIe Siècle, Etudes Sur Le Judaïsme Médiéval (Leiden/New York/Köln: Brill, 1997), 208; Sarah Pessin, Ibn Gabirol’s Theology of Desire: Matter and Method in Jewish Medieval Neoplatonism (Cambridge: Cambridge University Press, 2013). See also Ibn Janâḥ Joshua Blau, Judaeo-Arabic Literature: Selected Texts., vol. 4, Max Schloessinger Memorial Series (Jerusalem: Magnes Press Hebrew University, 1980), 99. 108 Tanhum ben Joseph and Shy, Perush Tanḥum ben Yosef ha-Yerushalmi li-Tereʿasar, 240. 109 See Ibn Ezra’s standard and non-standard introductions to Psalms and his comments on Hab. 3:1, ad. loc. 110 Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, 195. 111 In his commentary on verse 2, Ibn Ezra explains that the words “O Lord, I have heard the report” mean “that God informed him concerning the famine,” whereas the words “Your deeds in the midst of the years revive him” indicate that Israel will live in the midst of those years.” Simon, 195. 112 Cf. Tanḥum Ha-Yerushalmi’s Commentary on the Minor Prophets: A Critical Edition With An Introduction Translated into Hebrew And Annotated (Jerusalem: Magnes Press Hebrew University, 1991), 238. This bears similarity to Ibn Ezra’s opinion that the collective “I” refers to Israel’s suffering – “The prophet speaks this prophecy on behalf of Israel.” Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, 194.

Language 175 113 Moses Maimonides and Michael Friedländer, The Guide for the Perplexed. [Dalalāt al-Hairin.] Transl. from the Original Arabic Text by M. Friedländer, ... ([New York]: Dover, 1962), vol. 2:38. 114 Simon hypothesised that Ibn Chiquitilla treats Jonah’s psalm as one of thanksgiving and not of supplication. Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra. 194. I believe that Habakkuk’s prayer was understood this way. However, thus far no manuscript has come to light that includes Ibn Chiquitilla’s opinion. Also see Ibn Chiquitilla to Koraḥide psalm cycle for a similar approach, discussed in my forthcoming PhD. 115 Hadasa Shai, Tanḥum Ha-Yerushalmi’s Commentary on the Minor Prophets: A Critical Edition With An Introduction Translated into Hebrew And Annotated (Jerusalem: Magnes Press Hebrew University, 1991), 242. 116 For Tanḥūm’s use of Ibn Balʿam, see Aryeh Tsoref, “Tanhum Yerushalmi and Moses Ibn Chiquitilla on Psalm Headings”, Sinai 149 (2016): 1–18. 117 Simon, Four Approaches to the Book of Psalms: From Saadiah Gaon to Abraham Ibn Ezra, 194–95. 118 H.P. Grice, “Meaning”, Philosophical Review 66:3 (1957), 377–88; H.P. Grice, “Utterer’s Meaning, Sentence-Meaning, and Word-Meaning”, Foundations of Language 4:3 (1968), 225–42; Paul Grice, “Intention and Uncertainty,” Proceedings of the British Academy 57 (1971), 263–79; Grice, “Logic and Conversation”. For a similar approach to Arabic rhetoric, see Wolfhart Heinrichs, The Hand of the Northwind: Opinions on Metaphor and the Early Meaning of Istiʿāra in Arabic Poetics, Abhandlungen Für Die Kunde Des Morgenlandes, 1. Aufl. (Mainz: Deutsche Morgenländische Ges., 1977); Wolfhart Heinrichs, “On the Genesis of the Ḥaqîqa-Majâz Dichotomy”, Studia Islamica 59 (1984), 111–40.

6

Ethics Debating the Proper Orientation of the Ethical Self in Rabbinic and Monastic Sources from Antiquity Matthew Goldstone

Editors’ note This chapter takes us out of the realm of academic disciplines like history or law, with their complex relationship to devotion and relativism, and into a topic that is at once more abstract and more personal: the ethical. Here Matthew Goldstone asks about the role of ethics in navigating relationships between the beit midrash and the academy. The author examines how the talmudic sages approached the following questions: Should we focus on reproaching others for their wrongdoings or instead focus on self-perfection? If we reproach others, does this undermine our own self-discipline, by weakening our humility or emphasis on self-improvement? Should either the devoted practitioner of faith or the relativist academic scholar seek to engage in corrective conversation with others who hold different outlooks? Goldstone addresses these issues on two levels. First by juxtaposing early Christian monastic and rabbinic considerations of the above questions, the chapter introduces a comparative perspective to show that practitioners of these two traditions are not as isolated from one another as they might imagine. Second, the chapter transforms the question of humility versus reproach into a theoretical, ethical quandary about how an academic scholar and a devoted practitioner should treat each other: should they seclude themselves in mutual self-isolation or undertake an effort to engage in highly difficult ethical and intellectual conversations with one another? In defining the tension between them, he regards devotion as an absolute dedication to the unique truth of one’s tradition, and relativism as characterized by the use of critical tools to address pressing intellectual questions. Goldstone embraces all three methods at work in this book: he puts multiple bodies of devotional texts and academic scholarship into conversation; through close readings, he detects the same human problems being discussed across a range of religious traditions; his essay suggests that the question of the ethical self might allow for greater institutional engagement between the academy and the beit midrash or Christian monastic institution, without the need for tidy resolution.

DOI: 10.4324/9781003364078-7

Ethics 177 What does it mean to be, or to work toward becoming, an ethical person? For some, the proper path consists of dedicating significant efforts toward self-improvement – to become the best that one can be. For others, ethics is fundamentally interpersonal and the focus is primarily on the betterment of others and their situations. While these two orientations can coexist, for some there is a strong tension between the desire for self-improvement and the obligation to aid others. So, when these competing orientations clash, which should be given precedence? The answer is certainly neither simple nor monolithic. Indeed, when we turn our gaze back to Judaism and Christianity in antiquity, we find that leaders of both communities grappled with their own versions of this dilemma. In this chapter, I will examine a key passage from rabbinic literature in conjunction with several texts from early Christian monastic literature that all address the tension between self and other ethical orientations. As we shall see, while the passages under discussion generally evince a preference for a focus upon the self rather than others, the importance of interpersonal obligation is never entirely out of sight. Observing the ways that rabbinic and monastic sources navigate this tension provides a pathway for bridging the ostensive chasm between text and context, allowing us to identify a nexus of Jewish and Christian moral reflection in antiquity on the one hand, and scholarly and theological perspectives on the other. In order to understand the main talmudic passage that grapples with the tension between focusing on the self and on the other, we must begin with the Hebrew Bible, in which the seeds of this tension are already present. We find a verse in the middle of the Book of Leviticus that prescribes chastising others for wrongdoing – ostensibly setting out interpersonal obligation at the forefront of our ethical priorities: “You shall not hate your kinsfolk in your heart. You shall surely reprove your kinsman but incur no guilt because of him” (Lev. 19:17; NJPS translation). This verse articulates an obligation to rebuke others. Yet, despite its outward-oriented appearance, this verse also contains within it a nod toward the importance of one’s own ethical disposition – “You shall not hate your kinsfolk in your heart.” A command concerning a person’s emotions and thoughts is intertwined in the same verse with the externally oriented obligation to rebuke. Which is primary – the selforiented obligation of removing hatred from one’s heart or the other-oriented obligation of rebuke? As we shall see, drawing upon the tension already at play in this verse, the rabbis of the Talmud set these ostensibly antipodal orientations at odds with one another but ultimately reveal a subtle preference for a self-orientation over a focus upon others. Before turning to the talmudic discussion, it is important to briefly reflect upon an unusual rabbinic response to the practice of rebuke and the suitability of this activity for shedding light on broader ethical concerns. In contrast to the acceptance of most biblical commandments, as we shall see, the early rabbis (tannaim) call into question their ability to perform the scripturally commanded act of rebuke.1 In many ways, this marks rebuke as a unique case, distinct from other expressions of interpersonal obligation. However,

178  Matthew Goldstone as the early rabbinic conversation about rebuke is integrated into a talmudic context, the tenor of the discourse shifts. What was previously an issue of feasibility develops into a deeper question about suitability – assuming that one can rebuke, should one engage in this activity?2 The presence of various talmudic statements that endorse rebuke augments the picture that, despite the unexpected tannaitic rejection of rebuke, within the amoraic period this activity sheds some of its sui generis character. This return to embracing the possibility of rebuke allows us to explore the main talmudic discussion of rebuke as a negotiation of the underlying value of this activity, viewed without regard to its challenging implementation. The primary sugya (passage) in the Talmud that addresses Lev. 19:17 and the competing ethical orientations implied in the verse is Tractate Arakhin 16b–17a, which is composed of three semi-discrete sections. The first section, preserving a version of a tradition that first appears in the early rabbinic midrash known as Sifra, contains an anonymous gloss on the obligations of Lev. 19:17 in addition to the voices of several rabbis who declare rebuke inoperative in their day. The second unit presents a question of preferability: Which is to be preferred, rebuke or humility? Ultimately, this middle unit opts for humility and offers an anecdote to concretize the two options. Finally, the third section of our extended talmudic passage asks “until what point” one should rebuke; that is to say, given the biblical obligation to rebuke, what sign or indication that the effort has been unsuccessful is sufficient for the rebuker to desist? As I will suggest, each of the parts of the sugya introduces an underlying tension between a sustained affirmation of rebuke coupled with a subtle strand that problematizes rebuke and turns the reader’s attention back toward the self. Our sugya opens with a passage taken from the tannaitic midrash, Sifra, that both highlights the extreme extent of the biblical obligation to rebuke and calls it into question. The first half of this passage as it appears in Sifra presents an anonymous gloss on Lev. 19:17, which sets out the parameters for rebuke: You shall not hate your kinsfolk in your heart. One might think you should not hit him, curse him, or slap him. The Torah therefore says: in your heart. I only said hatred which is in the heart. And from where do we know that if he rebukes him even four or five times that he should rebuke again? The Torah therefore says you shall surely rebuke [hokhei-ah tokhi-ah]. One might think even if he rebukes him and his countenance changes. The Torah therefore says, but incur no guilt because of him.3 In the middle of the three comments, Sifra suggests that one must continue rebuking another person even if there have been multiple failed attempts. Yet, according to the final gloss, if one causes the other person’s countenance to change – that is, if they embarrass the other person – then the rebuker has actually sinned, since the goal is to cause the offender to admit their mistake and to reform their behavior, rather than to be shamed.

Ethics 179 This anonymous tradition in Sifra is accompanied by the voices of three prominent tannaim who declare the inability of people in their day to properly rebuke. In the midrash, this section appears as follows: R. Tarfon said, “By the Temple! (=I swear!) If there is anyone in this generation who is able to rebuke!” R. Elazar ben Azariyah said, “By the Temple! If there is anyone in this generation who is able to receive rebuke!” R. Akiva said, “By the Temple! If there is anyone in this generation who knows how to rebuke!”4 These three early rabbis call the entire enterprise of rebuke into question, suggesting that people are neither equipped to administer nor receive rebuke properly. However, their exclamations are followed by the view of a colleague who affirms the possibility of rebuke: R. Yohanan ben Nuri said, “May heaven and earth bear witness regarding me that more than four or five times Akiva was lashed because of me before Rabban Gamliel because I would complain to [Rabban Gamliel] concerning [R. Akiva], and how much would I know that he increased love for me.”5 As a whole, this tannaitic tradition, as it appears in Sifra, both advances the biblical obligation of rebuke by requiring repeated attempts and presenting R. Yohanan’s successful rebuke and undercuts the force of this commandment by declaring that no one is actually capable of performing it properly. A further dimension is added when this material is incorporated into the Babylonian Talmud. The Talmud adds a new line into the attributed discussion and has an unusual version of R. Yohanan’s position. Both of these points highlight the central tug of war between focus on self-improvement over and against that of rebuking the other. Although there are some slight variations in the views of the tannaim cited in the talmudic sugya who declare themselves unable to rebuke from those in Sifra, the most obvious addition is an example of an ineffective reproof and the resulting response: “If one said to him ‘Take the speck from between your teeth,’ he would [reply], ‘Take the log from between your eyes.’” This line introduces a hypothetical dialogue between the rebuked party and the rebuker, castigating the latter for their hypocrisy. This imagined retort shifts our attention from the outward-oriented act of rebuke to inward-oriented reflection upon one’s own flaws. Rather than focusing on removing the “speck” – the lesser impurity affecting another person – this addition challenges the person rebuking to first consider their own personal imperfections, which are likely to be greater than those of the person they are confronting. This glance inward is strengthened by a subtle shift in the language of the tradition attributed to R. Yohanan as it moves from the tannaitic midrash to the Talmud. According to Sifra, R. Yohanan ben Nuri concludes his anecdote

180  Matthew Goldstone by claiming that his rebukes against R. Akiva were successful because R. Akiva had greater love for him (‫)שהוא מוסיף לי\בי אהבה‬.6 However, according to all of the extant manuscripts of our sugya, it is actually R. Yohanan ben Nuri himself who develops greater love for R. Akiva (‫)שהוספתי בו אהבה‬.7 In Sifra, it is R. Akiva, the rebuked party, who changes as a result of the rebuke, while in the Talmud it is R. Yohanan ben Nuri himself, the rebuker, who is transformed. Although this shift in language from Sifra to the Talmud is certainly subtle, the nearly unprecedented and unusual nature of this change (it does not exactly make sense in context),8 combined with its consistent appearance across all of the manuscript traditions, opens up the possibility that the shift in language may not be accidental. If the editor(s) or transmitter(s) of the Talmud altered R. Yohanan ben Nuri’s language purposefully in order to reflect an anecdote focused more on himself than on R. Akiva (despite the conceptual problems that this revised version creates), then this is another way in which the first unit of our sugya orients our gaze back toward oneself rather than toward the other. Before turning to the central unit of our sugya, which provides the most explicit tension between self- and other-oriented ethical approaches, we can also note another subtle clash between inward and outward orientations that appear in the third and concluding portion of our sugya. Following on the heels of the main discussion of rebuke, the Talmud offers an interpretation of a verse from Psalms: Such is the circle of those who turn to Him (‫)זה דור דורשיו‬, Jacob, who seek Your presence. Selah. (Ps. 24:6) R. Yehudah Nesiah and the Rabbis disagree about [this verse]: One says, “[The status of] the generation follows the leader (‫)פרנס‬,” and one says, “[The status of] the leader follows the generation.” What is the practical application [of this debate]? If you say that [their debate is with regard] to merit (‫)מעליותא‬, that one believes if the generation is virtuous then the leader is virtuous, and the other believes if the leader is virtuous then the generation is virtuous – but there is the [counter example of] Zedekiah who was virtuous and his generation was not virtuous! And [there is also the case of] Jehoiakim who was not virtuous and his generation was virtuous. As R. Yohanan said in the name of R. Shimon ben Yohai, “Why is it written ‘At the beginning of the reign of King Jehoiakim son of Josiah of Judah (Jer. 26:1)’? The Holy One Blessed Be He sought to return the world to wild and waste because of Jehoiakim, but when He looked at his generation He was pacified (‫)נתיישבה דעתו‬. The Holy One Blessed Be He sought to return the world to wild and waste because of Zedekiah’s generation, but when He looked at Zedekiah He was pacified.” [This proves that the debate over leader and generation is not about merit,] rather we are talking about the matter of anger and mildness (‫)תוקפא וניחותא‬.9

Ethics 181 In this section, R. Yehudah Nesiah and the rabbis disagree over the question of whether the status of a generation is determined by the status of their leader (‫ )פרנס‬or if the status of the leader follows that of the generation. Providing the cases of King Zedekiah, who was virtuous despite his generation, and King Jehoiakim, who was not virtuous despite his generation, the Talmud relates that in each case God contemplated returning the world to nothingness, but reconsidered because of the virtuous party. The implication of these examples is that the virtue of leader and generation are independent, but that the merit of one can save the other. Considering this from the perspective of inward- versus outward-orientated ethics, we find a conceptual parallel to the first unit of our sugya. This final section of the sugya first posits that one party is able to influence the other – that is, a virtuous leader can convince his people to act righteously and that a virtuous population can induce their leader to act properly. However, the sugya ends up rejecting this possibility, instead asserting that such influence does not seem to occur but that the merit of one or the other is sufficient to prevent utter destruction. On the personal level, this suggests that if one party works at self-perfection, then there is no need to attempt to reform his fellow who has acted improperly. Thus, like the first section of our sugya in which we observed a clash between rebuke and glances inward, here too we find a suggestion of interpersonal responsibility subtly curbed by the assertion that efforts at self-perfection are preferable or at least sufficient. If the opening and closing units of our sugya present the possibility of a strong other-oriented ethical obligation only to subtly retreat from this effort by pointing to the alternative of focusing on oneself, the clash between selfand other-orientations climaxes in the central section of our sugya where we find an explicit question that, according to my reading, grapples with the relative value of self- and other-orientations: R. Yehuda ben R. Shimon asked of him,10 “Proper (‫ )לשמה‬rebuke and improper (‫ )שלא לשמה‬humility, which of these two is preferable?” He said to him, “Do you not admit that proper humility is preferable as the master said, ‘Humility is the greatest of all.’ Improper [humility] is also preferable as Rav Yehuda said in the name of Rav: ‘A person should always occupy himself with the Torah and commandments even if improperly, for from improper [motivations] one will come to [occupy himself with them for] proper [motivations].’”11 R. Yehuda ben R. Shimon sets the value of rebuke against humility, the latter being a trait that some consider to be the greatest quality.12 Asking a question about whether to prefer rebuke or humility is an implicit acknowledgement of the value of the former: were rebuke obviously inferior to the esteemed quality of humility, or if it were the intention of the editor of this passage to thoroughly debase rebuke, a much lesser comparison could have been proffered. However, despite the fact that rebuke is set against humility, this passage

182  Matthew Goldstone devalues reproof on several levels. First, humility is explicitly identified as superior. In fact, the passage makes clear that even improper humility is favored above proper rebuke. Moreover, the absence of any indication of humility’s scriptural status (in the majority of manuscripts) is surprising.13 The Book of Leviticus mandates the act of rebuke but there is no explicit obligation from the Torah to be humble. This passage thus contrasts rebuke, which is a biblical obligation, with the non-pentateuchal value of humility, and asserts that the latter is preferable. The introduction of Rav’s statement concerning Torah and commandments calls our attention directly to the disparity between the pentateuchal pedigree of rebuke and the merely rabbinic provenance proffered for the value of humility. So, despite the acknowledgement of the value of rebuke as a worthy contender against humility, the overwhelming preference for the latter in this section undercuts the desirability of rebuke, highlighting instead the value of self-perfection as exemplified by humility. The middle of our talmudic passage continues by providing an example intended to illustrate proper rebuke and improper humility. However, when we look closely at the anecdote provided, we find that the example of improper humility seems to verge on lashon hara (evil speech), thereby calling into question the sugya’s preference for humility: What is an example of proper rebuke and improper humility? Like the [example] of Rav Huna and Hiyya bar Rav who were sitting before Shmuel. Hiyya bar Rav said to him,14 “Does the master not see that he is bothering me?” [Rav Huna] took it upon himself not to bother [Hiyya] further. After [Hiyya] left, [Rav Huna] said to [Shmuel], “This and that he did to me.” [Shmuel] said to [Rav Huna], “Why did you not tell him to his face?”15 [Rav Huna] said to [Shmuel], “Far be it from me that the offspring of Rav would be embarrassed by my hand.”16 The lack of explicit pronouns in this passage makes it somewhat opaque. But the most cogent understanding of the episode seems to be as follows: Hiyya raises a complaint against Rav Huna while both of them were sitting in class before their teacher Shmuel. After Hiyya leaves the room, Rav Huna tells Shmuel about Hiyya’s problematic behavior. Shmuel asks why Rav Huna did not challenge Hiyya directly for his inappropriate behavior, to which Rav Huna replies that he was worried about embarrassing him. Since this case is brought to illustrate proper rebuke and improper humility it seems that, in the eyes of the narrator, Rav Huna’s complaints against Hiyya would have constituted the proper rebuke (had he actually expressed them to Hiyya himself) and Rav Huna’s hesitancy to rebuke lest he embarrass is the instance of improper humility. Humility in this case is demonstrated by remaining silent and not offering criticism. Yet, upon closer inspection, Rav Huna’s improper humility appears to be something quite problematic. According to the order of events in the story, Rav Huna waits for Hiyya to exit before relating to Shmuel the various offenses committed by his colleague. Delaying his claims until Hiyya is absent, and informing Shmuel of Hiyya’s

Ethics 183 infractions before Shmuel has a chance to question him, Rav Huna effectively turns an opportunity for rebuke into lashon hara (evil speech) – Rav Huna conveys negative details about his peer to someone other than Hiyya himself. Indeed, Rav Huna’s motivation for telling Shmuel seems to be primarily in order to exonerate himself rather than to benefit Hiyya. Rav Huna thus denigrates his colleague to a superior for self-centered purposes, an act hardly distinguishable from lashon hara. Presenting this episode in the context of a preference for humility over rebuke, the sugya indicates that even this quasiact of evil speech that purports to be an act of humility is better than rebuke, while at the same time calling this preference into question. Our sugya, then, contains three main sections, each of which engages with the other-oriented act of rebuke, but ultimately shifts the reader’s attention toward the self rather than the other party. As an other-oriented activity, rebuke often leads a person to ignore his or her own faults while focusing on those of another. In order to refocus our attention upon our own faults, the sugya challenges rebuke by inserting subtle features that direct the audience’s attention back toward oneself. Our sugya is thus engaged in a debate over whether an orientation toward the other – as exemplified by rebuke – is preferable to an orientation toward the self – portrayed as humility at the sugya’s apex. We cannot know for certain whether the rabbis conceptualized their debate in this manner. However, there are many examples of sugyot that similarly provide subtle clues to the ways in which the rabbis worked through far-reaching ethical tensions.17 More importantly, the rabbis of the Talmud are not the only voices from antiquity that present a clash between self- and other-orientated ethics. When we look to the world of early Christian monastic literature, we find a similar tension and, as Michal Bar-Asher Siegal has argued, the authors of rabbinic texts may draw from the insights of their Christian compatriots.18 The main sources for texts from the desert monks relevant for our purposes are the Greek Apophthegmata Patrum, or The Sayings of the Desert Fathers, and the Syriac collection The Paradise of the Holy Fathers.19 The former was likely compiled sometime during the sixth century of the Common Era, but contains many traditions that predate it by a century or two, and the latter was compiled by the Syrian monk ‘Enanisho of Beth Abhe (seventh century CE) and is partially based upon the former work.20 One of the traditions from these collections, describing the practice of Abba Poemen, asks whether this monk would rebuke others for wrongdoing: Some of the old men asked Abba Poemen, saying, “If we see one of the brethren committing sin, would you have us rebuke him?” And the old man [i.e., Abba Poemen] said to them, “If I had some business which made me pass by him, and in passing by him I saw him committing sin, I should pass him by and not see him.”21 In this example, Abba Poemen is presented with an opportunity to rebuke one of his peers, but he declares that in such a case he would refrain

184  Matthew Goldstone from offering words of correction. The motivation for his choice appears to stem from a preference for self-improvement, as illustrated by the following anecdote: There was an anchorite who became a bishop. Of his piety he would reprove nobody, but used to tolerate the faults of each one with longsuffering patience. Now his steward was not administering the church’s affairs according to the book and some people said to the bishop: “Why do you not reprimand the steward as he is disdainful in that regard?” – but the bishop postponed the reprimand. [The] next day those who had spurred him on against the steward came but the bishop hid somewhere … when they found him, they said to him: “Why were you hiding from us?” He answered: “Because in two days you want to rob me of what I achieved in sixty years by praying to God.”22 This story may be understood more clearly with the background information that the bishop protagonist was previously an anchorite – a monk who lived in semi-isolation. However, his new role as a bishop required communal responsibilities. In response to his refusal to confront a problematic steward, members of the community demand action. Yet, rather than confront the steward, the bishop hides himself, hoping to escape conflict. When he is ultimately discovered and challenged by the people, his concerns are revealed: He feels that confronting the steward would “rob him” of his six-decade record of non-confrontation. This source helps us to understand why Abba Poemen was reluctant to rebuke his brother and captures the core tension between an outward sense of obligation toward others and the goal of striving toward selfperfection. Attempts at the former can actually undermine the latter. Like the passage from the Talmud, the clear preference in these sources is for humility. The choice of humility over rebuke in these sources is best understood in light of the role that humility played more broadly within a monastic context. Within the world of the early monks, humility was of supreme importance. As Douglas Burton-Christie describes: Humility was the starting point for the desert monks, both because it was the first commandment and because they knew that without the self-emptying which humility implied, the treasures for which they had come to the desert would forever elude them. The Sayings [of the Desert Fathers] is filled with questions about the meaning of humility and about how to acquire and cultivate it: its importance was equalled [sic] only by its elusiveness.23 Given the importance of humility, we can understand why the monks favored self-improvement over confronting others. Yet, the extreme value of humility is not the only reason that these monks preferred to avoid rebuke. For some monks, rebuke itself could be dangerous: “An old man was asked [by a

Ethics 185 brother], ‘If I see the sin of my brother am I to despise him?’ And the old man said, ‘If we hide [the fault] of our brother God will also hide our [faults]; and if we expose our brother’s [faults], God will also expose ours.’”24 Confronting others involves exposing their flaws and, at least according to this monastic passage, engaging in this practice leads God to uncover the flaws of the rebuker – something most people would probably prefer to avoid. A divine reaction is not the only potential threat facing a would-be rebuker. According to Abba Macarius, “If you reprove someone, you yourself get carried away by anger and you are satisfying your own passion; do not lose yourself, therefore, in order to save another.”25 From this perspective, confronting a person for wrongdoing not only sacrifices personal humility but also potentially leads to a person being carried away by their emotions and losing themselves. These brief passages from collections of monastic traditions reflect a broader trend with respect to the engagement of monks in antiquity toward the ideal orientation of the ethical self. Their considerations can also be understood in light of competing monastic living situations. For Christian ascetics in antiquity, the issue of self versus other may reflect a conflict between different monastic modalities – eremitic and cenobitic – that is, isolation or communal living.26 Living by oneself provided ample time for working on self-improvement, while living in community potentially cut into this time but provided the opportunity for helping others. Although communal living was the norm for the rabbis, they too engaged with this tension: as ethical individuals, they asked, should we focus our attention on correcting others or primarily direct our efforts toward the pursuit of self-perfection? While our talmudic sugya appears to prefer the latter, the value of the former is never out of sight. Were one to consider each of the passages explored throughout this article in isolation, one may walk away with the impression that these texts reflect specialized insider discourses that primarily revolve around a particular set of authorial concerns. By bringing this material into dialogue and examining these sources from a broader ethical perspective, I have attempted to set these discussions within a wider cultural context and, in so doing, I hope to have successfully brought together the two major orientations of the workgroup at which an earlier version of this paper was presented – text and context. It is only through a close textual and philological reading of the talmudic sugya in light of the earlier biblical and rabbinic sources upon which it builds that we are able to recognize the deeper tension driving the conversation. Likewise, it is only by looking outward to broader ascetic trends in the Christian monastic world, and by framing the debate in light of common ethical questions, that we can truly see the fuller picture beyond the individual actions of several monastic figures. Bringing these two bodies of literature into dialogue may also carve out a potential path for bridging the chasm between “devotion” and “relativism,” between those who approach these ancient sources from a place of deep-seated personal investment and those who adopt a posture of scholarly detachment. Speaking to the devotionalist, my study hopefully opens up the possibility of embracing the universal within the particular. Disciples of the

186  Matthew Goldstone rabbinic and monastic canons can affirm the particularity and sanctity of their own literary inheritance while simultaneously recognizing that the existential weight of the concerns underlying their texts also emerges in the traditions of others, albeit in their own unique iterations. Indeed, studying one’s own tradition in tandem with that of others exposes the universal nature of the core questions that drive many religious thinkers, while simultaneously highlighting the exclusive expression of each community’s own heritage. The tension between focusing inward and looking outward captured by the rabbinic and monastic sources I have examined mirrors that of the polarized orientations of absolute dedication to the sui generis truth of one’s own tradition and the relativist outlook of all worldviews that ultimately express the same ideas in different words. Speaking to the relativist, this analysis may reveal that just like the ethical issues tackled by the rabbis and early monks, so too topics of study chosen by some of the most ivory-tower academics confess their deeply rooted personal investment, which transcends mere intellectual curiosity. In reflecting upon the competing demands of inner and outer ethical orientations, the rabbis and the monks sought to elicit moral direction from the teachings of their respective practices and doctrines. This shared interest in examining that which gives direction for living is a lesson for the relativist who can learn to use their critical tools to investigate the most pressing issues of critical concern. In the end, however, whether one is successful in bridging the gap between devotion and relativism or not, everyone may be faced with the same question of when to dedicate efforts toward self-improvement and when to sacrifice such achievement for the sake of the other; of when to cling unflinchingly to the sanctity of one’s own perspective and when to embrace the common thread among all worldviews. Notes 1 Matthew Goldstone, “Rebuke and the Self-Acknowledged Limits of Rabbinic Authority”, Jewish Studies Quarterly 23:1 (2016), 1–21. 2 Matthew S. Goldstone, The Dangerous Duty of Rebuke: Leviticus 19:17 in Early Jewish and Christian Interpretation, Supplements to the Journal for the Study of Judaism 185 (Leiden/Boston: Brill, 2018), chap. 7. 3 Sifra Qedoshim 4:9. 4 Arakhin 16b. 5 Idem. 6 The majority of manuscripts of the tannaitic midrashim, Sifra and Sifre Devarim, indicate that it was R. Akiva who increased his love for R. Yohanan ben Nuri. Only in MS JTS of Sifra do we find the variant reading with R. Yohanan ben Nuri as the subject: “that I increased love for him.” However, it is possible, or even likely, that this text was influenced by the reading we find in the Talmud. 7 Note that MS Oxford reads ‫ לו‬instead of ‫ בו‬and the Geniza fragment (Cambridge T-S F 2[2].29) does not include the term ‫ בו‬or ‫לו‬, but conjugates the verb ‫ הוסף‬so as to imply that R. Yohanan ben Nuri is the speaker (‫)הוספתי‬. 8 See, for example, the comments of the Maharsha in his Hiddushei Aggadot, ad loc., which seek to make sense of this unusual formulation. 9 Arakhin 17a.

Ethics 187 10 Most textual witnesses do not include R. Yehudah’s interlocutor. However, MS Vatican 120 and Cambridge T-S F 2(2).29 supply the name of R. Yehudah’s father, R. Shimon ben Pazi, as the addressee. 11 Arakhin 16b. 12 Note the parallel in Tractate Abodah Zarah 20b. 13 In the Tractate Abodah Zarah parallel to this material, Isa. 61:1 is brought to support the idea that humility is the most important quality. In our Arakhin passage, mention of this verse only appears in MS Munich 95. However, in contrast to the pentateuchal pedigree of the obligation to rebuke, the mention of humility in Isaiah not only carries prophetic (rather than pentateuchal) status, it is also not formulated as a charge to be humble. 14 Some understand Hiyya to be speaking to Shmuel at this point, a view supported by MS Oxford and Cambridge T-S F 2(2).29, which include his name explicitly. However, it is also possible that he is speaking directly to Rav Huna. 15 There is a disagreement as to whether this refers simply to bringing his challenge before Hiyya, or if the implication is that he should have brought his challenge to Hiyya before Shmuel. For a discussion of the manuscripts here, see Shmuel (Richie) Lewis, And before Honor – Humility: The Ideal of Humility in the Moral Language of the Sages (Jerusalem: Magnes Press/Hebrew University, 2013), 282 n.83. 16 Arakhin 16b. 17 See, for example, Dov Weiss, Pious Irreverence: Confronting God in Rabbinic Judaism (Philadelphia, PA: University of Pennsylvania Press, 2017), chap. 2. 18 Michal Bar-Asher Siegal, Early Christian Monastic Literature and the Babylonian Talmud (Cambridge: Cambridge University Press, 2013), chap. 2; Goldstone, The Dangerous Duty of Rebuke, 145–47. 19 My use of material from The Paradise of the Holy Fathers is based upon E. A. Wallis Budge’s two volume edition; however, I have modified his translation to allow for a more understandable text for the contemporary reader. The Paradise of the Holy Fathers, trans. E.A. Wallis Budge, rev. ed., 2 vols. (St. Shenouda Coptic Orthodox Monastery, 2009). 20 Douglas Burton-Christie, The Word in the Desert: Scripture and the Quest for Holiness in Early Christian Monasticism: Scripture and the Quest for Holiness in Early Christian Monasticism (Oxford/New York: Clarendon Press, 1992), 88; Graham Gould, The Desert Fathers on Monastic Community (Oxford/New York: Clarendon Press/Oxford University Press, 1993), 4. 21 E. A. Wallis (Ernest Alfred Wallis) Budge et al., The Book of Paradise, Being the Histories and Sayings of the Monks and Ascetics of the Egyptian Desert, 2 vols. (London: Drugulin, 1904), 1:678. 22 John Wortley, ed., The Anonymous Sayings of the Desert Fathers: A Select Edition and Complete English Translation (Cambridge: Cambridge University Press, 2013), 297–99. 23 Burton-Christie, The Word in the Desert, 236. 24 Budge, Paradise of the Fathers, 1:916. 25 Jacques Paul Migne and Theodor Hopfner, Patrologiae cursus completus/ Patrologia Graeca: seu Bibliotheca universalis, integra, uniformis, commoda, oeconomica omnium ss. patrum, doctorum, scriptorumque ecclesiasticorum, sive latinorum, sive Graecorum, qui ab aevo apostolico ad aetatem Innocenti III (ann. 1216) pro Latinis et ad Photii tempora (ann. 863) pro Graecis floruerunt. ... 65. 65. (Paris and elsewhere: Migne, 1858), 269; Benedicta Ward, The Sayings of the Desert Fathers: The Alphabetical Collection (London: Mowbray, 1984), 131; John Wortley, Give Me a Word: The Alphabetical Sayings of the Desert Fathers (New York: St. Vladimir’s Seminary Press, 2014), 184. 26 For a more detailed discussion of this idea, see Goldstone, Dangerous Duty of Rebuke, 151–156.

7

Pain Milk and Blood, Or the Critical Place of Suffering for Sages and Readers of the Talmud1 Yonah Lavery-Yisraeli

Editors’ note In this chapter, the question of relativism and devotion moves from the abstract to the real, from the rabbinic ideal to the lay person’s encounter with the rabbis, and from the intellectual to the affective and the bodily. By focusing on the question of pain, Yonah Lavery-Yisraeli exposes some of the dangers in evaluating every question through a binary lens of pious devotion versus sceptical relativism. The author treats devotion and relativism as overdetermined conceptual categories that do little to account for suffering and pain as ubiquitous issues for the sages of the Talmud. She contends that the rabbis treat suffering neither as a sign of martyrological devotion nor as the “wrong” response, signifying insufficient devotion in the face of a difficult text or halakhic stringency. Likewise, she rejects the claim of some secular scholars that pain takes one too far away from measured relativism and prevents a rigorous assessment of intellectual questions. If we move beyond the devotion/relativism binary in which such outlooks are rooted, we can see pain as an indication that there is a problem that must be solved, a place where careful reflection and nurturing are needed. Lavery-Yisraeli’s approach to pain draws upon anthropology and religious studies, but roots itself in a close reading of the Talmudic text as a warm, if difficult, conversation about real-world problems. At the same time, the author also eschews easy resolution of the problem, showing how productive it can be to embrace the repeated moments of tension that are highlighted by moments of pain or suffering. In the end, the author suggests that pain itself can even become a form of engagement.

