Kotzk Blog

Sunday 8 September 2024

487) Self-promotion or natural authority? The case of Chavot Yair.

Introduction

This article – based extensively on the research by Professor Jay Berkovitz[1] − examines the charismatic image and commanding authority of the Halachic decisor, known as the Posek, whose task is to determine Jewish religious law. In this case, the rabbinic authority, R. Yair Chaim Bacharach (1638–1702) is used as an exemplar of the rise of the modern Posek. He is known as the Chavot Yair after the title of his Responsa by that name, and he was active around the city of Worms in Germany. Responsa is sometimes called Sheilot uTeshovt (questions and answers) or Shut literature). The Chavot Yair was known for his innovation in law and independence of thought.

Attaining authority

What makes someone a Posek? Who determines who becomes a candidate? Obviously, it's not just the acquisition of knowledge because many have a vast knowledge, but they don’t all end up becoming Poskim. And what part does self-promotion play in the process?

According to the sociologist Max Weber, there are three general modes of authority in any society, charismatic, traditional and legal.[2] Berkovitz, interestingly and perhaps surprisingly, maintains that the making of a Posek is primarily determined by charisma, over tradition and legality. If this is correct, then a substantial component in the emergence of the Posek is the effective use of self-promotion:

“[A]rguably, ‘charismatic authority’…contributes most to an elucidation of a poseq, his social role, and his standing in the public eye” (Berkovitz 2012:253).

Additionally, the Posek cannot hope to be effective unless he demonstrates:

“his success in addressing issues in a manner that resonates with the values of his community” (Berkovitz 2012:253).

The reception of the Posek:

“depended so heavily on the public perception of his stature and his expertise, [that] it was therefore natural for poseqim to invest extensive efforts to enhance their reputation within their communities and among their targeted audiences” (Berkovitz 2012:253).

In a previous article, we noted a similar methodology of self-promotion regarding Baalei Shem, where they had to perform ‘successful’ exorcisms if they were to be taken seriously. Similarly:

“By the mid-sixteenth century, it was becoming clear that responsa that were published in the lifetime of a poseq promised to enhance his reputation and stature” (Berkovitz 2012:253).

We have elsewhere noted that in the human story behind the author of the Shulchan Aruch, R. Yosef Karo, for example, his Magid (angelic teacher) allegedly told him to hurry and finish his book before another rabbi, from Krakow (referring to R. Moshe Isserless, the Rama), finishes his book and becomes the dominant author of the Shulchan Aruch instead of him. [See Kotzk Blog: 153) A MYSTICAL SIDE TO R. YOSEF KARO: and Kotzk Blog: 448) R. Yosef Karo’s unusual mystical entries in his diary.]

From the perspective of the Chavot Yair, it seems he needed a boost because his rabbinic contract in Koblenz had been terminated. Also, he failed to succeed his father as the rabbi of Worms. Furthermore, his attempt to publish his work Mekor Chaim – a commentary on the first section of the Shulchan Aruch − had been unsuccessful. This was because another commentary, originally known as Ner Yisrael (and later re-named Magen Avraham) by R. Avraham Gombiner had become one of the most important commentaries on the Shulchan Aruch. These setbacks may have driven him to find rabbinic expression in another field.

Even though he did not get the position of rabbi of Worms, he remained behind in the city, acting as a Dayan (judge) and also a Posek (Halachic decisor). He also works as a moneylender. However, in 1689, he was forced to flee the French attack on Worms and wandered through various communities while trying to find safety. This took a toll on his family and his well-being, and he complained about not having access to books. Eventually in 1699, when the community of Worms was reestablished, he did serve as rabbi of the city, but only for three years until he passed away from ill health.

The Posek is ‘higher’ than the Dayan

In the view of the Chavot Yair, the Posek (decisor) is ‘higher’ than the Dayan (judge). He maintained that Halachic decisors were more learned, and therefore superior to judges. He objected that sometimes judges settled for compromises and felt that cases must rather be adjudicated based on the extensive breadth of the law, and on a thorough understanding of its theories and principles. In this sense he was more of a legal theorist that a legal practitioner.

Responsa literature is principles-based

According to the Chavot Yair, the purpose of Responsa literature is not just to present answers to questions. The purpose of Responsa literature is to expound on the principles of law. He once admonished someone who simply wanted an answer:

“But your request of me is not to explain a difficult text, but rather to issue a practical ruling, and this is per se inappropriate… rather I will place before you a few legal rulings regarding which you may have been in doubt in the case you placed before me, though with great brevity. And it seems correct in my humble opinion not to issue a practical judgment that one could rely on definitively to judge another case” (R. Bacharach, Chavot Yair, no. 106).[3]

Responsa must be founded on morality not just on law

Even when moral implications clashed with the law, the Chavot Yair always placed a premium on morality.

“Bacharach formulated his thinking on the limits of law and its coordination with social norms and moral concerns” (Berkovitz 2012:257).

A man remarrying while his wife is terminally ill

A case in point was when a certain married man wanted to marry another younger woman (a servant in his house) while his wife was terminally ill. The man wanted to sign a formal engagement contract immediately because, he explained, the woman was attractive and educated and if there was no formal agreement, chances were that another man might marry her before his present wife succumbs to her illness. The husband had presented his version of the contract for the Chavot Yair to scrutinise. He did but declared that the contract was weak because the man could back out of it at any time. This would be unfair. The Chavot Yair suggested that other forms of contracts could be better structured, and these would be legal and binding as long as they were done without the sick wife’s knowledge, as it would cause her unbearable grief. However, although possible under law, he considered all this to be:

“outside the order and custom of the world (chutz la-seder u-minhag ha-olam)” (R. Bacharach, Chavot Yair, no. 196).

In other words, there might be legal arrangements that can be made, but such endeavours are essentially immoral.

