Siyum Seder Taharos - Dad's Yahrzeit

.
This is a very long one. It's the speech I gave at our shul's siyum mishnayos, somewhat elaborated for a wider audience.

Siyum Seder Tohoros, Shabbat afternoon 25 June 2011

Yavneh Minyan of Flatbush,

Siyum of the community mishnah study program, the first year we were able to cover all six sedarim of Mishnah

Two days before the yahrzeit of Dad, Sydney Baker, hareini kaparat mishcavo

I want to talk about the Pharisees and Sadducees, or Prushim and Tzdukim, or Chazal and the Kohanim.

What's the most common characterization of the Tzdukim in the Talmud? That they don't accept the Oral Torah. That's true as far as it goes, but doesn't explain their total difference with Chazal over biblical legal and narrative interpretation.

Who are the Sadducees? Yechezkel designates the family of Tzadok Hakohen to be the future Kohanim. As for their legal positions vis-à-vis the Pharisees, we turn to Josephus:

Antiquties XIII:10.6: What I would now explain is this, that the Pharisees have delivered to the people a great many observances by succession from their fathers, which are not written in the laws of Moses; and for that reason it is that the Sadducees reject them, and say that we are to esteem those observances to be obligatory which are in the written word, but are not to observe what are derived from the tradition of our forefathers. And concerning these things it is that great disputes and differences have arisen among them, while the Sadducees are able to persuade none but the rich, and have not the populace obsequious to them, but the Pharisees have the multitude on their side.

Aharon Shemesh (Halakhah in the Making, 2009) notes that where the Pharisees derived law through the drasha process, including explicating verses through the Thirteen Hermeneutical Principles of Rabbi Ishmael, from the opening of Midrash Sifra, the halakhic midrash to Leviticus, the Sadducees derive law through continuing revelation. That is, they study and meditate on the literal text, and the get ideas about interpretation which they attribute to Divine revelation. This can, of course, lead to chaos, as Korach wanted to do because of his personal interpretations of Scripture, so the system of development based on a defined process is probably better as far as uniform understanding of the law goes.

Lawrence Schiffman – "From Text to Tradition" 1994 notes that some have suggested that they have their own exegetical methods, which are not simply literalism, and which are non-rabbinic. He believes, and there seems to be growing acceptance of the idea, that the Qumran people were a kind of super-Sadducees – they had the Sadducee calendar, they had multiple copies of a document called MMT (Miqsat Maaseh Torah, or the Halakhic Letter, a catalogue of legal issues wherein they differ with the Pharisees and the Pharisee-dominated Sadducees who were running the Temple) indicating its importance, and, most important, MMT (only released in 1990) parallels known Pharisee/Sadducee arguments in the mishnah. So passages in the mishnah and in the DSS can shed light on Sadducee exegesis and their legal assumptions.

We can see that through a few cases drawn from the mishnayot in Seder Tohorot

	Mishnah text	English mishnah translation	4QMMT
Parah 3:7	ג,ו ]ז] לא הייתה פרה רוצה לצאת--אין מוציאין עימה שחורה, שלא יאמרו שחורה שחטו; ולא אדומה, שלא יאמרו שתיים שחטו. רבי יוסי אומר, לא משום זה; אלא משום שנאמר "והוציא אותה" (במדבר יט,ג), לבדה. זקני ישראל היו מקדימין ברגליהם להר המשחה, ובית טבילה היה שם. ומטמאין היו את הכוהן השורף את הפרה, מפני הצדוקיין שלא יהו אומרין במעורבי שמש הייתה נעשית.	THE ELDERS OF ISRAEL USED TO PRECEDE THEM ON FOOT TO THE MOUNT OF OLIVES, WHERE THERE WAS A PLACE OF IMMER-SION.44 THE PRIEST THAT WAS TO BURN THE COW WAS (DELIBERATELY] MADE UNCLEAN ON ACCOUNT OF THE SEDDUCEES: IN ORDER THAT THEY SHOULD NOT SAY,45 ‘ONLY BY THOSE ON WHOM THE SUN HAS SET46 MUST IT BE PREPARED’. (44) Also built, like the causeway, over a hollow as a protection against a corpse uncleanness in the depths. (45) Var. lec., ‘because they used to say’. (46) Sc. those only who are in all respects clean.	And also in what pertains to the purity of the red heifer in the sin offering: 17 that whoever slaughters it and whoever burns it and whoever collects the ash and whoever sprinkles the [water of] 18 purification, all these ought to be pure at sunset, 19 so that whoever is pure sprinkles the impure. For the sons of 20 [Aaron] ought [to be…]