DOI: 10.4324/9781003364078-8

Pain 189 Even if low-down bandits were to sever you limb from limb with a twohandled saw, anyone who had a malevolent thought on that account would not be following my instructions. If that happens, you should train like this: “Our minds will remain unaffected. We will blurt out no bad words. We will remain full of compassion, with a heart of love and no secret hate. We will meditate spreading a heart of love to that person. And with them as a basis, we will meditate spreading a heart full of love to everyone in the world—abundant, expansive, limitless, free of enmity and ill will.” That’s how you should train. Midlength Discourses of the Buddha, Sutta 212 When R. Akiva was taken out for execution, it was the hour for the recital of the Shema, and while they combed his flesh with iron combs, he was accepting upon himself the kingship of heaven. His students said to him: Our teacher, even to this point? He said to them: All my days I have been troubled by this verse, “with all your soul,” [meaning] “Even if God takes your soul.” I said: When shall I have the opportunity of fulfilling this? Now that I have the opportunity, shall I not fulfill it? Ber. 61b As R. Aha ben Ada said in the name of R. Hamnuna in the name of Rav, one must study even the ordinary conversation of the sages. Tree-like, the sap of wisdom feeds and secures every leaf of their conversation; it is not in their nature to let drop wholly irrelevant remarks.3 This teaching returned to me when I came across a rough draft by a teacher of mine. Its epigraph caught my eye, a creative re-writing of a passage from Kierkegaard’s Either/ Or.4 Where the original had the word “poet”, my teacher had substituted the word “sage”, so that it read like this: What is a [sage]? An unhappy man who hides deep anguish in his heart, but whose lips are so formed that when the sigh and cry pass through them, it sounds like lovely music…. And people flock around the [sage] and say: “Sing again soon” – that is, “May new sufferings torment your soul but your lips be fashioned as before, for the cry would only frighten us, but the music, that is blissful.” Here, in an unpublished, unelaborated prelude to a work which has since undergone substantial revision, now existing as far as I know only in a tattered folder wedged into my bookshelf, is a thought which cracks wide open an issue strangely neglected in the Talmudic reflections of traditional commentators. I speak of the issue of pain. Pain in the Talmud stands at the meeting point of devotion and relativism. On the one hand, some associate pain with exceptional examples of pious devotion. For other traditionalists, pain experienced while engaged in Torah study may be explained as a relativist distancing from the text – an

190  Yonah Lavery-Yisraeli imposition of contemporary secular values rather than a pure absorption of tradition; i.e. the experience of pain reveals that the devotion of the sufferer is lacking or impaired. What this essay shows is that in the Talmudic tradition, the experience of pain cannot be classified neatly as either relativist or devotionist. In fact, for the rabbis, pain is not only valid but a critical piece of information that must be respected and digested. The content of this information is usually that there is a problem with the text itself, at least as it has been presented and understood. Thus, we will see that for the sages of the Talmud, students who respond to pain are not inadvertently revealing that their primary allegiance is with some other culture or set of concerns. Neither is pain prized by the sages as a sign of devotion in the acquisition of wisdom. Rather, pain has a critical function that is ultimately spiritually and intellectually productive: it reveals a problem, and as we shall see, the solution to that problem is something other than martyrological obedience. Pain is an overwhelming theme in the lives of Ḥaza”l (the rabbis of the Talmud). Examining aggadic material, one finds that the majority of prominent sages suffered intensely. Explicitly, they undergo chattel slavery,5 public beatings,6 the deaths or abductions of their children,7 their own arrest, torture, and execution,8 and the witnessing of the same happening to their teachers and parents.9 They go mad with grief;10 they seek death by locking themselves in rooms11 or climbing into lit ovens.12 To expand this list properly and so to include the major categories of grief, madness, and trauma would be to halfway-write a Talmudic encyclopaedia. Implicitly, the reaches of this theme may go even further, as some sages bear classic behavioural marks of trauma in response to events about which the text creates a tender silence.13 Pain itself is experienced by the sages as a force of supernatural strength, emerging from within them to reduce others to ash14 or piles of bone.15 They worry that it is powerful enough to consume the world: ‫ונמנו עליו וברכוהו ואמרו מי ילך ויודיעו אמר להם ר"ע אני אלך שמא ילך אדם שאינו הגון ויודיעו ונמצא‬ ‫מחריב את כל העולם כולו‬ They banded together against [R. Eliezer] and banished him, and said, “Who will go to notify him?” R. Akiva said, “I will go, lest an unsuitable person notify him, and in consequence the whole world will be laid waste.”16 The gentleness with which R. Akiva breaks the news to R. Eliezer averts the end of the world, but nevertheless, at the moment that R. Eliezer begins to weep, ‫לקה העולם שליש בזיתים ושליש בחטים ושליש בשעורים ויש אומרים אף בצק שבידי אשה טפח תנא‬ ‫אך גדול היה באותו היום שבכל מקום שנתן בו עיניו ר"א נשרף ואף ר"ג היה בא בספינה עמד עליו‬ ‫נחשול לטבעו‬

Pain 191 A third of the olives, a third of the wheat, and a third of the barley in the world were destroyed, and some say even the dough in women’s hands expanded. It is taught that a great tragedy happened on that day, as every place on which R. Eliezer rested his eyes was burnt up. Even Rabban Gamliel as he was travelling by ship was nearly drowned by a wave.17 This is not merely a stylistic way of speaking of intense feelings. In the Talmud, joy does not usually cause flowers to bloom or sickness to heal, although tellingly enough aggadah records comparatively few instances of unbounded happiness anyway. In microcosm: all ten of R. Yohanan’s children have died, and he hangs on to the bone of the tenth, showing it to others as a way of explaining his relationship to grief.18 We, the readers, look over the shoulders of this encounter to the bone of a child we never saw laugh, sit up, or play. We were not invited to the wedding of R. Yohanan and the child’s mother. We do not even have a glimpse of R. Yohanan as a child himself. Of his family history, we are shown only one bitter artefact, and that in an act which is so deliberate, so explicitly intended to communicate, that it cannot be dismissed casually. We must ask ourselves what R. Yohanan, and the Talmud as a whole, means by presenting such overwhelming suffering. It does not suffice to say that lives back then were harder than they are today, since despite the fact that the sages had moments of great happiness, we seldom hear of their weddings, births, and joyful reunions, but are redirected again and again to their moments of pain. Thus, despite its neglect as a topic of study, the ubiquity of pain across the Talmudic corpus begs analysis. This is particularly the case since anthropologists, sociologists, and other scholars of religion have begun to treat the issue of pain in other contexts. Ultimately, we will see that the operation of pain in the Talmud, as in the human nervous system, is as warning rather than blessing; Ḥaza”l not only deny that pain brings insight but show how it functions as a barrier to insight. But first, the filial obligations of studenthood bid me to take up the proposition of my teacher’s epigraph with seriousness and generosity. What would it mean to say that sages are not merely characterized by their learning, but by the depth, refinement, and expressiveness of their suffering? How would this characterization situate the sages in their communities as teachers and deciders of law? What would the decisions of a sage rooted in suffering look like? Pain as the Worthy Cultivation of Despair We might suggest that to dwell primarily in the world of pain is to cultivate despair in response to the social environment. This in turn precludes the mindset that legislation can fix the human condition. Rather than address human beings, in other words, it inoculates legislators and judges

192  Yonah Lavery-Yisraeli against dangerous, utopian-minded overreach. This agrees with what the poet said: Let judges secretly despair of justice: their verdicts will be more acute. Let generals secretly despair of triumph; killing will be defamed. Let priests secretly despair of faith: their compassion will be true.19 Precisely such a measured approach can be seen in the way Ḥaza”l deal with sexual violence. In one piece of aggadah, the rape of women and girls is described as inevitable,20 and we see that the sages made no attempt to engineer a perfectly rape-free society. We may contrast this with attempts in other societies to do just that, which are inevitably (supposedly) achieved by restricting women’s freedom and visibility in the name of their protection.21 The very isolation of women which is said to protect them then prevents them from publicizing their actual experiences with sexual violence, lending the venture a public image of success. The Sages resisted total gender segregation as a solution, as we can see in Gittin 57a: ‫מעשה באדם אחד שנתן עיניו באשתו לגרשה והיתה כתובתה מרובה מה עשה הלך וזימן את‬ ‫שושביניו והאכילן והשקן שיכרן והשכיבן על מיטה אחת והביא לובן ביצה והטיל ביניהן והעמיד‬ ‫להן עדים ובא לבית דין היה שם זקן אחד מתלמידי שמאי הזקן ובבא בן בוטא שמו אמר להן כך‬ ‫מקובלני משמאי הזקן לובן ביצה סולד מן האור ושכבת זרע דוחה מן האור בדקו ומצאו כדבריו‬ ‫והביאוהו לב"ד והלקוהו והגבוהו כתובתה ממנו‬ It happened that a certain person was planning to divorce his wife, but her ketubah [divorce-payment] was high. What did he do? He went and invited his good friends over, and gave them food and drink until they became intoxicated, and lay them down on one bed, and took an egg white and sprinkled it around them. He set witnesses on them and came [to prosecute his case] before the beit din. There was an old man there who had belonged to the inner circle of Shamai the Elder, [who informed the beit din that] “Egg white contracts in fire, whereas semen evaporates in fire.” They tested it and found that he was correct, and brought [the husband] before the beit din, and whipped him, and collected her ketubah from him.22 The lack of rabbinic condemnation of a mixed-gender drinking party, even in the face of sexual disaster, is striking. When blame is assigned, the problem identified by the rabbis is not a lack of chastity, nor an overabundance of freedom, but rather the lack of remembrance of pain. Hearing of the incident an unspecified time later, ‫א"ל אביי לרב יוסף ומאחר דהוו צדיקים כולי האי מאי טעמא יענוש א"ל משום דלא איאבול על‬ ‫ירושלים‬

Pain 193 Abayye said to Rav Yosef, “But since these people were all righteous, what is the reason they were punished [i.e. divinely, by undergoing such an incident in the first place]?” He replied, “Because they were not mourning for Jerusalem.” The true danger of revelry, as identified by Rav Yosef, is that it makes it difficult to incorporate mourning into one’s emotional palette. Yet there is something, too, in this conversation that gives us pause in our investigation of the value of suffering, as we see that the text portrays its lack as a failure in virtue which impairs one’s relationship with God, rather than as an impairment to one’s ethical sensibilities or ability to deal wisely with others. It is for this reason that when the text seeks a detail with which to illustrate the value of pain, it selects the wife and guests, doing so as an exercise in theodicy. It does not attribute the insight of the beit din to their relationship with suffering, nor does it critique the machinating husband for lacking pain – indeed, we may suspect that if anything, its surfeit is what impedes him, in that he is too desperate to escape his marital situation to plan his exit wisely. Suffering as an Impediment to Torah This brings us to a sticking point. Pain courses through the lives of the sages, and its overwhelming presence in the Talmud is clearly a communication, but I contend that the nature of that communication is not an equation between wisdom and suffering. One strain of thought denies that there is even an alliance between wisdom and suffering. An aggadic text in which suffering rises, perhaps most rawly, to the surface shows antipathy not only to suffering but to any benefits said to arise from it: ‫רבי אליעזר חלש על לגביה רבי יוחנן חזא דהוה קא גני בבית אפל גלייה לדרעיה ונפל נהורא חזייה‬ ‫דהוה קא בכי ר' אליעזר א"ל אמאי קא בכית אי משום תורה דלא אפשת שנינו אחד המרבה ואחד‬ ‫הממעיט ובלבד שיכוין לבו לשמים ואי משום מזוני לא כל אדם זוכה לשתי שלחנות ואי משום בני דין‬ ‫גרמא דעשיראה ביר א"ל להאי שופרא דבלי בעפרא קא בכינא א"ל על דא ודאי קא בכית ובכו תרוייהו‬ ‫אדהכי והכי א"ל חביבין עליך יסורין א"ל לא הן ולא שכרן א"ל הב לי ידך יהב ליה ידיה ואוקמיה‬ R. Eliezer fell ill, and R. Yohanan came in to visit him. He saw that he was in a dark house, so he bared his arm and light shone from it. He saw that R. Eliezer was crying. He said to him, “Why are you crying? Is it because you did not learn enough Torah? We have taught: the one who does much and the one who does little are equal, if both act for the sake of heaven! Is it because of [the lack of] food? Not everyone has the privilege to eat at two tables! Is it because of [the lack or death] of children? This is the bone of my tenth child!” He replied, “Because this beauty will be swallowed up by the earth.” He joined in weeping, and said to him, “This is indeed reason to cry,” and both of them cried

194  Yonah Lavery-Yisraeli together. After a time, he asked, “Are your sufferings dear to you?” He answered, “Neither them nor their reward”. He said to him, “Give me your hand.” He gave it to him, and he raised him up.23 We see here that suffering imparts something, but it is not wisdom, and though R. Eliezer seems to concede that there is a “reward”, it is not welcome. Yet complexity blooms around this perspective as well. Above on the same daf, it is stated that learning will stick fast in the memory of one who suffers – but only if the suffering is accepted with love.24 Memory is a core skill of wisdom in the Talmud, presented as the ability to connect vividly, not only with the past but also with the thought of others.25 Perhaps the suggestion that memory stays vivid only in a sufferer who can remain loving expresses the notion that while we often seem to remember well those teachings which were close to us, or those times of distress that bring us nearer to others, clarity is derailed by deep internal disorder. Pain sharpens memory, but the memory of Torah must not be made so sharp that consciousness shrinks to touch it. Without equanimity, pain threatens wisdom. Further, while we have seen that the sages set realistic rather than utopian expectations for human behaviour, can it really be said in general that their approach is characterized by despair? On many points, their work with Torah is characterized by an attentive, cautious optimism, revealed in halakhic institutions which reflect an understanding that human nature is neither immutable nor, as a matter of course, demonic. Examples include their emphasis on restorative justice26 and their push for mediation between parties in conflict,27 both of which reflect a stance that communities can and should work to re-incorporate destructive individuals. One of the central halakhic projects of the Sages is also perhaps their most aspirational: Shabbat, with its high expectations of ethical behaviour, its weekly undercutting of both class28 and gender29 divisions, and its creation of space for all to participate in study and contemplation. With the institution of Shabbat, the Sages express that human nature at its very root is responsive and changeable, that it can and must grow into accountability. This thought is most poetically formulated in the idea that people gain a second soul on Shabbat, and that it is the observance itself of rest that makes the second soul possible.30 In this way, human efforts at self-transformation are understood to be desired and assisted by the divine, and so flow with the momentum of creation, rather than counter to a harsh and unyielding reality. We can see this at work not only in halakhic institutions but in the process of crafting halakhah: ‫אמר רב יוסף מריש ה"א מאן דהוה אמר לי הלכה כר"י דאמר סומא פטור מן המצות עבידנא יומא טבא‬ ‫לרבנן דהא לא מיפקידנא והא עבידנא השתא דשמעיתא להא דא"ר חנינא גדול מצווה ועושה יותר ממי‬ ‫שאינו מצווה ועושה אדרבה מאן דאמר לי דאין הלכה כרבי יהודה עבידנא יומא טבא לרבנן‬ Rav Yosef [who was blind] said, “Originally, I thought, that if someone were to tell me the halakhah is like R. Yehudah, who said that a blind

Pain 195 person is exempt from the commandments, I would throw a party for the rabbis, since I am exempt but still perform them [meaning that my reward will be great]. Now, though, that I hear from R. Hanina that the one who is obligated in them and performs them is greater than the one who is not obligated in them but still performs them, the opposite is true – if someone were to tell me the halakhah is not like R. Yehudah, I would throw a party for the rabbis.”31 Is this text cynical about rabbinic motives for endorsing this or that ruling? R. Yosef seems uninterested in objective truth, publicizing and incentivizing whatever position characterizes his performance of the commandments as “greater”. Unexpectedly, his approach is presented in an approving manner, which forces the reader to re-think what it means to be self-serving. To Rav Yosef, a ruling is intuitively suspect when it causes in its subject a feeling of dread and loss of place in the world – marks, perhaps, that one has not been truly understood by the ruling’s author. Conversely, a good interpretation of Torah can at least partly be recognized by a feeling of delight. The specific outcome of the ruling and its hermeneutic justifications are secondary to this first response, which encodes a lifetime of conscious and unconscious knowledge of oneself and one’s place.32 Pain versus Nourishment Along the Sages’ Path to Wisdom It is time to step through these texts and examine the problem from its other side: what does wisdom itself mean to the sages? For such a complex concept, one finds a remarkable unity in descriptions of wisdom in the Talmud. In contrast to their vision of the world and their own troubled existence in it, the Sages describe their relationship with Torah as warm, nurturing, and maternal – in fact, the transmission of Torah is classically imagined as breastfeeding: ‫דדיה ירווך בכל עת למה נמשלו דברי תורה כדד מה דד זה כל זמן שהתינוק ממשמש בו מוצא בו‬ ‫חלב אף דברי תורה כל זמן שאדם הוגה בהן מוצא בהן טעם‬ “Her breasts will satisfy you at all times” (Prov. 5:19): why are words of Torah compared to a breast? Just as a baby will find milk in a breast as long as he nurses, so is it with words of Torah: as long as a person recites them, they will find flavour in them.33 The details of this metaphor are developed throughout the Talmud. In Tractate Pesahim, we see a refinement in the assignment of roles. Now the breasts are the sages themselves, or perhaps the location of Torah learning, while milk is the wisdom that comes through Torah: )‫אני חומה ושדי כמגדלות אמר רבי יוחנן אני חומה זו תורה ושדי כמגדלות אלו תלמידי (שיר השירים ח‬ ‫חכמים ורבא אמר אני חומה זו כנסת ישראל ושדי כמגדלות אלו בתי כנסיות ובתי מדרשות‬

196  Yonah Lavery-Yisraeli “I am a wall, and my breasts are towers” (Shir Hashirim 8): R. Yohanan said: “I am a wall” – that refers to Torah; “And my breasts are towers” – that refers to the Sages. Rava said, “I am a wall” – that refers to the congregation of Israel; “And my breasts are towers” – that refers to the synagogues and study halls.34 Similarly, R. Akiva compares himself to a cow, and his student to a nursing calf. At the moment he chooses such a language to describe the transmission of his Torah, he is awaiting torture and execution in a Roman prison. Although one might have thought such a context would make suffering-based models of wisdom more vivid for him, the only pain he alludes to is that of swollen mammary glands.35 The use of nursing imagery is so well-entrenched in Talmudic culture that it also works in reverse, that is, human breasts remind the sages of wisdom,36 just as today the heart may remind one of love. And it is not a simple symbolism: metonymic bonds tie breastfeeding to wisdom almost as closely as a map is bound to its territory. The mechanism of nursing is itself a guide to how wisdom is best acquired, namely, through a closeness to the human source of one’s learning, and with loving appetite for the material itself: ‫אהדר ליה בבדיחותא חלש דעתיה דרב ששת אישתיק רב אחדבוי בר אמי ואתיקר תלמודיה אתיא אימיה‬ ‫וקא בכיא קמיה צווחה צווחה ולא אשגח בה אמרה ליה חזי להני חדיי דמצית מינייהו בעא רחמי עליה‬ ‫ואיתסי‬ [R. Ahadvoi bar Ami] answered [Rav Sheshet] mockingly. R. Sheset felt wounded. R. Ahadvoi bar Ami lost his power of speech, and his learning left him. [R. Sheshet’s] mother37 came and, crying, stood before him and commanded him [to forgive R. Ahadvoi]. He paid her no attention. She said, “Look at these breasts from which you suckled.” He then asked for mercy for [R. Ahadvoi], and he was healed.38 Here we see clearly that the sages did not consider pain the path to wisdom; it is rather the paralyzing by-product of ineffective learning, depicted here as a combative style of debate. Here is an echo to the tragedy of R. Eliezer, whose pain endangered the world itself, at odds with all his colleagues, whose exile also deprives him of the power of speech. The breasts of R. Sheshet’s mother, and her recollection of him nursing when he was young, embody the paradigm of learning which Ḥaza”l depict as leading to the return and reflowering of wisdom. That suffering can cripple moral intellect, in addition to a person’s emotional health, in fact can be found in my teacher’s Kierkegaard passage, once we examine it in its original context. In Either/Or, the passage is not presented as the thought of the philosopher himself, but of those of a persona A. A is an aesthete whose greatest conscious fear is the inexorable dulling of pleasure by

Pain 197 boredom.39 He is unable to form any relationship other than the most fleeting and predatory, nor can he put down roots in any moral framework, since he is unable to evaluate ethical perspectives except in the aesthetic sense. This is because he is not alive to the realities of others, which would feed an ethical perspective. The second persona of Either/Or, Judge Wilhelm, puts his finger on what is behind A’s ideological and emotional detachment: … alone in one’s boat, alone with one’s care, alone with one’s despair, which one prefers cowardly to retain rather than to suffer the pain of being healed. Permit me now to bring to light the sickly aspect of your life – not as though I wanted to terrify you, for I am not posing as a bugaboo, and you are too knowing to be affected by that sort of thing. But I beg you to reflect how painful, how sad, how humiliating it is to be in this sense a stranger and a pilgrim in this world.40 In contrast, it is only responsibility that bestows a blessing and true joy.41 Responsibility here is understood as a non-disposable, in fact indispensable, relationship with one’s surroundings and the object of one’s activity. This quality exists in opposition with detachment, described as follows: The intellectual agility you possess is very becoming to youth and diverts the eye for a time. We are astonished to see a clown whose joints are so loose that all the restraints of man’s gait and posture are annulled. You are like that in an intellectual sense; you can just as well stand on your head as on your feet. Everything is possible for you, and you can surprise yourself and others with this possibility, but it is unhealthy… Any man who has a conviction cannot at his pleasure turn himself and everything topsy-turvy in this way. Therefore I do not warn you against the world but against yourself and the world against you.42 Perhaps, prior to his admonition by the Judge, A is already in some sense aware that his philosophy is propelled by his pain; at any rate, he appears to feel its effects. Let us look again at the epigram: What is a [sage]? An unhappy man who hides deep anguish in his heart, but whose lips are so formed that when the sigh and cry pass through them, it sounds like lovely music… What has been elided here is a revealing elaboration by A: His fate is like that of the unfortunate victims whom the tyrant Phalaris imprisoned in a brazen bull, and slowly tortured over a steady fire; their cries could not reach the tyrant’s ears so as to strike terror into his heart; when they reached his ears they sounded like sweet music.

198  Yonah Lavery-Yisraeli One imprisoned in a brazen bull is unable to see anything or anyone outside of the bull. Articulate response of any sort is impossible. The only possibility is an involuntary expression of pain, which contaminates the destiny of its audience with its savagery – the classical Greek understanding of consequence demands that those who delight in the bull must also burn in it. Not only is this a poor recipe for a sage, it is a poor recipe for a poet, or else we would prefer above all artists the guitar-fumbling high school bard with his exquisitely insensible pain. No, the task of poets is not to weep prettily about their own inner torment; their place is outside the bull, in radical attentiveness to everyone and everything around them. This quality is named by Keats as negative capability. He writes: A Poet is the most unpoetical of anything in existence; because he has no identity – he is continually in for – and filling some other Body – The Sun, the Moon, the Sea and Men and Women who are creatures of impulse are poetical and have about them an unchangeable attribute – the poet has none; no identity…. When I am in a room … the identity of everyone in the room begins to press on me that I am in a very little time an[ni]hilated – not only among Men; it would be the same in a Nursery of children….43 Negative capability involves more even than this; it demands a complexity of vision and articulation which can only be governed by intuition rather than by attendance on formal paradigm, and it demands comfort in uncertainty. Keats saw both of these as benevolent characteristics,44 famously describing them in a language of love: “I am certain of nothing but of the holiness of the Heart’s affections and the truth of Imagination”.45 Here is a description of an art which I believe the sages of the Talmud would happily recognize as their own. To use the words of Judge Wilhelm, the Talmudic sage must be able to “suffer the pain of being healed” before attending to the needs of others. As Elaine Scarry explains in her work The Body in Pain, To witness the moment when pain causes a reversion to the pre-language of cries and groans is to witness the destruction of language; but conversely, to be present when a person moves up out of that pre-language and projects the facts of sentience into speech is almost to have been permitted to be present at the birth of language itself.46 Nowhere is this better illustrated than in the well-known tale of R. Shimon ben Yohai, who escapes arrest and execution by fleeing with his son to a cave, where they dwell in complete isolation for 13 years, learning Torah. When the danger passes and they are able at last to emerge, father and son are unable to respond even to the ordinary people of their own community except by the reflexive, indiscriminate unleashing of their pain: ‫נפקו חזו אינשי דקא כרבי וזרעי אמר מניחין חיי עולם ועוסקין בחיי שעה כל מקום שנותנין עיניהן‬ ‫מיד נשרף‬

Pain 199 They left [the cave]. They saw people ploughing and sowing. [R. Shimon] said, “They abandon eternal life to busy themselves with life in the moment!” Everything they placed their eyes upon was immediately burnt up.47 By divine command, they are re-imprisoned in their cave for another year. After this, while his son continues to wound others, R. Shimon is able to heal them. In a less magical but not less marvellous fashion, he is able to move past an initial judgment of others’ behaviour as transgressive by asking the reason for their actions and by listening carefully to their responses.48 But his process of healing has only just begun, and it is here, where popular interest in the story begins to decline, that it is worth paying close attention. ‫שמע ר' פנחס בן יאיר חתניה ונפק לאפיה עייליה לבי בניה הוה קא אריך ליה לבישריה חזי דהוה‬ ‫ביה פילי בגופיה הוה קא בכי וקא נתרו דמעת עיניה וקמצוחא ליה‬ R. Pinhas ben Yair, his son-in-law, heard about it and went out to meet him. He took him to the bathhouse. When he was tending to his flesh, he saw cuts, and began to cry. Tears fell from his eyes into [the cuts], and [R. Shimon] screamed [from the pain of the salt]. I am curious about these fresh cuts, and wonder if they might indicate something about R. Shimon’s response to his imprisonment, or to the world he found outside the prison. Rashi posits that they are the result of sand abrasion.49 It is also significant that R. Shimon is accepting treatment in a bathhouse, an institution he condemned at the beginning of the story, saying that they were built by the Roman occupiers in order to indulge themselves.50 A door has opened in R. Shimon’s thinking, first regarding his own community, and now, perhaps, those outside it as well. ‫א"ל אוי לי שראיתיך בכך א"ל אשריך שראיתני בכך שאילמלא לא ראיתני בכך לא מצאת בי כך‬ ‫דמעיקרא כי הוה מקשי ר"ש בן יוחי קושיא הוה מפרק ליה ר' פנחס בן יאיר תריסר פירוקי לסוף‬ ‫כי הוה מקשי ר"פ בן יאיר קושיא הוה מפרק ליה רשב"י עשרין וארבעה פירוקי‬ [R. Pinhas] said to him, “Woe is me, that I see you like this!” He responded, “Fortunate are you to see me like this, for if you did not see me like this, you would not have found me as I am.” [He meant] that before [his exile], R. Shimon ben Yohai would ask a question, and R. Pinhas ben Yair could give him 13 answers, whereas now, R. Pinhas ben Yair could ask a question, and R. Shimon ben Yohai could give him 24 answers. When his suffering was raw and unprocessed, his learning in the isolation of the cave was indistinguishable from illiterate violence. Equanimity to suffering – both his own and that of his community – is given space to grow in a place of safety, with the loving ministrations of a family member. A sense of

200  Yonah Lavery-Yisraeli wholeness, rather than a sense of injury, is what allows him finally to make use of the Torah he acquired: ‫אמר הואיל ואיתרחיש ניסא איזיל אתקין מילתא דכתיב ויבוא יעקוב שלם ואמר רב שלם בגופו שלם‬ ‫בממונו שלם בתורתו… אמר איכא מילתא דבעי לתקוני‬ He said, Since a miracle happened for me, I will go fix something, as it says (Gen. 33:18) “And Ya’aqov departed whole”: Rav said, whole in his body, whole in his possessions, whole in his Torah… He asked, Is there anything that needs fixing? R. Shimon hears that there is a nearby field containing unmarked graves. The inability of kohanim to cross this field without contracting potential tumah causes them difficulty. We must pay attention to the role of asking, as it is his means of identifying a worthy problem, as well as his means of identifying a solution; R. Shimon begins work by interviewing the elderly to see what information can be excavated. Finally, he enters the field himself, marking loose soil as potential grave sites, releasing hard soil from suspicion, and forming footpaths across the field. Having once been a prisoner of earth, R. Shimon is able to return to that element in full possession of himself, in the name of usefulness to others. This being aggadah, nothing is wholly tidy, and shortly afterwards his gaze incinerates the man who originally informed on him to the government.51 Apparently, one does not need to be a saint to be a sage, and equanimity is not the same as obliviousness. Conclusion: Milk and Blood Pain in the Talmud does not fall easily into either the category of devotion or relativism. Likewise, it cannot be identified spatially with either the university or the beit midrash. Pain departs from the sorts of intellectual concepts considered by most other authors in this book. Instead, it is among the most intimate and emotional components of Jewish texts and traditions, and how one experiences them. A first impulse might be to suggest that this has been particularly the case for those Jews who have at times felt marginalized as they read canonical Jewish sources or seek to live out traditional Jewish practices. But what I have discovered is that there is no attentive disciple of Torah – no talmid hakham – who has not, at times, felt hurt in the course of their learning. So if it is not to teach us that the truest sage is the most exquisite sufferer, what is the meaning of all the pain in the Talmud? It is not a simple question, and the richness of this portrait of the sages’ life is not reducible to a single function. The stories work at multiple levels of consciousness in the listener or reader, with different details emerging to receive appropriate attention at different points in one’s life. As is characteristic of oral literature, the mess of human activity depicted is itself a teaching tool: it communicates

Pain 201 an expectation of similar complexity in the way the listener responds to challenges, as opposed to parable, which communicates an expectation of simplicity. As Kimberly M. Blaeser observes, Swampy Cree tribesman William Smith reveals much about both method and purpose in tribal storytelling with his comment: “Maybe it won’t be easy to hear, inside the story, but it’s there. Too easy to find you might think it too easy to do.” [emphasis mine] Here the medium enforces the message. We learn our role in story and are meant to carry that role into daily life. We have a response-ability and a responsibility to the telling. We can and must make the story together.52 Thus, the meaning of a theme like pain is not an inert object to be picked up by some astute reader, but a plurality of impressions which can only be brought to fullness over the course of many lives. In this sense, Talmudic suffering is like a generation ship.53 Not only does it require multitudes over time to guide it on its way, it also forms the environment which births its passengers. After all, pain passages are a transmission in more ways than one. The responses which the passage provokes in a student are involuntary, an activation of raw empathy which Talal Asad describes as a natural consequence of communicated injury: The person who suffers because of another’s pain doesn’t first assess the evidence presented to her and then decide on whether and how to react. She lives a relationship. The other’s hurt – expressed in painful words, cries, gestures, unusual silences (in short, a recognizable rhetoric) – makes a difference to her in the sense of being the active reason for her own compassion and for her reaching out to the other’s pain.54 This compassion is itself, of course, the very mindset we have discussed as crucial for a lucid and effective relationship with Torah – we might even see it as necessary to both filial piety and critical questioning vis-à-vis the tradition. The word in Hebrew, rahamim, famously derives from rehem, womb, a biology which directs us again to the nursing model of traditional education. In other words, through the exposition of human pain the Talmud brings the student into what it sees as a helpful posture for learning. But it is possible to suggest reasons beyond the immediately pedagogical for the unusual prominence of pain. I think that Hazal expected that their students, and their great-great-great-grand students, would have difficult lives. When life is at its most difficult, it is impossible for the student of Talmud to think to themselves that they are experiencing a pain which, by virtue of the brokenness it forces on the sufferer, expels them from the world of worthy people. Rather, the text implies repeatedly, worthy people bear the same wounds that we all do, although they bear them best when they respond with discipline and a reorientation to the nurturing mindset that characterizes effective wisdom.

202  Yonah Lavery-Yisraeli In turn, such a gentle, continuous return to a maternal model of wisdom is not only a recommendation but a warning for those delving deep into the text. Any education is replete with those who urge their students to discard their ethical sensitivities in favour of what are termed the hard truths of human nature. More often than not, this approach conceals a fear of truly facing what trouble one’s hard truth is causing others, and goes hand-in-hand with limitations in one’s ability to help others wisely. Pain, we might even say, is by necessity engagement: it reflects almost by definition the bringing of both deep piety and rigorous critique to our readings and practices. According to the sages, information may well hurt, but Torah, that is, a wise response to such information, can be recognized by its nourishing quality. There is no good student of rabbinic literature who has not encountered a text that wounds, perhaps even a text that horrifies. There is blood in the milk. In a nursing model of Torah, the proper response is what we might describe as an informed reaction of woundedness. That is, pain is not a sign of weakness within, but error somewhere in the transmission process; possibilities range all the way from genuine, literal misunderstanding on the part of the student (although this is perhaps over-diagnosed) to the original observation process that led to the textual opinion as presented. When encountering a text that causes despair, we should act like one of R. Shimon’s markers of loose soil, which signal, do not enter here: find a path on the sturdier earth that is nonetheless connected to it. Notes 1 Some of this material has been previously published with a different focus in “To the Sages of the Talmud: Is Wisdom Suffering?” Conversations, 35 (Spring 2020), 95–109. 2 I include this text as a parallel to the martyrdom of R. Akiva, which is so familiar to religious Jews that we often do not register what R. Akiva is rejecting when he responds to torture with the recitation of the Shema’. 3 Sukkah 21a. 4 Søren Kierkegaard, Either/Or 1, “Diapsalmata,” trans. David F. Swenson and Lillian Marvin Swenson (Princeton, NJ: Princeton University Press, 1974), 19 (hereafter EO1). Either/Or is structured in three parts: an aesthetic philosophy written by the persona A, a syncretic aesthetic-ethical response by the persona B (also known as Judge Wilhelm), and the editor’s note in the persona of Victor Eremita. The epigraph comes from the first section written by A, “Diapsalmata”, which is a collection of aphorisms and short-form musings. 5 Y. Hor. 3:4, Gittin 47a. 6 Ber. 10a. 7 Ber. 5b, Ket. 23a. 8 A. Zar. 17b – 18a, Ber. 61a. 9 Pes. 112a, Sanh.71a. 10 B.M. 84a. 11 Ibid. 12 Kidd. 81b. 13 Ned. 20b. 14 Shab. 33b, B.M. 59b.

Pain 203 5 Ber 58a. 1 16 B.M. 59b. 17 Ibid. 18 Ber. 5b. 19 Leonard Cohen, “Lines from my Grandfather’s Journal,” The Spice-Box of Earth (London: Jonathan Cape, 1973), 89–90. 20 Gitt. 57b. 21 As a brief illustration of this, it can be noted that Golda Meir’s famous response to a proposed protective curfew on women (“On the contrary, the curfew should be on men” http://www.israelhayom.co.il/article/114247) has never been considered seriously as anything other than a bon mot or thought experiment. Meanwhile, evidence suggests that gender segregation increases male violence against women, perhaps because the inability to interact with women in a meaningful way and to observe them engaged in acts of skill and worth leads men to devalue women. See Eric Anderson, “‘I Used to Think Women Were Weak’: Orthodox Masculinity, Gender Segregation, and Sport,” in Sociological Forum 23:2 (June 2008), 257–80. This sensibility is reflected in Talmudic discussions about yihud, which consider a mixed-gender gathering of many people to be morally unsuspicious, but gendersegregated gathering to create a risk of immoral behaviour unless physical barriers are erected; see Kidd. 81a. 22 The husband in this tale is attempting to avoid having to pay his wife for the divorce by orchestrating the appearance of infidelity, which would disentitle her to any support. 23 Ber. 5b. 24 Ber. 5a. 25 Taan. 7a. Consider also the prohibition on writing down the Oral Torah (Ter. 14b); only clear, engaged memory enables Torah to be transmitted face-to-face, the teacher fully connected with the student. For the value of seeing the face of one’s teacher, see Eruvin 13b. 26 M. B.K., Chapter 8. 27 Sanh. 32b. 28 By, e.g. prohibiting signs of one’s profession, as in M. Shab. 1:2. 29 Three examples in which gender divisions are undercut are the prohibition of public self-presentations in an overly masculine or feminine mode, as in M. Shab. Chapter 6, the prohibition of labour both in and out of the home, as in M. Shab. 7:2, and thirdly as reflected in the decisions of communities where only men wore tefillin to prohibit them on Shabbat (M. Shab. 6:3), whereas communities where both men and women wore tefillin also wore them on Shabbat (Shab. 62a). 30 Taan. 27b. 31 Kidd. 31a. 32 The same method is employed by Yalta in Nidd. 20a. 33 Erub. 54b. 34 Pes. 87a. 35 Pes. 112a. 36 Ber. 10a. 37 Rashi to B.B. 9b, DH “Atia”. 38 B.B. 9b. 39 EO1, “Crop Rotation” (Princeton, NJ: Princeton University Press, 1974). 40 EO2, “Aesthetic Validity of Marriage,” 86. 41 Ibid, 87. 42 Ibid, 16. 43 John Keats, “To Richard Woodhouse,” 27 Oct. 1818, in Selected Poems and Letters of Keats, ed. Sandra Anstey (Oxford: Heinemann Educational Publishers, 1995), 119.

204  Yonah Lavery-Yisraeli 44 Maura Del Serra, “Introduction,” in Walter Jackson Bate, Negative Capability: The Intuitive Approach in Keats (New York: Contra Mundum Press, 2012), v–vi. 45 Keats, “To Benjamin Bailey”, 22 Nov. 1817, in Selected Poems and Letters of Keats, 26. 46 Elaine Scarry, The Body in Pain (New York: Oxford University Press, 1985), 6. 47 Shab. 33b. 48 Ibid, reacting to the man carrying myrtle close to sundown on Friday. 49 Rashi to Shab. 33b, DH “Pili”. 50 I thank my colleague and friend R. Eiran Davies for this insight. 51 Shab. 34a. 52 Kimberly M. Blaeser, “Writing voices speaking: Native authors and an oral aesthetic”, in Talking on the Page: Editing Aboriginal Oral Texts, eds. Laura J. Murray and Karen Rice (Toronto: University of Toronto Press, 1999), 64. 53 A hypothetical solution to the problem of sub-lightspeed interstellar travel: a ship which is designed to nurse successive generations of travellers until they reach their destination. 54 Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003), 82.

8

Consent Coercion, Consent, and Self in the Redaction of a Bavli Sugya Aviva Richman

Editors’ note As in the previous chapter, here the focus is on personal, bodily, intimate matters, but now the issues are all the more loaded. Aviva Richman asks how, by combining devotionist and relativist readings, we may reassess Talmudic perspectives on sexual coercion and consent. This chapter continues the work of reading late ancient texts in a way that simultaneously accounts for traditional interpretations and incorporates modern, relativist approaches. Once again, the author contends that such approaches benefit both the academic and the devoted reader of the Talmud. For Richman, though, relativism and devotion carry more methodological meanings, rather than ideological or descriptive ones. Relativism denotes approaches to late ancient rabbinic texts that draw upon literary analysis, cultural theory, and redaction theory; devotion entails a learned attempt to better understand rabbinic thought in late antiquity, both on its own terms and for the sake of the modern standing of the devoted reader. The author argues that combining these methods enables us to understand better the stakes of a debate, found in a sugya of tractate Ketubot of the Babylonian Talmud, over whether a wife remains permitted to her husband in two circumstances. In the first case, the woman has been coerced, through rape, to take part in illicit sex, and in the second one the rabbis raise the possibility that she might have come to experience pleasure after coercion. Absent a relativist, text-critical approach, the two cases can fuse into a single question. By using text-critical methods and historical context, Richman identifies what she calls “fracture points” within this sugya, in order to reconstruct its original meaning and to distinguish between the two questions. Richman contends that the notion of the potential for rape to become consensual was not present in the original Tannaitic sources of the sugya. Rather, it became the central issue in its

DOI: 10.4324/9781003364078-9

206  Aviva Richman redacted version, where the framework moved from the Mishnaic emphasis on shame and purity to a new focus on individual subjectivity and sin. Ultimately, Richman contends that the issues raised in the sugya may have confronted the rabbis less as practical questions and more as theoretical models through which to think about sexual agency for men and women, and the way that female desire posed a major challenge to coercion as a clear category in halakhah. She achieves her reading in part by widening our historical canvas to consider Christian debates around the same issues that also took place in late antiquity. Richman insists that only by combining devotionist and relativist approaches can we deduce the rabbis’ evolving concerns in their own time and place, and grapple honestly with the challenges they pose to the contemporary devoted learner. The chapter thereby offers a model in which a text-critical reading of the traditional Jewish canon can become an organic part of study in the beit midrash.

