Daniel J.H. Greenwood

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The Oven of Achnai: Law and Justice in the World of the Silent God

A speech given to the Episcopal Church of St. Paul
Sunday, November 12, 1995

When I agreed to do this talk, I thought of it as an abstract discussion of a difficult and important text in the Jewish tradition, one that, like Job, struggles to understand the role of theology and a God-centered tradition in a world where things don’t always work the way they might if an all powerful and beneficent God were more directly present in our lives.

I saw it primarily as a problem of interpretation, one familiar to lawyers in every system:

The law sets down a rule, but the world doesn’t function by rules, and so we must decide how to apply the rule we have to a situation it did not contemplate, or that we think it must not have contemplated. And as a problem of authority: when authorities disagree on the interpretation, how do we decide who is right, or who to follow.

The events of last week have put this talk in a different light -- Itzhak Rabin’s murder by a man claiming to be following the directions of God, and apparently even claiming to have received those directions directly from God, without interpretation or tradition.

And the combination of this murder on the alleged instruction of God with its ideological compatriots, a radical, post-1967 theology that has abandoned the fundamental principles of right and wrong, that has sought to transform Judaism into a form of idol-worship, with sacred land in the role of Baal, the foreign god before which our children are to be burned.

But let me tell you the story, and then we can discuss what it means.

***

In the Jewish legal system, as you no doubt know, the law is presumed to be derived from the word of God. The Torah tells us, in the book of Exodus, that Moses received the law directly from God. Some of what he received he recorded in the Torah; much of it he did not -- that much is demonstrated, if in no other way, by the radical incompleteness of Torah, and its inability to stand on its own. There is a story about Rabbi Hillel that illustrates the Jewish view of the insufficiency of Torah:

A certain Roman, it is said, came to Hillel and told him that he wanted to convert, but he would only accept those laws written in the Torah, not any oral tradition. So Hillel took him and began to teach him to read. On the first day he said 'this is an aleph, the first letter of the alphabet. And this is a bet.' And on the next day, he showed him the same two letters, and said, 'this is a shin and this is a tav' -- the last two letters of the alphabet. The Roman, naturally enough protested, but Hillel explained that without an oral tradition, the written text is meaningless.

Just as the Common Law held -- and still holds -- that bloody gloves mean nothing without a person to testify where it was found and why it has something to do with the accused, the Jewish tradition holds that the oral testimony is necessary to make sense of the written Torah.

The tradition tells us that Moses handed down a great many rules that he did not write in the Torah, and they were passed from generation to generation until, in the centuries after the Roman Destruction of the Temple and the decline of learning in Babylon, it was feared that the oral tradition might be lost, and the traditions were recorded in the Talmud.

The Talmud, then, is the central text for Jews. And it is from the Talmud that the story of Akhnai’s oven (tanur achnai) comes. Talmud consists of multiple layers of commentary. First, the Mishnah -- a code of law, collected by Rabbi Judah the Prince in the years immediately following the destruction of the Temple. Judah arranged his collection systematically and without much explanation, giving the rule anonymously but generally listing dissenters by name. The Mishnah was immediately supplemented by collections of traditions Judah had omitted, known as Braitot -- external sayings. Then it was discussed and debated and taught for several centuries in the Academies of Babylon and the land of Israel. The notes of those debates and discussions were edited into their final form in roughly the 7th century CE and form what is known as the Gemara -- the Talmud proper. Today, and since the first printed editions of the Talmud, the Gemara is printed as a running commentary on the Mishnah, and around the Gemara are printed several commentaries on the Gemara.

Turn now to the story itself: It takes place roughly in the year 96, though the Gemara is characteristically uninterested in its historical context.

The oven of Akhnai was made of broken pieces cemented back together, and the question arose whether it was kosher or not -- did the rules applying to broken things apply, or those applying to ovens? A standard interpretative problem of the type that arises in every human legal system every day. How do we decide? Looking to the spirit of the law? Trying to find the original intent? The spirit is that we keep ourselves pure, but that doesn’t help in determining if this particular item is pure. The original intent is much the same: we have no way of knowing what the original intent was with regard to a problem that has never arisen. Plain meaning -- that doesn’t help; you can read the words over and over, and still the rules regarding broken items say it is kosher and the rules regarding ovens say it is not.

The story goes like this:

Rabbi Eliezar ben Hyrcanus Ha Gadol ( c. 45 -117) says it is kosher. The majority -- unnamed -- disagrees. He presents all the arguments in the world, but doesn’t persuade them. Logic having failed, he moves on to rhetoric: if I am right, he says, let the tree prove it. The tree flies through the air. The majority says, we don’t accept halakhic -- legal -- rulings from trees. Then he makes the stream flow backwards. Same result. Then he orders the walls of the synagogue to collapse. They begin to fall inward, but Rabbi Yehoshua rebuked them, saying, “If Talmudic Sages argue with one another about Halakhah, what business do you have interfering?” So they don’t collapse, but out of respect for R. Eliezar, they remain leaning. Finally, logic and miracles having failed, R. Eliezar appeals directly to Heaven. And the Bat Kol -- a voice from Heaven, the still small voice that spoke in the wilderness -- went forth, saying: “Why are you disputing with R. Eliezar, for the Halakhah is accordance with him everywhere”. Rabbi Yehoshua rose to his feet and said, “It is not in Heaven” (Deut 30:12) (paraphrased from Bablyonian Talmud)

That is the main story. There are several sequels.

One explains R. Yehoshua’s retort:

The Torah was already given on Mt. Sinai, and it says in it, “Follow the majority’s ruling” (Ex. 23:2). So we do not obey voices from Heaven.

