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Review of Shanks Alexander, _Gender and Timebound Commandments in Judaism_

November 15th, 2013

Review of  Elizabeth Shanks Alexander, Gender and Timebound Commandments in Judaism. Cambridge: Cambridge University Press, 2013.  296 pp. $99.00. By Rachel Furst   The Mishnah’s stipulation that men and women do not share the same mitzvah obligations – namely, that women are exempt from some categories of commandments that men are duty-bound to perform – has been understood by medieval and modern scholars alike as a programmatic statement concerning the role of women in Jewish tradition.  If the Sages exempted women from certain mitzvot, the thinking goes, they must have believed that something essential about women precludes their participation in those rituals.  Accordingly, the Mishnah’s well-known ruling that women are exempt from timebound positive commandments (such as sukkah, lulav, and tefillin) has generated a host of traditionalist, apologetic, and academic claims regarding the Sages’ insights into women’s nature, women’s roles, and the rhythms and restrictions of time. Now, in an erudite, methodical, and thorough study of the relevant rabbinic texts, Elizabeth Shanks Alexander challenges this widespread assumption. She contends that the perception of these exemptions as programmatic stipulations designed to “construct gender” reflects the Mishnah’s later transmission rather than its authors’ original intent – which was simply to record legal tradition and effectively codify the insights of their own academic endeavors.  In other words: when the early Rabbis exempted women from certain mitzvot, their rulings were not contingent on those commandments being either timebound or positive, and extended speculation on the meaning of this category will yield no insight into rabbinic understandings of gender.  The book is divided into three sections: Part I focuses on the tannaitic material itself; Part II details its reception history, through the Talmudic period; and Part III returns to the earliest sources that exempted women from specific ritual activities, all associated with the study of Torah.  In light of contemporary debates about the scope of women’s participation in Jewish ritual life, the title and topic of Shanks Alexander’s study may attract the attention of activists and non-academic audiences.  A warning to readers: this is an extremely academic book, which is largely about practices of reading Mishnah and other rabbinic texts.  That being said, the author is aware of the significance of this particular topic to contemporary audiences and does devote space both at the beginning and end of her study to considering its potential meanings and uses outside the academy.  In these sections, Shanks Alexander engages with the work of feminist scholars such as Judith Plaskow, Rachel Adler, and especially Tamar Ross, and these reflections are a worthy contribution in their own right. From the outset, the author concedes that the main text under discussion, Mishnah Kiddushin 1:7, sounds like an instruction regarding women’s involvement in ritual life:
All father to son commandments – men are obligated, women are exempt. All son to father commandments – men and women are equally obligated. All timebound, positive commandments – men are obligated, women are exempt. All non-timebound, positive commandments – men and women are equally obligated.[1]
Yet Shanks Alexander’s core argument is that this tannaitic passage was not designed as a rule at all.  Rather than a prescription concerning women and mitzvot, she claims that this mishnah was formulated by the early Sages as a description of different types of commandments that they identified in the course of study.  Specifically, Shanks Alexander contends that the rabbis first articulated the concept of “timebound positive commandments” while engaged in midrashic exegesis on the Book of Exodus, in an attempt to describe the features of the commandment to lay tefillin (Exodus 13:9–10; Mekhilta Bo 17).  Due to the legalistic style of Mishnah (and Tosefta), when the rabbis re-articulated their description in the context of those works, it unintentionally began to sound like a categorical, broad-based rule. This reading is the outgrowth of a larger argument about the genre of rabbinic writing found in the Mishnah and Tosefta.  Both here and in her earlier work, Shanks Alexander argues that the seemingly-prescriptive statements that typify these tannaitic collections and appear to be the product of abstract, conceptual thought actually reflect no more than a particular manner of rehearsing legal tradition.  Thus, with regard to Mishnah Kiddushin 1:7, she writes: “The four interrelated categories in the Mishnah appear to exist because they are a theoretically sound way to conceptualize groupings of commandments… (But) the perception that the network of related categories maps out a comprehensive field of commandments, and the perception that the category of timebound, positive commandments includes all the commandments that share the traits of being ‘positive’ and ‘timebound’ do not reflect the ways the categories actually function.  Rather… both the mishnaic and tosephtan presentations highlight the fact that tradition can be organized by categories and is therefore a coherent and master-able body of information” (pp. 31-32). Shanks Alexander is not the first to argue that women’s exemption from specific commandments predated the formulation of the mishnaic stipulation.  As she herself notes, Shmuel Safrai, Tal Ilan, Rachel Biale, and others have already made the case that Mishnah Kiddushin 1:7 was a generalization based on popular practice, which explains why there are so many exceptions to the presumed rule (as both the Babylonian and Jerusalem Talmuds are quick to point out).  