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text: What is the Talmud
  תלמוד מהו?
  Translated from German by Ruth Morris, Jerusalem, 2013
  
  
  What is the Talmud
  
  Editor's Foreword
  
  Not long after Hitler’s coming to power in Germany, the Nazi government asked Rabbi Avraham Yehoshua Heschel to prepare a book explaining the Talmud. The object was to preserve a document which would describe the source of those characteristics which, in the Nazi mind, dictated the necessity for the annihilation of the Jewish people. Heschel declined the request, and recommended giving the assignment to Rabbi Eli Ladislau Berkovits, later world-renowned as Rabbi Prof. Eliezer Berkovits, then a communal rabbi in Berlin. The two young rabbis, in their twenties, were both in Berlin at that time, and on friendly terms.
  The result of Berkovits’ work was published in 1935, entitled “Was ist der Talmud?” It was Berkovits’ first book, except for his doctoral thesis on the subject of Hume. The book, published by Erwin Löwe Jewish-Book Publishers, Berlin, is said to have been burned immediately upon its publication. Several copies nevertheless survived, and the book was published a second time by Ner-Tamid Publishers, Frankfurt am Main, in 1963.
  In the two publications in German, two appendices written by Berkovits were excluded: Chapter VII, Was steht in Talmud? (What is written in the Talmud?), and Chapter VIII, Was steht nicht in Talmud? (What is not written in the Talmud?), were omitted at the suggestion of the publisher. Chapter VII is a selection from the many ethical and moral principles discussed and enunciated as law in the Talmud. Chapter VIII contains a refutation of accusations hurled at the Jewish people by the non-Jewish world throughout history, ostensibly on the basis of the Talmud. The publisher argued that their inclusion would arouse the anger of the Nazi censor, and would result in the immediate incarceration of both the author and the publisher in a concentration camp.
  The original typescript of the book has been discovered among Eliezer Berkovits’ papers. Thus the two missing chapters could be included in the present English language edition, published for the first time. A Hebrew first-time translation of the book is soon to be released. This too will include the two missing chapters.
  Avraham Berkovits
  Haifa, 5773
  
  Publisher's Foreword
  
  Publisher’s Foreword
  This little book was burned in 1938, directly upon its publication. – Why?
  The reason is simple.
  The highly endowed Talmudic scholar, Rabbi Eli L. Berkovits, understood how to present the legalities of the Talmud and its fundamental principles in plain and easily grasped language. These truths refuted the calumnies of the Nazi propaganda. At the time of the book’s composition, one could not approach the German public openly, in order to show up these accusations for what they were.
  So this book was burned; only very few copies were saved.
  The Ner-Tamid-Verlag is pleased to have succeeded in obtaining the rights for republication of the book*<i class="footnote">Rabbi Prof. Eliezer Berkovits, the author, was not consulted by the 1962 publisher regarding his copyright for this his first book, written in Berlin in 1935.</i>, never before found on the open market. Above all it is being brought out again in its original format**<i class="footnote">The two chapters, VII and VIII, in the new printing did not appear in either the 1938 or the 1965 publication.</i>, accompanied by our expression of the hope that – through knowledge and understanding – such a dark époque could not again come to pass.
  Our gratitude is expressed herewith to Chief Rabbi Dr. I.E. Lichtigfeld for his friendly advice, and to Mr. Peter Henselder for his zealous cooperation.
  Shlomo Lewin
  Frankfurt-am-Main, March 1962
  
  Introduction
  
  Introduction
  What the Talmud is, on this subject many have expressed themselves with evil intent, to the point at which it is no longer recognizable, with everything torn out of context, distorted and as often as not, falsely translated. Such treatment also leads to observations that are merely incidental and marginal, having nothing to do with the central concerns of the Talmud.
  Without conscious resignation, and a corresponding surrender to the purpose, there can be no real approach to the study of the Talmud. Even one accomplished in Talmud calls himself only a “Talmid Chacham” – a Student of the Wise.
  It is good that after the serious injustice that was done to the Talmud, it is now superseded by the ever broader wish to disseminate the knowledge of the Talmud. 
  I welcome here the reprinting of this book.
  The author, through his clear and insightful exposition of all conflicting ideas which may be the cause of difficulties, has made it possible, at the very least, to gain a specific appreciation of the structure as well as the spirit of the Talmud, and the matters with which it deals. Reading this book is not easy. However, anyone prepared to apply himself with diligence and the necessary sympathy, will certainly be rewarded with hoped-for insight into the comprehensive and unique, intelligent work which is accomplished by the Talmud.
  Whoever is fortified with an acquaintance with the subjects with which the author concerns himself, will no longer be misled by caricatures such as are spread abroad about the Talmud.
  To all those dealing with the education of the youth, as well as mature young people, may this book be recommended.
  Dr. I.E. Lichtigfeld
  Chief Rabbi, Hessen
  
  I What is the Talmud?
  
  1 Bible and Talmud
  
  I. WHAT IS THE TALMUD?
  <i>1. Bible and Talmud</i>
  Letters and complete words are symbols which must be interpreted and explained. Reading always involves interpretation and explanation of the written material. However, we are not always aware of this, because today reading has become a universal everyday occurrence — an activity which, because we are so practiced at it, poses no difficulty for us whatsoever.
  But this soon changes when the written text is not straightforward, or if it is a “symbol” of some chain of reasoning, an expression of connections with which the reader is unfamiliar or which, because of their complexity and profundity, cannot be readily grasped at first sight. Then we no longer talk about reading, but about research, studying, learning. To read is to explain, to read means to learn.
  All written material requires a commentary. The first reader is always also the first commentator. The Bible is the written teachings (the so-called Written Law, or <i>Torah Shebichtav) </i>of Judaism — the Book as compendium. That is why it is inconceivable without commentary. Like any teachings, it must also be explained, and as everywhere, in the case of the Bible as well, explanation begins with reading. To read the Bible is always to explain the Bible. However, to explain the Bible means to study the Bible. The process of studying and its outcome are designated by tradition in the language of the Bible by the word Talmud. (Lamod = Heb. learn; “Talmud” is an abbreviation of Talmud-Torah study of the Torah.)
  The Talmud begins with reading the Bible. The first Jew to read the Bible was the first Talmudist. Indeed, it might even be said: Talmud is simply the special way in which for thousands of years the Jewish people read — and are still reading — their Bible . Since Talmud is <i>reading</i>, it is essentially <i>oral teachings</i>.
  Irrespective of the way that the Bible is read, the reader will always encounter major difficulties in it. “Questions” will be asked. Asking questions is the dynamic strength of the Talmud. It is an integral part of the text. The Bible is text — but above all, it is teachings (<i>Torah</i>); yet answers are part of teachings. The provider of the text left questions unresolved. The provider of the Teachings must also have provided the answers. The Talmud consists of question and answer. From all of this it follows: The Jewish people received the Talmud together with the Bible. Written and oral teachings cannot be separated from each other. Both come from the same source. The Talmud is as old as the Bible itself.
  This can be shown clearly by the following discussion. Moses was undoubtedly the first reader of the Bible in the world. When he reached the place in the Torah where it directs that in the case of a divorce, “He shall write her a bill of divorcement,” (Deut. 24:1) he must have asked: What is a bill of divorcement? How is it written? What should its contents be? The question must have been answered, because the Bible’s rules were to be valid laws. Moses could not just teach the text of the law; at the same time he had to provide the explanation of the law, the “implementing regulations.” But who taught Moses the explanation; who provided him with the implementing regulations? The same authority which gave him the Law, God himself. The “Halachah le-Moshe mi-Sinai” — the Oral Teachings (the Oral Law or <i>Torah Shb’al Peh</i>) transmitted to Moses at the source of Sinai — is not a dogma, but historical necessity, that is, historic truth. Oral Teachings must have been provided together with the Written Teachings. Moses taught the law, and consequently he had also to teach its explanation and application. Moses was the first Talmudist.
  
  2 The Talmud and the life of the nation
  
  <i>2. The Talmud and the life of the nation</i>
  For the Jewish people, the Bible was never a historical document which belonged to the past. The people always saw it as the eternal book, transcending time, of the eternally valid “Teachings.” The Jewish individual read the Book of Teachings (<i>Sefer Torah</i>) from a dual standpoint: as a book, and as teachings. And this means that the person was seeking for an answer to two questions. First of all to the question: What does the book, the word, the text, mean? And then: What does the teaching want, what does it demand of the person? Jewish individuals are not satisfied with understanding the <i>text</i>; rather, they want primarily to understand the consequences for their lives that follow from the Teachings<i>.</i> This is what constitutes the special nature of the Jewish reading of the Bible, and hence the very essence of the Talmud. This double formulation of the question, with which the Jewish individual approaches the Bible, is already Talmud, just as the answer identified in response to the two-part question constitutes the most comprehensive part of the Talmud. The Talmud explains the text, and also shows how the teaching is put into practice in life.
  a) The understanding of the text is the prerequisite for the fulfillment of the Teachings; a person who does not understand the text is incapable of comprehending the teaching. Hence there is a path that leads from word to saying, from statement to statutes, from “Sefer” to “Torah.” It is the path of philological exegesis or — in the language of the tradition — the path of <i>p’shat</i>, the “simple explanation.” One who follows this path to the end, who not only understands the words but also hears the saying that calls people, binding them, one who through the explanation of the text attains teachings which require performance in life — that person will soon find that, in addition to the “simple explanation,” there must be another one with an equal claim to recognition. The Teachings that are attained through <i>p’shat</i> play a vital role among the people; they permeate the reality of the people’s existence as a valid part of legislation, as a binding norm of Jewish social and public life, as the quintessence of the Jewish lifestyle. In this way they become a living spiritual and intellectual force, whereby the Teachings are revealed as a unified body which can then go back to the Biblical saying, so as to “interpret” the individual passage on the basis of the intellectual and substantive content of the living whole.
  In addition to philological exegesis, which takes the reader of the Bible from the text to the Teachings, there is also interpretative exegesis, which leads the person putting the Bible into effect from the living Teachings back to the written word. The significance of <i>d’rash</i> — “interpretation” – is equal to that of <i>p’shat</i>. <i>P'shat</i> explains the semantic meaning of a word, while <i>d’rash</i> elucidates the deeper intellectual sense. When, for example, among its provisions on civil damages the Bible, discussing the ox which in a particular case has killed a man, says: “The ox is to be stoned, and its owner is also to be put to death,” (Ex. 21:29) philological exegesis has complied with its task once it has explained a number of words. It is now in a position to translate this sentence according to its semantic meaning. However, the deeper teachings, which should define this provision in legislation as a norm, cannot be satisfied with the “literal” translation, because from the spirit of the Teachings, which is deduced from countless other passages in the Bible, and has thus become legislative practice, it emerges that “you can sentence him to death when he has killed, but not for killing done by his ox,” (Sanhedrin 15a) and therefore the interpretation which is applied is that: “The owner is also guilty of the death” means: “Monetary compensation.” The spirit of the Teachings can only require damages, which in this case are to be settled in terms of monetary value. What is deduced from the Biblical text using the method of <i>d’rash</i> is called Midrash.
  The fundamental difference between philological and Midrashic exegesis cannot be expounded in detail here. However, attention must be drawn to two main points in this connection. Firstly: contradictions; secondly, superfluous passages, words, letters, and so on. Contradictions cannot be resolved by philological-scientific exegesis — only recorded; however, Midrashic exegesis must resolve them, because although contradictions may be possible in a text, they are insupportable for teachings which are to be put into effect in life. The living Teachings which are the starting point of the Midrash require the elimination of contradictions arising from semantic meaning. Here too the procedure followed is that of the general Midrashic rule: semantic meaning is interpreted through spiritual meaning. (On the logical principle which applies when resolving contradictions, see Section II, 2 below.)
  A similar approach is also adopted to what appears from the plain sense to be superfluous. This could be an entire precept if, for example, it already follows from another passage. It could be words, letters, if they are superfluous for grammatical reasons, and so on. There is nothing that philological exegesis can do with these passages: it can take note of them or, if it has great courage and little conscientiousness, it can even delete them; the Midrash <i>must</i> interpret them. For the Teachings must be a unified whole, in which everything is necessary, sufficient and accounted for, to which “nothing may be added and from which nothing may be diminished.” The Teachings cannot contain anything superfluous; that which belongs to the Teachings necessarily belongs to them. Since according to the Talmudic premise the text of the Teachings is of divine origin just as much as the Teachings themselves, it must be just as perfect as they are. The text must in all respects be homogeneous with the Teachings, and must correspond to them. It must be possible to turn every word and every letter again into teachings. Hence the frequent Midrashic question: “What does it teach me?” The text must contain as little superfluous material as the Teachings themselves. What turns out to be superfluous according to the semantic meaning must be interpreted on the basis of the intellectual meaning of the entire system of the Teachings.
  Interpretation (Midrash) is a consequence of the living teachings. It is initially a compulsion to interpret — a compulsion which, however, turns into interpretive or exegetical law as a result of the fact that the interpretative possibility given in the text is not handled arbitrarily. Interpretation always grows necessarily out of the living reality of the Teachings. This necessity is for the most part logically provable (see Section II, 1, 2 below). However, even when this is not the case, when the Midrash, as often happens, does not proceed in its method with satisfactory logical necessity, even then it can be recognized as the organic evolution of the Teachings. The Midrash always possesses this <i>organic necessity</i>, which is why it is, quite simply, a truth of the living teachings.
  <i>P'shat</i> is Biblical exegesis as a response to the question concerning the meaning of words and text. <i>D'rash</i> (or common Midrash) is also exegesis — from the viewpoint of the other question regarding the obligatory meaning and intention of the Teachings. Since the Talmud raises both these questions, in Talmudic exegesis <i>p’shat</i> and <i>Midrash</i> exist on a par with each other.
  b) Talmudic exegesis is the preparation for the real subject of the Oral Teachings, which we can express as follows: putting the Written Teachings into effect in everyday life.
  As the standard of performance or norm for the Jewish individual, the Teachings are law, and like any statute book the Bible, too, can only contain the basic rules in an extremely concise form. However, as soon as an “instance” or case arises in real life, the wording laid down in the legal code is insufficient, and the law must be explained by means of its “implementing regulations.” Its standard of performance as specified in writing is always accompanied by the knowledge of its practical implementation as well. As with any other statute book, therefore, even for the legal teachings of the Bible a supplement in the form of this knowledge of the practical application is indispensable. And this is the source of the necessity of the Oral Teachings, which are also simply the methodology of the application and the fulfillment of the written Torah. (On the “Oral,” see Section 1 above.)
  Honor your father and mother, keep the Sabbath, do not covet — all these commandments are worded clearly and concisely, but without detailed explanation of the concepts underlying them, they cannot serve as a guiding principle for human behavior in the practical experience of life. Simply reading them raises countless questions. How far does the duty of honoring parents go? What if the father and mother do not deserve any honor because of their way of life? How does one keep the Sabbath? Where is the boundary between wanting, coveting, and envy? When is coveting sinful? and so on and so forth. Even such unambiguous and clear laws as the Ten Commandments are not applicable in life without “implementing regulations.” The purpose of the Oral Teachings is to explore the law’s forms of application and fulfillment. Whole sections of the Talmud and voluminous tractates are often simply the implementing regulations of a few, concise words of the Teachings. The Talmud shows how the Teachings are applied in the “given case.”
  Now as long as these cases were explicitly foreseen by the law-maker, the application of the law is relatively simple and self-evident. It then normally goes back to direct transmission or tradition, which at its core at least is as old as the law itself. For the provisions about its implementation must also be just as old as a law’s entry into force. The application of the law becomes a problem when “new cases” arise in the life of the people which the law-maker did not explicitly foresee. Life changes and evolves, but the law of the Teachings is immutable. The immutable teachings must always shape changeable life. The eternally valid law must also decide on the “new cases.” But how is this possible? The question is not a specific problem of the Oral Teachings, but a general problem of legal philosophy. For every code of law outlasts the circumstances of life which constituted the condition and reason for its development. No law-maker can possibly foresee the plethora of “cases” which will occur in practice. Nevertheless, it is also possible to decide new cases as well according to the older law. Not, of course, according to the subjective will of the law-maker, who can no longer be questioned, but according to the objective intellectual meaning of the law, which is ever-current. This is precisely how the Talmud proceeds, too. With the help of exegetical and strictly logical rules, the intention of the Teachings is deduced also for those cases which could not be foreseen by the law-maker in person. The application of the law then no longer means the straightforward execution of the law, but the creative unfolding of the spirit inherent in the Teachings. In this process, what comes to the fore is above all the productive nature of the Midrashic method of interpretation, which again and again seeks the intellectual meaning in the text. The application of the law in all the innumerable “new cases,” which ever-changing life brings with it, is therefore inconceivable without interpretation of the law, that is, Midrash.
  Life asks its questions in those “cases” which must be resolved. The Teachings must answer. It is in this dialogue between life and Torah that the Oral Teachings, the Talmud, unfold. “Thou shalt!” commands the Bible — “How?” asks life — “Like this!” answers the Talmud. The Talmud is as old as the “Thou shalt” of the Teachings, as young as the question of the present day ; it is eternal, just as the Teachings and life are eternal. The Talmud is the bridge across which the Teachings proceed into life. The Bible without the Talmud is like a soul with no connection with the body — eternal but not of this world. It is because of the Talmud that the Teachings “are not in heaven.”
  Since the application and execution of the law can be called a commentary from the point of view of fulfillment, Talmud is commentary on the Bible in the broadest sense of the word; written by the Jewish people in the course of the ages of Jewish history.
  
  3 The Talmud and science
  
  <i>3. The Talmud and Science</i>
  The close relationship between the Talmud and the life of the people also determines the relationship between the Talmud and science, a relationship which because of space constraints we can only briefly review here.
  The Talmud always bases itself on “cases.” (“Two people are holding a garment; one says …, the other says …” Mishna Bava Metzia 1:1)
  The question that the Talmud asks is: What does the law require in this specific case? This is a practical question, not a scientific or theoretical one. The Talmudist is right in the midst of his people’s life, a position in which he is beset with innumerable questions, to which he seeks the answer by drawing conclusions from the Teachings. The Jewish people has no literary document which is as true to life as the Talmud. Talmud studies are not a sophistic and theoretical form of hairsplitting, but the nation’s rigorous and consistent will to mold its life according to a clearly defined and objective approach, based on the eternal teachings.
  The Talmud is an outgrowth of the life of the people, which is why it begins with a specific “case.” In contrast, science starts with a concept. The Talmudic case which is to be decided is a question involving real-life issues. In contrast, science’s questions are problems. A problem is solved by means of hypotheses, whereas questions require answers. Hypotheses need only be possible, whereas answers must be conclusive. Science thinks, whereas teachings must know. This is the reason for the Talmud’s lively discussions, which cannot be brought to an end until a particular answer has proved itself conclusive or, as a great contemporary scholar put it during a discussion at his yeshiva: “It could be said” — is not an answer, “It must be stated as follows” — that is the answer.
  The Talmud is not science: like the Bible itself, the Talmud is a body of lessons or teachings for life. The fundamental difference between science and teachings is probably shown most clearly by the pairs of opposites — case/concept, question/problem, answer/hypothesis.
  It should, however, be borne in mind that, even though the Teachings are not a science, they nevertheless require scientific knowledge. (Medical consultations would be impossible without clinical research. The practice of judicial authority must be preceded by theoretical legal knowledge.) Without previously addressing the relevant underlying concepts in a scientific fashion, Talmud as the Teachings of how to put the Torah into practice is an impossibility. In this setting the issue is not whether the Talmudist is aware of his scientific performance, but only that he should think through the concepts and problems which precede the Teachings in a scientifically rigorous fashion. Even before Plato and Aristotle, it was also possible to think logically in unambiguous, abstract terms. Midrashic rules of interpretation are the scientific outcome of a highly developed logic which is not only taught but also applied in the Talmud. A large number of postulates and theoretical principles appear in the Talmud as axioms about which no further discussion takes place: the discussion focuses only on the possibility of applying them to the “case in question.” However, the fact that they can be readily applied proves that their basic nature has already undergone theoretical elucidation. Let us take an example. Just as in epistemology we find the problem of “presumption of validity of phenomena,” the Talmud too has a concept of “presumption,” which it calls <i>hazaka</i>. In the Talmud, however, “presumption” is not a problem but a principle, which can be expressed roughly as follows: A circumstance which has been observed <i>holds true</i> as long as it continues to exist, until we have convinced ourselves of the opposite. This principle and many others of a similar nature are applied in the Talmud; however, such application must be preceded by the philosophical explanation of the concept.
  Since the Teachings are not the same as science, it must be expected that their systematic structure will not be interchangeable with the systematic of a scientific discipline. By approaching the Teachings with scientific prejudices one would fail to find the Teachings too.
  Torah is a body of teachings, not science.
  
  II Methodology of the Talmud
  
  
  
  II. METHODOLOGY OF THE TALMUD
  A contemplation of the scientific prerequisites of the Oral Teachings is to be found in the Talmud — in Hillel’s summary of the seven hermeneutic principles or rules of interpretation of Midrash.
  This summary is the central element of a rigorously scientific methodology of Midrashic exegesis. It must, however, be noted that these hermeneutic rules were not discovered by Hillel. Rather, Hillel, found them already present in the Teachings; he identified them from the cases to which they had been applied in the centuries before him, and summarized them. To what end? Not in order to teach the theory of the Midrashic method; nor in order to prove the logical correctness of the rules. There was nothing here which needed to be proved. These rules applied for hundreds of years before Hillel. Even with this summary, which is simply formal logic, without which it cannot be understood, the Talmud expresses no scientific interest. The reason for compiling the rules was so that they could be applied with greater confidence. It is practical interest which is decisive; science serves the Teachings.
  
  1 Logical inferences
  
  <i>1. Logical inferences</i>
  As we have already shown, interpretative exegesis was primarily applicable when “new cases” arose in life —- cases which the law-maker could not have specifically solved previously, but which nevertheless had to be decided in the spirit of the Teachings. But how could the spirit of the Teachings be determined so that it would not simply be viewed as an individual’s subjective opinion of the Teachings, but rather so that it must be seen as the objective — and hence also valid — intention of the Teachings? There was only one way of making sure of this: inferring from the known to the unknown X. But since the Teachings never manifest themselves in the form of concepts, but instead as individual cases, in which they determine action or behavior, conclusions had to be drawn from one individual case to another individual case — or, to use the terminology of logic, from one particular to another particular. How did the Talmud proceed here? We will illustrate this by means of an example.
  a) In Tractate Pesachim (66a), it says: It came to pass once that the eve of the Festival of Passover fell on the Sabbath, and it was not known whether the Passover sacrifice could be offered on the Sabbath, since the offering is associated with certain types of labor otherwise forbidden on the Sabbath. Neither the Bible nor the Oral Teachings contained any provision about this, but this case too had to be decided on the basis of the Teachings. Now Hillel taught: We know that the daily sacrifice must be offered on the Sabbath too. Of the daily sacrifice it says: it shall be offered “in its due season.” But of the Pesach sacrifice it also says: it is to be given “in its due season.” However, this justifies my inferring: Just as “in its due season” for the daily sacrifice means: even if this time is a Sabbath, so the same expression for the Pesach sacrifice will mean: “in its due season” — even on a Sabbath. Reduced to a logical formula, the reasoning runs as follows:
  The daily sacrifice supersedes the commandment relative to the Sabbath
  The daily sacrifice is similar to the Pesach sacrifice (because of the similarity of the wording determining the time in the Bible)
  Hence the Pesach sacrifice supersedes the commandment relative to the Sabbath.
  All this amounts to is a logical inference by analogy, where the formula is as follows: M = P; S and M are similar to each other; therefore S = P. Since inference by analogy in the Talmud is almost exclusively based on identity of the expression in the Biblical text, its name in the Talmud is “<i>g’zerah shavah</i>,” that is, an “analogous expression” or verbal analogy (cf. Sifra, beraita of R. Ishmael).
  However, no inevitable — that is, completely reliable — conclusions can be reached on the basis of similarity. All that analogy can do is to substantiate with probability the similarity between M-like S and M-equals P. Analogy always justifies a supposition only. However, it is not possible to decide about issues in the Teachings on the basis of suppositions. The theory of probabilities can only be a method of science, not a satisfactory method of the Teachings. Whether or not the Pesach sacrifice can be offered on the Sabbath must be categorically known. Which is why the Talmudic verbal analogy (inference by analogy), the “<i>g’zerah shavah</i>” — a decision of law — requires further safeguards. Probability should prevail. How can it do so? Logic replies as follows: The probability inferred on the basis of analogy can become applicable on the basis of those experiences which confirm it. But the role that (empirical) experience plays in science is occupied in the Teachings by tradition. This is the reason behind the principle that the Talmudic inference by analogy applies only when it is confirmed by a tradition. Generally this involves the “<i>g’zerah shavah</i>” having been handed down from generation to generation, from teachers to students.
  Or, as Hillel puts it: “Nobody may independently draw up a conclusion by analogy,” meaning: Nobody may make decisions of law on the basis of a verbal analogy if unsupported by any tradition (cf. Pesachim 66a). This is not a dogma, but the scientific consequence of the analogy. Analogy can only produce a probability; but probability cannot be an answer to questions of the Teachings.
  b) Hillel also shows us another way to decide the above-cited question about the Pesach sacrifice. We can disregard verbal inference. The assumption is: We know that the daily sacrifice supersedes the Sabbath commandment. We know that, while the punishment of <i>karet</i> (= excision or premature death) applies to any omission of the Pesach sacrifice, this punishment does not apply to omission of the daily sacrifice. The law-maker must have attached greater importance to the offering of a sacrifice to whose omission the <i>karet </i>penalty is applied, than to the offering of a sacrifice for whose omission this harshest of punishments was not specified. Hillel now teaches the conclusion: If the offering of the daily sacrifice, for whose omission no <i>karet</i> penalty is imposed, already supersedes the Sabbath commandment, then how much more must the Pesach sacrifice, whose omission is punished with <i>karet</i>, supersede the Sabbath commandment. Reduced to a logical formula, this can be expressed as follows: Because of the relationship between the different nature of the penalties in the case of omission, the following is established:
  The offering of the Pesach sacrifice exceeds in significance the offering of the daily sacrifice
  The offering of the daily sacrifice is so significant that it supersedes the Sabbath commandment
  Therefore, the Pesach sacrifice also supersedes the Sabbath commandment.
  In the Talmud this conclusion is known as “<i>kal va-homer</i>” (<i>a fortiori</i>); originally in the sense of “(deduction) from a minor to a major case in terms of religious law,” or to put it more generally: “From the particular to the more comprehensive particular,” so that one might say: What A contains must also be contained by the more comprehensive A1. Unlike the verbal analogy of the <i>gezerah shavah</i>, this conclusion is mandatory; consequently, it needs no other confirmation than that of logical necessity. <i>Kal va-homer</i> is always applicable even if unsupported by any tradition. Or, as the Talmud puts it: “Everyone has the right to infer a <i>kal va-homer</i> on his own.” (ibid.)*<i class="footnote">Adolf Schwarz, whose basic work we followed in the section’s presentation of “logical inferences” and “exegetical rules,” although we differ from him on all essential points concerning the “inferences” (at this juncture we can only report on the exegetical rules on the basis of Schwarz A., “Der Hermeneutische Syllogismus in der Talmudischen Litteratur", Israelitisch-Theologischen Lehranstalt, Vienna, 1901) holds that <i>kal va-homer</i> is equivalent to a syllogism. This is not correct. There are countless syllogisms in the Talmud, but never in the form of <i>kal va-homer</i>; on the other hand there are a number of <i>kal va-homer</i> which can only be reduced to a syllogism with great difficulty. In my experience the nature of the <i>kal va-homer</i> has been correctly explained only by my esteemed teacher, Dr. I.I. Weinberg, Rector of the Hildesheimer Rabbinical Seminary in Berlin, who has re-established the <i>a fortiori</i> inference in <i>kal va-homer</i>. The special wording of the <i>kal va-homer</i> can be ascribed to the fact that the conclusion at the same time contradicts a possible objection to the identity to be inferred, that is, always in how it is shown: the point on which A and A1 differ from each other only strengthens the inference on the basis of identity, since the present in A, on which the identity is based, must — on the basis of the properties which are cited as differing — be present in A1 to an even greater degree.</i>
  c) Another case should enable us to gain an insight into the nature of a third exegetical rule. In the Bible we have four basic types of damage accompanied by liability for damages or liability to make good a loss. 1. A goring ox. 2. A pit which is dug or left open in the public domain. 3. An ox that grazes on someone else’s field. 4. A fire which starts out in a hearth and spreads. In the concise, catchy and graphic language of the Oral Teachings, they are designated by means of the terms: 1. The horn, 2. The pit, 3. The tooth, 4. The fire (cf. Bava Kama, Mishna 1:1). In defining the nature of these kinds of damage, it is determined that all damage caused by physical objects can be reduced to these four basic types. The tractate of Bava Kama (p. 6a) discusses the following question: Some-one had placed “his stone, his knife, his load” on a roof; they fell down during a normal wind (which should therefore have been foreseen), causing damage to something. Is the owner who laid them on the roof liable for damages or not? No decision was available in such a case, whether in the Bible or in tradition. An attempt is now made to determine to which group of damages the falling object belongs: 1, 2, 3, or 4. However, it turns out that this case cannot be placed anywhere; for in its nature it is not identical with 1, nor with 2, 3, or 4. However, although 1, 2, 3, and 4 also differ from each other, nevertheless in all four cases, the owner or party responsible is liable for damages. However, if the same applies to 1, 2, 3, and 4, the reason cannot be the points on which they differ (unequal causes having unequal effects), but rather the points on which they correspond. The “common factor” (<i>ha-tsad hashaveh</i>) to be found in them is: All four “are in the habit of causing damage, and must be guarded” — and this is therefore the cause of the provision: “The owner or party responsible is liable for damages.” The conclusion drawn from this is: Everything that has the property of “being in the habit of causing damage and needing to be guarded” carries with it, in the case of damage, an obligation on the part of the owner or the person responsible to pay damages. However, these properties apply also in the case in question to the “stone”; the owner or person responsible is therefore liable to pay damages. Reduced to a clear, logical formula, the conclusion can be worded as follows:
  The “horn,” the “pit,” the “tooth,” the “fire” have the property: “they are in the habit of causing damage, and must be guarded”
  The “horn,” the “pit,” etc. require the person responsible for them to pay damages.
  Everything which has the property of “it is in the habit of causing damage and must be guarded” requires damages to be paid.
  The “stone” has the property: “In the habit of causing damage and must be guarded”
  Therefore, the “stone” requires damages to be paid.
  However, this conclusion is simply the combination of an induction and a syllogism. The first part, the induction, is the well-known Aristotelian progression from the particular to the general. However, once the general is obtained, it can be used to infer an unknown particular from the general, as a super-proposition to the familiar syllogism: all M is P, S is M, therefore S = P. (The reader trained in logic will be able to recognize independently the importance of this combination for the disclosure of the relationship between induction and syllogism.) In the Talmud, this combined conclusion is called “<i>binyan av</i>” (basic rule, law or precedent); “<i>av</i> = father” means the type, the kind, the general as such, and “<i>binyan</i> = building” is what builds up the type, namely the particular with the distinguishing feature, as a result of which it is classified under the <i>av</i>. First an inference is drawn from the <i>binyan</i> particular to the general<i> av</i>, then back from the <i>av</i> to a previously unknown particular.
  The task of ruling on new cases using the laws of logic and in accordance with the spirit of the Teachings has ben brilliantly solved by these three principles for inferring from the known to the unknown: The verbal analogy in the <i>g’zerah shavah</i>, the <i>a fortiori</i> inference (based on identity) of the <i>kal va-homer</i> which at the same time disproves a possible objection, and lastly the inference of the <i>binyan av,</i> deduced from induction and syllogism. Independently of Aristotle, and centuries before him, the scientific thinking of our great masters reached a level on a par with the greatest logicians of all times.
  