First idea: Parah – it's rabbinic legislation how we deal with a tevul yom (one who has gone to the mikvah to be purified from some tumah, but the next sunset has not yet passed – many know this from the first mishnah in Brochot, that the evening Shema is said "from the hour when the Kohanim go in to eat their trumah", that is, when the sun has set after they had gone to mikvah) vis-à-vis burning the parah.

The text in the Torah is not entirely clear – the kohen who burns the parah is not a tevul yom until after burning the parah, as we just leined now (Shabbat afternoon). Which implies that it's not relevant before the burning. But the Sadducees don't accept rabbinic legislation. The clear situation for many types of purification is that one's purification doesn't end until sunset after going to the mikvah, and the kohanim have to be pure to do divine service, so they have to be fully pure to burn the Parah.

But the Rabbis legislated that it was OK for a Tevul Yom to burn the Parah. The Sadducees didn't accept rabbinic legislation, and would object, so the Rabbis deliberately did this to prove "We're not Tzdukim."

Yadayim 4:7

ד,ז אומרין צדוקיין, קובלין אנו עליכם פרושים: שאתם מטהרין את הניצוק

THE SADDUCEES SAY: WE COMPLAIN AGAINST YOU, O YE PHARISEES, THAT YOU DECLARE AN UNINTERRUPTED FLOW OF A LIQUID TO BE CLEAN.42 THE PHARISEES SAY: [DO] WE COMPLAIN AGAINST YOU, O YE SADDUCEES, THAT YOU DECLARE A STREAM OF WATER WHICH FLOWS FROM THE BURIAL-GROUND TO BE CLEAN?43 (42) Cf. Maksh. V, 9. If a liquid is poured from a clean vessel into an unclean vessel, the liquid remaining in the former vessel remains clean, as the uninterrupted flow does not form a connective. (43) Cf. Mik. I. 4. The Sadducees agreed that this was the case. On this controversy v. Finkelstein, The Pharisees II, p. 638.

And also concerning flowing liquids: we say that in these there is no 59 purity. Even flowing liquids cannot separate unclean 60 from clean because the moisture of flowing liquids and their containers is 61 the same moisture.

Similarly in the case of poured liquids (irui, nitzok) – we have a case of conflicting legislation in an unclear case. In our case, we rely on the rule of "heat rises", or "tata'ei gavar", which may be familiar from one's study of the rules of meat & milk. Only when the stream springs back up on disconnection, like thick honey, does it physically carry the tumah to the upper container. They evidently don't have that rule, so any connection connects tumah.

Yadayim 4:7 continued

ד, אומרין צדוקיין, קובלין אנו עליכם פרושים: מה אם שורי וחמורי שאיני חייב בהן מצוות, הריני חייב בנזקן; עבדי ואמתי שאני חייב בהן מצוות, אינו דין שאהא חייב בנזקן. אמרו להם, לא, אם אמרתם בשורי וחמורי, שאין בהן דעת--תאמרו בעבדי ואמתי, שיש בהן דעת, שאם אקניטנו, ילך וידליק גדישו של אחר ואהא חייב לשלם.