But whereas the other scholars assume that the Mishnah’s focus on the timebounded-ness of the particular commandments that women did not perform reflected the Sages’ perceptions of social and cultural reality, Shanks Alexander insists that the category derived from pure academic study and had no direct bearing on contemporaneous understandings of gender.  She also positions herself in contrast to scholars such as Judith Hauptman who understand women’s exemption from timebound positive commandments as a reflection of their subordinate position within the family and a desire on the part of the rabbis to maintain that social order. The author does not deny that the tannaitic rule had an impact on the social standing and social identities of women subsequent to its formulation; and she herself demonstrates that the latest, post-amoraic stratum of the Babylonian Talmud did assume that the mishnah was prescriptive (as did medieval scholars).  She insists, however, that the stipulation was not originally a reflection of those identities nor was it intended to shape them; and she dismisses even the idea that the prescriptive reading of the late amoraim was motivated by a concern with gender.  (Instead, she believes that it was motivated by the general proclivity of these Babylonian scholars to read the Mishnah in a prescriptive, categorical manner.)  If anything, Shanks Alexander contends, the process of formulating the rule was an act of shaping and solidifying the Rabbis’ own identity and authority as legal interpreters and arbiters of tradition. This is a thought-provoking argument, particularly for scholars (like myself) who study the intersection of law and culture and are interested in the ways that law constructs identity and identity shapes law.  On one level, the author’s claim about the social and cultural (in)significance of women’s exemption from timebound positive commandments seems extremely narrow, as it pertains only to the earliest stage of the rule’s history.  But on another level, it highlights the ways in which the cultural meaning of a law even one or two generations after its genesis may be entirely distinct from its cultural meaning when it was initially formulated.  This, as I see it, is one of the book’s most significant contributions. In a strange way, the third and final section of the book seems both peripheral and crucial at the same time.  In Chapter 6, Shanks Alexander digresses from her central argument to demonstrate how the Sages came to perceive the recitation of Shema and the laying of tefillin as ritualized forms of Torah study.  The ostensible purpose of this chapter is to provide some insight into why the Mishnah (Berakhot 3:3) exempts women from these two mitzvot.  To do so, it builds on the author’s claim that the tannaitic Sages were committed to an independent, early tradition that excluded women from the study of Torah (which, incidentally, is not a timebound commandment).  This tradition, she reminds the reader, is best exemplified by the Mekhilta passage identified earlier in her study as the original source of the timebound positive category of mitzvot: in that passage, the Sages deemed women exempt from the commandment to lay tefillin because of its association with the mitzvah of Torah study, which they seemed to know from elsewhere was a commandment incumbent only on men.  Which of course begs the question: how and why did the Rabbis gender the practice of Torah study? In Chapter 7, Shanks Alexander endeavors to demonstrate that it was self-evident to the Sages that women could not be included in the form of ritual Torah study which functioned as a mechanism for cultural reproduction.  Drawing upon insights from the field of ritual studies, she suggests that the sources which exclude women from this activity refer to Torah study whose purpose was to initiate the learner into a covenantal community that comprised fathers and sons, (male) teachers and (male) disciples; whereas the few sources that depict women studying refer exclusively to instrumental Torah study, intended to convey knowledge and sharpen one’s intellect.  The distinction between ‘ritual study’ and ‘utilitarian study’ – which may sound, to some readers, strikingly similar to contemporary apologetics concerning women’s involvement in Talmud Torah – is (to my mind) a debatable distinction in the tannaitic sources.  But what Shanks Alexander achieves in demonstrating women’s longstanding exclusion from ritual Torah study and, by extension, from the commandment to lay tefillin – which, when described in the language of the Mishnah, generated the category of timebound positive commandments – is a means of explaining how the Sages managed to articulate a stipulation about women’s exemption from that group of commandments that was not actually the product of gendered assumptions involving time. Ultimately, however, this leads Shanks Alexander to the conclusion that the exemption of women from the performance of specific mitzvot was a reflection of the Rabbis’ gendered assumptions – only that those assumptions were not associated with time but with Torah study.  And so, by the end of the book, it seems that in spite of her initial assertions to the contrary, the author has not fundamentally challenged the idea that the Mishnah’s rules concerning women, men, and ritual activity drew upon contemporaneous cultural constructs; instead, she has simply contended that generations of scholars misconstrued the Mishnah’s formulation in a manner that led them to look for the Rabbis’ understandings of gender in the wrong places.  While this may frustrate readers hoping for new insight into the relationship between law and culture, it does demonstrate, once again, the slippery nature of gender and the complexity of using idiosyncratic legal texts to draw reliable historical conclusions.


