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Law and Rhetoric in Tosafot, Part II (Part 2 of 2)

October 6th, 2011

by Alyssa M. Gray II. Ruling 2 As presented in s.v. “halakhah” and Or Zarua, Rashbam posited that if a Jew boarded the ship on Friday, he could traverse the entire ship on the Sabbath. If he boarded on the Sabbath itself, without having previously “rested in the atmosphere of the walls” of the ship (“shavat b’avir mehitzot”), his access to the ship would be limited to four amot around his own person. In his discussion of Ruling 2, as outlined above, the Tosafist editor attacks both prongs of Rashbam’s ruling about boarding a ship on the Sabbath. In the analysis that follows, we will focus on the rhetorically significant points, beginning with the more modest and moving toward the more important ones. Through the phrasing of the ruling at the outset of the discussion of Ruling 2: “And further, Rashbam ruled that even on the Sabbath it is permitted to enter. . . .,” the Tosafist editor signals his disapproval of Rashbam’s permission to board a boat on the Sabbath (II.A.1). Ch. Perelman and L. Olbrechts-Tyteca have pointed out that “[i]n order to discern the argumentative use to which a term is being put, it is important to know the words. . . the speaker might have used. . . .” (The New Rhetoric, p. 150). The Tosafist editor might simply have stated that “Rashbam ruled that on the Sabbath it is permitted. . . .,” which would have been consistent with Or Zarua’s representation of his view. The Tosafist editor’s phrase “even on the Sabbath” implies that there is something unexpected and exceptional about this ruling. Moreover, the phrase draws the reader into a subtle collusion with the editor. By merely reading and accepting this formulation of Rashbam’s view, the reader is subtly drawn into silent agreement that there is something unusual about Rashbam’s view. The Tosafist editor also represents Rashbam as having explained away Bet Hillel’s refusal to permit boarding a boat on the Sabbath (II.A.1) as being due to the resemblance between such boarding and the rabbinic stricture against telling a non-Jew to do work on the Sabbath that a Jew cannot do (“amirah l’nokhri”). As the Tosafist editor intimates, Bet Hillel saw boarding the boat on the Sabbath as a violation of a rabbinic shevut stricture—an activity inconsistent with the spirit of the day—although not a violation of Sabbath work (“melakhah”) prohibitions. The editor, however, undermines Rashbam’s understanding of Bet Hillel in stages: II.A.2 establishes that the Talmud itself prohibits boarding a boat on the Sabbath, while II.A.3 is Ritzba’s explanation of that prohibition. Finally, II.A.4 is Ritzba’s deduction from the very same Yerushalmi passage the Tosafist editor had discussed earlier (I.3) that Bet Hillel did not permit boarding a boat on the Sabbath as a matter of law—not as a less serious shevut stricture. Moreover, by constructing Bet Hillel’s prohibition as being a matter of law and not of shevut, the Tosafist editor has once again managed to obscure the role of the non-Jewish captain. If boarding the boat is only prohibited as a shevut restriction (as per Rashbam’s understanding of Bet Hillel), then the non-Jewish captain is relevant; if boarding is prohibited as a matter of law (as per the Tosafist editor), then the non-Jewish captain is irrelevant. Just as in Ruling 1, there is no mention in the discussion of Ruling 2 of the concept “acquiring a place of rest” (“liknot shevitah”). The Tosafist editor represents Rashbam’s position (II.A.1) as being that a Jew who boards on the Sabbath is limited to four amot of space because “he did not rest in the atmosphere of the walls while it was yet day” (“d’lo shavat b’avir mehitzot me-b’od yom”). Yet while in Or Zarua the latter phrase (sans “while it was yet day,” me-b’od yom”) is used in the context of a discussion of remaining on the boat on Friday evening through twilight (“bein ha-shemashot”), the Tosafist editor’s use of this phrase in II.A.1 lacks that important contextual caveat. When read in light of the editor’s discussion of Rulings 1 and 2, the significance of his addition “while it was yet day” becomes apparent: to the Tosafist editor, “rest[ing] in the atmosphere of the walls” means boarding the boat on Friday—“while it is yet day”—and then remaining there through the Sabbath. “Rest[ing] in the atmosphere