[[[ However, religious Zionists argue that these oaths [Kesuvos 111a] are aggadic (non-legal) and should not be treated as binding halachic principles.]]]
Exactly. Ya hit the nail square on the head! [[[The aggadic narrative served to temper messianic fervor and prevent reckless attempts to reclaim the land under unfavorable conditions.]]] This sums up the issue in a magnificent manner!!!
[[[The unprecedented atrocities of the Holocaust (Shoah) breached the third oath (“nations of the world must not oppress Israel excessively”). This nullifies the relevance of the oaths in modern times, as the promise of restraint by the nations was broken.]]]
Had just made aliya to Israel at age 31 and virtually spoke no Hebrew. While walking through the Old City of Jerusalem, a Yeshiva bukher invited me into his Yeshiva and introduced me to this very Gemara.
Clearly he represented classic Orthodox statute law content oriented/prioritized education. He denounced the Zionist accomplishment of Jewish self determination in the Middle East!
Rabbi Asher Dov Kahn had given me a Heads-up approximately 5 years earlier when I lived in Tulsa Oklahoma – the buckle of the bible-belt under the shadow of Oral Roberts University!
Rabbi Asher Dov Kahn, I love this man to this very day! His son lives in Israel in an Israeli post ’67 settlement. I visited him to mourn the passing of rabbi Kahn; who introduced me to the distinction between “content driven” statute law vs. “Order of logic” which prioritizes Talmudic common law!
Rav Aaron Nemuraskii who sat under rabbi Yosef Shalom Elyashiv for 35 years, he introduced me to the kabbalah of the Siddur, pointing out the root of the verb! Common law logic spins around the central axis of Order rather than the secondary periphery statute law issues which prioritize subject matter content. God or Dog: two complete different subjects.
This dispute between the priority of content subject matter vs. the order/organization\editing of Talmudic common law texts: While in the house of Rabbi Wolfson he showed me an original manuscript copy which disputes the manuscript which the Vilna Shas publishes. Rabbi Wolfson, it seems to me, his showing me the distinction between hand-written manuscripts, that he validated Rav Nemuraskii’s huge chiddush that the Siddur/Shemone Esrei shapes and defines the Order and editing wisdom which produced both the Talmud Bavli and the Talmud Yerushalmi. The hand-written manuscript of the Baali Tosafot commentary to the Bavli goes like this:
מחלקת גרסאות בכתבי יד בבעלי התוספות: מותר גבינת עכום\עובדי כוכבים ומזלות/ כנגד מותר גניבת עכום. A vast gulf separates eating cheese made by Goyim from permitting stolen goods from Goyim. The Gemarah of Chullen rejects cheese made in the stomachs of kosher animals as the enzyme required to make cheese. Based upon the Torah p’suk precedent of not cooking the kid in its mothers’ milk. Rav Wolfson’s manuscript implies that cheese made by Goyim compares to bread made by Goyim. During the Dark Ages, cheese part of the staple diet of g’lut Jewry. Rabbi Feinstein addressed the issue of unsupervised milk (known as Cholov Stam or “plain milk”) in North America. He permitted its use in בדיעבד cases.
At Dvar Yerushalim continually balanced these two opposing sets of learning priorities as expressed through rabbi Waldman, whose Uncles endured the Shoah in Germany.
Rav Waldman, another one of my rabbinic heroes! His thinking, more closer to rabbi Wolfson’s sh’itta of prioritization. Both contrasted and differed with the sh’itta of learning as taught to me by Rav Nemuraskii, the house painter! (That’s how the latter earned a modest living which permitted him to buy houses for his daughters when they married!)
Rav Waldman’s uncles, one sat in parks in Berlin throughout the war years! For three years he read the exact same page of Gemarah, which Nazi propaganda mocked by printing that page, together with its Rashi and Tosafot commentary, in their newspaper. He publicly read that Nazi newspaper every day in a public park in Berlin.
The brother of this uncle, got rounded up and sent to Auschwitz. He managed to save a rosh tefillen. At שחרית every morning he placed this rosh tefillen with a ברכה. And then quickly passed it on to all the Yidden in his cell.
Word got out and Rudolf Franz Ferdinand Höss ordered the SS to make a search of that cell, and he confiscated that rosh tefillen and placed it into his safe in his Office.
This 2nd uncle of rabbi Waldman, broke out of his cell past curfew – a death sentence. He broke into Franz’s Office, picked the safe in his Office and replaced his rosh tefillen with his leather belt that he had fashioned to resemble his tefillen! For 3 years he and the people of his cell placed tefillen with a ברכה. Their resistance against the Nazi SS.
