The teaching of David Halivni: deciphering the voices of the Stammaim

by Florian Deloup Wolfowicz

Among contemporary research on the Talmud, David Halivni's work holds a special place. Still little known in France, it has nevertheless renewed in depth our understanding of the Talmud and in particular, the structure of the sugya (the textual discursive unit of the Guemara). David Halivni's masterwork, a lifelong on-going work dedicated to the study of the Talmud Babli, is a commentary in Hebrew, entitled Meqorot u-Messorot [Sources and Traditions]1. Nuanced and erudite, David Halivni's thesis can be perhaps most elementarily stated in its historical form:

1. The sum and substance of the Talmud as a text, as we know it, is the works of anonymous sages, called Stammaim (from the Aramaic stamma, anonymous) who flourished from the sixth century on2;

2. The Stammaim did not have all the sources required to assemble the Guemara and had to restore the give-and-take from incomplete material;

3. The interest for the discursive, almost absent in the Mishna, developed in the period of the Stammaim who relied on the Midrash, where the exposition of a verse is followed by a homiletic or legal explanation.

This thesis deviates from the traditional viewpoint that considers that the Guemara – and hence the Talmud – was completed with the last Amoraim, in the fifth or sixth century. According to David Halivni, "between the Amoraim and us stand the Stammaim".

The outstanding task of reconstruction and restoration that David Halivni set for himself reverberates with the history of his own life, recalled in a short and intense autobiography. Born in 1927 in Kobolečka Poljana (then in Czechoslovakia, now in Ukrainia), David Weiss Halivni grew in Sighet where he is quickly recognized as a child prodigy in his learning of the Talmud. He becomes a rabbi at the age of fourteen. Like all the Jews of his town, he is sent by the Nazis to Auschwitz. Liberated in 1945 and the only survivor of his family, he immigrated to the United States in 1947 with a group of young orphans. There he met the scholar Saul Lieberman who became his teacher. Then David Halivni joined the Jewish Theological Seminary (JTS) in New York where he became professor of Talmud. In 1985, in the aftermath of deep disagreements with the new direction of JTS over religious reforms it sought to adopt, David Halivni left an institution over which he nevertheless exerted a profound influence. A short time afterwards, he was appointed professor at Columbia University in New York where he taught until he retired. David Halivni is the recipient of several prestigious awards, notably the Bialik prize and the Israel prize. He now lives in Jerusalem. Although he lived in many different places and times, "in the most important sense, David Halivni has traveled not at all"3. He continues studying the same blatt gemore that he was studying in Sighet three

1 To this day seven volumes have appeared. The first one was published in 1968, the latest one in 2008.2 This thesis is stated for the first time in Meqorot u-Messorot, Seder Moed, Yoma – Hagigah, Jerusalem, 1974.3 Baroukh Weiss, in Neti`ot le-David (David Halivni Festschrift), éd. Y. Alman, Ephraïm Betsalel Halivni, Tsvi Aryeh Steinfeld, Jérusalem, 2005.

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quarters of a century ago. Everything changed since – a world was irreparably destroyed –, only the learning of Talmud remains.

Though David Halivni's thesis and method are erudite, their importance is felt beyond academic circles. They touch upon essential questions on the authority of the Talmudic text, its plain meaning, the difference between legal relevance and the religious commandment to learn, as well as the subtle link between Oral and Written Law.

"FORCED" INTERPRETATIONS IN THE TALMUD

If learning in the Talmud is fraught with many difficulties, both linguistic and structural, especially to the beginner, there is one peculiarity of the text that not only resists to study but actually deepens with it, the perush dahuq, the forced, nonliteral, interpretation. Indeed, the Talmud, as we know it, is marred with forced explanations. These forced explanations have largely contributed to the development of the pilpul, the art of solving or harmonizing internal contradictions of the text while formally preserving the literality. David Halivni's approach does not belong to pilpul: it endeavors to explain the contradictions of the text in a more radical way but also is more respectful of the simple meaning of the text. This is a key point because of the appreciation of dohaq in the Talmud depends his entire thesis4.

Diyyuq and dohaq in the Talmud

The sages have emphasized several times the obligation to transmit the teachings with precision or diyyuq: "every man has the obligation to state the law in the language of his teacher" (T.B. Berakhot 47a). As David Halivni writes5: "For them, not only paraphrase was susceptible of imprecision but would constitute a deviation from the chain of tradition. Continuity of language and continuity of tradition would go hand in hand in rabbinical thought. Every single change that would affect the first would also affect the second."

Nevertheless, it is beyond doubt that halakhic changes, that is changes pertaining to Hebrew Law, occurred in the Talmudic literature and many of them were caused by an imprecision of the transmitter. When two sages disagree and each one has received a tradition from his teacher, 'elu ve-'elu divrei eloqim hayim, both teachings are acknowledged as teachings of the living God. But, as David Halivni puts it, when a single sage states one opinion and the opposite, only one teaching is the teaching of the living God ! The cases when such a contradiction can be accounted for by the fact that a sage retracted from an earlier position or withdrew a statement are rare. Imperceptibly and unbeknownst to the transmitters, changes indeed occurred.

And yet, according to David Halivni's formulation, changes of the past are "the language of the teacher" of tomorrow: the oral tradition has absorbed these changes; as a consequence, the text has become strained and unsmooth – hence our 4 A posteriori David Halivni discovered that his resolution of the dohaq has a wider scope and bear on the whole dialectical material of the Talmud. See below the section The works of the Stammaim.5 Introduction to Meqorot u-Messorot, Seder Nachim, p. 7.