of the walls” does not mean remaining on the boat through twilight, after which exiting and re-boarding on the morrow are permitted. The Tosafist editor’s rhetorical move is reminiscent of another observation of Perelman and Olbrechts-Tyteca: “when the value indicated by a notion is clearly established. . . use will be made of another technique. . . .enlarging or restricting the sphere of a notion so that it does or does not embrace certain. . . ideas . . . .” (The New Rhetoric, p. 139). Apropos, the Tosafist editor describes Ri of Dampierre’s view (II.A.5) as being that “those people who kindle lights on the boat on Friday and eat there, and rely on this [to permit them] to set sail on the Sabbath—they are not doing right, because, in the end, they are setting sail on the Sabbath.” It is instructive to compare this formulation of the Ri’s view to what we see in Or Zarua. There, the Ri is described as positing “there are people who institute a Sabbath meal on the boat on Friday night and kindle lights there to acquire a place of rest for themselves, and rely on this [in order to permit themselves] to enter it on the Sabbath and set sail. And this is an error, for the establishment of a meal and the kindling of lights are not effective at all for the issue of acquiring [a place of] rest unless the person has stayed on the boat all of twilight, as was explained.” As presented by the Tosafist editor, the Ri knows nothing of “acquiring a place of rest,” or remaining on the boat through “twilight”—after which, presumably, the Jew may leave and return (as stated in Or Zarua). The Tosafist editor highlights that which the Ri felt people were doing incorrectly, while omitting that which—according to Or Zarua—Ri believed could be an effective way to “acquire a place of rest”: remaining on the boat through twilight. As presented by the Tosafist editor, Ri’s position is like his own: the only way lawfully to set sail on the Sabbath is to board the boat during the day on Friday, and remain there. Whether or not the Tosafist editor was aware of a version of the Ri’s position like that found in Or Zarua, our comparison demonstrates that the editor’s presentation of Ri’s position is rhetorically crafted to undercut the notion of “acquiring a place of rest” (“liknot shevitah”). Finally, we must explain why the Tosafist editor argues that Rashbam was wrong about how much of the ship a Jew can traverse on the Sabbath should he have boarded it that day (II.B.1-3). Given that the Tosafist editor posits the prohibition of boarding a ship on the Sabbath, shouldn’t he agree with Rashbam that one who nevertheless does so should be subject to a limitation of his movement? Why would the Tosafist editor permit a transgressor to have complete access to the whole ship? While the Tosafist editor grounds the answer in legal sources and rules of halakhic decision-making (e.g., “d’kayma lan k’Rav b’issurei”), I suggest that we also consider the subtext we have noted, namely, the editor’s implicit rejection of the concept “acquiring a place of rest” by remaining on the boat on Friday evening through twilight. By pointing out that one who boards on the Sabbath can traverse the entire ship (anyway), the Tosafist editor indicates clearly that “acquiring a place of rest” on the boat through ways other than simply boarding during daytime Friday are ineffective and pointless. For this reason, I suggest, the Tosafist editor places Ri of Dampierre’s observation about kindling lights and eating a meal on the boat (II.A.5) immediately preceding his discussion of movement on the boat on the Sabbath (II.B.1-3). First the editor highlights his (rather tendentious) presentation of the Ri’s dismissal of Friday evening rituals thought to permit setting sail on the Sabbath, and then—the effectiveness of these rituals dismissed—he moves on to illustrate through legal sources how those rituals would not have any bearing on one’s freedom of movement on the Sabbath. When all is said and done, the Tosafist editor has eliminated not only the notion of “acquiring a place of rest” by remaining on the boat through twilight on Friday, disembarking, and re-boarding the next day, but also the incentive to do so—traversing the entire boat after re-boarding on the Sabbath. III. Ruling 3 The Tosafist editor introduces Ruling 3 as follows (III.1): “and Rashbam further wished to permit entering a wagon on the Sabbath with a Gentile driving it outside of the Sabbath boundary, and he changed his mind (“v’hazar bo”) on account of [the possibility of encountering robbers, or forgetting oneself and descending from the wagon].”  