[1] This is Shanks Alexander’s translation.

War Crimes: Can Shimon and Levi Be Held Accountable?

November 12th, 2013

By Yitzy Hammer

Over the past few years, I have become familiar with two very different areas of law – International Humanitarian Law (IHL - i.e. the laws of war) and Jewish Law. I became acquainted with IHL last summer when I was chosen to represent the IDC in a moot-court competition focusing on the laws of war. In the months leading up to the competition, my teammates and I prepared ourselves to go up against other universities, ultimately acquiring an unofficial "degree" in the field of IHL. As to Jewish Law, for the past two years, I have had the distinct privilege of working as a research assistant for one of the most renowned scholars in the field of Jewish law, Prof. Aaron Kirschenbaum, giving me a first-class opportunity to familiarize myself with this fascinating field of law. Consequently, I had both IHL and Jewish law in mind when I began looking over the weekly Torah portion of Vayishlach last year. I have always found the story of Dinah to be a fascinating one and while I had read and reread the story tens of times over the years, it was with my new knowledge of IHL that I began to recognize various modern humanitarian law issues in the age-old biblical saga. And so, with these two legal disciplines in mind, I thought it may be interesting to conduct a legal analysis of Shimon and Levi's actions towards the city of Shechem, from a modern humanitarian law perspective. For those of you who are unfamiliar with the subject, it is important to point out that humanitarian law is not human rights. While humanitarian law applies only during war time, in conflict-ridden territories – human rights apply everywhere, all the time, to everyone.
"Shimon and Levi are brothers, stolen tools are their weapons. Into their design may my soul not enter! With their congregation, do not unite, O my honor! For in their rage they killed a man and in their wish they hamstrung an ox. Accursed is their rage for it is mighty, and their wrath for it is harsh; I will divide them in Yaakov, and I will disperse them in Israel." (Gen. 49:5-7)
Introduction The story of Dinah (Gen. 34:1-31) stirs up a host of mixed emotions. Two of Yaakov's sons, Shimon and Levi, acting out of their own initiative, engage in a brutal take-no-survivors attack, killing Shechem, the regional prince, and all the men of the city. But it isn't only who they target which we find problematic. The brothers, exploiting Shechem's trust in them (or perhaps his overpowering lust for Dinah), convince him that if all the males of the city undergo a circumcision, Yaakov's sons will agree to unite with the people of Shechem and the prince may take Dinah as his wife. Having persuaded his entire city to cooperate, whilst the men of Shechem recover from their recent surgical procedure, Shimon and Levi attack, brutally killing Shechem, his father King Hamor and all male residents of the city. Whose orders were they following? Certainly not Yaakov's; his reaction makes that clear: "Yaakov said to Shimon and Levi, 'you have discomposed me, making me odious among the inhabitants of the land…they shall gather together and attack me, I will be annihilated…" (Gen. 34:30) – Yaakov sounds angry, embarrassed and even scared. So, what really happened here? In retrospect, if an international criminal tribunal would be established today, its mandate being the laws of war drawn both from Jewish law and IHL, could Shimon and Levi be held accountable for war crimes? In this analysis, I will delve into the midrashic texts and attempt to understand Shimon and Levi's motives and choice of action. Another question which begs understanding is that of 'chilul Hashem' – can you imagine how neighboring nations and cities interpreted these acts? How cowardly of Yaakov’s sons to strike an entire city while they were ailing – ailing, because they had voluntarily circumcised themselves in a show of good faith to Yaakov’s family, and then Yaakov’s sons took advantage of that confidence to, “striking them while they were down” – how did this reflect on the Nations of the Worlds' opinion of Yaakov and his sons? It is also important to remember, these aren’t just any two brothers; these brothers represent the foundation of the Jewish people. In order to examine the conflict between Shimon, Levi and Shechem from a humanitarian law perspective I will conduct an anachronistic analysis, attributing the relatively modern laws of international humanitarian law (IHL) to events that occurred thousands of years ago. This analysis will draw on two separate aspects of the laws of war: that of Jewish law and that of IHL. The Jewish law applied throughout relates to the law as interpreted by the sages and commentators of the Talmud.
  1. 1.      Classifying the conflict and establishing the applicable law
In order to determine the applicable law from an IHL perspective, we must first classify the conflict. As the field of international law is relatively new, many of its areas are grey, leaving much room for interpretation. One can imagine that when dealing with laws and treaties of a global magnitude, it can be extremely difficult to draft a document agreed on by all sides – therefore, the term "customary law" is used to refer to laws and treaties that have been so widely accepted and have been around for such a long time that they are thought to apply to everyone. It is thus important to define which type of conflict we are dealing with in order to determine the applicable laws – Is it an international armed conflict (IAC), the applicable law being the four Geneva Conventions of 1949 (which are considered customary), their First Additional Protocol of 1977 (API – certain aspects of which are considered customary) and other relevant customary international law. Or, is it a non-international armed conflict (NIAC – non-international conflicts are an extremely controversial subject, as such there are very few laws applying to it that are considered customary), the applicable law being Common Article 3 of the four Geneva Conventions (one article, Art. 3, of the GC's refers specifically to non-international conflicts and is largely accepted as the only real law which can be applied to conflicts of non-international character) and Additional Protocol II (APII) when relevant? At first glance one may argue that as both Shechem and Yaakov's  families represent nations, the conflict is international in character, however, Yaakov purchased his land from Shechem (Gen. 33:19), implying that it may in fact have been an internal armed conflict, fought within the territory of Shechem. Furthermore, Yaakov is only to become a nation after the episode with Shechem (Gen. 35:10-13) and only receives international recognition of his new nation-status by Pharaoh when he is offered to settle in the land of Goshen, thus for our purposes we will address the conflict as non-international in its nature.
  1. 2.      Legality of the conduct of hostilities