Agreeing on an economic free-for-all

A group of businessmen had got together and agreed to operate within a system of unrestrained economic boundaries (hasagat gevul). It seems they were quite radical and were prepared to tolerate a business environment allowing for ‘raw market forces,’ like theft and fraud, in the open system they proposed, where the 'best man,' as it were, would win.

The Chavot Yair responded that not only was this proposal against the law of the Torah, but it flouted basic civilized conduct (yishuv olam vehanhagato) (R. Bacharach, Chavot Yair, no. 163).

“Din Torah, as conceived in this case, encompassed a wide range of considerations that were not strictly legal per se. Bacharach therefore rejected the request for a ruling based on legal factors alone” (Berkowitz 2012:257).

Using the advantage of the printed medium to the fullest

The Chavot Yair writes in his Introduction that he decided to publish only 238 responsa out of a body of responsa that exceeded that amount by three times. This indicates how careful (and economical) he was, but more importantly, how concerned he was to craft his image as an important Posek. This, particularly after his failure to publish his Mekor Chaim which was supplanted by R. Gombiner’s popular and definitive Magen Avraham on the Shulchan Aruch:

“Hoping to avoid a repetition of the Meqor Hayyim misfortune, Bacharach hired a copyist and vigorously reworked his responsa in preparation for publication. He was scrupulous about stylizing the text and was meticulous in his effort to achieve greater linguistic precision” (Berkowitz 2012:258).

The text is polished and clearly reworked. He writes in an “overwhelmingly retrospective” style, “using the first person pronoun in the past tense” (Berkowitz 2012:258). This allowed him to revisit and reflect on some of his earlier rulings. In some cases, he even reversed his earlier rulings. This was because he had time to reconsider and also, he noted that some writings were not available to him at the time when he dealt with the matters:

“the retrospective format made it possible for Bacharach to respond to complaints from aggrieved litigants displeased with a ruling when first issued…In an addendum to a ruling concerning a disputed payment of a debt, Bacharach sought to justify his decision against the vigorous objection voiced by one of the litigants” (Berkowitz 2012:259).

The Chavot Yair was extremely sensitive to his book being well-received by his readers. He anticipated their objections in some sensitive areas, and he added extra source material. He wrote:

“I knew that the reader will respond ‘what is the source of your intuitive feeling and on what basis do you ask the question’…[but] my words are true and honest, whereas one would need a carpenter to reconcile the view of [the conflicting view of] the Terumat Hadeshen”[4] (R. Bacharach, Chavot Yair, no. 95).

Seeking endorsement

The Chavot Yair was particularly careful to lay out his reasoning and arguments to enhance “the public image he no doubt intended to foster” (Berkowitz 2012:259). To this end, he sought to attain the endorsement of other leading rabbinic figures, one of whom was R. Gershon Ashkenazi of Metz:

“If the need to defend his rulings appears to have been more conspicuous in Bacharach’s case than for other poseqim, this may well be related to the fact that he lacked the stature that generally attached to official rabbinic positions. Aside from his distinguished lineage, his authority was rooted in his own powers, and it would appear that he relied heavily, even more than other poseqim, on peer validation and public acceptance” (Berkowitz 2012:260).

Pursuit of secular knowledge

One way that distinguished the Chavot Yair from other Poskim, was his pursuit of secular knowledge. He was interested in the Greek philosophers, law, natural sciences, mathematics and even design. He consulted with Christian Hebraists like Christoph Wagenseil (1633–1705), a Lutheran jurist and professor at Altdorf. These interests and associations made him “an exception to the general pattern of rabbinic culture in early modern Ashkenaz” (Berkowitz 2012:260).

Independence of thought

The Chavot Yair was exceptional in another aspect as well and that was in his boldness to challenge even the earlier rabbinic authorities. He had no problem disagreeing with even the most esteemed sages. He took issue with Maimonides (1135-1204) on some important definitions of Jewish law such as the notion of the Oral Torah and the status of Halacha leMoshe miSinai (laws that assume the standing of those given at Sinai).

He disagreed with the claim that any Posek who rules against R. Moshe Isserless (Rama) has made a fundamental error (to’eh bedvar Mishna). Additionally, he had no qualms about disagreeing with the Baalei haTosafot. He wrote:

“even though the Tur and the Rosh followed the path of the Tosafists and ruled this way, I have the authority to say that the father of them all, the Tosafists, requires further scrutiny” (R. Bacharach, Chavot Yair, no.155).

The Halachic status of women

The Chavot Yair was perhaps the most innovative and inclusive when it came to his views on the role and status of women in Halacha. In his Mekor Chaim, he writes that R. Moshe Isserless was mistaken to rule that “in our lands” (a reference to Ashkenaz) a menstruant woman may not enter a synagogue, recite blessings or touch a Torah scroll.

Other important Poskim, like R. Gombiner (the author of Magen Avraham commentary on the Shulchan Aruch) had claimed that such women may not recite Birkat haMazon (grace after meals) aloud, and not even gaze at Sefer Torah.[5] However, the Chavot Yair demonstrates that many proof texts do not restrict such women from participating in public or private rituals during menstruation. Perhaps this may have reflected some of the political tensions between the Chavot Yair and the Magen Avraham whose work was published in the Shulchan Aruch.

The Chavot Yair became even more innovative when it came to his challenge to Rabbenu Tam (whose ruling had remained dominant in Ashkenaz since the twelfth century) that women do not recite “asher kideshanu bemitzvotav’ (who has sanctified us with His commandments and commanded us to…) for time-bound mitzvot, because women are exempt from time-bound commandments.

As part of his challenge to this convention, the Chavot Yair cited the Zohar (which is usually discouraged as being used as a source for technical Halachic matters) which emphasises that both men and women stood together at Sinai. This meant that on an essential level, there was no differential between men and women insofar as the commandments were concerned. While there may have been a rabbinic exception of the time-bound mitzvot as not being pertinent to women, the Chavot Yair argued that:

“any exemption could be transformed into a full-fledged obligation when women pronounced the mitzvah benediction, much as the status of the ‘arvit (evening) service had undergone a transformation in the medieval period from a discretionary act to a compulsory one” (Berkowitz 2012:263).