THE SADDUCEES SAY: WE COMPLAIN AGAINST YOU, O YE PHARISEES, IN THAT YOU SAY, MY OX OR ASS WHICH HAS DONE INJURY IS LIABLE,44 YET MY MANSERVANT OR MAIDSERVANT WHO HAS DONE INJURY IS NOT LIABLE’.45 NOW IF IN THE CASE OF MY OX OR MY ASS’ FOR WHICH I AM NOT RESPONSIBLE IF THEY DO NOT FULFIL RELIGIOUS DUTIES,46 YET I AM RESPONSIBLE FOR THEIR DAMAGE, IN THE CASE OF MY MANSERVANT OR MAIDSERVANT FOR WHOM I AM RESPONSIBLE TO SEE THAT THEY FULFIL RELIGIOUS DUTIES,47 HOW MUCH MORE SO THAT I SHOULD BE RESPONSIBLE FOR THEIR DAMAGE? THEY SAID TO THEM: NO, IF YOU ARGUE ABOUT MY OX OR MY ASS’ WHICH HAVE NO UNDERSTANDING, CAN YOU DEDUCE ANYTHING THEREFROM CONCERNING MY MANSERVANT OR MAIDSERVANT WHO HAVE UNDERSTANDING? SO THAT IF I WERE TO ANGER EITHER OF THEM THEY WOULD GO AND BURN ANOTHER PERSON'S STACK AND I SHOULD BE LIABLE TO MAKE RESTITUTION?48 (44) I.e., I am responsible for the damage they do. Cf. Ex. XXI, 35. The Sadducees did not dispute this, as it is expressly stated in the Torah. (45) Cf. B.K. VIII, 4. Not being expressly ‘stated in the Torah, the Sadducees did not accept this. (46) Since the Torah does not enjoin religious duties on animals. (47) E.g., to see that they do not work on the Sabbath. (48) Hence the law provides that I should not be liable for the damage they do. On this controversy v. Finkelstein L. op. cit. II, p. 684.

Second idea – drasha. We mentioned the 13 Exegetical Principles at the beginning of the Sifra – since it's midrash, it's a foundational document of rabbinic exegesis. Further, its inclusion in the priestly midrash (Toras Kohanim) seems indicative, that even in the Temple the rabbinic writ extends, despite the Sadducees. Look at the liability case. The Sadducees use kal vachomer, the first of the 13 Principles, the only one that is purely logical, not requiring a tradition about some part of the argument. Thus, it's the one principle that doesn't require a mesorah (tradition). Shemesh notes a few other places where the Sadducees use kal vechomer, but that's the only one of the principles they use.

So they have their own exegetical methods, perhaps based on logic, but not on mesorah. Aviram Ravitzky, in his recent book on the relationship between the 13 Principles and Aristotelian logic, notes that even kal vachomer isn't quite the Aristotelian syllogism of the Prior Analytics. Kal vechomer the other ideas, such as combinations of generals and particulars, or the gezerah shavah – the similar language idea that REQUIRES a tradition. So, looking at the elaboration of the Main Categories of Damages in the first few pages of Tractate Bava Kamma, we see a rabbinic elaboration, that looks like what I think of as the uncertain origin of drash. That is, whether it's rabbinic exegesis or Mosaic tradition, it's treated as part of Torah law. The Sadducees don't have that, so they rely on syllogism alone, kal vechomer.

Let me elaborate on what I mean by uncertainty, and share some of my personal journey. It took me a long while to convince myself to be Orthodox, and my main sticking point was the Divine origin of the Oral Law.

I had read a book by Rabbi Elliott Dorff on the varieties of Conservative Judaism. All of them shared one idea that distinguished them from Orthodox Judaism – none of them accepted a Divine origin of the Oral Law. To Conservatives, the Oral Law, while necessary to understand the Torah, is a completely human construct. And that makes a lot of sense – if the laws weren't written down until the Mishnah or after, how can we know that they were reliably transmitted from Sinai? How do we know that the laws as we have them aren't the result of a 1500-year game of telephone, distorted by time and transmission?

Then I spent a few weeks learning the Rambam’s introduction to the commentary on the Mishnah. He classifies the laws into different categories. One is the “halacha lemoshe misinai”, a tradition that is a) universally accepted, b) not argued with, and c) not derivable from Scripture. Examples include the requirements that tefillin be square and black. There’s no way to get that from “totafot” etc., but everyone agrees, and the archeological evidence shows that it was the case all the way back, at least in the last 2000 years.