Introduction In this chapter, I deal with Talmudic sources where the legal significance of a woman’s consent, or lack thereof, to an illicit sex act has consequences for her legal status. My main focus is a complex hypothetical in the Babylonian Talmud (Bavli) where a sex act begins as coercive but ends as volitional – ‫תחלתה באונס סופה ברצון‬. In my close reading of this sugya from the perspective of source criticism and redaction criticism, I argue that the Bavli’s discussion of this case is best understood at a methodological crossroads. It reflects an internal development of legal traditions related to purity and of legal traditions related to sex crimes; this requires a devotional reading that presumes a kind of inner unity and concern with real-life consequences. At the same time, it must be situated in a relativist manner that draws on critical theory and wider historical context within and beyond Talmudic Judaism to read the sugya in the light of shifts in notions of sexuality, shame, sin, and self in late antiquity. The participation of Talmudic texts, and especially the Bavli, in late antique discourses of sexuality has been the subject of a number of recent studies. Ishay Rosen-Zvi has studied the sexualization of the “evil inclination” (yetzer hara) and its importance in the Bavli’s notion of the development of the self. His work generally focuses on male sexuality and male agency, and in his assessment women are excluded from the struggle with sexual desire that is central to the Bavli’s perception of the male subject.1 Ayelet Libson has recently argued that there is a turn toward legal subjectivity in later redactional layers of Bavli passages, including in cases where women are primary legal agents.2 My point in this chapter is to demonstrate that in the Bavli’s discussion of rape the question of

Consent 207 female sexual agency comes to the fore, and that this becomes more visible through redaction-critical analysis. A number of Bavli sugyot probe the interior mental state of a woman faced with rape as part of determining what legally counts as coercion and what constitutes non-coercion. The complex case of “coercion turned into consent” addresses the existence and legal relevance of a woman’s pleasure and fear, physical and spiritual desires. I also draw upon Kyle Harper’s argument in his book From Shame to Sin, in which he discusses the evolution of sexual morality from Roman culture to early Christian writings.3 I suggest that in some Bavli sugyot, in the course of redaction over a period of centuries, there was a shift away from a focus on shame and defilement, toward a focus on subjectivity and sin. I also argue that ultimately, these questions of agency in the case of a sexually coerced woman do not merely, or even primarily, serve as a means to find legal responses to real cases of sexual coercion but are also, and maybe primarily, a theoretical exercise. The shift to a focus on the complex subjectivity of the sexually coerced woman, whether or not the assumptions about her state of mind map onto real women, becomes a site for navigating the power and constraints of the inner mind of the Jewish legal subject. Methodologically, this work builds on the importance of “fracture points” in a sugya, which can often serve as windows into the textual development of the sugya and into the conceptual tensions that underlie the discussion. David Weiss Halivni, a ground-breaking scholar in the field of source criticism, developed a method of analysis based on identifying “difficulties” in the logical flow of a sugya.4 More recently, Barry Wimpfheimer has expanded on the significance of identifying and paying attention to textual difficulties not only as a means to identify earlier sources but also because these are often dialogical inflection points that speak to tensions in cultural dynamics at play in the sugya.5 Wedding Halivni’s textual sensitivity with Daniel Boyarin’s turn toward applying a cultural studies lens to Talmudic texts, Wimpfheimer proposes a methodology that is based on noticing and amplifying incoherent seams of a sugya in order to interrogate the cultural work that the sugya does. I would claim that this work of naming and lingering on these textual inconsistencies comes at the intersection of devotion and critique. The devotional lens leads to a careful reading that expects a text to “work”. Fracture points attract greater attention and require greater effort to lend coherence to the textual logic. The devoted reader lingers on fracture points out of a commitment to constitute coherence. At the same time, the sensitive eye of the critic lingers on fracture points, a means to deconstruct the sugya through a skeptical unraveling of the text. An integrated approach can lead to a narrative of “reconstruction” that involves naming how there came to be a dynamic range of contested meanings within the redacted text.6 Holding these contested meanings within one text can feed a complex and multivocal devotional worldview. In particular, we will explore how stammaitic attempts to weave together varying approaches to female sexuality serve to both “suppress and magnify”7 the incoherence of the law.

208  Aviva Richman In my own personal and intellectual encounter with this text, I feel the twinned pressures of relativist and devotional tendencies. That is, even as I write this in significant part as a university-educated specialist in Talmud, and utilize a critical-redaction approach, I simultaneously recognize that I may be motivated by a devotional stance to deploy critical tools so as to soften the blow of the text as is. Presentation and Summary of Ketubot 51b Let us start with the text itself and try both to follow the flow of the argument and to identify the fracture points. I present and discuss each logical unit of the sugya – you can find the full sugya in an appendix if you prefer seeing it in full. The Bavli sugya that will be my central focus relates to Tannaitic prescriptions (M. Ket. 4:8) regarding stipulations in a ketubah agreement: ...‫לא כתב לה אם תשתבאי אפרקינך ואותבינך לי לאינתו ובכהנת אהדרינך למדינתך חייב שהוא תנאי בית דין‬

If he did not write: If you are taken captive I will redeem you and return you to me as a wife, or with a wife of a priest I will return you to your province, he is [nonetheless] obligated [to do so], since it is a stipulation of the court … 1. The Sugya, Part I A. Avuha deShmuel said: 1. A woman who was raped is forbidden to her husband – 2. we are concerned that perhaps it began as coercion but ended as volitional.   B1. Rav posed a challenge to Avuha deShmuel: “If you will be taken captive I will redeem you and bring you back to me as a wife.” B2. He was silent. B3. Rav said about him: The princes refrained from talking, and laid their hand on their mouth. (Job 29:9) B4. What should he have said? They were lenient regarding a captive.   C. For Avuha deShmuel, what is the case of coercion [following which] the Torah permits [the husband to reunite with his wife]? For example, where witnesses said that she screamed from beginning to end. The sugya begins with a statement of Avuha deShmuel (A) that has two parts, a ruling (A1) and an explanation (A2).8 At face value, it appears that Avuha deShmuel forbids any raped woman [not just the wife of a kohen] to

Consent 209 her husband because even though the rape began as coercion of the woman it may have ended as volitional. This is a horrifying approach that extends blame to a victim of bodily violence, and entails drastic legal consequences. Part of the goal of this devotional-critical essay is to narrate how such a devastating approach came to be found in the Talmud. I will demonstrate below that, for better or for worse, this evolves from textual reworking; it was never stated explicitly by any sage. Rav challenges this ruling (B) based on the above-cited M. Ket. 4:8, which requires a husband to redeem and remain married to his captive wife. Avuha deShmuel has no response. Rav, however, posits his own resolution – there is a leniency in the case of a captive, and apparently there is no need to be concerned that in that context any forced physical relations may have become volitional. The sugya further interrogates Avuha deShmuel’s ruling (C): If a raped wife is always forbidden to her husband, as he asserts, how is it possible to have a case where the Torah permits her to return to her husband? This seems to be a reference to Deut. 22:269 assuming that she is not only exempt from the death penalty but from any penalty – and thus not forbidden to her husband. The anonymous narrator answers that there is such a case – a case where witnesses observe that she screams from beginning to end, thereby attesting to the fact that what began as coercion never became volitional. (Based on all that we now know about rape, this is obviously a troublingly narrow definition of sexual coercion.) Part I of the sugya continues: D. This differs from Rava, as Rava said: 1. Any case that began as coercion and ended as volitional, even if she says: “Let him be!” that if he had not attacked her she would have hired him, she is still permitted. 2. For what reason? Passion has enveloped her.   E1. It is taught in accord with Rava: a. “And she was not seized” (Num. 5:13) she is forbidden [to her husband, as a sotah]. Thus if she was coerced she is permitted. c. And there is another case that is permitted even though she was not coerced. d. Which is that? e. Anyone where it began as coercion but ended as consensual.   E2. An alternate teaching: a. “And she was not seized” she is forbidden. Thus if she was coerced she is permitted. c. And there is another case that is forbidden even though she was coerced. d. Which is that? e. The wife of a Kohen.  

210  Aviva Richman E3. Rav said Shmuel said in the name of Rabbi Yishmael: a. “And she was not seized” she is forbidden. Thus if she was coerced she is permitted. c. And there is another case in which she is permitted even though she was not coerced d. Which is that? e. That her kiddushin were never valid where even if her son is riding on her shoulder she may opt out [of the marriage] [and is not subject to any punishment]. The sugya thus goes on to present an alternative view regarding coercion turned volition (D) whereby Rava asserts that a wife is permitted to her husband in any case that began as coercion but ends with what sounds like her volition, where she urges that her assailant not be punished, or even where she claims that she would have hired him (!). The justification for this leniency seems to be that this is not an authentic expression of her volition but merely reflects that “passion has enveloped her”, arousing her to the point that it seems like she desires the sex act even though her desire is due to an outside force. Next comes a series of three Tannaitic interpretations (E1, E2, and E3) of the biblical phrase “and she was not seized” (‫)והיא לא נתפשה‬, in Num. 5:13, the first of which is cited in support for Rava’s position, that a wife is permitted to her husband in a case of coercion turned volitional. The other two traditions bring alternative legal midrashic interpretations of this phrase and seem to be tangential to the central case under discussion. The third source is entirely unrelated to the discussion but is another midrashic tradition of the same phrase and relates to an original betrothal which was invalid for some reason which allows the woman to walk away from her marriage if she wishes. This source is not introduced with the technical terminology for a baraita but as a tradition ultimately from the Tannaitic sage Rabbi Yishmael through a tradent of Rav Yehudah in the name of Shmuel.10 2. The sugya – Part II The continuation of the sugya (F–H) does not directly follow from the flow of the previous argument, but is relevant to the case of captives in our mishnah: F. Rav Yehudah said Shmuel said: These women whom thieves abduct are permitted to their husbands. The sages said to Rav Yehudah: But we see they supply them with bread! Out of fear. But they supply them with arrows! Out of fear. Certainly, [though]if they leave them and go [back] of their own accord they are forbidden. Here Rav Yehudah asserts that women who are kidnapped by thieves are permitted to return to their husbands (F). Though not a direct response to

Consent 211 what came before, this statement does carry the same tradent as the previous line (Rav Yehudah in the name of Shmuel). In the following discussion, the sages point to volitional acts that women captured by bandits perform for their captors such as supplying them bread and arrows. While these actions do not directly indicate volition in a sex act, the sages seem to assume that these actions indicate this is not a context of coercion. Rav Yehudah responds that these actions should be understood as stemming from fear, implying that they are not acting out of volition. The final line in this section concludes that if they were to return to their abductors of their own accord they would certainly be forbidden. It is not totally clear if that line is meant to be attributed to Rav Yehudah or is the anonymous narrator. The entire discussion in (F) relates to a case that began as abduction and then shows evidence of volition, but it never explicitly uses the language of ‫רצון‬/‫ אונס‬and never refers to the ruling in the case of ‫תחלה באונס סופה ברצון‬. If one chooses to read the sugya as a coherent whole, then one imagines that the objection by the Sages, asserting that these wives could be forbidden, either reflects the stance of Avuha deShmuel as against Rava, that a wife is forbidden in a case of coercion turned volition, or assumes that Rava’s permissive stance for some reason does not include these scenarios.11 The next part, G–H, deals with two contradictory Tannaitic traditions that differentiate between two kinds of captives: G. The sages taught: Captives of the king are like captives. Those kidnapped by bandits are not like captives.   H. But the opposite was taught! There is no problem with king versus king – this is the case of the kingdom of Aḥashverosh, that is the case of the kingdom of Ben Netzer. There is no problem with bandits versus bandits – this is the case of Ben Netzer and that is the case of general bandits. Here he is called a bandit and here he is called a king? Compared to Aḥashverosh he is a bandit; with respect to thieves in general he is a king. This section focuses on a contradiction between two Tannaitic texts, though only one tradition is cited explicitly and the other is simply cited by allusion. The latter text that is supposed to have the opposite effect (‫)תניא איפכא‬ seems to be a version of T. Ket. 4:5: 12

‫נשבית אין חייב לפדותה במה ד"א בשבוית מלכות אבל בשבוית ליסטות פודה‬

If she is taken captive he is not obligated to redeem her. In what case? Regarding captives of a kingdom, but regarding captives of banditry he is obligated to redeem.

212  Aviva Richman In one text, captives of the king are considered those that meet the legal definition of captives, but captives of bandits are not. In the other, captives of bandits are considered actual captives, but that is not the case for captives of the king. (Though not spelled out directly in this discussion, the relevance of being in the category of “captive”, based on the proximate mishnah, is that the husband is obligated to redeem his captive wife. That is, just as above Rav drew upon the case of the husband’s obligation to redeem his captive wife in order to challenge the notion that a case of coercion makes a wife forbidden to her husband, here the same obligation seems to carry the same implication: i.e., the captive wife is permitted to remain married to her husband.) The sugya resolves the contradiction between these sources by limiting the case that is not considered a captive to the case of Ben Netzer, most likely a reference to a regional Roman ruler in Palmyra, the eastern part of the empire.13 In cases of kings such as Aḥashverosh, the woman is permitted, and so too in all cases of bandits. At no point does the sugya explain the basis for these distinctions between different kinds of captors. Furthermore, this discussion does not directly engage with any of the language and principles from earlier in the sugya, whether regarding a shift from coercion to volition, or the criterion of fear. Fractures and Reconstructions Up to this point, we have seen a series of debates unfold about whether or not a woman who is raped, taken captive, or abducted remains permitted to her husband. It is not totally clear how all of these statements relate to a mishnah that deals, strictly speaking, with a husband’s obligation to redeem and accept his wife if she is taken captive. In each of these debates, the Sages raise explicitly the question of what happens in multiple scenarios where a sex act during the period of captivity comes out of a context of coercion and yet there are some indicators of volition. Having taken in this overall structure, it is time to step back and look for fracture points. One central fracture point in this sugya is the problem of how Avuha deShmuel’s statement – asserting that, in fact, a raped woman is forbidden to her husband – relates to the mishnah about the obligation to redeem the captive wife. As redacted, the sugya explains Avuha deShmuel’s statement as motivated by the concern that an act of coercion could have become volitional. But was his ruling – which appears to be a blanket one – always motivated by this issue? Is this the only way to interpret his contention that a raped woman is forbidden to her husband? Hanoch Albeck, one of the earliest academic scholars of Talmud, suggested that the explanation of Avuha deShmuel is in fact a gloss, and that Avuha deShmuel’s statement itself has nothing to do with the concern about coercion turned volition. He locates Avuha deShmuel’s statement within the context of “early halakhah” wherein a violated wife was forbidden to her husband, even in a case of coercion.14 Some have argued that the exigencies

Consent 213 of history catalyzed a shift away from this position, where the historical reality of women being taken captive resulted in a gracious legal shift toward leniency.15 This historical explanation may be true, though there is so far little external evidence supporting the claim. Here I want to take a different approach to reconstructing the sugya and its redaction. Rather than offering a historical approach to the tensions in this sugya and assuming that Jewish law bends to historical circumstances, I suggest a cultural-literary methodology where the fracture points in the sugya represent a dynamic negotiation of conflicting approaches to sexual morality within Talmudic law. Articulating Difficulties in the Sugya

When we begin to look more closely at the sugya, we see that the fracture points multiply. Our starting point should be a number of questions raised by a close reading of the text: 1 Why wouldn’t the Amora Avuha deShmuel (A) have a way to explain the mishnah?16  Is the explanation given for his statement “original”? 2 How can the leniency about a captive woman make sense in order to harmonize Avuha deShmuel with the mishnah? If anything, the continuation of the sugya reflects that in a case of long-term captivity there is more reason to be concerned about coercion becoming volitional. 3 What is the relationship between coercion, will, and desire for Rava? How does he come up with the case he suggests of an act that “began as coercion but ended as consensual?” 4 How do the three baraitot (E1–E3) on the phrase “she was not seized” relate to each other? How early/authentic are any of them? 5 How precisely does Rav Yehuda/Shmuel’s assertion about thieves abducting women relate to the mishnah, the principle referred to earlier about leniency in the case of captivity, and the debate about coercion turned volition in the first part of the sugya? 6 There seems to be a mix of two different discourses here, one about captives and permission for wives to return to their husbands, and the other about coercion turned volition. What is at stake in these becoming intertwined in the redacted version of the sugya? Parallels in Classical Rabbinic Sources from the Land of Israel Coercion turned Consent Tannaitic Literature

In order to answer these questions, we need to broaden our textual base for the discussion. Often, it becomes easier to analyze the redactional process

214  Aviva Richman in the Babylonian Talmud by taking a close look at material in the canon of sources redacted much earlier, in the Land of Israel. By noticing similarities and differences, the hand of Babylonian redactors can come into relief. In this case, one good place to look at are texts on purity laws, where we also find language of consent turned volition. In Mishnah Makshirin 1:1, the mishnah discusses items becoming susceptible to impurity by becoming wet, and whether they became wet in accordance with the owner’s will or against the owner’s will. If at any point it was one’s will that the item be wetted, even if at the beginning or end one did not want the item wetted, it is still susceptible to impurity.17 The mishnah rules that a temporal flux in the will does not matter with respect to susceptibility to impurity; all that matters is that the owner desired the impure thing at any point.18 Another important intertext for the concept of a difference in intent at the beginning and end of an act is found in Sifrei Zuta in discussion of a sacrifice brought for an unintentional transgression. While the example from M. Maksh. relates to impurity, Sifrei Zuta relates to sin.19 In establishing what circumstances determine the obligation to bring a sacrifice for an “unintentional sin”, Sifrei Zuta discusses situations where a person may shift between three different mental states over the course of one act: intentional (‫)מזיד‬, unintentional (‫)שוגג‬, and coerced (‫)אנוס‬. According to one opinion in the text, any interruption in the “unintentional” mindset (whether interrupted by intention or by coercion) leads to exemption from a sacrifice for an unintentional sin. According to another sage, a person may face the consequences for different aspects of their mental state at different points in the act. This position is not fully elucidated and remains somewhat cryptic. Yerushalmi

We find another parallel in the Jerusalem Talmud, or Yerushalmi, in the context of the suspected adulteress (sotah), who is made to drink a potion to determine whether she is innocent, in which case she returns to her husband (for the biblical passage, see Numbers 5:12–31). The discussion in Yerushalmi Sotah deals with the question of whether the act of adultery was coerced, in which case the suspected adulteress is considered innocent and is not forbidden to her husband.20 Y. Sotah 4:421 ‫" הא נתפשה מותרת ויש לך תפוסה ביש' והיא אסורה ואי זו זו זו שתחילתה ברצון‬.‫"והיא לא נתפשה‬ .‫וסופה באונס ויש לך שאינה תפושה ביש' והיא מותרת ואי זו זו זו שתחילתה באונס וסופה ברצון‬ ‫כהדא איתתא אתת (עבד) לגביה ר' יוחנן אמרה ליה נאנסתי אמ' לה ולא ערב לך בסוף אמרה ליה ואם יטבול אדם‬ ‫אצבעו בדבש ויתננה לתוך פיו ביום הכפורים שמא אינו רע לו ובסוף אינו ערב לו וקיבלה‬

“And she was not forced” – [and thus] she is forbidden. [Implying] that if she was forced she is permitted. And [yet] there is an Israelite

Consent 215 who is forced and is [still] forbidden. Who is that? A case that began as volitional and ended as coercive. And there is one that is not forced yet is permitted. Who is that? That is a case that began as coerced and ended as volitional. [This is similar] to the case of that woman who came by R. Yoḥanan. She said to him: I was raped. He said to her: Was it not pleasurable for you in the end? She said to him: If a man dips his hand in honey and puts it in his mouth on Yom Kippur,22 is it not bad for him but ultimately isn’t it sweet for him? He accepted it [her words]. The Yerushalmi passage makes two exceptions to the general rule that a coerced wife is permitted to her husband and a non-coerced wife is forbidden.23 These cases are mirror images that problematize the notion of consent from a temporal perspective, on the basis that a person’s mental state may change over the course of time. There is the case that began as volitional and became coercive, and there is the case that began as coercive and became volitional. The law in both cases follows the initial state of mind, not the final state of mind. The discussion of these mirror image cases does not seem to be particularly attuned to the lived experience of victims of sexual violation, and certainly based on what we know from contemporary expertise, law must take seriously the notion that a person could initially consent and then retract consent. Instead, this reads more like a theoretical and abstract discussion. It could stem from general legal reflection on the complexity of human will and desire, with regard to which it is interesting to think through the legal ramifications of a shift in a person’s will and consent. It is also possible that these discussions reflect an internal development of the rabbinic textual tradition, drawing on language from the realm of purities that we saw detailed in Mishnah Makshirin, and extending it to the case of a shift of volition in a sexual act. In Mishnah Makshirin, we saw that in the context of items becoming susceptible to impurity, it is determined based on a person’s subjective desire that the items get wet. If at any point a person expressed will or desire (‫ )רצון‬for the items to get wet, this carries legal significance and the items are in fact deemed susceptible to impurity. The two traditions in Yerushalmi Sotah draw on similar language about a temporal shift in will and extend it to an illicit sex act. Drawing on this language may in and of itself indicate an approach that treats sexual violation as a form of impurity. However, the ruling is not identical. The two traditions about an illicit sex act do not conclude that an expression of will at any point in the act renders it to be a volitional act from a legal perspective. If it began as coercive and became volitional, it is still legally considered as a coerced sex act. But this does not mean that the presence of coercion at any point automatically leads to the determination of coercion. Instead, the law always follows the initial state of mind. The approach to a flux in will regarding sexual impurity does not sit neatly within the logic of will in the realm of purities.

216  Aviva Richman It is also possible that the two traditions in Yerushalmi Sotah are in conversation with Sifrei Zuta’s discussion of mental states and with the determination of whether or not someone has committed an “unintentional” sin worthy of bringing a sacrifice. However, it is not entirely clear how to apply the reasoning of Sifrei Zuta, since Yerushalmi Sotah is not dealing with the case of “unintentional” (‫ )שוגג‬but rather with volitional (‫ )רצון‬and coerced (‫)אונס‬. Theoretically, one might have expected that coercion would be defined in the same way as “unintentional”, with regard to which any interruption in the state of coercion, such as momentary volition, would interrupt the status of coercion. Again, that is not the case, and instead the ruling follows the initial state of mind. The status of coercion remains even if eventually there was volition. This comparison to earlier textual traditions exposes the ways in which the traditions in Yerushalmi Sotah about a woman’s shift between volition and consent toward a sex act should be seen as being in dialogue with other early rabbinic sources about temporal shifts in a person’s will. However, there is nothing simplistic or monolithic about how the law treats these cases of a shift in mindset. A woman’s legal status depends on whether she initially consented to this sex act or whether it was initially against her will. The plot thickens as we turn to the anecdote brought in Yerushalmi Sotah as support for the legal inference that in a case of “coercion turned volition” she is nonetheless permitted to her husband: Like the case of that woman who came by R. Yoḥanan. She said to him: I was raped. He said to her: Was it not pleasurable for you in the end? She said to him: If a man dips his hand in honey and puts it in his mouth on Yom Kippur, is it not bad for him but ultimately isn’t it sweet for him? He accepted it [her words]. A woman who was raped approached R. Yohanan, presumably to find out whether she could stay with her husband. When R. Yohanan asks her whether she ultimately enjoyed it, the tone of this question is not at all clear. It is not clear whether he is asking out of innocent curiosity or implicating her and assuming she carries some guilt. Either way, his reaction belies a viewpoint that assumes the status of coercion can be overridden if in the end she wanted it. R. Yoḥanan appears to assume that if the sex act was ultimately pleasing, this is legally significant and the woman would be forbidden to her husband. This may be because he is concerned with her ultimate state rather than her initial state, or it is possible that he assumes the logic of Mishnah Makshirin 1:1 applies to the sex act as well – if a woman expressed volition at any point in an illicit sex act, this is legally significant and she is defiled by it. R. Yoḥanan’s assumptions may relate to classical perceptions of female sexuality and women as the more libidinous sex, in light of which even an act of rape is presumed to be pleasurable.24 It seems that he did not have knowledge

Consent 217 of the legal midrash that renders a woman permitted in the case of coercion turned consent, or rejected its premise. Perhaps this anecdote is even meant to provide the narrative of the development of this law (as it is not entirely clear how early these two midrashic traditions are, whether or not they are Tannaitic or only from later). In the anecdote’s telling, R. Yoḥanan shifted his position because of his interaction with the woman and her analogy. On the one hand, this sequence – and his immediate validation of her vantage point – affords the woman an important degree of agency. R. Yohanan does not understand the female experience of rape, and she draws an analogy to make her embodied experience intelligible in male terms. He changes his approach because of her, and this approach becomes enshrined in law: what began as coercion is still legally considered coercion, despite a circumstance where she seems to experience desire. At the same time, this apparent introduction of female experience may actually impose a male perspective onto the female body, rather than acknowledging the significance of coerced sex as an act of violence. The analogy the text puts into her mouth is essentially about separating mind and body, a motif that appears throughout late antique philosophy, and that I will discuss more below. The point of the honey on Yom Kippur example is that there is undeniable bodily pleasure, but the mind that seeks to avoid sin does not want this pleasure. Honey is inherently sweet, and the text ultimately posits that the sex act is inherently pleasurable even if it is coerced. There is no acknowledgement that a forced sex act may be inherently painful rather than pleasurable, that it is an act of violence rather than an act of pleasurable sex. The anecdote frames the concern to be about whether the fact of carnal pleasure is determinative of volition with the accompanying legal penalties, or whether a person’s will to avoid sinful pleasure dominates the legal assessment.25 The passage concludes that legally this case is treated as coercion and she is permitted to her husband, notwithstanding the complexity that there may also have been an experience of pleasure. Comparison of Yerushalmi and Bavli

Comparison to the passage in Y. Sotah 4:4 brings into sharper relief the debate in the Babylonian sugya in Ketubot 51b. Yerushalmi Sotah presents R. Yohanan as initially concerned about a woman feeling pleasure, then changing his mind based on the woman’s analogy so that the case is treated as coercion. His conclusion correlates with the baraita in Ketubot 51b discussed above, that rules a woman is permitted to her husband in a case of coercion turned consent. As we have seen, this baraita permits a woman in the case of coercion turned consent, and associates this position with Rava. However, R. Yohanan’s initial assumption correlates with the early Talmudic sage, Avuha deShmuel, who appeared at the beginning of the Bavli sugya and presented the opposite line of thinking, that a woman is forbidden to her husband in a case of coercion turned consent. The Bavli sugya brought no

218  Aviva Richman Tannaitic support for this restrictive position in any alternative baraita, and now we have seen that this position is explicitly shot down in the Yerushalmi parallel. It is very important to surface the lack of any textual support for Avuha deShmuel’s approach to the case of coercion turned consent because he does not treat it is as a marginal case; rather, it becomes the lynchpin for generally forbidding a raped woman to her husband out of a concern that every single woman might experience desire at some point in this coerced sex act. Based on the comparative work we have done thus far, we can fully appreciate the extent to which Avuha DeShmuel represents an outlier position that goes against the logic of every other textual source on coercion and volition in a sex act. Comparisons of Baraitot: ‫והוא לא נתפשה‬

To understand the contours of the Bavli sugya, it is critical to analyze the three midrashic traditions brought on the phrase “and she was not seized” (E1–E3), all introduced as baraitot (early Tannaitic traditions), and compare them to other witnesses of parallel traditions in the Tannaitic corpus.26 The earliest version of this tradition seems to be in Tannaitic midrash on the book of Numbers, in its commentary on Numbers 5:13: Sifrei Num. Naso 7 .‫" להוציא את האנוסה‬.‫"והיא לא נתפשה‬

“She was not seized” – to exclude the coerced woman [from the sotah ordeal]. Here we see that the kernel of the tradition is an inference that exempts a woman who has been coerced from the sotah ordeal and its consequences, and implicitly permits a raped woman to return to her husband. It is the only extant Tannaitic witness to a midrashic tradition and stands in clear opposition to the restrictive position of Avuha deShmuel. Both the Yerushalmi and Bavli Talmud expand upon this kernel from Sifrei. The Yerushalmi expands on this kernel by introducing two more complex cases that are mirror images, coercion turned volition and volition turned coercion. The Bavli does not have one baraita with two exceptions, but three separate baraitot each suggesting a different inference. E1. It is taught in accord with Rava: a. “And she was not seized” (Num. 5:13) she is forbidden [to her husband, as a sotah]. Thus if she was coerced she is permitted. c. And there is another case that is permitted even though she was not coerced. d. Which is that? e. Anyone where it began as coercion but ended as consensual.  

Consent 219 E2. An alternate teaching: a. “And she was not seized” she is forbidden. Thus if she was coerced she is permitted. c. And there is another case that is forbidden even though she was coerced. d. Which is that? e. The wife of a Kohen.   E3. Rav said Shmuel said in the name of Rabbi Yishmael: a. “And she was not seized” she is forbidden. Thus if she was coerced she is permitted. c. And there is another case that is permitted even though she was not coerced. d. Which is that? e. The case of a failed betrothal, where even if her son is riding on her shoulder she may freely opt out [and decide to marry another with no punishment as her initial “marriage” never was valid]. The first baraita (E1) looks similar to one of the Yerushalmi cases, discussed above, and supports Rava’s reasoning that coercion turned consent is still treated as coercion. The second baraita (E2) forbids a raped woman to her husband only in the case of a priest and seems to directly contradict Avuha deShmuel’s statement that extends this restriction to all women, even those not married to priests. Strangely, the sugya does not surface this contradiction by bringing it as a challenge against Avuha deShmuel. The third baraita (E3) has no clear function in the flow of the argument in the sugya, but it can indirectly support Avuha deShmuel by allowing him to reject the baraita that supports the opposing logic to his own (E1), and to reject the baraita that directly contradicts his ruling (E2) and instead derive something different from the verse. Again, the sugya does not pursue the relationship between Avuha deShmuel’s statement and this third baraita – it does not explicitly say that Avuha deShmuel sides with this baraita. This lack of discussion, and the organizational scheme that separates each of these baraitot, ultimately minimizes the tension between Avuha deShmuel’s statement and the Tannaitic traditions he opposes. For the purposes of deconstruction and reconstruction of the sugya, it is important to note that all of these elements lend greater credence to Avuha deShmuel’s position27 that always restricts a raped woman from returning to her husband. Instead of a monolithic Tannaitic voice that permits a woman to her husband in the case of rape, as Sifrei suggests, there appear to be multiple Tannaitic traditions and he can align himself accordingly. Captives: Tannaitic Kernels Reconfigured

As we move on through the sugya, other hints of fracture appear. They reinforce the impression that something may be amiss with the weight that Avuha

220  Aviva Richman deShmuel’s position assumes on the page as eventually redacted. One of the most difficult aspects of the sugya is the conflation of tannaitic traditions about captives with traditions about coercion turned consent. This conflation of discourses is quite noticeable in sections F–H on captives, where F is focused on the women’s indication of volition, while G–H focus on different categories of captors. Here it is useful to draw upon theories of the development of sugyot that assume that the earliest core of a sugya was the Tannaitic material, where a proto-sugya involved juxtaposing various Tannaitic traditions and analyzing the way they related to each other.28 In this vein, the kernel of this sugya would have been Mishnah Ketubot 4:8 that requires a man to redeem his captive wife and take her back as his wife, alongside two versions of the tradition in Tosefta Ketubot 4:5 that qualify this law with opposite rulings regarding the cases of kings and bandits.29 The sugya’s reconciliation of the conflicting baraitot introduces very specific categories for specific kinds of captors: Aḥashverosh, Ben Netzer,30 and bandits. I contend that the redactional frame of the Bavli sugya has done much to shape the way that interpreters of the Talmud – traditional medieval commentaries and academic scholarship31 alike – have understood the distinction between these different categories of captors. The sugya’s framing leads many medieval commentaries to double down on the conflation between the issues of captivity and the complexity of coercion and consent. They treat the distinction between Aḥashverosh, Ben Netzer, and bandits as a matter of the abducted woman’s volition – as a question of whether or not she might have acquiesced to the sex act such that this is no longer a case of coercion.32 But another interpretation seems at least equally plausible: perhaps in the Tannaitic discussion of captives brought in this latter part of the sugya, the concern is actually about whether a sex act occurred and not about whether she willingly consented to any such act. Proposed Reconstruction of the Sugya At this point, we have the necessary set of considerations in mind to attempt to reconstruct the logic of this sugya and the consequences of the redaction process. I would like to begin by suggesting that there was once, at an earlier stage, a mishnah about the husband’s obligation to redeem his wife from captivity. An early sugya on this mishnah may have dealt with baraitot about different kinds of abduction and about what counted as being taken captive to trigger the husband’s legal responsibility of redemption. This discussion had nothing to do with a captive woman’s state of mind. It was, perhaps, about the likelihood that the captor committed a sex act with the captive. In cases of sufficient doubt, the woman was permitted to her husband, but if a sex act presumably occurred, it would “defile” her, forbidding her to her husband. Here, crucially, the issue was a more neutral one of purity laws. It had nothing to do with questioning whether or not the woman had in fact been coerced in a sex act that everyone understood as forcible rape.

