Maimonides and Talmud Yerushalmi

(Special Note – I received a number of requests to reformat the text and clean up my spelling errors…I’ll continue to do so as more people read this post and provide constructive feedback).

I was recently challenged to respond to three questions as a result of an assertion others found provocative. My assertion is founded on one fundamental premise – Maimonides (“Rambam”) favored texts and logical arguments which avoided references to superstitious belief structures and did not defy logical rationale.

Talmud Yerushalmi mentions almost nothing about sheidim – Talmud Bavli has numerous references to sheidim leading to questions of how much influence Babylonian/Zoroastrian religious belief structures percolated into Talmud Bavli via conversions, persecution, and censorship. In his Introduction to Sefer haMitzvot, Rambam suggests that yeridat hadorot results from people blindly accept a preceding authority.

In his “Iggret Provence” regarding ‘hochkmat haHizzayon‘, Rambam says, “A man should never cast his reason behind him, for the eyes are set in the front, not behind.” Rambam did not believe Chazal, or himself, to be infallible. Rambam, in fact, was not infallible and demonstrated this when he suggested that only a fool would deny “spontaneous generation”. That was a reflection of the scientific beliefs of his era.

To my point, Rambam’s instructs us in his introduction to Sefer ha-Mitṣvot:

Such is the mentality of even the elect of our times that they do not test the veracity of an opinion upon the merit of its own content but upon its agreement with the words of some preceding authority, without troubling to examine that preceding source itself.”

Here is my assertion:

Talmud Yerushalmi was authoritative for Rambam when he reasoned that Talmud Bavli lacked granularity or clarity…

And here are the questions posed in response:

  1. Can you provide 5 such instances and illustrate such “lack of clarity”?
  2. How can we even vet such a conclusion?
  3. How can you determine what Maimonides “saw as lacking granularity”?

Can you provide 5 such instances and illustrate such “lack of clarity”?

  1. In Mishneh Torah, Hilkhot Yesodei haTorah 5:5, Rambam discusses the requirement that a city sacrifice all the lives of its inhabitants rather than give over one Jew to be killed. Rambam takes his ruling from a passage in the Yerushalmi, even though Talmud Bavli contradicts it. Rambam focuses on the primary source instead of following the rules of pesak. Rambam rules like Reish Lakish over Rabbi Yochanan – despite the fact that there is a rule in pesak to follow Rabbi Yochanan when the two of them argue – that a city cannot hand over a specified person who is not liable to the death penalty.
  2. Talmud Bavli indicates an awareness of the derivation upon which the Yerushalmi bases the Torah prohibition of teki’at shofar on Shabbat (Rosh Hashanah 29b). Yet, it is reluctant to accept the derivation, because of the permissibility of the mitzva on Shabbat in “Mikdash,” and, subsequently, in beit din, based on the enactment of Rabbi Yochanan ben Zakkai (R.H. 29b). Tosafot Rid (Talmud Yerushalmi Rosh Hashanah. 4:1) suggests that Talmud Bavli held that, whereas the Rabbis may legislate one desist from a Torah commandment (shev ve’al ta’aseh), they have no authority to permit an activity prohibited by the Torah. Thus, if Torah law prohibited the mitzva of teki’at shofar on Shabbat, the Rabbis could not legislate allowing it.Talmud Yerushalmi held, however, that the Rabbis also have the authority to promote an activity that the Torah prohibits (kum v’asei). Thus, even if the Torah prohibited teki’at shofar on Shabbat, the Rabbis could permit it in the presence of beit din. This explanation does not consider, according to Talmud Yerushalmi, why the Rabbis deemed it important to permit teki’at shofar on Shabbat, (i.e., to reverse the Torah prohibition). Furthermore, the accepted halacha is that the Rabbis cannot promote an activity that the Torah prohibits, except temporarily. Thus, there would be no acceptable basis for maintaining the Talmud Yerushalmi position. As noted above, the Yerushalmi position is seriously considered, and to some extent maintained by later authorities.

    Rambam (in Hilchot Shofar 2:9) requires that the beit din whose presence allows teki’at shofar on Shabbat be one that received authority in Eretz Yisrael (musmach) and that participated in kiddush haChodesh. Regarding teki’at shofar on Shabbat, the rationale of Talmud Yerushalmi is preferred by Rambam, even though he has vividly noted that we should prefer Talmud Bavli to Talmud Yerushalmi.

