Mo'ed Katan 25b ~ Why is Death Bad?

Before the death of the great Babylonian sage Ravina, there was a discussion of what would be said at his funeral. Bar Avin, who was known as a talented eulogizer, suggested this:

מועד קטן כה, ב

בְּכוּ לָאֲבֵלִים וְלֹא לָאֲבֵידָה, שֶׁהִיא לִמְנוּחָה וְאָנוּ לַאֲנָחָה

Cry for the mourners and not for that which was lost, as that which was lost [i.e., the soul of Ravina,] has gone to its eternal rest, while we, the mourners, are left with our sighs.

In these few words, Bar Avin hinted at a philosophical debate that has endured for millennia. What, exactly is bad about death?

What bad about death?

The German poet Friedrich Gottlieb Klopstock (1724-1803) suggested that the badness of death is losing your friends, which he descries in his poem Separation:

You turned so serious when the corpse

was carried past us;

are you afraid of death? “Oh, not of that!”

Of what are you afraid? “Of dying.”

I not even of that. “Then you’re afraid of nothing?”

Alas, I am afraid, afraid…”Heavens, of what?”

Of parting from my friends.

And not mine only, of their parting too.

That’s why I turned more serious even

than you did, deeper in the soul,

when the corpse

was carried past us.

But the Yale philosopher Shelly Kagan believes there is much more to the badness of death than just losing contact with your friends, sad as that is. In his terrific book death (small d), Kagan suggests that we cannot think about the badness of death by thinking of the survivors. Instead “ we have to think about how it could be true that death is bad for the person that dies…what is it about being dead that is bad for me?” And this is harder to do than you might have thought. The Greek philosopher Epicurus (341- 270 BCE) outlined the problem in his Letter to Menoeceus:

Death, therefore, the most awful of evils, is nothing to us, seeing that, when we are, death is not come, and, when death is come, we are not. It is nothing, then, either to the living or to the dead, for with the living it is not and the dead exist no longer.

So according to Epicurus, death is not bad, and by extension we have no reason to fear it. (A) something can be bad for you only if you exist; (B) when you’re dead you don’t exist; so (C) death can’t be bad for you.

Here is Kagan (p.210) explaining the Epicurean problem:

Isn’t it clear that nonexistence is bad for me? Pretty quickly, however, that answer can come to seem pretty unsatisfactory. How could nonexistence be bad for me? After all, the whole idea about nonexistence is that you don’t exist! And how could anything be bad for you when you don’t exist? Isn’t there a kind of logical requirement that for something to be bad for you, you’ve got to be around to receive that bad thing? A headache, for example, can be bad for you. But of course, you exist during a headache. Headaches couldn’t be bad for people who don’t exist. They can’t experience or have or receive headaches. How could anything be bad for you when you don’t exist? And in particular then, how could nonexistence be bad for you when you don’t exist?

Kagan (or Shelly, as he asks his Yale students to call him), has a terrific chapter (“The Badness of Death”) in which considers this thorny question, and focuses on this aspect, known as The Deprivation Account. Death is bad because it deprives me of something. But that cannot be right because you cannot deprive someone who is dead of anything. Perhaps then we should reject (A) above, which is the existence requirement. Perhaps, Kagan suggests, “for certain kinds of bads you don’t even need to exist in order for those things to be bad for you.”

But then we run into another problem. If you don’t need to exist (because you are dead) in order for a bad to happen to you, “then nonexistence could be bad for somebody who never exists. It could be bad for somebody who is a merely possible person, someone who could have existed but never actually gets born.” These potential people are the billions and billions of people who don’t get born when a particular egg fails to get fertilized by a particular sperm. If we get rid of the existence requirement “then we have to say of each and every single one of those billions upon billions upon billions upon billions upon billions of possible people that it’s a tragedy that they never get born, because they’re deprived of the goods of life. If we do away with the existence requirement, then the plight of the unborn possible people is a moral tragedy that simply staggers the mind. The worst possible moral horrors of human history don’t even begin to be in the same ballpark as the moral horror of the deprivation for all of these unborn possible people.”