Thus, assuming that the conflict is non-international (NIAC), I will begin by addressing the legality of the conduct of hostilities and the means and methods applied. Looking at the jus ad bellum (before hostilities began), we see that immediately after Dinah was kidnapped, Yaakov first attempted to resolve the conflict through diplomatic means. According to Sefer HaYetsira, as soon as Yaakov heard what happened, he sent two servants to reclaim Dinah from Shechem's house, but Shechem drove them away. Regretting his initial hostile approach, Shechem asked his father, Hamor, to contact Yaakov and request that Dinah be given to him as his rightful wife. Hamor then approached Yaakov with a proposal to amalgamate the two nations "…intermarry with us; give your daughters to us, and take our daughters for yourselves. And among us you should dwell; the land will be before you – settle and trade in it, and acquire property in it." (Gen. 34:9-10) – sounds like a peace proposal to me. However, Hamor's proposal was not as genuine at it may have seemed. According to one source Hamor saw the wealth that Yaakov's family possessed and saw this as an opportunity to monopolize Yaakov's wealth without really offering him anything in return. In turn, Yaakov's sons respond by giving Shechem an ultimatum: Sorry buddy, we can't give our sister to an uncircumcised man like yourself – it's insulting – if you really want her, you're going to have to circumcise every male in town (Gen. 34:13).
  1. 3.      Direct participation in hostilities
The most basic humanitarian law rule is that you may not kill civilians. A civilian is defined simply as any person who is not a combatant ('combatant' - a member of the states' armed forces). However, civilians, while ultimately protected, may lose their protective status if they are seen as "taking direct participation in hostilities" (DPH). The notion of DPH is thought to be the most significant and at the same time the most controversial subject of IHL. As most armed conflicts today are fought asymmetrically and rarely on the conventional battlefield, it is easy to see the significance of assessing which civilians are legitimate targets and which are not. As to the controversy surrounding DPH – this stems mainly from the difficulty in determining who in fact is and who is not DPH. Professor Hersch Lauterpacht, a renowned international humanitarian law expert, has stated with regard to the field of IHL: "If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law". At the very deep end of that vanishing point, lies the notion of DPH. Although Shechem had only to follow the seven Noahide Laws, far less stringent than the laws Shimon, Levi and the rest of Yaakov's family were bound by, nonetheless, the people of Shechem had disobeyed at least two out of those seven laws (see below), and thus can be seen as having taken direct participation in hostilities, causing them to lose their protected status as civilians and rendering them legitimate military targets, free to be targeted by the brothers. Thus, Shimon and Levy acted in accordance with the laws of IHL when they attacked Shechem. According to the Talmud in tractate Sanhedrin, the seven Noahide Laws are the following: the prohibitions of idolatrymurder, theft, sexual immorality, blasphemy, eating flesh taken from an animal while it is still alive and the mitzvah of Dinim – a requirement to establish courts of law. According to Rambam, this last mitzvah is to be used as a tool to enforce the first six mitzvoth, while Ramban interprets the mitzvah of Dinim more broadly as a requirement to judge between people in general. Transgressors of the above mitzvoth are to receive capital punishment for their deeds. Therefore, assuming the people of Shechem were indeed guilty of transgressing one or more of the above, Shimon and Levi also acted in accordance with halakha when they planned to kill the inhabitants of Shechem, who were already due to receive the death penalty.
  1. 4.      Torture
There is also the issue of torture. In Genesis 34:2, it states that Shechem took Dinah, lay with her and 'וַיַעַנֶהַ'. The word vaya'aneha is commonly mistranslated as "he violated her". However, the word stems from the root "עִינוּי – inui", which means torture. Torture is prohibited under all bodies of IHL even in non-international conflicts. Although the Torah doesn’t forbid torture outright, it is evident by the way the Torah chose to carry out its punishments that all measures were taken to avoid unnecessary human suffering even for convicted felons. For example, one of the four types of capital punishment, serefah (burning), was done by pouring molten lead down the throat of the condemned person. The hot liquefied lead causes direct thermal injury to the lungs, leading to instantaneous death, as a result of acute pulmonary dysfunction and shock, minimizing as much as possible the suffering of the individual (Journal of Clinical Pathology). However, when the Talmud in Tractate Avoda Zara tells us how the Romans killed the Ten Martyrs (Aseret Harugey Malchut), an entirely different method is used. Here too, the punishment was 'death by fire', however, contrary to the method adopted by Bet Din wherein the suffering is minimized, the romans chose to wrap Rabbi Hanina Ben Tardayun in a Torah scroll and placed wet sponges on his heart so he remain alive and be forced to endure as much suffering as possible. Furthermore, the Talmud, in tractate Avoda Zara, sets down a list of business transactions which are to be avoided. For example, it is forbidden to enter into a business contract with idolatrors engaged in building a bima – a stage. What is the nature of this prohibition? The Talmud tells us that these stages were built rather high and were used to throw people off them to their demise – the Talmud wanted to ensure that Jewish businessmen kept their hands clean and avoided taking a part in torturous acts at all costs, further alluding to their illegal nature. Art. 1 of the UN Convention against Torture, defines torture as "any act by which severe pain or suffering…is intentionally inflicted on a person for such purposes as obtaining from him…information or a confession, punishing him for an act he…has committed or is suspected of having committed…" – Even though the Torah uses the word inui, it is arguable whether the acts Shechem performed on Dinah could be classified as such given their nature – Shechem's acts, while brutal, are not likely to have been inflicted on her "for such purposes as obtaining from her…information or a confession, punishing her for an act she…has committed".
  1. 5.      Pillage
