Which promotes community cohesion and survival better: flexibility or rigidity in law? Which assures that unity of the community holding the reins of authority to make and decide law?
Prior to 70 C.E., halakhah was pluralistic. Its nature was an exploration of how Torah was to be applied to life. With the Temple’s destruction, and even more the transition from the Tannaim to the Amoraim, flexibility gave way to rigidity. This is the thesis of Paul Heger in The Pluralistic Halakhah: Legal Innovations in the Late Second Commonwealth where he notes: “The issue of authority thus became the major impediment to legal development… At the primary stage, logical and practical considerations, within the boundaries of the Torah, dominated the halakhic disputes and decisions, allowing creative legislation in all directions, lenient and strict, tolerant and exclusive, flexible and rigid, pluralistic or with fixed halakhot, according to the circumstances… the transition from the tannaitic to the amoraic concepts constituted a real cut-off between two distinct types of theories and convictions… The rigidity of the halakhah, and the conviction that only an ‘infallible’ leader knows God’s will, undermine all tolerance to divergent opinions and exacerbate divisiveness” (pp. 348-350).
Could that “infallible” leader be the majority of sages in the Academy?
In the “Oven of Achnai” story, R. Eliezer circumvents the decision process in the Academy in order to assert his authority. He claims divine prerogative (buttressed by a few highly impressive miracles, with a heavenly voice in a cameo role) but his colleagues reject his arguments. They cite Deuteronomy 30:12 (“It is not in heaven”) which ironically gives them the authority to overrule even heaven itself, which happens to have sided with R. Eliezer. When the dialectics and debates are over, the Sages vote. The majority opinion is the one every Sage is expected to abide by, for as Torah says, Incline after the majority (Exodus 23:2). R. Eliezer, however, armed with an imprimatur from heaven, refuses. The result is devastation, destruction, and death. This is not a pretty passage.
Had R. Eliezer accepted the majority opinion, the tragic ending would have been averted. The culture of the Academy in Babylonian, as in Eretz Yisrael, was based on the principle stated in Exodus 23:2 – once a vote is taken, every rabbi is expected to follow the majority opinion. It is easy to imagine why this is so. Imagine that you could go to different authority to learn his/her version of the traffic laws. In the case of a decimated Jewish community, unity and a centralized authority were deemed essential for several reasons. First, to engender a consistent set of standards for the life of the community. Second to insure that relations between sages would remain civil and stable so that they could study and work together. The “Oven of Achnai” story serves as a warning in this regard. But is it good for the enterprise of halakhah, and as an outgrowth for Judaism overall?
Could this not also be stifling, preventing alternative views from being voiced and considered once a vote is taken? Edmund Burke wrote in 1790 that “They tyranny of the multitude is a multiplied tyranny” (Reflections on the Revolution in France). Alexis de Tocqueville coined the phrase “the tyranny of the majority” nearly half a century later in his remarkable work, Democracy in America (1835). He signaled a prescient warning that a majority voting system could promote the interests of the majority so far above those of individuals or minority groups that dissenters would be effectively oppressed and tyrannized by the majority. It is a danger to always keep in mind with any majority voting system.
The Jerusalem Talmud, tractate Berkhot explains in far more peaceful terms than bBaba Metzia, how this worked. The first mishnah of both Talmuds inquires how late into the night one may recite the evening Shema. R. Eliezer (the same R. Eliezer we find in the “Oven of Achnai” passage) gives us until the end of the first watch (the first third of the night) but the Sages say midnight, and Rabban Gamliel extends it even further to amud ha-shachar (the first light of dawn). An incident is cited: Rabban Gamliel’s sons came home from a party after midnight. They told their father that they had not yet recited the evening Shema. He responded, in accord with his opinion above, that they had until amud ha-shachar to fulfill their obligation. Was Rabban Gamliel teaching his sons to follow his opinion in violation of the majority view of the Sages that midnight is the cutoff?
We find the discussion of this question on 8b-9a. The passage is quite long, so I will include a translation of it for you beneath this discussion (scroll down a lot) and mostly summarize and cite small portions here. The gemara begins with the obvious question and immediately cites three examples of prominent rabbis who found themselves in disagreement with their colleagues yet submitted to the authority of the majority.