    For example, when Rosh Hashana falls on Shabbat, the phrase “zikhron teru’a” replaces “teru’a” in the Amida. Sifrei (Vayikra 25:9) quotes a third Torah derivation for not sounding the shofar when Rosh Hashana falls on Shabbat. Vayikra 25:9 states that on the tenth day of the seventh month, Yom Kippur (of Yovel year), the shofar is to be sounded throughout the land. Sifrei asks: Why is the day specified by both the calendar date and its ceremonial name? It answers that “only the blowing of Yom Kippur overrides the prohibition of teki’at shofar on Shabbat, whereas the blowing throughout the land on Rosh Hashana does not set aside Shabbat.” Thus, the Sifrei views the lack of teki’at shofar on Shabbat as a Biblical law, as cited in Talmud Yerushalmi and against Talmud Bavli. And this is the ruling of Rambam. Why? Rambam (in Perush HaMishna, Hilchot Shofar 2:8) explains that “Mikdash” refers to the courts that convened on the Temple Mount and to the people who lived in Yerushalayim and its environs. The Mishna continues by noting that after the destruction of the Temple, Rabbi Yochanan ben Zakkai instituted that the shofar be blown on Shabbat in all communities having a beit din, but that the blowing be performed only in the presence of the beit din.

    3.  In the opening passage of Hilchot Teshuva, Rambam asserts the indispensability of teshuva in attaining expiation for sin. The Torah imposes other punitive measures, such as a sacrifice, court-administered punishment or monetary payment, a violator achieves full atonement only through the process of repentance. In Halacha 2, Rambam points to an exception to this rule of the indispensability of teshuva as a means of atonement. He speaks here of the se’ir haMishtalei’ach, the goat upon which the kohen gadol confesses all the nation’s sins as part of the yearly Yom Kippur service in the Mikdash. This goat is sent into the wilderness outside Jerusalem where it is killed, symbolic of the elimination of the nation’s sins (Vayikra 16:21). In contrast to his comments in Halacha 1, Rambam acknowledges the power of this goat to atone even in the absence of teshuva. He writes, The se’ir haMishtalei’ach atones for all sins in the Torah, both slight and severe [transgressions]…provided that he [the sinner] performed teshuva. But if he had not performed teshuva, then the goat atones only for the slight [transgressions].”

    Rambam proceeds to define chamurot (“severe transgressions”) as sins for which one is liable to death or karet (eternal excision from the Jewish people), as well as false or meaningless vows. All other violations of Torah law are classified as kalot, or “slight” transgressions (to whatever extent the violation of divine law can be described as “slight”). 

    According to Rambam, an unrepentant violator of one of the kalot earns atonement through the se’ir haMishtalei’ach ritual; even if he feels no remorse and does not verbally confess his sin, he is granted expiation through the se’ir haMishtalei’ach.

    The Mishnah in Masechet Shavuot (2b) establishes that the se’ir haMishtalei’ach earns atonement for all transgressions and lists all the categories of sins to emphasize the unique effects of this ritual in achieving expiation. As the Gemara (12b) notes, the Mishna includes in its list of categories mitzvot asei, the neglect of affirmative commands, which is generally treated more leniently than the transgression of the Torah’s prohibitions. The Gemara wonders why the Mishna would include this category, given the Rabbinic tradition that one who violates a mitzvat asei is granted atonement immediately upon performing teshuva; no further means of atonement are necessary.

    Rambam reached a conclusion while distinguishing between the two different categories of sins – kalot and chamurot. In his view, the se’ir haMishtalei’ach has the capacity to atone for kalot even in the absence of repentance, whereas chamurot are forgiven only through teshuva. How can Rambam’ position be reconciled with the Talmud’s discussion in Masechet Shavuot?

    Rambam’ ruling can be understood in light of a passage in the corresponding discussion in Talmud Yerushalmi, in Masechet Shavuot (1:6). Without making reference to the debate between Rabbi Yehuda HaNnasi and the other Sages, Talmud Yerushalmi draws a distinction between mitzvot asei (affirmative commands) and mitzvot lo ta’aseh (prohibitions) with regard to the possibility of atonement without repentance. Yom Kippur provides atonement for the neglect of affirmative commands even in the absence of teshuva, whereas the transgression of the Torah’s prohibitions can be atoned for only with an accompanying process of repentance. As opposed to the Talmud Bavli, which understood that Rabbi Yehuda allowed for the atonement of all sins even without repentance, whereas the other Sages denied such a possibility altogether, Talmud Yerushalmi distinguishes in this regard between mitzvot asei and mitzvot lo ta’aseh.

