1) Why was Rabbi Joshua so stubborn in his resistance to accept Rabbi Eliezer's miraculous displays?
2) Why does the heavenly voice say, "My children have triumphed over Me; My children have triumphed over Me." Why was it said with joy (a smile)?
3) Why was Rabbi Eliezer excommunicated?
The Gemara presents a fairly straightforward argument between the Sages. A question was raised about the status of an oven that was made of separate pieces and then placed together with sand between the pieces. Should this tanur shel akhnai - this "snake oven" - be seen as having lost its status as an existing oven when taken apart and rebuilt, or is it considered an oven throughout, since it was made to be taken apart in this way? Rabbi Eliezer felt that it lost its status as an oven and therefore, had it become ritually defiled, it would lose that status, as well; the Hakahmim (sages) ruled that it retained its status throughout.
Rather than argue the case on its merits, the Gemara records that Rabbi Eliezer called on the carob tree to support him, the flowing water to support him, and the walls of the study hall to support him. In response to his call, the carob tree uprooted itself and moved 400 amot (=cubits), the spring flowed backwards and the walls began to collapse – until Rabbi Yehoshua stopped them. The Sages refused to be influenced by any of these miraculous occurrences.
Finally Rabbi Eliezer asked the heavens to support his position, and a bat kol - a heavenly voice - was heard to say "Why are you arguing with Rabbi Eliezer, whose rulings are always correct?" In response the Sages said lo ba-shamyim he - since the Torah was given to the Jewish people at Mount Sinai, decisions are no longer made based on heavenly decisions, but on the decisions of the Rabbis who interpret it.
While some rishonim take this story literally and explain that miracles were performed on behalf of the Talmudic sages, just as they were for the early prophets, Rabbenu Hananel suggests another approach. He argues that this story was a dream - a vision at night - that seemed so real and significant that it was recorded for the message that it contains.
- Rabbi Joshua believes in the process of hard debate when creating halacha. He says that, "the torah is no longer in heaven", meaning that God had already given the torah to the Jewish people. Because of this, it is up to the rabbinic scholars to interpret and discuss the halacha that is written in the torah. This also means that God no longer has any authority in halachic discussions between Rabbis.
- In essence, this is an example of the student surpassing the master. The heavenly voice, who we will assume is that of God, is filled with joy at the prospect that his sons have embraced the process of discussing halacha so intently that they no longer need or want divine interference.
- Rabbi Eliezer was excommunicated because it was believed that the rabbis needed to establish the importance of accepting the rule of the majority and Rabbi Eliezer, who had individually resisted the rulings of the many, could not fit in such a community.
Oven of Akhnai
Few stories from the Talmud are more woven into the theology of Conservative Judaism than the story of Oven of Akhani (Tanur Shel Akhnai), from the Babylonian Talmud, Bava Metzia 59b. The story centers around a halakhic debate between Rabbi Eliezer ben Hyrcanus and Rabbi Yehoshua, where Rabbi Eliezer brings one proof after another to justify his ruling, each more miraculous than the next, only to rebuffed by the rest of the rabbinic court. At the story’s climax, when Rabbi Eliezer brings a divine voice to speak on his behalf, Rabbi Yehoshua replies by citing a verse from Sefer Devarim that says, “It is not in Heaven” (Devarim 30:12). The original context of the verse from the Torah is as follows:
- “For this commandment I command you this day, is not concealed from you, nor is it far away. It is not in heaven, that you should say, “Who will go up to heaven for us and fetch it for us, to tell [it] to us, so that we can fulfill it?” Nor is it beyond the sea, that you should say, “Who will cross to the other side of the sea for us and fetch it for us, to tell [it] to us, so that we can fulfill it?” Rather, [this] thing is very close to you; it is in your mouth and in your heart, so that you can fulfill it” (Devarim 30:11-14).
While scholars and commentators can analyze the Talmudic text for a number of historical, theological, and source-critical themes, a Conservative Jew is always drawn to this notion that something divine can no longer belong to Heaven. Once the Torah came to earth, we became responsible for taking hold of it and allowing it to flourish. By extension, if a Conservative Jew wants to ensure that our brand of Judaism remains at the forefront of Judaism in the twenty-first century, we cannot assume that answers will come from above; rather, it must come from our hard work and visionary thinking.
The Oven of Akhnai
A Talk for the J.Reuben Clark Law Society, Daniel J.H. Greenwood
Every legal tradition has its rational and orderly parts, like our IRC (Internal Revenue Code).
