Parshat Behar-Behukotai – פרשת בהר בחקתי

Rabbi Evan Hoffman - Congregation Anshe Sholom
Parshat Behar-Behukotai - פרשת בהר בחקתי
May 16, 2020 - כב אייר תשפ
This essay is sponsored by Chavie Wilner and Chaim Kleinman in memory of their father, Gershon Kleinman Z”L.
Innovation in Judaism
Leviticus concludes with a strong and unambiguous statement: “These are the commandments, which the Lord commanded Moses for the children of Israel in Mount Sinai (27:34).” The sages placed emphasis on the first two words of the verse. Their principal theological points were that 1) only these are true commandments and 2) no post-Mosaic prophet is permitted to introduce anything new אין נביא רשאי לחדש דבר מעתה (Sifra Behukotai 8).
Judaism considers Moses to be the only legitimate conduit of God’s law. Later prophets functioned in several capacities. They chastised and comforted the people, and they predicted the ultimate fate of Israel. However, their interactions with God, unlike Moses’, played no role in determining the law.
The sages’ insistence that prophets cannot change the substance of religion is a necessary safeguard against the possibility that a charismatic figure would assert prophetic authority to supersede the Mosaic Code (in favor of a new covenant) or to relax it (in favor of loose practices). This indeed happened, Jesus and Sabbatai Zevi being two prime examples.
Nevertheless, it is difficult to maintain the claim that all of Judaism dates back to Sinai. Certain accepted laws are based solely on the text of later books of the Bible, not on the Torah proper. Examples include: (1) The priestly vestments must be made of linen (Yoma 71b). The Pentateuch uses unclear language in describing Kohanic garb. The Book of Ezekiel sets forth the law plainly: “They shall have linen tires upon their heads, and shall have linen breeches upon their loins (44:18).” (2) The law mandates that graves be marked conspicuously so that ritual impurity could be avoided (Moed Katan 5a). The Pentateuch contains no such statute. Only Ezekiel does: “And when they that pass through shall pass through the land, and any seeth a man's bone, then shall he set up a sign by it (39:15).” (3) A Kohen who serves in the Temple with unkempt hair is subject to death at the hands of Heaven (Ta’anit 17a). The Torah mentions no such punishment. It is derived solely through exegetical interpretation of Ezekiel 4:20. (4) An uncircumcised priest may not officiate in the Temple. This Kohanic disqualification is not found in the Torah, but it is expressly stated in Ezekiel 44:9.
Regarding each of these matters, the Talmud asserts that the law predates Ezekiel. The claim is that such laws were part of the Oral Tradition (taught by God to Moses at Sinai) and that Ezekiel did nothing more than set them down in writing.
Yet how could the sages reconcile their view of the limited role permitted to post-Mosaic prophets with the fact that, according to rabbinic historiography, certain important developments are indeed attributed, by these same sages, to these same prophets?
One important example: The “final” forms of five Hebrew letters (מנצפ"ך) were attributed to the seers (Megillah 2b). But how could any prophet subsequent to Moses change the orthography of the holy Torah? The Talmud initially proposes that both the middle and final forms of such letters were extant from and after the Revelation at Sinai, and that the prophets merely classified them. But the Talmud then quickly rejects that very explanation, because it does not take care of the doctrinal problem of post-Mosaic prophets’ directly affecting the text of the Torah scroll.
Two others: The measurements used to determine punishments for religious infractions were attributed to the court of Othniel ben Kenaz (Yoma 80a), who was one of the biblical Judges. The willow ceremony performed in the Temple on Sukkot was regarded as either an enactment of, or a custom initiated by, the prophets (Sukkah 44a). On what authority could Judges and prophets in Israel create legal principles or ceremonial practices, i.e., not found in the Torah?
The Talmud offers an overall solution to these difficulties: Knowledge was lost as a result of disuse, but was later recovered שכחום וחזרו ויסדום. But how plausible is it that key halakhic principles or basic rules of orthography were forgotten? The medieval Talmudic commentators struggle mightily, though in the end unconvincingly, to explain how this could have happened. A less doctrinaire view of the Talmud text shows that rabbinic attitudes changed over time. The Tannaim and early Amoraim are to be credited for their intellectual honesty in unabashedly admitting the existence of stages in the development of Judaism. In contrast, for reasons of doctrinal purity, the anonymous redactors of the Gemara sought to erase any record of those stages. We can appreciate the redactors’ zeal even as we recognize that their solutions lack historicity.
Importantly, no claim that religious knowledge dates back to Sinai but was forgotten and subsequently recovered can legitimately be asserted with regard to any Judaic institution with an indisputably post-Mosaic terminus post quem. The festival of Purim is a stark example. The Midrash says that the Men of the Great Assembly, including several prophets, were agitated by the efforts of Mordecai and Esther to establish a new holiday. They cited the verse: “Thou shalt not add thereto, nor diminish from it (Deuteronomy 13:1).” The Midrash explains that the members of The Great Assembly agreed to recognize Purim officially only after God opened up their eyes and enabled them to find Scriptural support for that action in the Torah, Prophets, and Writings (Ruth Rabbah 4).
This Midrashic approach does not satisfactorily address the doctrinal problem concerning limited prophetic involvement in halakhah. If anything, it completely undermines that doctrine by allowing for religious innovation based on some combination of posited Divine enlightenment and scattered Scriptural hints. Nevertheless, the Midrash cannot be faulted. The Aggadic authors believed that they had to supply some justification for the popular emergence of Purim, which faced proto-rabbinic opposition.