Consent 221 At the next stage of development, the discussion of captives that quite naturally relates to the mishnah is invaded by an entirely different discourse regarding the complexity of coercion and consent in rape. Perhaps the discussion of captives, which made no mention of the terminology of coercion or consent, became entirely incoherent to later redactors who were strongly motivated by the importance of subjectivity. This leads to a powerful redeployment of a statement of Avuha deShmuel that was initially entirely at odds with a view focused on subjectivity. That is, Avuha deShmuel asserts that if it is known that a woman was raped, she is forbidden to her husband, even an Israelite, thus disregarding entirely her subjective experience of pain and violation when being raped. This fits with some Tannaitic strands of the logic applying to the treatment of captives, and also some earlier Second Temple sources. In those strands, physical defilement is what matters to render a woman unfit for her husband, no matter the woman’s state of mind. At the same time, Avuha deShmuel’s statement defies what becomes the dominant Tannaitic voice, according to which in a case of coercion a woman is permitted to her husband. The Bavli sugya has a legal concern with subjectivity, and assumes that a person should suffer no penalty for a crime committed under duress, and specifically, a raped woman should suffer no penalty so long as this was indeed coercion (unless she was married to a priest). We find the textual root for exemption in a case of coercion in the early midrash in Sifrei Numbers regarding the sotah ordeal, in which we see that a coerced woman is exempt from the ordeal. This is the Tannaitic source that directly contradicts Avuha deShmuel, but it is never brought as a contradiction against him in the sugya. Here we have yet another glaring indication that the logic of the sugya changed markedly in the process of redaction. It was so obvious to the redactors of the sugya that a raped woman is permitted to her husband that Avuha deShmuel’s ruling on its own was entirely incoherent. This led to a later stage, when his statement succumbed to an explanatory gloss that entirely transformed the role of subjectivity in his ruling. By adding the explanation “we are concerned that perhaps it began as coercion but ended as volitional”, the redactors square a circle. Rather than the physical act of defilement being determinative of her status in a way totally at odds with the exemption for coercion that the redactors take as a given, the redactors refashion Avuha deShmuel’s logic so that it comports with their own. The only way, as it were, that the redactors can explain how a raped woman would be forbidden to her husband is if in fact it was not rape. They thereby find coherence in Avuha deShmuel’s statement by arguing that he must be motivated by a concern that what began as coercion actually turned into a case of volitional sex. This gloss on Avuha deShmuel is quite the legal swerve. In both the Yerushalmi and Bavli baraitot, the case of coercion turned consent is explicitly a case where a raped woman is permitted to her husband. In the Yerushalmi, this case is part of one single baraita that directly contradicts Avuha deShmuel. Yet, a carefully crafted Bavli sugya creates a different possibility. There are three different baraitot interpreting the phrase “she was not seized”, and the third

222  Aviva Richman can align with Avuha deShmuel because that baraita introduces a derivation that has nothing to do with the question of coercion turned volition. With this structural arrangement, Avuha deShmuel is not beholden to a monolithic Tannaitic source that explicitly permits a raped woman to her husband even in a case of coercion turned “volition”. He can instead follow “the other baraita”. Once we have identified that the explanatory gloss comes from later redactors, who invent an anxiety that a woman might come to desire a sex act that was initially forced, we can see how this anxiety drives the entire sugya. While one would generally assume that the law follows the central sage Rava rather than the obscure Avuha deShmuel, the motivation behind Avuha deShmuel’s amended statement does not disappear. It even encroaches on the opposite view of Rava. Rava coheres with the position expressed in both the Bavli and Yerushalmi baraitot, that a case of coercion turned consent is still considered coercion and she is permitted to her husband. He gives an example of the most extreme possible verbal expression of volition after which she is nonetheless permitted to her husband, because the sex act began as coercion: “even if she says: ‘Let him be!’, that if he had not attacked her she would have hired him, she is still permitted”. But the sugya wants more, and inserts two Aramaic words to “explain” what needs no explaining: “Passion enveloped her” (‫)יצר אלבשה‬. The scholar Ishay Rosen-Zvi has noted that “Rava’s statement can be easily explained on its own as ruling simply that it is enough for an act to begin as rape in order to be considered as such. It is only the Stam that adds the assumptions about the yetser”.33 The need for this explanatory gloss (D2) is itself indicative of a shift in assumptions, whereby it is no longer enough that an act began as coercion. The redactors seem to have discomfort with the idea that the initial context of coercion is enough to determine her status as coerced and feel the need to offer greater explanation. This discomfort may reflect the same redactional hand that glossed Avuha deShmuel. The only way Rava’s position can be justified is if the woman’s statement of consent is not coming from her at all but from the yetzer. This explanatory gloss that attributes her apparent expression of volition to the yetzer may have resonances with Syriac texts that speak of a person being delirious due to being “enclothed” with a demon,34 or perhaps it is related to the power demons hold to lead wives sexually astray in Babylonian Jewish folk magic.35 The point is that she is operating under an external force, not expressing an internal desire. This is a “double rape” so to speak; she is coerced into sex by the rapist and then coerced into expressing desire by the demonological yetzer. This gloss assumes that if it was her own expression of volition she would in fact be forbidden to her husband, even though all of the earlier textual traditions that explicitly address volition coming in the wake of a coerced sex act very clearly treat it as a case of coercion. If we follow this re-reading of the sugya that I have proposed all the way through, then the concern about coercion turned volition frames the second half of the sugya about captives, but there is not sustained engagement between the two parts of the sugya. The Amoraic discussion of thieves now seems to be about judging whether this is a context of coercion or volition,

Consent 223 with the criterion of fear apparently obviating what appears to be evidence of volition. The unexplained distinction between different kinds of captors now looks like it should be understood as centering the question of whether or not she would acquiesce.36 The assumption is that if she did eventually acquiesce, this would no longer be a case of coercion. Yet, if Rava’s position was decisive, it wouldn’t matter if she eventually displayed volition. That is, if this began as coercion it would remain coercion. The organization of the sugya belies a redactional hand that is sympathetic to Avuha deShmuel’s anxiety that she might acquiesce, which is no surprise considering that the work of redaction created this concern about volition in the case of coercion in the first place. To conclude, when Ketubot 51b frames the discussion of captives in a larger discussion about coercion turned consent, it raises the possibility that illicit sex that began as coercion and later became volitional no longer counts as coercion. The woman would be forbidden to her husband. Yet by reconstructing the sugya, we can ascertain that this interpretation of coercion turned volition had never appeared in earlier discussions of this complex case. The only suggestion that a woman might actually be forbidden in a case that began as coercion is R. Yoḥanan’s initial assumption in the anecdote in Yerushalmi Sotah 4:4, but the whole point of that passage is to dispel his assumption in service of the law that what began as coercion remains coercion, and any presence of desire is subsumed under the rubric of coercion. Bavli Parallel: ‫איכא פרוצות איכא נמי צנועות‬ In order to understand fully what is at stake for the rabbis in the question of coercion and consent, we can look to another sugya much earlier in the same tractate. The sugya in Ketubot 51b is not the only example where the anonymous narrative voice of a Bavli sugya presents concerns about the state of mind of a sexually coerced woman. In Ketubot 3b, a baraita discusses the possibility of shifting a virgin’s wedding day because of danger, and Rabbah explains that this refers to a decree that required virgins to sexually submit to the local ruler (hegemon) on their wedding night.37 An anonymous interlocutor challenges Rabbah on the grounds that rape should be categorized as “duress” and not “danger”.38 In response, the sugya raises the category of pious women, tzenuot, who give over their lives to avoid the hegemon. The willingness of these women to die rather than be raped turns the situation into one of danger of life and death. The response is that the women should be taught that they are in fact permitted to their husbands in the case of coercion, and thus need not give over their lives to avoid this sex act. This leads to the introduction of a contrasting category of women – perutzot – who seem to be women who would willingly engage in the sex act, and thus be forbidden to their husbands. This brief exchange, entirely lacking in the Yerushalmi sugya on this baraita, is rather elliptical and quite telling. Related anonymously in Aramaic, and located in the midst of a lengthy and highly complex sugya at the opening of tractate Ketubot, these lines are suggestive of a post-Amoraic approach to the issue of defining the contours of consent and coercion in

224  Aviva Richman female sexuality. It represents the intersection, or clash, between theoretical law related to sexual coercion and social realities (at least imagined realities). The bedrock assumption of the sugya is that if a woman entered into a sex act under coercion, she is permitted to her husband. Theoretically, then, rape by the hegemon should be entirely non-problematic from a legal perspective; she should be permitted to her groom after the rape. Unlike most rabbinic legal material on rape, however, this discussion draws attention to the mind of the victim and the choices available to the female actor. First, it reports/ assumes that there are women who would be willing to die if faced with rape by the hegemon. In what sounds like a naïve response, the sugya suggests they could be educated out of this choice, if they were only informed of the law. This suggestion to teach them that “a case of coercion is permitted” represents the subjectivity of the law at its most pristine but also at its most paradoxical. In law that would treat her subjectivity as paramount, if she does not desire this sex act so much that she would be willing to die in order to avoid it, then she actually need not die. Once she knows that a case of coercion is legally fine, then she need not resist so much. This legal logic falls apart, however. On a technical level, this is because of a different category of women who are “promiscuous”, perutzot. In the case of perutzot, the permissibility in coercion does not apply, because these are women who desire, rather than resist, the sex act. These brides would participate in the sex act with the hegemon with full volition, and would thereby be forbidden to their grooms. In the realm of legal logic, this may not be about a particular subset of women, but about a larger legal problem. If women are taught that coercion is fine and they need not resist, then maybe they will not resist but will desire the sex act and it will no longer count as coercion. This sugya charts the legal problem of how the possibility of desire interferes with a legal categorization of coercion. This is similar to the anxiety raised in Ketubot 51b, and especially to the fears that appear to underline the gloss of Avuha deShmuel, that perhaps a woman facing a coerced sex act will come to desire it and thus be forbidden to her husband. Cultural Contexts: shame versus sin and the power and limits of consent Yet in Ketubot 51b, the concern with female desire goes a step further than the concern in Ketubot 3b; it is not about a particular subset of women who might subvert the law, but about a fear of desire that resides in all women and may surface in every context of coercion. That fear comes to justify Avuha deShmuel’s general statement that a raped woman is forbidden to her husband. This move can be better understood in light of the larger late antique context and shifting notions of sexual morality. The redactional reworking in Ketubot 51b that imposes an anxiety about female desire into a discussion of coercion and the three brief lines of anonymous discussion in Ketubot 3b chart a trajectory similar to what Kyle Harper articulates in his book about

Consent 225 sexuality in late antiquity, From Shame to Sin. Harper’s main argument is that Roman sexual morality was centered around social shame, while early Christian discourses of sexuality represent a shift to a concern with individual sin. In his view, the individual’s control over sexuality was in fact a critical arena in the development of the Christian moral agent.39 While much of this testing ground was in male territory, the revolution in a sexual mentality did not restrict itself to the male sexual agent. This becomes especially clear in a shifting discourse around female rape. Instead of the significance of an illicit sex act being measured in terms of violation and social shame, the woman’s interior state of mind became determinative. In his discussion of the virgins in the City of God, Augustine asserts that a woman who was raped but had no desire for the act does not lose her sexual honor. Harper explains: In defense of his religion, the bishop of Hippo… attacked Roman values at their core. He insisted, in short, that sin, rather than shame, provided the only real scale of sexual values …. Augustine was deliberately, and brashly, scraping against some of the most primitive strata of belief about a woman’s body. The lust of another, he defiantly claimed, could not “pollute” one’s purity. Intent was all that hung in the scales. A woman whose body was forced into sex “but who offered no consent with her will” kept her chastity intact.40 Augustine’s portrayal of rape emphasizes the innocence and honor of a woman who was sexually coerced and never willingly engaged in the sex act. It is similar to the trope of the redactors of Ketubot 3b who assert that a woman raped by the hegemon is not forbidden to her groom. The significance of a woman’s subjectivity takes a swerve, however, when Augustine describes Lucretia, where suddenly the “triumph” of the will, to use Harper’s terminology, becomes undermined by the possibility of desire. In the classical myth, Lucretia kills herself after she is raped in her husband’s absence, apparently motivated by a deep sense of shame. Harper relates how Augustine questions and retells this narrative: … Lucretia was such a wrenching case precisely because of the deep tension at the heart of her story: she was innocent in mind, but voluntarily accepted the penalty of death. It was this tension that Augustine unraveled with remorseless zeal. If she was innocent in her will, then she had killed an innocent person. ‘If she is cleared of adultery, then she becomes guilty of murder. … “If she was an adulteress, why is she praised? If she was sexually honorable, why did she have to be killed” … Augustine’s sneering prosecution of Lucretia was a cultural landmark. It represented the high-water mark of a distinctly volitional framework of sexual morality in the ancient church … ‘Perhaps she killed herself not because of her innocence but because of her guilty conscience? What if (and only she would have known), despite the fact that she was violently

226  Aviva Richman ravished, her libido was led astray and she consented, and she was so racked by her guilt she thought to expiate it by her death?’41 Augustine’s approach to sexual morality takes into account Lucretia’s state of mind, but he cannot rewrite the story. He inherits a story in which the victim chose to die, and if that death cannot be attributed to shame, the only remaining option is guilt. Augustine introduces Lucretia’s “libido” and internal “consent” into the story of her rape, as the only explanation of why she would deserve to die. Harper’s analysis of Augustine’s re-reading of Lucretia aligns strongly with the disruption of legal permissiveness in cases of sexual coercion due to anxiety about female desire that appears in the anonymous layers of both sugyot, and especially in Ketubot 51b. To use Harper’s terminology, the women willing to die in the face of rape in Ketubot 3b are operating in the “shame” mentality instead of the “sin” mentality. Even in a situation in which they carry no blame and have not “sinned” in any way, they would go to any means to avoid the shame of rape and its consequences. The Bavli tries to understand this willingness to die in terms of an approach focused on sin rather than shame, where the will becomes more important than physical defilement. From this perspective, the Bavli raises the theoretical possibility that the legal significance of rape depends entirely on the woman’s subjective state of mind; if an act was coerced, she bears no sin and suffers no legal penalties. Hence, the suggestion that brides should submit to rape by the hegemon and then marry their grooms. The reign of the will does not last long. It falls apart in the wake of anxiety about female desire. Because of the possibility that a woman might desire this coerced sex act, it can no longer be so simple for it to be categorized as coercion. Under the reign of the will, there is a theoretical legal case for which Jewish law is permissive regarding a case of coercion, but this seems to be unattainable or unreliable. Either she will decide to die due to shame or she will succumb under desire. The language of Ketubot 3b confines the concern about desire to a subset of women, perutzot, but this same anxiety re-emerges writ large throughout Ketubot 51b. It begins with the controlling explanatory gloss that frames, or really reframes, the entire sugya: “we are concerned that what began as rape might end as volitional”. This concern reflects the “disintegration” of the will, to use Harper’s terminology. In the wake of desire, the law cannot be assured of coercion, except in the most extreme case where witnesses can attest to “screaming from beginning to end”. There is a fragile line where the will reigns supreme and it is invaded on the one hand by the realm of shame, in which her will is entirely irrelevant, and on the other hand by the realm of desire, in which her will succumbs or is deemed disqualifying. Conclusions We have traced rabbinic sources that deal with the legal significance of a [theorized] woman’s desire in sexual coercion. Yerushalmi Sotah 4:4 raises anxiety around the inevitability of female pleasure in sexual coercion and

Consent 227 subsequently dismisses the legal relevance of this concern, apparently because her intent to avoid sin overwhelms the bodily experience of pleasure. Ketubot 51b, on the other hand, particularly in late anonymous strata, shows a sustained concern with the legal significance of a woman’s volitional participation in what began as coercion. These sugyot demonstrate how the case of the rape of women becomes a theoretical framework to think through the complexities of the relationship between will, desire, and bodily coercion. We saw that later redactional layers in Bavli sugyot inherited and reworked earlier material that was embedded in an approach centered on pollution and shame and reframe this material in a shift toward a more subjective approach. This crash of discourses yielded a surprising and disturbing “blame the victim” formulation where a woman coerced into an illicit sex act carries a level of guilt because of [the theoretical possibility of] her desire. This process of textual redaction leaves a mark on later halakhic reception, as scholars of Ashkenaz rule that a case of captivity could nonetheless prohibit a wife to her husband if it is plausible that “she may have been appeased”.42 Clearly, the process of textual redaction and harmonization reframed in the language of subjectivity does not fully suppress an approach rooted more in shame and pollution. Perhaps, from a devotional perspective, it is helpful to fully probe the critical and relativist dimensions so as to name and quantify stark, substantive tensions embedded in the disturbing assumption that a case of sexual coercion could become volitional. Moreover, it can be orienting from a devotional perspective to uncover textual fractures that point to prior versions of the sugya. It appears that in a number of permutations before the redacted sugya crystallized, it read rather differently. There was no confusion about the status of a case of sexual coercion – it was always treated as coercion even if there was some appearance of volition. It is only through the dialectical work that is the hallmark of the Bavli, to inherit and to come to terms with a rich inheritance of contrasting traditions, that we find the later invention of some of the most troubling aspects of the Bavli’s approach to sexual coercion and consent. The insights of a relativist critique may offer some pathways toward a more complex embrace by a devotional reader. Minimally, it becomes possible to appreciate the ways in which female agency emerges in the Bavli’s turn toward a more subjective approach to sexual coercion, and to bear witness to how and why female agency is suppressed as the counter model based on impurity and stigma continues to exert influence. In this vein, our text-critical and culturally sensitive reading of Bavli Ketubot 51b revealed a complex origin story of the “blame the victim” approach in sexual coercion in Talmud; the redactional hand injected blame as a way of mediating between the more subjective “consent-based” approach and the more objectifying “pollution”-based approach. Attending to these subtleties in the Talmud may also allow the sensitive reader to turn a keen eye toward other discourses of sexuality, including in contemporary culture, so as to more clearly identify the complex ways in which female subjectivity is both honored and denied.

228  Aviva Richman Notes 1 Ishay Rosen-Zvi, Demonic Desires (Philadelphia: University of Pennsylvania Press, 2011), 102–119. 2 Ayelet Libson, Radical Subjectivity: Law and Self-Knowledge in the Talmud (Cambridge: Cambridge University Press, 2018). 3 See chapters 3–4 in Kyle Harper, From Shame to Sin (Boston: Harvard University Press, 2016). I will discuss his arguments more at length below. 4 In all of his discussions of individual sugyot, he begins with a list of difficulties. See Meqorot U-mesorot (Jerusalem: Magnes, 1968–2003). 5 Barry Wimpfheimer, Narrating the Law (Philadelphia: University of Pennsylvania Press, 2011), 4–5. 6 A recent collection of essays demonstrates this method of drawing on critical methods to arrive at reconstructed sugyot and religious meaning, rather than deconstruction alone. See Jason Rogoff and Joshua Kulp, Reconstructing the Talmud (New York: Mechon Hadar, 2014). 7 These are two verbs that Wimpfheimer uses in his discussion of the redaction of Bava Batra 22a. See Wimpfheimer, Narrating the Law, 123. 8 This compound statement is likely an example of an Amoraic ruling with an appended later explanation. I will discuss the relevance of this in a later section. 9 Specifically, the clause: ‫ולנערה לא תעשה דבר אין לנערה חטא מות‬ “but you shall do nothing to the girl. The girl did not incur the death penalty.” 10 This last tradition seems to originate in Nidd. 52a, in a sugya on the topic of refusal. I will discuss these sources and the implications of these stylistic differences in apparent Tannaitic material at greater length below. 11 Perhaps because Rava’s permissive stance is seen as limited to coercion turned consent in a single event and does not apply to an extended period of time as in the case of these captives. See Rashi s.v. ‫וסופה ;תחלתה באונס‬ 12 Saul Lieberman, The Tosefta: The Order of Nashim (New York: Jewish Theological Seminary of America, 1967), 66–67. I will discuss variants in this tradition below. 13 I will discuss more of the historical context below. 14 See Hanokh Albeck, Shisha Sidre Mishnah Seder Nashim (Jerusalem: Mosad Bialik, 1954), 369: ‫ עי' שמואל‬.‫ אשת ישראל שזינתה אפילו באונס אסורה לבעלה‬,)'‫ שלפי ההלכה העתיקה ('בראשונה‬,‫אמנם נראה‬ ‫וכבר למדו מזה הקראים שזנות באונס גם כן אוסרת‬...‫ג שלא בא דוד אל פילגשיו שנאנסו על ידי אבשלום‬,'‫ב כ‬ ,'‫ 'טמאה אני לך‬,‫ שבלהה נאנסה מראובן ואמרה ליעקב‬,‫ט‬-‫ ג‬,‫ובאמת מסופר בס' היובלות ל'ג‬...‫האשה על בעלה‬ ‫ שנערה המאורסה שנאנסה יוצאת‬,‫ כו‬,‫ וכן מפורש בתרגום המיוחס ליונתן דברים כ'ב‬.‫ולא קרב יעקב אליה לעולם‬ ...‫ שלא נתפשה בשעה שעברה עבירה‬,‫ והכתוב והיא לא נתפשה יתפרש כפשוטו‬.‫מבעלה בגט‬ 15 See Mordechai A. Friedman, “Ha-maḥzir gerushato ni-she-nisait ve-tumeit”, in Saul Lieberman Memorial Volume. Edited by Shamma Friedman. (New York and Jerusalem: Jewish Theological Seminary of America, 1993). 16 While there is debate about when the authority of the Mishnah became pervasively accepted by later sages, it is not common for a statement of an Amora to wholesale contradict a mishnah. Avuha deShmuel, as a very early Amora, sometimes reflects stances that were more marginal. For extensive discussion of the authority of the Mishnah among Amoraic sages, see Jacob N. Epstein Mevo lenusaḥ ha-Mishnah (Jerusalem: Magnes Press, 1963). 17 M. Maksh. 1:1 ‫כל משקה שתחלתו לרצון אף על פי שאין סופו לרצון או שסופו לרצון אף על פי שאין תחלתו לרצון הרי זה בכי יותן‬ :‫משקין טמאים מטמאין לרצון ושלא לרצון‬

Consent 229 Any liquid that initially [wetted] in accord with one’s will, even though ultimately it was not one’s will, or that ultimately was one’s will even though initially it was not one’s will, behold this is considered [a case of] “when [liquid] is placed” (meaning, it counts as wetted and thus susceptible to impurity). 18 It is possible that this line in the mishnah and the conceptual relevance of will in M. Maksh. is a later framing. See Mira Balberg, Purity, Body and Self in Early Rabbinic Literature (Berkeley: University of California, 2014), 94. 19 See Sifrei Zuta 15 ‫ שתהא שגגה מתחלה ועד סוף לא בזמן שתחלתו שוגג‬,‫ בשגגה‬.‫ פרט לאנוס‬,‫ בשגגה‬.‫ פרט למזיד‬,‫בשגגה‬ ‫וסופו מזיד תחלתו שוגג וסופו אנוס תחלתו מזיד וסופו שוגג תחלתו מזיד וסופו אנוס תחלתו אנוס וסופו שוגג‬ ‫תחלתו אנוס וסופו מזיד‬ ‫בית שמאי אומר נידון על השגגה ואחר כך נידון על הזדון ועל האונס ובית הלל אומר אם אין שגגה מתחלה עד‬ :‫סוף הרי זה פטור‬ 20 M. Sotah 4:4 ‫אשת כהן שותה ומותרת לבעלה‬ 1 Leiden, copied from Maagarim website. 2 22 The pronouns make this case ambiguous – it is not clear whether a person is dipping their own finger in honey or if someone else is forcing honey into their mouth. The Bavli parallel in Niddah 45a has a dimension of force in this analogy – there, a baby’s hand is being forcibly dipped in honey. 23 Note that this formulation of two cases ...‫ויש לך‬...‫ יש לך‬exists only once in Tannaitic midrash (Sifrei Deut. Va-Ethanan 32). It is also not common in the Yerushalmi. 24 See, for example, the discussion in Froma Zeitlin, “Configurations of Rape in Greek Myth”, in Sylvana Tomaselli and Roy Porter (eds.) Rape: An Historical and Social Enquiry (Oxford: Blackwell Publishing, 1989), 122–151. 25 This formulation seems very much like a male conversation about sexuality that uses the paradigm of a coerced woman as a thought experiment. See the discussion below on Kyle Harper and Christian notions of sexuality. 26 In Appendix 1, I bring a full list of comparisons of baraitot. 27 See the commentary of the school of R. Jonah of Gerona, as quoted in Shitah Mekubetzet Ket. 51b: ‫ פירוש להכי אייתי לה הכא הך ברייתא כדי לשנויי יתורא דהיא אליבא‬.'‫תניא אידך והיא לא נתפסה וכו‬ .‫דאבוה דשמואל כנ"ל‬ 28 See, for example, Judith Hauptman, “Development of the Talmudic Sugya by Amoraic and Post-Amoraic Amplification of a Tannaitic Proto-Sugya”, HUCA 58 (1987), 227–250. 29 M. Ket. 4:8–9 ‫לא כתב לה אם תשתבאי אפרקינך ואותבינך לי לאינתו ובכהנת אהדרינך למדינתך חייב שהוא תנאי בית דין‬ ...‫נשבית חייב לפדותה ואם אמר הרי גיטה וכתובתה תפדה את עצמה אינו רשאי‬ If he did not write: If you are taken captive I will redeem you and return you to me as a wife, or with a wife of a priest I will return you to your province, he is obligated, since it is a stipulation of the court – if she is taken captive he is obligated to redeem her… T. Ket. 4:5 ‫ נשבית אין חייב לפדותה במה ד''א בשבוית מלכות אבל בשבוית ליסטות פודה‬:‫וינה‬ ‫ נשבית חייב לפדותה במה דבר' אמו' בשבוי מלכות אבל בשבוי ליסטות פודה‬:‫ערפורט‬

230  Aviva Richman Vienna: If she is taken captive he is not obligated to redeem her. In what case? The captives of a king, but the captives of bandits he redeems. Erfurt: If she is taken captive he is obligated to redeem her. In what case? Captives of a king, but captives of bandits he redeems. 30 There is some debate about the identification of Ben Netzer. He should likely be understood as a ruler in the line of Roman rulers in Palmyra, around the 3rd c. CE. See Encyclopedia Judaica vol. 12 (Jerusalem: Encyclopedia Judaica, 1972), 1318; Yeḥi‘am Sorek, “Mi heḥriv et Neharde‘a?”, Zion: A Quarterly for Research in Jewish History 37:1 (1972), 119; Isaiah Gafni, The Jews of Babylonia in the Talmudic Era [Hebrew] (Jerusalem: Mercaz Zalman Shazar, 1990), 263 n.104. 31 E.g., Saul Lieberman here in Tosefta Kifshutah. 32 Rashi has a developed interpretation of this sort, explaining why she might consent to sex in the case of Ben Netzer because she thinks he might marry her. 33 Rosen-Zvi, Demonic Desires, 201 n.36. 34 See Sokoloff, A Syriac Lexicon (Winona Lake, Ind.: Eisenbrauns, 2009), 672 on the root ‫ אתלבש‬and delirium due to demon’s grasp in Zacharais (ZM2 58:8). 35 Shaul Shaked, James Nathan Ford, Siam Bhayro. Aramaic Bowl Spells: Jewish Babylonian Aramaic Bowls (Leiden: Brill, 2013), 18. 36 See Ronit Irshai’s discussion of medieval and modern halakhic interpretations of these cases in Inus nashim nesuot: ‘iyun be-sifrut ha-halakha be-‘akvut she-elot u-teshuvot “mi-ma‘amakim” [Rape of Married Women in the Holocaust: Halakhic Analysis through Responsa mi-ma‘amakim], AJS Review 40:2 (2016), 1–22. 37 Ket. 3b ‫ בתולה הנשאת ליום הרביעי תיהרג נהגו לגמרי ניעקריה‬:‫מאי סכנה? אילימא דאמרי‬ .‫ תיבעל להגמון תחלה‬,‫ בתולה הנשאת ביום הרביעי‬:‫ דאמרי‬,‫אמר רבה‬ !‫האי סכנה? אונס הוא‬ .‫ דמסרן נפשייהו לקטלא ואתיין לידי סכנה‬,‫משום דאיכא צנועות‬ !‫ולידרוש להו דאונס שרי‬ ...‫ ואיכא נמי כהנות‬,‫איכא פרוצות‬ 38 This challenge seems to be based on the fact that the very next case in the baraita is introduced as ‫אונס‬. 39 Harper, From Shame to Sin, 82–83. 40 Ibid, 172. 41 Ibid, 173–174. 42 Rashi Ket. 26b s.v. asurah le’ba-alah and Tosafot there: …‫…היינו אפילו לבעלה ישראל דחיישינן שמא נתרצת כדי למצא חן שלא יהרגנה‬ This position is brought in Rema, Even Ha-Ezer 7:11. For a discussion of these and later halakhic sources, see Ronit Irshai, “Rape of Married Women”. 43 Vatican 32. 44 Ket. 51b St. Petersburg 45 Vat 130 46 Vat 130 47 Munich 95 48 Vat 110

Consent 231

Appendix 1 Table A.8.1  Ket. 51b (VAT 130) Part I A. Avuha deShmuel said: 1. A woman who was raped is forbidden to her husband – 2. we are concerned that perhaps it began as coercion but ended as volitional.

'‫אמ' אבוה דשמו‬ ‫אשת איש שנאנסה אסורה לבעלה‬ ‫חיישינן שמא תחילתה באונס וסופה‬ ‫ברצון‬

‫איתיביה רב לאבוה דשמו’ אם תשתבאי‬ B1. Rav posed a challenge to Avuha deShmuel: ‫אפרוקינך ואותבינך לי לאינתו‬ If you will be taken captive I will redeem you and bring ‫אישתיק‬ you back to me as a wife. ‫קרי רב עליה שרים עצרו במילים וכף‬ B2. He was silent. ‫ישימו לפיהם‬ B3. Rav said about him: The princes refrained ‫מאי הוה ליה למימר בשבוייה הקלו‬ from talking, and laid their hand on their mouth. (Job 29:9) B4. What should he have said? They were lenient regarding a captive. C. For Avuha deShmuel, what is the case of coercion that the Torah permits? For example, where witnesses said that she screamed from beginning to end. D. This differs from Rava, as Rava said: 1. Any case that began as coercion and ended as volitional, even if she says: “Let him be!” that if he had not attacked her she would have hired him, she is still permitted. 2. For what reason? Passion has enveloped her. E1. It is taught in accord with Rava: a. “And she was not seized” she is forbidden [to her husband, as a sotah]. Thus if she was coerced she is permitted. c. And there is another case that is permitted even though she was not coerced. d. Which is that? e. Anyone where it began as coercion but ended as volitional. E2. An alternate teaching: a. “And she was not seized” she is forbidden. Thus if she was coerced she is permitted.

‫ולאבוה דשמו' אונס דשרייה רחמ' היכי‬ ‫משכחת לה‬ ‫כגון דאיכא עדים דקא צווחא מתחי' ועד‬ ‫סוף‬ ‫פליגא דרבא דא' רבא כל שתחילתו‬ ‫באונס ובסוף היא אומרת הניחו לי‬ ‫שאילמלא הוא ניזקק לה היא שוכרתו‬ ‫מותרת‬ ‫מאי טעמא יצר אלבשה‬ ‫תניא כוותיה דרבא והיא לא נתפשה‬ ‫אסורה‬ ‫הא נתפשה מותרת‬ ‫ויש לך אחרת שאע"פ שלא נתפשה‬ ‫מותרת‬ ‫ואיזו זו‬ ‫זו שתחילתה באונס וסופה ברצון‬

‫תניא אידך‬ ‫היא לא נתפשה‬ ]‫(מות')[אסורה‬ (Continued)

232  Aviva Richman Table A.8.1  (Continued) c. And there is another case that is forbidden even though she was coerced. d. Which is that? e. The wife of a Kohen.

‫ויש לך אחרת שאע“פ שנתפשה אסורה‬ ‫ואיזו זו‬ ‫אשת כהן‬

‘‫אמ‘ רב יהודה אמ‘ שמואל משום ר‬ E3. Rav said Shmuel said in the name of Rabbi ‘‫ישמ‬ Yishmael: ‫והיא לא נתפשה אסורה‬ a. “And she was not seized” she is forbidden. ‫הא נתפשה מותרת‬ Thus if she was coerced she is permitted. ‫ויש לך אחרת שאע“פ שלא נתפשה‬ c. And there is another case in which she is permitted ‫מותרת‬ even though she was not coerced. ‫ואיזו זו‬ d. Which is that? ‫זו שקידושיה קידושי טעות שאפילו בנה‬ e. A case of a failed betrothal [Rashi – the kiddushin were conditional and the condition was not fulfilled], ‫מורכב על כתיפה ממאנת והולכת לה‬ ‫בנה מורכב על כתיפה ממאנת‬ where even if her son is riding on her shoulder she ‫והולכת לה‬ may freely opt out [and marry anyone she wishes – R. Hananel] Part II F. Rav Yehudah said in the name of Shmuel: These women whom thieves abduct are permitted to their husbands. The sages said to Rav Yehudah: But we see they supplied them with bread! Out of fear. But they supplied them with arrows! Out of fear. Certainly if they leave them and go [back] of their own accord they are forbidden. G. The sages taught: Captives of the king are like captives. Those kidnapped by bandits are not like captives. H. But the opposite was taught! There is no problem with king versus king – this is the case of the kingdom of Aḥashverosh, that is the case of the kingdom of Ben Netzer. There is no problem with bandits versus bandits – this is the case of Ben Netzer and that is the case of general bandits. Here he is called a bandit and here he is called a king? With respect to Aḥashverosh he is a bandit; with respect to thieves in general he is a king.

‫אמ‘ רב יהודה אמ‘ שמו‘ הני נשי‬ ‫דגנבי גנבי שריין לגברייהו‬ ‫אמרו ל‘ רבנן לרב יהודה והא חזינן‬ ‫דממטיא להו נחמא‬ ‫מחמת יראה‬ ‫והא קא ממטיין לה גירי‬ ‫מחמת יראה‬ ‫שבקינהו ודאי ואזלן מנפשייהו אסירן‬

‫תנו רבנן שבויי מלכות הרי הן‬ ‫כשבויין גנובי ליסטים אינן כשבויין‬ ‫והתניא איפכא‬ ‫מלכות אמלכות לא קשיא הא‬ ‫במלכות אחשורוש הא במלכות בן‬ ‫נצר‬ ‫ליסט‘ אליסטים לא קשיא הא בבן נצר‬ ‘‫הא בליסט‘ דעל‬ ‫הכא קרי ליה ליסטים והכא קרי ליה‬ ‫מלך‬ ‘‫גבי אחשור‘ ליסט‘ הוא גבי ליס‬ ‫דעלמ‘ מלך הוא‬

‫‪Appendix 2‬‬ ‫והיא לא נתפשה ‪Table A.8.2  Midrashic Traditions of‬‬ ‫ספרי במדבר‬

‫ירושלמי‬

‫‪Ket. 51b b3, bYev100b‬‬

‫‪Ket. 51b b145‬‬

‫‪Ket. 51b b246‬‬

‫‪bYev 56b47‬‬

‫‪bSot 2b, 31b48‬‬

‫"והיא לא‬ ‫נתפשה‪".‬‬

‫והיא לא‬ ‫נתפשה‬ ‫‬

‫והיא לא‬ ‫נתפשה‬ ‫אסורה‬

‫והיא לא‬ ‫תפשה‬ ‫אסורה‬

‫היא לא‬ ‫נתפשה‬ ‫(מות')[אסורה]‬

‫והיא לא‬ ‫נתפסה‬

‫והיא לא‬ ‫נתפשה‬ ‫אסו'‬

‫הא נתפשה‬ ‫מותרת‬

‫הא נתפשה‬ ‫מותרת‬

‫הא נתפשה‬ ‫מותרת‬

‫להוציא את‬ ‫האנוסה‪.‬‬

‫‪Consent 233‬‬

‫בין ביש' ובין‬ ‫בכהונה‪.‬‬ ‫אמרת‪ .‬אם‬ ‫המטמאה‬ ‫טומאה קלה‬ ‫{גרושה‬ ‫"אחרי אשר‬ ‫הוטמאה"}‬ ‫עשה בה‬ ‫אונס כרצון‬ ‫בכהונה‪.‬‬ ‫סוטה חמורה‬ ‫דין הוא‬ ‫שנעשה‬ ‫אונס כרצון‬ ‫‪43‬‬ ‫בכהונה‪.‬‬

‫ויש לך‬ ‫תפוסה ביש'‬ ‫והיא אסורה‬ ‫ואי זו זו זו‬ ‫שתחילתה‬ ‫ברצון וסופה‬ ‫באונס‬ ‫ויש לך‬ ‫שאינה‬ ‫תפושה ביש'‬ ‫והיא מותרת‬ ‫ואי זו זו‬ ‫זו שתחילתה‬ ‫באונס וסופה‬ ‫ברצון‪.‬‬

‫ויש לך אחרת‬ ‫שאע"פ שלא‬ ‫נתפשה מותרת‬ ‫ואי זוזו‬

‫זו שקידושיה‬ ‫קידושי טעות‬ ‫שאפי' בנה‬ ‫מורכב לה על‬ ‫כת[י]פה‬ ‫ממאנת והולכת‬ ‫‪44‬‬ ‫לה‬

‫ויש לך‬ ‫אחרת‬ ‫שאע"פ‬ ‫שלא‬ ‫נתפשה‬ ‫מותרת‬ ‫ואיזו זו‬ ‫זו‬ ‫שתחילתה‬ ‫באונס‬ ‫וסופה‬ ‫ברצון‬

‫הא נתפס'‬ ‫מותר‬ ‫ויש לך אחרת‬ ‫שאע"פ‬ ‫שנתפשה‬ ‫אסורה‬ ‫ואיזו זו‬ ‫אשת כהן‬

‫יש לך‬ ‫אחרת‬ ‫שאע"פ‬ ‫שנתפסה‬ ‫אסורה‬ ‫הוי או' זו‬ ‫אשת כהן‬

‫הא‬ ‫נתפשה‬ ‫מותרת‬ ‫‪ refers‬נתפשה ‪*note: here‬‬ ‫‪to being caught by‬‬ ‫‪witnesses‬‬

9

Feminism Relativism and Devotion, the Yarmulke, and the Ex-Bais Yaakov Girl Naomi Seidman

Editors’ note If previous chapters are suggestive regarding the complex relationship of women and gender—and what we today call feminism—to devotion and relativism, here the matter is taken up explicitly. This chapter pushes the topic of women and the Talmud into the modern era and a new setting: Eastern Europe and the early Bais Yaakov schools. Rather than being examined as a text or object of encounter, here the Talmud becomes a foil. The author associates relativism with an insistence on wide context and penetrating critique, and devotion with an Orthodox belief in the infallibility of biblical and rabbinic law. Where she sees a commonality in these opposed worldviews is around a reverence for Talmud that she wishes to challenge. Superior knowledge of Talmud, she contends, is equated with greatness both in the devotional setting of the Yeshiva and by the relativist standards of academic Jewish studies, and in both instances it has been and remains—hardly by coincidence—an overwhelmingly male preoccupation. What would it mean, she wonders, to imagine a yeshiva or Jewish studies academy that did not privilege Talmud? Both her research on Bais Yaakov’s early years and her personal experience of Bais Yaakov education led her to argue that such a possibility not only exists but has liberating potential. Seidman relies upon her expertise both in the original texts of Bais Yaakov’s deeply religious founder, Sarah Schenirer, and in the wider cultural context into which the schools were born. Her study also holds up the creative tension (i.e., productive disagreement) within what she defines as an educational revolution with conservative ends. Challenging our assumptions on multiple levels, the author thus reveals a devotional feminism that felt both at home and complete in the Five Books of Moses.