Does Rabban Gamliel disagree with the rabbis and act according to his own opinion [even against the opinion of the majority]? R. Meir, when he disagreed with the rabbis, did not act according to his own opinion. R. Akiba, when he disagreed with the rabbis, did not act according to his own opinion. R. Shimon, when he disagreed with the rabbis, did not act according to his own opinion. (8b)The gemara proceeds to provide an example for each sage. As briefly as I can, here is a summary of the three examples:
1. R. Meir believed it was permissible to vigorously mix ingredients to make and apply a salve on shabbat for someone who is ill. The Sages, however, determined the vigorous mixing to be a violation of halakhah. When R. Meir himself became ill, he refused to allow his students to prepare and apply such a salve to him. They asked why R. Meir was not following his own opinion on the matter and R. Meir replied that he was following the majority view.
2. R. Akiba disagreed with his colleagues concerning a matter of ritual impurity: what is the minimum amount and source of various bone, blood, and body tissues required to impart ritual impurity to those under the same roof with these tisues. R. Akiba’s opinion in mishnah Ohalot 2:6 is quoted on our daf. Then we learn of an incident in which a question arose about a box filled with bones. Reputable physicians conducted an examination and determined that the bones met the minimum requirement of R. Akiba, but in the interim, the Sage had voted for a more lenient standard, so R. Akiba proffered their opinion as his own revised opinion, thereby inclining after the majority.
3. R. Shimon holds a lenient opinion concerning the collecting and eating of plants that sprout spontaneously during the sabbatical year, when plowing, sowing, and harvesting are forbidden. The Sages, however, come to a more stringent decision. When R. Shimon encounters a man out in the field following his more lenient standard, he tells the man that he has now adopted the more stringent opinion of his colleagues.
How could it possibly be, then, that Rabban Gamliel failed to incline after the majority in the case of his party-animal sons?
And Rabban Gamliel disagrees with the rabbis and acts according to his own opinion? It is different here. Because it [Shema] can be said for studying. But even after the first light of dawn [it would have been appropriate for his sons to recite Shema – it would have been the morning Shema]. There are those who want to say [this – that Rabban Gamliel followed his own opinion in contradiction to the opinion of the majority of the rabbis]. There [in the three cases cited above] they could fulfill the words of the sages. But here, midnight has already passed and [Rabban Gamliel’s sons] could not fulfill the words of the sages. [Therefore Rabban Gamliel] told them to act according to his opinion.The gemara explains that Rabban Gamliel was merely giving his sons permission to study the passage of the Torah including the Shema; certainly that is permissible at any hour day or night. Not everyone is convinced, and still there are those who claim that Rabban Gamliel held to his own opinion in opposition to that of the majority. The solution is quite clever: since the sons returned after midnight, they could not have fulfilled their obligation as prescribed by the Sages. Therefore Rabban Gamliel – in this particular case alone, and only because it was too late for his sons to do as the Sages said – had them act according to his personal opinion.
The gemara’s solution intrigues me. As the Sages of the Yerushalmi tell the story, Rabban Gamliel both accedes to his colleagues, thereby respecting the majority ruling, and simultaneously asserts his own opinion at least in some small way. He could have told his sons that their opportunity to say the evening Shema had elapsed. Sorry, too late, you lose. Instead, he found a creative way to keep alive a minority view in the lived experience of the community.
The myth that Judaism has always proffered the same rules, and that all Jews follow the same rules if they follow any at all, needs to be busted wide open. Halakhah is a process, not an outcome. It is an evolving process, reshaping itself in each generation according to the needs and sensibilities of the community. This is a wonderful thing and assures Judaism’s continued vitality and viability. Preservation of the minority opinion, respectfully presented, is one of the attributes of the Bavli, but there is little room for it to live and breath in the life of the community. Here in the Yerushalmi, we see a bit more openness – an occasion where a minority opinion is put into practice to the benefit of all involved.
Here is a translation for the Yerushalmi Berakhot 8b-9a to accompany the commentary above.
8b
An incident: Rabban Gamliel’s sons came [home after midnight from a party and had not yet recited the evening Shema].