The representation that Rashbam changed his own mind about Ruling 3 has the rhetorical effect of undermining confidence in his Rulings 1 and 2. The Tosafist editor partially blunted this effect as to Ruling 1 by supplying his own argumentation in its favor, which in turn has the effect of causing the reader to rely on the Tosafist editor rather than directly on Rashbam. But the editor also supplies additional argumentation against Ruling 3 that functions rhetorically to undermine further the reader’s confidence in Rashbam: the Tosafist editor supplies a legal reason that Rashbam did not even consider for why such a trip should be prohibited (III.3). In other words, the Tosafist editor leaves us with the impression that not only did Rashbam recognize and correct his own error as to Ruling 3, but he had been wrong for a reason he hadn’t even considered. There is an additional sting in that the Tosafist editor describes this additional reason as “obvious” (“peshita”). This rhetorical move casts additional retrospective doubt on Rashbam’s Ruling 2, while bolstering the credibility of the Tosafist editor’s arguments against that ruling—and, by extension, the Tosafist editor’s credibility in supplying independent support for Ruling 1. Yet the Tosafist editor’s representation that Rashbam changed his mind is not borne out in our other textual “snapshots.” In Or Zarua, Rashbam is represented as saying that “just as we permitted to set sail in a boat, so is it permitted to ascend a wagon that a Gentile is pulling,” although “there is what to be concerned about lest they encounter robbers or descend from the wagon,” on account of which ascending the wagon is “forbidden.” The impression one gets from this language is that Rashbam believed boarding a wagon on the Sabbath to be essentially permitted, although it is forbidden because of the two possible scenarios he describes. Similarly, the Rosh (Eruvin 4:3) represents that Rashbam held that “there is no prohibition at all” in boarding a wagon on the Sabbath, but that he “forbade it for another reason: lest robbers encounter him, or lest he forget and descend from the wagon.” There is also no indication in the Sefer Mitzvot Gadol of a change of mind on Rashbam’s part. Another noteworthy point about the discussion of Ruling 3 is that the Tosafist editor does not obscure the role of the non-Jewish driver; Rashbam is reported as referring to a wagon that the “non-Jew is leading.” This difference between Rulings 1 and 2, on the one hand, and Ruling 3, on the other, is readily explained. The Tosafist editor’s view is that a Jew may be on a boat on the Sabbath, although he may not board the boat on the Sabbath. The editor obscures the role of the non-Jewish boat captain so as to hide the non-Jew’s involvement in controlling the Jew’s Sabbath environment. On a boat the Jew’s Sabbath observance takes place within a domain entirely controlled by a non-Jew, which we may surmise—certainty being impossible—is discomfiting to the Tosafist editor. Yet, a Jew may not ride on a wagon during the Sabbath, regardless of when he boarded (III.2). Since this form of travel is absolutely prohibited, there is no harm in explicitly referring to the non-Jew driving the wagon. In this case there is no control of a Jew’s Sabbath environment, and no need for the Tosafist editor to be made uncomfortable by the non-Jew’s role. Conclusion A comparison of s.v. “halakhah” with Or Zarua reveals the extent to which the Tosafist editor crafted his presentation of Rashbam’s rulings and his discussion of them to influence the reader’s perception of the issues. I emphasize again that I do not and cannot claim that the Tosafist editor had a version of Rashbam’s rulings and the discussions therein like those recorded in Or Zarua before him as he composed s.v. “halakhah.” Or Zarua (and to a lesser extent, Sefer Mitzvot Gadol and Hilkhot ha-Rosh) is another “snapshot” of how this material may have circulated in Tosafist circles in the thirteenth and fourteenth centuries. Studying these “snapshots” shows us not only what jurists within the Tosafist orbit thought the law should be, but how different jurists crafted the presentations and discussions