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difficulty understanding it. The suggyot of the Guemara strive to arrange and explain teachings from distinct academies in a methodic and extensive fashion; however the authors of this work, the Stammaim, had no choice but to solve their difficulties bedohaq, using forced explanations. Dohaq bears witness to the fact that we do not have sources in their primary form. In general, when the explanation given in the Guemara strays away from the peshat, the simple meaning, of the Mishnah, the probability increases that the author did not have the integral sources in front of him. In fact, many classical post-Talmudic commentators, as soon as the Gueonim, have sometimes interpreted the Mishna or the Baraita6 differently from the Guemara not only because of language; besides, it occurs sometimes that an Amora does not know of a Baraita, baraita la' shemi`a lei (TB Eruvin 19b), or that he knows it only partially.

Here is a first example7, T.B. Sanhedrin 42b.We read in the Mishna (first Mishna in the sixth chapter):

The place of stoning was outside the court, as it is written [Lev. 24:14]: Bring forth him that cursed outside the camp.

The Talmud notices the discrepancy between the statement in the Mishna ("outside the court") and the verse ("outside the camp") stated in support of the law.

But was the place of stoning just outside the court and not further?

The Guemara asks this question because there is a baraita that teaches that the place of stoning is outside the three camps, that is, outside the city's walls. The Guemara then tries to demonstrate that the expression "outside the camp" means "outside the three camps", hence outside the city. Two exegetical arguments (derashot) are given. In both cases, the Talmud interprets "outside the court" as "far away from the court", stretching all the way to the end of the camp. This seems quite a forced interpretation8.

David Halivni gives an explanation9 that does not step in the plain meaning of the verse nor supersedes that of the Mishna. The Tanna, the teacher of this drashah included in the Mishna, lived at a time when the court was situated at the gate, at the edge of the town, as in biblical times. Outside the court, therefore, also meant outside the town, in one direction. The Tanna refers to this direction, hence the scriptural support "outside the camp". Later, as explains David Halivni, the location of the court changed.

6 Teaching of the Tannaim that was not included into Rebbi's Mishna. 7 This example is exceptional in that it is one of the oldest statements in the whole Mishna. I chose it because it is simple and demonstrates that the dohaq is not arbitrary but to the contrary, is the trace of a reconstruction from contradictory and incomplete sources.8 At the beginning of the suggya, the Guemara deduces from the discrepancy between the Mishna and the Baraita an "additional" teaching: even if the court convenes outside the city, the place of stoning ought to be outside the court. But this is already supported by the peshat of the Mishna in the first place. The two reasons (anonymously) given in the suggya (the court must not appear as an assembly of murderers and the condemned must have the possibility of last minute rescue because of the distance to travel to the place of stoning) do not address the discrepancy itself. 9 We cannot review here all his demonstration: see Midrash, Mishnah and Guemara, Harvard University Press, 1983, pp. 25-27 for a summary and his article, "The location of the Beit Din in the Early Tannaitic Period", Proceedings of the American Academy for Jewish Research, vol. 29, 1960-61, pp. 181-191 for a complete discussion.

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The exact historical time of change shall not interest us here. The key point is that the forced interpretation reflects the will of the authors of the suggya to preserve two contradictory traditions that they knew to be authentic; but since they did not have all the information required to organize them into a unified way, they had no choice but to resort to dohaq. Here the forced interpretation hints at an unidentified historical fact. There are other places where dohaq hints at the fact that something substantial is missing in the discussion itself; however, it is often an elusive task to determine that the shaqle ve-taria, the dialectical material of the Talmud, is incomplete.

Here is a second example10 where the incomplete nature of the give-and-take can be brought to light. In T.B. Rosh ha-Shana 48a, there is a discussion between two prominent Amoraim:

Rabba said: He who heard a part of [the required number of] the sounds of the Shofar in a pit and the rest at the pit's mouth, has done his duty; he who heard a part before dawn and the rest after dawn has not done his duty.

Abbaye said to him [objected]: why in the latter case should he not have done his duty, because he did not hear the whole of the sounds and yet in the former case [he is considered to have done his duty] while he did not hear either the whole of the sounds?

The Guemara adds shortly later that the case that Rabba is discussing is actually that of a man "who blows the shofar while coming up off the pit". If that is indeed the case, then Abbaye's objection has no reason to stand: the man who comes up off the pit has heard all the sounds of the shofar at one stroke. This implies that the Guemara (the Stammaim) knew of Abbaye's objection to Rabba's statement, but they did not know Abbaye's reply. Several terutsim (solutions) are anonymously given in this suggya, but none of them answers Abbaye's question without distorting the plain meaning of his objection.

Sensitivity to plain meaning

The sages of the Middle Ages, the Rishonim, were conscious of the existence of "forced" explanations in the Talmud and suggested solutions or terutsim in order to solve or alleviate these textual difficulties. However, an explanation is "forced" or "artificial" only with respect to our own perception of the text and the plain meaning we ascribe to it.

David Halivni has showed that what Tannaim and Amoraim understand by "peshat" (generally translated by literal meaning) does not correspond to the medieval meaning nor to our modern understanding11. For them, peshat is the meaning extended to its wider context, to the whole verse. The equivalence between peshat and

10 From Messorot u-Messorot, Rosh ha-Shana p. 402 sq.11 A synthesis is presented in the first part of his book Peshat and Derash, Oxford University Press, 1991. See in particular Appendix IV.