What’s bad about death is that when you’re dead, you’re not experiencing the good things in life. Death is bad for you precisely because you don’t have what life would bring you if only you hadn’t died.
— Shelly Kagan. death.Yale University Press 2012. 233.

But most of us don’t consider the non-actualization of potential people to be a moral tragedy (though we’ve discussed the attitude of the rabbis to the this question here). We don’t think billions and billions of potential people are harmed because they were never actualized. This leads us to tweak the existence requirement to what Kagan calls a more modest version: “Something can be bad for you only if you exist at some time or other.” This modest requirement doesn’t require that I exist at the same time as the bad thing, and so this allows us to say that death is bad for me. And it is bad for me because I am being deprived of the good things in life, however those are measured.

According to Bar Avin, death is not actually bad for the deceased (in this specific case, Ravina), for he was “at rest.” One might have expected him to say that although Ravina was being deprived of the good things in life had he lived longer, this was more than made up for by the rewards that he is getting in the afterlife. But he didn’t, and his phrasing reminds us that in both ancient and modern philosophy, there is an interesting argument that death cannot be bad for the person who died. Indeed, Bar Avin’s eulogy reminds us that the greatest pain is felt by those who are left behind with nothing but their sighs.

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Mo'ed Katan 24a ~ Infant Deaths

On the last few pages of this tractate, the Talmud discusses the end of life, or more precisely, the ends of lives. Having discussed how one mourns for a parent, on this daf, the focus is on the deaths that are most painful of all: the deaths of children.

מועד קטן כד, א-ב

כל שְׁלֹשִׁים יוֹם, תִּינוֹק יוֹצֵא בַּחֵיק, וְנִקְבָּר בְּאִשָּׁה אַחַת וּשְׁנֵי אֲנָשִׁים. אֲבָל לֹא בְּאִישׁ אֶחָד וּשְׁתֵּי נָשִׁים. אַבָּא שָׁאוּל אוֹמֵר: אַף בְּאִישׁ אֶחָד וּשְׁתֵּי נָשִׁים. וְאֵין עוֹמְדִין עָלָיו בְּשׁוּרָה. וְאֵין אוֹמְרִים עָלָיו בִּרְכַּת אֲבֵלִים וְתַנְחוּמֵי אֲבֵלִים

בֶּן שְׁלֹשִׁים יוֹצֵא בִּדְלוֹסְקָמָא. רַבִּי יְהוּדָה אוֹמֵר: לֹא דְּלוֹסְקָמָא הַנִּיטֶּלֶת בַּכָּתֵף, אֶלָּא הַנִּיטֶּלֶת בָּאֲגַפַּיִים. וְעוֹמְדִין עָלָיו בְּשׁוּרָה, וְאוֹמְרִים עָלָיו בִּרְכַּת אֲבֵלִים וְתַנְחוּמֵי אֲבֵלִים

בֶּן שְׁנֵים עָשָׂר חֹדֶשׁ יוֹצֵא בְּמִטָּה. רַבִּי עֲקִיבָא אוֹמֵר: הוּא בֶּן שָׁנָה וְאֵבָרָיו כְּבֶן שְׁתַּיִם, הוּא בֶּן שְׁתַּיִם וְאֵבָרָיו כְּבֶן שָׁנָה — יוֹצֵא בְּמִטָּה.בִּרְכַּת אֲבֵלִים וְתַנְחוּמֵי אֲבֵלִים

Within the first thirty days after birth, an infant that dies is taken out for burial in one’s bosom, that is to say, he is carried to his grave in one’s arms, not in a coffin….