Does Rabban Gamliel disagree with the rabbis and act according to his own opinion [even against the opinion of the majority]? R. Meir, when he disagreed with the rabbis, did not act according to his own opinion. R. Akiba, when he disagreed with the rabbis, did not act according to his own opinion. R. Shimon, when he disagreed with the rabbis, did not act according to his own opinion.
Where do we find that R. Meir disagreed with the rabbis but did not act according to his own opinion? A baraita: We may spread alvantis [some kind of healing ointment or salve] on a sick person on shabbat. When? In the case in which one mixed it vigorously with wine and oil prior to shabbat. But if he did not mix it vigorously prior to shabbat, it is forbidden [to spread it on the sick person]. [Another] baraita: R. Shimon b. Elazar said: R. Meir permitted vigorous mixing of wine and oil and spreading on a sick person on shabbat. And it once happened that R. Meir became sick and we [his disciples?] requested to do this for him [on shabbat]. But he would not permit us. We said to him: Master, will you nullify your words in your own life experience? And he said to them: Although I am lenient with regard to other people, I am strict concerning myself because [a majority of] my colleagues disagree with me.
Where do we find that R. Akiba disagreed with the rabbis but did not act according to his own opinion? A mishnah [Ohalot 2:6 asks what is the minimum that suffices to convey ritual impurity to everyone under the same roof as the spinal column and skull]: A spinal column or a skull from two corpses, a revi’it of blood from two corpses, a quarter-kav of bones from two corpses, a limb from a dead person from two corpses, a limb from a live person from two people. R. Akiba says these [quantities are sufficient] to convey tum’ah (ritual impurity) and the sages say [everyone under the same roof remains] tahor (ritually pure). A baraita: There was an incident in which they brought a box filled with bones from Kfar Tavi and deposited it in the air [i.e. not under the roof] of the synagogue in Lod [presumably in the courtyard or outside the entrance]. [The gemara now seems to presume that prior to arriving in Lod, the bones had been stored in a building, so the question arises whether those who were in the building with the bones are now to be considered tamei or tahor – ritually impure or ritually pure.] Todros the physician entered and all the other physicians [entered] with him. Todros the physician said: The spinal column and skull here are not from one corpse. [The bones therefore come from two separate corpses.] They [the rabbis] said: Since there are some here who rule [bones from two corpses are insufficient to convey tum’ah and therefore] they are ritually pure, and there are some here who rule [that bones from two corpses are sufficient to convey tum’ah and therefore] they are ritually impure, let us take a count [i.e. vote].
9a
They began with R. Akiba [i.e. asked his opinion first]. He said tahor [bones from two corpses do not convey tum’ah, in contradiction to his ruling in Ohalot 2:6, cited above]. They said to him: since you already ruled tamei, and now you are ruling tahor, [they are certainly] tahor.
Where do we find that R. Shimon disagreed with the rabbis but did not act according to his own opinion? We learned in a mishnah (Shevi’it 9:1): R. Shimon says all aftergrowth [i.e. plants that sprouted spontaneously without having been purposefully planted by people] are permitted [to be collected and eaten in the sabbatical year] except the aftergrowth of cabbage because there is nothing else like it among the plants of the field. But the sages say: All aftergrowth are forbidden. R. Shimon b. Yochai was involved in an incident in the sabbatical year. He saw someone collecting aftergrowth of the seventh year. He said to him: Is this not forbidden? Are these not aftergrowth? The man said to him: Aren’t you the one that permits [aftergrowth in the sabbatical year]? [R. Shimon] said to him: And don’t my colleagues disagree with me? Concerning him [the man who continued to collect the aftergrowth despite R. Shimon telling him not to] it is said, and he who breaks down a wall will be bitten by a snake (Ecclesiastes 10:8) – and this happened to him.
And Rabban Gamliel disagrees with the rabbis and acts according to his own opinion? It is different here. Because it [Shema] can be said for studying. But even after the first light of dawn [it would have been appropriate for his sons to recite Shema – it would have been the morning Shema]. There are those who want to say [this – that Rabban Gamliel followed his own opinion in contradiction to the opinion of the majority of the rabbis]. There [in the three cases cited above] they were able to fulfill the words of the sages. But here, midnight has already passed and [Rabban Gamliel’s sons] could not fulfill the words of the sages. [Therefore Rabban Gamliel] told them to act according to his opinion.
© Rabbi Amy Scheinerman