of the law in order to influence their audiences to see the legal issues in some ways and not others—or, in the case of s.v. “halakhah,” not to see certain legal issues at all. But there is also a larger point. In Or Zarua, Rashbam is represented as responding to a question about how sea travel on the Sabbath can be permitted by pointing out that the Rabbis were not so strict about it because there is no burden on the traveler: the traveler does not feel as if he is moving, and, in any case, there is nothing he can do since the ship is in the hands of the non-Jewish captain. Consistent with the law, a Jew may exit and re-board the boat on the Sabbath, and rely on the non-Jewish captain. Rashbam seems to be focused on discrete elements of Sabbath law, and less on a Jew’s experience of the Sabbath day itself. The Tosafist editor does not discount a Jew’s passivity entirely as a factor that permits the Jew to be on a boat on the Sabbath (“the ship goes by itself”). But his disallowance of exiting and re-boarding the boat on the Sabbath and his tendency to obscure the role of the non-Jewish captain suggest that he is concerned not merely with discrete laws, but also with the Jew’s experience of the Sabbath day. Residing on the boat over the Sabbath is permitted, but exiting and re-boarding on the Sabbath is not, and a non-Jew’s control over a Jew’s Sabbath environment may be an established fact, although it is not one to which attention should be drawn. The Sabbath is more than the sum of avoiding the violation of discrete prohibitions, and the Tosafist editor is arguably ambivalent about the blending of the realms of sea travel and Sabbath observance. Whether and to what extent the Tosafist editor’s ambivalence about sea travel on the Sabbath and effort at pointing to a new way of looking at this issue were taken up by later scholars must be left to further study. It is worth noting, however, that the Rosh—one of the last of the Tosafist school—later totally rejected Rashbam, taking a step beyond the Tosafist editor of s.v. “halakhah.” In closing, I would like to revisit Jane B. Baron’s observation about the unfulfilled interdisciplinary promise of “law and literature” in the American legal academy. Following Baron, we suggest that rhetorical analyses of Jewish legal texts be undertaken with an attitude of openness to what they may reveal about the boundaries and definition of “law” and “halakhah.” Moreover, rhetorical analyses of Tosafist texts, specifically, should be undertaken with a readiness to explore the possibility that these texts do legal and cultural work that goes beyond the conventional expectations we tend to bring to them. Taken together, the rhetorical analyses of Tosafot to B. AZ 2a, s.v. “asur” (posted 2/1/2011) and s.v. “halakhah” suggest that “law and literature” can be a tool by means of which the texts within the genre “Tosafot on the Bavli” may be seen not only as texts that analyze Talmudic sugyot and/or reconcile the inconsistencies between Talmudic text and communal practice, but also as texts that bring to the surface and criticize some conceptions of the law so as to educate their audience to see legal institutions and/or community differently. These rhetorical analyses of Tosafot suggest that understanding “law” or “halakhah” merely as “rules” or as argumentation for or against certain understandings of rules are insufficient. Perhaps “halakhah” is also a “culture of argument” (Washofsky, p. 194) through which certain broader understandings of legal institutions and communal self-image are brought to light, supported or criticized, and, at times, rhetorically replaced by others. Alyssa M. Gray, J.D., Ph.D., is Associate Professor of Codes and Responsa Literature at HUC-JIR Works Cited or Referenced Jane B. Baron, “Law, Literature, and the Problems of Interdisciplinarity,” 108 Yale Law Journal 1059 (1999): 1059-1085. Jacob Katz, “Plugta B’davar Ha-haflagah Ba-yam U-v’neharot,” Tarbiz 60 (1991): 667-675. Chaim Perelman and L. Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation (Notre Dame and London: University of Notre Dame Press, 1969). Israel M. Ta-Shma, “Teshuvat Ha-Rambam B’Inyan Ha-haflagah Ba-neharot Ba-Shabbat,” Maimonidean Studies, I (ed. Arthur Hyman; New York: Yeshiva University Press, 1990), 23-42. E.E. Urbach, Ba’alei Ha-Tosafot: Toldoteihem, Hibbureihem, Shitatam (2 vols.), Jerusalem: Mossad Bialik, 5th ed., 1986. Mark Washofsky, “Responsa and the Art of Writing: Three Examples From the Teshuvot of Rabbi Moshe Feinstein,” in Peter S. Knobel and Mark N. Staitman, eds., An American Rabbinate: A Festschrift for Walter Jacob (Pittsburgh: Rodef Shalom Press, 2000), 149-204

