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Law and Rhetoric in Tosafot

February 1st, 2011

by Alyssa M. Gray

Attention to the rhetoric of legal texts is, along with interpretation and narrative, one of the three principal themes of the “law and literature” movement, according to Mark Washofsky (368-382). James Boyd White suggests that in reading a legal text, we examine three factors: (1) the inherited language—what is the language and culture with which the speaker is working?; (2) the art of the text—how does the speaker remake the language? How does the text reconstitute the discourse that preceded it?; and (3) the rhetorical community—what kind of world does the speaker’s text assume and what does it create? (See White, “Rhetoric and Law: The Arts of Cultural and Communal Life,” 45-46).

Referring specifically to the judicial opinion, White notes in his “Judicial Criticism” (393-410) that the judge “seeks to persuade the reader…of the rightness of the result reached and the propriety of the analysis used…” Not only that, but the judge “seeks to persuade the reader”, as well, of who the judge, the law, and the citizen are and should be, and what the nature of the (legal) conversation that constitutes them is (394).

White’s ideas have been applied to the study of modern responsa (see, e.g., Washofsky, 360-409), but I propose to apply White’s ideas to the very different context of a Tosafist text. The Tosafist text is not of course analogous to a judicial opinion (nor to a halakhic responsum). It is nevertheless a legal text, though, one which I suggest is designed to persuade its reader of the rightness of a particular legal view.

Tosafot to B. Avodah Zarah 2a, s.v. “asur” is well-known to students of the tractate as well as to historians of the halakhah. Tosafot there deal with the disjunction between the Bavli’s prohibition of commerce with non-Jews on the latters’ festival days (B. AZ 7b, 11b) and the widespread engagement in such commerce by Jews in Christian northern Europe in the eleventh and twelfth centuries. Ashkenazic scholars’ justifications of their communities’ practice, and the larger historical and economic context of the disjunction between Talmudic law and life, have been well studied by Jacob Katz and Israel Ta-Shma, among others. My goal here is to apply some insights from “law and literature” to s.v. “asur” itself.

Asur,” I suggest, is a thoughtfully-structured piece of legal rhetoric which leads the student through a select précis and critique of pre-Tosafist arguments for commerce on non-Jewish festival days in order to guide the student to the conclusion that R. Jacob Tam’s (1100-1171) revolutionary approach to this issue is in fact the correct one. The late 13th-century editor of this Tosafist passage (as per E. E. Urbach’s dating) is not working to reconcile possibly-conflicting sugyot whose ill-fit became clear to the Tosafot through study of the relevant tractates alone; rather, the Tosafist editor created this text to persuade the student to accept a particular halakhic perspective on a critical issue long of concern to Ashkenazic jurists.

Urbach himself observed about Tosafot on Avodah Zarah generally that “clarifications of the laws of the prohibited and the permitted take up much space—especially in the last chapter—and the editor brought much not only from the tosafot of his predecessors but also from the books of the legal decisors.” (Urbach, 2:655). “Asur” is one such passage focusing on “clarification” of the “prohibited” and the “permitted.” I suggest here that contemporary study of this and other such Tosafist “clarifications” should include attention to any rhetorical elements that may be present within the text.

The Tosafist editor built on R. Tam’s earlier placement of “old texts in new relations” (White, “Judicial Criticism,” 393) by creating his own text designed to persuade his intended scholarly audience of the rightness of R. Tam’s view. He began by setting out and critiquing elements of the inherited law surrounding commerce with non-Jews on their holidays, and then went on to set up R. Tam’s reconstitution of that legal “language and culture” as the correct solution to the old halakhic issue. Finally, the Tosafist editor replaced one conception of the community for which this issue was a concern with another.

Let us begin with the structure of “asur” itself:

Structure of Tosafot to B. AZ 2a, s.v. “asur

I. Rashi’s comment on M. AZ 1:1=>The Question: On what does “the world” rely in transacting with non-Jews on their festival days?

-Refinement of the question; reference to saints’ days and Sunday as festival days.

II.       Reference to and Critique of Two Traditional Arguments:

A.   B. Hul. 13b

1. One Critique

a. No reason B. Hul. 13b should take precedence over B. AZ 7b.

B.   Eivah (Enmity)

1. Two Critiques

a. Reinterpretation of sage-story on B. AZ 6b

b.  Eivah does not explain all the prohibitions of M. AZ 1:1.

III.         Two New Arguments:

A.   The non-Jews among whom we live are not idolaters.

1. Four proofs from Bavli and Yerushalmi

B.   R. Jacob Tam: B. AZ 6a-b shows the scope of the prohibition is limited to selling non-Jews items they can use as “offerings.”

1. Statement that R. Tam’s view eliminates the question about the “world’s practice” even if we hold that all non-Jews are idolaters.

2. Further discussion of money as “offerings”; R. Elhanan’s comment about “offerings.”

I suggest that each traditional argument (II.A and II.B) corresponds to a new and, to Tosafot, better argument (III.A and III.B) in an A-B-A’-B’ structure. II.A is the old argument—found in responsum #21 of R. Gershom b. Judah (960-1028)— that commerce with non-Jews on their festivals is permitted because non-Jews in the Diaspora are not idolaters, but are (merely) following the practices of their ancestors. Tosafot’s critique of II.A is logical: there is no inherent reason why B. Hul. 13b should take precedence over B. AZ 7b’s absolute prohibition of commerce on the festival day rather than vice versa. Moreover, the textual proofs for the new argument III.A are clearer than B. Hul. 13b’s alleged priority over B. AZ 7b: both Talmuds permit greater freedom of action when the non-Jew is known to the Jew not to be an idolater.