  2 Exegetical rules
  
  <i>2. Exegetical rules</i>
  While the three types of inference deal with determining the unknown in the factual instance, in other words in real life, the purpose of the remaining four rules of interpretation is to explore the unknown X in the text. These are exegetical rules, which can, however, readily be turned into analytical rules of logic. The first deals with contradictions in the Bible and is called “<i>shneh ketuvim”</i> — “two verses” (which contradict each other). Since the Teachings are true, they cannot contain any contradictions; the truth cannot stand in contradiction to itself. If the proposition A is B is correct, then it cannot be true that A is not B. This is the postulate of contradictions, with its corresponding exegetical rule: If contradictions are found in the Bible, then they must be resolved. However, resolution is only possible as a result of distinction — establishing a difference between two passages which apparently contradict each other. This is a rule which the Talmud follows in countless instances.
  The most important of the exegetical rules is the last one, which bears the Talmudic name of “<i>davar ha-lamed mi-inyano</i>” — “a conclusion (something learned) from its context.” This rule takes us “deep down into the very innermost heart of the Torah, because it shows us that in fact, many things which appear superficially to be outwardly just strung together in a disjointed or separate fashion, deep down turn out to be inextricably intertwined with each other.” (Schwarz) Deriving an “inference from the textual context” is the “syntactic examination” of the Biblical word; “…because the individual word has one meaning if it is taken out of its context, and another if it remains in the framework of its sentence; and because similarly the individual sentence has one meaning on its own, and another if it appears as a link in a self-contained chain” (Schwarz). The same applies to entire sections and chapters; in order to completely understand a Biblical saying, the “setting,” the “milieu,” is always of great importance.
  One of the most frequent formulae in these rules is the “<i>hekesh</i>,” the comparison or analogy, which results from a juxtaposition in the text. An example: “… it is taught: Rabbi Meir used to say: What is meant by the verse: ‘According to their word, a decision is to be reached on every dispute and every leprosy’ (Deut. 21:5)? Now what do disputes and leprosy have in common with each other? — Rather <i>disputes are compared with leprosy</i>: just as leprosy (must be examined) during the daytime, as it is written: ‘On the day on which it appears,’ (Lev. 13:14) so disputes are (adjudicated) only during the daytime … Similarly, <i>leprosy is compared with disputes</i>: just as disputes are not (adjudicated) by relatives, so leprosy must not be (examined) by relatives.” (Sanhedrin 34b.)
  This inference from the textual context can be readily turned into a logical rule (Schwarz). The textual juxtaposition draws attention to an internal analogy.
  As a result of the logical laws which contain the seven hermeneutic rules, the Bible has in the course of Jewish history proved itself to be “living teachings” which can be consulted anew at any time and in any situation. The exegetical rules have expanded the Bible, making it more profound. They have shown that every generation can find the solution to its problems in the Bible. And in the process, the dogma of the eternal nature of the Teachings has become a historical truth.
  
  3 "S'vara" the principle of "common sense"
  
  <i>3. “S'vara” — the principle of “common-sense”</i>
  The principle of “<i>s’vara</i>” (s’vara = opinion) constitutes a triumph of the Talmudic method in solving unknown cases in accordance with the rules of the Torah. <i>S'vara</i> establishes the apparently self-evident but weighty principle: “Common sense prevails".
  In certain instances questions arise to which the exegetical rules cannot provide any answers: that is to say, when the Teachings contain nothing similar. For example, there is a clear-cut <i>halachah</i>: If somebody is threatened by death unless he kills a particular person, he may not save his own life by murdering a third person. The Talmud asks (Pesachim 25b): How do I know this? (What is meant is: A murder is indeed a sin, but in the case of mortal danger, it is in other cases permitted to violate a provision of the Law.) And the answer is: It is a <i>s’vara</i> (that is, common sense tells one). The following is recounted as an authority: A man came before Rava and said to him, “The ruler of my city ordered me, ‘Go and slay So-and-so. If you do not, I will slay you.’” Rava replied, “Let yourself be slain rather than slay. What makes you think your blood is redder than his? Perhaps that man’s blood is redder.”
  This precept, which does not appear anywhere in the Bible, is implemented as if it were explicitly included in the Bible. It constitutes the foundation for one of the seven exegetical rules with which a verse in the Torah is explained, in order to deduce the intention of the law-giver from this disposition, not foreseen in the Bible, in a case described by him in person. This view, based on <i>s’vara</i>, prevails as the view of the Bible, and is just as “known” as if it were explicitly expressed somewhere in the text. Basically, it is even better known; the expression is often used in the Talmud: “Why should I (use) the verse (in order to say something)? After all, it is a <i>s’vara</i>!” (e.g., Bava Kama 46b) Or the frequent question: “How do I know it?” is answered: “If you wish, it is a verse (of the Bible, from which this follows), and if you wish (that is, if the verse does not convince you), it is a <i>s’vara.</i>” (e.g., Sanhedrin 30a) What follows from the <i>s’vara</i> may not be in the Bible, since it is known even without the Bible, and therefore it does not need first to be taught by the Bible. Contained in the text, it would be superfluous. The <i>s’vara</i> has the same binding force as the Teachings revealed on Mount Sinai.
  However, all of this is a consequence of the nature of the Teachings themselves. The only reason that the Teachings are applicable is because they are the truth. <i>S'vara</i> is also truth, and hence must also be applicable. In this chain of reasoning too, however, what is perceived is the application of one of the exegetical rules of the Talmud — the <i>a fortiori</i> inference in the <i>kal va-homer</i>. The difference is that the <i>kal va-homer</i> always infers from the individual case of the Teachings to another individual case; while here an inference is drawn from the Teachings as a whole to the <i>s’vara</i>, as follows:
  The Teachings are truth
  The <i>s’vara</i> is truth
  Therefore, the <i>s’vara</i> is teachings.
  Therefore, the conclusion is: The <i>s’vara</i> is not applicable if it is not identical with the Teachings, that is, if it conflicts with them. Not because the truth needs additional support in the Teachings, but because the conflict of a <i>s’vara</i> with the Teachings is proof of the error in the <i>s’vara</i>. The Teachings are objective truth; in contrast <i>s’vara</i>, “common sense,” is subjective, and hence liable to error. The Teachings constitute the negative check on the <i>s’vara</i>; that which conflicts with the Teachings cannot be the truth. (This idea of the identity between teachings and truth, from which the “Biblical validity” of the <i>s’vara</i> follows, is incidentally the central idea of Maimonides’ philosophy. Maimonides is concerned, not with the reconciliation of belief and knowledge, but with the following insight: All knowledge which has a right to truth <i>is</i> Torah. For example, it is in this sense that he includes mathematics too, in Torah. <i>S'vara</i> is Torah — this Talmudic idea dominates Maimonides’ philosophical system.)
  Constituting an unanticipated enrichment of the Torah, the principle of <i>s’vara</i> is of major importance in the history of the development of the Talmud.
  
  III Subject matter, content, structure
  
  1 The six Orders of the Teachings
  
  III. SUBJECT MATTER, CONTENT, STRUCTURE
  <i>1. The six orders of the Teachings</i>
  What is the subject matter of the Talmud? It is the same as that of the Bible — the whole of human life, which can be divided into the following areas: (1) Man on his earth (2) man in time — that is, the days of man, 3) man in the family and (4) society, (5) man before God. Lastly, the religious man in his life before God soon encounters the boundaries of his existence, the limits of this life. This entails guessing at the realities and forces in the hereafter, which, as it were, project mysteriously into our life. Since, furthermore, this boundary area means a special sphere of existence for him, it leads to (6) man facing the limits.
  Corresponding to these areas of life, the vast subject matter of the Oral Teachings has been divided into “six Orders” (<i>shisha s’darim</i>). The Teachings do not, however, put into words any “topics” or specific “subject matter.” Not being a literary or scientific treatise in a logically consistent fashion, instead of topics it uses the collective names of those cases which are summarized in a particular Order. Thus the six Orders are called:
  1. <i>Z'ra’im</i> — Seeds (containing the rules of the Teachings concerning sowing, harvesting, tithes, cultivating the land, the conditions under which ripe fruit is released for consumption, first-fruit offerings (to God), blessings, prayers of thanksgiving and praying, and so on).
  2. <i>Mo’ed</i> — Appointed times or festivals (Determining the rhythm of man’s day, it deals with the rules concerning the Sabbath, Rosh Hashanah, Yom Kippur, Pesach, Sukkot, Megillah, fasts (<i>ta’anit</i>), and so on, and all related matters).
  3. <i>Nashim</i> — Women (governing relationships between husband and wife down to their furthest consequences). The family forms the focal point of the Order. Its primary content is both legal and moral in nature. It contains the regulations governing weddings, divorce, levirate marriage (involving a brother-in-law), blood relations, the religio-legal consequences of adultery, property law between spouses, among others).
  4. <i>N'zikin</i> — Damages (or more precisely, imbalances in social settings. Its subject matter includes: constitutional law, civil law, criminal law, labor legislation, rules about judicial authority, court proceedings, principles of social ethics [Tractate Avot], and more. In other words, included here is everything covered by the legal, moral, and religious regulation of how people interact within a community).
  5. <i>Kodashim</i> — Holy things (containing the laws for the ritual observances of our life. They include rules governing the Temple or offering a sacrifice, limitations on what is acceptable for consumption under the religious laws and what is forbidden, or laws on ritual fringes and phylacteries — What is involved is always a special religio-ritual consecration of human life. However, laws governing such attributes as <i>kasher</i> = edible, <i>trefa</i> = inedible, unfit for consumption, <i>tahor</i> = clean, <i>tameh</i> = unclean (and hence forbidden for consumption) hark back according to the Biblical account to divine “distinctions” determined by the Creator (see Lev. 11:43-47 and Lev. 20:23-26). Thus, this brings us to the boundaries of our existence in this world which, as indicated above, denote a special area of life, thereby laying out the Order of <i>Kodashim</i>, “Holy Things”).
  6. <i>Toharot</i> — Purity (with the purity rules for people, animals, and objects, and the laws of ritual purity. These are not simply in the nature of a religious cult nature but, like the “distinctions” in the Fifth Order concerning that which is ritually edible and inedible, they return to divine principles of the Creation. Of these principles we would know nothing were it not that these regulations give us at least some hint of understanding. In Judaism, aspects of ritual in this world are bound up with the realities of the hereafter.)
  
  2 Aggadah and Halachah
  
  <i>2. Aggadah and Halachah</i>
  The six Orders teach how to structure life in national-religious terms on a grand scale: for all walks of life, and all areas of life, the Orders show how the Torah is to be translated into action by the people as it goes on its way through history. To edify and instruct the people is the aim, and towards this end it constantly strives.
  Anyone who studies the Talmud in somewhat greater depth, one of its Orders, or even just one of its tractates or sections will soon inevitably reach the conclusion that what is said there about the great theme of human life from the point of view of the “teachings” is often of varying character and unequal importance. For example, when the first Mishna in Bava Batra teaches: “If neighbors wish to make a partition in a (shared) courtyard, they will build the wall in the middle (each one must give up half of the space for the wall), in what locally is the normal fashion for building…,” in form and content this basically differs from the observation of another Mishna, e.g. in Avot 5:9, informing us: “There are four character types among people: (a) One who says: ‘My property is mine and yours is yours,’ is an average character type, or, some say, this is characteristic of Sodom (selfishly refusing to do a kindness); (b) ‘Mine is yours and yours is mine,’ is an unlearned person (unfamiliar with the concept of ownership); (c) ‘Mine is yours and yours is yours,’ is scrupulously pious; (d) ‘Yours is mine and mine is mine,’ is a rascal.” And even less can it be compared with a passage in Tractate Brachot 32a, which tells of Moses’ importance: “And the Lord spoke to Moses: ‘Go, get thee down!’ (Exodus 32:7) What is the meaning of: ‘Go, get thee down’? R. Eleazar explained: The Holy One, blessed be He, said to Moshe: Moshe, get you down from your greatness; it was only because of Israel that I bestowed such greatness upon you; but now that Israel have sinned, what need have I of you?!”
  The first quotation could be part of a code of law, the second belongs in a manual on “practical” ethics, while the last one might appear in a literary treatise on the idea of national leadership. Innumerable other examples could be quoted; in each case, new subjects will need to be established in order to clearly distinguish one from the other. In the Talmud itself everything is presented side by side. Without the slightest attempt at systematic separation, the most diverse topics alternate, overlapping and intersecting with each other. However colorless and drab it may appear, for the person capable of reading a printed page of Talmud, it turns into a vivid and colorful ancient Oriental fabric, full of movement and lively splendor. Imagination, religious experience, poetic vision, ethics, politics, law, stories and anecdotes, fables, legal provisions, historical, philological, philosophical, legal and other insights are all there, side by side, “weaving” the “page” in the Talmud. Nowhere is there even the slightest hint of monotony and tedium; a wonderful intellectual zest fills each and every page. It would be an enormous task to scientifically and rigorously separate from each other all the different intellectual powers involved in the development of the Talmud — a task which could only be handled by an entire academy of scholars.
  The Talmud makes a division of an entirely different nature by separating all the material of the Oral Law into two main groups of differing character: Halachah, and Aggadah. Halachah (derived from <i>haloch</i> = to go) means the existing legal provisions by which people are to “walk,” while the term Aggadah (which comes from <i>hagged</i> = to inform, recount) designates all of the content of the Talmud which is not of a legal nature and hence is not binding on anyone. That the distinction between the two is not the common one, so familiar to the layman, that of reason, as opposed to emotion, can be readily seen from the fact that, on the one hand, much in the stringently mandatory Halachah is determined by feeling, while the broad scope of Aggadic material can in no way be ascribed solely to that which is determined by intuition and effect. “Emotion” plays no more a part in the emergence of the Aggadah than does reason or any other intellectual powers. Countless <i>aggadot</i>, providing us with an in-depth view of the connections between different walks of life, attest to this. Aggadah and Halachah are the expressions of two contrasting trends in Judaism. The most beautiful and important <i>aggadot</i> originate with the most important teachers of Halachah. The greatest Halachists were the greatest Aggadists, and the Aggadah of the Aggadists has also come down to us only because of the Halachists.
  However paradoxical it may sound, the difference between Aggadah and Halachah cannot be understood by looking at that which distinguishes them.
  Aggadah and Halachah do not appear as separate kinds of Talmudic material. Understood in this way, only Halachah would be unambiguous as law, the standard of performance, as well as comprehensive with respect to its intension. But Aggadah cannot be described as report or account, because only a small portion of the non-Halachic material in the Talmud can be called report or account. In no way can the non-Halachic part of the Oral Teachings be adequately characterized as story, fable, fairy tale, fiction, fantasy, and so on. Certainly, the Aggadah contains all of these factors, but its nature is in no way defined in by such terms, nor even approximately determined in its scope. Just as the literary works of the nineteenth century cannot be divided into statute books and novels, with the latter necessarily meaning the non-legal, so it is impossible to systematically divide up the Talmud into its various constituent parts of Halachah and Aggadah.
  Only if that which unifies is perceived can one understand the significance and also the correctness of the classification into Halachah and Aggadah. That Halachah and Aggadah really belong together can best be seen where they first appear, that is, in the Bible. In the Bible itself we find Halachic material as a binding standard of performance and valid law, and Aggadic material in the form of accounts and reports. What unites the Halachah and Aggadah of the Bible is the Torah — the “Teachings.” The report is not an end in itself, for the Bible is not a novel; nor is the law the goal, because the Bible is not just a code of law. The Bible is Torah, and both Aggadah and Halachah point beyond themselves — to the Teachings. They lead to the Teachings. Halachah is not the ultimate end, but a means of education for the Teachings, and the same applies to Aggadah as well: they only differ in method.
  This can best be grasped by not simply explaining the two words from their grammatical roots, but by going back to the substantive contexts in which they originated. It is quite impossible to explain the two concepts in purely “grammatical” terms. To derive Halachah = law from <i>haloch</i> = to go, because people “are to walk according to the law” is itself a bit of Aggadah — homiletics. Life — reality — does not put concepts together in this way. Halachah comes, not from “haloch,” but from a verse in the Bible which is frequently repeated in a number of variations and which always contains a reference to the “way of the Eternal” or the “path which the Eternal One, Your God, has commanded you” (Deut. 5:30) and along which every individual “should go.” The law is called Halachah in respect of this concrete “path” and this “going” which is indeed required by the Teachings. Nor should Aggadah or Haggadah be “grammatically” derived from <i>hagged</i> = to recount, but rather philosophically from such Biblical expressions as: “ve-higadeta le-vincha bayom hahu — and you shall tell your son on that day” (Exodus 13:8) or: “Sha’al avicha ve-yagedcha — ask your father and he will tell you” (Deut. 32:7). In both instances “Haggadah” means “communication, narration,” not fiction, legend, fantasy, and so on. The “share-it-with-your-child” does not impose the duty on the father of telling his child “stories” on Passover Eve, but <i>history</i> (as <i>his</i> story). The child is to be taught about the historical connections and interrelations which led to the commandment of Pesach, to the Halachah of Pesach. And what Aggadah does the other quotation refer to? One can take the Bible and read (Deut. 32:6): “Is He not your father, your creator, he who made you and established you? Regard the days of ages-past, understand the years of generation and generation ago; ask your father, he will tell you, your elders, they will declare it to you!” Clearly what is meant is the historically experienced confirmation of the Halachah — “He is Your father…,” or in other words: the historically experienced truth of the mandatory and binding entity — Judaism, the confirmation, experienced by the generations of Jewish history, of the entire Halachah, of the “path which your God has commanded you to go along.”
  Only if we start here can we determine the nature of the Haggadah and its relationship to the Halachah. The Aggadah is the life experience of the generations, turned into worldly wisdom and practical philosophy: it is the wisdom of the times, the “father’s communication to the child,” the Teachings which have <i>come about</i> for man in the course of his life; in contrast, Halachah is the Teachings <i>given</i> to man, “God’s communication to man.” The Aggadah is like “teachings from below,” it comes about in the course of time; Halachah — the “teachings from above” — is for eternity. However, both mean the same — the Torah; Halachah requires it, Aggadah leads to it. Halachah commands, Aggadah teaches. Halachah lays down outward behavior, Aggadah creates an inward willingness. What does Halachah mean without Aggadah? – Only established outward behavior without inward willingness, in other words — drill. What is Aggadah without Halachah? – An inward willingness without any outward resoluteness, in other words something impossible, or if it is passed off as possible — mere words, a fallacy.
  Aggadah leads to Halachah and Halachah presupposes Aggadah.
  This, and concomitantly the internal relationship between Aggadah and Halachah, can be expounded as follows: Aggadah, as the “wisdom of the times,” which proceeds from people, is subjective; Halachah, given by God, is objective, it holds true. Because Aggadah is subjective, it cannot constitute a valid standard of performance. It is not binding, and nevertheless in a certain sense it is “valid” and holds true. As the wisdom of the times it is valid in time as a subjective knowledge of the truth for the subject. It always holds true in some sense in the “now.” The Aggadah is always subjective Halachah.
  However, every subjective experience of the world strives for truth, that is, for objectivity, for general validity. The wisdom of the times strives for eternity, Aggadah for Halachah. As Aggadah, developing and completing itself, draws closer to the truth, it sheds more and more of its initial subjectivity, it objectivizes itself, thereby gradually becoming Halachah, so that we can say: Halachah is objectivized Aggadah. As soon as Aggadah reaches its acme, it must be possible to turn it into Halachah. Halachah constitutes the highest stage, the ultimate consequence of Aggadah.
  This close relationship between Aggadah and Halachah can be illustrated by means of a number of examples.
  a) Genesis, Chapter 18, recounts the story of how Avraham fed the “three men.” This is an <i>aggadah</i>, a statement from the lives of the Fathers, an episode reflecting a particular lifestyle of the Fathers, placing nobody under an obligation, not “applicable” to anyone, but nevertheless molding and “teaching” everyone. For Avraham himself, feeding the men was not an <i>aggadah</i>: for him, it was an obligation, a precept, an inner law. We see before us the typical example of an <i>aggadah</i> which is subjective Halachah. It applied to Avraham, but it did not have to be binding on his son Isaac. This <i>aggadah</i> of “hospitality” developed further, and an important part of its continuation is to be found in the Talmud tractate of Kiddushin (32b). There it states:
  .”…It once happened that Rabbi Eliezer and Rabbi Yehoshua and Rabbi Zadok were at the wedding feast of the son of Rabbi Gamliel, and R. Gamliel stood over them and served drinks. He handed a cup to R. Eliezer, but he would not take it; then he offered it to R. Yehoshua, who did take it. R. Eliezer said to him, “How can we allow this, Joshua? We are seated while Gamliel Berabbi is standing over us and serving us drinks!” R. Yehoshua replied: “In Scripture we find one even greater than he who served others. Abraham was greater than him, and he served others. Abraham was the greatest man of his generation, yet of him it is written, ‘And he stood over them’ (Gen. 18:8) …Why should not R. Gamliel stand over us and serve us drinks?”
  The Aggadah of hospitality is nearing its completion; it already “applies” to others. Thousands of years after Avraham it becomes a commandment for Rabban Gamliel. The insight is gradually accepted: <i>this </i>is the way to entertain one’s guests. This is recognized by Rabbi Yehoshua, who would act precisely the same way in the given circumstances. But then the text continues:
  “Now R. Zadok spoke up: “How long will you disregard the honor due to God and concern yourself with the honor due to human beings. The Holy One, blessed be He, causes winds to blow, clouds to rise, rain to fall, and the earth to sprout, and before each and every one of us He sets a table, and why should not Gamliel Berabbi stand and serve us drinks?”
  We see how the Aggadah is removed from the subject, from Abraham, and there is an advancing towards the nub of the matter, the truth. The Aggadah objectivizes itself, and it is entirely possible that one day it will become the Halachah: A person entertaining guests is always obliged to serve them himself. This would then be the Halachah, which is nothing other than Aggadah objectivized.
  b) Another example:
  God speaks to Cain: “The bloods of your brother cry out to Me” (Gen. 4:10, literally translated). The Sages comment on this: “It does not say: the blood of your brother, but ‘the bloods’ — his blood and the blood of his descendants… This teaches you that every individual who destroys a human life will have his action adjudged as if he had destroyed an entire world.” This too is an <i>aggadah</i> — but one of the most sophisticated <i>aggadot</i>, an Aggadic high point. And now the source itself must be looked up. It is to be found in Sanhedrin (37a): “How are the witnesses in a capital case threatened? They are led in and threatened (by the following words): Perhaps you are saying this as conjecture, or as hearsay, or (you know it) from the mouth of other witnesses … or perhaps you do not know that we will later subject you to investigation and questioning. You should know that in capital cases things are different from financial cases; in financial cases compensation can be made and expiation achieved, whereas in capital cases the blood (of the person who is executed) and the blood of his (possible) descendants adhere until the end of the world; for this too is how we find things with Cain, who slew his brother, as it says: ‘The bloods of your brother cry out…’, it does not say: the blood of your brother, but: the bloods of your brother, his blood and the blood of his (possible) descendants.”
  The Aggadah therefore applies here — it must apply to everyone, hence to the witnesses too; it has objectivized itself and its consequence is Halachah. All the Halachic differences between “dinei mamanot” (laws governing monetary matters or civil law) and “dinei nefashot” (laws governing capital cases or criminal law) are the result of this <i>aggadah</i> about the importance of a single human life.
  True, Biblical-Talmudic Halachah differs from every other “Halachah” inasmuch as it did not become philosophical. Rather, through the Revelation on Sinai God emanated as compatible with Aggadah. By “giving” us the Torah, God anticipated the final consequences of Aggadah. While we perform and fulfill the Teachings through the “given Halachah,” we endeavor in the developing Aggadah to understand those teachings in their entirety, and thus to accept that which is “given.” As long as it is not accepted, it is the “law” ordained externally. Once we have accepted it, it becomes the set of internal laws which regulate our life. Halachah without Aggadah is the route of march; it is only through Aggadah that Halachah becomes the path of life.
  