Then there are the regular laws, which are details of the mitzvoth which are known through drasha, and argumentation, etc. What relation do these bear to a possible Sinaitic revelation? I read somewhere, I don’t remember where, that basically, it doesn’t matter whether these laws are known by drasha or by tradition. The laws generated by drasha, since drash is part of the system, are equivalent to laws known by tradition. We generally hold, or at least in the time of the Tannaim they held, that a law known by tradition, from one’s teacher and one’s teacher’s teacher, is not to be argued with, it’s “hilcheta gemiri lah”, learned law from ancient tradition. This is generally held in higher esteem than laws known by logic, which are in turn considered stronger than laws derived from a verse. But they’re all d’oraita laws, Torah-originated laws.

That was another thing, I had to understand that d’oraita vs. d’rabbanan, as against written law and oral law, were different spectra of legal origin. Rabbinic law is legislation. D’oraita law is law derived from the Sinaitic revelation. And I realized, it doesn’t matter whether a given law is known by tradition or by drash. It Doesn’t Matter. They’re all considered d’oraita. Because laws reconstructed (yes, reconstructed, we know that legal matter was lost over the generations – there’s a tradition that 3000 laws were lost at the death of Moshe, and the continuing pattern of exile and death continues to erode our capacity for oral legal transmission) through the drash process, through the 13 Principles of Exegesis, or the 32 Principles of Midrashic Interpretation, etc., since the interpretive rules are themselves part of the system of law – derived law is the same Torah-originated law as traditional law.

So imagine my pleasure at finding the Mishnah in Yadayim 4:3 which validates this whole outlook.

Here it is:

ד,ג בו ביום אמרו, עמון ומואב מה הם בשביעית. גזר רבי טרפון, מעשר עני; וגזר רבי אלעזר בן עזריה, מעשר שני. אמר רבי ישמעאל, אלעזר בן עזריה, עליך ראיה ללמד, שאתה מחמיר--שכל המחמיר, עליו הראיה ללמד. אמר לו רבי אלעזר בן עזריה, ישמעאל אחי, אני לא שניתי מסדר השנים; טרפון אחי שינה, ועליו ראיה ללמד. השיב רבי טרפון, מצריים חוצה לארץ, ועמון ומואב חוצה לארץ--מה מצריים מעשר עני בשביעית, אף עמון ומואב מעשר עני בשביעית. השיב רבי אלעזר בן עזריה, בבל חוצה לארץ, ועמון ומואב חוצה לארץ--מה בבל מעשר שני בשביעית, אף עמון ומואב מעשר שני בשביעית. אמר רבי טרפון, מצריים מפני שהיא קרובה, עשאוה מעשר עני, שיהו עניי ישראל נסמכין עליה בשביעית--אף עמון ומואב שהן קרובין, נעשים מעשר עני, שיהו עניי ישראל נסמכין עליהן בשביעית. אמר לו רבי אלעזר בן עזריה, הרי אתה כמהנן ממון, ואין אתה אלא כמפסיד נפשות: קובע אתה את השמיים מלהוריד טל ומטר, שנאמר "היקבע אדם אלוהים, כי אתם קובעים אותי, ואמרתם, במה קבענוך; המעשר, והתרומה" (מלאכי ג,ח). השיב רבי טרפון. אמר רבי יהושוע, הריני כמשיב על דברי טרפון אחי, אבל לא לעניין דבריו: מצריים מעשה חדש ובבל מעשה ישן, והנידון שלפנינו מעשה חדש; יידון מעשה חדש ממעשה חדש, ואל יידון מעשה חדש ממעשה ישן. מצריים מעשה זקנים, ובבל מעשה נביאים, והנידון שלפנינו מעשה זקנים; יידון מעשה זקנים ממעשה זקנים, ואל יידון מעשה זקנים ממעשה נביאים. נמנו וגמרו, עמון ומואב מעשר עני בשביעית. וכשבא רבי יוסי בן דורמסקית אצל רבי אליעזר ללוד, אמר לו, מה חידוש היה לכם בבית המדרש היום. אמר לו, נמנו וגמרו, עמון ומואב מעשר עני בשביעית. בכה רבי אליעזר ואמר "סוד ה', ליראיו; ובריתו, להודיעם" (תהילים כה,יד); צא והודיעם ואמור להם, אל תחושו למניינכם--מקובל אני מרבן יוחנן בן זכאי, ששמע מרבו, ורבו מרבו הלכה למשה מסיניי, שעמון ומואב מעשר עני בשביעית.