At a later stage, the sages no longer felt bound by the rule forbidding creativity in religious matters. Their view became that halakhah could properly change through the enactment of rabbinic laws (prohibitive or performative). Torah laws could change so long as the authorized expositors reached new conclusions as a result of sound reasoning and/or Scriptural exegesis.
What remained forbidden was any claim that God had issued new commandments – i.e., commandments not already contained in the Pentateuch.   Hence, one had to examine whether a suggested innovation was the result of human thought processes applied to the text of the Torah proper or, instead, derived from human suggestion based upon the principles of the Torah but not directly derivable from the Divinely-given text thereof. Maimonides grouped together Leviticus 27:34, Deuteronomy 13:1, and “it is not in heaven לא בשמים היא (Deuteronomy 30:12)” in explaining why it is forbidden for a prophet to purport to alter the Mosaic Code (Hilkhot Yesodei Hatorah 9:1). Ramban argued that Deuteronomy 13:1 prohibits changing the details of existing Torah laws בל תוסיף (e.g., inserting a fifth paragraph into tefillin), while Leviticus 27:34 prohibits inventing new concepts out of whole cloth לחדש דבר.
Perhaps the greatest challenge to the steady-state theory of early Judaism is found in the script in which Torah scrolls are written. The block letter font that has been in use for over two millennia is called Ktav Ashurit כתב אשורית. The Paleo-Hebrew font, with its distinctive spidery letters, is called Ktav Ivri כתב עברי. Which of these appeared on the two sets of Tablets and on the earliest copies of the Torah? According to the Tanna Rabbi Jose -- the most reliable “historian” among the Tannaim -- and the Amora Mar Zutra, the Torah originally was given to Israel in Ktav Ivri. Centuries later, in the days of Ezra, the ancient Hebrew script was abandoned in favor of the Assyrian script that the Jews adopted during the Babylonian captivity (Sanhedrin 21b).
Contrariwise, Rabbi Judah the Patriarch (known as “Rabbi”) believed that the Torah was originally given in Ktav Ashurit. When the people sinned, they lost the ability to decipher the sacred font and were left with an inferior splintered font. After Israel repented, the original script was restored to its former glory. A third view is that of Rabbi Simon ben Elazar. He insisted that the script of the Torah never changed; it was aways Ktav Ashurit.
It seems clear from any reasonable paleographic standpoint that the Torah originally was written in Paleo-Hebew and not Ktav Ashurit. The name Ktav Ashurit indicates that it was borrowed from the Assyrians. In contrast, the appellation Ktav Ivri indicates that the font is indigenous to the culture of Hebrew speaking people. To defend his theory that Ktav Ashuri was the original Torah script, Rabbi came up with a homiletic etiology for the word Ashurit, claiming that it means the choicest of all scripts מאושרת בכתב (Sanhedrin 22a).
The commentators tend to marginalize Rabbi Jose’s viewpoint. The Ritba offers a creative version of Jewish history: The Tablets were given on Mount Sinai in Ktav Ashurit. However, because of the script’s great sanctity, it was, he says, never used. Even the Torah scrolls were in Ktav Ivri. When the Holy Ark was concealed in the late First Temple period, knowledge of Ktav Ashurit was entirely lost until the Jews brought it back with them from the Babylonian captivity, where they had learned it from their neighbors. Radbaz employs Ritba’s theory to explain why Daniel was the only one, even among fellow Jews, to decipher the “handwriting on the wall.” In every generation, only a select number of pious leaders were entrusted with knowledge of Ktav Ashurit.
What is driving the majority sentiment among Tannaim, Amoraim, and medieval Talmudic commentators that defends the historically implausible claim that the Tablets at Sinai were written in Ktav Ashurit? Some point to the Aggadic tale in which God tells Moses that Rabbi Akiba would derive mounds and mounds of laws from the crowns on the Torah’s letters (Menahot 29b).  Ktav Ivri has no crowns atop its letters; therefore, this story “proves” (by assuming the conclusion) that the Torah was, necessarily, given to Moses in Ktav Ashurit.  Others point to the similarly bootstrap tradition that the letters ם and ס miraculously stood in place on the first Tablets (Shabbat 104a). Since those letters are completely closed only in Ktav Ashurit, it follows that the Torah was given in that script. But a different version of this story has the letter ע miraculously standing in place (Yerushalmi Megillah 71c). The letter ע is completely closed – in Ktav Ivri.
The words of the Radbaz are telling: “Ultimately, I cannot fathom how any Tanna or Amora could possibly claim that Ktav Ashurit was an entirely new matter in the days of Ezra (Radbaz Responsum 883).” That is, the Radbaz does not address, or care about, proof texts. His view that the Torah as it looks today is exactly the same as the original is based on faith and religious belief, not on paleography or orthography.
To accept that permanent changes took place to the Torah scroll is to undermine it. If history needs to be reinterpreted and inconvenient details denied, so be it. For many believers (across many religions), the assumption that religion emanates from the Highest Authority, in a sacred and immutable form, gives life to faith. To question the relative antiquity of a key religious article potentially damages that faith.
Judaism has succeeded because of its ability to adapt when necessary, while never losing its character as a Divinely ordained and ancient faith.