DOI: 10.4324/9781003364078-10

Feminism 235 This book centers on two sets of binaries: devotion and relativism, and text and context. The pairings point to the experiences of those who combine a university career (relativism, context) and religious practice (devotion, text); in this case, Orthodox Jewish observance. These conjunctions would lack interest if there were not also an implied tension between the terms, a tension deriving from the radically different mindsets associated with these spheres, of contextualization and thoroughgoing critique, on the one hand, and unquestioning embrace of the text as given to Moses from Sinai, on the other. How do Orthodox Jewish scholars navigate the pushes and pulls of these competing worlds and communities of interpretation? What happens to a practitioner steeped in the values of the traditionally conceived text who ignores widespread recommendations to avoid “secular” Jewish Studies courses when first exposed to its human contexts and ideological critiques? What textual practices or affective stances are challenged by critical attention to their political or cultural contexts? Do Orthodox Jewish scholars simply live in two different worlds, in which these stances remain bifurcated and discrete, as if they were Sabbath and weekday clothing? But such a way of formulating the question surely will not do: fundamental to the project of exploring “Relativism and Devotion” is to challenge these too-easy dichotomies of religious community/secular academy; embrace/ critique; text/context. That Jewish Studies is seeing an increasing (and increasingly visible) number of Orthodox scholars is surely a sign that either the academic threat to Orthodox beliefs and practices is overblown or that bifurcation is easier to pull off than worried parents and rabbis imagined. Devotion, it would seem, can outlive critique, and perhaps even be enriched by critical context. Deena Aranoff, who navigated the turn from a Modern Orthodox day school to a degree in Jewish History from Columbia without abandoning Orthodoxy, has made just such an argument, comparing the contextualization of a tradition that has been understood as unchanging to the ways one comes to love a person in all her transformations over time.1 Contextualization, as the non-suspended temporal dimension of tradition, opens new pathways and objects for this fascination and love. So, too, does devotion—and, one might assume, the mastery that emerges from unceasing devotion over time—contribute energy, intense affect, and embodied experience to the work of academic research. Moreover, the juxtaposition of a scholarly career and a life devoted to Orthodox practice also creates a third space, a hybrid contact zone between academic and devotional social spaces and intellectual spheres, giving rise to both new insights and new cultural lifeforms. As I understand it, this special issue aims explicitly at this third space. The Yeshiva Bokher and the Talmud Find Their Place in the Academy What I want to argue here is that there is a distinctly gendered dimension to who is most able to occupy this third space. Furthermore, this gendered aspect reflects the way that, despite ideas about women’s liberation through

236  Naomi Seidman secular education on the one hand, or about the empowering possibilities of female devotion and textual knowledge on the other, women’s voices and experiences have had little say in the construction of what “counts” most in both traditional and academic Jewish studies. Put simply, the possibilities, overlaps, and tensions between relativism and devotion, between text and context are not the same for women as they are for men. The juxtaposition of devotion and relativism, academic culture and religious observance is not only characterized, I would argue, by an obvious cultural and ideological tension. It is also eased by a not-always-articulated set of shared assumptions and cultural continuities. The “secular” academy that Orthodox educators long warned their college-bound students against is not the academy we presently inhabit, in this era of post-secularism and multiculturalism. Far from constituting an obstacle to critical research or career advancement, Orthodox practice may work in favor of white Jewish college students and academics, according them the status of visible minorities withheld from less visibly Jewish Jews—leaving aside for the moment the question of how Jews of color and non-Ashkenazic Jews are treated in the academy, along with the still unsettled and charged issue of the racial character of Ashkenazic Jews. In the progressive atmosphere that reigns in most of the humanities, the yarmulke, on the head of an Orthodox man, might well function as symbolic capital.2 To be fair, this is not inevitable: yarmulkes, and the Orthodoxy they signify, might also be taken to signify a narrow-minded religiosity, or a commitment to Zionism, with all the baggage that association brings. Nevertheless, on the head of a conservatively dressed man (as opposed to a Jewish woman from leftward on the religious spectrum), the yarmulke signifies not only Jewish difference but also—rightly or wrongly—textual mastery of a certain type. Devotion as an inward spiritual or intellectual stance—rather than an outward performance of religious affiliation—is also no longer as foreign from academic sensibilities as it once was. In literary studies, Rita Felski has been captaining a postcritical turn, away from critique, the hermeneutics of suspicion, and the “interrogation” of texts to what might easily be called devotion. In describing the alternative to endlessly suspicious readings of literature, Felski asks, “Why—even as we extol multiplicity, difference, hybridity—is the affect range of criticism so limited? Why are we so hyperarticulate about our adversaries and so excruciatingly tongue-tied about our loves?”3 In this new atmosphere, religious affect not only has become a legitimate object of study but also bears the promise of becoming a legitimate stance in the researcher. What I mean to say here then is that, without denying the difficulties of balancing academic and Orthodox practices (particularly in the first weeks of the fall semester!) or lingering misunderstandings and newly rediscovered prejudices, this may be a golden age for Orthodox Jews in the academy, in which the old assumptions about the dangers of secular Jewish Studies are evoked only to lend piquancy and drama to an already settled circumstance. Yet this (largely) happy marriage between the academy and the Orthodox scholar does leave some people out. The story I have been tracing so far

Feminism 237 describes mostly men who wear yarmulkes; Orthodox women, as less visible, and less understood to be masters of traditional Jewish sources, do not immediately lay claim to Jewish symbolic and cultural capital, or at least do so with greater difficulty. The increasing cultural value of a yarmulke (worn by a man) was mirrored by the increasing academic glamor of Talmud study, which I would date to Daniel Boyarin’s 1997 Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man.4 In my last years as a doctoral student at the University of California, Berkeley, in the early 1990s, Boyarin gave a job talk in which he argued for the legitimacy of women studying Talmud. The question I put to him at the end of the talk (which he mentioned in a footnote) was why women should want to study the Talmud. He was clearly taken aback, as if the value of such study was so obvious to him that he had never considered that anyone might feel differently. But I did and do. Along with all the things that distinguished the academic from the yeshiva study of Talmud—a critical stance, new theoretical frameworks, and a field at least theoretically open to women, non-Jews, and others typically excluded—there were also some broad overlaps. It could hardly be denied that the most knowledgeable and prepared students in the academic field of Talmud were generally those who had spent years in traditional Talmud study. Yeshiva conditions were certainly not reproduced in the academy, but nor were they entirely absent. In this way, too, continuities between devotion and relativism, yeshiva and university, are perhaps as evident as tensions. For women, what are the continuities between a system that excludes them and one that ostensibly welcomes them? The glamor of the Talmud in the past few decades has turned on its (ostensibly) heteroglossic/dialogic character, its rich troves of folklore, its countercultural character in the Christian West, a countercultural stance that finds ready resonance in queer studies and postcolonial studies. But the difficulty of mastering rabbinic sources and its association with (present-day) Orthodox men must also have played a part in securing the distinction, the scarcity value, of Talmud, in Bourdieu’s use of the term.5 The academic value of Talmud, at a high point for the past twenty years, is surely also bolstered by the traditional valuation of the Talmud as the pinnacle of the Jewish curriculum. This is not to say that the symbolic value of a yarmulke registers in the same way in all fields: In biblical studies, it may suggest an unwelcome piety about the divine or unified character of the Bible; medieval studies, in some of its historical formations, have been more welcoming of Orthodox men; and other fields pose their own areas of receptivity or avoidance in this regard. But the interest in the Talmud and receptivity to the yarmulke seem to be closely intertwined phenomena. We might note that a similar male orientation has in parallel ways structured the study of the much broader field of European history.6 In Bonnie Smith’s The Gender of History: Men, Women, and Historical Practice, she describes the ways that the practice and foci of professional history were shaped by the education of its early practitioners, who were by and large men who

238  Naomi Seidman had attended all-male boarding schools in their youth. There, they learned to separate their learning strictly from the sentiments, routines, and values of the domestic sphere, seen as the purview of women.7 As historians, in Smith’s words, the lives of these men had shifted from household matters and family routines to linguistic study in the classics and to issues of war and politics…Thus, it seems no accident that the premier historical writing of the nineteenth century would come to focus on finding objective truths in the words of state documents sequestered in closely guarded places like archives. Authentication, classification, dating, and other procedures had less to do with the feel of some universal past…than with a kind of linguistic ritual that took place behind closed doors, among like-minded and similarly trained men. The thick walls of the boarding schools…prepared the temperament for cloistered archival study of the word, the sentence, the text—for objectification of political documents and the creation of a modern discipline of history…[History] performed a simulation of highly problematic, even troubled youthful workings of gender.8 It takes little imagination to envision how by changing a word or phrase here or there, we might conjure up equally well the gendered scenes and nature of the all-male yeshiva world in which Talmud study became so valorized, a world mimicked by the rise of Talmud as a field in the academy.9 The high status of the Talmud in both the academy and the Orthodox world, I would argue further, draws from a shared ideological structure: a meritocratic myth accompanied by a myth about the dialogic character of the Talmud and its study obscure the functioning of gender and class in establishing the social status of the Talmud, and in governing who gains access to its symbolic and cultural capital and how. Shaul Stampfer has subjected the myth of the poor but brilliant yeshiva boy who marries a rich man’s daughter to powerful deconstruction, arguing that the ḥeder system in which all East European Jewish boys were introduced to Talmud study was essentially a conservative tool to maintain Jewish class stratification, “even though the popular image was that the educational system was open and every Jewish child could become a Talmudic scholar”.10 The ḥeder instilled the value of talmudic study and demonstrated to “every Jewish child” how difficult it was to achieve mastery, but Torah scholarship—by which was meant the ability to study the Talmud on one’s own in a beit midrash after leaving the ḥeder—was limited to those few who possessed the means to hire an effective teacher. Stampfer summarizes: Jews in traditional East European Jewish society saw the study of Talmud as a means of intellectual mobility, and not just that. They believed that a poor but brilliant Talmud student could become the son-in-law of a rich merchant, and thus rise instantly to the top of society. This

Feminism 239 meant that the religious elite could be regarded as a meritocracy in which membership was based on achievement and not family… This was effective precisely because the reality was concealed.11 Something of this same ideological bait-and-switch might describe the contemporary academic study of the Talmud, with differences of gender, educational background, and religious affiliation masked by the meritocratic myth of the neutral and welcoming space of the secular academy. The work done by social exclusion, as in the traditional yeshivah, is now displaced to the curriculum itself, which retains or even increases its traditional status once the door is opened to all comers. Of course, in the academic study of the Talmud, as opposed to its “learning” in the yeshiva, women and feminism are part of the discussion, both around the seminar table and in the scholarship on rabbinic literature. The feminist critique of the dense intersection between ideal Jewish masculinity and Talmud study is addressed, that is, not only through new practices in which women and non-Jews are welcome participants. The feminist challenge is also incorporated into the New Talmud Studies: Unheroic Conduct, after all, claimed a feminist stance in regard to rabbinic culture. But feminist voices in that inaugural volume were primarily welcome under two conditions: that they spoke as observant women—Bertha Pappenheim, Glückel of Hameln, and Reyna Basya were Boyarin’s named exemplars—and that they did not question the supreme status of Talmud study even as they objected to their exclusion from it; this very objection reaffirmed the supreme status of the Talmud.12 Reyna Basya’s feminist challenge, which Boyarin praises and which might stand in here for the new generation of women Talmudists, was directed toward making space for the participation of women in rabbinic text study, her most profound desire. Feminist critique outside this system of values had and has no place in a discourse that views Talmud as the touchstone of Jewish countercultural approaches, in gender as in other cultural spheres. What might be called secular-feminist critique, Boyarin makes clear, is tainted by its association with the European colonial mission to the Jews, a mission that justified itself by “the imputed barbarity of the treatment of women within the culture under attack”.13 In an environment that prizes and guards Jewish differences, feminist challenges that share the values of traditional culture—Talmud study above all—and that come, ideally, dressed in the garb of rabbinic argumentation, are most likely to find a hearing. In the beautifully rough-and-tumble discursive universe of the reconceived beit midrash, everything, everything is open to question, with one exception: the ultimate (Jewish) value of traditional, postcolonial, even queer Talmud learning. Left intact within the admittedly radical academic developments outlined here is the assumption that the Talmud remains if not the most important and interesting field of play, then at least one of the main ones that Jewish culture has to offer.

240  Naomi Seidman Torah Without Talmud: The Radicalism of Bais Yaakov But there is a position within Orthodoxy that challenges this set of assumptions from a perhaps unexpected direction. In recent years, I have devoted myself, as it were, to the translation of the writings of Sarah Schenirer and the study of the movement she founded in interwar Poland, Bais Yaakov. Bais Yaakov is credited with saving Orthodoxy at a moment of great peril by bringing disaffected girls and young women back to the fold. Among the obstacles that delayed the founding of an organized school system was the well-known rabbinic prohibition (or recommendation), attributed to Rabbi Eliezer, against a father teaching his daughter Torah. Bais Yaakov received rabbinic approbation, although only some years after its founding, on the principle of “horaʼat shaʻah”, which is to say, as an unfortunately necessary response to the crisis of assimilation.14 Rabbinic permission was granted on the condition that the Bais Yaakov curriculum exclude the study of rabbinic texts. This limitation continues to shape the Bais Yaakov curriculum (which was, full disclosure, the core of my own Jewish education) until the present day. Among the things that interested me about the founder of Bais Yaakov, Sarah Schenirer, was the way she turned her situation to cultural advantage. She entered into the political field of Krakow Orthodoxy at a moment that the community and its leadership had reached a kind of stalemate. In 1903, an international rabbinical conference had taken place where participants raised the problem of young women’s defections from Orthodoxy. The rabbis present were ultimately unable to address the issue, much less adequately resolve it, even as it was clear to all that educating girls was the solution. But almost none of the political obstacles that stood in the way of rabbis who sought to reform the situation applied to women, who had little cultural power or status to wield or, for that matter, to lose. For Sarah Schenirer, a divorced working woman, this was even truer than for women who were linked through their husbands with Hasidic courts or other aspects of the existing Orthodox power structure. On the narrower question of girls’ education, marginality held yet another benefit for Schenirer: Schenirer acquired the blessing of the Belzer Rebbe and the support of others in the Orthodox community without entering into the halakhic argumentation that had so vexed rabbis discussing this issue. It was female participation in halakhic (and particularly talmudic) argument that aroused the strongest reproach among Orthodox decisors. Avoiding halakhic argument might have been one reason for the vague phrasing of the note seeking the Belzer Rebbe’s blessing: her brother’s note, according to Schenirer’s memoir, stated only that “she wants to lead Jewish girls along the Jewish path”, thus skirting mention of women’s Torah study (and maximizing the flexibility of the blessing she received). It is striking, in fact, that Sarah Schenirer, who spoke in many different forums and for decades on the issue of women’s Torah study, wrote about Bais Yaakov without once,

Feminism 241 to my knowledge, citing Rabbi Eliezer; by contrast, the various rabbis who discussed the issue in 1903 and afterward, including those whose writings appeared in Bais Yaakov publications, rarely failed to mention his prohibition even if they found ways to limit its application.15 Here, for instance, is a passage from her mission statement for the Bais Yaakov movement, published in the first issue of the Bais Yaakov Journal in 1923, six years after she opened her first school, and republished in her Collected Writings. What comprises the power of the Torah, for which we have sacrificed so much throughout the ages? Understand this well! Our Torah is not a religion like other religions, it’s not an institution for worshipping God that brings together adherents on a few special holidays, or a guidebook for a few special worshippers. Our Torah is not a system of laws that derives from the human mind. It is a holy fire from the One God that gives sustenance to the Jewish soul, arouses the Jewish heart and in each moment of life reminds each soul to remain faithful to God’s law and to be totally bound up with it. The Torah is directed at everyone: to the individual and the collective, priest and Israelite, educated and simple, judge or worker, prophet and ordinary man. The commandments must be fulfilled in the home and in the field, in private life as in society, in the Temple as on the street, in a business as in a workshop. It opens one’s eyes to see the divine power in nature, recognize Providence in the workings of history. It teaches us to understand our place among the nations. The Torah demands from us that we “impress these words upon your very heart”—and that we should spread its ideals in the world, “and teach them to your children—reciting them when you stay at home and when you are away”, whether we are asleep or awake from sleep, it must be the one straight line that we walk as we lead our lives, the crown on our heads, the watchword of our domestic and public lives—“on the doorposts of your house and on your gates” [Deut. 11: 18–21]. Understand, Jewish women and girls! For thousands of years the Jewish people lived with the Torah. Millions of great men and women drew all their emotions, thoughts and values about everything in life from its holy fire. The national treasure that we labored for from time eternal has always been: the study of Torah.16 Some aspects of Schenirer’s manifesto come into view when compared to the long article by Yehudah Leib Orlean that appeared beside it on the facing page of the first issue of the Bais Yaakov Journal. Orlean acknowledged the challenge that modern feminism represented to Orthodoxy and Jewish law, and laid out the argument that the Torah is based not on discrimination against women but on the wise recognition of the complementary natures of man and woman; feminism, Orlean argues, mistakes the nature of happiness

242  Naomi Seidman in its focus on the individual, while traditional Judaism correctly views family and community as more important than the individual. The notion that Orthodox women obey men, rather than the Torah, is simply wrong. As Orlean writes, a non-Jew walking into a Jewish home would be surprised to find “a close and harmonious relationship between the sexes”, which reflects the absolute deference of both husband and wife to the Torah. Orthodoxy, moreover, is more “natural” for a woman than heresy, given her inborn modesty and religious gifts.17 Orlean was here helping to create an Eastern European variant of the “chivalrous” bourgeois discourse developed in the nineteenth century by the German rabbi and founder of Neo-Orthodoxy Samson Raphael Hirsch and his followers, which recast traditional Jewish perspectives and rabbinic sources on gender and gender segregation in terms designed to appeal to educated young women as well as men.18 This bourgeois discourse typically read menstrual laws as a mechanism for marital harmony, rather than (as feminists of the period sometimes saw it) as an anachronistic survival of an outmoded and gynophobic purity system.19 In Orlean’s article and in many other articles, the Bais Yaakov Journal mobilized the discourse developing among the Eastern European followers of Samson Raphael Hirsch (and still mobilized in contemporary Orthodoxy) to woo Jewish women into accepting Orthodoxy by appealing to their desires for harmonious marriages and flattering their “higher spiritual natures”. But while Orlean rests his case on the harmony of the traditional Jewish home, this belied the more radical implications of Schenirer’s movement. The immediate goal of the Bais Yaakov Journal was to enlist girls and young women in the movement, a movement for unmarried girls, which went so far as to expect young women to delay marriage in order to devote themselves to teaching.20 The most distinctive practices of Bais Yaakov had little to do with gender complementarity, traditional family, or marital love. It is no surprise, then, that a second discourse about gender arose in the Bais Yaakov movement, one that spoke more directly to the experiences of participants in the movement, where the important relationships were among girls and young women, teachers and students united by their devotion to the Torah (a devotion traditionally assigned in this culture to the male sphere and indeed associated with the Talmud). Sarah Schenirer instituted an array of practices beyond Torah study “for its own sake” that had previously been limited to boys and men—conducting the daily afternoon and evening prayers, going to the graves of great rabbis, attending synagogue on Friday night, spending Sabbaths and holidays with members of the group rather than with family. In the Seminary, students prayed together three times a day, a practice obligatory for men but neither required nor (for the second and third prayers) typical among women; Schenirer also encouraged her students to pray in synagogue, emphasizing “the importance of tefillah betsibur” (prayer with a male quorum). While students generally went home or to relatives for the long Passover and Sukkoth holidays, they spent Rosh Hashanah and Yom Kippur together, observing the final prayer service in the Seminary, and getting so

Feminism 243 caught up in the singing and dancing that the break fast was sometimes long delayed. Judith Grunfeld-Rosenbaum describes how Schenirer brought new holidays, which had either not been observed or were limited to men, into the life of the Seminary. For instance, she transformed the kabbalistic practice of observing the eve of the New Moon as a fast day, called Yom Kippur Katan, into a day of pilgrimage, in which Schenirer, “followed by one hundred and twenty girls, would walk to the Rema’s Shul in the Cracow ghetto… Our tehillim [Book of Psalms] in hand, we assembled around the tombstones”.21 These practices depended neither on the “special nature” of women nor on marital harmony for their religious character; on the contrary, they assumed that the whole field of Jewish religious practice and culture was as open to females as to males’ exploration and appropriation. More strikingly, the rather exhaustive litany Sarah Schenirer produces in her manifesto for the importance of Torah for all Jews fails to mention gender, the primary category that distinguishes levels of Torah obligation in most discussions of the topic. While Orlean insists on gender as a lens for understanding the Torah, Schenirer does not, speaking in a more universal register of how the Torah “opens our eyes to see the divine power of creation”. Schenirer’s piety thus establishes a direct relationship between God and human beings—any human being. It is nature, and creation, that opens the way for this relationship: Schenirer’s diaries make it clear that she felt God’s presence most powerfully in the Polish mountains and forests, an attitude with both European-Romantic and Jewish-Hasidic roots. Love of nature also shaped the social experience of Bais Yaakov, in which girls spent the summer months in rustic accommodations, praying and learning Torah amidst the glories of nature, but outside the strictly segregated Orthodox urban sphere. Schenirer’s approach privileges the religious power of nature—as the outdoors—over the “natural” site of women’s religiosity, the “tent” or home. While Schenirer and Orlean were equally committed to Torah observance, it was Schenirer’s ostensibly “simple” ideas that opened the possibilities of female religious experience beyond the femininity and domesticity that the more “sophisticated” German neo-Orthodox discourse reserved for women. That Schenirer writes from outside the position assigned to women in the Talmud may have been strategic rather than merely a reflection of her circumstances. Schenirer’s “failure” to cite Rabbi Eliezer or other rabbinic sources on the topic would have been possible only for a woman. In avoiding these texts, Schenirer also avoided the unseemly spectacle of a woman quoting halakhic discussions in the Mishnah or Talmud, areas ruled out for women by those who take the view (as Bais Yaakov does) that Rabbi Eliezer’s prohibition refers to the “Oral Law”, or rabbinic literature. There can be no doubt that Schenirer knew these sources, even if she had not read them on a page of Talmud. Schenirer was remarkably well versed in classical Jewish sources (which, according to her memoir, she read in Yiddish versions); moreover, Eliezer’s dictum and similar texts appeared in press stories and circulated in everyday discourse whenever the topic of girls’ education came

244  Naomi Seidman up. But even if Schenirer was familiar with Eliezer’s opinion, as a woman she did not have to mention it, and, if she so wished, could carry along her way as if Rabbi Eliezer had never uttered it. In this way, Schenirer’s gender allowed her a kind of alibi, a strategic or principled ignorance of a rabbinic discourse that could only be damaging to her cause. Schenirer’s writings assume with profound and unswerving conviction that studying Torah is a supreme value for women as for all other Jews (she also believed that study must be accompanied by deed). This attitude may have been shared by some men, but even men who felt its force were compelled, as Schenirer was not, to wrestle with Rabbi Eliezer’s long shadow. In this way, she constructed a discourse around the inherent value of girls’ Torah study free from the misogyny, dismissal and sexual innuendo inherent in Rabbi Eliezer’s words. She also avoided the spectacle of a woman engaging in rabbinic argumentation, at least in print (her eulogists suggest that at times she was “compelled to act like a man” in arguing with parents). Bais Yaakov followed her lead, creating a world in which Torah study was configured without reference to the Talmud, but in which it was no less valuable for that. Schenirer’s Legacies and Roads Not Taken My own failure to fall in love with the Talmud, despite the glamor of rabbinics in the past few decades (perhaps for women above all), has been conditioned by this complex cultural dynamic. On one level, I was excluded from its study, and whatever cultural capital I accrued as a rather middling student in Bais Yaakov was richest in other sources. The Bible, read of course through traditional rabbinic interpretations, was at the core of the curriculum; Bais Yaakov girls learn passages of the Torah by heart, and read nearly all of it in depth, with Rashi if not other commentaries, over the course of their education. This was the core of my traditional Jewish education: I left Orthodoxy at eighteen, and have never been inclined to return to the sort of spaces in which the Talmud is most effectively absorbed. But I was also shaped by a culture that organized the status of Jewish texts differently than either the male Orthodox world or the academy today. I was raised in a girls’ culture that managed to carry on its Jewish intellectual life not only in conformity with Rabbi Eliezer (according to the views that see him as forbidding rabbinic study), but—more importantly—as if Rabbi Eliezer and his entire crowd did not exist. Whatever strategic or psychological impulses led Schenirer to pretend not to know what Rabbi Eliezer thought of her enterprise, she helped construct an alternative value system that shaped some part of my attitude to the Jewish library. Maybe my failure to fall in love with Talmud is just the result of a deficit in my Jewish education. But it was also imparted by my Jewish education that this was no deficit at all. Nor is my distance from rabbinic texts only a function of having left Orthodoxy, and the male-oriented hierarchy that granted the Talmud highest honors. My failure to desire a Talmud that

Feminism 245 had been kept from me by virtue of my female body stems equally from my rejection of Orthodoxy and my embrace of and devotion to one aspect of this world, Bais Yaakov. It reflects the continuing influence of a woman who lived a Jewish life of the mind that lacked for nothing. Perhaps it was Sarah Schenirer’s piety that kept her from chasing the rabbinic glories she was told were not for her, but I read her approach also as a kind of pride, a resistance to allowing the male viewpoint to define what counts as Torah, for those who devote themselves to its study and for those who are expected to watch longingly from afar. This game, by which exclusion and difficulty compound the appeal of the goal, is one that I too refuse to play. Bais Yaakov has become increasingly conservative in the post-Holocaust period. Sarah Schenirer’s recruitment of Orthodox men to help in her cause—through the sacrifice of fathers so that their daughters could learn Torah—has by now been replaced by a near-reversal of this relationship. According to Menachem Friedman, Bais Yaakov was instrumental in the postHolocaust construction of “the society of scholars”, an Orthodox society in which unprecedented numbers of men devote themselves to full-time Talmud study, with the family supported by breadwinning wives. (Friedman writes about Israel, but the same process has taken place on the North American scene as well.) This process already began in the 1930s, when Rabbi Abraham Isaiah Korelitz (the “Ḥazon Ish”, 1878–1953) founded a kollel (an institute for full-time Torah study, generally for married men) for young men who agreed to continue their learning after marriage. But making such a way of life possible required the willing participation of young women: In order to turn the vision of the “Ḥazon Ish” into reality, it was necessary to find graduates of the [Bais Yaakov] Teachers’ Seminaries with the appropriate motivation, and in this regard, Rabbi Abraham Joseph Wolf came to the rescue… Wolf set a mission before the graduates of his [Bnei Brak] seminary: To marry a yeshiva boy who intended to devote himself after marriage to studying in a kollel, and as surprising as it may seem, the girls enthusiastically accepted this idea.22 That this new social reality of the Haredi world owes much to Bais Yaakov is readily acknowledged: Speaking of the thousands of men studying in the yeshivas and kollels of Lakewood and Telz, one 1985 article in the nowdefunct Orthodox periodical The Jewish Observer noted that such devotion would be impossible “Without wives who share their dedication and are willing to forego many of life’s comforts to enable their husbands to learn Torah”. Ironically, the author then asserted: “These heroic young women are the products of the revolution begun by Sarah Schenirer”.23 Indeed, the “society of scholars” points to a critical distinction between Bais Yaakov culture in the interwar period and today. In the support by the earliest fathers to send their daughters to Schenirer’s school, the adoption by the Agudah of Bais Yaakov, and the devotion of some of the most creative

246  Naomi Seidman and interesting Agudah activists to the movement, Bais Yaakov rallied men to the cause of Torah study for girls. Aaron Sorasky relates a tale about Gerer Hasidim in the interwar period who, inspired by a speaker on behalf of the Bais Yaakov movement, relinquished money they had collected for a study hall for themselves in favor of establishing a Bais Yaakov school.24 Of course, Bais Yaakov continues to attract male support and employ male administrators, but the enthusiastic stories about Bais Yaakov in more recent decades rather praise the devoted support of Bais Yaakov graduates for their husbands’ Torah study, an altogether different kind of gender interaction around knowledge of Jewish tradition.25 My own defection from the Orthodox world is part of a much smaller wave than the one that rocked early-twentieth-century Eastern Europe. The latter was the wave of defections that led to the conditions of a scarcity of young women—many of whom gravitated to Sarah Schenirer’s circles—eager to marry an Orthodox man, much less a Hasid or one who wished to “sit and learn”. By the time I left the Orthodox world, those conditions had changed dramatically, with generations of girls and young women (most of them Bais Yaakov graduates) embracing the vision of strengthening Orthodox culture by supporting male Torah study. I did not leave Orthodoxy to improve conditions in the world, but historical research has taught me that defections such as my own—devastating as they are to Orthodox families and communities—can also be powerful forms of gender intervention, allowing women to recapture some of their power within the patriarchal conditions of Orthodox life. Only such circumstances—of a massive wave of female defections from Orthodoxy, and the ensuing desperation among Orthodox men—could foster the conditions that allowed for a woman to create a revolution within Orthodoxy. Sarah Schenirer found the support that she did because the rabbinic leadership had failed in its own efforts to address the crisis of female defection, and the rabbis were more than willing to take help where it was offered, even if it meant granting a woman greater autonomy and public visibility than they would otherwise have been comfortable allowing. As a former Bais Yaakov girl and a historian of interwar Poland, I take pride and interest in both those who left and those who, in staying behind, seized the opportunity afforded by the defection crisis to create a Judaism in which a woman might live a full intellectual and spiritual life devoted to Torah, understood as being everything, for everyone. Bais Yaakov is no model for my present intellectual life, and certainly not in its present turn toward veneration of a husband’s Torah study (which is to say, Talmud study) at the expense of women’s intellectual and spiritual experiences. But it does provide me a leverage point from which I can question, “from the inside”, as it were, the supreme value of the Talmud in the intellectual life of traditional Jews. Why opt for this, and not Schenirer’s vision, however it might be construed? Why are the writings of an Orthodox woman the subject of merely historical curiosity, while those of her male counterparts are treated as not only legitimate parts but supremely valuable

Feminism 247 parts of the academic curriculum, for intellectually curious women as well as men? Why is the narrative I have been tracing of mostly anthropological interest, along with those other studies of women’s piety that have recently gained prominence in religion departments?26 The curriculum Sarah Schenirer established—the Bible and rabbinic commentaries, supplemented by communal prayer, what could be called nature worship, and pilgrimage ritual—has virtually no academic afterlife, is associated with no cutting-edge theories, has no pedagogical legitimacy outside its own sphere, and attracts no glamor. And yet, it can hardly be denied that it constitutes a coherent expression of Orthodox intellectual experience, a rich example of women’s culture, and an alternative model of Jewish gender that from some perspectives is more radical than anything to be found in rabbinic writings. Some may object that it is not, for all its piety, entirely derived from the Jewish tradition—Schenirer was clearly influenced by the youth movements of her day, by European Romanticism, and by the radical pedagogical trends in the new Polish states. But such intercultural influences no doubt also shaped the Talmud itself, its methods of study, and its present recuperation in the post-secular, postmodern academy, whatever its status as the purest expression of Jewish intellectual life in its counterhegemonic dimension. By now, Talmud study has been adopted, in displaced fashion, as the supreme value among many (modern) Orthodox women as well, a value to which they are prepared to devote their entire lives. But it was not always so. This is the circumstance that produces an illuminating crack in the Jewish version of what Bonnie Smith calls “the thick walls of the boarding schools” that “prepared the [historian’s] temperament for cloistered archival study of the word”. It turns out, there were other schools, and other words, than the ones that have so powerfully shaped Jewish Studies today. Notes 1 D. Aranoff, “Judaism over Time”, unpublished paper. 2 Kippot on Jewish women are not (or not yet) accorded the same symbolic status, which rests on (insufficiently questioned) assumptions about Torah learning and Jewish authenticity for Orthodox men. 3 R. Felski, The Limits of Critique (Chicago: University of Chicago, 2015), 13. 4 D. Boyarin, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man (Berkeley: University of California, 1997). No doubt the earlier embrace of the Talmud and the focus on the dialogic character of rabbinic texts by the ethical philosopher Emmanuel Levinas also helped ensure its present academic status. 5 P. Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Cambridge, MA: Harvard University Press, 1984), 131. For Bourdieu, maintaining scarcity value in the liberal professions (particularly what he calls “tertiary teaching”) more generally involves a resistance to the feminization of these professions. 6 I owe this observation to Ethan Katz’s response to an earlier version of my essay at the workshop that laid the groundwork for this book. 7 Katz, response to my paper at the workshop. 8 B.G. Smith, Gender and History: Men, Women, and Historical Practice (Cambridge, MA: Harvard University Press, 1998), 81.

248  Naomi Seidman 9 For this parallel, I am again indebted to Katz. 10 S. Stampfer, “Heder Study, Knowledge of Torah, and the Maintenance of Social Stratification in Traditional East European Jewish Society”, in Families, Rabbis and Education: Traditional Jewish Society in Nineteenth-Century Eastern Europe (Oxford and Liverpool: Littman Library of Jewish Civilization, 2010), 165. 11 Stampfer, 165–66. 12 Boyarin is particularly insistent on naming Pappenheim as an Orthodox Jew, albeit a feminist who was highly critical of the patriarchal character of the Orthodoxy of her day. To deny Pappenheim this designation, as some scholars do, is to “surrender the field of Orthodoxy to the most socially conservative elements within Judaism”. See D. Boyarin, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man (Berkeley and Los Angeles: University of California, 1997), 317. 13 D. Boyarin, Unheroic Conduct, xvii–xviii. 14 Hora’at shaʻah, “the needs of the hour”, is often associated with a mishnaic citation of “It is time to act for the Lord, for they have violated your teachings” [Ps. 119: 126], which reads “hefeiru” not in the past tense (“they have violated”) but as an imperative—“Violate!” M. Ber. 9:5. The Talmudic discussion of this Mishnah applies this principle to four cases in which it is necessary to violate clear commandments in an especially urgent circumstance. Given the sweeping power of this principle, it is not surprising that there is much halakhic discussion of its continuing applicability. Nevertheless, it was frequently invoked at the beginning of the twentieth century to permit formal Jewish education for girls, including during the discussion of women’s education at the 1903 Rabbinic Conference in Krakow. The most famous application of this principle to justify women’s Torah study is in I.M. Hakohen Kagan [the “Ḥafetz Chayim”], Likutei halakhot: sotah 21 (New York, 1959); the circumstances of this endorsement are discussed in B. Brown, “On the Value of Torah Study for Women in the Hafets Hayim’s Writings (Heb), Diné Israel: Studies in Halakhah and Jewish Law 24 (2007), 79–118, and R. Manekin and C. (Bezalel) Manekin, “The Ḥafetz Ḥayyim’s Statement on Teaching Torah to Girls in Likutei Halakhot: Literary and Historical Context” at https://seforimblog.com/2020/05/the-hafetz-hayyims-statement-on-teachingtorah-to-girls-in-likutei-halakhot-literary-and-historical-context/. 15 I am citing here at length from my history of Bais Yaakov, Sarah Schenirer and the Bais Yaakov Movement: A Revolution in the Name of Tradition (Liverpool: Littman Library of Jewish Civilization, 2019), 35ff. 16 S. Schenirer, “The Goal of the Bais Yaakov Schools”, Bais Yaakov Journal 1 (1923), 5. 17 Y.L. Orlean, “The Woman Question’ (Yid.)”, Bais Yaakov Journal 1 (1923), 6. 18 Thus, Hirsch dedicated his 1837 philosophical work Horeb to “Israel’s thinking young men and young women, and spoke of women’s exemption from positive time-bound commandments as a function of their greater fervor “and more faithful enthusiasm for their God-serving calling”. Hirsch, Pentateuch, commentary on Lev. 23: 43. Hirsch’s discourse on women’s greater spirituality was tied to bourgeois domestic notions of mothers and housewives as “angels in the house”, a role less available to Eastern European Jewish women, who were far more likely to be economically active than their German counterparts. 19 On the development of this apologetic discourse on menstrual laws (known in German Jewish discourse as “family purity”) from earlier sources that were much more likely to speak of menstruation as repellant, see J. Steinberg, “From a ‘Pot of Filth’ to a ‘Hedge of Roses’ (and Back): Changing theorizations of Menstruation in Judaism”, Journal of Feminist Studies in Religion 13:2 (1997), 5–26. It is true that Niddah 3b suggests that one reason for the menstrual laws is to make women, after the enforced separation of their period and its aftermath, “as pleasing to her husband as on the day of marriage”. But the modern rewriting of this

Feminism 249 discourse highlights this explanation above all others, and expands it to produce an eternal mutual honeymoon for both husband and wife. 20 See B. (Epstein) Bender, “The Life of a Bais Yaakov Girl”, in D. Rubin (ed.), Daughters of Destiny: Women who Revolutionized Jewish Life and Torah Education (Brooklyn, NY; Mesorah Publications, 1988), 178. 21 J. Grunfeld-Rosenbaum, “Rebbetzin Grunfeld”, in Daughters of Destiny, 133. 22 M. Friedman, Ha’ishah ha’haredit (Jerusalem: Makhon Yerushalayim le'heker yisrael, 1988), 10–11. Samuel Heilman describes this process as also having taken place in haredi society in the United States, which in addition to constructing a quasi-traditional division of marital labor, “requires conformity to ever more conservative behavior”. See S. Heilman, Sliding to the Right: The Contest for the Future of American Orthodoxy (Berkeley: University of California Press, 2006), 83. 23 C.D. Keller, “Were It Not for Her...” Jewish Observer 18:5 (1985), 32. Cited in S. Bechhofer, Ongoing Constitution of Identity and Educational Mission of Bais Yaakov Schools: The Structuration of an Organizational Field as the Unfolding of Discursive Logics (unpublished Ph.D. dissertation, Northwestern University, 2004), 127. 24 A. Sorasky, Toldot haḥinukh hatorati betequfah haḥadasha (Bnai Brak: Weinstock, 1967), 429. 25 For an exploration of further changes in gender relations and family structure in the “society of scholars”, see N. Stadler, Yeshiva Fundamentalism: Piety, Gender, and Resistance in the Ultra-Orthodox World (New York: New York University Press, 2009), 132–34. 26 I am referring, of course, to the influential work of S. Mahmood, The Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton: Princeton University Press, 2005) and to those who follow her lead.

10 Postmodernism The Soft Radicalism of Rav ShaGaR David N. Myers

Editors’ note If the life and work of Sarah Schenirer casts feminism and its relationship to devotion and relativism in a new light, the case of Rav ShaGaR does much the same with respect to Postmodernism. Here the conflict between devotion and relativism is understood as between the deep, personal conviction of the truth of Judaism, and a worldview that recognizes multiple and equally valid truth claims. Rav ShaGaR was highly unusual because he sought to uphold both his commitment to Jewish faith and an insistent relativism. This reflected and corresponded to ShaGaR’s deep dive into both Torah learning and postmodernist thought. ShaGaR spent most of his adult life teaching at one Beit Midrash or another, and yet also took the time to read and engage with leading postmodernist thinkers like Derrida, Baudrillard, and Lacan. While he understood the apparent contradiction between the postmodernist critique and the world of faith, he believed that in that encounter emerged what Rebbi Nahman of Bratslav termed the halal panui, which ShaGaR saw as a generative force. The creative tension between Torah knowledge and what many deemed the most nihilistic of secular critical thought makes ShaGaR’s work the epitome of what we deem in the introduction as “productive disagreement”. Simultaneously, in his own eclecticism and great interest in postmodernism, ShaGaR can be seen as a model of expanding the canon of Torah knowledge. As the author holds up the tensions in ShaGaR’s thought, rather than seeking to resolve them, and brings considerable context to ShaGaR’s readings of both Jewish tradition and postmodern critique, by implication he pushes us to think more imaginatively about a Jewish canon without clear walls between the academy and the beit midrash.