Rav Nemuraskii rivalled his ’48 Independence War struggle in the IDF with hair raising miracles which he walked out of certain death with his life! One story that amazed both him and myself. He sat with his rifle perched at a window on the 2nd floor of a house. Jordan brought a tank, which fired a shell into the building.
He realized game over so he jumped out of the window. The tank shell caused the entire wall of the house to fall upon him. The window from which he jumped fell upon him! He survived without so much as a scratch!
Another story told by rabbi Nemuraskii, he enthralled all of his baali t’shuva students with his war stories about how Jews achieved national self-determination in 1948.
This second Midrash story of his life during the Independence War, Jordanians ambushed his squad, killing everyone. Rav Aaron played dead. While Jordanian soldiers bayoneted his perished brothers. Just as the soldier came to ensure that he too had died, his Officer called that soldier to some other duty. Rav Nemuraskii waited till nightfall and returned back to his platoon as the only survivor of his squad.
Both rabbis inspired me to learn Shas. Finished the Shas for the first time with Rav Aaron in 4 months together. We would learn for 12 hours then paint the room of some house together before going to bed! I love rav Aaron Nemuraskii.
These three rabbis, they shaped my experience and education together with the 4th rabbi, my kollel rabbi, rabbi Wolfson! Who passed this year. Rabbi Wolfson learned through the sh’itta of the Brisker Rav pilpul. Half way through the beginning of the 2nd year of his pilpul kollel, I rejected his intense methods of learning the מאי נפקא מינא distinction which separated how this Reshon learned a line of Gemara from how another Reshon learned the same line of Gemara.
My wife Karen, had 4 children from a previous קידושין. Her only son – quite intelligent. He too learned the pilpul sh’itta which so defines Modern Orthodox education in Israel today. Her boy, together with his cousin inseparable friends while we lived in Tel Stone and later Ramat Beit Shemesh. Both boys has sharp minds.
It used to irritate me no end, that when they came together at the Shabbat meals, they discussed all subjects OTHER than their pilpul Yeshiva learning!
Sitting in Rav Wolfson’s kollel shiurim, it struck me, only a marginal handful of the students in that shiur followed the pilpul reasoning! This explained why Karen’s son and cousin refused to discuss their Yeshiva learning at the shabbos meals! How could they explain the microscopic distinctions which pilpul scholarship demands? Hence, it pains me to this day, I hurt Rav Wolfson by rejecting his sh’itta of learning!
This man challenged me in unique ways. While in his home he challenged me to explain the Mishnaic case of an ox of a Canaani that damages an Israel – obligated to pay full damages. But the ox of an Israel that damages a Canaani – exempt from all damages! Rav Wolfson asked me to explain how this Mishna teaches justice?
This question has shaped how I studied the Talmud ever since. צדק צדק תידוף defines my understanding of how the Torah defines “faith”. צדק not included in the 13 tohor middot. Herein defines how Rav Wolfson’s kollel instruction defined and shaped how I study and learn T’NaCH, Talmud, Siddur, and Midrashim to this day.
After Rav Wolfson passed, I called his son who lives in Beit Shemesh and who frequently substituted for Rav Wolfson when he had to work. Explained to him that the two Gemaras of Babba Kama and Sanhedrin serve to explain the Torah p’suk concerning giving treif meat to a ger toshav or selling that same treif meat to a na’cree.
The language of Canaani refers to the Torah language of na’cree. While the 7 mitzvot bnai noach, the language employed by mesechta Sanhedrin refers to the ger toshav. The justice of an Israel exempt for paying damages inflicted upon a Canaani … That stateless refugees have no rights. Herein explains justice: the plight of g’lut Jewry under European and Arab rule which began under the Romans & culminated in the Shoah extermination of 75% of European Jewry in less than 3 years. May this t’shuva give honor to the memory of rabbi Wolfson!
Having introduced the four legs by which Torah rabbinic masters influenced the course of my life walk/halacha, shall now return to the crux of the B’HaG dispute with the Rif common law halachic code.
The issue of priority: statute law content matter vs common law Order logic. The B’HaG at 18 prioritized pure common law Order of logic. Later, he validated the extreme needs of g’lut Jewry, which required some simplified codification of what defines Jewish culture and customs to prevent Jewish assimilation to the dominant but most hostile Goyim vast majority population centers which shaped the lives of g’lut Jewry scattered across the Oceans of rough Seas.
Recall my first year in Yeshiva where a most respected Rabbi sat me upon his knee, as if a 31 year old man – a small child asking Santa for a present!
Remembered the Gemara of מנחות which rabbi Kahn taught me concerning the matter of a mezuzah. Rabbi Kahn read the Gemara to me and asked me the question: Notice language! Either the mezuzah stands vertically or lies horizontally. Yet Jewish custom places the mezuzah at a slant.