Another issue to be discussed is that of 'pillage' or 'plunder'. Pillage is prohibited under all circumstances under the Hague Regulations and under the Fourth Geneva Convention. It has also been recognized as a war crime under the ICC's Rome Statute, and is prohibited in non-international conflicts. In Gen. 34:27, it states: "The sons of Yaakov came upon the slain, and they plundered the city which had defiled their sister". Although the Torah warns against the taking of plunder without instruction from Hashem in certain cases, the taking and dividing of plunder can be seen as a recurring theme throughout the Nation of Israel's wars to the point that King David finally sets down rules guiding the division of plunder (1 Sam. 30:23-25). Thus, this action, at the time it was carried out, may not have been seen with the same severity by the Torah as it is by IHL. Judge Moshe Drori has written that today we adopt the approach taken by Yehoshua when conquering the Land, that is, that pillage is prohibited. Drori adopts the rule taught in tractate Bava Metsia whereby the applicable law is the one which has most recently been applied. According to Drori, since the Jews of Shushan refrained from taking from the spoils offered to them by Ahasuerus, thus, that is the applicable rule today. As to Shimon and Levi, it is possible that this was a common and widely accepted method of warfare at the time and therefore cannot be seen as forming a part of customary IHL.
  1. 6.      Age
Another issue to be addressed is the legal age for participating in hostilities. According to the MidrashShimon and Levi were only 14 and 13 years old, respectively, at the time of Dinah's rape. APII clearly states that children under the age of fifteen are prohibited from participating in hostilities, however, even when they do – they continue to maintain their protective status. While the Torah doesn’t expressly warrant a minimum recruitment age, nonetheless, all the censuses conducted of the Children of Israel in the desert, from the very first census pertaining to Trumat Shekalim (Exodus 30:14), as well as in the census conducted in the Children of Israel’s second year after leaving Egypt pertaining to military conscription  and finally in the Plains of Moab at the end of the forty years in the wilderness; in each census all those who were “from twenty years and upward, all those who had served in Israel’s military” took part. Rashi, on that passage (Numbers 1:3) understands this to mean that twenty was the minimum age for conscription.
  1. 7.      Perfidy
There is also the issue of “Perfidy” (API Art. 37). A perfidious act is defined as "inviting the confidence of an adversary...with intent to betray that confidence" – here, the brothers invited Shechem’s confidence by persuading him to undergo a circumcision, and then took advantage of his weakness to kill him. It would seem than that the brothers acted perfidiously. When I first started pondering this issue, I tried to think of other perfidious acts in the Tanach and immediately the story of Yael and Sisra came to mind. Sisra, the enemy of Israel, is fleeing from the battlefield, when he is invited by Yael, a family friend, to come and hide in her tent. After wining and dining him with fresh milk and honey, Yael tells Sisra not to worry, whereupon she covers him with a sheet, lest he be discovered– at least that’s what yael leads him to beleive – immediately after covering him, Yael grabs a sharp tent-stake and drives it into his skull. What does the Torah say regarding perfidy? Is there an analogous concept which exists in Jewish law? In the Torah, we find two alternate terms resembling perfidy: begidah and meilah. What is the difference between the two? Could one of them be an appropriate match for perfidy? Malbim, expounding on the passage "nefesh ki tim'ol ma'al" (Leviticus 5:15) offers an explanation: 'meila' and 'begida' are synonymous verbs; both are used with regard to a man's clothing. Just like a garment is used to cover oneself, so to a 'boged', or a traitor, hides his true intentions from his victim – on the outside, he appears to be a lover and a friend, but under his "garments", so to speak, he is conniving, conspiring to lie and cheat. The difference between these two terms, Malbim continues, can be learned from the difference between a 'meil' (a jacket/an outer garment) and a 'begged' (an undergarment). Just like a meil is worn on the outside, over your clothes, and the begged is worn under your clothes, so to begida refers to when one lies to his friend in secrecy ('under his garments'), and meila refers to one who commits an act of public treachery. Nonetheless, all examples of begida and meila found in the Talmud generally apply to one who either cheats on his wife or turns his back to G-d, as such, it would be impossible to charge the brothers as having acted perfidiously towards Shechem from a Jewish law perspective, however they would likely be held accountable in an IHL court.
  1. 8.      Conclusion
There are still other issues of humanitarian law to be addressed, such as the prohibition pertaining to “denial of quarter" (listed as a war crime under Art. 8(2)(e)(x) of the Rome Statute) -  according to this principle, one may not declare “no prisoners will be taken alive” as in this case, however this no longer remains an issue assuming that the whole city was indeed taking direct participation in hostilities. Shechem himself was certainly liable to capital punishment for having kidnapped Dinah as her kidnapping was an act of thievery. According to Rambam (Hilchot Melachim 9:14), the people of Shechem were also guilty since they were aware of Shechem's theft and failed to bring him to justice – therefore they violated the seventh Noahide law, that of dinim, requiring them to establish courts and to bring transgressors to justice. Rav Eliezer of Worms (1176-1238), author of 'Sefer haRokeach' offers a different explanation as to why the people of Shechem were guilty: Part of Shechem's agreement with Yaakov's children was, in addition to the act of circumcision, an obligation to abandon idol-worship. Although they made it appear that they had done so, they continued to idol worship in secret – therefore they violated the mitzvah of no idol worshipping. Rokeach goes on to say that Yaakov's sons even kept some of the idols they found in Shechem to serve as proof, should they be criticized by other nations of the world for killing Shechem without reason – the idols serve as proof of Shechem's breach of their agreement with Yaakov's family and testifies to their nature as idolaters. Ramban disagrees with Rambam's reasoning. According to Ramban, if the people of Shechem were indeed DPH, Yaakov should have acted on his own. However, not only does Yaakov not act on his own, he reprimands his sons twice (Gen 29:5-7, 34:30) and ultimately punishes them by not giving them a portion of land inside Israel - Simeon's tribe is forced to settle within Judah's portion (Joshua 19:1) and Levi is given sporadic Cities of Refuge throughout the Land of Israel (Numbers 35:1-34) – Clearly Yaakov was not happy with his sons' actions.   Yitzy Hammer lives with his wife and two children in Netanya. He made aliyah from the U.S. in 2000, studied in the yeshivat hesder in Otniel, and served in the IDF's Combat Engineering Corps. Yitzy is currently studying towards an LL.B. in Law and a B.A. in Government at the Interdisciplinary Center (IDC), Herzliah, where he works as a research assistant in the subject of Jewish Law        