And for such an infant, people do not stand in a line to offer their condolences to the mourners, as is ordinarily done after a burial; nor do others recite over him the mourners’ blessing, which is recited in the courtyard of the graveyard after the burial; nor is the usual formula for the consolation of mourners recited during the seven days of mourning. 

A thirty-day-old infant that dies is taken out for burial in a coffin [deluskema]. Rabbi Yehuda says: Not in a small coffin that is carried on one’s shoulder, but rather in a coffin that is carried in the arms of two people. And for such an infant, people stand in a line to offer their condolences to the mourners. And others recite the mourners’ blessing at the cemetery. And people recite the consolation of mourners during the week of mourning. 

A twelve-month-old infant is taken out for burial on a bier, just as an adult is.

There are, unfortunately, many examples of rabbis mentioned in the Talmud who mourned their children. One of the most well-known was Rabbi Yochanan, who buried ten children.

ברכות ה, ב

תָּנֵי תַּנָּא קַמֵּיהּ דְּרַבִּי יוֹחָנָן: כׇּל הָעוֹסֵק בְּתוֹרָה וּבִגְמִילוּת חֲסָדִים וְקוֹבֵר אֶת בָּנָיו — מוֹחֲלִין לוֹ עַל כׇּל עֲוֹנוֹתָיו

וְהָא אָמַר רַבִּי יוֹחָנָן, דֵּין גַּרְמָא דַּעֲשִׂירָאָה בִּיר

A tanna taught the following baraita before Rabbi Yochanan: If one engages in Torah and acts of charity and buries his sons, all his transgressions are forgiven…

Rabbi Yochanan himself said, This is the bone of my tenth son…

Rabbi Yochanan bar Napcha (c.180–279 CE) is cited many hundreds of times in the Talmud. But it was his tragic family story that perhaps most defined who he was. He was a father who had lost ten children.

Childhood mortality in rabbinic sources

Rabbi Yochanan’s tragedy might have been extreme in its severity, but his was not a unique situation. In fact the Talmud and the Midrash are replete with stories that reflect the high rate of both infant and child mortality at the time. In this tractate we learn that Rabbi Yishmael lost at least two sons, (Moed Katan 28b) as did Rabbi Akiva (Moed Katan 21b). Rabban Gamiel cried in sympathy with a neighbor who lost her child (Sanhedrin 104b), whereas when Rav Yossi of Zippori lost a son, he chose not to cry, but to expound all day long in the Bet Midrash (Moed Katan 21a). The Midrash recounts that both sons of Rabbi Meir died on a Shabbat (Midrash Mishlei 31:10), and when the sons of Rabbi Yossi ben Chaninah died, he refused to wash with warm water (Ta’anit 13b). Children were eaten by wolves (Ta’anit 22b) murdered by brigands (Semahoth 12:13) and buried in earthquakes (Semachot 11:4). In some hemophiliac families, infants bled to death after being circumcised (Yevamot 64b), while other children committed suicide rather than face either physical abuse from their father (Semahoth 2:4-5), or an unwanted arranged marriage (Seder Eliyyahu Rabbah 19).

Professor Meir Bar Ilan (from the university that bears his family name) identified over two dozen other cases. Professor Bar Ilan adds that an additional factor should not be overlooked.

…almost all the cases indicate deaths of sons, not daughters. Apparently it reflects the nature of a patriarchal society, where one's importance depends merely on his sex (as in more than few societies even today). Furthermore, since there is no reason to believe that boys were prone to death more than girls (except in the case of circumcision), it reveals that, actually, the cases are all 'males' while ignoring the females. Because of this 'male' factor, one that wishes to know the exact number of deaths in the above sources, should multiply his data with (almost) 2.25 That is to say, that usually the deaths of girls were ignored, though they, apparently, happened at the same rate.

Calculating the infant mortality rate in THE TaLmudic era

Professor Bar Ilan counted about nine cases of infant or child death among the fifety or so tannaim mentioned by name in the Talmud. After taking into account the “ignored” factor of deaths of girls, he suggested that infant mortality rate among the families of the tannaim approached 30%.