Conclusion

It is always interesting to see the backstory behind the lives of our leading rabbis. Unfortunately, most of the time we just pick up their sefarim (books) without understanding the pivotal role basic human factors often played in the production of their works.

We have noted, in this portrait of the Chavot Yair, a story of a Posek who battled for recognition in a religio-political environment that somehow always left him playing second fiddle. Other rabbis beat him to communal positions and had their work (Magen Avraham) published in place of his. Even his illustrious lineage did not help in attain the goals he so wanted for himself. Eventually, though, he carved out a niche for himself in the area of Responsa literature and took great care for his work to be receptive amongst the populace. The earlier disappointments, however, had a silver lining, because he was not beholden to a community with its complicated communal structures and protocols. He was free to think, write and say what he really believed. Thus:

“[i]ronically, because of the unusual circumstances that left him without an official rabbinic post, he enjoyed relative freedom from institutional constraints” (Berkowitz 2012:264).

Further Reading

Kotzk Blog: 232) THEOLOGICAL POLITICS SURROUNDING THE EMERGENCE OF THE SHULCHAN ARUCH:

Sunday 1 September 2024

486) An ancient (pre)text of Deuteronomy?

A cartoon in Punch magazine, 1883, showing Moses Wilhelm Shapira being apprehended by Christian David Ginzburg outside the British Museum, for allegedly forging an ancient textual find.

Introduction

This article – based extensively on the research by Professor Idan Dershowitz[1] − examines a work that for many years was regarded as a forgery, but, arguably, turned out to be one of the most significant textual finds of the nineteenth century.

Part 1 describes the human-interest story of the original owner of the text, Moses Wilhelm Shapira and his eventual suicide after being accused of being the forger of the text.

Part 2 advocates for the authenticity of the text, and discusses some of the consequences of this find which Dershowitz considers to be “a text that could change everything” (Dershowitz 2021:vi). Because the text resembled sections of the Book of Deuteronomy which deals with Moses’ farewell speech, Dershowitz has called the Shapira texts the ‘Valediction of Moses.’

Dershowitz is a captivating young professor at the University of Potsdam in Germany, and he spent some years at Yeshivat Har Etzion before expanding into academia. I had the privilege to meet him last year at a conference hosted by my university and I can attest to the esteem in which he is held by serious international scholars. This research endeavour by Dershowitz on the Shapira texts, however, may be the most significant, if not the most controversial, of his work as a biblical scholar.

Part 1

Overview

In 1883, more than fifty years before the discovery of the Dead Sea Scrolls, an intriguing text written in Paleo-Hebrew script, surfaced on the ancient text market. It aroused much interest, and the British Museum was about to buy the few worn leather fragments from the antique dealer, Moses Wilhelm Shapira.

At the last moment, the deal was called off, the finds were declared forgeries and Shapira was accused of being the guilty party. Unfortunately, the leather texts then disappeared, and it is not known where they are today or even if they still exist. Fortunately, although none of the remaining photographs of the texts are legible, some scholars as well as ‘naïve artists’ made copies of the original text. These artists were chosen particularly because they did not know how to read ancient Hebrew, to ensure that there would be no textual bias.

Based on new research, Dershowitz has revisited the matter of the alleged forgery and maintains that:

“[i]n light of our current knowledge, none of the original reasons for dismissing the fragments can be considered valid…I present overlooked archival material that severely undermines the verdict of Shapira’s guilt” (Dershowitz 2021:1).

Dershowitz not only demonstrates how the manuscript fragments were not forgeries but that they were indeed authentic ancient documents – so authentic that he argues:

“[It] was composed prior to the canonical book of Deuteronomy. Indeed, Deuteronomy evolved out of…it…or out of a very similar text…illuminating the compositional history of this Pentateuchal text [i.e. Deuteronomy!]” (Dershowitz 2021:1).

The story

Moses Wilhelm Shapira (1830-1884) was born in the city of Kamianets-Podilskyi which is in present-day Ukraine. When he turned twenty-five, he converted to Christianity and moved to Jerusalem where he opened up an antique dealership in Christian Quarter Street in the Old City. He was known to collectors of relics and old manuscripts around the world.

In 1878, some members of the Bedouin Ajayah tribe discovered leather manuscript fragments in a cave on the eastern side of the Dead Sea. They were wrapped in linen and contained blackened leather manuscript fragments that looked like they had been preserved in a type of bitumen. Shapira managed to buy sixteen of these strips of leather for a very low price.

In 1883, Shapira travelled to Berlin to have the fragments assessed by experts. This evaluation was recorded by The Times of London:

“The committee met at the house of…Professor Lepsius…and spent exactly one hour and a half in a close and critical investigation into the character of his [Shapira’s] goat-skin wares. At the end of the sitting they unanimously pronounced the alleged codex to be a clever and impudent forgery. There was some thought of calling in a chemist… [but they] deemed it unnecessary to call for further proof’ (“The Shapira Manuscripts,” The Times, August 28, 1883).

The Berlin committee had conducted a very cursory examination of the fragments and a disappointed Shapira then took his collection to Leipzig to the biblical scholar, Hermann Guthe who examined the texts together with the historian Eduard Meyer who spent some days on this investigation. The problem was that in those days there was not yet infrared photography and once the texts had been exposed to the environment, they were becoming darker at a rapid rate. Most of the text, written in black ink, did not show up clearly against an ever-degrading black background. Gute and Meyer described their examination as follows:

“We were only able to read small parts without any kind of aid. Usually, we applied some alcohol (spirit) with a small brush to sections of the manuscript and then tried to identify the letters that glistened from the moisture. Unfortunately, this was not always possible, even with help of a magnifying glass.”[2]

At first, Guthe considered these fragments to be authentic but later declared them to be forgeries.