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literal meaning is more recent. Besides, even the identification between plain meaning and literal meaning is more modern than we might think. Sometimes, an allegorical or metaphorical interpretation is the simple meaning, the peshat, of the text. A striking example is the biblical passage prescribing the wearing of tefillin (phylacteries):

�ה �ה�ָי � ְו �רְון ְל�אְות ְל�ָך �ָּכ ְל�ִז �, ְו �ְד�ָך �ָין ַע�ְל-ָי � ֵּב �ָיָך (שמות יג:ט)ַע�ָיֶנ ְק�ַׁש��ר�ת �ם ְו �ה�ָיְו �; ְו �ְד�ָך �ָין ְל�אְות, ַע�ְל-ָי � ְל�ָטָט�ֹפת, ֵּב �ָיָך (דברים ו:ח)ַע�ָיֶנ

And it shall be for a sign unto thee upon thy hand, and for a memorial between thine eyes (Exodus 13:9)And thou shalt bind them for a sign upon thy hand, and they shall be for frontlets between thine eyes (Deuteronomy 6:8).

Rabbis as well as sectarians of the first and second century before c.e. were convinced that these verses command putting on actual boxes containing specific passages of the Torah on the forearm and the forehead. They would interpret these passages "literally". However, one can possibly conceive that the plain meaning of these verses is metaphorical and not literal (especially the verse from Exodus). Yet this possibility is not even mentioned in the midrashic tannaitic literature (one distinctive feature of which being precisely to raise possibilities of multiple explanations, if only to reject them). Nevertheless, more than one thousand years later, during the medieval period, the Rashbam12, in his commentary on the Torah (ad loc.), explicitly embraces the metaphorical approach (as opposed to Rashi):

� ְל�אְות ָך �ְד� כתוב עלכאלו: לפי עומק פשוטו. יהיה לך לזכרון תמיד ַע�ְל-ָי�ָי כעיןידך. ֶנ � ָּכ�חְות�ם ַׁש#�ָיֵמ� �ָך (שיר השירים ח:ו). ַע�ְל-ְל�ֵּב

A sign upon thy hand: according to the depth of its peshat. It shall be for an eternal memorial as it were written upon your arm. As [in the verse]: set me as a seal upon thy heart (Songs of songs 8:6).

Contemporary sensitivity is closer to that of the Rashbam than the Tannaim. The simple meaning of the verse is metaphorical, not literal. It is interesting to note that the Karaites, who reject the Oral Law, have also understood the verse in its metaphorical sense. Though their metaphorical interpretation predates that of the Rashbam, it is much later than the midrashic literature. The influence of the Karaites on rabbinical thought is not clear, but this may partially account for the subsequent prevalence of peshat over derash in rabbinical thought (notably R. Saadya Gaon (882-942) who argues that only in exceptional occurrences should the biblical text be interpreted according to derash). In any case, this confirms a general pattern in the evolution of sensitivity to peshat.

However, the Rashbam felt free to pursue his quest for peshat in the Torah only as long as it did not impinge on halakhah. In the Middle Ages, the exegesis of the Bible had already been supplanted by other methods in psaq halakhah, in matters of legal rulings. When the exegetical concern was disjoint from the determination of halakhah (and in this context only), the peshat could be embraced at all cost. In matters of halakhah, even the Rashbam had to reckon with – and rely on – forced interpretations.

12 Rabbi Shmuel ben Meir, grandson of Rashi, jurist and commentator of the Bible and the Talmud, 11-12th century.

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An increasing number of sages from the Middle Ages endeavored to reconcile the Talmudic text with their own sensitivity to peshat by arguing that the forced explanations of the Talmud are actually the "true peshat", or the "peshat in depth" (an expression reminiscent of the Rashbam's in his commentary on the Torah). Hence the study of the Talmud with the Rishonim is an excellent way to discover the sewing threads of the text. Their approach gave rise to the pilpul – the art of casuistic deduction, a process that does not displace the literal meaning of the text nor its substance (legal or homiletic), but seeks to unveil a kind of hidden or internal logic of the text, by means of formal and logic connections). Pilpul preserves the surface of peshat, the apparent literality of the text, by discovering an invisible logic at work in the text. The more coherent the logic is without touching upon the substance of the text, the better the pilpul is.

Nowadays nevertheless, regardless of a definite appreciation of its virtuosity, pilpul does not accommodate our sensitivity to, or understanding of, peshat. Besides, pilpul does not lead, in general, to halakhah le-ma`asseh, to a practical legal ruling. How do we respond to the challenge of dohaq in the Talmud?

HISTORICITY AND CONTEMPORANEITY OF THE TEXT

A possible first response to the textual difficulties in the Talmud – and especially to dohaq – consists in considering the history of the text irrelevant. Most of the interpretations of the sages, from the Middle Ages to the eighteenth century, were not historical; history was a subsidiary feature. The Bible, the Talmud and the commentaries of the sages would suffice to study and live. Can such an attitude today still qualify as non-historical response – what it was for centuries – without actually being anti-historical? In his classical book Zahor13, Y.H. Yerushalmi writes:

Those Jews who are still within the enchanted circle of tradition, or those who have returned to it, find the work of the historian irrelevant. They seek, not the historicity of the past, but its eternal contemporaneity. Addressed directly by the text, the question of how it evolved must seem to them subsidiary, if not meaningless.

This attitude is familiar to us. Many Jews feel a kind of instinctive sympathy for it, the Jew who lives in or returns to the classical yeshiva as much as the Jew who takes part to the economy of the modern world and perhaps reads the great philosophers. History still serves as an instrument of Hegelian judgment; yet ought the Jew not to resist with all his heart and with all his soul to instating history as the magistrate of humanity? Does a certain history of the twentieth century not teach us, in spite of all loftiness of human thought, how easily history turns into history of the mighty?