And its more arcane and puzzling doctrines, understandable only with a heavy dose of history, like the two peppercorns of contract law, or the issue of who owns a wetland parcel subject to a springing reversionary interest and five years behind in its tax assessment.
And the parts that must simply be taken on faith and are not subject to rational analysis at all, like the holding that the Civil War Amendments gave the railroads constitutional rights against the state legislatures.
And then there are the stories, sometimes half mythological and the great turning events, that don’t always even appear in the law books: the repeal of the No Standing Army Clause after the Second World War and the discovery of the President’s inherent right to wage war in Indochina are two that one of my colleagues has made famous. Perhaps we are in the middle of one right now, that later will be seen as the end of the separation of powers and the introduction of the no-confidence motion to American politics.
I leave it to you to place the story we are about to examine. Akhnai is a mysterious word in Hebrew as well as in English, and the story begins with a question about what it means. It is not from the great rationalizing tradition of Jewish jurisprudence in style, yet it is critical to it in substance.
The source of the text is the Talmud. The West’s Reporter of the first six centuries after the destruction of the Temple. Or better yet, class notes from the academies. The first hypertext.
The context: The generation after the destruction of the Temple. Biblical Judaism, centered around King and Temple, priests and sacrifices, agriculture and the Land of Israel, is in crisis. The Romans have destroyed King and Temple. Sacrifices are ended. Much of the people is in exile and more will be soon. Much of the law given at Sinai seems obviously irrelevant: why keep pure to enter the Temple if there is no Temple to enter? A thousand year conflict over the nature of sacrifice and the substitutes for it -- prayer and pursuit of justice -- has been resolved by force majeure.
And the story:
Rabbi Eliezer, who witnessed the destruction of the Temple and smuggled his teacher out of besieged Jerusalem in a coffin, is arguing over the purity of an oven with his fellow rabbis.
It is a simple legal issue of a form quite familiar to all of us: Contact with dead snakes makes food impure. Ovens and vessels generally transmit impurity. Broken vessels don’t. The Oven of Akhnai (tanur shel achnai) is made of broken pieces cemented together. Is it an oven, or is it a broken vessel?
A standard interpretative problem of the type that arises in every human legal system every day. How do we decide? Looking to the spirit of the law? Trying to find the original intent?
- The spirit is that we keep ourselves pure, but that doesn’t help in determining if this particular item is pure.
- The original intent is much the same: we have no way of knowing what the original intent was with regard to a problem that has never arisen.
- Plain meaning -- that doesn’t help; you can read the words over and over, and still the rules regarding broken items say it is kosher and the rules regarding ovens say it is not.
Eliezer says it is a broken vessel: once broken, it can never be put together again fully. Maybe that is also his view of the world after the destruction of the Temple. Maybe not, though.
The story tells us, and I quote:
On that day R. Eliezer made all the arguments in the world, but they didn’t accept them. He said, if I am right let the carob tree prove it...
He presents all the arguments in the world, but doesn’t persuade them. Logic having failed, he moves on to rhetoric: if I am right, he says, let the tree prove it.
The tree flies through the air. The majority says, we don’t accept halakhic -- legal -- rulings from trees. Then he makes the stream flow backwards. Same result. Then he orders the walls of the synagogue to collapse. They begin to fall inward, but Rabbi Yehoshua rebuked them, saying, “If Talmudic Sages argue with one another about Halakhah, what business do you have interfering?” So they don’t collapse, but out of respect for R. Eliezar, they remain leaning. Finally, logic and miracles having failed, R. Eliezar appeals directly to Heaven. And the Bat Kol -- a voice from Heaven, the still small voice that spoke in the wilderness -- went forth, saying: “Why are you disputing with R. Eliezar, for the Halakhah is accordance with him everywhere”. Rabbi Yehoshua rose to his feet and said, “It is not in Heaven” (Deut 30:12)
That is the main story. There are several sequels.
One explains R. Yehoshua’s retort:
Torah was already given on Mt. Sinai, and it says in it, “Follow the majority’s ruling” (Ex. 23:2). So we do not obey voices from Heaven.
The next, explains that R. Natan -- several generations later -- met Elijah one day and asked what happened in Heaven at that time:
God, he is told, smiled and said “My children have defeated me, my children have defeated me.”
We are not told if this is to be taken straightforwardly or ironically.
The last explains that
R. Yehoshua’s ruling was adopted, a public demonstration of the impurity of the food cooked in the oven was made, and R. Eliezar, despite his enormous stature, was excommunicated for rebelling against the elders.
