Daniel J.H. Greenwood

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The Oven of Akhnai

A Talk for the J.Reuben Clark Law Society

Every legal tradition has its rational and orderly parts, like our IRC.

And its more arcane and puzzling doctrines, understandable only with a heavy dose of history, like the two peppercorns of contract law, or the issue of who owns a wetland parcel subject to a springing reversionary interest and five years behind in its tax assessment.

And the parts that must simply be taken on faith and are not subject to rational analysis at all, like the holding that the Civil War Amendments gave the railroads constitutional rights against the state legislatures.

And then there are the stories, sometimes half mythological and the great turning events, that don’t always even appear in the law books: the repeal of the No Standing Army Clause after the Second World War and the discovery of the President’s inherent right to wage war in Indochina are two that one of my collegues has made famous. Perhaps we are in the middle of one right now, that later will be seen as the end of the separation of powers and the introduction of the no-confidence motion to American politics.

I leave it to you to place the story we are about to examine. Akhnai is a mysterious word in Hebrew as well as in English, and the story begins with a question about what it means. It is not from the great rationalizing tradition of Jewish jurisprudence in style, yet it is critical to it in substance.

The source of the text is the Talmud. The West’s Reporter of the first six centuries after the destruction of the Temple. Or better yet, class notes from the academies. The first hypertext.

The context: The generation after the destruction of the Temple. Biblical Judaism, centered around King and Temple, priests and sacrifices, agriculture and the Land of Israel, is in crisis. The Romans have destroyed King and Temple. Sacrifices are ended. Much of the people is in exile and more will be soon. Much of the law given at Sinai seems obviously irrelevant: why keep pure to enter the Temple if there is no Temple to enter? A thousand year conflict over the nature of sacrifice and the substitutes for it -- prayer and pursuit of justice -- has been resolved by force majeur.

And the story:

Rabbi Eliezer, who witnessed the destruction of the Temple and smuggled his teacher out of besieged Jerusalem in a coffin, is arguing over the purity of an oven with his fellow rabbis.

It is a simple legal issue of a form quite familiar to all of us: Contact with dead snakes makes food impure. Ovens and vessels generally transmit impurity. Broken vessels don’t. The Oven of Akhnai (tanur achnai) is made of broken pieces cemented together. Is it an oven, or is it a broken vessel?

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?

Eliezer says it is a broken vessel: once broken, it can never be put together again fully. Maybe that is also his view of the world after the destruction of the Temple. Maybe not, though.

The story tells us, and I quote:

On that day R. Eliezer made all the arguments in the world, but they didn’t accept them. He said, if I am right let the carob tree prove it...

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)

That is the main story. There are several sequels.

One explains R. Yehoshua’s retort:

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. 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 conveys impurity, 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 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.

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.

In law school we teach the same thing in Torts.

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 the original authors to fix it for us if we screw up.

Indeed, it is a mark of our maturity to recognize that the law 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. Or as another Jewish text, with analogues in the common law tradition, nicely puts it:

They, the earlier thinkers, were giants and we are but midgets. But we are midgets standing on the shoulders of giants.

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, as the Talmud says of a society without laws, that "people will eat each other alive."

Somehow, we must defeat, but not excommunicate, those who would define

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 by ourselves. And we must do it without much help from sources outside.

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.