This is, perhaps, the strongest objection to history. But it presupposes precisely a historical consciousness.

13 Zahor, Jewish History and Jewish Memory, University of Washington Press, 1989.

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No less commanding a figure than the Jewish philosopher E. Levinas stated that the study of philology can be deferred. Pharisaic study, he writes, brings to light a convergence as miraculous as the miracle of a unique source which would be the background of a naive faith. The deconstruction of texts would only mean belaboring the obvious. But is the historical study of the texts of sages always deconstruction work? Is there not in it a distinct if not higher purpose, namely to restore and rebuild the texts of the sages?

The Pharisaic study of the texts is necessarily a work on the difficulties of the text. Bringing to light a confluence of the Talmudic teachings is perhaps less a synthesis, however divinely enlightened it might be, than patient work which goes through all the human tools to restore the text in its dignity. Since history is one these tools, why should one make of forced explanation, of dohaq, a principle of divine truth of the Torah14? Those who are reluctant to seek a rational motive or cause to dahouqim in the Talmud are free to raise derash to metaphysical heights, but then they must ask themselves whether the price they are actually paying is not the relinquishment of peshat. The Talmudic text that teems with forced explanations is a legal text; is deferring the critical resolution of these difficulties not jeopardizing our understanding of the shakle ve-taria, the give-and-take inherent to legal proceedings? Does refusing to tackle the difficulties of the peshat by arguing that the text is inviolable or sacrosanct not amount to ascribe to the laws a status above reason, perhaps even uniquely above reason? We would then be similar to those who are reluctant to discover a motive in the divine laws and prefer to see in the absence of rational meaning a proof of their divine origin15.

Each generation of sages is confronted to the texts of the previous generations. The Maharal of Prague16, for instance, explains the sharp Talmudic expression

חסורי מחסרא והכי קתני

[Our Mishnah] is certainly lacunary and this is what it reads

by the fact that the compiler of the Mishnah, in order to circumvent the prohibition to write down the Oral Law, intentionally omitted certain words17. This explanation strikes us as artificial, because it is hardly compatible with our knowledge of history (the Mishnah was not put into writing until centuries after it was compiled by Rebbi) and it directly conflicts with our modern sensibility when facing an authoritative text (how could the author leave out essential information?). Nevertheless, however artificial it seems to us, this "explanation" already reflects a conscience of the tension between the text and its history.

14 Compare with what the Hatam Sofer writes in his Hiddushav leQetouboth: "Most of dahouqim [forced explanations] are authentic, while most of the intellectual and rational ideas are lies and cover the face of the truth." Less extreme is the following statement from R. Israel Salanter from his book Tevunah: "What is truth? The truth lies not only in literal evidence (פשטות), because literal evidence is only one possible way of providing evidence (…)". These two excerpts are quoted from Meqorot u-Messorot, Seder Nachim, p. 10, n. 9. See therein for references. 15 See Guide of the Perplexed, 3:31.16 Rabbi Judah Loew ben Bezalel, jurist and thinker (16th century), to whom is attributed the legend of the Golem.17 The Book and the Sword, Westview Press, 1996, p. 142. I haven't been able yet to locate the exact reference in the Maharal's writings.

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If the major part of the Talmud is filled with anonymous explanations that conflicts with our perception of the plain meaning of the text and if these explanations are nonetheless vital to the tradition and to the way we understand it, then ought we not to learn about these sages "whose words we drink at each page of the Talmud and whom names we do not mention"18?

THE STAMMAIM

The question of the attribution of the dialectical material

Let us briefly sum up the main points so far before examining further David Halivni's thesis: 1) The anonymous interpretations make the main part of the dialectical material of the Talmud; 2) The anonymous interpretations in the Guemara, especially those that are "forced" or "artificial" explanations, are the trace of a (problematic) reconstruction of the deliberations leading to pisqe halakhah, legal decisions; 3) This reconstruction occurs later than the preservation of the legal decisions; 4) The difficulties of the text caused by this reconstruction are perceived, in various ways, by later generations of sages, at least since the Middle Ages (Rishonim).

Now the latest sages who state (non-anonymously) laws preserved in the Guemara are the Amoraim. A priori there might be that the discursive and anonymous material of the Guemara be the work of the Amoraim themselves and not of later sages. Why would the anonymous passages of the Talmud be later than the Amoraim? For instance, we find more than four thousand statements, opinions, objections and refutations attributed to Abbaye and Rava, two prominent Amoraim of the fourth generation, insomuch that that the expression hawayot Abbaye ve-Rava, the deliberations of Abbaye and Rava, has become a synonym of the Talmud itself. Should we ascribe all this dialectic material to the generation of Amoraim that comes immediately after them (that corresponds to the traditional viewpoint) or should we posit the existence of a later period of sages, distinct from that of the Amoraim?

David Halivni's answer to this question is a patient development of several decades over the course of which he progressively strays away from the traditional viewpoint. The publication of each new volume reinforces the idea that a distinct generation of sages was at work after the complete end of the Amoraic period. In the volume of Messorot u-Meqorot devoted to Seder Nashim, David Halivni still ascribes a part of the anonymous discursive material to the Amoraim. The volume devoted to Seder Moed (from Yoma to Hagigah) is a turning point: he recalls this fundamental hypothesis. He has then reached the conclusion that the anonymous passages of the Guemara (stammoth) were not introduced before Rav Ashi and Ravina (middle of the fifth century) but a later period, after that of the Amoraim. In particular he writes at the beginning of the introduction to the volume devoted to the treatise Shabbat: "What we received from the Amoraim and what we did not received from them, the

18 Cf. Horayot 14a.

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form in which we received their words, all over are the Stammaim's fingerprints. The teachings of the Amoraim are diluted in the teachings of the Stammaim." In the introduction to the volume devoted to the treatise Baba Metsia, he postpones the period of the Stammaim: the production of stammot did not begin right after Rav Ashi and Ravina, but rather after the latest Amora quoted in the Talmud (around 550-600). In the latest volume published in 2008 on Baba Bathra, he extends their activity until the middle of the eighth century, so that it lasts about two centuries, a considerable period of time, commensurate with the huge task of reconstruction and re-creation of the shakle ve-taria of the sages.

