Parshat Behar-Behukotai – פרשת בהר-בחקתי

THOUGHTS ON THE PARASHAH

Rabbi Evan Hoffman – Congregation Anshe Sholom

evanhoffman@gmail.com

Parshat Behar-Behukotai – פרשת בהר-בחקתי

May 20, 2017 – כ”ד אייר תשע”ז

 

This essay is sponsored by Drs. Amy Fox Griffel & Martin Griffel in memory of their mothers, Sally Fox and Marion Griffel.

 

The Phantom Jubilee

 

Scripture mandates the observance of the Jubilee year following a series of seven Sabbatical years (Leviticus 25:8-10).  Jubilee legislation requires: (a) the cessation of agricultural work, (b) the return of landed property (except for houses in walled cities) to their ancestral owners, and (c) the manumission of all Hebrew slaves, including those who voluntarily extended their period of service.

 

On the Day of Atonement at the beginning of the Jubilee, a shofar was sounded, proclaiming liberty throughout the land.  To a debt-ridden underclass, the Jubilee offered periodic release from the travails of landlessness and indentured servitude.  The law helped preserve a society of politically and financially independent citizens by preventing the gap between rich and poor from widening too far.

 

The Jubilee year is not an operative part of modern Judaism.  It has not been observed for many centuries.  Scholars have long wondered when the last such occasion was.

 

Biblical minimalists, including leading 19th century critic Julius Wellhausen, maintained that the Jubilee was never observed.  This theory posits that an exilic-era Priestly Writer formulated the legislation in Leviticus 25, but that it was never part of the sitz im leben of Israel.  It was a utopian fantasy.  The law of release was either ignored as dead-letter or was simply unknown.  Support for this viewpoint arguably may be found in the absence of any explicit reference to the Jubilee in the latter books of the Bible.  Moreover, the release of slaves mentioned in Jeremiah 34:8-17 seems to conflate the Sabbatical and Jubilee years.  However, that reference was to a one-time, short-lived political strategy by King Zedekiah; it was quickly reversed by the wealthy slaveholders.  The return of property in Nehemiah 5:11-13 was, similarly, not a fulfillment of Mosaic law.  Instead, it represents Nehemiah’s attempt permanently to abolish debt slavery; it did not implicate the periodicity or cyclicality of the Jubilee.  The Book of Chronicles – otherwise reasonably comprehensive concerning historical/cultic matters — is entirely silent about the Jubilee.

 

More contemporary academic scholarship rejects this argumentum ex silentio and accepts on older dating for the Jubilee. Nehemiah’s departure from the law as set forth in Leviticus 25 does not prove that he was unaware of Pentateuchal regulations.  It merely reflects the fact that late 5th century BCE Jerusalem had social ills different from those of an earlier period, when the Jubilee was first promulgated.

 

Two of Chief Rabbi Hertz’s major goals in his commentary on the Pentateuch were to prove the antiquity (Mosaic authorship) of the Law and to extol the moral virtues — if not superiority– of early Israel.  Hertz adamantly insisted that the Jubilee was widely observed during the First Commonwealth era.  He marshaled support from various traditional non-Jewish Bible scholars who shared his viewpoint, including Heinrich Ewald, who commented that “Nothing is more certain than that the Jubilee was once for centuries a reality in the national life of Israel.”

 

Ironically, it may have been the Rabbis themselves who contributed most to the notion that the Jubilee was hardly ever observed.  The Talmud notes that a long time elapsed from Moses’ having received the Written and Oral Law on Mount Sinai until the Jubilee was first observed.  Forty years of travel in the wilderness, followed by fourteen years of conquest and settlement in the days of Joshua, followed by a forty-nine year cycle equates to the passing of 103 years before the law was observed (Kiddushin 40b).

 

The Talmud records an opinion that the Jubilee ceased to be operative after the tribes of Reuben, Gad, and half of Manasseh were exiled (Arakhin 32b).  Those two and one half tribes resided on the east bank of the Jordan River and were exiled by the Assyrian king Tiglat Pilnesser during the 8th century BCE, some years before the downfall of the Northern Kingdom of Israel (I Chronicles 5:26).  Scripture’s provision of liberty for “all the inhabitants thereof” is understood to render the Jubilee inoperative if even a portion of the Israelite nation is no longer resident in the Promised Land.  Not only must all twelve tribes live in the Holy Land, but each individual tribe must dwell on its ancestral holdings.  Once the Ten Tribes (of Israel) were permanently lost (Mishnah Sanhedrin 10:3), the Jubilee became inoperative – permanently.  So holds this opinion.

 

The Gemara itself challenges this, however.   It notes that Ezekiel prophesied the future non-implementation of land release (7:13).  Accordingly, the logical inference is that Jubilee provisions were, as of the time of the Babylonian exile (586 BCE), still technically operative.  That is to say:  The first opinion was wrong.