CFP: Religious Legal Theory Conference at Emory Law School

November 8th, 2013

Details of the "Religious Legal Theory Conference" being held at Emory Law School in February, including information concerning the call for papers, can be found at the blog of the Center for Law and Religion Forum here.

Review of Halivni, _The Formation of the Babylonian Talmud_

November 5th, 2013

Review of David Weiss Halivni, The Formation of the Babylonian Talmud. Trans. Jeffrey L. Rubenstein. New York: Oxford UP, 2013. 352 pp. $65.00 By Matthew Goldstone   A significant percentage of the foundational research in the field of academic Talmud study is written in Hebrew.[1]  The monumental works of Epstein, Albeck, and others are both the building blocks upon which contemporary study stands and the fortress of lingering assumptions against which modern academics must respond.  While the language barrier should present little problem for those in the field, the paucity of English material presents a challenge for the broader interested public.  This of course includes not only non-academic readers but scholars in other fields whose work can be enriched through interdisciplinary engagement with academic rabbinics as well.  For this reason alone Jeffrey Rubenstein’s new English translation of David Weiss Halivni’s Formation of the Babylonian Talmud is a tremendous step forward in advancing the accessibility of critical Talmudic study. Professor Halivni’s dedicated efforts toward rethinking our understanding of the composition of rabbinic texts, and the Babylonian Talmud in particular, has helped to revolutionize the field.  Not only do his larger theses present a revised rabbinic chronology and timeline of literary production, but his piercing critical analyses of sugyot sensitize us to the need for unraveling the complex historical layers that are intertwined and provide us with general tools for this endeavor.  Any modern investigation of a sugya must engage with the challenges and theories that Halivni propounds and we are fortunate to have such a clear manifesto of his underlying assumptions and methods in the present work. Perpetually repeated throughout his work, Halivni’s theory stands upon several foundational hypotheses that run counter to earlier modes of thinking.  In one fairly concise instance he writes as follows: The foundation of my theory of the formation of the Talmud rests on the thesis that the Stammaim reconstructed Amoraic dialectical argumentation, and sometimes Tannaitic dialectical argumentation too, because there was no official transmission of dialectical argumentation in the Amoraic period.  All my other premises – the prevalence of forced explanations in the Talmud, the late dating of the Stammaim, the absence of a comprehensive editing, and more – derive from this central and fundamental thesis.[2] From the recognition that the vast quantity of anonymous material that engages with Amoraic meimrot often presents dubious readings, Halivni surmises that these discussions formed a later chronological layer of the text and feature a heightened appreciation for the logical argumentative process above and beyond apodictic legal conclusions.  The Amoraim were primarily invested in preserving only the conclusions of their discussions and thus, as later generations became interested in the dialectical discourse that lead to these end results, they were forced to reconstruct the argumentation largely without the aid of a transmitted tradition.  Grounded in this historical conclusion, Halivni articulates criteria for differentiating between Amoraic and Stammaitic stratum within the Talmud.  The major task of his series Meqorot umesorot is to work through various tractates of the Babylonian Talmud to untangle and elucidate their historical layers.[3]  The present work originally appears as the introduction to Halivni’s Hebrew volume on BT Bava Batra and remains the most comprehensive description of his methodology.  The reader should not be dismayed that The Formation of the Babylonian Talmud is not heavily laden with examples since the proof and application of Halivni’s method is primarily to be found in the body of this and his other Hebrew volumes. In reading through Halivni’s work one is struck by his erudition and command of rabbinic texts.  Yet, it is unfortunate that Halivni confines himself to addressing his predecessors (often only mentioned explicitly in his footnotes) without incorporating and engaging with his contemporary colleagues whose work both criticize and enhance his own.[4]  Occasionally one will encounter an oblique reference to other scholarship, but even in such cases Halivni appears hesitant to cite them directly or to offer a rereading of their evidence.[5]  Shamma Friedman’s name, for example, is conspicuously absent from most of Halivni’s discussion despite the former’s rigorous and influential contributions in similar areas.[6]  As a response to this dearth of contemporary literature, Rubenstein’s supplementary annotations in the back of the volume provide a partial corrective, listing some of the relevant literature that furthers and challenges Halivni’s assertions.  Although these notes are by no means intended as exhaustive, they are an important entryway for the curious reader to follow more recent discussions on various issues and to recognize which of Halivni’s theses and assumptions have been challenged.  