Rav Ashi and Ravina, End of Hora'ah

The expression "Rav Ashi and Ravina sof hora'ah" (Baba Metsia 86a) plays a

key role in the discussion about the existence of the Stammaim (as distinct from the Amoraim). The traditional viewpoint is supported by the Epistle of Rav Sherira Gaon (966—1065) who considers that the dialectical material was transmitted immediately after the Mishna was compiled:

When the Mishnah was completed and Rebbi's soul [Rabbi Yehoudah ha-Nassi] departed, the heart weakened and the need was felt to organize the teachings and to study it… (p. 69, B.M. Lewin ed.)

He also writes:

Hora'ah developed generation after generation until Ravina and stopped after Ravina (…) And the end of hora'ah occurred at the time [of Rav Ashi] and the Talmud was completed.

Rav Sherira Gaon seems to identify the end of hora'ah to the end of the Talmud. The latter includes all the shaqle ve-taria, the anonymous dialectical material of the Guemara. It follows, then, that all the shaqle ve-taria of the Guemara is either the work of the Amoraim or of Rav Ashi himself. Either the discussion of the law was reported by the sage who stated the law or by Rav Ashi. In particular, all the shaqle ve-taria is invested with Amoraic authority.

The Rishonim, in general, seem to adopt Rav Sherira Gaon's historical thesis. For instance, Rashi, in his commentary on the Guemara (Baba Metsia 86a), writes:

[Rav Ashi and Ravina] sof hora'ah: end of all the Amoraim. Until their period [Rav Ashi and Ravina's], the Guemara would not follow a determined order but would follow the order of questions that were raised on the reasons of a Mishnah in the House of Study or on the legal decisions made on civil or religious law by a Court, each one explaining his motives. Rav Ashi and Ravina arranged all the explanations before them, set the order of the treatises [of the Guemara] according to their relation to the Mishnah, they and the Amoraim who were with them raised the difficulties, objections and problems that ought to be solved…

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However, in other places (Pessahim 97a, Sanhedrin 6a), Rashi explains that the unusual term savarouah ("they explained it") refers to an explanation of the "Saboraim of the House of Study" or "the Amoraim of the Yeshivah" without explicitly mentioning Rav Ashi, presumably because the sage referred to in the Guemara lived later than Rav Ashi19. Hence there remains a certain ambiguity, insofar as Rashi subscribes to Rav Sherira Gaon's thesis while recognizing more or less implicitly that there are suggyot whose inclusion into the Talmud is due to Saboraim, after Rav Ashi.

Somewhat more explicitly, we find in the writings of another great commentator of the Talmud, the Ritva (Rabbi Yom Tov ben Abraham, 1250—1320) the following comment on Baba Metsia 3a20:

This explanation is not essentially part of the Talmud, but rather is the words of Mar bar Yehudai Gaon…

On Qetuboth 34b, he writes21:

Our great teacher [Nahmanides] has explained that these are not the words of the Talmud but the words of Rav Yehudai Gaon of blessed memory and there is no need to import them from another place…

Hence some medieval scholars (Geonim and Rishonim) were conscious that some material, including dialectical material, had continued accruing in the Talmud, well after the "end of hora'ah"22. We have seen above that Rav Sherira identifies the end of hora'ah to the end of the Talmud which includes the dialectical material of the Guemara. David Halivni shows that in the Talmud, hora'ah is not synonymous with shaqle ve-taria, the dialectical material of the Talmud, but rather means halakhah pesuqah, legal decision23, as other scholars have also understood24. David Halivni understands "end of hora'ah" as end of halakhot qetsouvoth, end of legal decisions without dialectical material, with no official recording of deliberations, of the Amoraim. If it is so, then the dialectical material is necessarily post-Amoraic: it was reconstructed and restored later – by the Stammaim.

The work of the Stammaim

Once we posit that the whole anonymous material of the Guemara is post-Amoraic, there remains to investigate why there are so many forced interpretations in the Guemara. David Halivni distinguishes two explanations:

19 Meqorot u-Messorot, Introduction to Baba Bathra, p. 13, n. 27.20 Quoted by D. Sperber in Netivot Psiqah, p. 23, from Sh. Friedman, Mehqarim u-Meqorot, p. 87.21 Ibidem.22 The extent to which the Gueonim and the Rishonim perceived this fact, however, is still a matter of debate between scholars and is beyond the scope of this article.23 See Meqorot u-Messorot, Introduction to Baba Metsia, p. 20.24 The meaning of sof hora'ah has been discussed by many scholars. See the book of M. Alon, Ha-Mishpat ha-Ivri, Jerusalem 1973, p. 896 and the article of S. Z. Havlin, Mehqarim baSifrout Talmudit, in the book in honor of S. Lieberman, Jerusalem, 1983, pp. 148-192.

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1. The elapsed time between the teachings of the Amoraim and their stammaitic explanations.