  3 The psychological structure of the Oral Teachings
  
  <i>3. The psychological structure of the Oral Teachings</i>
  We have already discussed the basic outline of a systematic for the extensive material of the Oral Teachings (see Section III, 1). It comprises the “six Orders,” Shishah S'darim, or from the Hebrew abbreviation — <i>Shas</i>. Every order is divided into individual tractates or <i>masechot</i>, which like the Orders themselves are named after the “cases” with which they predominantly deal with, for example “B'rachot — Benedictions,” “Shabbat,” “Gittin — Bills of Divorcement,” and so on. Each tractate is divided into chapters or <i>p’rakim</i> which, like the weekly portions of the Bible, instead of having a title are always called by their initial words. The chapters are then further divided into subsections, each introduced by individual sentences of the Teachings, the Mishna.
  This structure was probably never viewed by the authors of the Talmud as a special task; nor can it be viewed as the result of a special systematizing achievement. Rather, it results automatically from the diversity of the material and is often even determined by its scope. Thus one tractate was, for example, divided up into three independent tractates simply because it was exceptionally long. It can be considered the external scheme which relates to the actual systematic of the Talmud in the same way that a factory building relates to the inner organization of the business. It is the framework, not the centerpiece, of the systematizing operation. Besides the external structure, attention must primarily be focused on the inner structure.
  In the traditional literature, the Talmud is often referred to as “yam ha-Talmud” — the Talmudic sea, and in order to cope with this sea one must attain some understanding of swimming. To the lay person, the internal structure of the material must appear “unsystematic.” In fact, a great deal of diligence and effort is required in order to be able to hack even the narrowest path through this jungle of intertwining problems, thoughts, questions, reports, and so on. The division into Orders, tractates, and chapters has not in fact been made in any consistent fashion. Every Order frequently contains a repetition of the many varied topics of the other Orders. No tractate deals solely with those questions which belong to its principal main topic. An explanation about criminal law may be interrupted, for example, by a disposition concerning the rules on sacrifices or a provision about social taxes. A legal question can often be answered by citing decisions on purely religious issues and vice versa. In one and the same section the most varied topics alternate with each other or are even dealt with jointly. As a result, nowhere is there a clear-cut separation; every tractate and every section reflects the diversity of the whole. In schools of Talmud, typically a certain tractate is known as the “little Shas” — the “six Orders in miniature” — because of the diversity of its content.
  Anyone who has had but one opportunity to observe how the chain of reasoning develops when elucidating an individual question in the Talmud, anyone who has experienced, just once, the unerring sagacity with which a discussion in the Talmud is conducted, the rigorous, almost inexorable systematic with which an individual topic is constructed, will be amazed by the “jumble” that can often be found on just two pages of Talmud. He would guess perhaps that this “confusion” cannot be explained by a chance lack of systematic structuring. Such a lack of order and clarity of structure among the authors of the Talmud could not have come about accidentally. In reality, this apparent confusion is simply the disappointment of readers who expect a very specific systematic, which is just not present in the Talmud. What looks to the beginner and layman like “muddle” is the necessary inner structure of the Talmudic material — an inspired systematizing work of the most unique nature, as matchless as the Talmud itself. Any other arrangement would not only have failed to achieve its purpose, but would have changed the very nature of the Talmud.
  The Talmud is a body of teachings; by their very nature, teachings are characterized by uniformity. The same will, the same intention must permeate all its parts. It is the same knowledge, namely the truth, that achieves its fitting and consistent expression in the most diverse walks of life. The subject matter may change, but the inner substance must remain the same. What applies to one point must apply to all points. In other words: that which is the truth for ritual legislation must also be the truth for criminal law, matrimonial law, or the rules for the Sabbath. At the very least there must be no contradictions in the entire body of the Teachings. This means that the nature of the “teachings” resists any systematization based on the diversity of the “themes.”
  Imagine that the sciences had achieved perfection and had all managed to arrive at the absolute truth: then any division into “faculties” would only be possible on an external level. Whatever holds true for philosophy would also have to hold true for medicine; and the truth of the natural sciences could not conflict with its legal counterpart. It would be entirely possible for a mathematical problem to be examined through a knowledge of poetics. There would be no “experts,” because every individual interested in understanding the nature of this “absolute truth” would have to study all its forms of expression. (As everybody knows, at the time of writing as the development of modern scientific research proceeds apace, the limits between faculties are gradually becoming blurred.) The “faculties” would be the model for the literary portrayal of the scientific results; the actual elucidating scientific work would, of course, not be able to comply with this model.
  The Talmud as teachings, whose very essence comprises “unity,” does not recognize any faculties. The Talmudist does not specialize in a particular “subject” — nor would this be possible, since every subject comprises all subjects. The division into the six Orders is only possible in literary terms, and only where the results of the Teachings are summarized, in other words in the Mishna (see Chapter IV), but not where they are elucidated — in the Gemara. The division into the six Orders does not apply to the “discussion.” What matters is not the diversity of the “material”; the subject matter includes everything to which the same principle applies. Thus it is possible for a legal question to be decided by a provision about “seeds,” and vice versa. As long as the Teachings are “in motion” and have not crystallized into rules, what applies is the inner systematic of the principles which may take the external form of the most diverse “topics.” This does not hold true for the external systematic of the material.
  The subject matter of the Talmud is always determined by a content which relates to principle, not to subject matter.
  It must, however, be said that this applies only to the individual topics. The Teachings as a whole had to be subject to a different systematic, as determined by their oral character. For centuries the Talmud was taught and transmitted orally. There is even a requirement that the Written Teachings must not be presented from memory, nor the Oral Teachings written down. (In this chapter we shall refrain from any speculation as to the reason for this rule. We refer the reader to what is said about the oral factor in Section I.1 on “Bible and Talmud”. Pursuant to this, it is strictly forbidden to write down the Oral Teachings, because that which is written down can itself only be read correctly as a result of additional oral teachings.) As a result, the Teachings were in serious danger of being condemned to oblivion. What had to be done was to systematize the content so as to protect it against this danger as much as possible. It therefore became necessary to arrange all the material according to mnemonic rules in order to make it easier to remember. In such a mnemonic-based systematic, “logical coherence” does not always matter. The chance juxtaposition of the most diverse topics, whether described jointly or consecutively, is sufficient if such juxtaposition makes it easier for the memory to “retain” them. In addition to the rigorously logical systematic of the individual topic, the Talmud is also characterized by the psychological systematic of the subject matter in its entirety.
  One of the most important rules followed by the “psychological systematic” is that of association. It may be intellectual, or based on a chronological factor, such as the well-known “on that day” on which a number of different controversial questions were decided, which from then on are always taught together. Often it is the space, the “same” location which forms the basis of the association. Decisions which are independent of each other in terms of content, but which were made at a particular location, are taught as a “package” and thereby protected against the danger of becoming forgotten. A name may also determine associative juxtaposition. If, for example, in the course of dealing with a topic, reference is made to a scholar’s relevant statement, the Talmud may continue along the following lines: “and the person concerned said further…” when an entirely different question is involved. It is nevertheless referred to in order to draw the memory’s attention to the association provided in the name of the “same” author.
  The frequent repetitions in the Talmud also hark back to the oral character of the Teachings. If, for example, a question — already decided on — has certain consequences for a problem in another tractate or even just another chapter, then the decision and often the accompanying discussion, already concluded, must be repeated. In the Oral Teachings it is not possible to say “see page such and such.” Only the written word can refer to itself: spoken words must be repeated.
  It is not possible here to give a detailed account of the inner structure of the Talmud. To sum up, all we can establish is that the Talmud is the spoken word, and hence must not be confused with a “book.” The systematic of the spoken word is quintessentially different from that of the written word. A book must be constructed logically; in contrast, that which is handed down orally can only be arranged in psychological terms, or it will be lost. It is only because we are accustomed to the systematic of “books” that it is so hard for us to identify the psychological systematic of the spoken word in the Talmud.
  Even after the prohibition on writing the material down was breached, and the Talmud was recorded in writing, the form in which this was done was such that it maintained its oral character. Even after being written down, the Talmud did not become a book (see Ch. V). It remained a body of oral teachings. (The extent to which this was always borne in mind is typified by the uniform page numbering of all editions of the Talmud. On any page of any tractate, in all Talmud editions, the same section is to be found. All editions have the same numbering. This is another way of supporting the memory through a visual associative factor, as it were.) The first person to understand this and grasp the consequences was Maimonides. The significance of his Halachic contribution lies, not in his thorough compilation of the rules on individual topics scattered throughout the entire Talmud, but in the fact that he was the first to reorganize the psychological systematic of the Oral Teachings into the logical systematic of the written word. Maimonides’ Mishneh Torah is the first Halachic “book” in the history of the “teachings.”
  
  IV The history of Talmudic development
  
  
  
  IV. THE HISTORY OF TALMUDIC DEVELOPMENT
  The Oral Law we are addressing is divided into Midrash — interpretation (of the Bible), Mishna — repetition of the Teachings, and Gemara — completion or explanation (of the Mishna).
  The Midrash always starts from the Bible: in it, a word, a sentence, or a rule from the Bible is always interpreted. The Mishna is the repetition of the Torah, in such a form that it teaches how the laws of the Torah are to be put into effect. The Gemara always follows the Mishna; it explains and shows its possible applications. The explanation is crucial, because the Mishna, in the form of a code of law, generally contains only the rules, without their supporting grounds. Just as Midrash is explanatory interpretation of the Bible, so Gemara is explanation and interpretation of the Mishna.
  The concluding editor of the six Orders of the Mishna was Rabbi Yehuda Hanasi (c. 200 CE). He examined the entire oral teachings of his time, and removed doubtful customs, repetitions and detailed explanations, thereby investing the traditions summarized in the Mishna with great authority. The material which was removed was, however, also preserved in the form of “<i>Bareita</i>” — that which “was left out” (scattered throughout the Talmud) and in the collection of “<i>Tosefta</i>” or “Additions.”
  While there was only one Mishna, which came into being in Palestine, the Gemara developed in two main versions — in Palestine and in Babylon. In Palestine it was concluded as early as around 300 CE, while in Babylon it continued to develop, only being declared finished in 500 CE after thorough redaction. The Mishna together with the Gemara which came into being in Palestine is called the Jerusalem Talmud, while the same Orders of the Mishna and the concomitant Babylonian branch of the Gemara form the Babylonian Talmud.
  It is obvious that these generally standard particulars, which could be elaborated upon at will, provide not even the sketchiest indication as to the history of how the Talmud developed. This can be seen most clearly from the example of the Midrash. True, we have available to us a number of Midrash collections, which in part have even been ascribed to specific authors; but it is more or less impossible to say anything precise about the age of the Midrash itself. In the view of authoritative scholars, in its origins the Midrash is older than the Mishna. But when did it begin? A date will probably never be given. And when was it concluded? Never. The Midrash is a method, and can never designate a historical period of the Oral Teachings. Everyone who reads the Bible in accordance with Midrashic rules is increasing the Midrashic material. And even the homiletic interpretations of Biblical passages by the most recent rabbis should often, justifiably, be called Midrash. There is no dissimilarity in nature, only a difference in authority.
  A very similar situation applies to Mishna and Gemara. While we also know that Rabbi Yehuda Hanasi concluded the Mishna, it is just as certain that he, no more than any one of his contemporary colleagues, cannot be designated the author of the Mishna. He was the last to edit the available material; but the Mishna is much older than its last editor. It can also be safely assumed that the division into the six Orders does not originate with Rabbi Yehuda Hanasi either.
  The Talmud speaks variously of a Mishna of Rabbi Akiva (around 130 CE), as opposed to a “Mishna Rishonah” (first Mishna). How old is this “First Mishna”? There was certainly a “proto-“ or primary Mishna,” which was significantly older than, for example, the scholars Hillel and Shammai (around 10 BCE). The disputes between the teachers of the Mishna (Tanna’im, singular: Tanna) are, essentially, simply differences of opinion about the explanation and application of a Mishna, which was itself so old that it already needed an explanation. Thus even the oldest teachers of the Mishna are not authors, but interpreters of a proto-Mishna.
  However, this also raises the question of the historical beginnings of the Gemara. It cannot have begun with Rabbi Yehuda Hanasi’s conclusion of the Mishna. Since Gemara is, essentially, the explanation and exploration of the possible applications of a Mishna, the interpretation of the proto-Mishna by the “teachers of the Mishna” is already Gemara. Strictly speaking, the work of Mishna as transmitted to us by Rabbi Yehuda Hanasi consists of a proto-Mishna and a Gemara explaining it. Gemara is already contained in the “Mishna.” It therefore follows that the Midrash is older than the Midrashic collections, the Mishna is older than the teachers of the Mishna, and the “Gemara” — as method — is older than the Gemara.
  However, what follows from all of this is that the various “beginnings” are just as problematic as the “ends.” The Midrash as a method can always be applied afresh — including in our time. The Mishna of Rabbi Yehuda Hanasi already contains Gemara, so that it was concluded “late.” And since, moreover, Gemara is explanation in the broadest sense of the word, it is very hard to grasp how its conclusion could have taken place in structural terms in the year 500 CE. Irrespective of the time in which it originates. every explanation of the Mishna, to the extent that it is logically correct and does not contradict the Teachings, is essentially <i>gemara</i>.
  
  1 The development of the Teachings
  
  <i>1. The development of the Teachings</i>
  In the context of the present work and in light of the current status of scientific Talmud research, we can only briefly touch upon the major lines of development and the forces which lay behind them.
  For us, there is no doubt whatsoever that the history of the Oral Teachings (the Oral Law) began with the reading of the Bible (see Sections I.1 and I.2). Merely reading correctly involves oral teachings, requiring as it does the explanation of the text. No written teachings are possible without their oral counterpart. The written word is inflexible and dead: the only way of bringing it to life is through the spoken form. The written word is never anything other than a “symbol”: it needs an “interpretation.” The spoken word is the outer “form” of a thought, it needs only to be “demonstrated.” The oral teachings are the key to the written form. The need for this key was further accounted for by the legal character of the Teachings. At any time the law can only say <i>what</i> is to apply, but not <i>how </i>it is to apply. The execution of the law is an essential part of the Oral Teachings (see Section I.2).
  Since the Torah wished to be taught and put into effect, it always needed the “oral” supplement. When Moses first read and taught the Bible, the history of the Oral Teachings began. This is the reason why the Sages say: “Moses received the Torah on Mount Sinai and handed it down…” (Avot 1:1) The handing down of the text from master to student involves the teaching of its correct reading — commentary in the broadest sense of the word. Such “transmission” is “Oral Law.” It was in this sense that the Talmud was originally called: “masoret me-ha-Avot” — handing down or transmission from the Fathers. But what the Fathers handed down is “Kabbalah — that which is received” for the children. (Not to be confused with the later meaning of this word, which generally denotes Jewish mysticism.)
  Even if material which is handed down undergoes certain expansions and transformations over the generations, it essentially always refers back to the first person who performed the handing down. In the case of the Oral Teachings and in the language of the Talmud, that is, therefore: Moses. “That which is handed down” always has one author only, and since this person does not need to be named (since, after all, he is known), the result is anonymity. The heart of the Talmud, which is this anonymous transmission of material which has been handed down, can be called the proto-Talmud, and today can still be completely separated out from the Talmud as a whole.
  In the proto-Talmud there are no differences of opinion, no arguments between scholars — only tradition unified. At first no difference of opinion could occur over the “tradition.” The proto-Talmud was not only handed down in the houses of learning. Since Torah was to be turned into a reality, it was also handed down in the daily life of the people. In all cases of doubt, therefore, it was possible for the accepted practice of legal implementation to be consulted about the correct tradition. In other words: at its outset, the tradition was unambiguous and clear, since it was accompanied by a practical experience which remained constant.
  Today, it is no longer possible to determine how the proto-Talmud is to be chronologically delimited. It is not possible to gauge a development from it; everything in it is of the same age. Indeed, the “tradition” has no instant of development — it does not come into being, it is there.
  But what puts the tradition, initially quiescent, into motion? How does a development of the Teachings come about? It occurs through two facts: through the eternal transformation of life, and through the major catastrophes of Jewish history. The transformation of life brings about new conditions of life; new questions are asked to which there are no answers that have been “handed down.” The first level of the “handing down” covers only those conditions of life to which the Bible itself refers specifically. The answers and decisions in a changed time must be deduced from all the Teachings available in their entirety, from the Bible and the proto-Mishna. A broadening of the “teachings” occurs.
  A similar expansion of the Teachings can also be caused by major national catastrophes, as a result of which what was initially a constant and unequivocal tradition breaks off at a certain point. As a result of wars, famine, exile — the destruction of the normal basis for the nation’s life — there occurs a shattering in the continuity of putting the law into effect and the handing down of the Teachings. As a result of such fissures in the chain of transmission from teacher to students, father to son, the people forget. On many points, the tradition loses something of its unambiguity. It is not possible to examine the accepted practice of law, since this was itself convulsed in the general chaos and partially lost. That which was forgotten must therefore be reconstructed from the Teachings still in existence.
  In both cases — whether the changes in the foundations of the nation’s existence lead to a narrowing of the tradition, or whether its destruction causes a breaking off of the tradition — the same task exists: to deduce the unknown (or that which has been forgotten) from that which is known (or not forgotten). This task can only be carried out by logical and scientific thought. Thus Kabbalah, the “transmitted” Oral Teachings, is accompanied by the second basic force of <i>s’vara</i> (opinion, common sense), the “deduced” Oral Teachings. As <i>s’vara</i> finds its way into the area of the Teachings, the history of the development of the Teachings begins. This is also the origin of the “differences of opinion.” Many people can have many “opinions” about the same topic. In this context, admittedly, one can hardly talk about a development in the conventional sense of the word. <i>S'vara</i> is not allowed to contradict a Kabbalah (see Section II, 3). There must be no conflict between the handed-down and the deduced teachings. That which is deduced is contained in that which is handed down. The <i>s’vara</i> does not supersede the Kabbalah: it can only supplement it. The Teachings develop. The driving force behind this development is the <i>s’vara. </i>As soon as the Kabbalah no longer satisfied the demands of ever-changing life, <i>s’vara</i> got to work in order to include that which is fundamental in the Teachings and thus be able to apply it in all of life’s situations. The postulate of the immutability of the Teachings contradicts the concept of a development. It is, however, immaterial whether as an outsider one accepts this postulate or not. It was a prerequisite of the Oral Teachings, whose method and nature were determined by this postulate. Pursuant to the assumption of the eternal validity of the Teachings, every <i>s’vara</i> which contradicted a tradition had to contain a logical mistake; because the task of the <i>s’vara</i> was simply to use logical necessity to deduce the consequences of the Teachings.
  The Kabbalah as the unequivocally transmitted intention of the law-maker supplements the Bible in an authoritative fashion. It is valid and cannot be contradicted, and tradition constitutes its sole grounds. This is how it is, because of the way it has been handed down in this fashion. In contrast, the <i>s’vara</i> expounds all of the Bible’s immanent content with logical necessity. It applies only when it is not contradicted, and can become law if it is logically compelling. Consequently, it cannot assert as does the Kabbalah; it must prove. “This is how it is” — is not adequate, the reason “why” must also be stated. This is the reason for the frequent expression in the Talmud: “If it is a Kabbalah, we are prepared to accept it; but if it is a <i>s’vara</i>, there is a response to it.”
  The Kabbalah, which chronologically follows on immediately from the Bible, the unambiguous and clear authoritative tradition, should be considered the original form of the Mishna. It is the proto-Mishna, it being irrelevant to the nature of this identity when the term “Mishna” first emerged. Both sources — Torah and proto-Mishna — were available to the <i>s’vara</i>, which at a later time had the task of developing the Teachings. As it began the explanatory interpretation of the Torah while performing this task, the Midrash came into being, and inasmuch as the <i>s’vara, </i>devoting itself to the same task, started from the proto-Mishna, the Gemara came into being. Since the Midrash and the Gemara have the same origin (the <i>s’vara</i>), it is obvious that they do not “fundamentally” differ from each other. The Midrash explains and interprets — the Bible; the Gemara also explains and interprets — the proto-Mishna. The difference between them is stylistic in nature, following the difference in style between the Bible and the proto-Mishna.
  Admittedly, nothing definite can be said about the age of the applied <i>s’vara</i>, the Midrash, and the Gemara. Since the need for the <i>s’vara</i> to find its way into the Teachings originated in the constant change in the circumstances of the nation’s life, here too — as everywhere involving organically caused lines of development — no “beginning” can be traced. Only retrospectively can it be ascertained: it came into being. But on the basis of the connection between applied <i>s’vara</i> and the change in the foundations of the people’s existence (as a result of development or catastrophes), the expository rule may be established: The most important turning points in Jewish history must also be turning points in the history of the Oral Teachings. Those epochs in the political history of Jewry, which are characterized for example by the headings: 1. Destruction of the First Temple and return from Babylon; 2. The Maccabees and the degeneration of the Hasmonean dynasty; 3. The destruction of the Second Temple; 4. The Bar Kochba uprising and the subsequent persecutions, correspond in the history of ideas to the names: 1. Ezra; 2. Hillel; 3. Rabbi Yochanan Ben Zakkai; 4. Rabbi Akiva and the generation of his students (Rabbi Meir et al.) up to Rabbi Yehuda Hanasi. The Babylonian exile and the harsh persecutions of the Pharisees in the time that the Hasmonean dynasty was gradually degenerating were principally major periods of oblivion. Ezra and Hillel in the main reconstructed the Teachings.
  When the actual Diaspora — life without home and Temple – began, following Rome’s destruction of the Jewish State (70 CE), it was Rabbi Yochanan Ben Zakkai who applied the eternal teachings to the completely new circumstances of the nation’s life; not adapting the Teachings to the circumstances, but shaping life itself by deriving the consequences from the Teachings. The epoch which began with Rabbi Akiva (around 100 CE) and ended with Rabbi Yehuda Hanasi was of completely different importance. The great masters of this epoch also played a part in the further development of the Teachings; but their historical task involved something else. Since Trajan’s cruel persecutions, which also triggered the Jews’ desperate and heroic war against Rome under Bar Kochba’s leadership, the Jewish center in Palestine had been in permanent decline. The danger of oblivion was greater than ever before. Also to be feared was the disappearance of all sources of scholastic authority, until then upheld by the chain of the living tradition, only rarely broken, and when broken soon re-established. Two things therefore had to happen:
  1) the compiling of the Oral Teachings, their delimitation and arrangement in accordance with a uniform system which would be accepted in all schools. Previously there were multiple arrangements, each master teaching according to his own method. In this way, by using a uniform teaching method, the danger of oblivion would be averted. (Today, the issue of whether the prohibition on writing the material down was already breached during time, is still a subject of controversy among scholars.)
  2) But then it was necessary to safeguard the endangered scholastic authority. This was dealt with by carrying out a rigorous critical sifting and examination which accompanied the compilation and ordering of the Teachings, thereby separating the chaff from the wheat. In this way, the personal scholastic authority of the masters was transferred to the Teachings themselves, which thus became their objective authority of the Teachings. The compilation, in the definitive redaction of Rabbi Yehuda Hanasi and generally called Mishna, does not constitute a pedagogical unit which came about through evolution. After all, it consists of the transmitted proto-Mishna and the concomitant proto-Gemara of the “teachers of the Mishna,” beginning at the very latest with Hillel and Shammai. It is rather a unit of authority. The conclusion of the Mishna is not a boundary point in terms of evolution, but a break in authority striven for with a particular objective in mind. After the conclusion of the Mishna, there could be no more contradictions between it and later pedagogical developments. As a result, the overall Mishna definitely acquired the significance of a Kabbalah. For the coming generations the disagreement between Hillel and Shammai about the explanation of a proto-Mishna constituted authoritative tradition requiring an “either — or” decision. A third possible explanation was excluded from the outset as non-authoritative, just as the proto-Mishna had itself once been for these scholars.
  This is the essence of the problem of the “conclusions” which we raised by way of introduction. In the Teachings, there are no conclusions whatsoever which have come about organically. The possibility of perpetual development has its roots in the nature of the perpetuity of the Teachings, just as the never-ending changeability of life determines the necessity of perpetual development. And even the view of the latest contemporary Talmudist may also be considered the Talmud, just like the view of the oldest representatives of the tradition, provided it has been proved by the Teachings as a whole. The difference is based only on a difference of authority. Even after the “conclusion” of the Mishna around 200 CE, the Teachings continued to develop in the actual Gemara — in both Babylon and Palestine — just as they had in the time of the teachers of the Mishna and in earlier times. Just as the Tanna’im once explained the proto-Mishna and explored its possible applications, so in the centuries from 200 to 300 CE in Palestine and from 200 to 500 in Babylon the masters, who now called themselves Amora’im, that is, spokesmen or interpreters, explained and explored the proto-Mishna as expanded by their predecessors’ <i>s’vara</i>. The relationship between teachers of the Mishna and proto-Mishna is the same as between Amora’im and Mishna. Similarly, the “conclusion” of the Gemara (by Rav Ashi in Babylon), just like that of the Mishna, is also not an end point to a process of organic development, but rather a break in authority brought about by the abnormal circumstances of the nation’s existence. As was the case in the Mishna of the <i>s’vara</i> of the teachers of the Mishna, so in the Gemara the <i>s’vara</i> of the interpreters of the Mishna became Kabbalah for future generations, and the resulting Halachah authoritatively determined the further unfolding of the Teachings.
  We therefore distinguish between various layers of tradition: the Bible and that which was originally handed down, or proto-Mishna; the <i>s’vara</i>, which became Kabbalah, of the teachers of the Mishna; and in addition the <i>s’vara</i> of the Amora’im, which became Kabbalah, or the real Gemara. The law that applies here is: increasing distance in time from the original epoch in which the Torah and the proto-Mishna were handed down means a reduced degree of authority. Why? Because this is not about the development of something new, but the unfolding of something ancient, everlasting, the Torah. The closer one lives to the sources of the teaching, the more reliably will the <i>s’vara</i> meet the intention of the law-maker as the Teachings unfold. This is the reason why the teachers of the Mishna must not conflict with the proto-Mishna, the Amora’im must not conflict with the Tanna’im, and the generations following the conclusion of the Gemara must not conflict with the Amora’im.
  In this way the sequence of tradition and authority could continue to our times; for the Teachings are everlasting, they flow forever through the millennia, accompanying the people on all its paths through all the countries of its tragic destinies. It cannot be concluded, and it will only be brought to an end if the Teachings themselves are brought to an end. The “conclusions” of Mishna, Gemara, Maimonides, Shulchan Aruch and so on simply mean the channeling, caused by the historical terrain, of this powerful river, so that — despite the anomaly of Jewish history — it remains aligned with the fountainhead of its beginnings.
  