For example, Halivni argues that “[t]he Stammaim began their activity only after there were no longer any Amoraim.”[7]  This generalization is clearly open to debate as Rubenstein points out in his annotation, suggesting a relevant article of Friedman for further reading.[8] In addition to shying away from addressing the current generation of Talmudic scholarship, Halivni also refrains from joining the emerging trend of interdisciplinary study which incorporates theories of orality, literature, religion, and culture toward a more nuanced description of rabbinic textuality.[9]  Nevertheless, this omission does not detract from Halivni’s greater contribution to our understanding of the historical development of the Talmud and leaves room for younger scholars to further his work. While Halivni’s project of parsing the chronology of rabbinic texts and his adherence to historical-critical methods are reminiscent of older models of scholarship, we must not lose sight of the baggage of tradition from which he breaks away and the ability to transcend prior thinking that this requires.  Halivni is open to rethinking his own positions and thus we find at the beginning of his work the admission that, “I retracted that which I stated in the Introduction to MM [Meqorot umesorot]: bava metsia (2003), that the Stammaitic age lasted for fifty years… I now believe that the Stammaitic was a lengthy period, extending almost 200 years…”[10]  In addition to continually developing his theory Halivni refreshingly also offers tentative hypotheses at a time when many are hesitant to posit unsubstantiated claims.  Thus he writes, “I would venture to suggest, though only as a conjecture, that the transmitters also functioned as ‘combiners (metsarfim),’ that throughout Amoraic times they had a dual function…”[11]   And later on Halivni ventures “to speculate that when the Stammaim studied in the academy they did not follow the order of tractates but studied by topic.  The Amoraim, however, proceeded according to the order of tractates…”[12]  Hence Halivni’s work has much to offer the curious reader. Translating any text, let alone a work that requires such comprehensive knowledge of rabbinic texts, is not an easy feat.  Rubenstein’s expert translation not only navigates the precision of the original Hebrew but presents a flowing style that is easy to follow.  As he notes at the outset, some terms are simply awkward to render into English and Rubenstein takes a few liberties in smoothing over these bumps such as using an English plural to stand in for Halivni’s singular collective nouns.[13]  While such changes still result in language that is somewhat clunky (particularly for those familiar with the Hebrew terminology), such as “Reciters” and “Transposers,” the oddity of such nomenclature can help remind us that these are constructed categories and not indigenous labels. There is no question that Rubenstein is correct in choosing Halivni’s extended introduction to Meqorot umesorot: bava batra for translation as it is his most important Hebrew methodological monograph, and the decision to include a translation of the introduction to Halivni's more recent volume on Sanhedrin as an addendum provides the reader with his most recent thinking.  The translator’s introduction succinctly summarizes Halivni’s central claims and prepares the reader for the arguments ahead.  However, the one element Rubenstein could have expanded upon is his contextualization of Halivni’s work within the history of scholarship.  In discussing more recent trends in scholarship which veer away from the type of project that Halivni pursues, Rubenstein mentions several earlier works, characterizing them as Halivni’s “debate partners.”[14]  Similarly, Rubenstein points out that Halivni’s focus on forced explanations is the key point of divergence from earlier scholars such as “Julius Kaplan, Hyman Klein, and Avraham Weiss.”[15]  In a footnote he directs the reader to Shamma Friedman’s “Pereq ha’ishah rabbah babavli” for the conclusions of these scholars.  If Rubenstein had decided to include more particulars regarding the similarities and differences between Halivni and these earlier scholars, many of whom are engaged in the similar task of identifying and disentangling the various chronological layers of the Bavli, perhaps the reader would walk away with a greater appreciation for the import of the nuances in Halivni’s line of thinking as well as the many ways in which his approach clings to their assumptions.  An extensive comparative investigation is of course far beyond the scope of his introduction, but a more extended explication of the assumptions and ensuing course of analysis undertaken by Halivni’s predecessors might have been helpful for readers to differentiate Halivni’s method both from these earlier scholarly approaches as well as from traditional modes of reading the Babylonian Talmud.  Nevertheless, the basic contextualization that Rubenstein provides is certainly sufficient for most readers and further background may be primarily of interest to those curious about the history of academic Talmud scholarship. Overall The Formation of the Babylonian Talmud is an excellent entry point for those new to the field of academic Talmud study and this new translated edition will hopefully heighten the awareness of both lay and interdisciplinary academic readers to the assumptions and methods that underlie modern critical Talmudic scholarship.