To put this number into context, the infant mortality rate in Great Britain around 1880 was about 135 per thousand live births, or about 13%.  Among the Jews of Italy,  about 40% of children under the age of three died. It is harder to calculate the mortality rate in ancient Rome, but other scholars have estimated it to be 25-30%.

Life Expectancy and Infant Mortality Rates in 16th Century Europe
Village in Devon
England, 1538-1599
Village in Essex
England, 1550-1624
Bourgeoisie of
Geneva, 1550-1599
English High
Aristocracy, 1550-1599
Average age of women at marriage 26 24.5 21.4 22.8
Infant mortality per 1000 (0-1 years) 120-140 128 - 190
Infant mortality per 1000 (1-14 years) 124 149 - 94
Infant mortality per
1000 (1-19 years)
- - 519 -
Average life expectancy 40-46 - 28-29 37
Data from Meir Bar Ilan, Infant Mortality in The Land of Israel in Late Antiquity

The Shameful infant Mortality Rate in the US

In 2017 the infant mortality rate in the US was 579 per 100,000 or just under 0.6%.  That rate is fifty times lower than the rate during the centuries over which the Talmud was compiled.  The leading cause of death is congenital malformations, but accidental injury remains a major cause of mortality in children. Just like it did in ancient Israel.

The US ranks 30th of 193 countries in infant mortality rate, the ratio of babies that die before turning one year old. In the US, there are more than three times as many infant deaths for every 1,000 births as there are in the countries leading the list.
— More infants are dying in US states that rejected expanded Medicaid. Quartz, Feb 1, 2018.

But take a look at the chart below and you will see that the rate in the US is over two or three times higher than it is in other western countries. It is shameful that the country with the highest per capita rate of health care spending finds itself so low down on this list.

Infant mortality per 1,000 births, 2010-2015. Date from the United Nations. From here.

A very recent paper by Ezekiel Emanuel and colleagues from the University of Pennsylvania addressed the question of whether the medical care given in the US was “the best in the world.” (Spoiler alert: it is not). Among their findings were that even for the most privileged on US citizens, rich white people, on most measures of health outcomes they do worse than the average individual in other countries. Here is what they found for one of those measures, infant mortality:

The infant mortality rate among White US citizens in the 1% highest income counties is 3.54 per 1000 live births, while the 5% highest-income counties have an infant mortality rate of 4.01 per 1000 live births—higher than in all 12 comparison countries. Among all US citizens, the infant mortality rate is 5.90 deaths per 1000 live births. Among comparison countries, the infant mortality rate is lowest in Finland, at 1.70 per 1000 live births, and highest in Canada, with 4.70 per 1000 live births. Only 2 of the top 157 highest-income counties in the US have White infant mortality rates below that of Norway, and none have rates lower than Finland .

Comparative studies show different data from various cultures and times, and together with the texts themselves, suggest that some 30% of all children born in the Land of Israel at the beginning of this era would not reach their maturity.
— Meir Bar Ilan. Infant Mortality in The Land of Israel in Late Antiquity.

“Neither the suffering nor the reward”

Because infant and childhood deaths were so common it is not surprising that the rabbis of the Talmud tried to inject a glimmer of metaphysical hope into this most tragic of tragedies. Rabbi Yochanan had lost no fewer than ten children, and his colleagues attempted to console him with the promise of a reward to come: “If one engages in Torah and acts of charity and buries his sons, all his transgressions are forgiven.” That might have consoled Yochanan the Rabbi, but it did not console Yochanan the grieving father. Rabbi Yochanan rejected the very notion that suffering -of any sort-was worth a reward. “I want neither this suffering nor its reward - לֹא הֵן וְלֹא שְׂכָרָן.”

[Mostly a repost from Berachot 5.]