DOI: 10.4324/9781003364078-11

Postmodernism 251 Rabbi Shimon Gershon Greenberg (1949–2007), known as Rav ShaGaR, was one of the most original Jewish religious thinkers of the past half century. ShaGaR founded the Siaḥ Yitzhaq Yeshiva, named after the principle of dialogue (siaḥ) and the iconoclastic Orthodox thinker Isaac Breuer, scion of the Hirschian tradition of Torah im Derekh Erets. At the yeshivah, ShaGaR introduced students not only to traditional talmudic study but to modern and postmodern intellectual currents, which he explored in even greater depth in the privacy of his study. Dying prematurely of pancreatic cancer at age 57, ShaGaR left behind a huge trove of lecture notes and ruminations, which his students have lovingly edited and published in a series of volumes that has granted posthumous renown to their teacher.1 What set Rav ShaGaR apart from almost every other yeshiva head was his embrace of postmodernist theory, gained through massive autodidactic learning. ShaGaR was deeply drawn to the hermeneutical flexibility and openness of postmodernism, which allowed him to confront the ruptures and jaggedness of the modern world. He regarded the epistemological indeterminacy of postmodernism not as a danger or failing, but rather as a pathway to new and vibrant meaning in life. This essay explores Rav ShaGaR’s distinctive commitment to postmodernism and to its possibility to offer meaning to a world at the boundaries between modern and traditional, religious and secular, devotion and relativity. At one level, his postmodern sensibility makes him a radical thinker not only in the more conservative yeshivah world in which he spent his entire adult life but in the broader domain of contemporary (and non-Orthodox) Jewish thought. But Rav Shagar was also mindful of the charges of nihilism and soulless relativism that critics often leveled against postmodernism and sought in his own writing to temper its possible excesses. At various key points, he offered what he called a “soft” version of postmodernism that allowed for its creative and vitalizing potential to be realized without exerting a destructive effect. Following a brief biographical section, I will elaborate on this “soft” approach to postmodernism, as well as on Rav ShaGaR’s “soft” approach to both justice and nationalism. Throughout, we will have an opportunity to see the uncommon mix of sources and inspirations on which he drew in constructing an ideal of faith unafraid of—even premised on—relativism. It is this tenet of ShaGaR’s constructive postmodern theology that makes him a most unusual thinker within the annals of modern Jewish thought. The Unlikely Formation of a Postmodern Talmid Ḥakham Shimon Gershon Greenberg was born in Jerusalem in 1949 to Shalom and Sophia (Sasi), Holocaust survivors from Transylvania in Rumania (now Romania). He was raised in an Orthodox home and studied in religious Zionist institutions, including the Netiv Meir high school. He went on to study at the renowned hesder yeshivah, Kerem Beyavneh, from 1968 to 1973, when he

252  David N. Myers was mobilized to fight in the Yom Kippur War. A day after the war started, on October 7, Greenberg’s tank was hit. Two of his friends were killed, and he was badly wounded. After recuperating, he began to teach at the Yeshivat Hakotel, where he had studied previously. He moved on from there to a number of the most innovative Torah institutions in Israel, including the Mekor Ḥayim yeshivah, founded by Rabbi Adin Steinsaltz in 1985 with a strong focus on Talmud. Three years later, he helped to found the Bet Midrash Maʻaleh together with Rabbi Yoel Bin-Nun and Professor Shalom Rosenberg, which they intended as a center to advance the ideals of religious Zionism. He then moved to Beit Morashah, an institution established by Professor Benjamin Ish-Shalom that was committed to the integration of traditional and modern modes of study and set as a goal the cultivation of new leadership cohorts within the religious Zionist movement. Shagar taught there from 1989 until 1997.2 These last two stops signaled that ShaGaR was drawn to a mode of learning that incorporated both traditional Torah study and modern academic scholarship. That willingness to bridge diverse worlds—and, at times, to countenance a fruitful juxtaposition of them—characterized ShaGaR throughout his life. In his formative yeshivah training, he was introduced to different forms of instruction, including haredi methods for which he retained a great deal of appreciation. And although he was squarely identified with the religious Zionist world, he was extremely knowledgeable about and devoted to diverse traditions of Hasidism, which played a large role in his thinking and teaching. ShaGaR brought his extraordinary intellectual curiosity and eclecticism to the new yeshivah that he created with Rabbi Yair Dreyfus in fall 1997, called Yeshivat Siaḥ. Initially located in the Himmelfarb School in Jerusalem, it eventually moved to the West Bank settlement of Efrat where its name was changed to Siaḥ Yitzhaq in memory of Yitzhak (Isaac) Breuer. The addition of Breuer’s name was an indication that this was to be no ordinary religious Zionist yeshivah, for Breuer was no ordinary religious Zionist. He was a founder of the Agudat Yisrael organization which was steadfastly opposed to secular Zionism. And yet, he moved to Palestine in 1936, believing that it was the site of a potential messianic state about which he theorized. Indeed, Breuer was a creative and daring religious thinker whose iconoclastic spirit ShaGaR and Dreyfus hoped to carry forward in the yeshivah. And indeed, just as Breuer shattered some of the sacred cows of both traditional Judaism and Zionism, the new yeshivah embraced an ethos that was welcoming of innovative approaches to old texts and problems, though completely within the framework of a total commitment to halakhic observance and Zionist values. This was, no doubt, a careful balancing act. As a deeply private man, ShaGaR spent a great deal of time in the solitude of his study, where he avidly consumed a vast range of reading—not only traditionalist Jewish sources (in his case Gemarah, Maimonides, mysticism, and Hasidic masters) but also German philosophy, from Kant to Wittgenstein, science fiction, which was his favored literary genre, and also a robust roster of

Postmodernism 253 postmodern thinkers. ShaGaR was not single-mindedly devoted to his own growth; he was deeply invested in teaching as a way of life. It was neither possible nor desirable to hide this wide-ranging set of intellectual interests from his students. He would avidly prepare for his shiʻurim (lectures), devoting by his own estimate ten hours or more per session. It was through these lessons that Rav ShaGaR exposed students both to his unique cast of mind and to the methodological varieties in his approach to talmudic study. He was well aware that his intellectual diet was distinctive. In a poignant letter written several weeks before he died, he wrote of his “effort to integrate and include in my writing different streams of thought, even if they are not always grasped as part of traditional Torah study”.3 One measure of the success of his project is the extraordinary achievement of his disciples (e.g., Zohar Maor, Yishay Mevorach, Odeya Zuriely, and Itamar Brenner) to locate, cull, edit, integrate, and synthesize thousands of scattered and incomplete computer files of lecture notes and to produce out of them complete, coherent, and compelling essays that preserve and expand their teacher’s legacy. The Soft Postmodernism of Rav ShaGaR To gauge the uniqueness of ShaGaR’s intellectual outlook, it is helpful to recall how terrifying the specter of postmodernism can be to some. Political and intellectual conservatives from E. D. Hirsch, Jr., to Jordan Peterson have frequently warned of the perils of intellectual nihilism that issue from postmodernism, in particular from the instinct to relativize all values. But it is not just conservatives who see danger lurking. Liberals, progressives, and radical leftists (e.g., Marxists), for their part, also cast postmodernism as either dangerous or intellectually flaccid.4 I have heard from good liberal friends that they believe that postmodernism is a key source of the current moment of “fake news” and widespread public dissimulation and mendacity. This point, for example, anchors the 2018 book by New York Times critic Michiko Kakutani, The Death of Truth: Notes on Falsehood in the Age of Trump. Kakutani takes aim at what she calls the “gospel of postmodernism”, which explains how the United States got to where it is: It’s safe to say that Trump has never plowed through the works of Derrida, Baudrillard, or Lyotard (if he’s even heard of them), and postmodernists are hardly to blame for all the free-floating nihilism abroad in the land. But some dumbed-down corollaries of their thinking have seeped into popular culture and been hijacked by the president’s defenders, who want to use its relativistic arguments to excuse his lies, and by right-wingers who want to question evolution or deny the reality of climate change or promote alternative facts.5 One person who would disagree with Kakutani’s analysis—and indeed, had plowed through the works of Derrida, Baudrillard, and Lyotard—was

254  David N. Myers Rav ShaGar. He never met any of the leading postmodern scholars or critics in Europe or the United States, since he never left the boundaries of the State of Israel. Nor did he converse or correspond with them; rather, he encountered them exclusively in Hebrew translations of their books. He did not even take a university course on their thought, since he never attended university. But he did read postmodern theory widely and internalized it deeply. It was a recurrent, even anchoring, theme in his writings—to the point of becoming the lens through which he regarded Judaism, its major texts and ritual practices. Postmodernism, in this view, was neither destructive of nor dissonant with traditional Jewish concepts. It overlapped in many important ways, especially with kabbalistic principles. ShaGaR’s work abounds with references to “shattered vessels”, a key notion in Lurianic kabbalah according to which the light emanating from God shatters the vessels intended to contain it. This key element of the Lurianic system was intended to represent the state of an incomplete, shattered world—in need of repair (tiqqun) and redemption (geulah). It is precisely this kabbalistic idea that Rav ShaGar seized upon not as a source of unbearable fragmentation, but as an exciting intellectual opportunity that he associated with postmodernism. The recurring link in his thought between the two—the kabbalistic idea of shattered vessels and postmodernism— is signaled already in his 2003 book, Kelim shevurim: Torah Vetsiyonut Datit bisevivah postmodernit (Shattered Vessels: Torah and Religious Zionism in a Postmodern Setting). Rav ShaGaR makes the point even more clearly in a discussion on this book that was edited and published posthumously in the 2013 volume Tablets and Fragments of Tablets. There ShaGaR stated: “I am of the opinion that postmodernism and deconstructionism constitute a ‘shattering of the vessels’”. One could read this as the opening of a critique, but ShaGaR continues by suggesting that “this very shattering grants us wide ranging freedom, and in the context of religion—the freedom to believe, even without absolute proofs and evidence”.6 Here we get a sense of the radical, even transgressive, nature of Rav ShaGaR’s writing and thinking. He altogether eschews the effort of the medievals to prove God’s existence. “There is no proof of faith”, ShaGaR writes, “and no certainty of faith to be gained with a proof”. On the contrary, he argued for the “absurd assertation that a believer who requires an intellectual proof for his faith is no believer at all”.7 Instead of certainty, ShaGaR begins with “Nothingness” (‫)איִ ן‬, ַ the kabbalistic notion of primordial existence out of which creation emerges. In his seminal essay “Living with Nothingness”, he strings together a genealogy of the idea moving from medieval kabbalists and early-modern Hasidim to twentieth-century existentialists. He especially notes the appearance of this concept in the thinking of the eleventh-century Spanish Jewish moralist, Bahya ibn Pakuda, author of Ḥovot Halevavot (Duties of the Heart), for whom self-renunciation was the path to adhesion (via an act of devequt) to

Postmodernism 255 God. But it is the affinity of postmodernism for Nothingness that most excites ShaGaR. As he explains: Truth has no metaphysical mooring in heaven above, no bedrock to bear it upon the earth below. Faith in the grand ideologies, in man, and in truth is lost; this is the source of the fantastic dimension of postmodern life.8 Whereas postmodernism’s resistance to the fixity of language, the stability of identity, and the persuasiveness of grand narratives or ideology unnerved many, the nothingness that it revealed opened up new possibilities for ShaGaR. It was neither destructive nor nihilistic, but rather liberating and creative, unleashing the most expansive imaginative faculties of human beings. Indeed, it led, as ShaGaR elaborated in “Living with Nothingness”, to: a dual relinquishment—of absoluteness and, at the same time, of the need for it. The second surrender, which minimizes the significance of the first, marks the release from angst and the onset of ecstasy. It is not the ecstasy of truth but that of life itself, which opens a window onto the vital, infinite joy of all of life. What enables it is the renunciation of the need to grasp, justify, and invoke infinitude.9 It was this generative facet of nothingness that allowed ShaGaR to formulate an important—and recurrent—distinction in his thinking. There was, on one hand, a “hard postmodernism” that never attempted to escape Nothingness nor to use it as a launching pad to creative re-imagination. This was the postmodernism conjured up by its harsh critics. But there was another variant, a “soft postmodernism”, that has the ability to “translate nothingness into equality, freedom, and even merit”. Nothingness strips away pretense and rank; it reduces all to the same level, inducing a new degree both of epistemological modesty and ethical concern. It allows for a new “self-acceptance” that brings one closer to the unity of “yesh” (‫)יש‬, which, in kabbalistic, Hasidic, and Shagarian thought, was the opposite of primordial Nothingness.10 Even further, it unleashes a sense of “ecstasy… in the soft postmodernist due to the release from the need for absolute truth—as a postmodernist, one is of course painfully aware of one’s inability to shore up such a truth—and the acceptance of a specific truth as his life’s truth”. The very “relinquishment” of truth is vitalizing, spiritual, ecstatic—and leads ultimately to faith itself.11 The Path to Soft Justice If, as ShaGaR, insists, there is “no truth, certainly not with a capital T”, then how could there be justice? Does justice not depend on a fundamental ability to distinguish truth from falsehood? Does not the absence of such an ability spell descent into a state of amoral relativism? If no single truth

256  David N. Myers exists, then how was it possible to declare that divergent cultural practices— up to and including female circumcision (FGM) or widow-burning (sati)— were wrong? ShaGaR addressed these questions in “Justice and Ethics in a Postmodern World”, which was based on incomplete files from 2001 or 2002.12 He drew on the insight of Israeli scholar David Gurevitz that there were “hard” and “soft” forms of justice. A hard justice regime would hold onto the belief in “grand, ultimate justice”, while a soft regime would surrender “the presumption of absoluteness”.13 This framing accorded with ShaGaR’s own distinction between hard and soft postmodernism. He considered the idea that justice assumed meaning in discrete and localized contexts rather than in “the overarching, universal sense”. But could this principle apply to Judaism, with its claim to primogeniture in ethical monotheism? ShaGaR followed a characteristically eclectic path in laying out his answer. He first recalled the contingent and constructed notion of justice of the American philosopher Richard Rorty that relied on his view that “truth is made and shaped”, not revealed whole. He then moved on to a favorite source of his, the early eighteenth-century Hasidic master Rabbi Nahman of Bratslav, whom he often summoned up as a precocious early-modern spiritual postmodernist—and thus, a fellow traveler. Rabbi Nahman adopted the kabbalistic view of cosmology according to which God engaged in “tsimtsum” (contraction) as the formative act of creation. What was created was a version of Nothingness—what Rabbi Nahman called the “ḥalal panui”, an empty space or void. In line with his overall view of postmodern hermeneutics, ShaGaR saw in this idea not a dead end, but rather a generative force spinning out endless interpretations and meanings, none of which surpassed the other in definitiveness. In fact, the “ḥalal panui” fostered endless disagreement, which, in ShaGaR’s dialectical rendering, marked out boundaries of belief and impelled an ongoing process of ethical refinement. At this point, ShaGaR articulates his vision of a “positive pluralism” which differed from postmodern pluralism in one important regard. Whereas postmodernism “ascrib(ed) no weight or value to any opinion”, his version saw “value in each and every opinion”. Curiously, ShaGaR failed to mention here his own categories of hard and soft postmodernism, but rather lapsed into a more sweeping and one-dimensional depiction of postmodernism that usually issued from its critics. It is at such moments that one is reminded that ShaGaR was not a professional philosopher, but rather an enthusiastic, omnivorous, and decidedly amateur reader of philosophy.14 Akin to other modern Jewish autodidacts (ranging from Solomon Maimon to R.B. Kitaj), ShaGaR’s own autodidacticism allowed him to escape the constraints of more confined academic writing. It allowed him to have his cake and eat it too—or, as he might say, embrace the paradoxes of postmodernism—by acknowledging the truth claims of others alongside his own claims to the truth of Judaism. Boundless as he was intellectually, he nonetheless saw the

Postmodernism 257 boundary as a vital site for dialogue, disagreement, and, above all, intellectual and ethical discernment. This mention of boundaries as a crucial concept in Rav ShaGaR’s thinking brings us to his view of nationalism. Here, too, this proud son of the religious Zionist movement who established a yeshivah in Efrat sought out, as he had for postmodernism and justice, a moderate or “‘softer’ nationalism—one that makes room for the Other, that does not look down on or disdain other nations”. Central to this vision of nationalism was, somewhat ironically, the idea of Exile. Drawing on the seventeenth-century MaHaRaL of Prague, ShaGaR regarded exile as an essential tempering force on nationalism in general, and Zionism in particular: “The insecurity of the Diaspora must deeply inform our confidence as the inheritors of the land. Otherwise, confidence will degenerate into hubris ….”15 This was a statement of key existential and hermeneutical import. Exile, ShaGaR believed, conditioned the Jew to acknowledge the temporary nature of geo-political existence and the indeterminate nature of our cognitive state. The resulting physical insecurity and epistemological modesty bred a relativism that impelled rather than impeded creativity. The homeland/exile binary was a subset of the larger national particularism/universalism relationship. If nationalism were “not to turn rigid and callous, it must be tempered by universalism”. But universalism has the undesirable effect of leveling difference in both individuals and groups. For ShaGaR, nationalism serves as an antidote by foregrounding a “specific, immutable identity”.16 This idea calls to mind an earlier, similarly innovative Jewish thinker, Simon Rawidowicz (1897–1957), who also counterpoised the right to be different (libertas differendi) to liberal universalism.17 Difference was, for both, a preservative and generative force that resisted the homogenizing impulse of universalism (and a certain kind of all-encompassing and conformist nationalism). ShaGaR wrote extensively on nationalism, universalism, Exile, and Zion. He also weighed in on Israel’s wars and relations with the Arab population. A major new 500-page collection of his writings on these subjects appeared in 2020 entitled, Briti Shalom: Yamin u-smol, milhamah ve-shalom (My Covenant is Peace: Right and Left, War and Peace). This is not the place for an extended analysis of the important themes in the volume, which will have to await another occasion. But the chief editor of ShaGaR’s writings, Zohar Maor, captures in his afterward to the new book his teacher’s eclectic and dialectical approach: The Rabbi vehemently opposed Operation Peace for the Galilee (the 1982 invasion into Lebanon) as “a war of choice” (in contrast to the overwhelming majority of rabbis from the religious Zionist public at the time of the war), but he also opposed those who, out of humanitarian considerations, tried to limit the IDF’s activity in the course of the

258  David N. Myers war. He aggressively opposed the Oslo Accords and the (Gaza) disengagement, but he also claimed that the Left was right that there was a weighty moral problem in controlling another people against its will, and that Arabs also see in the land of Israel their home. He belonged to the Right, for example, in that he believed in a mystical spiritual connection between the Jewish people and its land, but he also belonged to the Left in stressing the importance of openness to and the essential nature of peace, and was prepared to think even about a multicultural and multinational country.18 In the political domain, as in the domains of religion and culture, Rav ShaGaR imagined himself as a bridge between worlds. This role was constitutive, borne of his existence in the “ḥalal panui”, the empty space or void which generated a ceaseless stream of oppositions, disagreements, and interpretations. At a certain point in his life, ShaGaR came to understand that postmodernism, or at least his idiosyncratic rendering of it, not only had an elective affinity with that space but offered him instruments with which to navigate it. These instruments were, like much in Rav ShaGaR’s intellectual world, fragmented, and thus could not guide him to a final destination. As a result, he dwelt in the realm of the interim and intermediate, where he could gesture in the direction of opposites whose virtues and liabilities he grasped: yesh and ayin, particularism and universalism, left and right, Rabbi Nahman and Jacques Derrida. Perhaps the most important and animating of these tensions—and the one for which his turn to postmodernism was most germane—was between relativism and faith, between a world of multiple and equal truth claims and a world of the personal truth of Judaism. It was this tension that inspired Rav ShaGaR’s enormous intellectual creativity, making him in his afterlife one of the most stimulating Jewish thinkers of our generation. Indeed, to the contemporary Jew suspended between the impossibility of both certainty and doubt, ShaGaR’s thought serves as a welcome place of refuge where the believer and skeptic, traditionalist and postmodern, can meet in honest and fruitful dialogue. Notes 1 Some two dozen books of Rav ShaGaR’s writings have been published by the institute devoted to his legacy; see http://shagar.co.il/?page_id=1955. 2 For key biographical details, see the webpage of the Institute for the Publication of the Writings of Rav ShaGaR: http://shagar.co.il/?page_id=136. See also the editors’ Introduction to Rabbi Shagar, Faith Shattered and Restored (Jerusalem: Maggid Books, 2017), xv–xvi. 3 S.G. Greenberg, Luḥot veshivre luḥot: hagut Yehudit nokhaḥ hapostmodernizm, edited by Z. Maor, et al. (Tel Aviv: Yediʻot Aḥaronot, 2013), 9–10. 4 It was the latter charge that prompted physicist Alan Sokol to perpetrate a hoax by submitting a fictional and somewhat nonsensical article to the postmodern journal Social Text in 1996. See A. Sokol, “Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity”, Social Text 46–47 (1986), 217–252.

Postmodernism 259 5 M. Kakutani, The Death of Truth: Notes on Falsehood in the Age of Trump (New York: Tim Duggan Books, 2018), 44. 6 See Kelim shevurim: Torah ṿetsiyonut datit bisevivah postmodernit (Jerusalem: Yeshivat Siaḥ Yitshaq, 2004), as well as the essay on that book, “Yahadut vepostmodernizm”, in Luḥot veshivre luḥot, 431. 7 ShaGaR’s essay from 1984 appears in “Emunati: emunah be-’olam postmoderni,” in Luḥot veshivre, 409, and in English translation as “My Faith: Faith in a Modern World”, Faith Shattered and Restored: Judaism in the Postmodern World (Jerusalem: Maggid Books, 2017), 23. 8 This essay, which opened Luḥot veshivre luḥot, was based on a number of different files from 2000 to 2005 skillfully stitched together by the editors. See “Lihiyot tsamud leayin: ḥayim beʻolam postmoderni”, Luḥot veshivre luḥot, 31–52, or the English “Living with Nothingness”, Faith Shattered and Restored, 92. 9 Ibid., 95. 10 “Living with Nothingness”, 98, 101. 11 Ibid., 102. 12 “Justice and Ethics in a Postmodern World”, Faith Shattered and Restored, 106; this is a modified version of “Tsedeq umusar beʻolam postmoderni”, Luḥot ve-shivre luḥot, 68–84. 13 “Justice and Ethics in a Postmodern World”, Faith Shattered and Restored, 109. He borrows from D. Gurevitz, “The Meaning of Justice in the Age of Frivolity”, (Hebrew), Alpayim 9 (1991). 14 ShaGaR was a dedicated reader of key figures in German philosophy such as Kant, Nietzsche, and Wittgenstein, as well as twentieth-century French thought (Lacan, Derrida, Kristeva), all of whom figured in his intertwining theories of language and culture. Alan Brill, who has done an excellent job in explicating and translating Rav ShaGaR into English, highlights ShaGaR’s amateurism by calling his approach “pop postmodernism”, as distinct from more rigorous professional approaches. See his blog, “The Book of Doctrines and Opinions”, from January 22, 2017, at https:// kavvanah.blog/2017/01/22/rabbi-shagar-values-and-faith-in-the-postmodern-age/. 15 ShaGaR’s comments on nationalism here come from various draft files devoted to the holiday of Sukkot from 1993 to 1995. See “Seventy Bullocks and One Sukkah: The Land of Israel, Nationalism, and Diaspora”, Faith Shattered and Restored, 184–185. 16 Ibid., 185–186. 17 See S. Rawidowicz, “Libertas Differendi: The Right to Be Different”, in B.C.I. Ravid (ed.), State of Israel, Diaspora, and Jewish Continuity: Essays on the “Ever-Dying People (Hanover, NH: Brandeis University Press, 1986), 118–129. 18 See ShaGaR, Briti Shalom: yamin usmol, milḥamah veshalom, edited by Z. Maor et al. (Tel Aviv: Yediʻot Aḥaronot, 2020), 486–487. My deep thanks to Zohar Maor for sending me a copy of this book for the purposes of this essay, as well as for his indefatigable labor in bringing Rav ShaGaR’s thought to wide public attention.

11 Education A Case Study in Devotional and Relativist Learning in Early Childhood Religious Education Jaclyn Rubin-Blaier

Editors’ note The final case study in this book is an applied one. Jaclyn Rubin-Blaier examines what it means to take one of the book’s three central approaches to relativism and devotion—that of “warm conversations” that reveal halakhah as a form of practical wisdom—and to employ it as a method in Jewish education. The author sees devotional perspectives to halakhah as typically those that treat Jewish law texts in a highly formalist and overly literal way, and relativist approaches as overly contextual, based upon perceived values, whatever their actual relationship to the original text. Yet Rubin-Blaier contends that one can avoid this dichotomy in Jewish education from a young age, for children’s open and ever-developing minds can appreciate the way that halakhah both represents a language with an ancient tradition and offers practical tools to confront the tangible challenges of their own lives. The author believes that storytelling offers a method that enables children to form an emotional connection (devotional) that links the stories to their own experience but also to frame and shape a worldview (relativist) that orients them practically and intellectually. Since for children, binaries between devotion and relativism are barely formed, let alone hardened, education offers a crucial opening for re-negotiating the tensions that this book explores.

Unlike many adults, children are gifted with the ability to bridge the gap between context and text, pinpointing peculiarities and subtleties in a text while using their own knowledge and experience to interpret that text. This means that the methodology of halakhah as practical wisdom is ideally suited as a pedagogical philosophy throughout elementary school, even as children are just being introduced to halakhah, Jewish texts, and religious life. This approach generates dialogue in the classroom, where children present different perspectives of and about observance, ritual, and rules, and it is through such discussions that children’s religious identities develop. This is particularly the DOI: 10.4324/9781003364078-12

Education 261 case in settings that include diverse religious backgrounds, as the approach allows children who are more inclined to a devotional outlook to appreciate the contextualist perspective, and vice versa. Introduction For Jewish studies scholars, the divide between devotion and relativism that this book explores has often taken the form of contrasting approaches to text. On one side, we find a highly formalist reading and application of a text—taking statements at face value regardless of their discrepancies with the broader situation—and on the other side a contextualized reading and the application of perceived values regardless of fealty to the text or to the original context of statements in the text. However, recently, many scholars in both academic and religious circles have been bridging this gap, seeking a path that is informed both by the implications of a text itself and by the context in which it was created, looking for the underlying circumstances as well as the implied meaning and values that come together in a text. In the realm of halakhah, one of the volume’s editors, Rabbi Dr. Elisha Ancselovits, has pioneered this new method of reading. As discussed in the book’s Introduction, Ancselovits posits halakhah as an application of practical wisdom on the part of sages throughout Jewish history, applied in sensitive, insightful, and creative ways as a language to speak about one’s situation and surroundings, a way to communicate in religious language to find a trusted path toward “what is right and good in the eyes of the Lord”1 (Deuteronomy 6:18). Ancselovits explains that these sages: … did not seek neutral and formalist obedience to laws’ denotative meaning. Instead, they attempted to empathetically internalize their legal sources’ multiplicity of grounded intents—multiplicity of insights, to maintain the critical connection between law and concrete reality, in order to achieve morally good law and application. They developed an “intuitive sense of what is right or wrong” from the insights on the human condition that they had gained from studiously learned sources of casuistic law that these sages regarded as wise sources for guiding human life, as prototypes …. They read their casuistic sources as decisions that balanced multiple and conflicting binding human concerns, as responses to archetypical situations of varied human needs and it was those wide-ranging internalized laws-as-stories (which implicitly recognize multiple and conflicting human concerns) that the sages applied in an attempt to balance a (similar) range of conflicting human needs that existed in their contemporaneous real world conditions. These sages did not misread or distort precedent texts. Rather, they applied the insights of legal texts to contemporary conditions and spoke those insights via the vocabulary of those texts.2

262  Jaclyn Rubin-Blaier In other words, the sages and scholars of Jewish legal texts use the language of halakhah to discuss values raised in these legal texts, to answer questions important to building and maintaining a functioning society, a society that values particular things and has a vision for the role of humans in the world. For example, one could discuss Shabbat in terms of the relationship of humans to God’s creation, of suspending our impact on the natural world (as per Exodus 20), or one could discuss Shabbat in terms of the relationships of humans with one another, with a societal infrastructure that allows everyone time to rest (as per Deuteronomy 5). Depending on which understanding a scholar emphasizes—though of course both discourses will enter the deliberation—s/he will interpret the various laws of Shabbat differently. The applications to different situations will reflect an understanding of the ultimate value of Shabbat, and the language of halakhah will be the vehicle for the implementation of these values. That is not to say that halakhic discourse is merely a proxy for debates about values, but that these values are deeply encoded in the structure of halakhah, such that observant Jews live out these values in practice, embodying them in a deep and tangible way throughout their lives. For many contemporary scholars, typically trained to read texts either in a devotional or relativist manner, Ancselovits’ method of reading and applying texts has proven challenging: for example, a strictly formal reading of a text would not allow space for historical context or for sociological factors to influence one’s understanding, nor would one be able to see how language is used to shift opinions in a seemingly opposing direction. On the other hand, a relativist reading would potentially disregard the ways in which a text is using language to connect formally to a tradition and a particular way of speaking about a topic. Yet children, particularly in early elementary school, are unhindered in this way, owing to their constantly developing understanding of the world, including morality, spirituality, critical thinking, and interpersonal relationships. Thus, melding devotional and relativist methods, as Ancselovits seeks to do with his halakhic methodology, is natural and intuitive for children and is enhanced in settings that include a diversity of religious backgrounds. It may be observed that contemporary scholars of Jewish education discuss ways that children’s education has at times maintained the devotional/relativist divide, as well as ways that education can overcome this divide. Michael Rosenak, for example, seems to posit a devotional perspective in arguing that an educated Jew needs to learn the “‘language of a culture,’ [by which] he refers to its basic assumptions and forms of thought and expression. Educated Jews are those who have been initiated into the ‘language’ of Judaism and who are able to use its forms in expressing their own thoughts”.3 However, Rosenak is in fact trying to articulate an education (i.e., a kind of Jewish literacy) beyond this divide, one that can address a relativist perspective as well: “There is no conflict, in fact, between speaking the language of Judaism and resolving practical issues of the day. To suppose such a conflict would be

Education 263 to underplay the comprehensiveness of the language, which clearly engages practical as well as moral issues”.4 Thus, one can draw on Rosenak to effectively translate Ancselovits’s claim about halakhah into a broader ideal for any Jewish education. As we will see in the examples presented below, the elements of “critical participation”—defined as active learning on the part of children as well as “respect for the learner’s judgement”—are essential to an effective education. This goal is best achieved, Israel Scheffler argues, when one can “boldly reinterpret traditional concepts so that they can become integral elements of the student’s thinking and development throughout life”.5 In other words, the devotional approach—reliant on texts and language which are already part of a religious outlook—must be integrated with a relativist approach. By the latter, we mean an approach that allows the experiences of the learner to inform his/her learning and the interaction with the text to shape his/her worldview at the same time. In fact, Rosenak argues that both the devotional and relativist approaches are important for creating a balanced Jewish education, one that does not lean too much to either extreme. He puts this in terms of “absolute values [which] create commitments that are both intrinsic and universal in their demands”—a devotional approach valuing primarily honor, or placing one’s self within society and meeting expectations; and “personal or ‘aesthetic values’” which are important for identity formation but “do not make universal claims”—a relativist approach that values dignity, or individual freedom, above all else. Rosenak points out that the former approach is often criticized as too rigid, as an outlook that undermines human dignity, while the latter approach, which strives to accept all points of view, can in reality be hostile to organized religion, being wary of anything that does not uphold the individual as the ultimate concern. However, this is not an intrinsic or necessary divide: The world of absolute values is not necessarily antithetical to that of aesthetic-personal values. One may be both absolutely committed to the one and yet find one’s own unique way in the other without collision. One may be a pious person who diligently obeys the commandments of his or her religion while seeking self-realization in a given “way in the world” …6 Each approach, according to Rosenak, adds an essential component to a child’s education, and a balance between the two creates a coherent, complete worldview, avoiding the pitfalls of either extreme. Dignity and honor are both important components that allow a child (or any person) to navigate his or her own individuality with being a member of a community, forging a path that is neither devotional nor relativist, but an integration of the two together. This integration is represented in the examples presented below.

264  Jaclyn Rubin-Blaier Spiritual Development of Children Jewish studies in elementary school typically include two aspects: (1) religious education, including values, morality, and ritual, i.e., language specific to Jewish religion, and (2) ways of encountering the world, including wonder, curiosity, meaning-making, and responsibility, i.e., language more broadly related to spirituality.7 In many ways, these two categories cannot be separated from each other: “Judaism”, Abraham Joshua Heschel writes, “is a way of thinking, not only a way of living”.8 Elsewhere, Heschel writes, “Wonder or radical amazement is the chief characteristic of the religious man’s attitude toward history and nature”.9 Wonder, for Heschel, is the foundation of all of religion, and the content specific to Judaism is an expression of this wonder in one particular form. These two elements of religious education, then, are inextricably linked. However, many studies of children’s spiritual development have ignored the way a particular religion’s outlook influences what one values in such development. Some psychologists, basing their work on a Christian understanding of religion, have developed schemas of children’s spiritual development that build on the work of child development theorists such as Piaget and Vygotsky. These theories involve stages, reached gradually, and begin with a heavy reliance on intuition, move to concrete thought, and finally transition to abstract thought. Such theories come with exhortations not to teach biblical stories too early, as their concrete, literal understanding will interfere with students’ ability to understand metaphor and moral lessons.10 This is true of such theorists as David Elkind, James Fowler, and Fritz Oser, each of whom propose their own set of stages, beginning with concrete beliefs that include literal interpretations of biblical stories and end with abstract, universal reasoning and understanding.11 These schemata elevate abstract and rationalist understanding as the ideal, belittling the impact that intuition and concrete understanding can have on religion in general and ritual in particular. For example, in Judaism, concrete commandments can provide the opportunity for a deep relationship with God, using the poetry of performance to reach an understanding that rational explanation cannot provide. Furthermore, such theorists diminish the power of children’s ability to think flexibly, arguing that intuition and concrete understandings are necessarily a lower-level understanding, whereas (as we will see below) such modes of thought can in reality enhance one’s understanding of a subject. In other words, these conceptions ignore the first aspect of Jewish studies noted above: the language specific to Jewish religion, including values, morality, and ritual. Others have taken another approach, focusing instead on the second element of religious education: ways of encountering the world. These theorists present conceptions that focus on modes of thought rather than particular moral outcomes. John Hull,12 building on the work of Fowler and Oser, presents several conversations which he has had with children, ranging in age

Education 265 from three to eight, about God, spirituality, the Bible, prayer, and religion. At the end of his exploration, concluding that concrete thinking does not limit a child’s ability to think flexibly and creatively about any number of issues, he presents another series of stages, though here they relate more to conversational ability than the schemata previously mentioned. He begins with “pre-argumentation”, a stage at which the conversant has no interest in the other person’s point of view. Following this stage, a child can use “singlereason argumentation”, understanding that reasons are needed to convince one’s opponent but not understanding what convincing reasons are. A child then moves to “maintaining connections”, shifting focus from whether or not one’s opponent is correct to the truth of the subject under discussion. “Counter-evidence”, the next stage, depends on an ability to spot contradictions and to refute them or refine the argument; “shared analysis” is the stage when real discourse and mutual understanding are developed. Finally, “ideal discourse” disregards the weight of authority, includes everyone equally in the conversation, and “recognizes that everybody taking part in the conversation is under an obligation to struggle for the most just solution to the problem”.13 The appeal of this schema is its emphasis on how conversations are carried out, rather than evaluating a person’s spiritual level based on how s/he discusses God. It embodies Heschel’s claim that religion is a way of thinking more than anything else, and it recognizes that children may understand different insights at different stages in their learning, without negating what they have already learned and encountered. David Hay and Rebecca Nye,14 in their exploration of children’s spirituality, similarly emphasize the relational. They aim, in their study, for a dialogical mode of encounter, an encounter between individuals that eschews isolation and is only complete when a relationship between conversants is formed. Through this mode of conversation, Hay and Nye developed what they call “relational consciousness” as a framework for discussing children’s spirituality. This includes subcategories investigating contexts, conditions, strategies, processes, and consequences. Hay and Nye do not use stages to describe their findings, but instead use five different lenses through which to explore the relationships children speak about. This schema, like that of Hull, focuses more on how a child thinks than on what stage a child falls into. This framework emphasizes characteristics without judgment or hierarchy, and further allows an emphasis on learning from different experiences and views presented in a diverse group of children. Because the relational approaches offered by Hull and by Hay and Nye focus on modes of thought and interactions rather than content-specific outcomes (such as universalist, rational, and abstract understandings of God), they do not exclude other non-Christian traditions in the way the earlier schemata offered by Elkind, Fowler, Oser, and others do. However, while Hay and Nye do not explicitly use Christian language to discuss spirituality, they conducted their study in the context of British schools, where there is no separation between church and state, allowing for a more explicit influence

266  Jaclyn Rubin-Blaier of Christian language in school. This is an important caveat in applying their ideas to Jewish education, even as they provide a useful starting point for thinking about children’s spiritual development. Holloway15 studied Buddhist and Christian early childhood settings in Japan and drew some distinctions about how respective religious values influenced educational goals in each context. She found that as a result of the Christian belief in God’s love, children in these settings were granted more freedom and encouraged to articulate their ideas, as well as taught how to take others into consideration. The Buddhist schools emphasized teaching virtue, which led to stricter rule enforcement, obtaining knowledge, which includes heavily teacher-directed lessons, and the significance of the body, which led to concern for posture, rigorous exercises, and a concern for nutrition. Holloway concludes that the role of religious beliefs will become even more important as parents and teachers begin to form stronger partnerships. It is clear from this study that the philosophical foundations and the language used to transmit that philosophy are essential aspects of education in any setting, and such a component only becomes further highlighted in religious settings. We have seen that existing conceptions of children’s spirituality tend to focus on either content or modes of thought, but, as we noted above, Jewish education inextricably links the two. Within the last twenty years, Jewish researchers and educators have found ways to combine current educational best practices with traditional Jewish language, and this interaction—while drawing on many traditions, theories, and research—has begun to produce a unique approach to spiritual education that, as we argued above, combines the religious, moral, and spiritual as inseparable elements of character education. Sara Efron,16 for example, argues that imitating God leads to moral actions through the particularly Jewish modes of performing commandments, learning traditional texts, and developing intention and motivation; this, she argues, combines three strands in contemporary education that often fail to intersect, namely, the intellectual, the behavioral, and the emotional. Deborah Schein17 similarly notes that what she calls “complex dispositions”, actions based on beliefs, are developed from basic dispositions and deep beliefs, which she finds present not only in the language of Reggio Emilia and Montessori but Heschel and Martin Buber as well. Finally, Marc Silverman18 draws out of Janusz Korczak’s humanist educational theories sources in Jewish texts and tradition to guide moral development. Sigal Achituv19 notes the common tension between traditional religious education and constructivist educational philosophy, primarily regarding the passing on of religious tradition and belief. However, Howard Deitcher20 points to the power of stories for moral development: stories are a wellestablished mode of Jewish tradition, from parables and stories of sages in the Talmud to the allegories of Rabbi Nahman of Bratslav in the 18th century. Deitcher’s study is based on Vygotsky’s theories of child development, namely that a child is not a blank slate but comes to an experience with his or her own learning styles, ideas, perceptions, and past experiences. The

Education 267 beauty of using stories as a teaching tool lies in the range of meaning a text can be shown to contain; this meaning is shaped by the interaction of the text and the reader, and, in many cases, by interaction with the teacher or parent who is reading to a child. Achituv, too, recognizes the power of stories to impart morality, despite the dichotomy she posits between traditional education and modern education. Like Deitcher, she notes the power of a story’s characters to serve as models for children’s own behavior, allowing children to examine a situation from different perspectives, and raising questions as to how one should or could act in situations presented in a plot. These interactions, which can be non-didactic, allow children to explore for themselves the meanings presented to them in a given story, to form their own judgments. A story can be, on the other hand, presented in a didactic way. Achituv’s study examines the ways that teachers in state religious schools in Israel feel pressure to teach children the “right” answer or perspective about a character or his or her situation. They often glorify the main characters or elide moral ambiguity in biblical stories, sometimes because of religious belief, sometimes to protect children from disappointment and disillusionment, sometimes because they feel the challenges presented by an unencumbered reading of the text are not developmentally appropriate. A possible solution to the challenges presented by Achituv can be found in Kieran Egan’s theories about stories and imagination as a primary vehicle for education. Egan and Judson21 and Egan22 present imagination as one of the most important aspects of education, as well as wonder, which, we noted above, is also a central element in spiritual education. Stories not only allow children to connect with emotions and remember things more easily, but they also allow children to find their place in the world by exploring binary oppositions—good guys versus bad guys—as a way to work out their anxieties. Thus, the binaries and simplified elements of a story or character that teachers in state religious schools present may in fact serve an important purpose, even if they should at the same time be better balanced with nuance and an openness to questioning. The conversations that come from storytelling can be an important component for moral, spiritual, and religious development. Hull23 focuses on the conversations about God that can result from reading Bible stories with children, suggesting that one should not regard many of these stories as inappropriate for or incomprehensible to children. Like Egan and Judson, Hull shows how a conversation about a story can in fact be about a child’s own life in different terms, expressing fears, questions, or wishes that the child has for him or herself, and these stories offer a way for the child to engage in these questions that may be too difficult to confront directly. From this overview, we can draw several conclusions about Jewish education and children’s spiritual development in such contexts: (1) Jewish tradition does not subscribe to a hierarchy of concrete to abstract thought in the way that Christian tradition has perceived it, but rather combines the intellectual, moral, spiritual, and religious elements of education inseparably. (2) This allows stories

268  Jaclyn Rubin-Blaier to be the driving vehicle for teaching children, allowing children to form emotional connections with intellectual understandings, offering ways to ask questions and to synthesize the world around them. (3) While there has been some debate about whether stories should be presented as devotional (i.e., dogmatic lessons) or relativist (i.e., open to questioning and imagination), the emphasis on stories in Judaism gives children the opportunity to process their experiences as well as to frame and shape their own worldview, offering examples of how they might act in the world. An example of this occurred when a third-grade group of children was learning Parashat Lekh Lekha, discussing the opening verses of Genesis 15, when God tells Abraham not to be afraid. This conversation follows the episode when Abraham participates in the war of the four kings versus the five kings to save his nephew, Lot, who had been held captive. Ethan,24 reflecting on why Abraham may have been afraid, said, “Maybe he was afraid that someone would hurt him. Some people don’t like Jews, and they want to hurt them. They might have had guns”. While his analysis is anachronistic, he has clearly heard conversations about how some people discriminate against Jews, perhaps from his parents or the news. This conversation took place not long after rallies in Charlottesville, VA raised issues of race, antisemitism, and white pride in America.25 Ethan was trying to engage in questions he may not have had the space or comfort level to discuss. Although this comment did not change the direction of the conversation to discuss such issues, this is an example of bringing one’s own experiences to bear on a text without regard to the specific limitations of that text (here, the historical fact that guns did not exist in the time of Abraham), along the lines of a relativist approach. On the other hand, stories are not merely openings for children to discuss their own experiences and thoughts but can provide an opportunity for a deeper insight into the text itself, a devotional perspective on texts. One example relates to the question of whether or not Abraham knew, when God asked him to offer his son as a sacrifice, whether or not he would end up actually sacrificing Isaac (Genesis 22). Oren thought, “Abraham probably felt ripped off. I’m sorry I said that, but that’s probably how he felt”. He explained that Abraham finally got the son he was promised for so long, and now God was telling him to kill that son; how could he have a lot of offspring, as promised, if his son was not going to live? A few days later, Oren suggested that the repeated phrase ‫( וילכו שניהם יחדיו‬and the two of them walked together)26 foreshadowed that Isaac would survive the occasion. Aaron asked him if he would think that if he did not already know that Isaac survived, and Oren insisted that he would. (We can see evidence here of Hull’s “single-reason argumentation” stage, where Oren has formed an opinion that he then stuck to despite being challenged by peers.) Zach thought the phrase emphasized that they were walking together for the last time, while Aaron eventually suggested that the repetition indicated they would both come back.