  2 The Commentaries
  
  <i>2. The Commentaries</i>
  The claim to authority, which is enjoyed by individual epochs to varying degrees, means that the Jewish scholar of all times has the same task: to write a commentary on the authoritative tradition. Hence the developmental history of the Oral Teachings can be defined as a history of commentaries. The proto-Mishna comments on the Bible, the Mishna of the Tanna’im is a commentary on the proto-Mishna, just as the Gemara itself explains the Mishna, and so on. It is in this constant commenting by all generations, a commenting which ultimately seeks only to explain the Bible, that the Teachings unfold. This is made possible by two factors: firstly, that each generation provides its commentary from a different basis to its life; and secondly, the very real and unfathomable profundity of the Teachings. The interaction of these two factors means that every generation can become aware of a new statement by the Teachings, which is nevertheless the age-old eternal word.
  The full significance of the Teachings can only be “lifted” layer by layer. For each generation there is a particular layer which could not be uncovered previously, because it was not even visible until it could be seen from a very specific situation of life. The ever-changing spirit of the times draws people’s attention to new correlations, and the equally ever-changing basis of man’s life constantly creates new angles of observation which constantly make visible new depths of the Teachings. An individual can often experience the way in which words of the Bible, familiar from earliest childhood, appear in a new light at a certain moment, acquiring richer meanings. In this way a new layer of meaning is opened up, but only because this person has changed as life has brought about greater maturity, or as a result of some deeply felt experience, and therefore reads the Teachings from a different perspective. But when this happens, there will always be the feeling that what is new is really not new at all, but rather the only correct meaning of the ancient word. This feeling is the sole criterion for the new, in reality being nothing other than a layer of meaning contained in the eternal word of the Teachings since the beginning of time. No commenting can take the unfolding of the Teachings further unless the commentator can be convinced: that all of this was transmitted to Moses on Mount Sinai. The only decisive factor in this is that God also revealed this special layer of meaning in the “word.” The fact that this has only become comprehensible at a certain time makes no difference at all to its nature as revelation.
  “Turn it and turn it again, for everything is in it” (Hagiga 15b) is the meaning of this uninterrupted activity of commenting. Every commentary should be a new “turn” or change, which reveals new “content” of the Teachings. God has put “everything” into the Teachings; it is up to us to lift everything out of them again; which is why the activity of commenting is a creative feat, again and again revealing new truths to us.
  Hence, if the activity of Talmud scholars since the conclusion of the Talmud has amounted to nothing more than commentary, this represents nothing fundamentally new. The break in authority around 500 CE expanded the “tradition,” enlarging the material to be commented on; but the nature of the commenting remained the same. As always in the history of the Teachings, the same questions have been asked since the conclusion of the Talmud: What does the text mean? What do the Teachings require? — And as always in the history of the Teachings, since 500 CE as well, new factors and correlations are revealed as these questions are posed afresh, on the basis of a hitherto unprecedented form of human existence. Which is why in our days too, commenting still means the creative unfolding of the Teachings.
  The question as to the meaning of the text is answered by those commentaries which basically relate directly to the text, that is, the explanation of Rabbi Shlomo Yitzhaki, (known as Rashi), the most important Talmud commentator and translator of all times, without whose work it would for centuries have been impossible to read the Talmud. Rashi’s commentary was supplemented by “additions” (<i>tosafot</i>), primarily by his students. There are various bodies of writings which try to elucidate the ever-topical requirements of the Teachings:
  1. The extensive body of responsa literature, belonging to the oldest post-Talmudic literary genre of the Oral Teachings, which deals predominantly with the ever-recurring “new cases,” growing more voluminous from generation to generation and making an overall view practically impossible today;
  2. Those works which summarize the Halachic (that is, normative) result of the Talmud and responsa literature, such as the “Rif” by Rabbi Yitzhak Alfasi, Maimonides’ <i>Mishneh Torah</i>, and Rabbi Yosef Caro’s <i>Shulchan Aruch</i>.
  The process of “commenting” is never over. Questions are always being asked afresh about the meaning of the text and the obligations imposed by the Teachings in the “present,” because the present is always something new, and answers must be given from scratch, again and again. In this way, they also lead to new breaks in authority. “Discussion” goes on between two such breaks, each of which covers an epoch; between two epochs, each of which is separated from the other by a break in authority, the discussion turns into “commentary.” Thus commentary follows commentary: but everything focuses on the same eternal core — the Torah. Thus in the course time revelation is “revealed” to us by the “commenting.”
  
  3 Authorities for the development of the Teachings
  
  <i>3. Authorities for the development of the Teachings</i><i>This section provides a few characteristic examples of texts of the Midrash, the Mishna and the Gemara. A more extensive collection of examples expressing fundamental principles of Jewish social ethics are found in Chapter VII, published here for the first time (see Editor’s Introduction). Presumably the examples included in the present chapter as a compromise when it was decided that Chapter VII would not be included in the 1935 publication. (a.b.)</i>
  a) Halachic and Aggadic Midrash
  “If you lend money to my people, the poor man in your midst, do not act towards him as a creditor; do not charge him any interest.” (Exod. 22:24)
  On this Biblical verse, the Halachic Midrash Mechilta (Exodus 22:24, Section 19) comments:
  “If you lend money to my people” — Rabbi Yishmael says: Every “if” in the Torah (means) something of a voluntary nature apart from this …, so here you must say: “If you … lend money” (means) a duty (you should lend money to the poor man). You say: “Duty, perhaps not so, but: Voluntary nature? — If it says (Deut. 15:8): “You shall surely lend him,” from this it may be gathered for our passage: Duty, not voluntary nature.
  In contrast, the Aggadic Midrash Rabba (Exod. Ch. 31) reads:
  “If you lend money to my people.” In connection with Ecclesiastes (Kohelet 5:12): “There is a grievous evil which I have seen under the sun: riches kept by the owner thereof to his hurt; and those riches perish by evil adventure.” Happy is he who resists temptation, there is no creature whom God does not try. He tries the poor man to see whether he can accept suffering without grumbling, as it says: “May pursued misery lead to your house.” (Ps. 58:7) If the rich man is steadfast in his trial and is charitable, see how he enjoys his money in this world, and the credit shall stand him in good stead in the next world, and the Lord shall save him from trial in hell, as it says (Psalms 41:2): “Happy is he who considers the poor; the Lord will deliver him in the day of evil.” If the poor man endures in his time of trial and does not act willfully, he will receive twice as much in the next world, as it says (Psalms 18:28): “For you shall help the poor.” From whom can you learn this? From Job, who had to suffer in this world, but God rewarded him doubly for it, as the text says (Job 42:10): “And the Lord gave Job twice as much as he had before.” But the rich man who has evil intent — he and his money will vanish from this world, as it is said (Ecclesiastes 5:13): “For those riches perish by evil adventure,” if he looked with evil intent at those who receive alms…
  b) Mishna
  The schools of Hillel and Shammai, the first generation of teachers of the Mishna, explain a concept of the proto-Mishna in the style of the Gemara in the Mishna:Mishna (Proto-Mishna): Everyone is required to appear (in the Temple in Jerusalem for the three annual pilgrim festivals) with the exception of a deaf person, an imbecile, a minor… Gemara in the Mishna: Who is a minor (for this purpose)? Every (child) who, mounted on his father’s shoulder, cannot go up from Jerusalem to the Temple Mount — says the school of Shammai; the school of Hillel says, who cannot hold his father’s hand and go up from Jerusalem to the Temple Mount… (Hagigah 1:1)
  Mishna (Proto-Mishna): Nobody should fail to reproduce, unless he has children; (“Gemara” in the Mishna on: “he has children”:) The school of Shammai says, two male children, and the school of Hillel says, one male and one female, for it says (Genesis 5:2): “male and female created He them.” (Yevamot 6:6)
  Mishna: (In the explanation of the “order” of the reading of the Haggadah on Pesach, it says that the words are to be said in the specific context:) … let us say to Him: “Praise God” (the beginning of the songs of praise from Psalms 113-118). On this the “Gemara” in the Mishna: How far is one to read? The school of Shammai says, up to “Makes the mother of the children rejoice” (end of Psalm 113); the school of Hillel says, up to “The flint into a fountain of waters” (end of Psalm 114). Then the proto-Mishna continues: And finishing with the redemption. “Gemara” following on from there: Rabbi Tarfon says: “Who has redeemed us and our forefathers from Egypt,” with no further concluding word-form (as is otherwise customary in blessings). Rabbi Akiva says: “May the Lord, our God and the God of our fathers, cause us to reach in peace other holydays and festivals coming to us; rejoicing over the building of Your city, rejoicing in Your service…” up to “Praise be to You, o Lord, who has redeemed Israel.” Pesachim 10:5
  c) Gemara<i>The texts of the classic tractates of the Talmud appear without punctuation, except at the ends of sections. These are marked by a semicolon. Because of the lack of punctuation the novice will find it difficult, if not impossible, to follow the logic of the Talmudic discussions presented. Only a student experienced in the study of the Talmud would be able to fathom the flow of the logic of the discussion. In the following example (from Tractate Ketubot), which includes a Mishna and a section of the ensuing discussion in the Gemara, the text is first presented in a literal translation of the Hebrew and Aramaic, and is followed by an interpreted translation, as an experienced student would understand it. The reader will see that the literal text is almost impossible to absorb intelligently, while the interpretation is quite clear. (a.b.)</i>
  a) Literal translation:
  Mishna. If defects on her and she still in her father’s house the father must provide proof that she became betrothed these defects were in her and his field is flooded if she has entered the sphere of the husband the husband must bring proof that these defects were in her before she became betrothed and his purchase was an erroneous purchase the words of R. Meir and the Sages say how words were said for defects which hidden away but for defects in the open he cannot object and if there is a bathhouse in each town he cannot object anything even for defects which hidden away because he has her scrutinized by his relatives.
  Gemara. Reason is because the father produces the proof if the father does not produce the proof the husband is believed who R. Yehoshua is he who said this we do not live from her mouth we say the conclusion is she has entered the sphere of the husband the husband must produce the proof reason is because the husband produces the proof if the husband does not produce the proof the father is believed this comes according to R. Gamliel who said she is believed said R. Elazar if who taught this collapsed taught this not… Rabba said beginning they were found there and they were there conclusion also they were found there and they were there Abaye asked him has she entered the sphere of the husband the husband must produce proof that these defects were on her before she became betrothed and his purchase was an erroneous purchase before she became betrothed yes after she became betrothed no and why it should be said there were they found and there were they because one can say it is established one drinks from a goblet only when one has inspected it and this one saw and consented… (Ketubot 75a-b)
  b) Interpreted translation:
  Mishna. If she had physical defects when she was still in her father’s house, it is up to the father to provide the proof (if the groom, after the betrothal, does not wish to marry her because of the defects) that her defects only came about after she became betrothed, and his (the groom’s) field has been flooded (it is his misfortune), and if she has already come under the control of the husband, it is up to the husband to provide the proof that she had the defect before she became betrothed and “his purchase was an erroneous one” — as Rabbi Meir puts it. The Sages say that this applies only to hidden physical defects, while in the case of visible ones he (the husband) can have no objections; and if there is a bathhouse in the town, even in the case of hidden physical defects he can have no objections either, because he can have her scrutinized by his (female) relatives.
  Gemara. Only if the father produces the proof (is he believed), but if the father does not provide the proof, the husband is believed, which is in accordance with the view of Rabbi Yehoshua, who says (see Ketubot 12b:) “we do not live by her assertion” (her assertion without proof is worthless). However, at variance with this it says in the concluding sentence of the Mishna that, if she has already come under the authority of the husband, it is the husband who must provide the proof. (From which results that) only if the husband provides the proof. But if the husband does not provide the proof, the father is believed, in accordance with the view of) Rabban Gamliel, who says (ibid.) she is believed (even without proof)! Rabbi Elazar replied: It should be taken in independent parts: The person who taught the one (the initial sentence) did not teach the other (the concluding sentence)… Rava explained: In the initial sentence they (the defects) were revealed (in the house of the father), hence (let us say, they) came about there, and similarly in the concluding sentence revealed there (in the house of the husband), hence came about there. Abaye had the following objection to his argument: “If she has already come under the authority of her husband, it is up to the husband to furnish the proof that she had these defects before she became betrothed, and his purchase was an erroneous one,” (thus in the Mishna, from which it may be deduced:) only then (is the husband’s proof applicable) if, before she became betrothed (the defects were there), but not if after she became betrothed (although she was still in her father’s house). Why then, one must nevertheless say: that is where they were revealed (in the father’s house after the betrothal), hence they came into being there! Abaye replied: If, after she became betrothed (the defects are to be proven), let it be said that it is established, nobody drinks from a goblet without having inspected it; hence he saw it and consented (to the defects). (Ketubot 75a and b)
  
  V Style
  
  V. STYLE
  It was inevitable that the systematizing examination of the Oral Teachings which began in Rabbi Akiva’s time would gradually lead to a breaking of the writing-down ban. To this day, when this happened has not been settled definitively. In the view of many scholars, the Mishna was already written down by Rabbi Yehuda Hanasi, while other no less distinguished figures believe that it was only together with the Gemara that it was recorded in writing. Whatever the situation, like so much in the history of the Oral Teachings, the breaking of the ban on writing them down was undoubtedly caused by the tragic destinies of the Jewish people, in the course of which neither masters nor disciples had the requisite leisure or trouble-free existence which enabled them to continue teaching and studying the entire body of the oral tradition by heart. In order to counter the danger of oblivion for all time, the oral teachings were written down. However, since this constituted the violation of a strict rule, permitted only in the interests of the Teachings themselves and out of factual necessity, the Teachings were only written down to the extent actually required. The style of the Talmud shows us that there was always an awareness of this state of affairs: the Teachings are written down — not in order to provide written expression of the “oral” material, but only with the intention of ensuring that it was not forgotten. The oral character of the material was to be maintained despite being written down. This was achieved by means of a method in which the spoken words were written down as they were actually uttered, altering nothing in them in the writing-down process. This is what gives this written recording of the Teachings its characteristic flavor.
  The spoken and the written word are two fundamentally differing forms of expressing thought, feeling, and so on. One and the same thought needs to be represented differently according to whether it is uttered or “written out.” The spoken and the written word are independent of each other, both always relating directly to the inner content which is to be expressed. If now, with the breaching of the ban on writing down, the spoken word was written down unaltered, this means: this operation did not create the written form of expression for the content of the teaching, only the written notes of the oral form of expression. That which is written down — the notes — is not the written word of the Teachings, but the recorded “spoken word.” It was not the Teachings which here acquired a written expression appropriate to and hence intrinsically associated with them; rather, their oral form of expression was technically recorded. Thus the record became what it should have been — a mnemonic aid designed to make it impossible to forget; but the Teachings remained what they were — oral teachings. The Talmudic style is the style of the spoken word, not the written.
  This record of the spoken word is, however, characterized above all by two “shortcomings.” By its nature the spoken word is shorter than the written because it does not need to say everything itself. It is always spoken in a very specific situation which “has its own say,” expanding on the content of the words. In a conversational context, the slightest movement accompanying a word can intimate an entire sentence. And in the conversation of the scholars at the Talmud academies, the question “why?” or “how is this known?,” when uttered by certain people at a certain moment, could be so full of meaning that, when expressed in writing, it would require additional explanation. When the spoken word is transcribed, its contextually determined wealth of meaning is not recorded. The word becomes impoverished, or alternatively it becomes too limited for its original substantive content: it becomes a “keyword.” Furthermore, the characteristic form of recording the Oral Teachings is incapable of expressing another essential characteristic of the spoken word: its intonation. The same word can mean different things; depending on the tone of voice in which it is uttered, it may be meant ironically or seriously, be a question or an answer, express hope or resignation, amazement and doubt. What the speaker can say with a gesture, a particular tone of voice, must often be explained by the writer in a lengthy treatise. It is only the word which is written down, stripped of its rhythm, its intonation. Hence the spoken word which is recorded in writing in the absence of its intonation and its “melody” is nothing but a keyword for the speaker. Yet these two “shortcomings” made possible an inspired breaking of the ban on writing down: the Oral Teachings were reduced to writing, and yet the Teachings were not written down. The spoken word which was written down was the keyword of memory.
  What this means, however, is: a memory must always be present, that is, the Talmud always had to be taught orally according to its record, handed down from masters to students. The keyword had to be re-resolved into the spoken word. Just as the knot in the handkerchief is only a reminder to the person who has tied it, so the mnemonic writing down of the oral form of expression of the Teachings could only be turned back into the spoken word by those whom it reminded of something, in other words by those people who, like the generations before they were written down, received the Teachings in the houses of study from their masters and then only needed to review them on the basis of the written recording. Basically, nothing in this scenario has changed to this very day. The “knot language” of the record can only be understood by the person whom it “reminds” of something already learned. The real importance of the fundamental Talmud commentaries, which for the most part are founded on tradition, lies in the fact that they try to explore the didactic content in the oral form of expression of the Teachings. Resolving the written-down material into the spoken word, however, continues to remain the task of the person studying. Above all, “oral teachings” have remained this changing of the “notes” back into the “word.”
  The Talmud cannot be “read,” it must be “spoken.” This is also the reason for the Rashi commentary’s characteristic expressions about certain sentences: “bitmiya,” that is, “this is to be expressed with the intonation of a question,” or: “benichuta,” meaning: “this is to be uttered with an intonation of ‘gentleness’ (e.g. the reply, a confirmation, etc.).” The traditional sing-song with which the Talmud is studied, the <i>niggun</i> of studying, is the original Talmud commentary; it is the conversion of the recorded spoken word into the living word of the Oral Teachings. (The Talmud has no punctuation, because speaking also has no punctuation. The <i>niggun</i> of studying is at the same time an “acoustic punctuation.” So one can say in French: C’est le ton qui fait le Talmud. (It is the intonation which makes the Talmud.)
  
  VI Copies and manuscripts
  
  VI. COPIES AND MANUSCRIPTS
  As a result of the Church’s position on the Talmud, it was impossible to produce printed copies until relatively late. At first, only individual tractates were printed; in Italy, by Soncino, and in Lisbon. It was not until after Pope Leo X, in the course of the struggle between the Dominicans and Reuchlin, expressed his wish for the work to be printed that the entire Talmud was able to appear in print. The “editio princeps” was published from 1520-1523 in Venice by Daniel Bomberg, the Christian owner of a printing works from Antwerp. Works by Maimonides, Nachmanides, the Aruch and so on had already appeared previously.
  Besides the Bomberg edition, for all later editions the version by Justinian (Venice, around 1550) was of major significance. The later editions retained the pagination of the Justinian copy. Hence today all Talmud editions have the same page numbering.
  The censored Basel edition appeared from 1578 to 1581. With its additions and textual corrections, the Frankfurt am Main edition (1720-1722) became a model for all later copies.
  Apart from countless individual tractates, well-known editions of the entire Talmud were published in Lemberg (Lvov), Constantinople, Salonica, Cracow, Amsterdam, Frankfurt an der Oder, Berlin, Sulzbach, Dierenfurt, Sitomir, Vienna, Vilna, and elsewhere.
  Although we have so many printed copies of the Talmud, only occasional Talmud manuscripts have come down to us. The only complete Talmud manuscript is in Munich; besides that only larger or smaller fragments have survived. In his “Dikduke Sofrim,” (Munich, 1878-1897) Rabbi R.N. Rabinowicz lists only 39 fragmentary collections of manuscripts. The best-known include the collections of the Bodleian Library in Oxford, the Vatican, the British Museum, the collection in Munich, a fragment dating from 1112 in Petersburg, and, last and probably the oldest, a fragment of considerable length in Cambridge, UK.*<i class="footnote">Facsimiles of the Talmud fragments in the Munich and the Vatican collections can be down-loaded from the Online Treasury of Talmudic Manuscripts managed by the Jewish National and University Library, The Shapell Family Digitization Project, in conjunction with the Talmud Department of the Hebrew University, Jerusalem, at <a href=" National Library of Israel</a></i>
  
  VII What is written in the Talmud?
  
  
  
  VII. WHAT IS WRITTEN IN THE TALMUD?
  <i>Chapter VII consists of a collection of significant quotations from the Talmud which define central principles in Jewish law and morality. This and the following Chapter VIII appear in the typescript of the book as Appendices, and were omitted from the original publication in 1935, because the publisher feared that their publication would result in the immediate incarceration, or worse, of both the author and the publisher by the Nazi government.</i>
  <i>The topics included in the present chapter come under headings:</i>
  1. <i>Man – his life, his work, his day of rest</i>
  2. <i>Fellow-man</i>
  3. <i>Man and wife</i>
  4. <i>Society and community</i>
  5. <i>Jurisprudence</i>
  6. <i>Indemnification</i>
  a) <i>Lost and found</i>
  b) <i>Loans</i>
  c) <i>Unproven claims</i>
  <i>7. Employees and employers</i>
  <i>8. Charity</i>
  <i>The quotations were extracted from the On-line Reformatted Soncino Talmud, Talmudic Books Inc., Teaneck NJ, and appear here by permission. — ab.</i>
  
  1 Man; his life, his work, his day of rest
  
  <i>1. Man – his Life, his Work, his Day of Rest</i>
  A
  He (R. Akiva) used to say: beloved is man for he was created in the image [of God]. [It is a mark of] special love [that] he was told that he had been created in the image [of God], as it is written (Gen. 9:6): for in the image of God made He man. Avot Ch. 3:14
  Our Rabbis taught: For two and a half years Beth Shammai and Beth Hillel were in dispute, the former asserting that it is better for man not to have been created than to have been created, and the latter maintaining that it is better for man to have been created than not to have been created. They finally took a vote and decided that it is better for man not to have been created than to have been created, but now that he has been created, let him investigate his past deeds or, as others say, let him examine his future actions. Eruvin 13b
  R. Joshua ben Levi said: When the Holy One, blessed be He, said to Adam (Gen. 3:18), ‘Thorns and also thistles shall it bring forth for you,’ tears flowed from his eyes, and he pleaded before Him, ‘Sovereign of the Universe! Shall I and my ass eat out of the same crib?’ But as soon as He said to him (Gen. 5:19), ‘By the sweat of your face shall you eat bread,’ his mind was set at rest. Pesachim 118b
  R. Jeremiah ben Eleazar further stated: What [was signified] when it was written (Gen. 8:11): And lo, in her mouth an olive-leaf freshly plucked? The dove said to the Holy One, blessed be He, ‘May my food be as bitter as the olive but entrusted to your hand, rather than sweet as honey and dependent on a mortal’; for here it is written ‘freshly plucked’ and elsewhere it is written (Prov. 30:8): Feed me with my allotted bread. Eruvin 18b
  B
  The Lord your God shall bless you… (Deut. 14:29): One might think, even if you sit idle. Therefore, the Torah continues: …in all the work of your hand: If a man works he is blessed, but if not he will not be blessed. Yalkut Shimoni 690 (Psalm 23)
  R. Shimon ben Eleazar says: Even Adam tasted nothing until he had engaged in work, as it is written (Gen. 2:15):… And He placed him in the Garden of Eden to work it and to maintain it. And only then: …you may surely eat from any tree in the Garden. R. Tarphon says: Furthermore, neither did God bring down His Presence on Israel until they had done work, as it is written (Exod. 25:8): And they shall make for me a sanctuary, and I shall dwell in their midst. Avot of R. Nathan, Ch. 11
  Shemaiah used to say: love work, hate acting the superior, and do not bring yourself to the knowledge of the ruling authorities. Avot Ch. 1:10
  Rabban Gamaliel the son of R. Yehuda Ha-Nasi said: excellent is the study of the Torah together with a worldly occupation, for the energy [required] by both of them keeps sin out of one’s mind; and [as for] all Torah [study] where there is no worldly occupation, the end [is that] it comes to nothing and brings sin in its wake. Avot Ch. 2:2
  When R. Yehuda went to the Beth ha-Midrash, he used to take a pitcher on his shoulders [to sit on], saying. ‘Great is labor, for it honors the worker.’ R. Shimeon used to carry a basket on his shoulders, saying likewise, ‘Great is labor, for it honors the worker.’ Nedarim 49b
  R. Yehuda said: He who fails to teach his son a craft, teaches him criminality, ‘Criminality’! Can you really think so? — But it is as though he taught him to be a criminal. (Kiddushin 29a)
  One whose business is with women must not be alone with women; and one should not teach his son a woman’s trade. R. Meir said: One should always teach his son a clean and easy craft, and pray to him to whom [all] wealth and property belong. For no craft does not include [the possibilities of] poverty and wealth, for neither poverty nor wealth is due to the craft, but all depends on one’s merit. R. Shimeon ben Eleazar said: Have you ever seen a wild beast or a bird with a craft? Yet they are sustained without anxiety. Now, they were created only to serve me, while I was created to serve my master: surely then I should make a living without anxiety! Only because I have acted evilly and destroyed my livelihood. Abba Gurion of Zadian said on the authority of Abba Guria: One should not teach his son [to be] an ass-driver, camel-driver, wagoner, sailor, shepherd, or shopkeeper, because their profession is the profession of robbers. R. Yehuda said in his name: Most ass-drivers are wicked, while most camel-drivers are worthy men; and most sailors are pious. The best of doctors are destined for Gehenna, and the worthiest of butchers is Amalek’s partner. R. Nehorai said: I abandon every trade in the world and teach my son only Torah. (Kiddushin Ch. 4:14)
  And they turned aside from there, and said to him: ‘Who brought you here, and what are you doing in this [place], and what do you have here?’ They said to him: ‘Are you not a descendant of Moses of whom it is written, Draw not near to here? (Exod. 3:5) Are you not a descendant of Moses of whom it is written, What is this in your hand? (Exod. 4:2) Are you not a descendant of Moses of whom it is written, But as for you, stand you here by me? (Deut. 5:28) Would you want to be made a priest for idol-worship?’ — He said to them: I have the following tradition from my grandfather’s family: At all times should one [rather] hire himself out to idol-worship than be in need [of the help] of [his fellow] creatures. He thought that ‘Avodah Zarah’ [meant] actual [idol worship], but this is not so, [the meaning being,] ‘work which is strange to him’; as Rav said to R. Kahana: Rather flay a carcass in the street and earn a wage, and do not say, ‘I am a great man and work is degrading to me’. Bava Batra 110a
  R. Hiyya ben Ammi further said in the name of ‘Ulla: A man who lives from the work [of his hands] is greater than the one who fears heaven. For with regard to the one who fears heaven it is written: Happy is the man that fears the Lord, while with regard to the man who lives from his own work it is written: When you eat the labor of your hands, happy shall you be, and it shall be well with you. ‘Happy shall you be’, in this world, ‘and it shall be well with you’, in the world to come. But of the man that fears heaven it is not written: ‘and it shall be well with you’. Berachot 8a
  C
  Rava ben Mehasia also said in the name of R. Hama ben Goria in Rav’s name: If one gives a gift to his neighbor, he must inform him [beforehand], as it is written (Ex 31:13), that you may know that I the Lord sanctify you: It was taught likewise: That you may know that I the Lord sanctify you: The Holy One, blessed be He, said to Moses, I have a precious gift in My treasure house, called the Shabbat, and desire to give it to Israel; go and inform them. Shabbat 10b
  R. Huna said: If one is travelling on a road or in the wilderness and does not know when it is Shabbat, he must count six days and observe one. Hiyya bar Rav said: He must observe one [day] and count six [weekdays]. In what do they disagree? One Master holds that it goes according to the world’s Creation; the other Master holds that it is like [the case of] Adam [who was created on the sixth day]. Shabbat 69b
  A great principle was stated in respect to the Shabbat: He who forgets the fundamental law of the Shabbat and performs many labors on many Shabbats, incurs only one sin-offering. He who knows the fundamental law of the Shabbat and performs many labors on many Shabbats, incurs a sin-offering on account of each Shabbat. He who knows that it is Shabbat and performs many labors on many Shabbats is liable for every primary [category of] labor. He who performs many labors belonging to the same category of work is liable to only one sin-offering. Shabbat Ch. 7:1
  R. Yishmael, R. Akiva and R. Eleazar ben Azariah were once on a journey, with Levi ha-Saddar and R. Yishmael the son of R. Eleazar ben Azariah following them. Then this question was asked of them: How do we know that in a case of danger to human life the laws of the Shabbat are suspended? — R. Yishmael answered and said: If a thief is found breaking in. Now if in this case it is doubtful whether this man has come to take money or life, and although the shedding of blood pollutes the land, so that the Shechinah departs from Israel, yet it is lawful to save oneself at the cost of his life — how much more may one suspend the laws of the Shabbat to save human life! R. Akiva answered and said: If a man comes boldly upon his neighbor, to kill him with cunning, you shall take him [even] from My altar, that he may die (Ex 21:14). That is, only off the altar, but not down from the altar. And in this connection Rabbah ben Bar Hana said in the name of R. Yohanan: That was taught only when one’s life is to be forfeited, but to save life one may take one down even from the altar. Now if in the present case, where it is doubtful whether there is any substance in his words or not, yet [he interrupts] the service in the Temple [which is important enough to] suspend the Shabbat, how much more should the saving of human life suspend the Shabbat laws! R. Eleazar answered and said: If circumcision, which concerns only one of the two hundred and forty-eight members of the human body, suspends the Shabbat, how much more shall [the saving of] the whole body suspend the Shabbat! R. Yose son of R. Yehuda said: Only you shall keep My Shabbatot (Ex 31:13), one might assume under all circumstances, therefore the text reads: ‘Only’ namely, allowing for exceptions. R. Jonathan ben Yoseph said: For it is holy unto you (Ex 31:14); that is, it [the Shabbat] is committed to your hands, not you to its hands. R. Shimeon ben Menassia said: And the children of Israel shall keep the Shabbat (Ex 31:16). The Torah said: Profane for his sake one Shabbat, so that he may keep many Shabbats. Rav Yehuda said in the name of Samuel: If I had been there, I should have told them something better than what they said: He shall live by them (Lev 18:5), but he shall not die because of them. Rava said: [The exposition] of all of them could be refuted, except that of Samuel, which cannot be refuted. Yoma 85a-b
  