Shapira then travelled to London where he tried to sell his fragments to the British Museum for one million pounds. The Museum was well acquainted with Shapira and agreed to the sale on the condition that the scholar, Christian David Ginsburg[3] authenticate the material. Ginzburg’s examination was more thorough, and it took some weeks. In the meantime, the Museum put two of the fragments up for exhibition and it aroused much interest, including from Prime Minister, William Gladstone, who asked for an audience with Shapira.

Another visitor to this exhibition at the British Museum was the French orientalist and diplomat Charles Simon Clermont-Ganneau who had a previous long and antagonistic relationship with Shapira. Clermont-Ganneau asked to examine the fragments and Ginsburg gave him literally a few minutes and only a sample of the fragments and he immediately pronounced them to be forgeries. Ginzburg asked Clermont-Ganneau not to announce his determination until the former had completed his thorough investigation, but the next day it was all over the newspapers. This, despite the admission by Clermont-Ganneau that:

“In these circumstances, the object of my mission became extremely difficult to attain, and I almost despaired of it…I set to work with the meagre means of information which were at my disposal: – (1) The hasty inspection of two or three pieces which M. Ginsburg had allowed me to handle for a few minutes on my first visit; (2) the examination of two fragments exposed to public view in a glass case in the manuscript department of the British Museum – a case very ill-lighted and difficult of approach, owing to the crowd of the curious pressing round these venerable relics” (The Times, August 21, 1883).

Nevetheless, Clermont-Ganneau developed an elaborate theory and accused Shapira of manufacturing his fragments by cutting off the lower sections of Torah scrolls because, as an antique dealer, “he deals in them.”

This was a terrible blow to Shapira to be so publicly humiliated. Soon after Clermont-Ganneau had announced his verdict on the fragments, Christian David Ginzburg added salt to the wound along similar lines. He concurred that the fragments had been cut from the bottom section of Torah scrolls. This was why the fragments were smoothly cut at the top and deteriorating at the bottom. Ginzburg added the detail that they had been cut specifically from Yemenite Torah scrolls because Shapira specialised in old Yemenite Torah scrolls.

Ginzburg also claimed the forger was clearly of European Jewish extraction because European Jews sometimes mixed up Hebrew letters like chaf and chet. According to Ginzburg, this was evidence that the forger was:

“a Polish, Russian, or German Jew, or one who had learned Hebrew in the north of Europe” (The Times, August 27, 1883).

This was followed by a distasteful cartoon that appeared in Punch on September 8, 1883, showing Shapira as a stereotypical Jew with a big, hooked nose (although he, like Ginzburg had converted to Christianity), “with the ink of his devious forgery still dripping from his fingers” (Dershowitz 2021:7). The cartoon shows Shapira being apprehended by Ginzburg in front of the British Museum.

The British Museum was guided by Ginzburg’s opinion and refused to purchase the ‘forged’ documents from Shapira. Shapira was devastated. In a terribly sad letter, Shapira wrote to Ginzburg expressing just how betrayed he felt:

“Dear Dr. Ginsburg!

You have made a fool of me by publishing & exhibiting things that you believe to be false. I do not think I will be able to survive this shame. Although I am yet not Convinced that the M.s. is a forgery…

I will leave London in a day or two for Berlin.

Yours truly,

M W Shapira” (BL Ms. Add. 41294, 16).

Somehow, this letter was leaked to The Times and they responded:

“[Shapira] is so disappointed with the results of his bargain that he threatens to commit suicide. This, we venture to think, he will not do” (The Times, August 27, 1883).

The Times was mistaken. Shapira was so distraught and shamed from being publicly humiliated that he never returned to his family in Jerusalem. For a few months, he wandered throughout Europe and on March 9, 1884, he committed suicide by shooting himself in the head while in a hotel in Rotterdam, Holland.

Dershowitz defends the authenticity of the fragments

Dershowitz points out that there is much similarity between the discovery of the Dead Sea Scrolls (1946-7) some sixty-three years later, and the Shapira Scrolls (1883). Both were found in caves near the Dead Sea by Bedouins, wrapped in linen and covered with a bituminous substance. Dershowitz writes that had the Shapira Scrolls been discovered after the Dead Sea Scrolls, there would have been important precedents for many of the issues raised over the Shapira fragments.

Had the Dead Sea Scrolls been discovered earlier, the world in which Shapira found himself would have understood that old scrolls could survive the vicissitudes of times. One of the numerous criticisms levelled against Shapira was that:

“It is really demanding too much of Western credulity to ask us to believe that in a damp climate like that of Palestine any sheepskins could have lasted for nearly 3,000 years, either above ground or under ground, even though they may have been abundantly salted with asphalte from the Vale of Siddim itself.” (Sayce 1883:117).[4]

The Dead Sea Scrolls, however, proved that ancient scrolls can endure. In fact, when the Dead Sea Scrolls were discovered, at first, many believed the find was a hoax and they were also discovered by Bedouins in caves around the Dead Sea, wrapped in linen and covered with a bituminous substance.

In 1949, the respected Solomon Zeitlin, an expert on the Second Temple period and editor of the Jewish Quarterly Review, used the Shapira affair to ‘prove’ that the Dead Seas Scrolls were also forgeries. Zeitlin referenced the Shapira affair in his article on the “alleged antiquity of the [Dead Sea] Scrolls”:

“Scholars and experts of the British Museum were convinced of its authenticity until it was discovered to have been produced by Shapira himself over a period of twenty years. Thus ‘the Bedouin and the cave’ became a myth” (Zeitlin 1949:67).[5]

Today we know that Zeitiln was wrong because the Dead Sea Scrolls were soon confirmed to be authentic, and they became important markers in the field of biblical studies.

Today we also know that what was thought at the time to be a bituminous substance, was nothing other than the normal results of decaying leather. Although, ironically, bitumen is prevalent in the Dead Sea area, the black substance found on the Dead Sea Scrolls and their linen wrappings is simply decomposed leather over the span of millennia.