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Mo’ed Katan 16a ~ Excommunication, Baruch Spinoza and Mordechai Kaplan

Over the last several pages of Talmud we have learned the ways in which the rules of mourning share common features with the rules of a person who was excommunicated from the Jewish community. This act was known as herem, although there were varying degrees to which a person could be banned from the interacting with the community. On today’s page of Talmud the rabbis further discuss these rules, and their origin:

מועד קטן טו, א

מַר רָבָא: מְנָלַן דִּמְשַׁדְּרִין שְׁלִיחָא דְּבֵי דִינָא וּמַזְמְנִינַן לֵיהּ לְדִינָא — דִּכְתִיב: ״וַיִּשְׁלַח מֹשֶׁה לִקְרֹא לְדָתָן וְלַאֲבִירָם בְּנֵי אֱלִיאָב״. וּמְנָלַן דְּמַזְמְנִינַן לְדִינָא — דִּכְתִיב: ״וַיֹּאמֶר מֹשֶׁה אֶל קֹרַח אַתָּה וְכל עֲדָתְךָ״

Rava said: From where do we derive that a court agent is sent to summon the defendant to appear before the court before he is ostracized? As it is written…

מְנָלַן דְּאִי מִתְפַּקַּר בִּשְׁלִיחָא דְּבֵי דִינָא, וְאָתֵי וְאָמַר, לָא מִיתְחֲזֵי כְּלִישָּׁנָא בִּישָׁא — דִּכְתִיב: ״הַעֵינֵי הָאֲנָשִׁים הָהֵם תְּנַקֵּר״

And from where do we derive that if the summoned person behaves disrespectfully toward the agent of the court, and the agent comes back and reports his conduct, that this is not considered slander? As it is written…

וּמְנָלַן דְּכָפְתִינַן וְאָסְרִינַן וְעָבְדִינַן הַרְדָּפָה — דִּכְתִיב: ״הֵן לְמוֹת הֵן לִשְׁרוֹשִׁי הֵן לַעֲנָשׁ נִכְסִין וְלַאֲסוּרִין״. מַאי לִשְׁרוֹשִׁי? אָמַר אַדָּא מָרִי אָמַר נְחֶמְיָה בַּר בָּרוּךְ אָמַר רַב חִיָּיא בַּר אָבִין אָמַר רַב יְהוּדָה: הַרְדָּפָה. מַאי הַרְדָּפָה? אָמַר רַב יְהוּדָה בְּרֵיהּ דְּרַב שְׁמוּאֵל בַּר שִׁילַת מִשְּׁמֵיהּ דְּרַב: מְנַדִּין לְאַלְתַּר, וְשׁוֹנִין לְאַחַר שְׁלֹשִׁים, וּמַחְרִימִין לְאַחַר שִׁשִּׁים

And from where do we derive that we may shackle his hands and feet, chain him, and apply pressure? As it is written…

Samuel Hirzenberg. Spinosa. 1907. From here.

KInds of EXCOMMUNICATION

As mentioned, there are various degrees of excommunication within Jewish law. There is niddui, a sort of stage-one of excommunication, which excluded a person from the community for thirty days (see the Rambam here). The person placed in niddui, called the menudeh, was still allowed to study with others and to have business interactions. The next step was complete excommunication, called herem. Once this was imposed, the person had had to conduct themselves as if they were in a state of mourning; they could not cut their hair, or wear laundered clothes. They were forbidden to wash, (except for the face, hands, and feet) and they had to live in confinement with only their family. No one else was allowed to come near to them, eat and drink with them, greet them, or give them any enjoyment. If the medudeh was male, he could not be counted for a minyan, and if he died while in herem, his coffin would be symbolically stoned, by placing a single stone on it.