  2 Fellow man
  
  <i>2. Fellow-man</i>
  And you shall love your neighbor as yourself (Lev. 19:18): R. Akiva says, This is the greatest principle in the Torah. But Ben Azai says: This is the record of man’s generations (Gen. 5:1) – This is a greater principle. Sifra, Kedoshim Sec. 2
  On another occasion it happened that a certain gentile came before Shammai and said to him, ‘Make me a proselyte, on condition that you teach me the whole Torah while I stand on one foot.’ Thereupon he [Shammai] pushed him away with the builder’s cubit which was in his hand. When he went before Hillel, he said to him, ‘That which is hateful to you, do not do to your neighbor: that is the whole Torah; the rest is commentary; go and study it.’ Shabbat 31a
  R. Yishmael said: Be quick [to render service] to a great person and easy [of approach] to a young person, and receive all men with cheerfulness. Avot Ch. 3:12
  He [R. Hanina ben Dosa] used to say: Anyone in whom the spirit of [his fellow-] creatures takes pleasure, from him the spirit of the All-present [also] derives satisfaction. But one from whom the spirit of [his fellow-] creatures derives no satisfaction, from him the spirit of the All-present [too] derives no pleasure. Avot Ch. 3:10 
  Come and hear [again]: ‘Bluria the proselyte put this question to Rabban Gamaliel: It is written in your Law, [she said], who lifts not up the countenance (Deut 10:17), and it is also written, The Lord shall lift up his countenance upon you (Num 6:26). R. Yose the priest joined the conversation and said to her: I will give you a parable which will illustrate the matter. A man lent his neighbor a <i>maneh</i> and fixed a time for payment in the presence of the king, while the other swore to pay him by the life of the king. When the time arrived he did not pay him, and he went to excuse himself to the king. The king, however, said to him: The wrong done to me I excuse you, but go and obtain forgiveness from your neighbor. Similarly here, one text speaks of offences committed by a man against God, the other of offences committed by a man against his fellow man. Rosh Hashanah 17b
  Ben Zoma said…Who is he that is honored? He who honors his fellow-men, as it is written (1 Sam. 2:30): For them that honor me I will honor, and they that despise me shall be lightly esteemed. Avoth Ch. 4:1
  … R. Eliezer said: Let the honor of your friend be as dear to you as your own. Avot Ch. 2:10
  Mar Zutra ben Toviah said in Rav’s name — others state: R. Hana ben Bizna said [this] in the name of R. Shimeon the pious — others again state: R. Yohanan said [it] on the authority of R. Shimeon ben Yohai: Better had a man throw himself into a fiery furnace than put his neighbor to shame in public. Where do we know this from? — From Tamar. For it is written, When she was brought forth, she sent to her father-in-law (Gen. 38:25, rather than shame him in public). Bava Metzia 59a
  <i>Mishna</i>. Just as there is fraud in buying and selling, so is there wrong done by words. [Thus] one must not ask another, ‘What is the price of this article?’ if he has no intention of buying. If a man was a repentant [sinner], one must not say to him, ‘Remember your former deeds.’ If he is a son of proselytes one must not taunt him, ‘Remember the deeds of your ancestors,’ because it is written, You shall neither wrong a stranger, nor oppress him (Exod. 22:20).
  <i>Gemara</i>. Our Rabbis taught: You shall not therefore wrong one another; Scripture refers to spoken wrongs. You say, ‘spoken wrongs’; but perhaps that is not so, monetary wrongs being meant? When it is said, And if you sell anything to your neighbor, or acquire anything from your neighbor [you shall not wrong one another], monetary wrongs are already dealt with. Then what can I mean by, ‘You shall not therefore wrong each other"? To spoken wrongs. Bava Metzia 58b
  R. Helbo said: One must always observe the honor due to his wife, because blessings rest on a man’s home only on account of his wife, for it is written, And he treated Abram well for her sake (Gen 12:16). Bava Metzia 58b
  R. Hisda said to Rami ben Hama: You were not with us yesterday in the House of Study, where there were discussed some especially interesting matters. Thereupon the other asked him: What were the especially interesting matters? He answered: [The subject was whether] one who occupied his neighbor’s premises without his knowledge would have to pay rent or not. But under what circumstances? It could hardly be supposed that the premises were not for rent, and he [the one who occupied them] was similarly a man who was not in the habit of renting any, for [what liability could be attached in a case where] the defendant derived no [monetary] benefit, and the plaintiff sustained no loss? If on the other hand the premises were for rent, and he was a man who usually rented out premises, [why should no liability be attached, since] the defendant derived a benefit and the plaintiff sustained a loss? — No; the problem arises in the case where the premises were not for rent, but he [the occupier] was in the habit of hiring premises. What therefore should be the law? Is the occupier entitled to plead [against the other owner]: ‘What loss have I caused you [since your premises were in any case not for hire]?’…Or might the other party reply: ‘Since you have derived a benefit [as otherwise you would have had to hire premises], accordingly you must pay rent’ ?…
  The problem was communicated to R. Ammi and his answer was: ‘What harm has the defendant done to the other party? What loss has he caused him to suffer? And finally, what indeed is the damage that he has done to him?’ R. Hiyya bar Abba, however, said: ‘We have to consider the matter very carefully.’…
  R. Abba bar Zavda sent [the following message] to Mari the son of the Master: ‘Ask R. Huna as to his opinion regarding the case of one who occupies his neighbor’s premises without any agreement with him; must he pay him rent or not?’ But in the meanwhile R. Huna’s soul was sent to rest. Rabbah bar R. Huna thereupon replied as follows: ‘Thus said my father, my Master, in the name of Rav: He is not legally bound to pay him rent.’ Bava Kama 20a-21b
  A certain man bought a field adjacent to the estate of his father-in-law. When they came to divide the latter’s estate, he said: Give me my share next to my own field. Rabbah said: This is a case in which a man can be compelled not to act as done in Sodom. R. Yoseph strongly objected to this, on the grounds that the brothers can say to him: We reckon this field as especially valuable as the property of the Mar Marion family. The law follows R. Yoseph. If there are two fields with two channels [running by them], Rabbah said: This is a case where we can apply the rule that a man can be compelled not to act as done in Sodom. R. Yoseph strongly objected to this on the grounds that sometimes one channel may continue running while the other dries up. The law follows R. Yoseph. If, however, there are two fields adjoining one channel, R. Yoseph says that in such a case we do compel a man not to act as done in Sodom. Abaye objected to this strongly on the grounds that the one [who has two fields in the middle] can say, I want you to have more share-croppers. The law, however, follows R. Yoseph; the increase in the number of share-croppers is not a matter of consequence. Bava Batra 12b
  
  3 Man and wife
  
  <i>3. Man and Wife</i>
  R. Tanhum stated in the name of R. Hanilai: A man who has no wife lives without joy, without blessing, and without good. Without joy, as it is written: And you shall rejoice, you and your house (Deut 14:26). Without blessing, as it is written: That a blessing may rest on your house (Ez 44:30). Without good, as it is written: It is not good that the man be alone (Gen 2:18). In the West (i.e., in Eretz Israel) it was stated: He is without Torah and without a [protecting] wall. Without Torah, as it is written (Job 6:13): Have I no help with me, and is sound wisdom driven quite from me? Without a [protecting] wall, as it is written (Jer 31:21): A woman shall encompass a man. Rava ben ‘Ulla said: Without peace, as it is written: And you shall know that your tent is in peace; and you shall visit your home and shall not sin (Job 5:24). Yevamot 62b
  Our Rabbis taught: [The order of the phrases (Job 24:27) is] ‘that has built’, ‘that has planted’, ‘that has betrothed’. The Torah has thus taught a rule of conduct: that a man should build a house, plant a vineyard, and then marry a wife. Sota 44a
  Our Rabbis taught: If one has to study Torah and to marry a wife, he should first study and then marry. But if he cannot [live] without a wife, he should first marry and then study. Rav Yehuda said in Samuel’s name: The Halachah is, [A man] first marries and then studies. R. Yohanan said: [With] a millstone around the neck, shall one study Torah! Though they do not disagree, the one refers to ourselves [Babylonians]; the other to them [in Eretz Israel]. Kiddushin 29b
  Rava said: He who [wishes] to take a wife should inquire about [the character of] her brothers. For it is said, And Aaron took Elisheva, the daughter of Aminadav, the sister of Nahshon; since it is stated the daughter of Aminadav, would it not he obvious that she is the sister of Nahshon? Then why should it be expressly stated, the sister of Nahshon? Hence it is to be inferred that he who takes a wife should inquire about [the character of] her brothers. It was taught: Most children resemble the brothers of the mother. Bava Batra 110a
  Rabbah son of R. Adda said in Rav’s name: He who takes a wife for the sake of money will have unworthy children, as it is said: They have dealt treacherously against the Lord; for they have borne children who behave badly (Hos 5:7). And should you think, their money is saved [for them], — therefore it is stated: Now shall the new moon devour them with their properties. And should you say, his property, but not hers: therefore it is stated: ‘their properties’. And should you say [only] after a long time — therefore it is said: ‘the new moon’. What does this imply? — Said R. Nahman bar Isaac: A month comes and a month goes, and their money is lost. Kiddushin 70a
  Who is wealthy? R. Akiva said: He who has a wife who is comely in deeds. Shabbat 25b
  <i>Mishna</i>. A man can betroth [a woman] by himself or through his agent. A woman may be betrothed through herself or through her agent. A man may give his daughter in betrothal while [she is] a <i>na’arah</i>, [either] himself or through his agent.
  <i>Gemara</i>. If he can betroth <i>through his agent</i>, is it necessary [to state] <i>through himself</i>? — Said R. Yoseph: [This inclusion intimates that] it is more meritorious through himself than through his agent, just as R. Safra [himself] singed a [slaughtered animal’s] head, Rava salted <i>shibbuta</i> (probably the mullet). Some say that in this matter [betrothal by agent] there is even a prohibition, in accordance with Rav Yehuda’s dictum in Rav’s name; for Rav Yehuda said in the name of Rav: A man may not betroth a woman before he sees her, lest he [subsequently] see something repulsive in her, and she becomes loathsome to him; whereas the All-Merciful said, but you shall love your neighbor as yourself. And as to R. Yoseph’s statement, it relates to the second clause: <i>A woman may be betrothed through herself or through her agent</i>. Now, if she can be betrothed through her agent, is it necessary [to state] ‘through herself'? — Said R. Yoseph: [This inclusion intimates that] it is more meritorious through herself than through her agent, just as R. Safra [himself] singed an [animal’s] head; Rava salted <i>shibbuta</i>. But in this case there is no prohibition, in accordance with Resh Lakish, who said: It is better to dwell with a load of grief than to dwell in widowhood. 
  <i>A man may give his daughter in betrothal while a na’arah</i>. Only when a na’arah, but not when a minor [below age twelve]: this supports Rav. For Rav Yehuda said in Rav’s name: One may not give his daughter in betrothal when a minor, [but must wait] until she grows up and says: ‘I want So-and-so’. Kiddushin 41a
  R. Helbo said: One must always observe the honor due to his wife, because blessings rest on a man’s home only on account of his wife, for it is written (Gen 12:16), And he treated Abram well for her sake… Bava Metzia 59a
  Our Rabbis taught: Of a man who loves his wife as himself, who honors her more than himself, who guides his sons and daughters in the right path and arranges for them to be married near the time of their puberty, Scripture says (Job 5:24), And you shall know that your tent is at peace. Yevamot 62b
  A Tanna taught: R. Eliezer ben Jacob said: A man must not marry a woman if it is his intention to divorce her, for it is written (Prov 3:29), Do not plan evil against your neighbor, seeing he dwells securely with you. Yevamot 37b
  <i>Mishna</i>. If a woman says. ‘I was married and I am divorced’, she is believed, for the mouth that forbade is the mouth that permits. But if there are witnesses that she was married, and she says. ‘I am divorced’, she is not believed. If she says. ‘I was taken captive but I have remained clean,’ she is believed.
  <i>Gemara</i>. R. Assi said: Where from the Torah [do we know the principle of] ‘the mouth that forbade is the mouth that permits’? Because it is said: ‘My daughter I gave to this man as a wife.’ [By saying] ‘to man’, he made her forbidden [to others], [by saying] ‘this’, he made her permitted [to him]. Why is a Biblical verse necessary? It stands to reason: he made her forbidden, and he made her permitted — The Scriptural verse is required according to what R. Huna [said that] Rav said. For R. Huna said [that] Rav said: Whence [do we know] from the Torah that the father is believed to make his daughter forbidden? Because it is said: ‘My daughter I gave to this man as his wife.’ Why [is it said] ‘this’? — It is required for what R. Jonah taught. For R. Jonah taught: ‘My daughter I gave to this man’: ‘[To] this [man]’, and not to the brother-in-law. Our Rabbis taught: If a woman says, I am married’, and afterwards she says, ‘I am unmarried’, she is believed. But she made herself forbidden! — Said Rava the son of R. Huna: When she has given a plausible reason for her words. We have also a Baraita to the same effect. If she says, ‘I am married’, and then she says, ‘I am unmarried’, she is not believed, but if she gives a plausible reason for her words she is believed. And so it once happened with a great woman, who was great in beauty, and men were eager to betroth her, and she said to them, ‘I am betrothed’. After a time she became betrothed. The Sages said to her: Why have you chosen to do this? She answered them, ‘At first, when unworthy men came to me, I said, “I am betrothed"; now that worthier men come to me, I became betrothed’. Ketubot 22a
  R. Samuel bar Nahman said: All things can be replaced, except the wife of one’s youth, as it is written, And a wife of [one’s] youth, how can she be rejected (Is 54:6)? Sanhedrin 22a
  
  4 Society and community
  
  <i>4. Society and Community</i>
  He [Rabban Yohanan ben Zakai] said to them: Go out and observe which is the good way which a man should adopt? R. Eliezer said, a generous eye; R. Joshua said, a good friend; R. Yose said, a good neighbor… Avot Ch. 2:9
  Rava [again] said to Rabbah bar Mari: From where can be derived the popular saying, ‘A bad palm will usually make its way to a grove of barren trees’? — He replied: This matter was written in the Torah, repeated in the Prophets, mentioned a third time in the Writings, and also learned in a Mishnah and taught in a Baraita: It is stated in the Torah as it is written (Gen 28:9), So Esau went unto Yishmael; repeated in the prophets, as is written (Jud 11:13), And there gathered themselves to Jephtah idle men, and they went out with him; mentioned a third time in the Writings, as is written (Ben Sira 13:15): Every fowl dwells near its kind and man near his equal; it was learned in the Mishnah: ‘All that which is attached to an article that is subject to the law of defilement, will similarly become defiled, but all that which is attached to anything which would always remain [ritually] clean would similarly remain clean; and it was also taught in a Baraita: R. Eliezer said: ‘Not for nothing did the starling follow the raven, but because it is of its kind.’ Bava Kama 92b
  …Hillel said: Do not separate yourself from the community…furthermore, do not judge your fellow-man until you have reached his place. Avot Ch. 2:4
  R. Tanhum ben Hanilai said: One should never break away from custom. For behold, Moses ascended on High and ate no bread, whereas the Ministering Angels descended below and ate bread (Gen 18:8). ‘And ate’ — can you really think so! — But say, appeared to eat and drink. Bava Metzia 86b
  Where it is the custom to do work on the eve of Passover until midday one may do [work]; where it is the custom not to do [work], one may not do [work]. He who goes from a place where they work to a place where they do not work, on from a place where they do not work to a place where they do work, we lay upon him the restrictions of the place he left and the restrictions of the place to which he has gone. Pesachim Ch. 4:1
  Our Rabbis have taught: If one fasted on account of some occurence and it passed, or for a sick person and he recovered, he should nevertheless complete his fast. If one journeys from a place where they are not fasting to a place where they are, he should fast with them; from a place where they are fasting to a place where they are not, he should nevertheless complete his fast… But a man should rather share in the distress of the community, for so we find that Moses, our teacher, shared in the distress of the community, as it is said (Ex 17:12), But Moses’ hands were heavy; and they took a stone and put it under him, and he sat upon it. Did Moses not have a bolster or cushion to sit on? This is then what Moses meant to convey: ‘As the people of Israel are in distress I too will share with them.” He who shares in the distress of the community will merit beholding its consolation’. Taanit 10b-11a
  He [Hillel] used to say: if I am not for myself, who is for me? But if I am [only] for my own self, what am I? And if not now, when? Avot Ch. 1:14
  It was taught: While a caravan of people was travelling it was stopped by a band of non-Jews, who said, “Give us one of you that we may kill him, or else we will kill all of you.” Even if they are all killed, they may not deliver up a single soul of Israel (to them). However, if they demanded a particular person, such as Sh’va ben Bichri (a famous crook), they should give him up and save themselves. R. Shimon ben Lakish (himself a reformed robber) added: And then only on condition that the hostage has been convicted of a capital crime, as was Sh’va ben Bichri (II Samuel 20:1). And R. Yochanan said: Even if he (the hostage) is not a convicted murderer. (The law is according to Resh Lakish; cf. Rambam, Basic Laws of Torah 8:5.) T. Yerushalmi, Terumot Ch. 8
  Our Rabbis taught: A man should not remove stones from his land on to public ground. A certain man was removing stones from his land on to public ground when a pious man found him doing so and said to him, ‘Fool, why do you remove stones from land which is not yours to land which <i>is</i> yours?’ The man laughed at him. Some days later he had to sell his field, and when he was walking on that public ground he stumbled over those stones. Then he said, ‘How well did that pious man say to me, “Why do you remove stones from ground which is not yours to ground which is yours?"’ Bava Kama 50b
  If a man pours out water into public ground and someone is injured by it, there is liability for the damage. Bava Kama Ch. 3:2
  Our Rabbis taught: Concerning those who hoard fruit, lend money with interest, reduce the weights and measures and raise prices, Scripture says (Amos 8:5): Saying: ‘When will the new moon be over, that we may sell grain? And the Shabbat, that we may set out corn? Making the <i>ephah</i> small, and the <i>shekel</i> large, and falsifying the scales of deceit. And [concerning these] it is [further] written in Scripture (ibid.), The Lord has sworn by the pride of Jacob: Surely I will never forget any of their deeds.
  Who, for instance, may be classed among fruit hoarders? — R. Yohanan said: [A person], for instance, like Shabbetai the fruit hoarder. Samuel’s father used to sell fruit during the [prevalence of the] early [market] price[s] at the early price. Samuel the son retained the fruit and sold them, when the late [market] prices [were current], at the early [market] price. Word was sent from there: ‘The father’s [action] is better than the son’s.’ What is the reason? — Prices that have been eased remain so.
  Rav said: A person may store his own <i>kav</i> [of produce]. The same has also been taught [elsewhere]: Fruit [and] things which are life’s necessities, for instance wines, oils and the various kinds of flour, must not be hoarded; but spices, cumin and pepper may be. The prohibitions mentioned apply [only] to one buying from the market, but [in the case of one] who brings in for his own [storage], [this is] permitted. In Eretz Israel one may store fruit for [the following] three years: The eve of the Sabbatical year, the Sabbatical year, and the conclusion of the Sabbatical year. In years of famine one must not hoard even a <i>kav</i> of carobs, because by doing so one brings a curse on the market prices. Bava Batra 90b
  Furthermore, it has been taught: A scholar should not reside in a city where the following ten things are not found: a court of justice that imposes flogging, and decrees penalties; a charity fund collected by two people and distributed by three; a Synagogue; public baths; a public toilet; a circumciser; a surgeon, a notary; a slaughterer and a school-master. R. Akiva is quoted [as including] also several kinds of fruit [in the list], because these are beneficial to eyesight. Sanhedrin 17b
  