    The basis of Talmud Yerushalmi’s distinction is a debate cited by the Gemara in Masechet Yoma (86a) regarding the classification of Torah violations as either kalot or chamurot. One view, which Rambam follows in Hilchot Teshuva, classifies as chamurot only violations of laws punishable by death or karet; according to this position, all other Torah violations are deemed kalot (with the exception of false or meaningless oaths, which, for reasons that lie beyond the scope of our discussion, are deemed more severe). Another view, however, includes under the category of chamurot all mitzvot lo ta’aseh, even those that are not punishable with death or karet.

    Talmud Yerushalmi followed the second view classifying all mitzvot lo ta’aseh under the category of chamurot. It further held – in contrast to Talmud Bavli – that repentance can be achieved through the Yom Kippur service without repentance only for kalot, whereas chamurot can be atoned only through teshuva. As opposed to the Bavli, which treats all transgressions equally with respect to the possibility of atonement without teshuva – a possibility that hinges on the debate between Rabbi Yehuda and the other Sages – the Yerushalmi distinguished in this regard between kalot and chamurot. If Talmud Yerushalmi reached a different conclusion on this issue than the Bavli, then we have no need to try reconciling Rambam’ ruling with the Bavli’s discussion in Masechet Shavuot.

    Instead, we can simply assert that Rambam, for whatever reason, sided with Talmud Yerushalmi’s position, that a violator of kalot earns atonement on Yom Kippur even without repenting. Rambam does not, however, accept Talmud Yerushalmi’s definition of kalot, as including only the neglect of mitzvot asei. He follows the other view recorded in Masechet Yoma, that the category of kalot includes as well mitzvot lo ta’aseh (with the exception of false or meaningless oaths). With regard, however, to the more fundamental issue of whether the Yom Kippur service can provide atonement for kalot without repentance, Rambam prefers the position of Talmud Yerushalmi over that of Talmud Bavli. Accordingly, he maintains that kalot violators indeed earn atonement through the se’ir haMishtalei’ach even if they fail to repent.

  1. Please note that I, personally, have always recited berachot prior to performance of mitzvot – some say ‘natilat yadayim’ before washing, some during, some, after, while drying hands. The gemara (Pesachim 7b) affirms that the blessing over mitzvot must be recited BEFORE (“oveir”) the performance of the mitzva, and that this ruling is universally accepted. Talmud Yerushalmi’s version differs (Berachot 9:3): While Rabbi Yochanan agrees with the view of Talmud Bavli, Rav Huna and Shmuel disagree. According to them, the beracha must be recited, not before the mitzva, but DURING its performance (“bi-she’at asiyatan”). The views of Rav Huna and Shmuel appear in Rambam’s (Hilchot Berachot 11:5-6), who allows recitation of a beracha on tefillin after they have been put on, as long as they have not been taken off. Furthermore, it does conform to the rule of “oveir la-asiyatan,” since as long as the tefillin are worn, the mitzva will continue to be performed even after the beracha is made. According to Rav Huna and Shmuel, in Talmud Yerushalmi, the beracha should be made DURING the mitzva and this is the ruling of Rambam in Hilchot Berachot 11:5-6. Halacha l’ma’aseh, the Shakh decides according to the Rambam.
  1. There is a difference between Talmud Bavli and Talmud Yerushalmi as to whether the melacha of Gozez applies to shearing or cutting hair off of a dead animal or not. Talmud Bavli never mentions this case. Talmud Bavli limits the melacha of Gozez to living creatures and humans. Talmud Yerushalmi explicitly says that there is a chiuv Gozez for cutting the hair off of a dead creature. This applies whether one is removing it with his hands or with a utensil. Rambam posqens (in Hilchot Shabbat 9:7-9, 47, and Hilchot Machulat Asurot 4:21), in accordance with Talmud Yerushalmi, that cutting hair off of a dead animal is the Av Melacha of Gozez. According to Rambam the principle of the melacha of Gozez is “the removal by severing of certain parts of a creature for their use”.
  1. Rambam (in Teshuvot haRambam, Pe’er haDor, 9) writes that one may (even l’chatchilah) read from a pasul Torah. He explains that the mitzva of Kriyat haTorah does not require that it be read from a written text. The essential component of the mitzva is to read words of Torah in public on Shabbat morning. According to his view, if someone knows the entire parsha by heart, he may recite it with the beracha before and after, without using a text at all (see Hilchot Tefilah 12:8h). According to Rambam, then, reading from a pasul Torah, even if a word or a pasuk is missing here and there, is valid. Many other Rishonim agree with this basic view, including Abudarham (of Spain), Orchot Chaim, Agur, Ohr Zarua, Mizrachi and several others. This was also the view of several Geonim and the common practice in their day (as attested to by Rambam) who relied on it in order to use the Sifrei Torah which were written on klaf and had not undergone the process of ibud.  However, Talmub Bavli clearly describes that Gevil torah scrolls must be made in precise adherence to instructions contained in Talmud Bavli. If a scroll’s qlaf or Gevil is not manufactured according to Talmud Bavli, and the letters fall off or become illegible.