Education 269 It is notable that in this conversation, Aaron began with the position that a reader of the text would not think Isaac would return with his father. After listening to the discussion of his peers, he integrated Oren’s position into his own, not realizing that he ended up with the opposite position of that with which he began. He presented the interpretation as his own idea, his own understanding of the repetition of the phrase in the text; so thoroughly had he integrated the opinion into his understanding, he was unconscious of the fact that he had been swayed by the conversation and the different opinions to which he was being exposed. (Aaron seemed to be fluctuating between Hull’s “counter-evidence” and “maintaining connections” stages, able to identify potential inconsistencies in an argument while also integrating elements of that argument into his own once he has decided those elements to be correct.) Learning the story, paying careful attention to the text, thus offers children the chance to become critical readers, to think about different views that the characters could hold in a story and to think about how a reader might understand the text. This is an important introduction to and foundation for teaching children halakhah as practical wisdom, a mode for understanding how religion interacts with the world. Learning to discuss biblical stories and characters from a particular vantage point, learning to think through how and why characters make the choices they do, trains children to ask the same sorts of questions about rabbinic texts, and, where these raise issues of a halakhic nature, to understand the context and situations in which halakhic decisions were made. In fact, halakhah, as understood by Ancselovits, is derived from a thorough knowledge of the context in which a question arises— in other words, stories: “…it was those wide-ranging laws-as-stories (which implicitly recognize multiple and conflicting human concerns) that the sages applied in an attempt to balance a (similar) range of conflicting human needs that existed in their contemporaneous real world conditions”.27 Thus, biblical stories provide an important framework and foundation for thinking about ritual and religion, which are an essential aspect of Jewish education. Children and Ritual Ritual, often thought of as a collection of rote actions, is in reality deeply connected to storytelling. As noted above, halakhah can be understood through a framework of storytelling. We will argue that children are primed to relate to the storytelling nature of ritual, as understood through its connection to play. Given the emphasis on practice in Judaism, discussions of halakhah and rabbinic texts are essential to religious Jewish education. Much of a Judaics curriculum focuses on particular actions or rituals, such as dietary laws, rituals connected to the celebration of holidays, and prayer rituals and garments. This element, particular to Judaism, again subverts the hierarchy of concrete to abstract, as the goal of ritual itself is to embody an abstract idea into something concrete, just as a poem uses metaphors to capture an abstract feeling with concrete images. This mixture of concrete and abstract makes ritual, in

270  Jaclyn Rubin-Blaier particular, an access point for children to the world of religious language as a means to communicate broader values. As J.Z. Smith explains, ritual offers a way for us to make sense of the world around us, a way to frame what we see and to assess where we are in relation to our ideals: Ritual is a means of performing the way things ought to be in conscious tension to the way things are. Ritual relies for its power on the fact that it is concerned with quite ordinary activities placed within an extraordinary setting, that what it describes and displays is, in principle, possible for every occurrence of these acts. But it also relies for its power on the perceived fact that, in actuality, such possibilities cannot be realized … Ritual thus provides an occasion for reflection on and rationalization of the fact that what ought to have been done was not, what ought to have taken place did not.28 Ritual, then, should not be construed as an arcane enactment of blind obedience, but rather as an encoding of values beyond verbal articulation. This is inherently connected to the method of halakhah as practical wisdom, in that ritual—leading us to understand our values in a deep way and in relation to the world around us—is a subset of an understanding of halakhah more broadly as encoding values to be applied to specific situations, to navigate between what is and what ought to be in an attempt to arrive at an enactment of a moral ideal. Not only is ritual a primary example of how halakhah can be applied as practical wisdom, but it is an essential entryway into religion for young children, given its similarities to play, its creation of a subjunctive world. Just as ritual provides a framing for the world—in particular for adults—play serves this role for young children. Play allows children to develop their mental flexibility29—using a bowl to represent a steering wheel, for example—as well as to enhance vocabulary: exposure to new and sophisticated words in a natural setting increases children’s vocabulary, particularly when used in free play.30 Play further allows children to interact with sophisticated concepts they encounter in the world around them, integrating them into their own worldview and actively constructing their self-concept through play.31 For example, one four-year-old I observed, David, had bought a pumpkin with sunglasses and a mouth painted on it and a top hat glued to it. When he took it out at home, he immediately took the hat off the pumpkin and wanted to try it on for himself. First, though, he had to remove the glue that had held it to the pumpkin. As he gathered a growing ball of glue, he put this ball on the top of the pumpkin stem. “It’s a kippah!” He had made the pumpkin into a Jew like those he sees every day in school and at home. What it means to be Jewish as a part of his identity and his world is clearly something David was trying to work out, an emotional understanding of himself that will continue to develop throughout childhood and adolescence. A few weeks earlier, he had commented to me that “non-Jews are mean”. I

Education 271 responded that he knows a lot of nice non-Jews: for example, his babysitter is not Jewish, and I know he loves her. David told me that she is in fact mean, because she makes him rest. His teachers at school, too, make him nap, which makes them mean non-Jews. (His teachers are, however, Jewish, and he also has great affection for them.) David is being taught in school and from his family that there are certain things Jews do that non-Jews don’t, namely, Jewish ritual. If not made explicit, it is strongly implied that these rituals are good things to do and are what God has commanded. David must work out, then, what it means for people not to do these good actions, and what it means when people do things he does not like, which are equivalent to things he thinks are bad at this point in his development. He has not yet worked out the difference between moral imperatives, social conventions, and matters of personal choice, a key developmental understanding a child gains in early childhood.32 It only added to David’s confusion that Jewish law does not distinguish between ritual and moral imperatives so clearly. However, this lack of distinction, combined with David’s intuitions, provides an opening for introducing him to halakhah as practical wisdom, for he understands, if not yet consciously, that there is a deep connection between ritual and morality, that these “good actions” he is being taught are meant to teach or to express something important about how one should act in the world. David was using play to work through questions he has about his observations of the world, about what he has been taught and understands and how that applies to what he sees around him. It is, in many ways, the same function ritual serves: to enact the world as it should be in the world as it currently is, an attempt to integrate ideals into the status quo, to remind those performing the ritual of the values to which they subscribe. Teaching Halakhah to Early Elementary Children Having explored some elements of children’s spiritual development in a Jewish context, in particular the importance of ritual, we will now examine a particular example of children learning halakhah through the methodology of halakhah as practical wisdom. Before Passover, a group of eight- and nineyear-old children learned about the ritual of hand-washing, specifically in the context of a Pesaḥ seder, where the ritual occurs once before dipping vegetables in salt water and once before eating matzah. The rabbinic idea behind washing hands prior to eating vegetables dipped in water was to prevent potentially spreading impurity arising from vegetables that have come into contact with liquid. This washing, abandoned already in the time of the Talmud, is today unique to the seder.33 The lesson included a discussion among the children about purity and impurity, and potential connections between holiness/purity and cleanliness. This particular ritual is, in a sense, an ideal test case for teaching halakhah as practical wisdom, understanding the practice as an expression of relevant values, as, on the face of it, this act of hand-washing seems particularly arcane and formalistic.

272  Jaclyn Rubin-Blaier Background on Netilat Yadayim: One realm of halakhah that is difficult for modern Jews to understand is that of tumah and taharah, purity and impurity. Without a Temple and its attendant rituals, the meaning of this system remains mysterious, hard to imagine. While biblical scholars have argued over the meaning of this system, halakhic scholars and decisors have used the language of tumah and taharah—particularly with regard to handwashing—to speak about their own concerns with regard to the sanctity of food. Throughout halakhic literature, there seem to be two trends: one that imagines tumah as a semi-tangible spiritual flaw to be erased through purifying rituals, and one that imagines tumah to be a stand-in for cleanliness and hygienic practices. Mary Douglas, in Purity and Danger, identifies a parallel to modern hygienic practices, but argues that the system of purity in the Bible is something different: It is true that there can be a marvelous correspondence between the avoidance of contagious disease and ritual avoidance. The washings and separations which serve the one practical purpose may be apt to express religious themes at the same time. So it has been argued that their rule of washing before eating may have given the Jews immunity in plagues. But it is one thing to point out the side benefits of ritual actions, and another thing to be content with using by-products as a sufficient explanation. Even if some of Moses’ dietary rules were hygienically beneficial it is a pity to treat him as an enlightened public health administrator, rather than a spiritual leader.34 According to Douglas, then, any element of hygiene is a “by-product”, rather than an underlying goal. Tumah and taharah remain categories of demiurgical currents in the human world. Jonathan Klawans thinks similarly, that the system is one of boundaries and control: things that are controllable are less severely defiling than things which are not. Purity, he maintains, is one way to keep the Divine Presence nearby.35 This understanding of tumah and taharah, one which understands contamination as a kind of spiritual crossing of boundaries, seems to underlie the statement in Pes. 115a: ‫( אמר רבי אלעזר אמר רב אושעיא כל שטיבולו במשקה צריך נטילת ידים‬Rabbi Elazar said in the name of Rav Oshaya, “One must wash one’s hands before anything is dipped in liquid”). There is no doubt that the talmudic understanding of tumah and taharah shifted from earlier understandings during the time of the Second Temple,36 yet the ritual remains ephemeral, a part of a system tying those practicing it to priestly ritual, to emphasize the spiritual aspects of eating, to categorize and to maintain control systematically. Tosafot emphasize this paradigm: ‫…ונראה דנטילה דהכא לא משום קדושה ונקיות כמו בנהמא אלא משום שלא יטמא המשקין‬ )‫להיות תחלה ויהא אסור לשתותן ולפסול את גופו… (תוספות על אתר ד“ה כל‬

Education 273 … It seems that washing here is not because of holiness or cleanliness as it is with bread, but so that one doesn’t impurify liquid to be unclean in the first order, such that it would be forbidden to drink it and impurify one’s body… There is no element of cleanliness in the hand-washing ritual, or even of holiness, according to the Talmudic commentary, but it is simply a matter of making sure one does not impurify liquids or foods, such that one would become impure by consuming the former. It is instead about maintaining a connection to an earlier system to which we no longer completely relate, one that still has connotations of a spiritual practice in the ways it likens everyone to a priest serving in the Temple. On the other hand, Ra’avad understands the ritual to be precisely about cleanliness as opposed to impurity. The practice of washing one’s hands typically includes pouring water over each hand twice, once to remove any impurity and once to remove the water that carries impurity. However, Raʼavad notes, according to the logic of tumah and taharah, this system would seem to be fundamentally flawed: any impurity in the first round of water would make the second round of water impure and therefore return impurity to one’s hands. Instead, he says: ‫…ואומר אני כי עיקר טומאת הידים שאמרו לא טומאת ודאי אלא טומאת ליכלוך מפני צואה‬ ‫או זיעה או (שהרגו) [שהרג] מאכולת וגזרו עליהן טומאה מאותו לכלוך כאלו נגע בטומאה ועשו‬ ‫אותן שניות לפסול את התרומה במגען ושלא לאכול בהן חולין אלא ע"י (הדחק) [הדחה] וזהו‬ ‫שאמרו ראשונים מטהרין את הידים כלומר מעוררין מהן את הזיעה ואת הצואה ואת הלכלוך‬ ‫ ובאין השניים ומדיחין אותן המים המטושטשות עם הזיעה והלכלוך‬,‫שעליהן שממנו הן טמאות‬ ‫ שאם יתן כל הרביעית בפעם‬,‫ונשארות הידים נקיות…ומפני זה צריך שיפסיק במים הראשונים‬ ‫ מ"מ המים הנשארים על היד משיירי הטשטוש‬,‫אחת הנה שהן מעוררין את הלכלוך שעליהן‬ )‫ תשובות ופסקים סימן כג‬,‫הם… (ראב"ד‬ … With regard to impurity of hands, I argue that it is not actual impurity but uncleanliness from waste, sweat, or killing food, and this uncleanness was decreed to be just like touching impurity. Hands are considered impure in the second order, which impurifies terumah by touch, and requires rinsing to eat unsanctified food. The first stream of water purifies one’s hands, which is to say it stirs up the sweat, waste, and dirt that are on them and make them impure. The second stream of water comes to rinse off the water that has been mixed with the sweat and dirt, leaving the hands clean…That is why one needs to stop after the first stream of water [and pause before the second stream of water]: if one poured the entire reviʻit at one time, stirring up the dirt on them, any water that remains on the hand would be remnants of the water [mixed with dirt]… According to this view, hand-washing before eating is about cleaning one’s hands from the very real dirt and sweat that accumulate as one moves

274  Jaclyn Rubin-Blaier through the world. The practice of pouring water two times is to make sure one’s hands are rinsed well, to make sure nothing remains behind once one has rinsed with water the first time. While Raʼavad and the Tosafot represent opposite ends of the spectrum as to the meaning of hand-washing, the Zohar offers a middle approach, combining the understanding of impurity as a spiritual taboo with the idea of cleanliness: ‫נטילת ידים קודם אכילה מ"ט בגין דאכילה אצטריך נקיות כגוונא דמלאכי השרת לעילא דהכי אמר רב‬ ‫ למאי נפקא‬.‫ לחם דמלאכי השרת אוכלים‬.‫המנונא סבא מאי דכתיב [תלים עח] לחם אבירים אכל איש‬ ‫מניה אלא [מה] מלאכי השרת אוכלים בקדושה ובטהרה ובנקיות אף ישראל כן צריכין לאכול בקדושה‬ ‫ובטהרה…(הכא) [והכי אמרי] והתקדשתם דכל האוכל בקדושה ובטהרה ובנקיות נדמה למלאכי‬ )]‫השרת שהם קדושים… (זוהר חדש כרך ב (מגילות) מגילת רות [דף כה עמוד ב‬ Why do we wash hands before eating? Because eating requires cleanliness, just like the ministering angels above. Rav Hamnuna Saba said: Why is it written [Ps. 78:25], ‘A person ate the bread of the mighty’? The bread of the ministering angels is eaten. What would be the practical difference except that just as the ministering angels eat in holiness, purity, and cleanliness, so too Israel needs to eat in holiness and purity… It says “Sanctify yourselves” (Lev. 11:44), for all who eat in holiness, purity, and cleanliness are like ministering angels who are called holy… Cleanliness here is explicitly related to holiness and purity, and the Zohar identifies cleanliness with the actions of angels, who are ritually pure, as they are removed from the human world that contains impurity. Children’s Understanding of Netilat Yadayim: As we have seen, there are (at least) three perspectives on hand-washing in halakhic literature, ranging from interpreting the ritual as one related to an ephemeral, spiritual cleanliness, derived primarily from priestly rituals, with eating framed as a controllable element of the human world, to understanding the ritual as one that is meant purely to increase hygiene, to a middle position that uses the language of both to equate the two positions. When the issue was presented to a group of eight- and nine-year-olds—in the context of learning about hand-washing before karpas at the Pesaḥ seder—these three positions similarly arose, before any of them had seen the above-mentioned texts presenting the positions. The discussion began with an introduction of the concepts of tumah and taharah, concepts with which this group of children was unfamiliar. Beyond using the commonly associated English words impure/unclean and pure/ clean, we discussed the question, “What are some things that make you say, ‘Yuck!’?” Responses included snails and worms and bodily waste, both things identified by the Torah as impure (for ‫ שרצים‬see, for example, Leviticus 11:44 and for bodily waste see Deuteronomy 23:1337). On the other hand, one child responded, “Doors on hospitals and all those buttons, they have these things called superworms, and they affect you and can give you lots of

Education 275 diseases”, articulating the hygienic perspective seen in Raʼavad. Others mentioned things they more generally did not like: wasabi, tuna fish, the noise made when someone turns a doorknob, and Pirate’s Booty, a popular snack. We then discussed why liquid transmits impurity more easily than solids, thus requiring one to wash one’s hands before dipping a vegetable in liquid. Sensibly, one child hypothesized that “the thing you put in liquid can absorb the water” and another that “since it’s liquid, it can go into different shapes and sizes of its container and maybe it’s easier to move”. Liquids may be more likely to spread something to another substance, as they move around more easily and can carry things with them. Intuitively, these children understood why tumah was spread when liquids touch other substances but not necessarily when one dry substance touches another dry substance. After learning the basic ideas presented in the sources presented above,38 we discussed the difference between cleanliness and holiness or purity. One child, Oren, related purity to the Temple, having learned earlier about the shalosh regalim (the three pilgrimage festivals), in which one is, according to the Torah, expected to go to the Temple to offer sacrifices—Pesaḥ being one of those occasions. He said, “it’s important to keep it pure. You need to be pure to go to somewhere where Hashem lives; it’s a very big privilege”. Aaron noted that one washes one’s hands before offering sacrifices in the Temple, and Pesaḥ is connected to offering sacrifices in the Temple. Both points indicate an underlying view that purity, at least in this case, is connected to priestly rituals, to bringing some of the sanctity associated with Temple rituals to the Pesaḥ seder. Beyond that, there is perhaps an intuitive association of purity with sacrifice, something Klawans argues in his explanation of purity.39 Because purity rituals precede entering the Temple and sacrifices, Klawans, like these students, sees the two realms of halakhah as irreversibly interwoven. Another important point to notice in these comments is an inherent, if inarticulable, understanding of ritual as performance. Ritual, here, is a reenactment of rituals associated with the Temple, a recalling of a connection to God that we no longer have, except the ritual itself that provides us a hint of this connection. Much like the seder itself, about which these children learned, “In every generation one is obligated to see oneself as if s/he has gone out of Egypt”,40 reenactment as ritual is a form of play, an inherent part of their worlds at their developmental stages, something that helps them understand the larger world around them. While there are important distinctions between ritual and play,41 the fact that play is second nature for children allows them an entry into ritual that many adults have since lost. Andrea suggested that “the difference is basically when you’re cleaning your hands you’re cleaning them but when you’re making them pure it’s like you’re purifying them instead of getting everything off”. Julia said, “Cleanliness is, like, to get all the dirty stuff off your hands, but holiness is more to respect God”. Zach said, “Cleanliness is to get all the gunk and sweat off your hands, and holiness is you’re doing a ritual to God”. Each of these children posited a

276  Jaclyn Rubin-Blaier difference between washing hands for hygiene and washing hands in a ritual manner, seeing the latter as a spiritual act meant to connect one to God, similar to the children who connected the ritual with priestly practices and the Temple. However, unlike the children who connected the ritual to the Temple, these children were unable to articulate what it was that made the ritual important. Julia, who said the ritual is meant “to respect God”, was the most descriptive, yet that phrase remains vague and broad. These children perhaps see the ritual as more formalistic, perhaps along the lines of the Tosafot who suggest it is about maintaining the proper categorization. Finally, Brian suggested that “holiness is the same thing as being clean. Because you need to be clean to be holy”. He took the middle position, like the Zohar, equating the terminology. Interestingly, Oren and Aaron, who connected the ritual to the Temple, are both children who come from more religious homes, who care deeply about their traditions and what they are learning about the halakhic aspects of Judaism. Brian, too, comes from an observant Jewish home. He connected less to the historical aspect of the ritual than he did to the spiritual explanation, while intuiting that the spiritual affects the practical and vice versa. Andrea, who distinguished between purifying in order to purify and cleaning in order to clean, comes from a home where there is minimal Jewish practice, so her primary exposure is the discussions she has at school rather than the experience of ritual in its context. Zach, who posited the reason for purifying is to “[do] a ritual to God”, comes from a home that is not precisely a halakhic home, one where he does not completely observe Shabbat but does come to synagogue sometimes. For him, the experiences he has may feel formalized and something he does because his family does, a formalistic experience that teaches him ritual is for the sake of ritual. Julia comes from a Conservative household, and her father is a synagogue leader. She cares deeply about her Jewish practice and learning halakhah. While children’s practices at home influenced which reasons they identified with, whether children come from more or less traditionally religious homes did not affect their ability to discuss and understand the meanings behind this ritual, making it relevant to their lives. Further, the distinctions we presented above between devotional and relativist approaches do not apply well here. Connections to the Temple, for example, can be seen as contextual, related both to the context of the ritual in history and to its echoes and reenactments today, as Oren and Aaron articulated; on the other hand, there remains an openness to exploring the import and meaning of the ritual, an anti-dogmatic approach to the discussion. Those children who offered more of a formalistic approach tended to come from homes with less integration of religion and ritual in their everyday lives (i.e., a devotional perspective). Yet they could intuitively relate their own experiences and worldviews to the ritual under discussion (i.e., a relativist perspective). The melding of devotional and relativist perspectives, of commitment to practice combined with open conversations, of bringing experience to bear on what one is learning and using that knowledge to better understand one’s experience, is a distinct advantage in a school that has children from all ranges of observance. Children hear all these perspectives elicited in a discussion,

Education 277 allowing them to digest other opinions, to hear the range of perspectives articulated in texts also articulated by peers. Conclusion While children in American Jewish day schools are not always exposed to rabbinic texts, and if they are, not necessarily in an in-depth manner, such exposure can carry great educational promise. The methodology of halakhah as practical wisdom—of integrating relativist and devotional perspectives on texts—is a powerful pedagogy that can be introduced early in children’s education. Learning to read and understand the Torah with critical eyes, to understand and discuss the different perspectives that may be motivating the characters in the texts, and to hear the diverse perspectives gleaned by readers of the text, provide children with skills that can be applied when they are later exposed to halakhah and rabbinic discussions. Further, in schools with children from diverse backgrounds with regard to religious observance, children are more likely to encounter different readings and observations. While children of any background may be more inclined toward interpretation based on their own experience (as is developmentally expected of elementary-school children) or to a closer reading of the text itself, the emphasis on the importance of these texts at home can influence their attitudes and therefore their interpretations. Engaging in conversation with children who offer different and still valid opinions widens the conversation. Both of these elements—learning to read carefully and engaging with different perspectives from peers—introduce children to a methodology that they can translate to an approach to halakhah. As we have shown, children are naturally inclined to engage with stories and storytelling, deriving insights deeper than we may imagine. This storytelling extends to halakhah and to ritual in particular. The latter often seems intuitive to children, and they can easily apply the story-like context to find meaning in ritual, often anticipating rabbinic positions presented in halakhic literature. It is thus sensible pedagogy to begin introducing this methodology as early as children begin learning about Judaic practice and texts, without fear that such a methodology is too complicated or subtle for their understandings and imaginations. As evidenced by the types of conversations in which children engage, such a pedagogy bridges the divide often found in Jewish education between devotional and relativist perspectives, allowing children to cultivate an authentic, intuitive, integrated conception of Judaism. Notes 1 Deut. 6:18. All Tanakh quotations are from Tanakh: A New Translation of the Holy Scriptures According to the Traditional Hebrew Text (Philadelphia: Jewish Publication Society, 1985). 2 E. Ancselovits, “Towards a New Theory of Halakhic Development” (PhD diss., Liverpool Hope University, 2012), 7–8.

278  Jaclyn Rubin-Blaier 3 S. Fox, I. Scheffler and D. Marom, Visions of Jewish Education (New York: Cambridge University Press, 2003), 32. 4 Fox, Scheffler, and Marom, Visions of Jewish Education, 33. 5 Ibid., 36. 6 M. Rosenak, “Supplement: Michael Rosenak”, in S. Fox, I. Scheffler, and D. Marom (eds.) Visions of Jewish Education (New York: Cambridge University Press, 2003), 211. 7 See M.W. Berkowitz, “What Works in Values Education”, International Journal of Educational Research 50:3 (December 2011), 153–158; S.G. Efron, “Old Wine, New Bottles: Traditional Moral Education in the Contemporary Jewish Classroom”, Religious Education 89:1 (Winter 1994), 52–66; K. Egan and G. Judson, “Values and Imagination in Teaching: With a Special Focus on Social Studies”, Educational Philosophy and Theory 41 (2009), 126–140; B. Hyde, “A Dispositional Framework in Religious Education: Learning Dispositions and Early Years’ Education in Catholic Schools”, Journal of Beliefs & Values 31:3 (December 2010), 261–269; B. Hyde, “Godly Play Nourishing Children’s Spirituality: A Case Study”, Religious Education 105:5 (November 2010), 504–518; D.L. Schein, “Research and Reflections on the Spiritual Development of Young Jewish Children”, Journal of Jewish Education 79:3 (August 2013), 360–385; M. Silverman, “Janush Korczak’s Life and Legacy for Jewish Education”, in H. Miller, L. Grant, and A. Pomson (eds.) International Handbook of Jewish Education (Vol. 1) (New York: Springer, 2011), 143–161. 8 A.J. Heschel, Moral Grandeur and Spiritual Audacity, ed. S. Heschel (New York: Farrar, Straus and Giroux, 1996), 16. 9 A.J. Heschel, God in Search of Man: A Philosophy of Judaism (New York: Farrar, Straus and Giroux, 1955), 45. 10 E. Gottlieb, “Development of Religious Thinking”, Religious Education 101:2 (September 2006), 242–260. 11 Gottlieb, “Development”; M.J. Shire, “Spirituality: The Spiritual Child and Jewish Childhood”, in H. Miller, L. Grant, and A. Pomson (eds.) International Handbook of Jewish Education (Vol. 1), 301–318. 12 J.M. Hull, God-Talk with Young Children: Notes for Parents and Teachers (Philadelphia: Trinity Press, 1991). 13 Hull, God-Talk, 71. 14 D. Hay and R. Nye, The Spirit of the Child (rev. ed.) (London: Jessica Kingsley Publishers, 2006). 15 S.D. Holloway, “The Role of Religious Beliefs in Early Childhood Education: Christian and Buddhist Preschools in Japan”, Early Childhood Research & Practice 1:2 (Fall 1999). 16 Efron, “Old Wine, New Bottles”. 17 Schein, “Research and Reflections”. 18 Silverman, “Janusz Korczak’s Life and Legacy”. 19 S. Achituv, “What Did the Teacher Say Today? State Religious Kindergarten Teachers Deal with Complex Torah Stories”, Journal of Jewish Education 79:3 (August 2013), 256–296. 20 H. Deitcher, “Once Upon a Time: How Jewish Children’s Stories Impact Moral Development”, Journal of Jewish Education 79:3 (August 2013), 235–255. 21 K. Egan and G. Judson, “Values and Imagination in Teaching”. 22 K. Egan, Teaching as Story Telling: An Alternative Approach to Teaching and Curriculum in the Elementary School (Chicago: The University of Chicago Press, 1986). 23 Hull, God-Talk. 24 All children’s names used here are pseudonyms. 25 See, for example, https://www.cnn.com/2017/08/12/us/charlottesville-whitenationalists-rally/index.html.

Education 279 6 Gen. 22:6, 8. 2 27 Ancselovits, “Towards a New Theory of Halakhic Development”, 7–8. 28 J.Z. Smith, To Take Place: Toward Theory in Ritual (Chicago: The University of Chicago Press, 1987), 109. 29 P.M. Cooper, The Classrooms All Young Children Need: Lessons in Teaching from Vivian Paley (Chicago: The University of Chicago Press, 2009); J. Frost, S. Wortham, and S. Reifel, Play and Child Development, 4th ed. (Upper Saddle River, NJ: Pearson, Merrill, Prentice Hall, 2012); G. Owocki, Literacy Through Play (Portsmouth NH: Heinemann, 1999). 30 J. Dwyer, personal communication, 9/16/14. 31 E. Jones and G. Reynolds, The Play’s the Thing (2nd ed.) (New York, NY: Teachers College Press, 2011). 32 L.E. Berk, Infants and Children: Prenatal Through Middle Childhood (7th ed.) (Boston: Pearson, Allyn and Bacon, 2012). 33 See Hull. 106a. 34 M. Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (New York: Routledge, 1984), 30. 35 J. Klawans, “Pure Violence: Sacrifice and Defilement in Ancient Israel”, Harvard Theological Review 94:2 (April 2001), 135–157. 36 Y. Furstenberg, ‫ מסורות ההלכה בין יהדות בית שני למשנה‬:‫( טהרה וקהילה בעת העתיקה‬Jerusalem: Magnes Press, 2016). 37 While human waste is not explicitly called ‫טמא‬, it is referred to as ‫ערות דבר‬. It is considered impure according to Qumran literature, although it can be argued that it is not a matter of impurity for the Rabbis. See A. Cooper, “Keeping Excrement Out of God’s Presence” (2015), https://thetorah.com/keeping-excrement-out-of-gods-presence/ 38 Although children at Luria Academy learn the Torah in its original Hebrew, learning complicated halakhic texts is beyond their skill level in third grade, particularly when the goals of a lesson are more focused on the content of rituals and religious life rather than on learning how to examine a text itself. Thus, the sources were presented in both Hebrew and English, and rather than reading each source, I summarized the ideas for the group. 39 Klawans, “Pure Violence”. 40 M. Pes. 10:5. 41 A.B. Seligman, “Ritual, Play, and Boundaries”, in A.B. Seligman, R.P. Weller, M. Puett, and B. Simon (eds.) Ritual and Its Consequences: An Essay on the Limits of Sincerity (Oxford: Oxford University Press), 69–102.