2. The absence of official transmission of dialectical material (arguments leading to legal decisions).

These two explanations do not contradict but are not equivalent. These two explanations imply that the stammot, the anonymous passages of the Talmud, are post-Amoraic, that Rav Ashi and Ravina could not have been the editors of the Talmud. Nevertheless, there is a fundamental difference between these two explanations: according to the first hypothesis, the dialectic material before us is essentially that of the Amoraim and this material has been sometimes damaged or forgotten in the course of time. Their successors had no choice but to restore their arguments and discussions by means of forced explanations. In the case when the dialectical text reads according to the literal meaning, one should conclude, then, that the arguments are those of the Amoraim. According to David Halivni, the first hypothesis fails to account for the huge number of forced explanations in the Talmud. If there had been a tradition of official transmission of deliberations, the Talmudic text would be smoother and much different. We are then led to consider the second hypothesis: the Amoraim would not preserve their arguments in an official form. It follows that the formulation of the arguments itself, the wording of the deliberations, as we read them in our page of Guemara, cannot be that of the Amoraim. This second explanation is more radical and has far-reaching consequences: all the dialectical material, be it composed of artificial arguments or not, is the creation-reconstitution of the Stammaim; the Stammaim are the first sages to preserve dialectical arguments for posterity. Therefore there is a fundamental rupture between the period of the Amoraim and the period of the Stammaim.

During two centuries25 the Stammaim strived to elucidate the sources and traditions of laws that they received, of which they reconstructed the deliberations. The Stammaim devoted most of their time to this task of reconstruction – which implies a measure of error and conjecture – insomuch that few new halakhoth are attributed to them.

In his book Midrash, Mishnah and Guemara, David Halivni draws an illuminating analogy with the constitution of the United States of America26. The latter, which is one of the oldest constitutions in the world still in force, is undoubtedly a foundational text of the United States. Although no divine revelation is attributed to it, it is defined as the "supreme law" of the country. It is known that the Federal Convention of 1787 engaged in the complex labor of framing this constitution. The delegates taking part to the convention were fully aware of the historic times in which they were living. They are considered the Founding Fathers of the country as much as the signers of the Declaration of Independence of 1776. Yet the deliberations of the Federal Convention remained in the shadow for more than a century. Several contradictory versions of these deliberations circulated, none of which was fully reliable. The edition of these deliberations, undertaken before the First World War by Max Farrand27, is a remarkable erudite work whose difficulties are familiar to the modern critical Talmud scholar.

25 See Meqorot u-Messorot, introduction to Baba Bathra.26 pp. 138-139, n. 10.

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If the text of the Constitution of the United States of America raises many a difficulty in the reconstruction of its deliberations, what should we say, then, about the task of the Stammaim? Indeed, the Tannaim and the Amoraim left no stone unturned to determine the law in all areas of human existence. Furthermore, unlike the Federal Convention's deliberations that lasted four months, the shakle ve-taria of the Tannaim and Amoraim went on for centuries. And yet, the work of the Stammaim eventually turned into a written book, the Talmud, that has become itself the foundation of Jewish law and learning.

In the latest volume of Meqorot u-Messorot, David Halivni endeavors to describe the various steps in the formation of the Talmud until its written form in books (מסכתות). He distinguishes two main tasks in the activity of the Stammaim: the first one consists in transmitting discursive material and sources to apodictic material (or material that contains few or truncated arguments). This import of dialectical material covers the whole stammaitic period and cannot be identified to an "edition" of the Talmud: the Stammaim were so fully involved in their activity that they did not attempt to write the Talmud in a closed form. The second task consists in collecting and assembling distinct suggyot in order to make a unique Guemara. This activity, more drastic than the first one, does not resemble an edition in the classical sense; it consists to amalgamate against the grain distinct – whole or truncated, and sometimes contradictory – suggyot, the fruits of teachings from distinct academies. The authors had no longer the liberty to modify the already constituted dialectical corpus of the Guemara (or Guemaroth) by adding new arguments: as a result, they could not solve the contradictions it already contained.

Unlike the Mishnah, the Talmud was not completed under the authority of an individual figure: there was never a synthetic or dialectic closure. The Talmud ended up as a book, or as a series of books, after the reconstruction work of the Stammaim came to an end. The end of the Stammaitic period did not mean the end of argumentation, but rather portended the awareness and then the will to distinguish between the new and old arguments. The Stammaim endeavored to restore threads of old arguments – supplemented by their own, when no tradition was available to them. When it was not possible to add anything but brief explanations to the work of the Stammaim, the Talmud was close to its final form as we know it. However, the dialectical awareness initiated by the Stammaim followed its course. The time for new books, independent of the Talmud (even when they react to its teachings, comment and develop them), had come.

AUTHORITY, CANONICITY AND SEEDS OF FUTURE WORKS

The Jewish tradition does not know of "canonical texts" but texts inspired by the ruah ha-qodesh, or that "render the hands impure". The writing, the vocalization and the public reading of these texts are codified.

27 The Records of the Federal Convention of 1787, 4 volumes, Yale University Press, New Haven, 1937 (revised edition). The whole text is in public domain and is freely available on the internet.

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Yet, attributing such a lofty status to a text – where the most insignificant error in its writing invalidates its public reading – is itself the fruit of a deliberation. For instance, we find traces of such deliberations in the discussions of the Tannaim and Amoraim (as rebuilt by the Stammaim) on the Scroll of Esther and Ecclesiastes.