Law and Rhetoric in Tosafot, Part II (Part 1 of 2)

October 6th, 2011

by Alyssa M. Gray In a previous post (“Law and Rhetoric in Tosafot,” 2/1/2011), I suggested that insights drawn from “law and literature” studies might profitably be applied to the study of Tosafot on the Talmud Bavli. As an illustration, I analyzed the well-known Tosafist passage s.v. “asur” (B. Avodah Zarah 2a), which considers the disjunction between the Talmud’s explicit prohibition of commerce with non-Jews on the latters’ festival days and the reality that Jews within the medieval Franco-German orbit did in fact engage in such commerce. In this essay I propose to analyze rhetorically a second Tosafist passage, the also well-known s.v. “halakhah” (B. Eruvin 43a). E. E. Urbach identified the likely editor of the Tosafot on tractate Eruvin as a student of R. Isaac b. Abraham (“Ritzba”), the brother of R. Samson of Sens (France, 13th century; see Urbach, Ba’alei Ha-Tosafot, 2:606). This passage, like “asur,” may heuristically be classified (Urbach, Ba’alei Ha-Tosafot, 2:655) as one of the Tosafist “berurei halakhot, ” or “clarifications of law.” That is, the passage focuses on the disjunction between Talmudic prescription and the lived practice of Jewish communities as opposed to a heuristic analysis of the knotty intricacies of a discrete Talmudic sugya or set of sugyot. S.v. “halakhah” deals generally with the complex issue of setting out on a sea voyage either immediately prior to, or even on the Sabbath itself. Specifically, the Tosafist text examines three legal rulings of R. Samuel b. Meir (“Rashbam,” France, born ca. 1085), two of which pertain directly to sea voyages, and the third to journeying by animal-drawn wagon over land on the Sabbath. It is apparent from medieval halakhic literature that sea journeys were undertaken immediately prior to or even on the Sabbath, despite the Talmud’s explicit direction in a baraita (B. Shabbat 19a) that one must not embark on a voyage within three days of the Sabbath unless the journey is for the purpose of performing a mitzvah. Israel M. Ta-Shma and Jacob Katz (responding to Ta-Shma) published important analyses of aspects of the historical and legal issues involved in both sea and river journeys. Like my previous post, this one will not engage with these scholars’ work in an attempt to reconstruct the history of the halakhah. Rather, this post will present a detailed rhetorical analysis of s.v. “halakhah,” with broader reflections on the findings of that analysis. Jane B. Baron has argued that the interdisciplinary promise of “law and literature” has not been fulfilled because scholars working in that subfield have failed on a number of fronts, namely: to ponder what the category “law” includes, to question the notion of law’s boundaries, or to explore the possibility “that the category ‘law’ might be contingent or created” (see her “Law, Literature, and the Problems of Interdisciplinarity”; quote on p. 1062). While Baron’s point may be accurate with respect to “the American legal academy”  (as she put it), it is not entirely so with respect to what we may think of as “the Jewish legal academy.” Mark Washofsky’s compelling rhetorical analyses of modern responsa, for example, have led him to understand “Halakhah” as a “discourse that operates according to its own understood procedures. . .and . . . cannot be reduced to any other form of discourse,” and as a “culture of argument” (see “Responsa and the Art of Writing: Three Examples from the Teshuvot of Rabbi Moshe Feinstein”; quotes on pp. 192, 194). Following Baron, this rhetorical analysis of s.v. “halakhah” will suggest that we need to think more broadly about the category “Tosafot on the Bavli”—not what texts are included in the category so much as what sort of legal and cultural work these texts do. The Tosafot analyze and harmonize sugyot, and, as noted by Urbach, provide “clarifications of laws.” But these activities do not necessarily exhaust the cultural work that the texts perform. Disputes and contestations within Tosafist texts may point beyond matters of practice and textual interpretation to more