  5 Jurisprudence
  
  <i>5. Jurisprudence</i>
  Rabban Shimeon, son of Gamaliel used to say: On three foundations the world rests: on justice, on truth and on peace, as it is written (Zech. 8:16): Judge you truthfully and a judgment of peace in your gates. Avot Ch. 1:18
  R. Shmuel bar Nahmani said, reporting R. Jonathan: A judge who delivers a judgment in perfect truth causes the Shechinah to dwell in Israel, for it is written: God stands in the Congregation of God; in the midst of the judges He judges (Ps 82:1). And he who does not deliver judgments in perfect truth causes the Shechinah to depart from the midst of Israel, for it is written: Because of the oppression of the poor, because of the sighing of the needy, now will I arise, says the Lord (Ps 12:6). Sanhedrin 7a
  R. Josiah or, according to others, R. Nahman bar Isaac, gave the following exposition: What is the meaning of the verse (Ps 21:12), O house of David, thus says the Lord: Execute justice in the morning and deliver the despoiled out of the hand of the oppressor! Is it only in the morning that one acts as judge and not during the whole day? — No, it means: If the judgment you are about to give is clear to you as the morning [light], give it; but if not, do not give it. Sanhedrin 7b
  R. Joshua ben Korha says: Whence do we know that a disciple, who is present when his master judges a case and sees a point which would tell in favor of a poor man or against a rich man, should not keep silent?. From the words of the text: You shall not be afraid before any man (Deut 1:17). R. Hanina explains this word to mean, ‘You shall not hold back your words because of anyone. Sanhedrin 6b
  The view of Resh Lakish is as follows: When two men bring a case before you, one weak [that is, of small influence], the other strong [of great influence], before you have heard their case, or even after, so long as you are in doubt in whose favor judgment is inclining, you may tell them: ‘I am not bound to decide in your case’, lest the man of great influence should be found guilty, and use his influence to harass the judge. But, if you have heard their case and know in whose favor the judgment inclines, you cannot withdraw and say, I am not bound to decide in your case’, because it is written: You shall not be afraid before any man (Deut 1:17). Sanhedrin 6b
  Our Rabbis taught: And the two men shall stand: it is a precept that the litigants stand. R. Yehuda said: I heard that if they request that both be allowed to sit, they may allow them to sit. What is prohibited? One should not stand, while the other may sit; one speak all that he wishes, and the other be told to be brief. Shevuot 30a
  How do we know that, if two come to court, one clothed in rags and the other in fine raiment worth a hundred <i>maneh</i>, they should say to him, ‘Either dress like him, or dress him like you’? — Because it is said: From a false matter keep far away (Exod. 22:7). Shevuot 31a
  Again: Hear [the causes] between your brethren and judge righteously (Deut 1:6). This, said R. Hanina, is a warning to the court not to listen to the claims of a litigant in the absence of his opponent. Sanhedrin 7b
  Rav Yehuda stated in the name of R. Assi: The Judges of civil cases in Jerusalem received their salaries out of the Temple funds [at the rate of] ninety-nine <i>maneh</i>. If they were not satisfied they were given an increase. [You say] ‘They were not satisfied’? Are we dealing with wicked men? The reading in fact is, [If the amount was] insufficient an increase was granted to them even if they objected.
  The judge Karna used to take one <i>istira</i> from the innocent party and one <i>istira</i> from the guilty party and then he would render his decision. But how could he act in such a manner? Is it not written in Scripture, And you shall take no gift (Ex. 23:8)? And if you reply that this applies only when he does not take from both [litigants], lest he become biased, but Karna, since he took [the same amount] from both parties, would not come to a biased judgment. [It can be retorted:] Is this permitted even when one would not come to biased judgment? Was it not in fact taught: What was the purpose of the statement, “And you shall take no gift?” If to teach that one must not acquit the guilty or that one must not condemn the innocent [the objection surely could be raised]: This was already specifically stated elsewhere in Scripture, You shall not pervert judgment (Deut 16:19). Consequently it must be concluded that even [where the intention is] to acquit the innocent or to condemn the guilty the Torah laid down, And you shall take no gift? — This applies only where [the judge] takes [the gift] as a bribe, but Karna took [the two <i>istira</i>] as a fee. But is it permissible [for a judge to take money] as a fee? Have we not in fact learned: The legal decisions of one who takes a fee for acting as judge are null and void? — This applies only to a fee for pronouncing judgment, while Karna was only taking compensation for loss of other work.
  But [is a judge] permitted to take compensation for loss of work? Was it not in fact taught: Contemptible is the judge who takes a fee for pronouncing judgment; but his decision is valid? Now, what is to be understood [by fee]? If it be suggested [that it means] a fee for acting as judge [the objection would arise: How could it be said,] ‘his decision is valid’, when in fact we have learned: The legal decisions of one who takes a fee for acting as judge are null and void? Consequently it must mean a fee for loss of work, and yet it was stated, was it not, ‘Contemptible is the judge etc.’? — This applies only to a loss of work that cannot be proved, but Karna received [compensation for] loss of work that could be proved. for he was [regularly occupied in] testing bouquet at a wine store, and for this he was paid a fee. This is similar to the case of R. Huna. When a lawsuit was brought to him, he used to say to the [litigants], ‘Provide me with a man who will draw the water in my place, and I will pronounce judgment for you’. Ketubot 105a
  Our Rabbis taught: And you shall take no gift (Ex 23:8); there was no need to speak of [the prohibition of] a gift of money, but [this was meant:] A bribe of words is forbidden as well, for Scripture does not write, And you shall take no money. What is to be understood by ‘a bribe of words’? — Like the bribe offered to Samuel. He was once crossing [a river] on a raft when a man came up and offered him his hand. ‘What’, [Samuel] asked him, ‘is your business here?’ — ‘I have a lawsuit’, the other replied. ‘I’, came the reply, ‘am disqualified from acting for you in the suit’. Ketubot 105b
  He (R. Yishmael) used to say: judge not alone, for none may judge alone save the One… Avot Ch. 4:8
  It has been taught: R. Yose said, Originally there were not many disputes in Israel, but one Beth din of seventy-one members sat in the Hall of Hewn Stones, and two courts of twenty-three sat, one at the entrance to the Temple Mount and one at the door of the [Temple] Court, and other courts of twenty-three sat in all Jewish cities. Sanhedrin 88b
  The great Sanhedrin consisted of seventy-one members; the small Sanhedrin of twenty-three. From where do we deduce that the great Sanhedrin was of seventy-one? — it is said (Num 11:16), Gather unto me seventy men; with Moses at their head we have seventy-one. R. Yehuda said it consisted of only seventy. How do we know that the small Sanhedrin was of only twenty-three? — It is said, and the <i>‘edah</i> shall judge… And the <i>‘edah</i> shall deliver (Num. 35:24-25). One <i>‘edah</i> judges, [that is, condemns] and the other may deliver [that is, acquit], hence we have twenty. But how do we know that a congregation consists of not less than ten? — It is written, how long shall I bear with this evil <i>‘edah</i>? (Num. 14:27) Excluding Joshua and Caleb, we have ten. And from where do we derive the additional three? — By the implications of the text (Exod. 23:2), <i>you shall not follow a majority for evil</i>, I infer that I may follow them for good; if so, why is it said, <i>to incline after the majority</i>? To teach that the majority to ‘incline after’ for good [that is, for a favorable decision] is not the same as the one to ‘incline after’ for evil [that is, for an adverse decision] since for good, a majority of one suffices; whereas for evil, a majority of two is required. And as a court cannot consist of an even number, another one is added, making a total of twenty-three. Sanhedrin Ch. 1:1
  Both civil and capital cases require inquiry and examination. As it is written: you shall have a single manner of law (Lev. 24:25). What is the difference between civil and capital cases? — Civil suits [are tried] by three; capital cases by twenty-three. Civil suits may be opened either for acquittal or conviction; capital charges must be opened for acquittal, but not for conviction. Civil suits may be decided by a majority of one, either for acquittal or conviction; whereas capital charges are decided by a majority of one for acquittal, but [at least] two for conviction. In monetary cases the decision may be reversed both for an acquittal and for conviction; whilst in capital charges the verdict may be reversed for acquittal only, but not for conviction. In monetary cases, all may argue for or against the defendant; whilst in capital charges, anyone may argue in his favor, but not against him. In civil suits, he who has argued for conviction, may then argue for acquittal, and vice versa; whereas in capital charges, one who has argued for conviction may subsequently argue for acquittal, but not vice versa.
  Civil suits are tried by day, and concluded at night. But capital charges must be tried by day and concluded by day. Civil suits can be concluded on the same day, whether for acquittal or conviction; capital charges may be concluded on the same day with a favorable verdict, but only on the following day with an unfavorable verdict. Therefore, trials are not held on the eve of a Shabbat or festival. Sanhedrin Ch. 3:4
  R. Kahana said: If the Sanhedrin finds [the accused] guilty unanimously, he is acquitted. Why? — Because we have learned by tradition that sentence must be postponed until the next day in hope of finding new points in favor of the defense. But this cannot be anticipated in the present case. Sanhedrin 17a
  How are the witnesses examined? — They are brought into a room, and fear is instilled into them. Then they are sent out, save for the oldest [witness] to whom they [the judges] say: Tell us, how do you know that so and so owes [money] to so and so? If he answers: he personally told me, ‘I owe him [the money],’ or, ‘So and so told me that he owes him,’ his statement is worthless, unless he declares, ‘In our presence, he admitted to him that he owes him two hundred zuz.’ After that the second witness is admitted and similarly examined. If their statements tally, they [the judges] proceed to discuss the case… Sanhedrin Ch. 3:6
  <i>Mishna</i>. How were the witnesses inspired with fear? Witnesses in capital charges would be brought in and intimidated [thus]: Perhaps what you say is based only on conjecture, or hearsay, or is evidence from the mouth of another witness, or even from the mouth of a trustworthy person. Perhaps you are unaware that ultimately we will scrutinize your evidence by cross-examination and inquiry? Know then that capital cases are not like monetary cases. In civil suits, one can make monetary restitution and thereby effect his atonement. But in capital cases he is held responsible for his [the accused’s] blood and the blood of his [potential] descendants until the end of time…
  <i>Gemara</i>. Our Rabbis taught: What is meant by <i>based on conjecture</i>? — He [the judge] says to them: Perhaps you saw him running after his fellow into a ruin, you pursued him, and found him sword in hand with blood dripping from it, while the murdered man was writhing [in agony]: If this is all you saw, you saw nothing. Sanhedrin 37a
  R. Eliezer the son of R. Yose the Galilean says: It is forbidden to arbitrate in a litigation, and he who arbitrates thus sins, and whoever praises such an arbitrator [<i>botzea</i>] blasphemes against the Lord, for it is written (Ps 10:3), He that blesses an arbiter [<i>botzea</i>], blasphemes against the Lord. But let the law cut through the mountain, for it is written (Deut 1:17), For the judgment is the Lord’s. And so Moses’ motto was: Let the law cut through the mountain. Aaron, however, loved peace and pursued peace, and made peace between man and man, as it is written (Mal 2:6), The law of truth was in his mouth, unrighteousness was not found in his lips, he walked with Me in peace and uprightness and did turn many away from sin.
  R. Eliezer says: If one stole a <i>se’ah</i> [a measure] of wheat, ground and baked it, and set apart the Hallah, what blessing can he pronounce? This man would not be blessing, but contemning, and of him it is written, The robber [<i>botzea</i>] who says a blessing blasphemes against the Lord.
  R. Meir says: This text refers to none but Yehuda, for it is written (Gen 37:26), And Yehuda said to his brethren, What profit [<i>betza</i>] is there if we slay our brother? And whosoever praises Yehuda, blasphemes, as it is written, He who praises the man who is greedy of gain [<i>botzea</i>] blasphemes against the Lord. R. Yehuda ben Korha says: Settlement by arbitration is a meritorious act, for it is written (Zech 8:16), Execute the judgment of truth and peace in your gates. Surely where there is strict justice there is no peace, and where there is peace, there is no strict justice! But what is the kind of justice with which peace abides? — We must say: arbitration. So it was in the case of David, as we read, And David executed justice and righteousness [charity] towards all his people. Surely where there is strict justice there is no charity, and where there is charity, there is no justice! But what is the kind of justice with which charity abides? — We must say: arbitration!…
  R. Shimeon ben Manasya says: If two litigants come before you for judgment, before you have heard their case, or even afterwards, if you have not made up your mind which way judgment leans, you may suggest to them that they should go and settle the dispute between themselves. But if you have already heard their case and have made up your mind in whose favor the verdict inclines, you are not at liberty to suggest a settlement, for it is written: The beginning of strife is like releasing a stream of water. Therefore, leave off contention before the quarrel breaks out (Prv 17:14). Before the case has been argued, you may leave off [give up] the contention; after the case has been laid bare, you cannot leave it off. Sanhedrin 6b
  R. Yishmael son of R. Yose was walking on a road when he met a man carrying a load of logs. The latter put them down, rested, and then said to him, ‘Help me to pick them up.’ ‘What are they worth?’ he enquired. ‘Half a <i>zuz</i>,’ was the answer. So he gave him the half <i>zuz</i> and declared it <i>hefker</i> (abandoned). Thereupon he [the carrier] repossessed it. He gave him another half <i>zuz</i> and again declared it <i>hefker</i>. Seeing that he was again about to repossess it again, he said to him, ‘I have declared it <i>hefker</i> for everyone except for you.’ But is it then <i>hefker</i> in that case? Have we not learned: Beth Shammai maintain, [only] <i>hefker</i> for the poor is valid <i>hefker</i>; while Beth Hillel rule, It is valid only if declared <i>hefker</i> for [both] the poor and the rich, like the year of release [the seventh, <i>shmita</i> year]. — But R. Yishmael son of R. Yose did in fact render it <i>hefker</i> for everyone; and he stopped the other [from taking possession again] by mere words. Yet was not R. Yishmael son of R. Yose an elder for whom it was undignified [and therefore exempt from helping to pick up a load,]? — He acted beyond the requirements of the law. For R. Yoseph learned: ‘And you shall inform them (Ex 11:16)’ — this refers to their home; ‘the way’ — means the practice of loving deeds; ‘they must walk’ — to visit the sick; ‘therein’ — refers to burial; ‘and the work’ — to perform strict law; ‘that they shall do’ — to [acts] beyond the requirements of the law. Bava Metzia 30b
  
  6 Indemnification
  
  a) Lost and found
  
  <i>6. Indemnification</i>
  a) Lost and Found
  You shall not see your brother’s ox or his sheep driven away, and hide your eyes from them; you shall surely return them to your brother. And if your brother is not nearby to you, and you do not know him, then you shall bring it home to your house, and it shall be with you until your brother requests it, and you shall restore it to him. And so shall you do with his ass; and so shall you do with his garment; and so shall you do with every lost object of your brother’s, which he has lost and you have found; you may not hide yourself. Deut. 22:1-3
  <i>Mishna</i>. Now, the garment too was included in all these. Why then was it singled out? That an analogy might be drawn from it, teaching: just as a garment is distinguished in that it bears identification marks and is claimed, so must everything be announced if it bears identification marks and is claimed.
  <i>Gemara</i>. What is meant by <i>in all these</i>? — Said Rava: In the general phrase, [and in like manner shall you do] with every lost article of your brother. Rava said: Why should the Divine Law have enumerated ox, ass, sheep and garment? They are all necessary. For had the Divine Law mentioned ‘garment’ alone, I would have thought: That is only if the object itself can be attested by witnesses, or the object itself bears marks of identification. But in the case of an ass, if its saddle is attested or its saddle bears marks of identification, I might think that it is not returned to him. Therefore the Divine Law wrote ‘ass’, to show that the ass [too, is returned] in virtue of the identification of its saddle. For what purpose did the Divine Law mention ‘ox’ and ‘sheep’? — ‘Ox’, that even the shearing of its tail, and ‘sheep’, that even its shearings [must be returned]. Bava Metzia 27a
  Some found objects belong to the finder; others must be announced. The following articles belong to the finder: If one finds scattered fruit, scattered money, small sheaves in a public thoroughfare, round cakes of pressed figs, a baker’s loaves…
  The following objects have to be proclaimed: If one finds fruit in a vessel, or an empty vessel, money in a purse, or a purse by itself; heaps of fruit, heaps of coins, three coins on the top of each other… all these must be announced. Bava Metzia Ch. 2:1
  Come and hear: If a river has carried off someone’s beams, timber, or stones, and has deposited them in a neighbor’s field, they belong to the neighbor because the owner has given up hope [of recovery]. Bava Metzia 22a
  
  b) Loans
  
  b) Loans
  <i>Mishna</i>. If a man lent [money] to another on [the security of] a bond of indebtedness, he may collect [the debt] from mortgaged property. [If, however, the loan was made] before witnesses, he may recover [his debt] from free property [only]…
  <i>Gemara</i>. ‘Ullah said: [According to] the word of the Torah, either a loan [secured] by a bond or a verbal loan may be recovered from mortgaged property. What is the reason? — The collateral obligation [involved] is Biblical. Why then has it been said [that] a verbal loan may be collected only from free property? — On account of [possible] loss to the buyers. If so, [the same law should apply] also [to] a loan [secured] by a bond! [In this case] they have brought the loss upon themselves.
  Rabbah, however, said: [According to] the word of the Torah either a loan [secured] by a bond or a verbal loan may be recovered from free property only. What is the reason? — The collateral obligation [involved] is not Biblical. Why then has it been said that a loan [secured] by a bond may be recovered from sold property? — In order that doors will not be locked in the face of borrowers. If so, [the same law should apply] also [to] a verbal loan! — In that case the loan is not [sufficiently] known [to the public. Therefore the buyers must be protected.]. Bava Batra 175a-b
  Resh Lakish has laid down: If a lender stipulates a date for the repayment of a loan, and the borrower pleads [when the date of payment arrives] that he paid the debt before it fell due, his word is not accepted. If only he’d pay when it does fall due! Abaya and Rava, however, both agree in saying that it is not unusual for a man to pay a debt before it falls due; sometimes he happens to have money, and he says to himself, I will go and pay him, so as to be quit of him. Bava Batra 5a-b
  
  c) Unproven claims
  
   c) Unproven Claims
  If an ox was pursuing another’s ox, which was [afterwards discovered] injured, and the one [the plaintiff] says, ‘It was your ox that did the damage,’ while the other pleads, ‘Not so, but it was injured by a rock [against which it had been rubbing itself]’, the burden of proof lies with the claimant. Bava Kama Ch. 3:11
  <i>Mishna</i>. If an ox has gored a cow and its [newly-born] calf is found [dead] nearby, and it is unknown whether the birth of the calf preceded the goring or followed the goring, half damages will be paid for [the injuries inflicted upon] the cow, but [only] quarter damages will be paid for [the loss of] the calf. So also when a cow has gored an ox and a [live] calf is found nearby, so that it is unknown whether the birth of the calf preceded the goring or followed the goring, half damages can be recovered out of the cow, and quarter damages out of the calf.
  <i>Gemara</i>. Rav Yehuda on behalf of Samuel said: This ruling is the view of Sumchus who held that money whose ownership cannot be decided has to be shared [by the parties]. The Sages, however, say that it is a fundamental principle in law that the onus of proof falls on the claimant. Why was it necessary to state ‘this is a fundamental principle in law’? — It was necessary to imply that even where the plaintiff is positive and the defendant dubious it is still the plaintiff on whom falls onus of proof.
  Or [we may say] it is also necessary in view of a case of this kind: For it has been stated: If a man sells an ox to another and it is found to be given to goring, Rav maintained that the sale would be voidable, whereas Samuel said that the vendor could plead ‘I sold it for slaughter’. How so? Why not see whether the customer was a buyer for field work, or whether he was a person buying for slaughter? — Samuel’s view can hold good if he was a person buying both for the one and the other. But why not see if the money paid corresponded to the value of an ox for field work, then it must have been purchased for field work? If, on the other hand it corresponded to that of an ox to be slaughtered, then it must have been purchased for slaughter. — Samuel’s view could still hold good where there was a rise in the price of meat so that the ox was worth the price paid for one for field work. I may here ask: If the vendor had not money for making payment, why not take the ox in lieu of money? Do not people say, ‘From the debtor take payment even in bran’? — No, this is to be applied where he had money for making payment.
  Rav, who said that it was a voidable purchase, maintained that we decide according to the majority of cases, and the majority of people buy for field work. Samuel, however, said that the vendor might plead against him, ‘It was for slaughter that I sold it to you,’ and that we do not follow the majority; for we follow the majority only in ritual matters, but in monetary cases we do not follow the majority, but whoever has a [monetary] claim against his neighbor, the onus of proof falls on him. It has been taught to the same effect: ‘Where an ox gored a cow and its [newly-born] calf was found [dead] nearby, so that it was not known whether the birth of the calf preceded the goring, or followed the goring, half damages will be paid for [injuries inflicted upon] the cow, but only quarter damages will be paid for [the loss of] the calf; this is the view of Sumchus. The Sages, however, say: If one claims anything from his neighbor, the onus of proof falls on him.
  R. Samuel bar Nahmani stated: From where can we learn that the onus of proof falls on the claimant? It is said (Ex 24:14): If any man has any matters to attend, let him come before them, [implying] ‘let him bring evidence before them’. But R. Ashi demurred, saying: Do we need Scripture to tell us this? Is it not common sense that if a man has a pain he visits the doctor? Bava Kama 46a-b
  
  7 Employees and employers
  
  <i>7. Employees and Employers</i>
  <i>Mishna</i>. One who engages laborers and demands that they commence early or work late — where local usage is not to commence early or work late, he may not compel them. Where it is the practice to supply food [to one’s laborers], he must supply them with it; if to provide a dessert, he must provide it. Everything depends on local custom. It once happened that R. Yohanan ben Mathia said to his son, ‘Go out and engage laborers.’ He went and agreed to supply them with food. But on returning to his father, the latter said, ‘My son, should you even prepare for them a banquet like Solomon’s in his glory, you cannot fulfill your undertaking, for they are children of Abraham, Isaac and Jacob. But, before they start work, go out and tell them, “[I engage you] on condition that you have no claim upon me other than bread and pulse.’’ R. Shimeon ben Gamaliel said: It was unnecessary [to stipulate thus]; everything depends on local custom.
  <i>Gemara</i>. Is it not obvious? — It is necessary [to teach it] only when he [the employer] pays them a higher wage [than usual]: I might think that he can plead, ‘I pay you a higher wage so that you will start earlier and work for me until nightfall.’ We are therefore taught that they can reply, ‘The higher remuneration is [only] for better work [but not for longer hours].’ Bava Metzia 83a
  <i>Mishna</i>. Whether it be the hire of man, beast, or utensils, it is subject to [the law], ‘On his day you shall give him his wage, and, the wages of the hired man shall not remain with you until the morning.’ (Lev. 19:13) When is that? Only if he demanded [it] of him; but otherwise, there is no infringement. If he gave him a (money) order to a shopkeeper or a money-changer, he is not guilty of infringement. A hired laborer, within the set time, swears [that he has not received his wages] and is paid. But if his set time passed, he cannot swear and receive payment; yet if he has witnesses that he demanded payment (within the set time), he can [still] swear and receive it.
  <i>Gemara</i>: <i>A hired laborer, within the set time, swears and is paid</i>. Why did the Rabbis enact that a hired laborer should swear and receive [payment]? — Rav Yehuda said in Samuel’s name: Great laws were taught here. Are these then [traditional] ‘laws’? They are surely merely [Rabbinical] measures! — But, said Rav Yehuda in Samuel’s name, Important enactments were taught here. ‘Important’? Does that imply the existence of unimportant ones? — But, said R. Nahman in Samuel’s name, Fixed measures were taught here. Thus: The oath is the employer’s privilege, but the Rabbis took it away from the employer and imposed it upon the employee, for the sake of his livelihood. And on account of the employee’s livelihood, are we to cause loss to the employer? — The employer himself prefers that the employee should swear and be paid, so that workers should engage themselves to him. [On the contrary], the employee himself would rather that the employer should take an oath and be exempt, so that he should hire him! — The employer is bound to engage [laborers]. But the employee too is forced to seek employment! — But [the reason is that] the employer is busily occupied with his laborers. If so, let us award it [the wage] to him without an oath! — [The oath is] in order to appease the employer. Then let him pay him in the presence of witnesses. — That is too much trouble. Bava Metzia 111a-112b
  Our Rabbis taught: If a caravan was travelling in the desert and a band of robbers threatened to plunder it, and one member of the caravan rose and rescued [some of their belongings], whatever he rescued will go to the respective owners, whereas if he said at the start, ‘I am going to rescue for myself’, whatever he rescued would belong to himself. What are the circumstances? If [the other owners were] able to rescue their belongings, why should not the rescued belongings go to the respective owners even in the second case? If on the other hand no [other owner was] able to rescue [anything], why should they not belong to the man himself even in the first case? — Said Rami bar Hama: We are dealing here with partners, and [in an emergency] like this, a partner may dissolve partnership even without the knowledge of his fellow: so that where he made a stipulation [as in the concluding case], the partnership has been dissolved, whereas if no stipulation was made [as in the first case] the partnership has not yet been dissolved. Rava, however, said that we are dealing here with laborers, and the ruling follows the view of Rav, for Rav said that a laborer is entitled to withdraw even in the middle of the day. Hence so long as he did not withdraw, [whatever he rescues is regarded] as being in the possession of the employer, whereas after he had already withdrawn it is a different matter altogether, as it is written (Lev 25:55): For unto me the Children of Israel are servants; they are my servants, but not servants to servants. Bava Kama 116b
  Some porters [negligently] broke a barrel of wine belonging to Rabbah son of R. Huna. Thereupon he seized their clothes; so they went and complained to Rav. ‘Return them their garments,’ he ordered. ‘Is that the law?’ he enquired. ‘Even so,’ he rejoined (Prov 2:20): ‘That you may walk in the way of good men.’ Their clothes having been returned, they observed. ‘We are poor men, have worked all day, and are in need: are we to get nothing?’ ‘Go and pay them,’ he ordered. ‘Is that the law?’ he asked. ‘Even so,’ was his reply (ibid.): ‘and keep the path of the righteous.’ Bava Metzia 83a
  
