THOUGHTS ON THE PARASHAH
Rabbi Evan Hoffman – Congregation Anshe Sholom
Parshat Ki Tavo – פרשת כי תבוא
September 21, 2019 – כא אלול תשעט
This essay is sponsored by Sisterhood in honor of the birth of Madoline Isabele Meltzer, granddaughter of Elihu Massel & Estelle Marshak.
Concealing the Motivation for Halakhic Change
Scripture mandates that in the third year of the sabbatical cycle the Israelite farmer formally attest to his compliance with various tithing regulations: “I have cleared out the consecrated portion from the house; and I have given it to the Levite, the stranger, the fatherless, and the widow, just as You commanded me; I have neither transgressed nor neglected any of Your commandments. I have not eaten of it while in mourning, I have not cleared out any of it while I was unclean, and I have not deposited any of it with the dead. I have obeyed the Lord my God; I have done just as You commanded me. Look down from Your holy abode, from Heaven, and bless Your people Israel and the soil You have given us, a land flowing with milk and honey, as You swore to our fathers (Deuteronomy 26:13-15).”
The sages understood this requirement to be in effect upon the conclusion of those years in which the Poor Tithe is given (i.e., the third and sixth years of the sabbatical cycle). Accordingly, Maimonides ruled that the deadline for reciting the Scriptural formula was the afternoon of the last day of Passover in the fourth and seventh years of the cycle (Hilkhot Ma’aser Sheni 11:3). Rabbinic literature names this obligation וידוי מעשר or הודיית מעשר, which is typically rendered as “Tithe Confession.” That translation is patently incorrect. Far from confessing misdeed, the farmer utters these words only when he has done nothing wrong. A better translation would be “Tithe Declaration” or “Tithe Avowal.”
The Mishnah records that Yohanan the High Priest annulled the Tithe Declaration (Ma’aser Sheni 5:15 and Sotah 9:10). Yohanan, also known as John Hyrcanus, ruled Judea as both ecclesiastical and temporal leader from 135-104 BCE. The Mishnah offers no explanation why Hyrcanus did away with (or viewed himself as having the authority to abrogate) a Biblical law.
The Bavli asks why Hyrcanus so acted. It answers: Because the Declaration could not be said in good faith. Scripture mandates that the First Tithe be given to the Levites, and yet it is actually given to the priests. The suggestion that the Declaration of compliance could still appropriately be uttered at least with respect to the other types of Levitical emoluments and charitable obligations that are still fulfilled in the manner ordained by Scripture is dismissed in the Talmud on the basis that the formula is first and foremost about the First Tithe מעשר ראשון (Sotah 48a).
The Talmud questions why the Levites were penalized with the loss of the First Tithe. One answer is that by changing the recipient of the First Tithe from the Levites to the priests the sages were trying to help poor priests stave off starvation during their periods of impurity when they cannot eat Terumah. However, the more popular answer is that the change was a punishment imposed on the Levites for failing to participate in Ezra’s return to Zion from the Babylonian captivity in the mid-fifth century BCE (Yebamoth 86b). Scripture records their conspicuous absence: “There I assembled by the river that enters Ahava, and we encamped there for three days. I reviewed the people and the priests, but I did not find any Levite there (Ezra 8:15).”
There are several compelling reasons to doubt the claim that the Levites were punished for their tepid Zionism: 1) Scripture does not record that Ezra or any other Judaic authority stripped the Levites of their rights to collect the First Tithe. At worst, what was imposed upon them was the requirement that priests had to supervise the collection process. “An Aaronid priest must be with the Levites when they collect the tithe (Nehemiah 10:39).” 2) If the Levites were punished in the fifth century BCE, it would not have taken until the late second century BCE for someone to realize that the Tithe Declaration was no longer accurate. [Maimonides may have sensed the anachronism in play. In the Mishneh Torah he mentions that there was a time when the First Tithe was given to priests as decreed by Ezra’s court (Hilkhot Ma’aser 1:4), and that the Declaration was omitted during that period (Hilkhot Ma’aser Sheni 11:13). But he makes no reference to Hyrcanus as the author of that liturgical change.] 3) There is no evidence in Tannaitic literature that the Levites were punished. Rabbis Akiba and Elazar ben Azariah debated who should receive the First Tithe. Akiba insisted that it must be a Levite. Elazar ben Azariah asserted that even a priest can receive the First Tithe, since Aaronids are genealogically also Levites. Elazar ben Azariah never said that the First Tithe must go to the priests. It was only the Amoraim, generations later, who insisted upon artificially reading into Elazar ben Azariah’s statement that, in the era after the Levites were penalized, the First Tithe must be remitted to priests (Ketuboth 26a, Hullin 131b). 4) The Yerushalmi is silent about any such penalty’s being imposed upon the Levites.