The work of David Halivni raises a number of fundamental questions about our own relationship to the Talmud, as an authoritative text. While being the rabbinical text transmitted with the highest degree of reliability, Rebbi's Mishnah is not part of the Bible. It has, nonetheless, an exceptional status since a distinction is made between the Tannaitic teachings that are included in it and those that are not (baraita). But even as the dialectical material of the Guemara relies on the Mishnah, the sages of the Guemara do not hesitate sometimes to emend the text of the Mishnah. How can these sages read into the Mishnah, a legal text whose ramifications are immense? Where does the authority lie? The work of David Halivni suggests that the authority does not reside – or not always reside – in the written text, be it canonical, thereby confirming the classical rabbinical perspective that makes the Oral Torah prevail upon the Written Torah. We read for instance in Qiddushin 66b28:

The service performed by a blemished priest is invalid, from where [do we know]? Rav Yehudah said that Shmuel has given the supporting scriptural source (Numbers 25:12): behold, I give him my covenant in peace [shalom] – that is to say, when the priest is perfect [shalem] but not when he is blemished. But it is written shalom! Rav Nahman said that the vav of [the word] shalom is broken off [so that it might be read shalem].

This derashah surprisingly appears to ignore the fact that in the massoretical text, the vav is not broken! Therefore, the halakhah, the law, relative to the blemished priest, has no biblical basis.

The post-Talmudic commentators did take notice of the discrepancies between the rabbinical citations and the massoretical text. Most of them did not regard these discrepancies as a theological challenge, even as they do affect concretely halakhah. The Rashba, Rabbi Shlomo ben Adret, tried to rectify the biblical text by suggesting, in case of discrepancy, to adopt the Talmudic version. His initiative did not really strike a chord with the rabbinical world and the massoretic text remained inviolable. Talmudic laws continued to apply and scribes continued to write the scrolls as before. Other exegetes, for instance, the Baal ha-Turim, introduced a derash to explain these discrepancies. Or perhaps should we regard, on the contrary, these discrepancies as the opening par excellence to derash? Whatever the perspective is, it does not affect the inviolability of the text nor halakhah.

Actually, the idea of an Oral Law, Torah she-ba`al pe, which supplements and rectifies the Written Law, almost does not appear in Tannaitic literature. The well known expression halakhah le-Moshe mi-Sinai, "[this is] a law [given orally] to Moshe at Sinai", is of tanaitic origin, but it does not carry a decisive weight in

28 See Revelation Restored, Westview Press, 1997, pp. 38-39.

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determining the law29 (even though David Halivni shows that its use grows with the later generations of sages).

Some medieval commentators tried to ground the Oral Law, Tora she-be`al pe, on the Written Law, Tora she-bikhtav, and developed an exegesis enabling to overcome the discrepancies between the written text and the law30. In the course of time, the rabbis viewed in the written word a growing source of oral traditions. Concurrently and in an opposed direction, many an oral tradition was linked to the Revelation at Sinai under the denomination halakhah le-Moshe mi-Sinai.

Clarifying the relation between Oral and Written Torah actually means, for the Jew, to understand himself in an age-old tradition. For the modern Jew, the authority of the Oral Torah that prevails on the Written Torah is to be demystified. However, this clarification or this demystification cannot be summed up in a few principles that would await a proof. The clarification itself is called upon to become Oral Torah. David Halivni shows that the rabbinical work, a human undertaking aiming at serving the Creator in all domains of day-to-day human existence, was itself already grappling with this demystification from the very beginning. The Stammaim as well as their post-Talmudic heirs perceived partially the dichotomic nature of their work, as it entails a research of consensual and conjectural truth (following the majority rule), on the one hand, and a research of textual truth (study as an independent intellectual pursuit) on the other hand.

The Stammaim, teaches David Halivni, did not have at their disposal a theoretical precedent for their task of reconstruction; nevertheless they could rely on the Midreshe Halakhah, the Midrashim that contain dialectical legal material, in order to justify their own approach, namely to devote most of their time to dialectical material. One key feature that emerges from David Halivni's analysis is non- coincidence: hora'ah and awareness of dialectics' intrinsic worth are not contemporary events, they are two disjoint historical moments. One should not infer from this that the Tannaim and Amoraim had no interest in the arguments, in the shaqle ve-taria: far from it! Indeed, arguments and discussions were deemed indispensable, but only as a means of reaching legal conclusions, not as ends in themselves. Only later, in the Stammaitic period arose the awareness that the deliberations too deserved to be preserved for posterity. The fact seems so fundamental that we can ask ourselves if it is not structural in human thought: the time of deliberations when the goal is to reach a legal decision is not superimposed on the time of awareness and interest in the deliberations themselves. It is not given to man to deliberate in order to reach a conclusion and at the same time to give meaning to his deliberation. In any deliberation (leading to an end), there is a measure of opacity. To deliberate is not – not yet – to convey a meaning to the deliberation. The latter act is also the latest and comes after the deliberation. The arguments of the Tannaim and the Amoraim were not officially preserved once the legal conclusion was reached, but they were left to the individual memory of the sages who had taken part in the debates. It is only later that they became an object of study. The dialectical

29 P. Schafer, Das Dogma von der Mundlichen Tora : Studien zur Geschichte und Theologie des Rabbinischen Judentums, Leiden, 1978, pp. 153-197 ; J. Neusner, The Rabbinic Traditions About the Pharisees Before 70 , Leiden, 1971, vol. 3, pp. 177-179 ; David Halivni, Revelation Restored, Westview, 1999, pp. 54-63.

30 This trend should not be confused with the doctrine of the Karaites for whom only the Written Law (Torah she-bikhtav) has authority and who rejected the notion of an Oral Law.

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seed of laws, imperfect and consensual, contradictory and sometimes corrupted, is richer than the pedagogical edifying lesson; it not only "creates an avenue of reopening a case and repealing a previous decision" (Mishnah `Eduyot 1), but it also allows the gestation of future works.