 

The Gemara attempts to resolve the contradiction by asserting that Jeremiah brought the exiled tribes from Babylonia back to Israel, thereby temporarily making the Jubilee operative again (Arakhin 33a).   A nice solution, except for this difficulty:  It is thoroughly ahistorical.  Even if we accept that there were significant remnants of all twelve tribes residing in the southern part of the country (i.e., the Kingdom of Judah) during the waning years of the First Temple, that still would not have met the Talmud’s own narrow definition of proper Israelite settlement.

 

In view of the dispersed state of world Jewry, Maimonides ruled that the Jubilee need not be observed.  He also concluded that no Jubilee had been observed since the exile of the trans-Jordanian Hebrew tribes (Hilkhot Shemittah v’Yovel 10:3).

 

Rabbenu Tam dissented from Rambam’s view.   He argued that the Jubilee was observed during the Second Temple period (Tosfot Gittin 36a).  He pointed to Hillel the Elder’s decree allowing the seller of a home in a walled city to deposit money with the authorities in the event that the buyer went into hiding on the day before the transaction became irrevocable (Mishnah Arakhin 9:4).  But the law of redeeming houses in walled cities was applicable only when the Jubilee was in effect.  Since Hillel lived at the turn of the Common Era, his decree is a strong indicator that at least some of the Jubilee provisions were still in force during the late Second Temple era.

 

Rabbenu Tam also cited a Talmudic interpretation of Ezra 10:19.  In addition to casting away their foreign wives, the Judeans brought guilt-offerings for having had sexual relations with betrothed bondmaids (Keritot 11a).  But that very act of atonement implies that the Jubilee was then operative.  Why?  Because Hebrew slavery could not exist except when the Jubilee was legally operative as a principle.  There could not be Canaanite-handmaidens betrothed to Hebrew slaves unless Hebrew slaves existed.  Ergo, the bringing of the guilt-offerings necessarily implies that observance of the Jubilee was not dormant.

 

In determining the history of Jewish religious observance, it is essential to avoid projecting the exegetical conclusions of the sages onto the Biblical narrative.  The Talmud itself habitually does make those projections, making it easy for readers to follow suit.  Maimonides accepted the Baraita in Tractate Arakhin at face value.  The Israelites of the First Temple period are assumed to have understood the Torah’s words “כל יושביה” in the same manner as did the later Rabbis.  Using that reasoning, one is led to conclude that once several tribes no longer resided in their Biblically-allotted territories, the Israelites ceased observing the Jubilee.

 

Rabbenu Tam, however, did not utilize that flawed methodological approach.  Instead, he looked for evidence of actual observance.   The ancients likely did not interpret the expression “all the inhabitants thereof” in the same peculiar way as did the Baraita.  Several other, seemingly more reasonable interpretations would, indeed, have meant an operative Jubilee extending through the Assyrian, Babylonian, Persian, Greek, and Roman periods.

 

From other Talmudic sources, we know that Rabbi Judah the Patriarch wrote the opinion that Jubilees ceased to be observed with the disruption of ancient settlement patterns in the northern kingdom (Yerushalmi Shevi’it 39c).  It is also possible to discern why he made such a claim.  It has little to do with accurately preserving Jewish history.  Recognizing the terrible strain on the economy of Eretz Yisrael caused by observance of the Sabbatical year, Rabbi sought to abolish it completely (Yerushalmi Ta’anit 66c).  Although this effort came to nought, Rabbi was able to secure a downgrade in the status of the Sabbatical year from Biblical law to rabbinic law.  He accomplished this by comparing the Jubilee and the Sabbatical. When the former is operative, the latter is Biblically required בשעה שהיובל נוהגת שמיטה נוהגת דבר תורה.  When the former is no longer operative the latter is transformed into a mere rabbinic obligation.  Rabbi then offered his interpretation of כל יושביה and made his “historical” assertion about the last Jubilee.

 

By the late second century CE, the Jubilee was no more than a distant memory for Jewry. Nobody could be certain when it last had been observed.  For Rabbi Judah Ha-Nasi, the Jubilee was a convenient precedent to cite in his efforts to remove another law from the books.

 

Observance of the Jubilee represents the pinnacle of success in one’s relationship with God and one’s relationship with fellow human beings.  In staying his hand and not tilling the soil for two consecutive years, a farmer displays a high level of trust in the beneficence of the Almighty.  The property owner who gives away real estate and slaves for nothing in return subordinates his own interests to others’.

 

Did the Jews in Eretz Yisrael ever, in fact, fully comply with the principles and mandates of the Jubilee?  Probably not.  But that should not prevent us, many years later, from continuing to strive to adhere not to the requirements of the Jubilee, now in suspense, but instead, and overall, to the highest levels of spirituality and morality of which we are capable.