expansive understandings of legal institutions. S.v. “halakhah” may be understood in part as an effort to educate its audience away from one implicit understanding of the Sabbath—about which the Tosafist editor is demonstrably ambivalent—and toward another. I will begin with a structural overview of the passage, after which this essay will turn to a more detailed reading of s.v. “halakhah” together with another, more extensive version of it found in Sefer Or Zarua (R. Isaac b. R. Moses of Vienna, thirteenth century, laws of eruvin 146). Some reference will also be made to structurally similar discussions in Sefer Mitzvot Gadol (“SeMaG,” R. Moses of Coucy, thirteenth century, in negative commandment #65) and in Hilkhot ha-Rosh (R. Asher b. Yehiel, ca. 1250-1327, Germany and Spain), to tractate Eruvin 4:3. In proposing to read s.v. “halakhah” together with these other texts (principally Or Zarua), I do not mean to imply that the Tosafist editor had the other versions before him and deliberately chose to craft s.v. “halakhah” with them in mind. Such an implication is flawed and cannot be entertained. Rather, these various versions of the passage are, as it were, four “snapshots” of how this material likely circulated within Tosafist circles in the thirteenth and early fourteenth centuries. Even assuming that the author/editor of each version was entirely unaware of the others, this comparative analysis is still useful because it enables us to see clearly how the Tosafist editor crafted s.v. “halakhah” so as to highlight particular themes. One theme is the Tosafist editor’s rhetorical attempt to protect the “sabbatical” nature of the Sabbath day as much as possible within the context of permitting a Jew to reside on a boat over the Sabbath. This protection is afforded by prohibiting boarding the boat on the Sabbath day, as well as tacitly eliminating from legal consideration the notion of a partial, temporary Friday night sojourn on the boat, a position which other scholars held would allow the Jew to disembark and re-board on the morrow. Another aspect of protecting the sabbatical nature of the Sabbath is the rhetorical elimination of the non-Jewish boat captain from the legal discourse, which minimizes the uncomfortable (to the Tosafist editor) reality that while on a boat, a Jew’s Sabbath environment falls entirely under the control of a non-Jew. This Sabbath theme unfolds within a larger framework: an implicit representation of Rashbam’s (lack of) credibility as a decision-maker on this issue. This lack of credibility, in turn, is rhetorically crucial to the Tosafist editor’s effort of persuading the audience of s.v. “halakhah” to view sea-faring Sabbath observance as he does, and not as Rashbam did. Due to the space limitations of a blog post, we cannot fully explore the Sabbath theme (or Rashbam’s decision-making) in all four textual “snapshots.” Our focus will be on s.v. “halakhah,” with the close parallel in Or Zarua as its principal foil. Space limitations also require the division of this essay into two posts. This one will continue with an outline of s.v. “halakhah,” a structural overview, and the beginning of the detailed analysis of the Tosafist text. The second post (“Law and Rhetoric in Tosafot, Part 2(2)) will continue with the detailed textual analysis and conclude with broader reflections on the findings of the essay as a whole. Outline of s.v. halakhah I. Ruling 1 1. Rashbam’s ruling that boarding a boat on Friday is permitted, even if the boat will exit the Sabbath boundary on the Sabbath. Moreover, one who  boards on Friday may traverse the entire length of the boat on the Sabbath. 2. Resolution of the tension between this ruling and B. Shabbat 19a. 3. Tosafist editor’s discussion of Yerushalmi passage that further supports the resolution of the tension between Rashbam’s ruling and B. Shabbat 19a. II. Ruling 2 A. Rashbam is Wrong—It is Forbidden to Board a Boat on the Sabbath 1. Presentation of Rashbam’s ruling that boarding a boat on the Sabbath is  permitted, although one who does so may only move about a distance of four  amot. Rashbam also neutralizes what appears to be Bet Hillel’s disagreement. 2, Tosafist editor discusses B. Shabbat 139b, which he interprets to mean that boarding a boat on the Sabbath is forbidden. 3. Ritzba’s explanation of why boarding a boat on the Sabbath is forbidden. 