Another criticism that was used against Shapira was that the fragments had surprising and distinct vertical creases indicating that the texts had been folded, which is not expected in writings that were supposed to have been written in the form of a scroll. Again, the Dead Sea Scrolls exhibit similar vertical creases, and they are genuine.

The other criticism of the Shapira fragments was that, as mentioned, the top edges were straight and smooth (suggesting recent cutting) while the bottom edge was rough and variated. The Dead Sea Scrolls display exactly the same characteristics. Yet Ginzburg used this observation as an indication that Shapira’s texts were inauthentic:

“Now, many of the Shapira slips are only ragged at the bottom, but straight at the top, thus plainly showing that they have been comparatively recently cut off from the scrolls since they have not yet had time to become ragged at the top” (The Times, August 27, 1883).

Clermont-Ganneau was similarly bothered by the straight tops and ragged bottoms of the Shapira fragments, and he was so convinced they had been cut from existing Torah Scrolls, that he called on experts to check whether the lower and longer portions of the final Hebrew letters that protrude below the uninked writing lines, were visible. This would prove that the section had been severed from more recent Torah Scrolls. However, on investigation, no traces of letters from the alleged ‘upper and missing’ row were found on the tops of Shapira’s leather strips.

Furthermore, the Shapira fragments were considered forgeries because the writing did not follow the dry-point lines. Even today if one looks at any Torah Scroll in the light, there are uninked incision lines that the scribe follows while writing, to produce a straight and neat writing format. The Shapira fragments did not follow such lines, although they were still visible, and that led to experts declaring them to be fraudulent. The Dead Seas Scrolls, however, also often exhibit the same disregard for these dry-point lines.

As to Ginzburg’s objection that letters like chaf and chet were sometimes confused with each other, indicating a Europen Jewish forger, Dershowitz points out that in some Dead Sea Scrolls exactly the same ‘confusion’ existed where we find examples of כסר instead of חסר.

Part 2

Conceptual background

In Rabbinic literature, surprisingly, the biblical book of Deuteronomy has often been treated differently from the earlier four books of the Torah.

During the 1460s, R. Don Yitzchak Abravanel wrote to R. Yosef Hayyun (d. 1497), the rabbi of Lisbon, asking:

“My question and request is whether this book of Deuteronomy was given by the Lord from heaven or whether Moshe himself composed Deuteronomy… Why does Deuteronomy refer to Moshe in the first person, whereas in the preceding books he is referred to in the third person?[6]

Rashi’s grandson, Rashbam, also allows for some flexibility and initiative from Moshe in his literary style.[7]

R. Yosef Bechor Shor (12^th century) suggested that Moshe made his own contribution to the composition of the Torah, as we can see from his commentary on Genesis 18. Interestingly, his view was not considered exceptional among the Tosafists.

R. Yosef Dov Soloveitchik, the great-grandson of R. Chaim Volozhin maintains that in Deuteronomy, Moshe is the speaker. This is because, in Deuteronomy, Moshe says “G-d spoke to me”, whereas in the earlier books, it states “G-d spoke to Moshe.[8]”

According to the Vilna Gaon, “The first four Books were heard directly from the mouth of the Holy One… Not so Deuteronomy… the Book of Deuteronomy was heard from the mouth of Moshe himself.”

Taking some of these rabbinic voices on the status of the Book of Deuteronomy into consideration, we can proceed to the next stage of Dershowitz’s argument.

A Deuteronomic text?

In a sense, some of the rabbinic views expressed above on the nature of Deuteronomy, seem to prefigure debates over Deuteronomy in academic circles. At the time of the Shapira incident:

“the discipline of biblical studies was very much in its infancy, and little was known about the composition history of Deuteronomy” (Dershowitz 2021:9).

For this reason, scholars in the late nineteenth century may not have been aware of the fertile ground Deuteronomy presents from a historical perspective, and how the Shapira fragments could have shed some light on the matter. Most of the Shapira fragments correspond to the Book of Deuteronomy. But there are some significant differences:

Dershowitz (2021:41) explains that the Shapira fragments contain nothing at all corresponding to chapters 12 through 26 of Deuteronomy – that is, the law code. The Shapira fragments’ legal corpus indeed comprises only its unique version of the Ten Commandments. The poems of Deuteronomy 32 [Ha’azinu] and 33 [veZot haBeracha] are also absent in the Shapira fragments, as is the story of Moses’s death in Deuteronomy 34.

Dershowitz points out that very few Deuteronomic verses have identical counterparts in the Shapira fragments:

“Unlike Deuteronomy, in which the narrator intervenes repeatedly, the Valediction of Moses [i.e. the Shapira fragments] has no narrator except in the introductory and concluding verses. Coincidentally, these two brief narrational passages contain the only instances of the Tetragrammaton [i.e., Y-H-V-H] in V [i.e. the Shapira fragments].^{^[9]} Moses is the speaker throughout the remainder of the work, and he never utters this divine name [i.e., Y-H-V-H]; instead we find only “Elohim” (Dershowitz 2021:42).[10]

For those interested in such matters, these are fascinating observations. What do they teach us and what do they say about the composition of Deuteronomy?

Could the Shapira texts, until recently passed off as simple forgeries, be a different version of the Deuteronomic words of Moses? The Shapira fragments present some tantalising options for consideration:

“Is V [i.e. the Shapira fragments] a reworked and excerpted Deuteronomy, or is Deuteronomy a reworked and expanded V? A third option must also be considered, namely that V and Deuteronomy have a common ancestor. If this is the case, then one of the texts may be higher in the family tree, but neither would be directly dependent upon the other” (Dershowitz 2021:42).