While enjoying the Shabbos hospitality of a gracious Chassidic family in Jerusalem, the rabbi whose knee I had sat upon likewise shared a shabbos meal together. I asked that question which had so troubled rabbi Kahn and asked him to resolve the difficulty?
Post the Rambam Civil War which witnessed the priority of Content over the need of ordered logic, think Siddur, that rabbi – stumped before all the folks sitting at the shabbos table. Having over 5 years to sit upon the question, proceeded to explain the sh’itta of Rabbeinu Tam’s common law scholarship on the Talmud as the sh’itta by which to explain that Talmudic difficulty.
Why does the Rabbeinu Tam commentary to the Talmud go off the dof to some other tangential outside Gemara source? Answer: Common Law stands upon precedents/בנין אב.
How do students of the Tosafot commentaries to the Shas Bavli, eat the sh’itta of Tosafot common law scholarship?
[[[While writing a commentary which explained the sh’itta of how to study the Rambam’s statute law commentary, would later reject that effort and never published “Talmud Moderni”.
My father repeated to me over and again, a man does not understand a subject unless he can argue both sides of the issue persuasively. This opinion defined for me the style of the Gemara “difficulty/answer”. Which seems to me qualifies as “prosecutor/defence”. Hence a Jewish beit din should assign one judge of the 3 man court to one and a 2nd judge to the other legal dispute! If neither can bring precedents to dissuade the other of the validity of their common law precedent brief, then the 3rd justice determines the ruling.
The order of 3 man Torts courts likewise the order of 23 or 71 Sanhedrin Capital Crimes Courts! In the early 2000s sat as a justice in both the small and great Sanhedrin attempts. Alas I failed.
My judicial peers wanted to base a Sanhedrin courtroom upon the model of the Rambam’s statute law Yad! Stood isolated alone and eventually expelled for my opposition and resistance. The final straw which broke the camel’s back, rejected the Rav Shwartz’s court attempt to interfere with a bnai noach legal g’lut dispute. Offended Rav Shwartz because he gave me s’micha! Rabbi Waldman consoled Rav Shwartz with the משל: You can’t give a man a drivers licence and not expect him to drive a car! Later Rav Shwartz called me and confirmed his s’muchim posok making me a rabbi. Rav Shwartz and my rabbinic peers in the Great Sanhedrin attempt, all prioritized statute law content over common law Order of logic.]]]
The Rabbeinu Tam’s common law order of logic really quite simple. Based upon making a comparison to Siddur blessings of the Shemone Esrei, defines the Sugya integrity of the Shas Gemaras. By way of contrast the statute law priority of content, perhaps best expressed through the Dof Yomi reading of the Shas Bavli every 7 years! This latter sh’itta ignores the integrity of Gemara sugyot.
The “siddur” of a Gemara sugya based upon the order of its organization. The beginning of each sugya opens with a thesis statement. The closing major idea toward the end of that sugya, so to speak, a re-interpretation of the opening thesis statement. Two dots create a straight line. Simply go to the Gemara off the dof which Rabbeinu Tam brings as a precedent, just prior or just after the common law precedent brought by Rabbeinu Tam’s commentary. The Order of the sugya of Gemara follows a strict “line” sh’itta! Hence the middle point must align with the “line” of the opening and closing arguments within the sugya. Just that simple.
Having done this off the dof common law research of a precedent: a student can return and learn the commentary of Rabbeinu Tam’s precedent based common law commentary to on that students’ current Gemara! Students can, with this simple research, gobble down the Tosafot comments like a piece of cake!
But the common law Order of logic does not stop there. A modern page of Talmud permits students to employ the *: similar Gemaras to learn independent from the Tosafot common law commentaries.
Now this * scholarship, unique to the Talmud Bavli. However the Order of logic supports that if a student pursues the * precedents of other Gemaras, that student can do something totally amazing!
Because the Order of logic of the common law Bavli Yerushalmi shaped the editors of both Talmuds, if a student finds the * leads to the opening or closing sugya of that other Gemara, then this means that that sugya addresses either the beginning or the end of that Mishna of that other Gemara!
That’s essential to understand! Because once a student grasps the Framers of the Talmud and how they edited and organized Jewish common law classic texts … this same student basically knows where to look in the Yerushalmi Talmud, to learn a off the dof Talmudic precedent. Herein that student duplicates “order of logic” as expressed through the sh’itta of the Rabbeinu Tam!
The framers of the Yerushalmi, preceded Rav Ashi and Rav Ravina editing and framing the Order of the Bavli by about 150 years. Searching for a legal precedent in the Yerushalmi, predates the editing scholarship made by the Sovoraim scholars. When a student brings a Yerushalmi or a Targum Yonaton as a precedent, he spins the heads of top Yeshiva statute law content oriented rabbis like a top on a string. Can personally can testify to this as a fact.