4. Ritzba’s deduction from the same Yerushalmi passage the Tosafist editor had discussed earlier (see I.3, above) that Bet Hillel would not permitboarding a boat on theh Sabbath. (By implication, Rashbam was wrong in his interpretation of Bet Hillel in II.A.1, above). 5. R. Isaac (“Ri”) of Dampierre’s view that people who kindle Sabbath lights and eat a meal on the boat on Friday night are not thereby entitled to set sail on that boat the following day, for “in the end, they are setting sail on the Sabbath.” B. Rashbam is Wrong—Even One Who Boards on the Sabbath May Traverse the Entire Length of the Ship 1. The law follows Rav. 2. Although R. Hananel ruled like (the Amora) Samuel, the law is not like Samuel. 3. R. Isaac Alfasi also ruled that the law follows Rav in the realm of that which is forbidden or permitted. III. Ruling 3 1. Rashbam wished to permit boarding a wagon driven by a non-Jew on the Sabbath for a journey outside the Sabbath boundary. He changed his mind because of the possibility that brigands would attack, or that the Jew would forget himself and descend from the wagon, in which case he would only be able to travel four amot in any direction. 2. Ri of Dampierre’s arguments against boarding a wagon on or even prior to the Sabbath. 3. Additional reason for prohibition: if the wagon is drawn by an animal, “it is obvious” that is forbidden to make use of an animal, lest one break off a branch (in order to strike the creature). Structural Overview of S.v. “halakhah S.v. “halakhah” is structured as an analysis of three legal rulings of Rashbam. Tripartite division is a much-noted characteristic of lengthy Bavli passages, and may be discerned elsewhere in Tosafot on the Bavli (e.g. Tosafot to B. Avodah Zarah 2a, s.v. “asur”). Moreover, there is some evidence of a tripartite structure within the overarching three-part framework, as the discussions in I, II.B, and III also unfold in three steps. Rulings 1-3 are set in a particular order. The Tosafist editor first presents a ruling of Rashbam’s with which he essentially agrees (Ruling 1: setting out on a sea journey on Friday), then a ruling with which he disagrees (Ruling 2: setting out on the Sabbath itself), and finally, a ruling as to which (according to the Tosafist editor) Rashbam changed his mind (Ruling 3: riding in an animal-drawn wagon led by a non-Jew over land beyond the Sabbath boundary). The Tosafist editor thus presents the rulings in order from one as to which Rashbam was correct (Ruling 1), to one as to which he was wrong (Ruling 2), and then on to one as to which even he realized his own error (Ruling 3). Structural Observations About Or Zarua, Eruvin 146 A few words will suffice about the overall composition of the structurally-similar material in Or Zarua, Eruvin 146. Or Zarua, unlike s.v. “halakhah,” presents in siman 146 what it represents as Rashbam’s own written presentation of his three rulings and their legal basis in a lengthy passage that begins “our Rabbi Samuel—may the memory of the righteous be a blessing—wrote,” and ends “until here is his language,” meaning, “close quote.” While this material is represented as Rashbam’s ipsissima verba, we cannot be certain that this is entirely true. It remains possible that interpolations or the reworking of certain points were inserted prior to the material’s incorporation into Or Zarua, or perhaps at the hands of R. Isaac b. R. Moses himself. That acknowledged, the material is presumptively earlier than s.v. “halakhah,” and appears to represent Rashbam’s earlier—and certainly different—view of the relevant legal issues than that represented in s.v. “halakhah.” Or Zarua follows Rashbam’s attributed writing with counter-arguments offered by Ri of Dampierre and argumentation of his own. The Ri’s arguments are presented more expansively in Or Zarua than in s.v. “halakhah.” Unlike s.v. “halakhah,” the line between Rulings 1 and 2 is blurred in Or Zarua. This distinction between s.v. “halakhah” and the Rashbam material found in Or Zarua is understandable. As we see from Or Zarua, not only was Rashbam permissive as to both Rulings 1 and 2, he discussed them together. The Tosafist editor disagreed with Rashbam as to Ruling 2 and so separated the discussions. Moreover, the Tosafist editor’s separation of the discussions in s.v. “halakhah” was part of crafting a structure for the passage that takes the reader through the progression from “Rashbam was correct” to “Rashbam