Dershowitz’s daring and challenging assumptions have upset many traditional as well as academic scholars. Dershowitz acknowledges this. However, he goes on to present a very convincing, detailed and technical set of arguments (beyond the scope of this article but worth exploring further) that support his hypothesis. He writes:

“I provide evidence that – contrary to the view held by nearly all scholars – V [i.e., the Shapira fragments] is indeed a proto-Deuteronomic text or closely related to such a text…As for literary kinship, it can be established that several Pentateuchal passages are derived from V, or from a text very similar to V” (Dershowitz 2021:44).

One short example will follow:

In Deuteronomy 11:26 (Parshat Re’eih) the narrative concerning the blessings and curses on the mountains of Gerizim and Eval begins. But this introduction of six verses is abruptly interrupted by a huge section of legal code − including laws of Kashrut, slavery, festivals and sacrifices − which goes on for fifteen chapters comprising almost forty per cent of the Book of Deuteronomy. Only after that extremely long break, in Deuteronomy 27 (Parshat Ki Tavo), does the narrative of the blessings and curses continue.

In the Shapira fragments, however, the same narrative thread appears but this time as a single and cohesive unit. After an extensive analysis of the texts, Dershowitz arrives at a very bold conclusion, after an exhaustive philological analysis, that:

“Not only is the Valediction of Moses [i.e. the Shapira fragments] authentic, it is indeed more ancient than the book of Deuteronomy…One can thus characterize the book of Deuteronomy as an updated version of V [i.e. the Shapira fragments] that has been edited to include a substantial law code and two large poems and then edited to smooth over the resulting unevenness” (Dershowitz 2021:70).

Many would regard Dershowitz’s study as controversial. It certainly is. But it's not controversial to contemplate a controversial view. If Dershowitz is correct, and considering some possible rabbinic license and precedent for placing Deuteronomy in a different category from the other four books of the Pentateuch, then his research is indeed groundbreaking because:

“[n]ever before has a proto-biblical book been unearthed” (Dershowitz 2021:71).

And, if Dershowitz is correct, one wonders how much the British Museum would be prepared to pay for them today if they were ever to be located again…

Further Reading

Kotzk Blog: 082) WHAT WOULD HAPPEN IF MOSHE'S TORAH WERE TO BE DISCOVERED TOMORROW - AND IT'S DIFFERENT FROM OURS?

Kotzk Blog: 183) FASCINATING VIEWS CONCERENING THE AUTHORSHIP OF DEVARIM:

Kotzk Blog: 347) ABRAVANEL’S HYPOTHESIS:

Kotzk Blog: 342) HAYYUN’S HYPOTHESIS: DANCING BETWEEN THE LINES:

Kotzk Blog: 184) IBN EZRA’S ‘SECRET’ THAT IS ‘NOT FOR AVERAGE PEOPLE’:

Kotzk Blog: 233) WERE THREE DIFFERENT TORAH SCROLLS FOUND IN THE TEMPLE?

Kotzk Blog: 341) ‘VASSAL TREATIES’ AND READING THE TORAH IN THE ‘LANGUAGE OF MAN’:

[1] Dershowitz, I., 2021, The Valediction of Moses: A Proto-Biblical Book, Mohr Siebeck, Tübingen, Germany.

[2] Guthe, H., 1883, Fragmente einer Lederhandschrift enthaltend Mose’s letzte Rede an die Kinder Israel, Breitkopf & Härtel, Leipzig, 21 (Translation by Dershowitz).

[3] See Kotzk Blog: 193) DANIEL BOMBERG –THE STORY BEHIND THE TZURAS HADAF:

And Kotzk Blog: 221) R. ELIYAHU HABACHUR – TEACHING KABBALAH TO CARDINALS?

[4] Archibald H. Sayce, A.H., 1883, ‘Correspondence: The Shapira Mss. of Deuteronomy’, The Academy 589, 116–17, at 117.

[5] 8 Solomon Zeitlin, S., 1949, ‘The Alleged Antiquity of the Scrolls’, Jewish Quarterly Review, 40, no. 1 57–78, at 67.

[6] Gross, A, 1993, ‘Rabbi Joseph ben Abraham Hayyun: Leader of the Lisbon Jewish Community and His Literary Work’, Bar Ilan University Press, Ramat Gan.

[7] See Rashbam on Gen. 1:1, 5, 27; 19:37; 37:2; Num. 24:14; 30:2–3; Deut. 2:5.

[8] Stone Edition of The Chumash, ArtScroll Series, 1993, 938 -9.

[9] “V” represents what Dershowitz calls the Valediction of Moses = the Shapira fragments.

[10] Square brackets are mine.

Sunday 25 August 2024

485) Is a Halachic environmental discourse even possible?

Introduction

This article −based extensively on the research by Rabbi Professor Kotel Dadon[1] − examines some Torah and rabbinic sources that indicate the existence of, and potential for, further Jewish ecological discourse. It then (ambitiously) attempts to seek ways to bring this debate into the four cubits of Halacha (religious law).

Dadon begins by nailing his colours to the mast in terms of his position on climate change and environmental issues:

“Climate change and the resulting environmental disasters are among the greatest moral and existential crises of our time” (Dadon 2023:131).

The general environmental discourse today revolves around two conflicting approaches regarding the role humans play in the world. These are the anthropocentric and biocentic approaches.

The anthropocentric approach

According to the anthropocentric view, humans are and remain the overriding and dominant factor, but they have the obligation to take care of the environment responsibly, otherwise, the existence of the human race will be in danger of disappearing from this planet.

Those who oppose this view argue that it is a dangerous position to adopt because it could lead to an:

“irresponsible and dangerous utilitarian approach; moreover, man will not preserve an environment that he believes makes no direct contribution to man’s benefit, such as the deserts and the poles of the Earth” (Dadon 2023:132).

Dadon points out that religion and the Bible are often blamed for this anthropocentric approach. He cites Lynn White Jr’s article where Genesis is viewed as the cause of humans acting towards the environment with a domineering and predatory attitude.

“God blessed them, and God said to them, Be fertile and increase, fill the Earth, and master it: and rule the fish of the sea, the birds of the sky, and all the living things that creep on Earth. God said, See, I give you every seed-bearing plant that is upon all the earth, and every tree that has seed-bearing fruit; they shall be yours for food” (Genesis 1:28–29).