  8 Charity
  
  <i>8. Charity</i>
  R. Hama son of R. Hanina further said: What is meant by the text: You shall walk after the Lord your God (Deut 13:5)? Is it then possible for a human being to walk after the Shechinah; for has it not been said: For the Lord your God is a devouring fire (Deut 4:24)? But [the meaning is] to imitate the attributes of the Holy One, blessed be He. As He clothes the naked, for it is written: And the Lord God made coats of skin for Adam and his wife, and clothed them (Gen 3:21), so do you also clothe the naked. The Holy One, blessed be He, visited the sick, for it is written: And the Lord appeared unto him by the oaks of Mamre (Gen 18:1), so do you also visit the sick. The Holy One, blessed be He, comforted mourners, for it is written: And it came to pass after the death of Avraham, that God blessed Itshak his son (Gen 25:11), so do you also comfort mourners. Sotah 14a
  Our Rabbis taught: The charity fund is collected by two persons [jointly] and distributed by three. It is collected by two, because any office conferring authority over the community must be filled by at least two persons. It must be distributed by three, on the analogy of monetary cases [which are tried by a Bet Din of three]. Food for the soup kitchen is collected by three and distributed by three, since it is distributed as soon as it is collected. Food is distributed every day, the charity fund every Friday. The soup kitchen is for all comers, the charity fund only for the poor of the town …
  Our Rabbis taught: The collectors of charity [when collecting] are not permitted to separate from one another, although one may collect at the gate while the other collects at a shop [in the same courtyard]. If one of them finds money in the street, he should not put it into his purse, but into the charity box, and when he arrives home he may extract it. In the same way, if one of them has lent a man a <i>maneh</i> and he pays him in the street, he should not put the money into his own purse, but into the charity box, and take it out again when he arrives home. Bava Batra 8b
  R. Huna said: Applicants for food are examined, but not applicants for clothes. This rule can be based, if you like, on Scripture, or if you prefer, on common sense. It can be based if you like on common sense, because the one [who has no clothing] is exposed to contempt, but not the other. Or, if you prefer, on Scripture — on the verse, <i>Is it not to examine [p’ros] the hungry before giving him your bread?</i> (Isi. 58:7) [for so we may translate since] the word <i>p’ros</i> may be written with a <i>sin</i>, as much as to say, ‘Examine and then give to him:’ whereas later it is written, <i>When you see the naked, that you cover him</i>, that is to say, immediately. Rav Yehuda, however, said that applicants for clothes are to be examined, but not applicants for food. This rule can be based on common sense if you like, or if you prefer, on Scripture. If on common sense — because the one [without food] is actually suffering, but not the other. Or if you prefer, on Scripture — because it says, <i>Is it not to distribute your bread to the hungry?</i> that is, at once; whereas later it is written, <i>When you see the naked</i>, that is to say, ‘When you shall have seen [that he is deserving]’. In agreement with Rav Yehuda it has been taught: If a man says, ‘Clothe me,’ he is examined, but if he says, ‘Feed me,’ he is not examined. Bava Batra 9a
  <i>Mishna</i>…Similarly if an orphan is given in marriage, she must be awarded not less than fifty zuz. If [charity] funds are available, she is to be fitted out in accordance with the dignity of her position.
  <i>Gemara</i>… Our Rabbis taught: If an orphan boy and an orphan girl applied for maintenance, the girl orphan is to be maintained first and the boy orphan afterwards, because it is not unusual for a man to go around begging, but it is unusual for a woman to do so. If an orphan boy and an orphan girl applied for a marriage grant, the girl orphan is to be enabled to marry first and the boy orphan is married afterwards, because the shame of a woman is greater than that of a man. Our Rabbis taught: If an orphan applied for assistance to marry, a house must be rented for him, a bed must be prepared for him and [he must also be supplied with] all [household] objects [required for] his use, and then he is given a wife in marriage, for it is said in Scriptures (Deut 15:8), Sufficient for his need in that which he lacks: ‘sufficient for his need’, refers to the house; ‘in that which he lacks’, refers to a bed and a table; ‘he’ refers to a wife, for so it is said in Scripture (Gen 2:8), I will make him a help meet unto him.
  Our Rabbis taught: ‘Sufficient for his need’ [implies] you are commanded to maintain him, but you are not commanded to make him rich; ‘in that which he lacks’ [includes] even a horse to ride upon and a slave to run before him. It was told about Hillel the Elder that for a certain poor man who was of a good family he bought a horse to ride upon, and a slave to run before him. On one occasion he could not find a slave to run before him, so he himself ran before him for three miles.
  Our Rabbis taught: It once happened that the people of Upper Galilee bought a pound of meat every day for a poor member of a good family of Zippori. ‘A pound of meat’! What is the greatness in that? — R. Huna replied: [It was] a pound of fowl’s meat. And if you prefer I might say: [They purchased] ordinary meat for a pound [of money]. R. Ashi replied: The place was a small village and everyday a whole beast had to be spoiled for his sake.
  A certain man once applied to R. Nehemiah [for maintenance]. ‘What do your meals consist of?’ [the Rabbi] asked him. ‘Of fat meat and old wine’, the other replied — ‘Will you consent [the Rabbi asked him] to live with me on lentils?’ [The other consented,] lived with him on lentils and died. ‘Alas’, [the Rabbi] said, ‘for this man whom Nehemiah has killed.’ On the contrary, he should [have said] ‘Alas for Nehemiah who killed this man’! — [The fact], however, [is that the man himself was to blame, for] he should not have cultivated his luxurious habits to such an extent.
  A man once applied to Rava [for maintenance]. ‘What do your meals consist of?’ he asked him. ‘Of fat chicken and old wine’, the other replied. ‘Did you not consider’, [the Rabbi] asked him, ‘the burden on the community?’ ‘Do I’, the other replied, ‘eat of theirs? I eat [the food] of the All-Merciful; for we learned (Ps 145:15): The eyes of all wait for You, and You give them their food in due season. This, since it is not said, ‘in their season’ but ‘in his season’, teaches that the Holy One, blessed be He, provides for every individual his food, in accordance with his own habits.’ Meanwhile there arrived Rava’s sister, who had not seen him for thirteen years, and brought him a fat chicken and old wine. ‘What a remarkable coincidence!’ [Rava] exclaimed; [and then] he said to him, ‘I apologize to you, come and eat’.
  Our Rabbis taught: If a man has no means and does not wish to be maintained [out of the poor funds], he should be granted [the sum he requires] as a loan, and then it can be presented to him as a gift; these are the words of R. Meir. The Sages, however, said: It is given to him as a gift, and then it is granted to him as a loan. ‘As a gift’? He, surely, refuses to take [gifts]! Rava replied: It is offered to him in the first instance as a gift. If he has the means but does not want to maintain himself, [at his own expense], he is given [what he needs] as a gift, and then he is made to repay it. (If ‘he is made to repay it’ he would, surely, not take a second time! — R. Papa replied: [Repayment is claimed] after his death.) R. Shimeon said: If he has the means and does not want to maintain himself [at his own expense], no one need feel any concern for him. If he has no means and does not wish to be maintained [out of the poor funds] he is told, ‘Bring a pledge and you will receive [a loan]’ in order thus to raise his [drooping] spirit. Ketubot 67a-b
  R. Eleazar said: A man who gives charity in secret is greater than Moses our Teacher, for of Moses it is written (Deut 9:19), For I was afraid because of the anger and the wrath, and of one who gives charity [secretly] it is written (Prv 21:14), A gift in secret subdues anger. Bava Batra 9b
  Mar ‘Ukva had a poor man in his neighborhood into whose door-socket he used to throw four <i>zuz</i> every day. Once [the poor man] thought: ‘I will go and see who does me this kindness.’ On that day [it happened] that Mar ‘Ukva was late at the house of study, and his wife was coming home with him. As soon as [the poor man] saw them moving the door he went out after them, but they fled from him and ran into a furnace from which the fire had just been swept. Mar ‘Ukva’s feet were burning and his wife said to him: Raise your feet and put them on mine. As he seemed diappointed, she said to him, ‘I am usually at home and my charity gifts are direct’. And what [was the reason for] all that? — Because Mar Zutra ben Tuviah said in the name of Rav (others state: R. Huna ben Bizna said in the name of R. Shimeon the Pious; and others again state: R. Yohanan said in the name of R. Shimeon ben Yohai): Better had a man throw himself into a fiery furnace than publicly put his neighbor to shame. From where do we derive this? From [the action of] Tamar; for it is written in Scripture (Gen 38:24), When she was brought forth, [she sent to her father-in-law privately]. Ketubot 67b
  It has been taught: The following incident is related of Benjamin the Righteous who was a supervisor of the charity fund. One day a woman came to him in a year of draught, and said to him: ‘Sir, help me.’ He replied, ‘I swear, there is not a penny in the charity fund.’ She said, ‘Sir, if you do not assist me, a woman and her seven children will perish.’ He accordingly helped her out of his own pocket. Sometime later he became dangerously ill. The angels addressed the Holy One, blessed be He, saying: King of the Universe, You have said that he who preserves one soul of Israel is considered as if he has preserved the whole world; shall then Benjamin the Righteous who has preserved a woman and her seven children die at so early an age? Straightway his sentence was torn up. It has been taught that twenty-two years were added to his life. Bava Batra 11a
  It has been taught: R. Eliezer son of R. Yose said: All the charity and deeds of kindness which Israel perform in this world [help to promote] peace and good understanding between them and their Father in heaven; as it says (Jer 16:5), Thus says the Lord, Enter not into the house of mourning, neither go to lament, neither bemoan them, for I have taken away my peace from this people. . . even loving-kindness and tender mercies, [where] ‘loving-kindness’ refers to acts of kindness, and ‘tender mercies’ to charity. Bava Batra 10a
  
  VIII What is not written in the Talmud? Jew and Gentile
  
  
  
  VIII. What is not written in the Talmud? – Jew and Gentile
  <i>This chapter was entitled by the author “What is not found in the Talmud?” It contains numerous quotations from the Torah and Talmud, which refute the charges brought by anti-Semites throughout history, and especially by the Nazis, the ultimate egalitarians, that the Jews see themselves as an elite nation, a race superior to the rest of mankind. The fact that Jewish morality and ethics smote in the face of the cruelty and violence which pervade the nations of the world through all of history, brought the world to seek excuses to hate, to persecute and to crush the people of Israel.</i>
  <i>This chapter was translated from the original German by Chaya-Batya Markovits</i>
  Ever since the attack on the Talmud at the beginning of the 16th century by the “Men of Darkness”1 under the leadership of Pfefferkorn1<i class="footnote">Johannes Pfefferkorn; 1496-1521, an apostate who supported the burning of the Talmud, and debated with the humanist Reuchlin (see footnote 6 below).</i>, controversy surrounding this work has been continuous. After Pfefferkorn, an apostate former butcher’s apprentice, came Eisenmanger2<i class="footnote">Johann Andreas Eisenmenger; 1654-1704 was a professor of Hebrew at the University of Heidelberg. He is considered one of the fathers of modern anti-Semitism. The title of his book reveals the intention of the author, namely to insinuate that the Jews are hiding their true nature and character. The book is based on anti-Jewish stereotypes which were widespread during the Middle Ages, which Eisenmenger tries to support with quotations from Jewish sources. He did not falsify these quotations, as was claimed, but he interpreted them in a tendentious manner in order to prove his theories.</i> (Professor of Oriental Languages at the University of Heidelberg) at the end of the 17th century with his book “Entdecktes Judentum” (Judaism Exposed). In the second half of the 19th century, Rohling3<i class="footnote">August Rohling; 1839-1931, was a Catholic priest and professor of theology at Prague University. He was known as an anti-Semite primarily through his book “Talmudjude", in which he collected quotations from the Talmud, which were taken out of context and interpreted in a negative manner. He based his book to a great extent on that of Eisenmenger, as well as on the apostate Brimann (Dr. Justus, see 5 below). The book was greatly influential, and even Julius Streicher used Rohling’s arguments in his anti-Semitic newspaper Der Stὒrmer.</i> published his book “Der Talmudjude” (The Talmudic Jew). In the controversy which raged around the Talmud at that time, Rohling based his arguments on the infamous book “Judenspiegel” (The Jewish Mirror) by the apostate Jew “Dr. Justus”, otherwise known as Aron Israel Brimann4<i class="footnote">Aron Israel Brimman; 1859-1934, known also by his pseudonym “Dr. Justus”, was a Rumanian Jew who converted to Christianity, first as a Protestant and later as a Catholic.</i>. (Besides “Judenspiegel” Justus published a book on the Kabbalah in which he claims that the anti-Jewish Talmud study begun with Eisenmanger and concluded with “Judenspiegel” – his own book! – was based on stupidity and ignorance. The book was published under his own name with the written approval of Bishop Eder of Salzburg. A synopsis of “Judenspiegel” by Justus-Brimann appears in the book: “Die Sittenlehre des Juden; Auszug aus dem Talmud (Schulchan-Aruch)” (Jewish Ethics. A Summary from the Talmud (Shulchan –Aruch)), Jakob Ecker, Marby Verlag.
  Heading the list of those who defended the Talmud are the humanist Johannes Reuchlin,5<i class="footnote">Johannes Reuchlin; 1455-1522. A thinker, lawyer and diplomat. He was one of the first Germans who were fluent in Hebrew. He publicly debated the apostate Pfefferkorn. (footnote 1 above).</i> nicknamed “The German Pheonix”, and in more recent times, professors Delitzsch6<i class="footnote">Franz Julius Delitzsch; 1813-1890. An Evangelical-Lutheran theologian who specialized in the interpretation of the Bible. He was considered especially expert in the Hebrew language. He worked in a mission amongst the Jews.</i>, Strack7<i class="footnote">Hermann Leberecht Strack; 1848-1922. A Protestant theologian and Orientalist. One of the greatest defenders of the Jews; he was one of the few Protestant theologians who stood against anti-Semitism even after WWI. In his article Jὒdische Geheimgesetze? [Secret Jewish laws] he proves that Jewish Law was always open, nothing was hidden, and that it was forbidden for Jews to treat non-Jews any differently than their fellow Jews.</i>, Wὒnsche8<i class="footnote">8Karl August Wὒnchel; 1838-1912. An evangelical theologian and an expert in the Hebrew language. He published a translation of the Aggadah and a book about the history of Jewish literature.</i>, Nὃldeke9<i class="footnote">Theodore Nὂldeke; 1836-1930. An Orientalist who also engaged in Bible research.</i>, Kahle10<i class="footnote">Paul Ernst Kahle; 1875-1964. A Protestant theologian and Orientalist. Together with Rudolf Kittel he published an edition of Bible criticism called The Old Testament or The Hebrew Bible.</i> and others.
  In our opinion it is impossible to judge the attitude of Talmudic Judaism towards the non-Jewish environment, using primarily a random collection of quotations. This question can only be answered within the framework of a scientific investigation of the entire Talmud. Unfortunately we are still in the beginning stages of such an enquiry.
  As a consequence of the intensity of the controversy surrounding the Talmud it was impossible to prevent misunderstandings, inaccuracies and mistakes from taking root, especially in the anti-Jewish literature of quotations from the Talmud. These inaccuracies are being repeated over and over today, and it may be presumed that in many cases this is done in good faith. We do not intend to continue the controversy on the subject, and even if we may discuss some well-known quotations from the Talmud later on, it will not be by way of apology. We are not looking outward, but inward to the large part of western European Jewry itself, those who have no access to the Talmud, and in most cases are unable to check the quotations which have become so popular, on their own.
  
  1 "You are called man"
  
  <i>1. “You are called man”</i>
  In which context was the above sentence mentioned? Eisenmanger quotes (I,15) from Bava Metzia 114b, as follows: Rabbi Shimon ben Yochai says, the graves of gentiles or other non-Jews do not confer impurity, since it is said (Ezekiel 34:31): You are my sheep, my flock, you are men. You are called men, whereas the other nations of the world are not called men, but animals.
  The above passage was quoted nearly correctly, with the exception of the two words “but animals”. This is an addition made by Eisenmanger himself, and it is found neither in Bava Metzia nor in any other place in the Talmud. Yet it seems that even without the aforementioned addition the passage is serious enough. Therefore, the falsification raises even greater suspicion. Another inaccuracy is the use of the plural “men”. The passage in Bava Metzia says: “You are called man (human)” in the singular. In Yevamot (60b and 61a) we learn first of all which halachic definition is being discussed. There the same saying of Rabbi Shimon ben Yochai is quoted in a more exact manner, as follows: “And so Rabbi Shimon ben Yochai says: It is clear that idolaters do not defile an enclosed space as it is said, ‘and you are my flock etc.’ (as quoted above from Bava Metzia)”. From Yevamot we learn first of all that what R. Shimon ben Yochai said was not accepted by the Sages; they do not distinguish between Jewish and non-Jewish graves. In Halachic practice a “majority” opinion is accepted over the opinion of that of the “individual”. (See Schulhan Aruch,Yore Deah, sec. 372). It is also clear here that the issue is not one of impurity due to contact with a corpse. In this instance, even the “individual opinion”, R., does not distinguish between Jews and non-Jews. Surprisingly, on this point there is no difference between Jews and gentiles even according to R. Shimon ben Yochai, and the impurity caused by contact with a gentile corpse is of the same degree as that caused by contact with a Jewish corpse; this is in no way comparable to the impurity caused by contact with a dead animal. R. Shimon ben Yochai speaks only of “impurity within the tent”, that is, the impurity caused by being present together with a corpse in the same enclosed space. Had R. Shimon ben Yochai seriously considered gentiles as not being “man” or human, he would have made the same distinction that he does in the case of “impurity within the tent” in the case of impurity caused by physical contact.
  R. Shimon ben Yochai’s intention, when he said “You are called man” can only be explained by the saying of Ravina which is connected to it. Ravina said (Yevamot, ibid.): “When the Torah excludes (the non-Jew) from impurity within the tent, as it is written [Bamidbar 19:14], a person who dies in a tent (enclosed space), does it also exclude him from impurity caused by contact? – In other words: regarding impurity within a tent it is said: a person who dies in a tent – any dead person in a tent. In the quotation above, from Ezekiel (ibid.), the expression “man” should be read in connection with “you” – you are man. R. Shimon ben Yochai deduces from this that in every instance that the text uses the term “man”, this does not refer to all men, but only to Jews. This is a Talmudic analogy based on an identical term in the text, which was discussed in Section II, 1; in the text before us it should be interpreted thus:
  In the book of Ezekiel the term “man” refers to Jews.
  The same term “man” appears in the issue of “impurity in a tent”.
  Thus the term “man” used in the issue of “impurity in a tent” refers only to Jews.
  This analogy between “man” in the book of Ezekiel and “man” in Bamidbar is necessary for the only reason that the word “man – human” includes non-Jews as well. However, they wanted to prove, by the use of an analogy that certain laws of purity refer only to Jews, since the sentence in the Biblical text “if a man should die in a tent” means: If one of you should die in a tent…here there is no general rule regarding non-Jews, rather a legal determination of the usage of the term “man” in the Biblical text.
  This interpretation of words, which is determined legalistically by the use of analogy, appears often in the Talmud. Professor Hoffman11<i class="footnote">Rabbi David Zvi Hoffman (1843-1921) was a decisor and Biblical commentator. He was a student of Rabbis Moshe Schick and Azriel Hildesheimer. Upon the latter’s death he succeeded him as head of the Rabbinical College in Berlin. He was a researcher and teacher of the Talmud. After the establishment of the “Agudat Yisrael” party he became a member of its Council of Sages.</i>, in his book (“Shuhan Aruch”12<i class="footnote">The complete title: Der Schulchan-Aruch und die Rabbinen ὒber das Verhἂltniẞ der Juden zu Andersglἂuben [The Schulhan Aruch and the Rabbis on the attitude of the Jews towards other religions]. This book was written after the appearance of the books Judenspidgel of Dr. Justus (Aron Israel Brimann, see above) and Der Judenspiegel im Lichte der Wahrheit [The Mirror of the Jews in the Light of Truth, by Jakob Ecker], which contained false laws from the Schulhan Aruch in order to prove the racist character of Judaism.</i>, Berlin 1885) has already called attention to several examples, well-known to those well-versed in the Talmud. In order to illustrate this legalistic interpretation of words we will just mention the following: In Menahot (10:1) it is written: “A finger means only the right finger”, since in one instance in the text it is written: “the right finger” (Levit. 14:16). In Talmudic style one could render the sentence quoted above like the statement of R. Shimon ben Yochai, and then it would read: The fingers of the right hand are called fingers, and the other fingers are not called fingers. No one would even consider that this was the generalization as to fingers of the left hand. The same is true of the sentence: “You are called man”.
  The proof: Besides the term “man” there are several other terms in the Hebrew language for “man/human being” such as “enosh – human being”, “ish–man/person” etc. Nowhere is it found that these words are not used for non-Jews. On the contrary, in several places it is emphasized that these expressions are so broad, that they refer to non-Jews as well. In Tr. Gitin (47a) it is written: “Rava said, although idolaters cannot purchase (land) in Eretz Israel in order to exempt in from tithes, as it is written “because the land belongs to Me” (Levit. 25:23), i.e., the holiness of the land belongs to me, yet the idolater may dig wells, pits and caves, as it is written: The heavens belong to the Lord but the earth was given to man (Psalms 115:16)”. Hence we see that the expression “man” proves that the sentence speaks not only of the Jews, but for all mankind, that is, non-Jews as well. As to the prohibition of cursing G-d, it is written in Tr. Sanhedrin (56a) “The sages learned ‘man’ (written once, Leviticus 24:15, in connection with cursing G-d, and that would have been enough) but it was written twice; ‘a man, even a man’ meaning “anyone”. This is to warn idolaters as well as Jews that this is prohibited. We could assume that since the Torah was given to the Jewish people that the meaning of “ish-man” was intended solely for a Jewish man. However, from the repetition of the term “ish-man” we deduce that it means: everyone – that is, non-Jews as well.
  The manner in which the aforementioned sentence of R. Shimon ben Yochai was distorted, out of ignorance and an outburst of hatred, arises from the following: Like R. Shimon ben Yochai, R. Meir also thinks that the word “man” in the Torah applies only to Jews, as it is written in the book of Ezekiel: “You are my flock, my grazing flock, you are men” [also in Ezekiel 34, 31]. However, the same R. Meir has stated in many other places (Tr. Avodah Zarah 3a; Sanhedrin 49a; Bava Kama 38a): “How do we know that even an idolater who is steeped in Torah is like the High Priest? We learn from (Leviticus 18:5) “if the man performs them (the commandments) and lives by them – Priests, Levites and Israelites; it states “the man”, the article “the” indicating that even an idolater who is steeped in Torah is like the High Priest”. The aforementioned quotation clearly shows that R. Meir, like R. Shimon ben Yochai, sees the word “man” as referring solely to Jews, and there was nothing further that he could say than: Gentiles are not considered as people. (The generality of the expression “the man” means that the Biblical text refers in this specific instance to all men, that is also to gentiles.)
  In the words of R. Meir here there is no internal conflict whatsoever. According to the literal interpretation it is determined that: The Biblical text refers to Jews when it uses the expression “man”. However, such interpretations can only be used if the expression is exactly the same. If we determine that according to the literal interpretation of the word, “man”, which actually includes all humanity, is used in the Biblical text only in reference to the Jews, then this will only be valid as to the form “man – that is: any person”, but not to any other grammatical form, for example: “the man” using the definite article. In the aforementioned quotation R. Meir bases his argument on the text: “which the man will do” – that is: the man who acts according to them (the commandments). The parallel meaning of the word “man” – any man, is not applicable to “the man” – with the definite article, and so the word returns to its original meaning of man in general, including the non-Jew. (The issue becomes clearer if one remembers that the literal interpretation is based on Talmudic analogy. Yet the analogy forms the underlying condition for this, namely the identity of the expressions.
  Thus it is absolutely clear: only when dealing with the word “man”, and only in this grammatical form does R. Shimon ben Yochai say that when the Bible uses it, it is referring to Jewish men and not to gentiles. However nowhere in the Talmud is it found that one cannot use the term “man” about humanity as a whole. Therefore the translation of R. Shimon ben Yochai’s sentence should be as follows: “You are called ‘man'” [without the definite article] (In the Biblical text, that is, the Bible relates to you when using this word), while the other nations of the world are not called “man” [without the definite article]; the use of this word in this grammatical form is not intended for them).
  In order to show just how far the Talmud is from perceiving the nations of the world as inhuman, several further examples will be presented. Many more examples could be added. On the basis of Tr. Berachot 58a, the Schulhan Aruch (Orach Haim 224:7) rules: “Whoever sees sages of other nations who are wise in the ways of the world should say the blessing – Blessed art Thou Our G-d Lord of the Universe who has given of His wisdom to [one of] flesh and blood.” Similarly it is ruled that when one sees gentile royalty, one must say: Blessed art Thou Our G-d Lord of the Universe who has bestowed of His Glory to (a person made of) flesh and blood”. As for respecting the aged it is written in Tr. Kidushin (33a): “Isi ben Yehuda says, one should stand up before an elderly person (Leviticus 19:32), even an elderly gentile (ibid. 32b). R. Yochanan stated, the law is according to Isi ben Yehuda.
  R. Yochanan would stand up before aged Amorites, saying “How many troubles have passed over these folk?” Rava would not rise, but gave them respect; Abaye would give a hand to the aged (in support). Rava would send his servant; Abbaye would send his eunuchs.
  In Tr. Berachot 17a one reads: A favorite saying of Abbaye was – A man should always be prudent, from fear of Heaven. A soft answer turns away wrath (cf. Prov. 15:1), and one should always strive to be on the best of terms with his brothers, his relatives, and with all men, even with a non-Jew on the street; so that he be beloved from above, and well-liked below, and popular among men. It is told of R. Yochanan ben Zakkai that no-one ever managed to greet him first even a Gentile on the street. (R. Yochanan ben Zakkai lived through the destruction of the Temple in 70 CE, was the great reorganizer of Jewish life in Yavneh, and was the undisputed leading personality of his generation. Abbaye, born in Babylon in 280 CE, is a typically representative Talmudist. In common jargon, “To learn Abbaye and Rava” (his colleague) simply means to study Talmud.)
  So also the Shulhan Aruch (Yoreh Deah 244:7): “You should respect even an aged idolater (meaning: you should address him respectfully, be considerate of his age while conversing, etc.) and you should extend a hand to support him”. On the drowning of the Egyptians in the Red Sea it is written in the Talmud (Sanhedrin 39b): “At that time the ministering angels wished to sing praises to the Lord (as they did every day). The Lord said to them, ‘My creations are drowning and you wish to sing praises to me?'”. One can compare this Talmudic Aggadah, which is not halachic, with a determination in the Schulchan Aruch (Orach Haim 490:4), according to which one does not say the Hallel in its entirety on the intermediate days and on the last day of Passover. According to the explanation of the compiler of the Schulchan Aruch in his commentary for the Tur there, this was decided because on the seventh day of the festival the Egyptians drowned, as is written, “At the downfall of your enemy do not rejoice” (Prov. 24:17), and this sentence refers also to the aforementioned passage in Sanhedrin.
  In the Yalkut Genesis, sec. 76, the following saying is found: “G-d said (to Moses), there is no bias before me between an Israelite and a non-Jew, between a man and a woman, between a male slave or a maidservant. Keep a commandment and receive its reward as it is said: Your justice is as the mountains of the Lord etc. (Psalms 36:7)”. And only the continuation of this idea is in Eliyah Raba (10:9) where it is said: “I bring the heavens and the earth on me a witnesses, whether a man or a woman, a gentile or a Jew, a slave or a maidservant, everything depends upon a man’s actions”. In Avodah Zarah (10b) is written: “(The idolater Antoninus asked R. Yehuda HaNasi): Will I enter the world to come? He answered him: Yes! Said he, But it is written (Obadiah 1:18), There will be no remnant of the house of Esau. (and received the answer) This refers to one who follows the acts of Esau, as we have learned…This is in line with the Talmud in Tr. Sanhedrin (105a), where the argument between R. Eliezer and R. Yehoshua was decided in accordance with the Mishna in favor of the opinion of R. Yehoshua, that only the evil gentile (like Bilaam) will have no place in the world to come, but this is not so for the gentile who is not wicked. This principle is also laid down (according to Talmudic sources) by the Rambam (Laws of Kings 8:11), and it was unanimously accepted by all the commentators and decisors who came after them (see the commentary of Bet Yosef on the Shulchan Aruch, Yoreh Deah 367, and many others). Just how alive this principle is in Judaism is proved by the fact that this principle is well-known to anyone who is well-versed in the Talmud in the words: All the righteous of the nations have a portion in the world to come. However, as far as we know the contents of this statement are not formulated in these words in any Talmudic source. The source of this formulation is evidently Jewish folklore.
  