Maimonides on Herem

Maimonides carefully gathered twenty-four behaviors which are grounds for being put in herem (based on the Talmud in Berachot 19a,). He lists them (interestingly enough) in the Laws of the Study of Torah. Here they are:

רמב׳ם הל׳ תלמוד תורה 6:14

א) הַמְבַזֶּה אֶת הֶחָכָם וַאֲפִלּוּ לְאַחַר מוֹתוֹ. ב) הַמְבַזֶּה שְׁלִיחַ בֵּית דִּין. ג) הַקּוֹרֵא לַחֲבֵרוֹ עֶבֶד. ד) מִי שֶׁשָּׁלְחוּ לוֹ בֵּית דִּין וְקָבְעוּ לוֹ זְמַן וְלֹא בָּא. ה) הַמְזַלְזֵל בְּדָבָר אֶחָד מִדִּבְרֵי סוֹפְרִים וְאֵין צָרִיךְ לוֹמַר בְּדִבְרֵי תּוֹרָה. ו) מִי שֶׁלֹּא קִבֵּל עָלָיו אֶת הַדִּין מְנַדִּין אוֹתוֹ עַד שֶׁיִּתֵּן. ז) מִי שֶׁיֵּשׁ בִּרְשׁוּתוֹ דָּבָר הַמַּזִּיק כְּגוֹן כֶּלֶב רַע אוֹ סֻלָּם רָעוּעַ מְנַדִּין אוֹתוֹ עַד שֶׁיָּסִיר הֶזֵּקוֹ. ח) הַמּוֹכֵר קַרְקַע שֶׁלּוֹ לְעוֹבֵד כּוֹכָבִים מְנַדִּין אוֹתוֹ עַד שֶׁיְּקַבֵּל עָלָיו כָּל אֹנֶס שֶׁיָּבוֹא מִן הָעוֹבֵד כּוֹכָבִים לְיִשְׂרָאֵל חֲבֵרוֹ בַּעַל הַמֵּצָר. ט) הַמֵּעִיד עַל יִשְׂרָאֵל בְּעַרְכָּאוֹת שֶׁל עוֹבְדֵי כּוֹכָבִים וְהוֹצִיא מִמֶּנּוּ בְּעֵדוּתוֹ מָמוֹן שֶׁלֹּא כְּדִין יִשְׂרָאֵל, מְנַדִּין אוֹתוֹ עַד שֶׁיְּשַׁלֵּם. י) טַבָּח כֹּהֵן שֶׁאֵינוֹ מַפְרִישׁ הַמַּתָּנוֹת וְנוֹתְנָן לְכֹהֵן אַחֵר מְנַדִּין אוֹתוֹ עַד שֶׁיִּתֵּן. יא) הַמְחַלֵּל יוֹם טוֹב שֵׁנִי שֶׁל גָּלֻיּוֹת אַף עַל פִּי שֶׁהוּא מִנְהָג. יב) הָעוֹשֶׂה מְלָאכָה בְּעֶרֶב הַפֶּסַח אַחַר חֲצוֹת. יג) הַמַּזְכִּיר שֵׁם שָׁמַיִם לְבַטָּלָה אוֹ לִשְׁבוּעָה בְּדִבְרֵי הֲבַאי. יד) הַמֵּבִיא אֶת הָרַבִּים לִידֵי חִלּוּל הַשֵּׁם. טו) הַמֵּבִיא אֶת הָרַבִּים לִידֵי אֲכִילַת קָדָשִׁים בַּחוּץ. טז) הַמְחַשֵּׁב שָׁנִים וְקוֹבֵעַ חֳדָשִׁים בְּחוּצָה לָאָרֶץ. יז) הַמַּכִשִׁיל אֵת הָעִוֵּר. יח) הַמְעַכֵּב הָרַבִּים מִלַּעֲשׂוֹת מִצְוָה. יט) טַבָּח שֶׁיָּצְאָה טְרֵפָה מִתַּחַת יָדוֹ. כ) טַבָּח שֶׁלֹּא בָּדַק סַכִּינוֹ לִפְנֵי חָכָם. כא) הַמַּקְשֶׁה עַצְמוֹ לְדַעַת. כב) מִי שֶׁגֵּרֵשׁ אֶת אִשְׁתּוֹ וְעָשָׂה בֵּינוֹ וּבֵינָהּ שֻׁתָּפוּת אוֹ מַשָּׂא וּמַתָּן הַמְּבִיאִין לָהֶן לְהִזָּקֵק זֶה לָזֶה כְּשֶׁיָּבוֹאוּ לְבֵית דִּין מְנַדִּין אוֹתָם. כג) חָכָם שֶׁשְּׁמוּעָתוֹ רָעָה. כד) הַמְנַדֶּה מִי שֶׁאֵינוֹ חַיָּב נִדּוּי