This position of human control is supported by the Book of Psalms:

“You have made him master over your handiwork, laying the world at his feet, sheep and oxen, all of them, and wild beasts, too; the birds of the heavens, the fish of the sea, whatever travels the paths of the seas” (Psalms 8:7–9).

Some rabbis like Rav Saadia Gaon, in his Emunot veDeaot, reflected this view as well, by emphasising that humans are indeed the essential and ultimate goal of creation.^{^[2]}

Lynn White Jr writes as early as 1967:

”our environmental perception is deeply influenced by beliefs about human nature and the destiny of the human race, that is, by religion.”[3]

White maintains that the moment Christianity triumphed over paganism in Europe, marked the beginning of the ecological crisis that currently faces us.

The biocentric approach

The second approach is the biocentric approach. It is where nature, not humankind, is the dominating factor. In this view, humans are just one of the many expressions of nature. This approach is also known as ‘deep ecology’ because humans are granted no superiority over nature. In fact, all aspects of nature, which include the categories of living, plant, and even inanimate, are completely disconnected from any benefits they provide to human beings.

“This approach gives the universe an almost ‘divine’ value and refers to its sacredness. Spinoza, who is known to have elevated all of nature to the level of God, Deus sive Natura, is very popular among the followers of this approach” (Dadon 2023:132).

Those who oppose this view, claim it is a form of neo-paganism as it elevates nature to the level of the divine. They also argue that it is a dangerous position to adopt because it could lead to the favouring of nature over and at the expense of human beings. Thirdly this approach has echoes of the National Socialist movement in Germany which gave legal protection to animals and nature.

As we have seen, some rabbis like Rav Saadia Gaon placed humans as the ultimate purpose of creation, thus supporting the anthropocentric position; but other rabbis like Maimonides in his Moreh Nevchim, seem to partially support the biocentric position by claiming that the creation of nature and other living entities is not necessarily related to human beings.[4]

The Book of Job can also be seen to support a partial biocentric approach by diminishing the status of humans in the overall scheme of things:

“How much less man, a worm, the son-of-man, a maggot” (Job 25:6).

“If you are righteous, What do you give Him; What does He receive from your hand?” (Job 35:7).

The theocentric approach

Dadon points out that Judaism can vacillate somewhere between these two extremes of anthropocentric and biocentric approaches as support can be found for both positions. He therefore suggests a third option, the theocentic approach where G-d become the centre of creation. He suggests that this best describes the general position of Judaism on the matter of ecology and corresponds to a verse in Leviticus (25:23) “For the earth is Mine;” as well as a verse in Psalms (24:1) “The earth is the Lord’s and all that it holds.”

On this view and in these verses, the world is not subject to the absolute ownership and authority of humans emphasising that it was given to man to “use and protect” (Genesis 2:15). Thus:

“Man’s ecological duty to protect his environment is based on both anthropocentric and biocentric arguments… Man can use his uniqueness and superiority over nature in a selfish and destructive way or in a responsible and respectful way; the choice is in his hands.” (Dadon 2023:132-3).

This way, Dadon suggests a synthesis between the anthropocentric and biocentric approaches through the adoption of a theocentic approach:

“This imperative contains the eternal conflict between the development of the world and the protection of the environment. Man has taken on two tasks: on the one hand, he is to cultivate the land in order to advance technological and industrial development for his needs. On the other hand, man is required to preserve creation and observe nature wisely. Only these two values together can bring man to the ideal use of what has been created in his honor” (Dadon 2023:133).

The question, then, is what do we do with the difficult verse of Genesis 1:28 which proclaims how humans must rule over and have dominion over creation? Perhaps Rav Kook has a response to that question:

R. Avraham Yitzchak haCohen Kook (1865-1935)

Rav Kook writes:

“There can be no doubt to any enlightened or thoughtful person that the ‘dominion’ mentioned in the Bible in the phrase…[in Genesis 1:28] is not the dominion of a tyrant who deals harshly with his people and servants in order to achieve his own personal desires and whims. It would be unthinkable to legislate so repugnant a subjugation and have it forever engraved upon the world of God, who is good to all and whose mercy extends to all He has created, as is written, ‘the earth is founded upon mercy’ (Ps. 89:3)”[5]

Rav Kook’s student, R. Aryeh Levin writes about his teacher:

“I recall the early days, from 1905 onward, when…I came to Jaffa. There, I first went to visit our great master, R Abraham Isaac Kook…who received me with good cheer, as it was his hallowed custom to receive everyone. After the afternoon service, he went out, as was his custom, to stroll a bit in the fields and gather his thoughts, and I went along. On the way, I plucked some branch or flower. Our great master was taken aback, and then he told me gently, ‘Believe me. In all my days, I have taken care never to pluck a blade of grass or flower needlessly when it had the ability to grow or blossom. You know the teaching of the Sages that there is not a single blade of grass below, here on Earth, which does not have a heavenly force telling it ‘grow!’ Every sprout and leaf of grass says something [and] conveys some meaning. Every stone whispers some inner, hidden message in the silence. Every creation utters its song.’”[6]

Rav Kook was influenced in this regard by a leading Kabbalist from Safed, R. Moshe Cordovero (1522–1570) who writes:

“And upon this way, he [should] not disgrace anything in existence from that which exists, as all of them are with wisdom. And [so] he [should] not uproot a plant except for a need nor kill an animal except for a need....” (R. Moshe Cordovero, Tomer Devorah, 3:13).