Yet, we should note a problem with III.A. The Talmudic sources upon which III.A is based assume that the non-Jew is actually known to the Jew and is known not to be an idolater. But what if the Jew does not know the non-Jew he is doing business with? And, moreover, how can the Jew really know if the non-Jew is an idolater or not? In other words, III.A imposes a burden on the Jew to make distinctions between non-Jews he may not be able to make. Tosafot will indeed later present their own implicit critique of III.A; for now, we may note that “asur”’s progression to III.B is itself an implicit critique of III.A—III.B is necessary because III.A does not fully answer the question in I.

The new argument III.B (R. Tam’s argument) corresponds to Tosafot’s discussion of the traditional argument from eivah in II.B.—a traditional argument found in the legal summary of Ra’avan (R. Eliezer b. Nathan of Mainz; 1090-1170), and mentioned again in the later Or Zarua (R. Isaac b. R. Moshe of Vienna; 13th century), as well as by Ra’avyah (R. Eliezer b. Joel Halevi, 1140-1225). Just as the argument from eivah was derived from B. AZ 6b, so is R. Tam’s new argument derived from B. AZ 6a-b. But R. Tam’s new argument is derived from a sugya that had never before been seen as part of the “canon within a canon” used to wrestle with the issue of festival-day commerce; in White’s terms, R. Tam reconstituted his inherited legal language by reaching for B. AZ 6a-b as the source of a new and better solution. And just as Tosafot pointed out that eivah had to be rejected because it did not account for all the prohibitions of M. AZ 1:1, so do Tosafot point out that R. Tam’s argument renders unnecessary any astonishment over the “practice of the world.” Moreover, Tosafot point out, R. Tam’s argument even works if we continue to assume that all non-Jews are idolaters. By saying so, Tosafot obliquely respond to the difficulty we noted earlier with their III.A: III.A requires Jews to make distinctions between idolatrous and non-idolatrous non-Jews that could be difficult to make. R. Tam’s view resolves that difficulty as well—R. Tam’s argument in III.B will answer the question in I even if one assumes all non-Jews are idolaters. R. Tam’s solution is therefore a complete solution to the old problem set out in I.

Some caveats are in order. It must not be assumed that all later Ashkenazic scholars agreed with R. Tam and the implications of this Tosafist text; Ra’avyah, for example, raised questions about R. Tam’s view. Attention must also be paid to the presentation in Tosafot R. Elhanan on B. Avodah Zarah. “Asur” is a snapshot that represents a Tosafist editor’s view as presented in one version of these tosafot to Avodah Zarah. Further, a proper assessment of Tosafot’s work in “asur” must include an analysis (unfeasible in this context) of all the pre-R. Tam arguments justifying commerce on non-Jewish festivals, as well as a careful look at what older arguments Tosafot chose not to deal with here.

All these caveats stated, I will discuss the importance of one missing older justification: R. Gershom’s statement that “it is better that [Jews who engage in commerce on non-Jewish festivals] be inadvertent sinners rather than deliberate sinners.” The older arguments Tosafot refer to—II.A (B. Hul. 13b) and II.B (eivah)—are predicated on the assumption that festival-day commerce is prohibited, yet without explicitly identifying Jews who engage in that commerce as sinners. The Tosafist editor’s omission of the older explicit statement that it is better that the people be inadvertent sinners is part of the editor’s reconstruction of the community’s image in the wake of R. Tam’s novel approach.

R. Tam’s approach does completely away with the prohibition in all but the narrow case in which a Jew is selling a non-Jew an item he can use as a religious offering. To R. Tam, there is no Talmudic prohibition as to other types of festival-day commerce. Therefore, to R. Tam (and the Tosafist editor), the Jews of Germany and northern France have never been even “inadvertent sinners” as R. Gershom suggested, and the Tosafist editor consequently omits an explicit reference to them as such. By so doing, the Tosafist editor has thus accomplished White’s third desideratum: he has implicitly set out a view of a community that has never really violated the halakhah, a community that really could not ever be described as “inadvertent sinners” with regard to this issue.

This rhetorical presentation of the halakhah-abiding Ashkenazic community is reminiscent of Haym Soloveitchik’s suggestive observation in a very different context that the “Franco-German community was permeated by a profound sense of . . . the rightness of its traditions, and could not imagine any sharp difference between its practices and the law..” (Soloveitchik, 211).

In conclusion, I suggest that rhetorical analysis is useful in reading Tosafot to B. AZ 2a, s.v. “asur.” Scholars of post-Talmudic halakhic literature should consider whether this method of rhetorical analysis may appropriately be employed in reading halakhic texts other than (modern) responsa.

Alyssa M. Gray, J.D., Ph.D., is Associate Professor of Codes and Responsa Literature at HUC-JIR.

Works Cited:

Haym Soloveitchik, “Religious Law and Change: The Medieval Ashkenazic Example,” AJS Review 12:2 (1987).

E.E. Urbach, Ba’alei Ha-Tosafot: Toldoteihem, Hibbureihem, Shitatam (2 vols.), Jerusalem: Mossad Bialik, 5th ed., 1986.

Mark Washofsky, “Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision,” in John C. Reeves and John Kampen, eds., Pursuing the Text: Studies in Honor of Ben Zion Wacholder, Sheffield, UK: Sheffield Academic Press, 1994.

James Boyd White, “Judicial Criticism”, in Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader, Evanston, Il.: Northwestern University Press, 1988.

James Boyd White, “Rhetoric and Law: The Arts of Cultural and Communal Life,” in Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law, Madison, WI: University of Wisconsin Press, 1985.

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