  1. He who disgraces the wise even after his demise;

  2. He who disgraces a messenger of a tribunal;

  3. He who calls his fellow a “slave”;

  4. He whom a tribunal summoned to appear and set a date for his appearance and he did not come;

  5. He who scoffs at a matter enacted by the scribes, needless to say, a matter mentioned in the Torah;

  6. He who did not carry out a judgment of a tribunal is ostracised until he will comply;

  7. He who keeps in his premises something which may cause damages, such as a bad dog, or a broken step ladder, is ostracised until he will remove the damaging article;

  8. He who sells his immovable property to an idolater is ostracised until he will assume responsibility of any mishap that may be brought about by the idolater against his fellow, the Israelite, his erstwhile adjoining neighbor;

  9. He who testifies against an Israelite in the idolatrous court, and judgment is obtained against him as a result of his evidence to pay money contrary to the laws of Israel, is ostracised until he will make restitution;

  10. A priest who is a butcher and does not separate the priestly gifts and give them to another priest is ostracised until he will give;

  11. He who disgraces the second day of a holiday in Diaspora, even though it is but a custom;

  12. He who does servile work during the afternoon of Passover Eve;

  13. He who mentions the Name of Him Who is in heaven in vain or takes oath by the Name in non-essential matters;

  14. He who causes many to commit blasphemy against the Name;

  15. He who causes many to eat holy food outside of Jerusalem;

  16. He who calculates years and appoints months in Diaspora

  17. He who causes the blind to stumble;

  18. He who deprives many of performing a mandatory commandment;

  19. A butcher who underhandedly deals out terefah;

  20. A Sho'het who practices She'hita without having his slaughtering knife examined by and obtained authority from a Rabbi;

  21. He who consciously brings on erection;

  22. He who divorced his wife and then forms a partnership between himself and her, or establishes a business which brings them together, when they appear before a tribunal, they should be ostracised;

  23. A scholar of a universally evil reputation;

  24. He who excommunicates one who was not guilty of an offense punishable by excommunication.

How the Herem was used

This is a long list, and covers both very public and very private sins, very consequential ones, and ones that seem very minor. Not content with only twenty-four opportunities, the twelfth-century French rabbi Avraham ben David of Posquieres (Ra'avad) added some more of his own (“ויש אחרים הרבה”). Over the centuries the threat or reality of excommunication was used many times, and with great effect. Perhaps the most famous general edict was made by Rabbenu Gershom (c.960-1040) who banned polygamy under threat of excommunication; the ban is still in force to this day. Others used the threat to prevent price gouging, like the herem against raising the price of wine, or to prevent unwanted behavior, like the herem against gambling (but not against playing chess). The Jerusalem rabbi Nachman Koronol (1810-1890) cites a lengthy text used for the ceremony of excommunication. It involved burning and then dramatically extinguishing black candles, reading a list of curses from the Torah, and sounding the shofar. We will look at two of the many people who were placed in herem over the centuries: Baruch Spinoza and Mordechai Kaplan. The first was probably placed in herem because he turned his back on traditional Jewish teaching, and the second because he wanted to modernize it.