The rabbi who sat me on his knee my first year in Yeshiva, played a funny trick upon him! Employed the Rav Kook commentary to the Rashi to give me Rashi’s precedents to his p’shat commentary to the Chumash. That’s when the realization struck me that Rashi’s Chumash commentary – a common law commentary like the Rabbeinu Tam’s Talmudic commentary!!
On one particular p’suk, Rashi brought a precedent from the Yerushalmi. Approached that rabbi and asked him to explain the Rashi comment on that p’suk? He read the words like a book of fiction: word for word. His distorted content priority statute law education thought that would placate me. Where upon, introduced him to the Yerushalmi which Rashi learned as a precedent and then explain the Rashi p’shat in the context of that Yerushalmi! That a first year Yeshiva student learned Rashi’s Chumash comments by using the Yerushalmi – that spun his head like a top on a string! He never again invited me to sit upon his lap.
While writing Talmud Moderni: a common law explanation of how to learn the Rambam’s statute law, Rav Waldman told me that he found my comments as difficult to learn as the Baali Tosafot! That’s the finest compliment which any Talmudic scholar ever gave me! On numerous occasions spun rabbi Walman’s head like a top by bringing diverse precedents from both the Bavli and Yerushalmi or both Aramaic Targums. Targum Jonathan ben Uzziel the model by which the sh’itta of Rav Nemuraskii’s Midrashim all came to make logical sense.
In this convoluted context stands the מחלקת between the Rif’s common law halachic code vs. the Baal Hamaor\BHaG. His commentary to the Rif spanned decades! Divided into two parts Berachot, Mo’ed and Chullin. The second part on Nashim and Nezikin. His “Do not classify this youth as an empty barrel, for ofttimes aged wine may be found in a new vessel”, really impressed my baali t’shuva integration in the Orthodox world of Yiddishkeit.
The distinction between statute law, which derives its authority from a central or cult-like figure (such as a codified law like the Shulchan Aruch), and Talmudic common law, which emerges from judicial rulings in a more case-based, courtroom-like setting. The contrast/gulf which separates the two approaches as representing fundamentally different sources of legal authority and decision-making processes as wide as the Pacific Ocean separates Japan from California.
Statute Law: This approach typically involves a written halachic law codified within authoritative codifications. These overly simplified versions of halacha, they demand adherence simply because it comes from an established authority figure or text. In Jewish law as determined by rabbi Karo’s Shulchan Aruch or the Rambam’s Yad, these comprehensive legal codes prescribe a final halachic posok halacha. The authority of this type of “law”, inherent through its codification; its interpretations, often perceived by common Jews as a matter of simply following the text. This model closely resembles to Legislative statute law, implemented by Governments in a top-down manner. This type of law, considered binding because of its source (the codification or decree) rather than through judicial case-based rulings or judicial deliberations in courtroom disputes over damages inflicted by Party A upon Party B.
Talmudic Common Law (or case law) relies upon precedents which shape judicial reasoning, rulings. This type of law, revolves around the axis of legal confrontations in courts of law, not the texts or codified laws written hundreds of years in the past. Judicial laws, require rabbis or judges to determine judicial rulings based on previous precedent decisions, context, and interpretation of principles which differentiate the current Case heard before the court from earlier judicial Case rulings. The authority of common law comes from the reasoned decisions of scholars and judges who rely upon judicial precedents rather than statute codifications imposed by bureaucratic red tape or legislatures. Discussion, debate, and adjudication defines both T’NaCH & Talmudic Oral Torah legalism. Common law requires dynamic debates between the prosecutor and defence attorneys, and evolves based on how courts and judges apply principles to new cases. The legal dispute over the Roe vs Wade Supreme Court decision serves as a prime example.
The gulf between these two systems of law, indeed quite vast. In statute law, a more centralized, authoritative figure or text dictating the law. While T’NaCH/Talmudic Common Law, far more decentralized, communal, which requires a more interpretive judicial process. The distinction mirrors the divide between legal systems based on codified laws (civil law) and those based on judicial decisions (common law).
In essence, statute law basicly demands rote blind adherence, like the IRS demand for taxes. Common law spins around a central axis of Judicial application of close as opposed to distant precedents. Interpretation required to determine the value of precedent cases presented before the Court. Judges required to weigh the merit and value of precedents presented through court briefs by both the prosecutor and defence. Hence statute law, ideal for establishing Judaism the religion. While T’NaCH/Talmudic common law prioritizes pursuit of righteous justice among the Jewish people and making fair compensation of damages inflicted by Party A upon Party B.
Conflict Resolution 