The next, explains that

R. Natan -- several generations later -- met Elijah one day and asked what happened in Heaven at that time: God, he is told, smiled and said “My children have defeated me, my children have defeated me.”

We are not told if this is to be taken straightforwardly or ironically.

The last explains that

R. Yehoshua’s ruling was adopted, a public demonstration of the impurity of the food cooked in the oven was made, and R. Eliezar, despite his enormous stature, was excommunicated for rebelling against the elders. Now, Eliezar was married to the sister of R. Gamliel, who pronounced the ban. And Eliezar’s wife then prevented Eliezar from saying his personal supplicatory prayers for many years, until one day when she got the calendar wrong, and thought it was a day when such prayers are not said. Gamliel promptly died -- she says to her husband -- you have killed my brother.

But lest you conclude that this is a final vindication of Eliezar, I should point out that the entire story is in interpretation of a Mishnah having to do with the importance of respecting those with whom you disagree -- the astonishing disrespect shown to Eliezar, not his ruling, is the basis of his prayer’s being granted.

What is going on here?

The authority that promulgated the law has spoken. The text does not question the authenticity of the Bat Kol -- there is no question of false prophecy, or as in the case of Rabin’s murderer, simple insanity. And the Bat Kol says both that Eliezar is right here and that he is always right.

Now, in English positivism, this would be the end. When the parliament speaks it is obeyed. If it contradicts an earlier law, the later one prevails: either it has changed its mind, or the contradiction is an illusion, but in either case, parliament prevails over the judge.

But the Oven of Akhnai takes the opposite view. "The law is not in Heaven": the interpretation of Torah, we were told on Sinai, is by majority rule. The Rabbis are obliged to use the methods of interpretation given to them by God, to the best of their abilities. And when they conclude, by that method, that the Oven is not kosher, that is the law -- according to the most fundamental principle of the law, which is majority rule.

R. Eliezar is wrong -- because he insists on a particular result in violation of the basic procedural principle, and it is for that that he is excommunicated. It is for that that the walls accept BOTH Eliezar’s ruling AND the rebuke that miracles are not an acceptable means of determining the law. And it is for that recognition that God smiles: his children have understood that the process is more important than the result, that maintaining the integrity of the interpretive system, as a human system, speaking to human reason, and deciding by the human method of argument and persuasion followed by a vote, is far more important that whether the Oven is kosher.

The Bat Kol, then, which by definition is correct, is wrong: "my children have bested me."

Why the irony of the endings? Because even Rabbi Eliezar, who defied the basic rule of civility, is entitled to be treated civilly, and he was not.

Now, I want to add a bit more to the story, and then I will let you talk for a while.

First, there is a comment here about law and interpretation -- the moral I originally intended to pull out.

When the Torah was given at Sinai, it came with 13 methods of interpretation, and 49 arguments proving that each item is kosher and 49 arguments proving that it is not.

Disagreement and the limits of persuasion are part of the human condition -- the Torah is not One Law but Infinite Law, from One God who is also Infinite. So how do we know what the law is? It cannot be from reading the text, let alone listening to the tradition, or even Bat Kols. It is, as the Torah teaches us, by following the majority.

Second, there is a message about the nature of law more broadly. Genesis, you recall, tells us that God “gave” the earth and its flora and fauna to Adam. In another context, an early text attempts to explain what that gift meant. One of several answers is this:

When God created Adam he took him to see all the trees of the Garden of Eden and said to him: See how good they are. Everything that I have created, I created for you. Pay attention that you do not destroy my world for if you destroy it, there is no one to fix it afterwards. Ecclesiastes Rabbah 6.28

The same, I think, is true of the law.

The law is not self maintaining. We cannot depend on voices from Heaven to fix it for us if we screw up. Indeed, it is a mark of our maturity to recognize that voices from Heaven can never remove from us the responsibility of thinking for ourselves: on that day, My children grew up, they bested Me, as children do to parents when they reach maturity.

Nor can we depend on interpretation -- laws are not self explanatory. Interpretative methods are loose. Right and wrong answers can come from them -- and the majority can get it wrong, as the majority did here, both on the small question of the purity of the Oven, and on the large question of how to treat dissenters.

But still, we must follow the majority. And the majority must be guided by a firm grasp of what is right and what is wrong. The alternative -- well, in Jewish law there is no alternative. In life, the alternative is that Yigal Amir (the murder of Prime Minister Rabin) will eat us alive. Somehow, we must defeat, but not excommunicate, those who would define murder as justice, peace as war, religion as hatred, democracy as themselves, who would listen to voices from Heaven or follow simple orders they think they have received, rather than struggling to understand what is right and what is wrong in a complex world that has been given to us to save or destroy ourselves, without much help from sources outside.

Rabin’s murder is a terrible tragedy for the world. The prayer for the dead begins, El Maley Rahimim --- God is full of mercy. And the Israeli poet Amichai wrote, many years ago, a poem begining: al maley rahimim. Elulay ha el male rahimim, hiyu rahimim gam ba olam ha zeh. God is full of mercy. If God were not full of mercy, perhaps there would be mercy in this world as well. It is a bitter poem, and a bitter world: we, not God, must make it work.

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Notes on questions afterwards: Q. “what is to stop us from all jumping over the cliff like lemmings” A: nothing -- there are no guarantees. It is yours to tend or destroy. But also: you are not given it to destroy. The majority is also obliged to do what is right -- to treat the dissenters with respect even while not allowing them to destroy us.


A more developed version of this essay was published as Akhnai: Legal Responsibility in the World of the Silent God, 1997 Utah Law Review 309-358 (1997 Symposium Issue -- New Approaches to Comparative Law). HTML (web) or printable (pdf/adobe) version.