realized his own error,” as mentioned above. Detailed Discussion of s.v. “halakhah I. Ruling 1 The Tosafist editor opens by noting (I.1) that Rashbam “ruled” (pasak) that it is permitted to enter a boat during the daytime on Friday, even if the boat will be sailing past the Sabbath boundary (two thousand cubits) on the Sabbath. The reason is that the boat sails without any effort exerted by the Jew. The Jew must not exit the boat (on the Sabbath), although he may traverse its entirety on the Sabbath day; the boat is considered to be the “four amot” within which a Jew may move after having been taken outside of the Sabbath boundary by an external force. Two observations may be made about the Tosafist editor’s treatment of Ruling 1. First, the editor simply reports that according to Rashbam “it is permitted to enter the boat during the day on Friday, even if the boat is exiting the [Sabbath] boundary.” The unstated implication of these words, as it could be understood by the reader, is that the Jew must board the boat on Friday and remain there. Looking at Rashbam’s own words on the matter as reported in Or Zarua, as well as statements of R. Isaac Or Zarua himself, the matter appears more complex. Rashbam referred there to the people’s practice to board the boat during the day on Friday in order “to acquire a place of rest for themselves” (“liknot lahem shevitah”), and later specified that one wishing to “acquire” a “place of rest” must remain on the boat through twilight (“bein ha-shemashot”), after which he can go to his own home to eat his Sabbath meal. Tarrying on the boat through twilight is sufficient “acquisition” of a “place of rest” to entitle the Jew to board the boat again on the Sabbath and be able to traverse the entire vessel. Or Zarua emphasizes the significance of the twilight period in criticizing the practice of some to eat their Sabbath evening meal and kindle Sabbath lights on the boat, only to leave the boat prior to twilight. Stress is placed by Or Zarua on tarrying on the boat through twilight—not eating dinner and kindling lights—thus “acquiring a place of rest” on the boat and enabling people to re-board it and traverse it completely on the Sabbath day. The difference between s.v. “halakhah” and Or Zarua on this point is clear. S.v. “halakhah” is silent as to “acquiring a place of rest,” and implies that having boarded the boat during the day on Friday the Jew is not to leave. The Tosafist editor does not contemplate “acquiring a place of rest” on the boat whether through tarrying into twilight—as Rashbam and Or Zarua require—or through eating a meal and kindling Sabbath lights, which both scholars, as well as the Ri of Dampierre (as reported by Or Zarua) see as insufficient. According to the Tosafist editor’s formulation, there would be no exiting and re-boarding the boat on the Sabbath. While essentially agreeing with Rashbam that a Jew may board a boat on Friday and remain on it while it sails during the Sabbath, the Tosafist editor’s representation of Rashbam creates the image of a more “sabbatical” Sabbath—one that will not be characterized by exiting and re-boarding a boat on the Sabbath. Another point about Ruling 1 in s.v. “halakhah” as compared with Or Zarua: the former obscures the role of the ship’s non-Jewish captain. We will say more about this in the next post, in our analysis of Ruling 2. The Tosafist editor says that the Jew may enter the boat on Friday because “the boat goes by itself and he [the Jew] does not do anything.” In Or Zarua, Rashbam is quoted as referring to “the boat [which is] in the hand of the captain who guides it—he being a Gentile—it is in his power to make it stop or go.” Moreover, the Tosafist editor only quotes the part of the baraita on B. Shabbat 19a that discusses the prohibition of setting sail within three days of the Sabbath except for a matter of mitzvah. Nowhere in s.v. “halakhah” does the Tosafist editor quote the continuation of the baraita, which says “and he [the Jew] may stipulate with him [the non-Jewish captain] to rest [on the Sabbath] . . . .” The rest of this passage is quoted and discussed by Rashbam in Or Zarua. The Tosafist editor’s apparent desire to obscure the non-Jewish captain’s role in controlling the Jew’s Sabbath environment will occupy us further below, in the discussion of Ruling 2. To be continued.

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.