Please note that there are four (4) other well known instances where Talmud Yerushalmi differs from Talmud Bavli wherein Rambam cites Talmud Yerushalmi:

7.   tefillin on Chol ha-Moed – TY Moed Katan 3:4 says tefillin should be worn,

8.   aliyot in a city where all the men are kohanim – TY Gittin 5:9 says it is clear that even in a city where all the men are kohanim, women do not get called to the Torah,

9.   whether the daughter of a gentile man and Jewish woman may marry a Kohen – TY Yevamot 4:15 says it is clear that such a woman cannot marry a Kohen, and

10. the of using charity funds to build synagogues rather than to support the poor – TY Peah 8:8 says it is clear that a synagogue is a valid recipient of charity.

 In all four cases, Talmud Bavli is silent while Talmud Yerushalmi directly addresses these matters. Although these four matters generate controversy among Poskim, the core dispute is whether one needs to adopt the halachic norm as expressed by the Jerusalem Talmud when everyone is taught that Talmud Bavli takes precedent in ALL cases…Are we to ignore items 7-10 simply because Talmud Bavli omits them?

 How can we even vet such a conclusion?

Talmud Yerushalmi, to Rambam, was equal to Talmud Bavli in authority. Rambam wrote a commentary entitled ‘Hilchot HaYerushalmi’to illustrate this point. Tosafot did not see things the way Rambam saw them (see Talmud Bavli Berachot 11b, s.v. she’kevar niftar, where Tosafot state in response to a difficulty presented by Talmud Yerushalmi:

And Ri answers that we do not accept this Yerushalmi since ourTalmud does not quote it”.

Hilchot haYerushalmi‘ is one of Rambam’ earliest works. When he was about thirty years old he completed the first draft of his Mishneh Torah haRambam, and while working on the final version he wrote a commentary on Talmud Yerushalmi, called Hilchot haYerushalmi, ‘The Laws of the Palestinian Talmud’.

In one of his responsa, Rambam explains his decision as wishing to follow in the footsteps of Rabbi Isaac Alfasi (the Rif), whose commentary on the Babylonian Talmud was widely used in the East. In light of the way the Talmud Yerushalmi was viewed by the sages of Lucena and Cordoba in Andalusia, this was a logical step for Rambam to take, completing the Rif’s omissions and writing a work that would present halachot and commentaries in the Talmud Yerushalmi that were missing in Talmud Bavli.

After starting a first draft of Hilchot haYerushalmi and discussing the tractates of Berakhot and Ketubbot (and Qiddushin?) Rambam changed direction, however, abandoning this project to focus on writing his Mishneh Torah haRambam. Because of this change he did not see any need to disseminate Hilchot haYerushalmi, and consequently the work was never published. In time the draft was put into the Geniza in Fustat, Rambam’s place of residence. Over time, autograph sections of the draft have been discovered in the Geniza, and Professor Saul Lieberman published a first edition of the work based on the fragments that were known to him.

These Geniza fragments of Rambam’s manuscript are striking in that copies of Talmud Yerushalmi were rare even as early as the Middle Ages and only one complete manuscript is available to us today, the Leiden manuscript, which also underlies the ‘editio princeps’ printed in Venice. In the course of his work, Rambam copied whole sections of Talmud Yerushalmi in its original language. Rambam handed down to us exact copies of parts of the Talmud text he used. This is the only other extant copy of the original text of some passages, apart from the Leiden manuscript, and is more than a hundred years older. This manuscript from , added to those at our disposal, is a treasure trove aiding the study of the Talmud Yerushalmi in general and of the Leiden manuscript in particular.