Afterword: Limits Thesis, Antithesis, Synthesis Phillip I. Lieberman

As a historian of Jewish life in the medieval Islamic world, I often have the opportunity to teach the “Story of the Four Captives” by Abraham Ibn Daud (c.1110–1180), included in his history Sefer ha-Qabbalah. Ibn Daud opens this tale explaining that “Prior to that it was brought about by the Lord that the income of the academies which used to come from Spain, the land of the Maghreb, Ifrīqiya, Egypt, and the Holy Land was discontinued. The following were the circumstances that brought this about”. When I present this story to my undergraduates, I point out that as a professional historian, I am not allowed to take the step that Ibn Daud does of ascribing historical events to the Lord. The conventions of my scholarly discipline prohibit my overlaying whatever religious or philosophical beliefs I might have about Divine Providence onto the unfolding of events in the medieval world I write about as a historian. Rather, as a social historian, I always look to context to ferret out the social forces that effect change. Yet the conventions of historiography as a discipline do not demand of the writer that she/he personally be an atheist, only that questions of divine involvement in history be shifted from the domain of the functional to the domain of the teleological. In fact, Ibn Daud is right on this mark in telling his story: while God might have willed that history unfold as it did, the actors in that history are figures in the natural world. It is the “commander of a fleet, whose name was Ibn Rumāḥiṣ” who takes the four itinerant rabbis hostage, and Jewish communities throughout the Mediterranean littoral who redeem these rabbis from captivity and adopt them as their local teachers and leaders. Thus, even if his Heilsgeschichte tells us the “why”, his Geschichte does not run afoul of telling us the “what”. While the position of the “devotionist” discussed by the editors in this volume is not described exclusively by an approach to history that places God at the center, this is frequently a component of the devotionist approach. In fact, we can use the study of history—and the question of the role of Divine Providence in history—as a tool for understanding the relativist-devotionist divide, for both appreciating what this book illuminates and for recognizing its limitations. Yet if the discipline of history sees the “why” and the “what” as distinct, the discipline of law does not. By its very definition, law (as opposed to legal history) is always interested in the normative. It is counterintuitive, then,

Afterword 281 even to posit a dichotomy in law between the relativist and the devotionist, unless we find it in the distinction between the legal historian and the jurist themselves. The editors have chosen to probe the relativist-devotionist divide in law, but as we shall see, history is itself vulnerable to this same claim as we ask “Why study history?”—and we might ask the same questions of philosophy, itself ultimately concerned with the proper way to live. And yet it is incontrovertible that many scholars—including me—do at least some of their work as relativists. They do not write Heilsgeschichte, but rather Geschichte. They do not discuss the role of God in history—even if they might ask philosophical questions about Divine Providence. What is it that relativists may come to learn from devotionists and vice versa? And if there is something there, how might these two groups come to grow in dialogue with each other? In pointing out the significant cost that relativists and devotionists pay for shutting each other out, the editors of this volume argue for “a new Jewish literacy” designed to enhance the scholars’ reading of Jewish history and context and to redirect gently the studies of talmidei ḥakhamim to include scholarship. The current wedge drawn between these groups could be seen as a phenomenon of the modern period, as Ibn Daud seems no more bothered by the intermingling of Geschichte and Heilsgeschichte than is his rough contemporary Maimonides in writing the Guide to the Perplexed, presenting its own synthesis of Athens and Jerusalem. The anxiety expressed by Leo Strauss in seeing this synthesis in the Guide, overcome with his argument that the synthesis is itself nothing more than illusory, is certainly at the heart of the isolation of the religious from the scholarly identified by the editors. What the editors propose is a return to a holistic and mutually reinforcing reading of tradition and history—an idea that would certainly not have troubled Ibn Daud and perhaps not even Maimonides, but clearly troubles contemporary minds in the settings of universities and yeshivot alike. The editors propose three solutions to this perceived tension: (i) broadening the Jewish canon, (ii) reading rabbinic texts themselves as engaged in warm conversation, and (iii) reconfiguring debate to revel in disagreement rather than in consensus. These solutions are not without their own problems. The intermingling of relativism and devotion glosses over the problem for the relativist that today’s devotion is not necessarily that of the historical Jew. Where religion is concerned, “history” is written by the victors; the breadth of voices in the Judaism of the first century CE is not reflected in the fixed liturgy of traditional Judaism in the twenty-first, nor does the Karaite schism present the same sort of challenge today that it presented a millennium ago. The suggestion that “a modicum of serious training in Jewish sources, life, and language(s)” will necessarily help the relativist understand the historical world seems somewhat dubious on its face, even if we might think that the devotionist might benefit from exploring “the various wider cultural, social, and historical contexts in which the Jewish experience they are analyzing has unfolded”. Does the devotionist care that lighting candles on Friday night identifies one as

282  Phillip I. Lieberman a Rabbanite and not a Karaite? Does this add to the richness of the ritual as fulfillment of divine commandment and covenant, or does it actually do the opposite—point to the ritual simply as a public display of one’s sectarian identity like wearing a scarf emblazoned with the name of one’s favorite football team? At the same time, the stickiness of ritual suggests that there is real power in the editors’ suggestion that the canon be broadened: lived religion, by definition, clusters around community. Where that community is intergenerational, the boundaries of norms and practices cannot shift too much without creating communal discontinuity. With this in mind, we may describe religious practice as “autoregressive”—in each time period, practice looks to its immediate precedents. While the experience of a community’s lived religion over time might not be directly contiguous with its distant predecessors, the movement of that lived religion from one period to another relies on small movements rather than Kuhnian paradigm shifts. Thus, when Moses visits the bet midrash of Akiva as described in Men. 29b, he can barely comprehend Akiva’s explication of the law. But when Akiva points out that the law he has explicated is ultimately rooted in the tradition revealed to Moses at Sinai, Moses’ heart is set at rest. Studying the practices of the devotionist may not directly help the relativist. It might even set her/him on the wrong path, causing her/him to see the past through the lens of the victors (in the aforementioned example, therefore, Moses is a relativist, Akiva is a dogmatic, and both win and get to write history, though neither recognizes his victory). But devotionist study cannot help but generate sympathy for the internal logic of the tradition the relativist aims to understand and the terms of debate that forged that tradition. This alone suggests the merit of the editors’ suggestion to “broaden the canon”. Yet are the goals of the relativist and that of the devotionist truly commensurable with one another? In the game of checkers, jumping over a piece captures it; in chess, only the knight can do this—and in so doing, the knight does not capture what it jumps over. The two games are played on the same board, but the rules are different. Even if we ignore that the rules are different, we cannot ignore that the goals are different. This is, it would seem, what Yosef Hayim Yerushalmi is really arguing in Zakhor—not that the memorialist ignores the details of history (although he might do so selectively—and at the same time the historian may do so, or simply deemphasize them, as well!), but that the goals of the memorialist are different from those of the historian. Thus, Ibn Daud’s Heilsgeschichte preserves historical details en passant to his goal of producing Jewish memory. The editors of this volume even point out that rabbinic figures such as Solomon Judah Loeb Rappaport, Tzvi Hirsch Chajes, and Samuel David Luzzatto valued Wissenschaft highly, but this alone does not overcome Yerushalmi’s critique. Likewise, I have written elsewhere (pace Yerushalmi) that medieval Jews actually did write plenty of “history”, but the intention of the medieval historiographers was certainly not the same as their contemporary descendants.1 Given this fact, we need to turn to the editors’ proposals for transcending the gap highlighted

Afterword 283 by Yerushalmi. At times, this can be productive—Daniel Isaac’s contribution in this volume, for example, identifies the complex positionality of medieval Hebrew grammarians as devotionists—and so it is worthwhile exploring the potential for this productivity. Yet much of what the relativists do with their time is irrelevant to the devotionists. We must ask whether it is indeed edifying for the devotionist to determine whether Maimonides was born in 1135 or 1138, or for the historian of the medieval period to know whether or not Hallel is recited on Israel Independence Day. I am not convinced that it is. But it may genuinely be the case that understanding the terms of each other’s debates will lead to mutual appreciation of the “warm conversations” going on within each sphere. What expanding the canon could do, though, is encourage the devotionist to see the divine voice as endogamous to the Wissenschaftlich study of Jewish texts—that is, God ever revealing divine will through the development of Judaism in light of history. Maimonides expresses a similar thought in the Guide, arguing that the development of worship out of sacrifice and into prayer was indeed divine will. This viewpoint could allow the relativist to appreciate and even to sympathize with the yearning of the soul to find meaning in history—to understand the desire to transcend the Rankean quest for “what happened” in favor of “what does it mean”. The essay in this volume by Tamara Morsel-Eisenberg and the essay by Elisha Ancselovits and Ethan Katz perform this sort of work by highlighting the place of historicism in legal decision-making by devotionist Jewish legal authorities in matters relating to family law. These important contributions bring those legal authorities out of an imagined halakhic echo-chamber into a world in which the real-life consequences for women and for the organization of the Jewish family are brought to the fore—even if those considerations are masked in the language of traditional legal reasoning. Likewise, Yonah Lavery-Yisraeli establishes the category of pain—particularly women’s pain—as a lens through which to read the Talmud in order to bring an experiential, almost empirical, approach that unhitches rabbinic literature from its imagined place in the rarefied domain of legal thought. Such a reading is as important to the relativist as to the devotionist, since it gives life and color to the relativist’s idealized concept of the Talmud as much as it gives the devotionist license to look beyond the text to see the text’s consequences. At times, this openness can teach the devotionist about her/his own viewpoint, as Matthew Goldstone suggests in his chapter bringing rabbinic and ancient monastic materials into a productive dialogue. In fact, this dialogue can be within the various layers of the devotionist text itself, as Aviva Richman shows in breaking down the historical strata in a pericope of the Babylonian Talmud. In her essay, Naomi Seidman traces out those consequences in order to bring a gendered perspective to the relativist-devotionist tension that is fruitful. There is no question that much relativist scholarship has been produced by individuals who studied (“learned”?) in devotionist contexts, and the restriction in devotionist contexts of the study of the Talmud to men has

284  Phillip I. Lieberman shaped—and continues to have a significant influence on—the field of academic Talmud study. Yet the current shift of academic Jewish Studies programs away from the study of traditional texts (perhaps, as the editors hint in the Introduction, because of the difficulty of teaching this material to undergraduates with no devotionist background) hardly provides a corrective. Likewise, a lack of encouragement of those trained devotionally to pursue teaching and research in relativist contexts will exacerbate rather than bridge the divide between the two, pace Seidman’s claim that “defections such as my own…can be powerful forms of gender intervention”. In his essay, “Terms”, Sergey Dolgopolski outlines in greater detail the third prong of the program sketched out in the Introduction—reconfiguring debate. Turning to the thought of Jacob Taubes (1923–1987), Dolgopolski essentially identifies the relativist and devotionist as adherents of distinct creeds. Taubes’ study of the Talmud and Paul alike highlights Taubes’ own place in what we might call “interfaith dialogue”. This is not far off the mark. However, in a broader society that increasingly eschews dialogue and within university settings firmly in the dogmatically secular camp—not just separating themselves from but even failing to appreciate the value of the “religious”—it is difficult to imagine the relativist accepting “disagreements and well-structured uncertainty as conditions for authentic human action and knowledge”. While within the relativist world these conditions are (presumably) accepted as ground rules—one need go no further than the thought of Thomas Kuhn to understand that within every working paradigm there are substantial areas of disagreement and uncertainty—the wedge between the relativist and the devotionist is more substantial than that which might be bridged by the sort of humility and acceptance of uncertainty imagined by Dolgopolski. While devotionists might engage in interfaith dialogue with the understanding that their interlocutors might not accept some of their own fundamental premises—say, the perfect parsimoniousness of the Hebrew Bible, or that Jesus is the son of God and the messiah, or the divine revelation of the Qurʾān—what the devotionists do share is an expectation that the engagement with the object of their study (that is, their own religion) will change them personally. The relativist hearkening back to Herodotus would feel this way as well—but would the Rankean? That is, as long as the relativist persists in the pretense that scholarship is a “values-free” enterprise, untainted by one or another political agenda, the possibility for meaningful dialogue has collapsed. All that the scholar might gain is more data and a broader contextual understanding—once again, more grist for the mill. For this, the relativist does not need the devotionist at all. However, when the relativist comes to realize the limits of her/his relativism—that indeed, political agendas underpin scholarship in a way that rivals that of the devotionist—then the two can enter into the sort of dialogue imagined by Dolgopolski. The sort of debate he imagines relies on the understanding that multiple sustainable logical equilibria might exist simultaneously in debate with one another, and we often see this sort of debate in

Afterword 285 political, scholarly, and religious circles alike. But disagreement and debate presume that the interlocutors are not talking past each other. Where they are, what we have is not disagreement per se but rather what Dolgopolski calls “spurious disagreement”. Perhaps, then, as the editors point out in their introduction and as Dolgopolski details in his chapter, the best hope for this sort of dialogue is for the interlocutors to open up the terms of discussion— to understand that they are no less religiously loyal to their own agenda than the devotionists—so that they can engage in genuine disagreement. It is here that Ancselovits’s idea of “warm conversations” may be of some use. As the editors explain in the introduction, warm conversations ask the interlocutors to “try to determine what experience or insight a person is trying to communicate with their words or concepts—rather than fixate on the person’s words or concepts”. Warm conversations acknowledge the breadth of the semantic range of both words and concepts, and make it possible to cross the bridge between opposing views. The sympathetic ear that warm conversations turn to recognizes the humanity in one’s interlocutor, reminiscent of the Buberian I-Thou relationship. In the words of the editors: “As fellow human beings facing similar human problems, they have been talking about the same limited range of real-life concerns and even solutions that we share—even if in different terms shaped by different conditions”. The medieval historian S.D. Goitein is known for having declared, “I too was once a medieval man; now, I am a medievalist, which is, of course, quite a different matter”. Yet Goitein surely saw himself in the objects of his study, and his self-assessment hints at a productive tension rather than a binarism between these two characterizations—allowing him to hold these two, perhaps conflicting, ideas simultaneously in his mind. This is, of course, F. Scott Fitzgerald’s famous quip in his 1936 essay in Esquire Magazine, “The Crack-Up”: “The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function”. Pushing the frontiers laid out by Dolgopolski farther, Bruce Rosenstock reads Leo Strauss to “challenge […] the assumptions upon which this binarism is built: that relativists are truly distanced readers and that only devotionists are faithful to the truth claims of the tradition in which they are ‘steeped’”. The obverse of Rosenstock’s reading of Strauss is David Myers’ reading of Rav ShaGar, in which Myers sees in the writings of the devotionist rabbi a “soft postmodernism” that sought succor rather than disillusionment in relativism. Yet even if relativists studying devotion itself—or, say, the history of Jewish theology or thought—need to strive to climb into the heads of the devotionists, and even if some devotionists—say, Rav ShaGar—could find comfort in strands of relativist thought, it is difficult to ignore the tension between the two. The editors write that “we relate to authorities of Jewish law as warm conversation partners – even when their positions insult or horrify our specific beliefs and values”, but it is difficult to imagine a relativist taking to such a warm conversation in the face of such horror. While this sort of dialogue

286  Phillip I. Lieberman might be possible in an interfaith context, where one is free to acknowledge the other as dead wrong—and when one is anchored in one’s beliefs, one may comfortably judge the other—the relativist who does not acknowledge that secularism is itself a religion does not have this same luxury. No rabbi, priest, or imam in interfaith dialogue is afraid of losing her/his faith by virtue of that dialogue.2 But the very association of the relativist with the devotionist—not to mention the sympathy of the relativist for the devotionist—can degrade her/his secularist bona fides. For the relativist, warm conversation with those whose beliefs are insulting or horrifying is itself a vindication of those beliefs. Think, for instance, of legal prohibitions against Holocaust denial or against hate speech: for the secularist, warm conversation is tantamount to tacit endorsement. This is perhaps ironic: the certainty of the devotionist gives her/ him the confidence to participate in conversation, while the relativist—whose very lifeblood is the agnosticism of scholarly debate—cannot. As the editors propose, and as is emphasized further in Dolgopolski’s chapter, we might cut the Gordian Knot of relativism and devotion by unmasking the relativist as no less committed than the devotionist to a specific set of beliefs, practices, and values. Rabbi Dr. Neil Gilman, professor of theology at the Jewish Theological Seminary, is known for having quipped to atheists, “Tell me about the god you don’t believe in, and I’ll tell you that I don’t believe in that god either”. Gilman was, perhaps, channeling Maimonides’ via negativa. But at the root of this banter was a serious message: there is potential for dialogue. The Rankean historian’s theology does not allow her/him to ascribe events to God and perhaps not even to see a teleological unfolding of history as understood by Ibn Daud. But by interrogating the ideals, goals, and values of the field, the relativist is forced to admit her/his fealty to an underlying ethic that can allow her/him to participate in dialogue with those whose ideals, goals, and values differ radically from her/his own. The older we grow, the more we tend to become invested and established in our paths, and the harder such dialogue can therefore become. But as Jaclyn RubinBlaier demonstrates in her contribution, children are often quite receptive to a dialogical approach that treats traditional Jewish law and practice as practical wisdom that embeds values, in lessons where there is space held open to both devotional and relativist outlooks. In fact, she draws upon research that suggests such dialogue can contribute importantly to the development of personal identity. Whether we root ourselves in the world of academia or the beit midrash, perhaps we all need to regain this same kind of childlike openness and wonder in our dialogue. In essence, the editors have encouraged those of us who are relativists to think about the tacit assumptions of our life’s endeavor, knowing full well that the result will be to unmask, and that the relativist, dislodged from her/his perch imagined to be above the fray, will find herself/himself smack in the middle of it. The real benefit, then, when Jews argue well, is not consensus, but rather each side’s deeper appreciation of itself and of its own values. The trick is to emerge from the Pardes in a greater state of wholeness.3

Afterword 287 Notes 1 See, for example, my article, Phillip I. Lieberman, “Jews as Producers and Consumers of History in the Medieval Islamicate World”, Quaderni di Studi Arabi 16 (2021). 2 Note, therefore, the greater concern of contemporary rabbinic authorities with the possibility that an Orthodox Jew might enter a Conservative or Reform synagogue than with the possibility that she/he might enter a church. 3 For the story of the Pardes to which I allude here, see Ḥag. 14b.

Index

Abraham, patriarch 268 academia 286; academic relativism 1, 4, 5, 8–10, 90; and academics 1–24, 25n8, 37–39, 42–45, 49, 50, 53, 54, 58, 77, 89, 90, 107, 124,134, 148, 176, 186, 205, 212, 220, 235–239, 247, 252, 256, 261, 284; academy 2, 5, 11, 24, 42, 176, 234–239, 244, 247, 250; scholarship 1, 4, 5, 8, 10, 12, 17, 38, 50, 176, 212, 220, 252 Achituv, Sigal 266, 267 adultery 81, 111, 121, 131, 132, 214, 225 afterlife 63–67; see also death aggadah 191, 192, 200 Albeck, Hanoch 212 alienation 19, 42, 46 Amoraim 178, 222, 223 anachronism 4, 58, 61, 62, 92 Ancselovits, Rabbi Elisha 10, 14, 17, 21, 22, 103–134, 158, 261–263, 269, 283, 285 anthropomorphism 43, 53 antiquarianism 91 antiquity 91, 176, 177, 183, 185, 205, 206, 225 antisemitic 113–114 antisemitism 134, 268; see also antisemitic Arabs 257, 258; Arabic 8, 148, 151,152, 154; see also Judaeo-Arabic Aramaic 25n8, 151, 222 Aranoff, Deena 235, 247 archives 25, 59, 61, 70, 74, 238 Asher ben Yeḥiel, Rabbi 77, 82, 88, 101 Ashkenaz 12, 81, 83, 107, 148, 227, 236

Assmann, Jan 60, 63 astrological signs 82, 83 Athens 59, 74, 281 Augustine, Saint 225, 226; and City of God 225 Auschwitz 115, 116, 121 Avuha deShmuel 208–213, 217–224 Ayin (nothingness) 181, 254–256 Babylonian Exile 64, 159, 160, 161, 222 Babylonian Talmud 48, 206, 214, 217, 283; see also Bavli; rabbinics; Talmud Bacharach, Rabbi Yair Ḥayim 8, 77–93, 94n4, 102, 148 Bais Yaakov 234, 240–246; and Bais Yaakov Journal 241, 142 baraita/baraitot 210, 213, 217–223 Baron, Salo Wittmayer 11 Basya, Reyna 239 Baumgarten, Elisheva 13 Bavli 22, 205–208, 217–223, 226, 227; see also Babylonian Talmud, rabbinic, Talmud beatitude 63–67 beit midrash 2–5, 8, 9, 16, 19–21, 37, 42, 54, 58, 104, 176, 200, 206, 238, 239, 250, 286 Berkovitz, Jay 8, 13, 91, 92 beruf 39–42, 54n5 bible 8, 9, 39, 40, 43, 58, 61, 65, 151–154, 162–164, 177, 237, 244, 247, 265, 267, 272; commandments 177, 182, 195, 199, 241, 266, 282; commentators 148; law 35, 65, 108, 109; prophecy 153; and studies 49, 67, 237, 272; see also Pentateuch, prophet

Index  289 bildung 41, 56n14 bourgeois 242 Boyarin, Daniel 207, 237, 239, 248n12 Breisch, R. Mordechai Yaakov 105, 106, 110–112, 119–129, 132–135 Breuer, Isaac 251, 252 Buber, Martin 266; and I-Thou relationship 75n5, 285 Budapest 113–115, 121 Buddhist 189, 266 canons 9–14, 21–23, 58, 78, 80, 147, 186, 200, 206, 214, 250, 281–283 Canpanton, Rabbi Isaac 19, 20, 32n72; and The Ways of the Talmud 19 captive wife 209, 212, 220 Chajes, Hirsch 9, 282 children: American Jewish day schools 277; education 262, 277; symbols of reconstruction 106, 130 Christianity 12, 23, 177; ascetics 185; Catholic 40, 54n5, 107; and church 64, 184, 225, 265; confession 39, 40, 54n5, 155, 156; discourses 225; monastic literature 176, 185; philosophy 25n8, 72; Protestant 40, 54n5, 56n15; society 13; supersessionism 63; texts 44, 45, 47, 49; see also Jesus Christ Church Fathers 39; and monastic literature 177 circumcision 84–86; and female circumcision 256 coercion 22, 64, 117, 205–227 Cohen, Hermann 60, 68 Cold War 134 conservatives 11, 68, 69, 90, 107, 113, 234, 236, 238, 245, 251, 253, 276 contextualist 4, 5, 38, 59, 78, 89, 93, 261 conversion 105, 111, 120, 125–129 David, king of Israel 67, 153, 155, 156–161, 171n62 death 63, 66, 71, 84–88, 102, 115, 131, 190, 223–226 decisionism 47, 48, 50, 51 deconstructionism 254 deism 43; deists 47, 49, 64, 67 Deitcher, Howard 266, 267

Delmedigo, Yosef 86, 101 demonism 40–42, 53, 55n6, 55n10, 55n12, 194; and dumah 139n39; see also Scholem, Gershom Derrida, Jacques 250, 253, 258 devotion: as absolute dedication 177; and affect, body, suffering 188, 190; and Beruf 39; definition of 4, 5, 37, 58, 205; and dogmatism 38; and relativism 38; and text 6; and warm conversations 260 devotion-relativism conundrum: binary 19, 20, 22, 39, 103–104, 235, 260, 188; chasm 9, 37, 77–78, 185–186; and children 260; combining 205–206; conflict 250; and contextualist-textualist chasm 93; conundrum 9, 37, 42, 51, 58–59; and critique 207; critique of 103; defining disagreements/debates 17–21, 38, 59, 104, 188, 234, 250; dilemma 18; and the discipline of history 77; divide 22, 36n82, 147–149, 277, 280–286; and exegesis of Scripture 147; expanding the canons/contexts 10–14, 58–59, 77–78, 104, 147, 206, 234, 250; as a false dilemma 19, 200, 235; and gender 205–207, 234–239; Gordian knot of 286; and Hebrew grammar, philology 148, 158; and historical consciousness 79; and Kant 18; moving beyond 38, 54; and rabbinic ethics 176; and radical hesitation 47; reading as warm conversations 14–17, 78, 104, 147, 176, 188, 260, 206; and transcendentalism, 53, 54; and transhistorical horizon 74; third space between 23; three approaches to 9–21, 176, 206, 280–286; see also relativist-devotionist devotional, religious/pious 1, 2, 10, 41, 108, 148, 189; interplay with relativism 42; mistakes of 42–43; and relativist studying devotion 285; and warm conversations 260; see also dogmatism disagreement: productive 9, 24, 234, 250; spurious 53, 285; and true 20, 21, 37, 44, 45, 51, 54

290 Index Divine Providence 14, 63–67, 163, 241, 280, 281 dogmatism 5, 37–53, 54n1, 55n6, 56n14, 73, 268, 276, 282, 284 Eastern Europe 16, 104, 112, 115, 118, 147, 234, 242, 246 Ecclesiastes (Qohelet) 60, 62–67, 74 eclecticism 250, 252 education 6, 7, 14, 16, 23, 41, 105–107, 201–203, 234–240, 244, 260–277; see also religious education Eliezer, Rabbi 190–196, 240–244 empathy 16, 30n65, 201, 3261 Enlightenment, European 14 epistemology 251, 255, 257 eschatology 21, 38, 42, 45–47, 50, 53, 150 ethics 18, 22, 38, 45, 68, 107, 132, 176–186, 193, 194, 197, 202, 255–257, 286 European Jewry 14, 107, 110, 118, 122, 134, 238 exegesis 59, 67, 147–150, 153, 155 exile 60, 62, 65, 106, 129, 159, 160–162, 257 Exodus 48, 262 externalism 42 Ezekiel, prophet 153 Felski, Rita 236 feminism 234–247, 250; devotion 236; and feminist critique 239; rabbinic authority 59; sexuality 207, 224 Foucault, Michel 38 Frankel, Zacharias 90, 93 Galician Jewish tradition 111 Gaon, Saadiah 150, 153, 154, 158 Geiger, Abraham 90 Gemarah 3, 252; see also Babylonian Talmud; Bavli; rabbinic; Talmud gender 13, 192, 194, 203n21, 234–239, 242–247, 283; see also sex Genesis 268 gentiles 48, 49, 111, 116, 120, 125, 130; and gentile women 105, 124–128, 134 Germany 7, 12, 14, 61, 85, 89, 92, 105, 106, 111, 112, 116, 118, 123 ghetto 107, 114, 117, 134, 243

God/G-d: as sovereign 62–64; belief in 2, 3, 43, 66, 75n5, 241, 243, 284, 286; biblical 21, 40, 43, 108, 153–164; educating children 264–271, 275, 276; fearing 128; oppose to gods 43, 71; in rabbinics 184, 185, 189, 193, 262; of Israel 21, 47–51, 65; and word of 9, 78, 153; see also Ayin; Divine Providence; Kant, Immanuel; monotheism; revealed law Graetz, Heinrich 8, 9, 11 Grafton, Anthony 92 Greek, Classical 198 Greek mythology 15 Greenberg, Rabbi Shimon Gershon 251, 252 Grossmann, Atina 117, 118 Habakkuk 150, 156, 159–164 halakhah 12, 13, 16, 17, 22, 23, 78–84, 88, 90, 91, 105–110, 125–128, 135, 173n86, 194, 195, 206, 212, 260–263, 269–272, 275–277; and asmakhta 91 haLivni, David Weiss 207 Hasidism 23, 111–114, 240, 243, 246, 252–256 Haskalah (the Jewish Enlightenment) 13, 14, 91, 92, 94n4, 94n5 Hebrew language 25n8, 147–157, 283; and tri-literal root system 151, 156 Heilsgeschichte 280, 281, 282 Heschel, Abraham Joshua 264–266 Hirsch, Rabbi Samson Raphael 8, 20, 242 history: academic discipline 55n8, 153, 176, 213, 276, 280–286; essence of 39, 43, 46, 47, 56n18; European 7, 14, 26, 237; historical consciousness 77–80, 89–93; historical context 11, 13, 61, 77, 78, 80, 89, 104, 129, 131, 205, 206, 262; historical perspective 6, 78–81, 90; historicism 16, 68, 69, 79–81, 92, 93, 162, 283; historicity 7, 92, 94n5; and transhistorical truth 61, 69, 75n5; see also Divine Providence; Jewish, history

Index  291 Hitler, Adolf 106 Hobbes, Thomas 62, 71 holocaust 103–135, 245, 251, 286; death camps 121, 122; and displaced persons camps 107, 118, 133; shoah 103–106, 113–118, 129, 135; see also Auschwitz; Nazi humility 176–185, 284 Iberia 147–155 Ibn Chiquitilla, Moses 147, 150–164 Ibn Daud, Abraham 280; and “Story of the Four Captives” 280 Ibn Ezra, Abraham 152, 158–160, 163, 164 Ibn Quraysh, Rabbi Judah 151, 157, 159 idolatry 124 immortality 64–67 impurity 35n75, 35n77, 179, 214, 215, 271–275; see also purity laws incest 109, 120, 131 intermarriage 128 International Refugees Organization (IRO) 106 Isaiah, prophet 153, 187n13 Islam 25n8, 72, 280 Israel: biblical 21, 41, 47–51, 65, 67, 102, 152, 154, 159, 163, 196, 214, 274; children of 159, 160; and Independence Day 283; modern state of 3, 8, 60–62, 118, 252, 254, 257, 258, 267 Israelite 48, 49, 160, 214, 221, 241 Isserles, Rabbi Moshe 83, 84, 87 iyyun (speculation) 19, 20, 51 Jehoiakim, king of Judah 180, 181 Jeremiah, prophet 160 Jesus Christ 68, 138n31, 284 Jewess 120, 129, 130 Jewish: history 7–12, 27n30, 74, 79, 103–110, 134, 157, 261, 281; literacy 24, 262; masculinity 239; philosophy 58, 60, 61, 66, 67, 70, 73, 74, 75n5, 217; scholarship 1, 79, 235; society 109, 119, 128, 238; status 105, 126; law (poskim) 11, 12,16, 40, 77, 103–110, 128, 134, 135, 226, 260, 271, 285, 286; studies 1–11, 14, 17, 19, 24, 37–39, 47,

50–53, 59, 78, 107, 234–236, 247, 261, 264, 284; and thought 40, 41, 251; see also Judaism; non-Jewish; rabbinics Judaeo-Arabic 25n8, 151, 152 Judaism 1–12, 22–24, 25n8, 27n30, 44, 55, 56, 60, 73, 75n5, 81, 89, 93, 107, 111, 112, 121, 124–130, 133, 173n86, 177, 242, 246, 250–258, 262, 264, 268, 269, 277, 281, 283; halakhic 124, 126; liberal 68; modern 79; Orthodox 9, 90, 105; rabbinic 6, 7, 25n8; reform 25n8, 90; Talmudic 206; traditional 3, 6, 9, 13, 81, 90, 111, 242, 252, 281; and Ultra-Orthodox 13; see also Israel; Jewish; Orthodoxy; rabbinics Judenfrage 61 justice 159, 192, 194, 251, 255–257; and divine justice 63, 64, 161 Kabbalah 14, 27n30, 81, 85, 88–92, 94n4, 97n35, 101, 243, 254– 256; see also mysticism Kalish, Rabbi Tzvi Hirsch 105, 106, 114–116, 123, 129, 134 Kant, Immanuel 18–21, 40, 43, 45, 55n12, 252; and Kantian transcendentalism 37, 38, 42, 44, 49–53; on God 43, 49 Karaites 151, 154; and Karaite schism 281–282 kibbutzim 106 Kierkegaard 189, 196; and Either/Or 196, 197 Klawans, Jonathan 272, 275 Kook, Rabbi Abraham Isaac Hakohen 20–21 Korelitz, Abraham Isaiah 245 Lamm, Norman 21 language 3, 11, 15, 16, 22, 106, 108–110, 117, 147–163, 179, 180, 196, 198, 211–215, 227, 255, 260–266, 270–274, 281, 283; and grammatics 47, 148–154, 157, 158; see also Hebrew language; Judaeo-Arabic law see halakhah; rabbinics; revealed law; Talmud Yerushalmi Leviticus 177, 182, 274

292 Index Libson, Ayelet 206 Liska, Vivian 40 Lucretia 225, 226 Luria, Rabbi Shlomo 87, 102 Luzzatto, R. Samuel David 9, 282 Macarius, Abba 185 Maccabees 74 magic 81, 85, 96n30, 199, 222 Maimonides, Moses 20, 25n8, 44, 67, 73, 74, 75n5, 159, 252, 281, 283, 286 mamzer/mamzerut 22, 103–110, 114, 119–131 marriage 81–87, 101, 102, 105, 108–111, 118–133, 210, 219, 236, 242, 245 martyrological devotion 188, 190 mazal (astrological sign) 82–87, 100, 101 Mendelssohn, Moses 14, 22; Jerusalem, or on Religion Power and Judaism 60; and on Torah 58–67, 73, 74n3; see also Qohelet Rabbah meritocracy 239 messianism: allusions 161–163; messiah 27n30, 152, 284; Messianic Age 62; and messianic state 252; redemption 153, 162 Midrash 14, 21, 44, 48, 51, 155, 157–161; and Shiggayon 147, 150 Mishnah 206, 210–216, 220, 221, 228n16, 245; and Makshirin 214–216; see also Talmud Yerushalmi misogyny 244 monotheism, ethical 68, 256 Moses, prophet 21, 47–53, 63–65, 72, 234, 235, 272, 282 Muḥammad, Islamic prophet 72 Muslims 1, 72, 146n140; see also philosophy mysticism 27n30, 40, 55n8, 55n12, 80, 86, 88, 252, 258; see also Kabbalah; Scholem, Gershom myth 15, 71, 122, 225, 238, 239; see also Greek mythology Nahman of Bratslav, Rabbi 250, 256, 266 Nahman of Breslov, Rabbi 256 Nahum, Mordecai Martin 122

nationalism 251, 257 Nazi 104, 106, 111, 112, 114–118, 129, 135 Nesiah, R. Yehudah 180, 181 nihilism 251, 253 non-Jewish 5, 12, 13, 25n8, 106, 127 Numbers 214, 218 Nye, Rebecca 265 Old Testament 49, 64 Orlean, Yehudah Leib 241–243 Orthodoxy 25n8, 26, 135, 235, 236, 240–246; see also halakhah; Judaism; rabbinics Palestine 8, 106, 114, 252 Passover 242, 271 Paul, apostle 21, 44, 53 Pentateuch 59, 182; see also Bible philology 90, 92, 147–158, 164, 185 philosophy: antique 217; Aristotelian 19, 21, 25n8, 44, 49, 51; encountering Talmud 10, 18–20, 51; Greek 59, 61, 70–72; medieval 25n8, 60, 67, 68, 72, 73; modern 69–71; Muslim 1, 72; Neo-Platonic 16; pedagogical 260, 266; Solomon as a philosopher 67; and Western tradition 45, 47, 252; see also Christianity; Judaism; Kant, Immanuel; rhetoric; Solomon; Taubesian transcendentalism Piaget 264 Plato 66, 67, 71, 72; and Phaedo 66 polis 71 Polish 113, 243, 247 postmodernism 23, 250–258, 285 Powell, John Enoch 149 Preston, Theodore 65 priest (kohen) 117, 154, 192, 208, 219–221, 241, 272–276 prophet 9, 48, 72, 152, 159–164, 241 Psalms 147, 152–164, 180, 243 purity laws 170n59, 206, 214, 220, 242, 271–275; see also impurity qatlanit (lethal woman) 77, 81–89, 95n51, 100, 101 Qohelet Rabbah 63, 74n3; see also Mendelssohn, Moses Qurʾān exegesis 147, 150, 153, 154, 284

Index  293 rabbinics: langue 110, 112; law 9, 16, 23, 103, 124, 158, 234, 243; responsa 13, 14, 77, 81–83, 101, 110, 112, 124–127, 148; texts 3, 4, 8, 37, 47, 50, 104, 135, 183, 205, 215, 244, 269, 277, 281; thought 20, 25n8, 44, 49; tradition 10, 26, 37–39, 44, 45, 54, 79, 107, 108, 137, 158; and transcendentalism 10, 20; see also God/G-d; halakhah; Talmud Yerushalmi Rabinovich, Boruch Yesoshua Yerachmiel 113 rape 108, 116–118, 121, 133, 192, 205–209, 212–227 Rappaport, Solomon Judah Loeb 2, 282 Rashi 156–159, 199, 244 Rawidowicz, Simon 257 relativism: academic 1, 10; and context 6; definition of 4, 5, 37, 55n3, 58, 205, 236; and demonism of Wissenschaft des Judentums 40; and dogma 38, 54n1; and dogmatism 38; and history 77; interplay with devotion, 42; and pain 190; and mistakes of 42–43; and postmodernism 251; and suspicious reading of literature 236; see also skepticism relativist-devotionist: binarism 61, 72, 74; conundrum 42, 58; and divide 280, 281, 283; see also devotion-relativism conundrum religion, academic study of 10–13, 25n8, 60–64, 68, 148, 191, 247, 264, 265, 269–286 religious education 264; see also children; education revealed law 6, 60–67, 72–74, 75n5; see also Strauss, Leo revelation 12, 49, 64, 71, 284 rhetoric 18–20, 25n8, 48–51, 78, 82, 92, 100, 133, 150, 153, 154, 159, 162–164, 201 ritual 17, 31n70, 78, 91, 238, 254, 264, 269–277, 282 Roman: culture 207; occupation 199, 212; prison 196; and sexuality 207, 225 Romans 48 Romanticism 247 Rosen-Zvi, Ishay 206, 222

Rosenak, Michael 262, 263 Rosenzweig, Franz 60 Sacks, Rabbi Jonathan 32n72 Saul, king of Israel 155, 159–161 Scheffler, Israel 263 Schein, Deborah 266 Schenirer, Sarah 234, 240–247, 250 Schmitt, Carl 47, 50, 51, 62 Scholem, Gershom 27n30, 40–42, 53, 55n8, 55n10, 55n12, 60 Schorsch, Ismar 79, 81, 90 Schwartz, Joseph 106 science 25n8, 55n8, 41, 42, 54n6, 70–72, 79 secularism 5, 45, 54n5, 56n15, 62, 105, 134, 190, 235, 239 sex: act 206, 210, 211, 215–227; consent 22, 205–227; crimes 206; coercion 117, 205, 207, 209, 224–227; morality 207, 213, 224–226; and violence 192; see also adultery; gender; rape Shabbat 194, 262, 276 shalosh regalim (the three pilgrimage festivals 275 Shapira, Rabbi Hayyim Elazar 112, 113 Sheehan, Jonathan 10 Sheʼelot Uteshuvot 81, 112 Shimon bar Yoḥai, Rabbi 80, 87, 102, 180, 199–202 Siegal, Michal Bar-Asher 183 Sifrei Zuta 214–216 sin 120, 127, 155–158, 185, 214–217, 224–227 skepticism 37, 38, 41; see also relativism slave-women 105, 110, 119, 123–128 Socrates 71, 81 sod (esoteric knowledge) 86, 88, 101 Solomon, philosopher-king of Israel 63–67, 73, 74 Soloveitchik, Haym 108 Sorkin, David 14, 60 soul 63–67, 85, 86, 102, 189, 194, 241, 251, 283 sovereignty 47–50, 60–64, 74, 112 Soviet Ukraine 105, 110, 115 Spinoza, Baruch: Critique of Religion 61, 68; on Torah 58–69, 73, 75n5; and Theological-Political Treatise 60–61 spirituality 262–266 Stampfer, Shaul 238 State law 105, 124–126, 128, 129

294 Index Steinschneider, Moritz 90 Story of the Four Captives 280 Strauss, Leo 58–62, 66–74, 75n5, 281, 285; and “How to Study Medieval Philosophy” 60, 67, 73 subjectivity 38, 54, 206, 207, 221, 224–227 suffering 107, 163, 188–201 Talmud: academic study of 11, 37–39, 59, 107; Aristotelianism 21, 46, 44, 49; encountering philosophy 1, 10, 18–20, 51, 37–39; ethics 177–186; in Jewish studies 14, 50–52, 59; intellectual discipline 17–23, 25n8, 44–45, 48–53; on illicit sex 206–227; pain 188–202; post 132, 251–253; rationalism 20, 21, 37, 44, 49, 50, 53; talmid ḥakham (student of the wise) 4, 200, 251, 281; teaching children 271; and women studying 234–247; see also Babylonian Talmud; Bavli; halakhah; Kabbalah; mazal; qatlanit; rabbinics; Talmud Yerushalmi; Zohar Talmud Yerushalmi: Sotah 215–217, 223, 226; Tanhum 159; and Targum 85 Tannaim 87, 131, 177–179, 208–213, 217–221; and Tannaitic law 17 Tarfon, Rabbi 109, 123, 127, 128, 179 Taubes, Jacob 21, 37–39, 42–54, 284; and die fremde 42, 45–47, 53 Taubesian transcendentalism 37, 42, 47, 49, 51, 53 teleology 280, 286 telos 18, 42, 46 textualism 5, 38, 39, 78, 80, 90, 93 The Sayings of the Desert Fathers 183 theocracy 60–65, 74 theodicy 164, 193 Theological-Political Treatise 60 Torah: on consent 208, 209; on educating children 274–277; on feminism 240–247; on pain 193–202; scholarship 11–113, 238; study 3, 6, 75n5, 120, 155, 189, 250–254; and tribunal 72–74; see also Mendelssohn, Moses; Spinoza, Baruch

Trachtenberg, Joshua 85 Tractate Arakhin 178 Tractate Ketubot 205, 208, 217, 220–227 Tractate Shab 62 traditionalism 4, 5, 8, 16, 112, 134, 147, 189 transcendentalism 10, 18, 20, 37, 38, 42–54 Twersky, Isadore 91, 92, 94n4 Vygotsky 264, 266 Warburton, Bishop William 63; and The Divine Legation of Moses 63 warm conversation 14–17, 21, 23, 78, 147, 260, 281–286 Weber, Max 16, 40, 42, 54n5 Weil, Rabbi Yacov 83,84 Weiss, R. Yitzchok Yaakov 105, 106, 110–114, 117–124, 126–129, 132, 133 Western thought 17, 50 Wilhelm, Judge 197, 198 Wimpfheimer, Barry 207 Wissenschaft 7–9, 22, 27n30, 37, 40–42, 53, 54n6, 55n8, 55n10, 77, 79, 81, 89, 91, 94n4, 95n5, 282, 283 wolf children 106 women Talmudists 239 women’s liberation 235 Worms, Rabbi Aaron 8 yarmulke 234–337 Yerushalmi, Yosef Hayim 7, 79, 282; see also Zakhor yeshiva 2–9, 25n8, 55n6, 110, 112, 124, 234–239, 245, 251, 252, 257; and Lithuanian 16 Yishaqi, Solomon 156 Yohanan ben Nuri 179, 180 Yosef, Rav 193, 194, 195 Zakhor 7, 282 Zedekiah, king of Judah 180, 181 Zionism 8, 9, 14, 62, 112–114, 133, 236, 251–254, 257; see also Israel Zohar 77, 80, 81, 85–93, 95n5, 97n35, 101, 102, 274, 276