PHARISAIC STUDY AFTER THE DESTRUCTION

The adjournment of philology, which E. Levinas suggests, can be understood as a rejection of the omnipotence of reason, or of the triumph of reason, a Trojan horse of Hegelian history. However, rationality itself cannot be forsaken.

The use of reason includes the acceptance of the risk, inherent to any human undertaking, of being mistaken. The Stammaim's masterwork, both a restoration and a reconstruction, implies a measure of error and conjecture. Furthermore, once the deliberations themselves became an object of study, the dichotomy between reaching a legal decision and studying the text for itself is inescapable. Unavoidably the question arises: should one repair these errors? And would such a project not be itself marred by our own errors of judgment?

But can the dichotomy be overcome? An authority as prominent as the Rashba could not rectify the massoretic text of the Torah when it diverges from that quoted in the Talmud. His attempt echoes the attempt of later rabbis to harmonize pilpul and halakhah. The latter was met with fierce opposition in the yeshivot and where it was imposed, nor the pilpul neither the study of practical halakhah could flourish. The rules of practical halakhah cannot apply to genuine interpretation of texts. Text study must be its own purpose. Thus the dichotomy cannot be overcome; it is not even desirable to overcome it because it would be at the expense of one subject or the other.

We have seen that some elements of David Halivni's work undoubtedly have their roots in the traditional rabbinical literature. Indeed, the sages, since the Gueonim, were aware to various degrees of the difficulties and singularities of the Talmudic text, including when the discussions have legal consequences. David Halivni has given to historical textual analysis a systematic character that does go beyond the traditional framework. In particular, David Halivni's work brings to light the dichotomy mentioned above throughout the whole of rabbinical literature in a pervading way. However, for all the astuteness of the thesis, the historical conscience of the Jew is not appeased. The latter studies the text, not as an historian, but as a subject who observes a religious commandment. If he is historically aware, then he faces a conflict of divergent interests: on the one hand, the study of the text that includes the uncompromising rigor of peshat and history, and on the other hand, the respect of the commandments, the rabbinical derash. Does the contemporary Jew not risk alienating one or the other?

The contemporary Jew, like the survivor, has to confront two contradictory materials: on the one hand, the tree of the tradition which cannot serve anymore as a comforting intellectual background; on the other hand, the tools of critical reason

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which cannot immediately integrate to the tradition. In his autobiography, David Halivni writes:

I still believe that a sensitive survivor – and particularly one who has the opportunity or the leisure to pursue an intellectual activity – must work, should work under the influence of mutually contradictory forces. A sensitive survivor must recognize that there was a collapse of norms…. And if you are sensitive, in the face of this collapse you must reexamine what you stood for. You can put it as a test: if not for the Shoah, what would you be doing? If the answer is, "the same", then know that this is wrong. If you were teaching literature for example, that literature failed, betrayed you. Something must have changed… So somebody who studied Talmud before and studies Talmud after has this problem. Something must be different.31

The criticism of the past is therefore a necessity of intelligibility for the contemporary Jew and this criticism cannot avoid the tradition, which is beyond the field of intelligibility:

On the one hand, one must find fault with what happened, for if there is no fault, there is an indirect affirmation. If you continue doing now what you have done before, then you are saying that nothing was wrong – and you do not relate to what happened. Not criticizing the past is being like those who justify… – the one who know why. Knowing why is a statement of approval. On the other hand, if you acknowledge the wrong, then you run the risk of cutting off the branch upon which you rest…. Therefore the struggle… is… to find a way of criticizing tradition, but of holding steadfast to it. Criticizing affirms that something went wrong – badly wrong, deeply wrong. Yet… a person must find comfort and consolation in tradition. However, something in that tradition must be different, or else we say implicitly that nothing happened.

The historically aware Jew declines to choose between Athens and Jerusalem. The dilemma itself (whose formulation was coined by L. Strauss) betrays an ontological priority granted to reason. "The philosopher cannot renounce Athens without renouncing himself; but he cannot renounce Jerusalem without hurtling into disaster", bluntly writes J.-C. Milner. However, David Halivni's work invites the contemporary Jew to an old-new life: to raise the eyes higher than the horror of the disaster while acknowledging that the extent of the disaster is irreparable – by engaging in turn in the task undertaken by the Stammaim. As adults, we know that this patient task is pursued in our day under the shadow of destruction. However, there is no other way of renewing their work than resuming the discussion with the anonymous sages who braided the suggyot of the Talmud. And this task ought not to be adjourned, even were we to raise the Talmud to metaphysical or meta-historical heights.

David Halivni's teaching offers no doctrinal safeguard. David Halivni has been criticized for both compromising intellectually with tradition by pursuing critical study and his behavioral intransigence vis-à-vis modernity. That is: his work may not have the liberating impact that some may wish in the field of halakhah: it certainly does not call for a subordination of halakhah to our sense of morality. (David Halivni has other reasons to prefer our sense of reason to our sense of morality.) It will not

31 The Book and the Sword, Westview Press, p. 160.

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have either the conservative doctrinal effect that some others would expect: its goal is not to bring back the modern Jew, be it the well-educated Jew, within the circle of tradition. David Halivni's students already know that the circle of tradition has quite a few topological surprises in store for us. David Halivni's work leads to an increased awareness of human contradictions at the core of the Jewish tradition and instills in any sensible Jewish reader a sense of humility and frailty. May it invite him to both quench his thirst for the waters of Oral Torah, and, with courage and humility, engage in its renewal.

Modi'in, Rosh Hodesh Elul 5769

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