Rambam’s detractors often state that he based his Mishneh Torah haRambam on Talmud Yerushalmi, but it was impossible to verify this until “Hilchot haYerushalmi” was discovered. There are very few surviving commentaries on Talmud Yerushalmi written in the Middle Ages. Hilchot haYerushalmi contains commentary by Rambam on selected Talmudic issues.

To date, a few fragments of Hilchot haYerushalmi have been identified and published for review:

One fragment from his work on tractate Berachot: T-S F17.7. This page is almost complete apart from tears in two corners.

Two fragments from his work on tractate Ketubot: T-S F17.7a and T-S Ar.34.169, which combined form about a third of the original page.

Two new fragments have been identified by Professor Yaakov Sussman, who published them: Oxford Bodleian MS. Heb. e. 100.10 from Ketubbot and T S NS 284.120 from Berachot, which is published here for the first time.

This new piece from Cambridge, T S NS 284.120, joins up perfectly with T-S F17.7 and completes the first nine lines on the ‘recto’ and the first twelve lines on the ‘verso’. The completed lines match the reconstructed text originally suggested by Lieberman (with only slight changes). Studying this new section reveals an interesting aspect of the way Rambam worked.

On the ‘verso’ Rambam wrote a sentence along the length of the page and then crossed it out (The crossed-out sentence is in Rambam’s hand, as this comparison with a similar word from T-SF17.7 shows). This additional sentence was written in a lighter colored ink than that of the main body of the text and probably at a later date. Up until now scholars have assumed that Rambam completely abandoned this work, but from the new fragment we can see that he did return to it, at least once. The fragment (on the same side, in the fourth line) reveals another dilemma that Rambam may have had while writing. He marked the beginning of a new law and started to copy from Talmud Yerushalmi, tractate Berachot 3:2, He then changed his mind, crossed out what he had written and added a question from 3:1 that he had originally intended to leave out. From this we learn more about the way this work was written and the nature of the fragmentary draft that is in the possession of Cambridge University.

http://aleph.nli.org.il/F?func=find-b&request=000318835&find_code=SYS&local_base=RMB01

How can you determine what Maimonides “saw as lacking granularity”?

Rambam was well-known in the field of medicine in his own day, we need only look at topics in which the Talmud’s ruling contradicted contemporary 13th century medical theory, Rambam should, in theory, side with rational science.

In Talmud Bavli Berachot 35B, the Gemara records that even though Rabbi Yochanan (in the name of Shmuel and Rabbi Yitzhak who said in the name of Rabbi Yehuda) said that one recites the blessing borei peri ha-eitz‘ on olive oil, the Stam of the Gemara observed that when one imbibes olive oil, it negatively impacts a person’s constitution (azukei mazik). Therefore, one ought not to recite a blessing over olive oil when imbibing it. In fact, no blessing is necessary. This is also how the Rif, the Rosh, the Tur (siman 220), the Shulhan Arukh (220:4), Hagahot Maimoniyot (Hilkhot Berachot 8:2), Hayei Adam (klal 51 siman 16), the Arukh ha-Shulhan and the Kitzur Shulhan Arukh rule.

But, Rambam in Hilkhot Berakhot (8:2) paskins against the Talmud and these other Poskim and states:

אבל אם שתה השמן לבדו או שלא היה חושש בגרונו מברך עליו שהכל. שהרי לא נהנה בטעם השמן.”

Rabbi Yochanan’s position is rejected, as well as the Stam’s position.

A third possibility is presented by Rambam – the physician knew that olive oil can be good for you and it has a taste (albeit not a good one alone). Like all foods that fall into this category, the proper blessing is sheha’kol. Rabbi Rafael Toledo (siman 90 se’if 21, page 230) explains that we see today (ma’aseh b’khol yom) that olive oil does not hurt a person and doctors prescribe it as a tonic to heal people.

Rambam rejects the idea of meshane ha-bri’ot and meshane ha-teva (the world changes to accommodate interpretations of the Talmud), the only option for Rambam was to re-pasqen the law by rejecting the Talmud Bavli’s ruling and replace it with his modern understanding of what the law ought to be. Rambam rejected Talmud Bavli’s conclusion — 13thcentury science and medicine did not corroborate the Gemara’s claim, thus providing a proof of my point that Rambam used logic to resolve disputes between Talmud Yerushalmi and Talmud Bavli; Rambam was not fully invested in the notion of the complete superiority of Talmud when it conflicted with logical rationale repeatably provable by science. Rambam had an affinity for accepting Talmudic views that are supported by logic over views supported by canonical texts themselves.

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