[1] Most notably, philologically-oriented as well as semi-global theories are often penned in Hebrew.  Fortunately some of the earlier material is accessible to the English-speaking public through sources such as Julius Kaplan’s The Redaction of the Babylonian Talmud and Neusner’s Formation of the Babylonian Talmud, which review and critique the previous generations of thinkers.  Additionally, the field has witnessed a growth in English publications that specifically grapple with the development of the Talmudim (e.g., Judith Hauptman’s Development of the Talmudic Sugya: Relationship Between Tannaitic and Amoraic Sources, Christine Hayes’ Between the Babylonian and Palestinian Talmud, and Alyssa Gray’s A Talmud in Exile: The Influence of Yerushalmi Avodah Zarah On the Formation of Bavli Avodah Zarah, etc.).  Nevertheless, a significant portion of the groundbreaking corpus remains in Hebrew and untranslated.
[2] Halivni, The Formation of the Babylonian Talmud 150.
[3] At present Halivni’s Meqorot umesorot series includes the following volumes:  Seder Nashim (1968), Yoma-Hagigah (1975), Eruvin-Pesachim (1982), Shabbat (1982), Bava Qamma (1993), Bava Metsia (2003), Bava Batra (2007), and Sanhedrin (2012).  Halivni explicitly notes that, “[t]he primary purpose of my Talmud commentary Meqorot umesorot is to provide alternatives to the forced explanations prevalent throughout the Talmud…” (Halivni, 213 fn30).
[4] Rubenstein notes in his introduction that part of the reason for Halivni’s focus on his predecessors is that “[s]cholars have shifted away from both general histories covering vast periods of the development of rabbinic Judaism and from inquiries concerning some fundamental questions – such as the date of the editing of the Talmud – on which the evidence is spare” (Halivni, xviii).  Thus many contemporary scholars are engaged in projects that greatly differ from the goals and scope of Halivni’s work.  Nevertheless, there are modern scholars who still pursue related issues and I find Halivni’s decision to refrain from discussing them unfortunate.
[5] Thus, for example, Halivni writes, “Some scholars attribute to the Saboraim anonymous sugyot, especially those appearing at the beginning of a tractate or a chapter.  I have found no evidence that this is the case, and no characteristics that distinguish these sugyot from other anonymous sugyot that would indicate that the sugyot originate in disparate times (despite the various attempts of several scholars)” (Halivni, 211 fn20).  Rubenstein’s annotations provide a few of the thinkers to whom Halivni may be responding (Halivni 286, IN20).  In one extended footnote, which Rubenstein chooses to omit, most likely due to its length and highly technical nature (see Halivni, 220 fn79), Halivni does “systematically” engage with the examples culled by Halevy and Albeck to demonstrate the existence of an early Stam and offers his own interpretations to challenge their readings.
[6] For example, one of his brief discussions of the criteria for separating between the Amoraic and Stammaitic layers of the text (Halivni, 139) presents an excellent opportunity to engage with Friedman’s programmatic essay, “Pereq ha’ishah rabbah babavli,” as noted by Rubenstein in his annotation (Halivni, 283 III.139).
[7] Halivni, 5.
[8] See Halivni, 268 I.5 where Rubenstein writes: “Some might view this periodization, where no new era can begin until the previous one completely concludes, as excessively rigid and not reflecting the messy historical reality.  See, for example, the comments of Shamma Friedman…”
[9] In his introduction Rubenstein points to several areas that Halivni does not address, including the role of the Stammaim in the non-legal aggadic sections of the Talmud, the “importance of the ambient Zoroastrian religion and Sasanian (Persian) culture to the understanding of the Bavli” (a task notably undertaken by scholars such as Yaakov Elman and his students), and modern understandings of orality (Halivni, xxix).
[10] Halivni, 9.  Also see Halivni, 211 fn22, where he qualifies that: “Retraction does not mean that I changed my mind, but rather that over the course of time I am less influenced by the traditional view.”
[11] Halivni, 141.
[12] Halivni, 183.
[13] See Rubenstein’s “Translation Conventions” (Halivni, xiii).
[14] Halinvi, xix.
[15] Halivni, xxv.

Review of Dworkin, _Religion Without God_

November 5th, 2013

Mark L. Movsesian has a review of Ronald Dworkin's Religion Without God, published posthumously in September, at the Center for Law and Religion Forum.