Rabbinic sources on caring for the environment

Some people sometimes mistakenly distinguish between private and public spaces:

“It happened that a certain person was removing stones from his ground onto public ground when a pious man found him and said, ‘Fool, why do you remove stones from ground which is not yours to ground which is yours?’ The man laughed at him. Sometime later, he was compelled to sell his field, and when he was walking on that public ground, he stumbled over the stones he had thrown there. He then said, ‘How well did that pious man say to me, ‘Why do you remove stones from ground which is not yours to ground which is yours?’”[7]

Public spaces will always be ours and we will be affected by the way we treat them. The second-century Tanna, R. Shimon bar Yocha famously makes a similar point:

“Men were on a ship. One of them took a drill and began to drill under him. The others said to him: what are you doing? He replied, ‘What do you care? Is this not under my area where I am drilling?’ They said to him, ‘But the water will rise and flood all of us on this ship.’”[8]

An early example of a Midrashic concern for the environment:

“When the Holy One blessed be He created Adam the first man, He took him and showed him all the trees in the Garden of Eden, and He said to him: ”See My creations, how beautiful and exemplary they are. Everything I created, I created for you. Make certain that you do not ruin and destroy My world as if you destroy it; there will be no one to mend it after you.”[9]

From Temple times, there are examples of a concern not to waste resources:

The leftover blood from the outer altar which was mixed with the water used to wash the area was not discarded but sold as fertilizer.[10] Also, the used clothes of the kohanim (priests) were thrown away but turned into wicks for candles.[11]

These are beautiful rabbinic examples of environmental concern, but they are not enough. If Judaism is to have any meaningful impact on the environmental discourse, we need to move from beautiful rabbinic anecdotes, Midrashim and moral stories to the authoritative and practical realm of Halacha.

Moving into the four cubits of Halacha

In theory, Judaism can be understood as permitting a limited and responsible dominion over the earth. Humans, however, have not fulfilled this obligation and the original plan has not worked as we face existential environmental challenges of immense proportions. Religious Jews can sit back and say that all these environmental concerns are only indirectly and obliquely referenced in rabbinic literature and that our main concern should be the four cubits of the Shulchan Aruch (the Halachic Code of Law) which focuses on more pressing religious and ritual matters.

We, therefore, need Orthodox religious leaders to join the ‘outside’ voices and speak about these issues otherwise the catastrophe we face will remain a ‘foreign’ and ‘alarmist’ issue of non-Jews or only a perceived concern of the assimilated Jewish left, just like their other ‘ill-conceived’ occupation with social matters and constructs. Unfortunately, I don't see this happening any time soon.

There is a glimmer of hope, though. Dadon mentions that there are some Jewish thinkers who are trying to bring environmental issues into the realm of Halacha. They argue along the following lines:

“Jewish law needs to be more active in the wake of the ecological crisis and extend prohibitions such as ‘idolatry’ to the issue of toxins and pollution and that kosher dietary laws should include and emphasize the value of sustainability and environmental responsibility. In addition, some scholars have attempted to take a legal stand on contemporary environmental issues using key Talmudic themes in tort [civil] law, such as fire and the pit” (Dadon 2023: 136).

This means that they are trying to extend the existing Talmudic categories laws like ‘Fire’ which causes damage to a neighbouring property, and the ‘Pit’ which a person digs in a public space and presents a danger that a passerby may fall in and get injured.

The existing Halachic category of ‘Fire’ could include damage by stationary substances that cause damage when external forces, like the wind, carry pollutants and toxic chemicals; or when they seep into the groundwater. The existing Halachic category of the ‘Pit’ could include damage caused by fixed hazards that are established and remain in public spaces, such as industrial waste. Such thinkers are beginning to make the:

“legal questions from the Talmud relevant to contemporary debates about environmental policy and ethics in order to legally and morally influence the industrialized economic system” (Dadon 2023:136).

When electricity was first discovered, the Halachic world immediately applied its mind to the nature of electricity and the permissibility or impermissibility of its use on Shabbat. No one sat back and claimed this was a modern matter that did not concern Torah Jews. The vast majority of rabbis did exactly what some Jewish thinkers are trying to do today with environmental issues, but somehow, they succeeded in changing the Halachic landscape in an unprecedented and irrevocable manner. No one today can imagine Shabbat without time switches and parked cars. There was tremendous Halachic debate over which category of the then-existing thirty-nine prohibited Shabbat activities, electricity fell. Some Moroccan rabbis had a slightly different take on the Halachic nature of electricity but there was still active debate and ultimately the clear and acceptable application of pre-existing Halachic principles to matters that did not exist in Talmudic times.

The rabbis had no problem changing the face of Shabbat observance by introducing stringencies limiting and defining modern electrical use that the rest of the world was widely embracing. People were prepared to forgo the greatest and most convenient invention since the creation of the world, walk miles to shul on Shabbat and sometimes do without hot food and lights. Why is it taking so long for the Hakachic world to do exactly the same and apply similar reasoning to existential questions regarding the future of this planet?

[1] Dadon, K., 2023, ‘Ecology in Judaism’, Science, Art and Religion, vol. 2, issue 3-4, 131-138.

[2] Emunot veDeot (Heb. trans. Rabbi Josef Kapach). 6th ed. Jerusalem: Machon Mishnat HaRambam; 2004; Chapter 4, pp. 150–152.

[3] White, L.J Jr, 1967, ‘The historical roots of ecological crisis’, Science, 155(3767), 1203–1207.

[4] Maimonides. Guide for the Perplexed (Heb. trans. Rabbi Josef Kapach). Jerusalem: Mossad Harav Kook; 1977. III:13, pp. 298–302.

[5] Hazon haTzimhonut vehaShalom. In: Fried Y, Riger A, eds. Afikim baNegev II, in Lahai Ro’i. Jerusalem; 1961; p. 207.

[6] Raz, S. A., 1976, Tzadik in Our Times, Translated by Charles Wengrov, Jerusalem, 108–109.

[7] Tosefta, Bava Kama, 2:1.

[8] Midrash Vayikra Rabbah, 4:6.

[9] Midrash Kohelet Raba, 7:13.

[10] Mishnah Yoma 5:6 (see Kehati).

[11] Mishnah Sukkah 5:3.