The Gemara (Sotah 48a) questions its initial answer -- that the Tithe Declaration was abrogated because the tithe was being given to a class of people other than the one mandated by Scripture -- in light of a competing historical tradition that John Hyrcanus surveyed the religious practices in Judea and found that the public was generally neglectful of remitting tithes at all, let alone to an improper caste of recipients. In response to his disappointing findings, Hyrcanus decreed that tithes must be separated whenever one purchased produce of uncertain status, known as Demai, from an Am Ha-Aretz (see Tosefta Sotah 13:10). The Talmud harmonizes these traditions by claiming that Hyrcanus effectuated two distinct enactments: a) abrogating the Tithe Declaration even for pious Jews and b) requiring the separation of tithes from produce purchased from unreliable sources.
Professor Saul Lieberman, in his article “The Three Abrogations of Johanan the High Priest,” alerts students of rabbinic literature to the fact that, in certain instances, the sages did not tell the truth about the motivations undergirding halakhic change. Ulla taught that in Amoraic era Palestine, the sages would wait twelve months before revealing the reason for a new rabbinical enactment lest someone disagree with the purpose of the legislation and be openly disdainful of it (Avodah Zarah 35a). The other two abrogations credited to Hyrcanus concerned the awakeners and the knockers. The awakeners would rise early in the Temple and proclaim: “Rouse Yourself; why do You sleep, O Lord? Awaken, do not reject us forever (Psalems 44:24).” The knockers would stun a sacrificial animal into submission moments before slaughter by striking the beast between its horns. The formal reason given for doing away with the awakeners was that their ritual conveyed the false impression that God sleeps. Yet, as noted by Lieberman, the awakeners merely recited a Scriptural verse that nobody was looking to excise from the canon. The real reason for the abrogation of their early morning rite was that it too closely resembled a pagan Egyptian ritual. The same held true for the knockers. Although the formal reason given for eliminating that method of stunning was that it gave the appearance of blemishing the animal and invalidating the sacrifice (or worse, of turning the animal into a treifah), the true, unstated reason was that striking the animal was a vestige of paganism that Hyrcanus wanted removed from the practices in the Holy Temple.
Hyrcanus was eager to abrogate the Tithe Declaration because, as High Priest and defender of priestly interests, he did not want Jews to be reminded that the First Tithe rightly is to be remitted to the Levites. He worried that widespread recitation of Deuteronomy 26:12-15 could disrupt a favorable status quo. For whatever reason, and probably not because of a decree by Ezra’s court, Second Temple era priests dominated the collection of the First Tithe at the expense of their less prestigious Levite cousins. That state of affairs could be explained by priestly avarice; there is no need to postulate the existence of a formal enactment. (As noted above, two centuries after Hyrcanus, Rabbi Elazar ben Azariah, himself a priest, sought to justify, on exegetical grounds, the reality of priests’ accepting the First Tithe.)
The Yerushalmi uses accusatory and condemnatory language in claiming that the priests were suspected of taking the First Tithe. The Yerushalmi then obliquely preserves a tradition that some of the sages did not judge all of Hyrcanus’ halakhic changes favorably (Yerushalmi Sotah 24a). It would be fair to suggest the following: The formal reason for Hyrcanus’ annulment of the Tithe Declaration, as is recorded in Tosefta, was that most people were not tithing properly. This is the same reason given for the Demai enactment. The real motivation, however, was to conceal the fact that those people tithing were often giving their sacred produce to inappropriate recipients. The Yerushalmi concludes by arguing for a decoupling of the Declaration and Demai; those who did not tithe would not make the Declaration and those who did tithe would recite it. A supporting Baraita states that (even post-Hyrcanus) the attestation portion of the Declaration (26:13-14) was recited in low voice whereas the prayerful portion (26:15) was recited aloud.
A careful study of the history and development of halakhah encounters numerous difficulties. That difficulty is compounded by the fact that snippets of halakhic history recorded in rabbinic literature must often be accepted cum grano salis. Nevertheless, and generally speaking, even where there may be some misdirection in explaining the motives and rationale for halakhic change, the doctors of the law acted in good faith and for the purpose of advancing the spiritual interests of the Jewish people.