As you can see, it’s very long. I’m not going to translate the whole thing. To summarize: It’s a story of a dispute held on the day that R’ Elazar b. Azariah became the head of the academy. You all know about that, he was “like a man of seventy years” because his hair miraculously turned white, to give him gravitas when made Rosh Yeshivah at age 18. Anyway, they’re arguing a question. Various people argue with R Elazar, he gives counterarguments, then they vote, and R’ Elazar loses.

Now the crucial bit:

WHEN R. JOSE B. DURMASKITH22 VISITED R. ELIEZER23 IN LYDDA HE SAID TO HIM: WHAT NEW THING DID YOU HAVE IN THE HOUSE OF STUDY TO-DAY? HE SAID TO HIM: THEIR VOTES WERE COUNTED AND THEY DECIDED THAT [X_idea]. R. ELIEZER WEPT AND SAID: THE COUNSEL OF THE LORD IS WITH THEM THAT FEAR HIM: AND HIS COVENANT, TO MAKE THEM KNOW IT.24 GO AND TELL THEM: DO NOT HAVE ANY APPREHENSION ON ACCOUNT OF YOUR VOTING. I RECEIVED A TRADITION FROM R. JOHANAN B. ZAKKAI WHO HEARD IT FROM HIS TEACHER, AND HIS TEACHER FROM HIS TEACHER, AND SO BACK TO AN HALACHAH GIVEN TO MOSES FROM SINAI,25 THAT [X_idea is true].

And there you have it. By arguing and voting, by following the reconstructive process, they came to the correct conclusion, the correct halacha, which was validated by the tradition received by R’ Eliezer. So IT DOESN’T MATTER that laws are lost and we can’t say for certain whether a given law comes from tradition or from reconstruction – they’re the SAME THING. They’re all d’Oraita laws, originated at Sinai, even if the transmission path isn’t direct and reliable. We have error-correcting codes built in.

But I had to work all this out from first (or second) principles. It was never enough to just take on faith ideas that sounded ridiculous, like “the Oral Torah came from Sinai, just as we have it.” I had to dig, to understand that while true, it was a ridiculous oversimplification.

* * *

My father also took a spiritual journey, although his went through emotions and behavior rather than intellect. Started out atheist, knew Yiddish and a bit of Hebrew. As we went to school, and switched to R Riskin's O shul, he taught himself Hebrew. He later took R Cohen's intro Talmud class, and learned more biblical exegesis following Mom's example.

Because he could sing and read/understand Hebrew, he learned to lein and daven, because the summer C-nagogue needed people, following my example (I learned to lead High Holidays shacharit/mincha so that they could hold services without having to pay someone). At 68, he was the "kid" in their davening/leining crew.

After some years, I asked if he was still an atheist. He told me that after davening for all this time, he thought that maybe there might be something there. By the end, in the nursing home, he was insisting on kosher (icky frozen meals) rather than fresh kosher-style food, and wore a yarmulke all day. Now, I don't know about his theological state at the time, communication was difficult with his lost hearing aid, but I have to figure that the insistence on behavioral correctness reflected a change in internal belief. Atheist – agnostic – by the end, I think a believer, to some extent, although I may be fooling myself.

At any rate, at Michael's (Michael Klein, organizer of the community Mishna study program) urging, I undertook to learn all of Seder Taharot in Dad's memory, so that we could, as a shul, complete all six orders of Mishnah for the first time. I want to thank him for his organizing efforts, I want to thank all of you for your efforts in this program. I want to thank Debbie for her support this year, forgoing a public honor because I was insecure during shloshim, and I want to thank Dad (and Mom too, of course), for support during his life, for sending us to Ramaz despite a lack of belief in God, although he always believed in the value of tradition and Jewish peoplehood, for being proud of his children whether or not they followed his own path. Yehi zichro baruch.