  2 The discriminatory laws
  
  <i>2. The discriminatory laws</i>
  What of the discriminatory laws or “judgments lacking in equality before the law”? What about “double standards” in the Talmud? – As we have already mentioned in the introduction we are unable at this time to answer this question in a convincing manner. Research into the Talmud cannot yet answer this question. For now we can only try to turn our attention to a number of important points.
  In the Talmud there are a large number of terms for non-Jews, such as gentile – a stranger, Goy — nation (son of a different nation), Samaritan – a dweller in Kuta, Akum – star-worshiper (an acronym for worshipers of the stars and constellations). To any intelligent person it is clear that one cannot substitute one appellation for another at random. But it seems that today it is nearly impossible to find anyone who can define the exact differences and possible nuances between the various names. The lack of clarity on this issue increased due to the censorship in the Talmud, and lead to complete confusion. They changed the terms “gentile”, “stranger” and “goy” indiscriminately for “Akum” or “Samaritan” with the intention of removing from the Talmud any unpleasant reference which could perhaps be applied to Christians as well. (Using the terms “gentile”, “stranger” or “goy” it would be possible to include the Christians, but it would not be possible if they used the term “Samaritan” – a son of the city Kuta, or “Akum” – an star-worshiper. This was the rationale of the censors.)
  However, it is clear that the distinction between Jews and non-Jews can be made by at least two criteria: by the social-political criterion and by the religious criterion. The latter includes the term “Akum” (general term for idol worshiper), and the former the term “gentile” – stranger, just as one would not interchange the term “stranger” [a son of a different country] with the term “barbarian” which denotes a certain level of culture.
  a. The gentile – stranger
  The term gentile-stranger presupposes the existence of a Jewish State or an autonomous Jewish society. The gentile is one who does not live permanently in such an autonomous Jewish society, and whose laws do not apply to him. That is, not the gentile himself, but more precisely: the “stranger” [a son of another country] the non-Jew. (See Deuteronomy 29:21: “and the stranger who comes from a far-off land…”; Samuel II 15: 19-20 “And the king said to Ittai the Gittite, Why should you go with us,? Return and stay with the king because you are a stranger, an exile from your place. Yesterday you came to us and today I should trouble you to go with us?” Or quite clearly in the prayer of King Solomon at the dedication of the Temple, Kings I 8:41-43: “And even to the stranger who does not belong to the Jewish people, and who has come from a distant land for Your name’s sake…You will listen (to his prayer) from the Heavens…”)
  On the other hand, a non-Jew who has settled [permanently] in an autonomous Jewish society is called a “ger” or literally: a resident, guest – that is: not a native citizen.
  Certain laws served to regulate the relationships between the “gentile” – “stranger” [a foreign resident] and the Jewish society. The most well-known law of the all is the prohibition of charging interest or “The Law of Usury”,13<i class="footnote">The German expression is: Wuchergesetz. The word Wucher meaning “increase”, “abundance” originally had a positive meaning, but over time the term acquired a negative connotation, due to the prohibition of the Church to the charging of interest.</i> as it is called. The relevant instruction in the Biblical text is generally quoted in mistranslation: you may take exorbitant interest from a non-Jew, and it is forbidden to take exorbitant interest from your fellow-Jew (Deuteronomy 23:21). The correct translation of the sentence is: It is permissible to take interest from the stranger (that is: whoever is outside a conceivable autonomous Jewish society), but it is forbidden to take interest from your fellow-Jew. The Jewish-Talmudic law does not differentiate between usury and interest. Even the smallest consideration on the loan is forbidden, for the lender to give and for the borrower to take. (The sages of Talmud even forbade gifts which might be construed as “interest”, and there is even a Talmudic instruction which forbids greeting the lender in an unusually polite manner, since this could be construed as “interest in the form of words”.) Such a law, which is more like a social convention, diverging considerably from principles of justice, is only valid if there is reciprocity. If I am forbidden to take interest, then I should be able to take a loan without paying interest. However this reciprocity existed only within the framework of Jewish society. The “stranger” certainly was not aware of the stringent prohibition of taking interest, so it would be illogical in a legal sense, since while this law is binding on all “fellow-Jews”, it does not obligate the “stranger”. The stranger was permitted to take interest, therefore it was also permitted to lend to him with interest.
  The same thing is true of a lost article belonging to a non-Jew. In Talmudic law there is no obligation to return the lost article to him. The basis for this instruction was the fact that the stranger did not accept the Biblical precept concerning the return of lost property, not because of hatred of the Jews, but because in non-Jewish society, as it was known at that time, there was no such instruction. Again the reciprocity which was the only basis for such laws was non-existent.
  The proof: According to the law in the Talmud one is obligated to return lost property only if the owner has not lost hope of retrieving it. If it was certain that the owner would have given up hope of retrieving his property, then the lost property would be considered ownerless, and the finder would be permitted to keep it. However, in Bava Metzia (24b) it is told: A person who found a bundle with four zuzim (coins) which had fallen into the River Biran, came to R. Yehuda, who told him, “Go and publicize it.” But is this not the same as though it had been cast into the sea? The River Biran is different: Since the bundle was stopped on the way, the owners had not lost hope of retrieving it, and the majority there, were strangers. Hence we learn that the law is not according to R. Shimon ben Eliezer, even if the majority were non-Jews. No (replies the Talmud), the case of the River Biran is different because the Jews dammed it and dredged it. Since the Jews dammed it, the bundle must have fallen from a Jew, and since the Jews dredged it the owners had not despaired of finding it. That is, since the workers were Jews, familiar with the laws of returning lost property, the Jewish owner did not give up hope. However if the workers had been non-Jews, the Jewish finder would have been permitted to keep the lost property. Since the Jew who lost the property would have to take into account that workers who might find it would be under no obligation to return it, he would lose hope of having it returned to him.
  From the above passage from Bava Metzia we see also that there is no obligation to return lost property found in a city where the majority of its residents are non-Jews, even if it were known for a certainty that a Jew had lost it, since the Jewish loser would take into account that a non-Jew would find it, and so he would give up hope of having it returned to him. (See also Shulhan Aruh, Hoshen Hamishpat 259:3) From this it is clear that they have established the principle: In the matter of a “stranger”, who does not acknowledge the obligation of returning lost property, there is therefore no obligation to return his lost property.
  The same is true for the rest of the few “discriminatory laws” regarding the stranger. The status of the “stranger” in Jewish-Talmudic law is determined only by specifically legal considerations, all of which are based on one principle, the principle of reciprocity. (Note: This is the basis in theory. In actuality there was the hope for a different approach, even towards the stranger. In Bava Metzia 60b for example, it is written: “Whoever increases his wealth by taking interest or profit from the poor, amasses it for another, who will be kind to them” (Proverbs 28:8)… Rav Nachman said: Huna explained to me, There is no need for this verse except on behalf of idolaters. On this Rava assailed Rav Nachman: “You shall cause the stranger to deal in interest” (Deut. 23:21). What does “deal in interest” mean? Not “take interest”? No, “pay interest!” And so also in Makkot 24a: His money he did not lend in interest (Ps. 15) – even to idolaters.
  On the Mishna which says that those who lend with interest are not qualified to be witnesses in court, Tr. Sanhedrin 25b states: Regarding loans with interest, both the lender and the borrower (are disqualified). And when are they reinstated? When they tear up their documents and make complete repentance. It is forbidden to charge interest even from a gentile.
  Regarding the law for lost property, see the note on p. 91.
  b. Akum — idolater
  We can see from the following example how exacting the Talmud was in its use of this principle. This example brings us from the political-social term – stranger – to the religious-cultural term – Akum. We come to distinguish between the relation of the Talmud to the “stranger”, which is based on the law, and its position towards the Akum – the idolater, which is determined from the religious-cultural point of view.
  In the Mishna, Bava Kama (37b), it is written: “If an ox belonging to a Jew which gores an ox dedicated for Temple use, or if a dedicated animal gores one belonging to a layman it is exempt (from payment of damages), as it is written (Exodus 21:35) ‘his neighbor’s ox’ and not a dedicated one. An ox belonging to a Jew which gores one belonging to a Canaanite is exempt (from payment of damages), while one belonging to a Canaanite which gores one belonging to a Jew, whether it was not known previously to be dangerous or had gored in the past, must pay the full value.” It is clear that one should not translate the term “Canaanite” as a general term for non-Jew. It would appear that the source of this instruction was from a period when the memory of the Canaanites living in Eretz Israel was still fresh. The Jews lived in a state of war with the Canaanites during the capture of the land at the time of Joshua, and for many years thereafter. From this we can understand the enactment of discriminatory laws concerning the Canaanite. But the Gemara, whose function it is to explain the Mishna, does not leave it at that. The Gemara framed the problem (Bava Kama 38a) in sharper and clearer legal terms than did all the Eisenmengers and Rohlings: “Make up your mind. If ‘neighbor’ is specific, then a Canaanite’s ox which gores a Jew’s ox should also be exempt. And if ‘neighbor’ is not specific, then we must convict the ox of a Jew which gores that of a Canaanite as well.” Said R. Abohu: The Bible states (Habakuk 3:6), ‘He stood and meted out the earth; He saw and caused the nations to wander.’ He regarded the seven Noahide commandments; because the nations did not observe them, He arose and released endemnity of Israel (towards them).
  Thus a new element entered the discussion. The legal principle of reciprocity is cancelled by the religious principle, meaning: the principle of reciprocity is not applicable concerning those who do not observe the seven Noahide laws. And so the Talmud states clearly: only in similar cases is this particular Mishna applicable, according to which a Jew is not liable to pay restitution, while the Canaanite is liable. In this manner the historic character of the “Canaanite” has become a type of person who does not observe the seven Noahide laws. As for all other non-Jews, the principle of reciprocity is applicable, as was clearly stated by the Talmud. (See also the interpretation of the Meiri [at the end of the 13th century], which is quoted by the Shita Mekubetset.)
  What is the meaning of non-observance of the seven Noahide laws? – The seven Noahide laws (Sanhedrin 46a) deal with the following issues: a. Justice (the obligation to set up a legal system); b. desecrating G-d’s name (the prohibition on cursing, using the name of G-d); c. the prohibition of idolatry; d. the prohibition of incest (including adultery); e. the prohibition of bloodshed; f. the prohibition of theft; g. the prohibition of eating meat cut from a live animal. While, according to Jewish perception the Torah was given originally only to the Jewish people, and no non-Jew is obligated to observe it, and it is even forbidden to force him to keep its precepts (see Rambam, Laws of Kings, 8:9), the aforementioned precepts are obligatory on all mankind. All non-Jews who recognize these commandments and keep them diligently, are considered from the Jewish perspective as “Righteous among the nations” and have a place in the world to come, as we stated above in paragraph 1 (See also Rambam, Laws of Kings, 8:11). In all of the Talmud there is not one law which discriminates against them. (If they are ‘strangers’ – then the principle of reciprocity also applies to them, it being legally justified.) On the other hand, discriminatory laws do apply to non-Jews who have rejected the Noahide Laws in principle, or have shown by their life-styles that they do not acknowledge them. These are the ones whom the Talmud calls Akum. The discriminatory laws concerning the Akum are of a relative minor scope. The Akum was never without legal rights or considered outside the Jewish law. In fact, in the Talmud there are differences of opinion as to whether it is permissible or forbidden to steal from an Akum. It was decided unequivocally (Bava Kama 113a-b) that it is forbidden to distinguish between a Jew and an Akum. (As for a stranger who is not an Akum, there is even no argument. This is so self-evident that the prohibition applies as it does to a Jew.) This is true also as to theft and cheating. (See Hulin 94a): “And because of two things they [the Sages] said one does not sell carrion and non-kosher meat to idolaters. One reason is that you are misleading the Akum who believes that the meat was slaughtered in a kosher manner.” And further: “As Shmuel said it is forbidden to deceive people, even idolaters.
  “Shmuel’s ruling was not stated specifically, but was deduced from the principle: Shmuel went on a ferry. He told his assistant, Pay the ferryman. When he paid him, Shmuel became angry. Why did he become angry? Abbaye said, He had a non-kosher fowl which he gave it him as one that had been slaughtered in the kosher manner. Rava said, It was a goblet, and he told him to give the boatman a drink. Whereupon he give him mixed wine.
  This may be compared to the Rambam who states:
  “It is forbidden to cheat people in business or to deceive them; and both an idolater and a Jew are equal in this matter” (Laws of Sale 18:1).
  Anyone who steals money worth a pruta or more breaks a negative commandment (a prohibition); as it is written, You shall not steal. We do not administer flogging on this prohibition, for it can be repaid, and the thief is obligated by the Torah to repay (the theft). And the law is the same whether he stole money from a Jew or from an Akum, or if he stole from the rich or the lowly (Laws of Theft 1:10).
  “One who does business either with a Jew or with an Akum, if he measured or weighed short of the correct amount, he has transgressed a negative commandment and is obligated to make restitution. One is also forbidden to cheat the Akum as to the price, but one must be precise with him; as it is written, and he shall reckon with his client (Lev. 25:50): even if he is your subordinate. All the more so if he is not in subjugation to you. Such a one comes under the category of “All those who do these things are an abomination before the Lord (Deut. 22:5) – whoever does such a thing, no matter where.” (Laws of Theft 7:8). In the Shulhan Aruh, Hoshen Hamishpat. (All of the above examples are merely a summary of the various Talmudic principles.)
  By which principle did they behave towards the Akum? We can see this best by summarizing the main discriminatory laws:
  1. “Rav Bibi bar Gidel said in the name of Rav Shimon Hasidai, stealing from a Canaanite is forbidden; taking what he has lost is permitted.” (That is, there is no need to return property that he has lost.)
  2. “Shmuel said, one is permitted to take advantage of his mistake” (There is no obligation to bring his mistake to his attention.) (Both quotations from: Bava Batra 141b)
  3. According to Avodah Zarah 20a the decision in the Shulhan Aruh, Hoshen Hamishpat 248:2, it is forbidden to give gifts to an Akum (with the exception of the poor or acquaintances).
  4. “Idolaters and shepherds of sheep or goats (including Jews, since they are also categorized as thieves, since they allow their flocks to graze on others’ pastures) you do not help them up (if they fall into a pit) or put them down (into a pit)” Avodah Zarah 26a.
  What is common to all these laws, including those mentioned which refer to compensation for damages: in matters of the Akum passive behavior is mandated. This sentence contains the principal concept. One can base all the discriminatory laws towards the Akum upon it (In addition to those mentioned above there are only a few more isolated categories.); the significance is a sort of social ostracism against people, who, by their non-observance of the most basic laws and commandments of human morality, put themselves outside society. The principle is expressed in a positive manner, and its intention is that it is forbidden to help the Akum without a special reason. Here a religious principle which appears in various places in the Talmud comes into play, a principle which the Shulhan Aruh (Hoshen Hamishpat 266:1) articulates in the following words: “ …He who returns (a lost object to an Akum) transgresses, since he is giving support to a transgressor”. (The fact that we are dealing here only with a general religious principle is clear, since the prohibition of assisting a transgressor is applicable to Jews as well; see the example in paragraph 4 above.)
  On the other hand, there is not a single law which permits actively causing injustice (cheating, stealing, robbery and of course murder). Here there is no distinction between the Akum and the Jew.
  (Note: From the following examples it will be clear how hard the Talmud tried to implement this passivity of practice, which is basically theoretical, in a benificent manner: as regards presents see what was written in paragraph 3 above; as to lost property it is written in the Talmud Yerushalmi (Bava Metzia 2:5): Shimon ben Shetach supported himself trading in linen. His students said to him, ‘Rabbi, forget this business; and we will buy you a donkey, and you will not have to work so hard.’ They went to buy him a donkey from a Sirkai, and a pearl was found hanging around its neck. They came to their Rabbi and said to him, ‘From now on you won’t have to work hard anymore.’ He said to them, ‘Why?’ They said to him, ‘We bought you a donkey from a Sirkai, and it has a pearl hanging around its neck.’ He asked them, ‘Does the owner of the donkey know about this?” They answered him, ‘No.’ He said to them, “In that case then go and return it to him.” They replied, ‘This is not what Rav Hunah Bibi bar Gozlon said in the name of Rav, While we were sitting before Rabbi we raised the following: “Even according to the one who holds that robbery from an Akum is forbidden, nevertheless keeping his lost property is permitted.” Why then do you command us to return his lost property?” He answered, ‘Do you think that Shimon ben Shetach is a barbarian, that he has become a grabber, and is in a hurry to become rich? That is not so! Shimon ben Shetach would rather hear “Blessed is the King of the Jews” than all the riches in the world.’
  And from which occurrence did he learn this? From this story of Rav Hanina’s, about some old men who took a load of wheat from some soldiers, and found inside a bundle containing dinars, which they returned to them. The soldiers praised them and said, “Blessed be the G-d of the Jews who commanded them to return lost property, and they believe in Him and observe His commandments.’
  Abba Oshaia of Troy was a launderer, and the queen came to bathe there. She lost her jewels and gold ornaments there, and he found them and returned them to her. She said, ‘These belong to you, because you are entitled to them.’ He answered, ‘Are any of them important to me? I have many and better ones. Furthermore the Torah has commanded that we return lost items.’ She replied, “Blessed be the G-d of the Jews”.
  Rav Shmuel bar Sosretai traveled to Rome, where the queen had lost her valuables and jewelry – and he found them. A proclamation was issued in the city: ‘Whoever returns them (the lost items) within thirty days will receive such and such a reward. But if he returns them after thirty days, he will be beheaded.’ He heard the proclamation, but delayed until after the thirty days. She asked him, ‘Were you not in the city?’ He replied, ‘Yes.’ She asked him, ‘Did you not hear the town-crier?’ He answered, ‘Yes.’ She asked, ‘And what did the town-crier announce?’ He said, ‘Whoever returns them to the queen will receive such and such a reward. But if he returns them after thirty days he will be beheaded.’ She asked him, ‘And why did you not return them within thirty days?’ He replied, ‘So that no one would say that I returned them out of fear of the proclamation, but out of the fear of G-d.’ At which she said, “Blessed is the G-d of the Jews”.)
  c. “Even the best of gentiles — you should kill”
  While concerning the “stranger” only a principle of reciprocity applies, and concerning the “Akum” only passive behavior is required, while all active harm to his person or property is forbidden – how can we explain the infamous sentence: Kill even the best of gentiles?
  We have already quoted above (section 1) the saying in the Talmud concerning the drowning of the Egyptians [in the Reed Sea], and the ruling of the Shulhan Aruch which arises from this as to the recitation of the Hallel prayer (a song of praise). We are of the opinion that what is said there will suffice to convince any objective person that such a sentence could not possibly be found as a law in the Talmud. What we have clarified now regarding theft and robbery of the Akum reinforces this. If it is forbidden to steal from him, how much more forbidden is it to murder him. First of all it is clear from the law which we just discussed: “Idol worshipers and shepherds of sheep and goats we neither help them up nor put them down” that this is a direct contradiction to any such law. For it clearly states:”…and do not put them down”. The Tosephot on this passage (Avodah Zarah 26b) were already aware of this contradiction, and solved it by turning to the Talmud Yerushalmi (at the end of Kidushin). According to the Yerushalmi the law which states one should kill even the best of gentiles is applicable only in times of war. Based on this the Tosephot are of the opinion that: the law “do not put them down” applies only to peace-time. In this manner the contradiction is solved, but at the same time the law is limited by the Yerushalmi (which was sealed in the year 330) to war-time.
  However we believe that a priori the Tosephot’s dilemma was ill-founded. There never was a contradiction, since the sentence “idolaters and shepherds…do not help them up or put them down” is law, but the saying “the best of the gentiles….” is not.
  The infamous sayings were written in the following context (Sofrim 9:6) [in Amsterdam Press edition 15:10]) …Rabbi Yehuda said in his own name: “Donkey drivers are generally wicked, seamen are generally righteous men, the best of doctors are destined for Hell, and the most kosher of butchers is a partner of Amalek, …most sons resemble their mother’s brothers.” We learn that Rabbi Shimon ben Yochai said, “Crush the head of the finest of snakes, the most worthy of women uses witchcraft, happy is he who fulfills the will of G-d”. – Anyone expert in the Talmud will notice the following things: Firstly, the subject here is a general evaluation of various professions, and of the characteristics of different types of people. In this context what connection does this strange law have here? Secondly, what brought the author, Rabbi Shimon ben Yochai, to include this law together with the statements “crush the head of the finest snakes” and “the most worthy of women uses witchcraft” in one sentence? Only an approach which interprets the text in a uniform manner, and answers both questions, can be justified.
  In order to clarify the question, especially concerning “the best of gentiles…”, we find in the first source of the statement, the Mehilta (Exodus 14:7): In the words of the Biblical text: “And he (Pharaoh) took six hundred chosen chariots” (in order to chase after the fleeing Israelites), it is written: “To whom did the animals which pulled the chariots belong? If you say they belonged to the Egyptians, is it not already written (concerning the ten plagues, Exodus 9:6): ‘All the cattle died in Egypt’? And if you say they belonged to Pharoah, is it not already written there (Exodus 9:3): ‘Behold the hand of the Lord is upon your cattle in the fields’? And if you say that they belonged to the Israelites, it is already written (Exodus 10:26): ‘Also our cattle will go with us, not a hoof shall remain’. So to whom did they belong? They belonged to those of Pharoah’s slaves who feared the word of G-d (Exodus 9:20). Hence we deduced that those who feared the word of G-d were the cause of misfortune for Israel. From this Rabbi Shimon ben Yochai said: The best of the gentiles in Egypt – kill, crush the head of the best of snakes.”
  Thus, Rabbi Shimon ben Yochai’s statement originally referred to Egypt. Based on the text from which it was taken, the statement could not have referred to any other people. But the fact that the statement did not include a law which mandated killing the best of the Egyptians arises from the fact that in the 2nd century, when Rabbi Shimon ben Yochai lived, there was no reason for such a law. The Egyptians of Biblical times no longer existed then; Egypt no longer had a role in Jewish history. The enemy was Rome. The source in the Mechilta proves to any intelligent person that we are only dealing with an Aggadic (not legalistic) interpretation of a sentence in the Biblical text, which means approximately this: From the fact that the Egyptians who feared the Lord were prepared to hand over their beasts to Pharoah in order to pursue the Jews, one can see that their fear of the Lord was not sincere. It was impossible to rely even on those who feared the Lord. (And so the formulation: the best of the Egyptians….) The sentence: “The best of the Egyptians — kill” is an aphorism and an adage in its intention, which only expresses the idea that even the best of the Egyptians should not be relied upon – as long as he lives, he is insincere. Therefore, the previous sentence is followed by the other one: “Crush the head of the best of snakes”, a saying which undoubtedly was a saying expressing the duplicity of the tamest of snakes. (We must remember that the Egyptians of the Bible text were, in Jewish tradition, compared to snakes because of their duplicity (See Isaiah 27:1, with the Targum). Both sentences are just two different phrasings, metaphores, for the lack of trustworthiness of the nature of the snake.) Thus one must understand the fact that in Tr. Sofrim the following words were added to the saying: “The most worthy of women uses witchcraft”. Similar to the two first sentences, here there is a condemnation of the lack of trustworthiness and lack of sincerity, this time directed at the character of woman.
  However this closing sentence has no place in the Mechilta, because here we are dealing with Aggadic interpretation of a sentence in the Biblical text which discusses Egypt. On the other hand it does belong in Tr. Sofrim, where there is a collection of general folk sayings about different types of professions and people. Like the sentences which appear first (in Tr. Sofrim), the threefold aphorism of Rabbi Shimon ben Yochai constitute metaphores (therefore, like all the sentences before them, are phrased exaggeratedly and sharply) which point up character traits of people, and of certain animals. Egypt, snakes and women were classed together because the three of them were characterized as having one fault in common – duplicity. This is the opinion of Rabbi Shimon ben Yochai – that is, of one single sage. To what extent can we see in this opinion the official opinion of Judaism and the Talmud – that is another question. At least as regards women, there are innumerable expressions in the Talmud which perceive their worth and character traits in a significantly different manner. (See above section 6:3)
  From the Mechilta we learn that the phraseology in Tr. Sofrim, “the best of the Akum” or “…among the nations” is inaccurate, since the text upon which the sentence is based allows only for it to be applied to the Egyptians of the Bible. The version in Tr. Sofrim came about as either an error in copying, or an inaccuracy in the traditional text. The fact that in the consciousness of the people the specific term “Egyptians” was exchanged for the general term “Akum” is understood by anyone who is conversant with the history of the Jewish People in ancient times. In principle it was difficult for the Jew to distinguish between Pharoah and Titus, Domitian, Trianus, Hadrian. All this does not change the fact that the sentence in question, even in the version in Tr. Sofrim, is not a commandment, but rather a general estimate of a certain group of nations who were the historical enemies of the Jewish People. Based on the Mechilta there is also justification for the Yerushalmi’s limiting of the sentence to times of war. At the moment when Pharoah pursued the people who had already left, a state of war existed between the two nations. Therefore the judgment of the Egyptians, or the “strangers”, essentially expresses the following: In times of war it is not possible to trust even the best of Egyptians (“strangers”).
  
  3 Quotations
  
  <i>3. Quotations</i>
  a. “Property of an idolater is considered ownerless” (Bava Batra 54b)
  Although this sentence is written approximately thus in Bava Batra, what is the context? Let us read it in the original source: “Shmuel said, property of an idolater is like a desert; whoever holds it owns it. What is the reason? As soon as the idolater receives his money he renounces his claim of ownership on the field. For a Jew there is no ownership of the field until he has the bill of sale in his hands. If that is so, the issue here is that a Jew paid the Akum money in exchange for his field. He wanted to buy it from the Akum with money, but the bill of sale had not yet been written. According to Jewish law the field became “ownerless” – “desert”. Since upon receipt of the money the Akum had relinquished his right of ownership, meanwhile the Jewish purchaser, who can buy the land in this case only by a bill of sale, did not become the owner of the property merely by giving the money to the Akum. Therefore anyone has the right to take possession of the land, just like desert land.
  To expand on the clarification we can compare the Talmudic discussion on this statement: “Abbaye said to Rav Yosef, Did Shmuel say this? Shmuel said that the law of the land is the law (to be observed). And the king decreed that land can be bought and sold only by contract, not by seizure of the land. He answered: I only know of a case in Lower Dura, of a Jew who bought land from an Akum, and another Jew came and executed an act of acquisition. He came before Rav Yehuda, who gave it to the second Jew."
  “Rav Huna bought a field from an Akum. Another Jew came and did some work on the land. He went beforeo Rav Nahman, who decided in favor of the second Jew. He said to Rav Huna, What is your opinion? Did not Shmuel say that property of the Akum is like the desert (ownerless)?” It is clear that the injured party from the principle that the property of an Akum becomes ownerless, is the Jewish buyer who already paid the Akum; but since the purchase was not completely formalised, another Jew can contest the ownership and seize the property even though the first Jew had paid for in full.
  b. Testimony against non-Jews
  In Bava Kama (113b) is written: “A Jew who has evidence on behalf a non-Jew, who has not called him to testify, but goes and testifies in a matter of the non-Jew against another Jew, is excommunicated from the community.” When the statement is quoted in this manner, it seems to be a clear proof of a double standard in the Talmud, but unfortunately it represents only the first part of the Talmudic statement, which continues: “Why? Because they reward damages on the testimony of a single witness. We did not say it was forbidden except for a single witness, but not for two (permissible as in a Jewish court of law). And we did not say one witness except for in a rural court of law; but in an urban court of law it is permissible, because they swear in even a sole witness. According to the Jewish legal percepts one may not bring a verdict against an accused to pay a fine on the basis of testimony of only one witness. Therefore it is forbidden to testify in non-Jewish courts as the sole witness, unless summoned by the court. However there is no such prohibition if the judgment is given on the testimony of two witnesses. In such a case a Jew is permitted to testify in a law court of non-Jews against a Jew in favor of an Akum, even if he is not summoned by the court. The restriction that he should not appear before the court as a sole witness without being specifically required to do so by the court applies only as regards a rural court, but not in an urban court. From this we understand that we are dealing with situations where we cannot rely equally on all public courts. It is sufficient to peruse books dealing with the history of the justice system, and to take into consideration that the Talmud was sealed more than 1400 years ago, to understand the Talmud’s careful approach.
  
  4 Xenophobia?
  
  <i>4. Xenophobia?</i>
  Legal rights of the Ger in Jewish Law
  In order to understand just how far hatred of the stranger is from Judaism, and therefore also from the Talmud, one should examine the legal and social standing of the “Ger”, the stranger who dwells in the Jewish state, or in an autonomous Jewish community. (The entire passage which follows concerns the “ger toshav”, that is a stranger who has settled in a Jewish area, and not the “ger tzedek”, a stranger who has been persuaded to convert to Judaism.) According to the Torah the stranger has equal rights. In Leviticus (24:22) it is written: “You shall have one law, for the stranger and for the citizen: because I am the Lord your G-d”. Besides this, it is forbidden to force or put pressure on the stranger, and in the same breath there is the commandment to love him (the stranger) “as yourself”. “And when a stranger lives among you in your land – you must do him no wrong. The stranger who lives among you should be treated as one of your own, and you should love him as yourself – because you were strangers in Egypt; I am the Lord your G-d” (Leviticus 19:33-34). Compare also with Exodus 22:20;23:3; Deuteronomy 24:17-18 and also when the whole people are assembled at Mt. Gerizim and Mt. Ebal to hear the blessings and the curses in Deuteronomy 27:19: “Cursed is he who perverts justice due the stranger, orphan and widow; and all the people said Amen”.
  All these laws and statutes in the Talmud are equally as valid as are the commandments of the Torah. However, not every stranger was able to settle permanently in the Jewish state. In Tr. Avodah Zarah (60b) there is a debate as to whom it is permissible to grant the right to residence. In the opinion of the sages, and also according to the decreed law, the stranger would be obligated to recognize and abide by the seven Noahide laws. That was the only condition. In reference to the residence of the stranger it is written (Tr. Gerim 3:4): “Do not make him dwell in the periphery, and not in a bad quarter but in a good area, in the center of the Land of Israel, at the place where he has his work, as it is written: (Deuteronomy 23:17): ‘He shall dwell in your midst in a place of his choosing.’”
  
  Appendix
  
  Table I;  Historical dates in the development of the Teachings
  
  
  
  Table II; Structure of the Babylonian Talmud
  
  