Now, Eliezar was married to the sister of R. Gamliel, who pronounced the ban. And Eliezar’s wife then prevented Eliezar from saying his personal supplicatory prayers for many years, until one day when she got the calendar wrong, and thought it was a day when such prayers are not said. Gamliel promptly died -- she says to her husband -- you have killed my brother.
But lest you conclude that this is a final vindication of Eliezar, I should point out that the entire story is in interpretation of a Mishnah having to do with the importance of respecting those with whom you disagree -- the astonishing disrespect shown to Eliezar, not his ruling, is the basis of his prayer’s being granted.
What is going on here?
The authority that promulgated the law has spoken. The text does not question the authenticity of the Bat Kol -- there is no question of false prophecy. And the Bat Kol says both that Eliezar is right here and that he is always right.
Now, in English positivism, this would be the end. When the parliament speaks it is obeyed. If it contradicts an earlier law, the later one prevails: either it has changed its mind, or the contradiction is an illusion, but in either case, parliament prevails over the judge.
But the Oven of Akhnai takes the opposite view. The law is not in Heaven: the interpretation of Torah, we were told on Sinai, is by majority rule. The Rabbis are obliged to use the methods of interpretation given to them by God, to the best of their abilities. And when they conclude, by that method, that the Oven conveys impurity, that is the law -- according to the most fundamental principle of the law, which is majority rule.
R. Eliezar is wrong -- because he insists on a particular result in violation of the basic procedural principle, and it is for that that he is excommunicated. It is for that that the walls accept -- BOTH Eliezar’s ruling AND the rebuke that miracles are not an acceptable means of determining the law. And it is for that recognition that God smiles: his children have understood that the process is more important than the result, that maintaining the integrity of the interpretive system, as a human system, speaking to human reason, and deciding by the human method of argument and persuasion followed by a vote, is far more important that whether the Oven is kosher.
The Bat Kol, then, which by definition is correct, is wrong: "my children have bested me".
Why the irony of the endings? Because even Eliezar, who defied the basic rule of civility, is entitled to be treated civilly, and he was not.
Now, I want to add a bit more to the story, and then I will let you talk for a while. First, there is a comment here about law and interpretation.
When the Torah was given at Sinai, it came with 13 methods of interpretation, and 49 arguments proving that each item is kosher and 49 arguments proving that it is not.
In law school we teach the same thing in Torts.
Disagreement and the limits of persuasion are part of the human condition -- the Torah is not One Law but Infinite Law, from One God who is also Infinite. So how do we know what the law is? It cannot be from reading the text, let alone listening to the tradition, or evenBat Kols. It is, as the Torah teaches us, by following the majority.
Second, there is a message about the nature of law more broadly. Genesis, you recall, tells us that God “gave” the earth and its flora and fauna to Adam. In another context, an early text attempts to explain what that gift meant. One of several answers is this:
When God created Adam he took him to see all the trees of the Garden of Eden and said to him: See how good they are. Everything that I have created, I created for you. Pay attention that you do not destroy my world for if you destroy it, there is no one to fix it afterwards. Ecclesiastes Rabbah 6.28
The same, I think, is true of the law. The law is not self maintaining. We cannot depend on the original authors to fix it for us if we screw up.
Indeed, it is a mark of our maturity to recognize that the law can never remove from us the responsibility of thinking for ourselves: on that day, My children grew up, they bested Me, as children do to parents when they reach maturity. Or as another Jewish text, with analogues in the common law tradition, nicely puts it:
They, the earlier thinkers, were giants and we are but midgets. But we are midgets standing on the shoulders of giants.
Nor can we depend on interpretation -- laws are not self explanatory. Interpretative methods are loose. Right and wrong answers can come from them -- and the majority can get it wrong, as the majority did here, both on the small question of the purity of the Oven, and on the large question of how to treat dissenters.
But still, we must follow the majority. And the majority must be guided by a firm grasp of what is right and what is wrong. The alternative -- well, in Jewish law there is no alternative. In life, the alternative is, as the Talmud says of a society without laws, that "people will eat each other alive."
Somehow, we must defeat, but not excommunicate, those who would define
- murder as justice,
- peace as war,
- religion as hatred,
- democracy as themselves,
- who would follow simple orders they think they have received,
rather than struggling to understand what is right and what is wrong in a complex world that has been given to us to save or destroy by ourselves. And we must do it without much help from sources outside.