The Excommunication of Baruch Spinoza

Spinoza (1632-1677) was born in Amsterdam where he studied at the local talmud torah. He did not complete his studies to become a rabbi, for when his half-brother, Isaac died in 1649 he was needed to help in the family’s importing business. He slowly moved away from Judaism, but the exact process by which he was judged to be dangerous enough to be placed in herem is not known. It was certainly long before the publication of his his TractatusTheologico-Politicus which came out anonymously in 1670, or his Ethics, which was only published after his death. But whatever the cause, in July 1656, when Spinoza was only twenty-three years old, he was excommunicated by the Jewish community of Amsterdam. The original Hebrew version (if there was such a thing) has been lost, but there is a version written in Portuguese.Here is a translation:

Ban in Portuguese of Baruch Spinoza by his Portuguese Jewish synagogue community of Amsterdam, Amsterdam, 6 Av 5416 (27 July 1656). From here.

The Lords of the ma'amad, having long known of the evil opinions and acts of Baruch de Espinoza, have endeavoured by various means and promises, to turn him from his evil ways. But having failed to make him mend his wicked ways, and, on the contrary, daily receiving more and more serious information about the abominable heresies which he practised and taught and about his monstrous deeds, and having for this numerous trustworthy witnesses who have deposed and borne witness to this effect in the presence of the said Espinoza, they became convinced of the truth of the matter; and after all of this has been investigated in the presence of the honourable chachamim [sages], they have decided, with their consent, that the said Espinoza should be excommunicated and expelled from the people of Israel.

By the decree of the angels, and by the command of the holy men, we excommunicate, expel, curse and damn Baruch de Espinoza, with the consent of God, Blessed be He, and with the consent of all the Holy Congregation, in front of these holy Scrolls with the six-hundred-and-thirteen precepts which are written therein, with the excommunication with which Joshua banned Jericho, with the curse with which Elisha cursed the boys and with all the curses which are written in the Book of the Law. Cursed be he by day and cursed be he by night; cursed be he when he lies down, and cursed be he when he rises up; cursed be he when he goes out, and cursed be he when he comes in. The Lord will not spare him; the anger and wrath of the Lord will rage against this man, and bring upon him all the curses which are written in this book, and the Lord will blot out his name from under heaven, and the Lord will separate him to his injury from all the tribes of Israel with all the curses of the covenant, which are written in the Book of the Law. But you who cleave unto the Lord God are all alive this day.

We order that no one should communicate with him orally or in writing, or show him any favour, or stay with him under the same roof, or within four ells of him, or read anything composed or written by him.

The ban didn’t do much to stop him. Spinoza left the community, and went on to become one of the most famous Jews in western civilization.

It was the harshest writ of herem, or religious and social ostracism, ever pronounced on a member of the Portuguese Jewish community of Amsterdam. The community leaders witting on the ma’amad that year dug deep into their books to find just the right words for the occasion. Unlike many of the other bans of the period, this one was never rescinded
— Steven Nadler. A Book Forged in Hell. Spinoza's Scandalous treatise and the Birth of the Secular Age. 9.

From the Brown Family Archives.

In 2012 at the JCC in Washington DC, Spinoza’s heresies were discussed before an audience (including yours truly) who then voted on whether or not to rescind the herem. It was, as I recall, a wonderful debate, and in the end the vote was 108 to 41, and the herem was ceremoniously lifted. Actually, this is not as odd as it sounds, because according to Ameimar on today’s page of Talmud, “the halakha is that if three people ostracize another person, three others may come and nullify the decree of ostracism.”

אָמַר אַמֵּימָר: הִלְכְתָא, הָנֵי בֵּי תְלָתָא דְּשַׁמִּיתוּ — אָתוּ בֵּי תְּלָתָא אַחֲרִינֵי וְשָׁרוּ לֵיהּ

The excommunication of Mordechai Kaplan

Another person excommunicated from the Jewish community was Mordechai Kaplan, the founder of Reconstructionist Judaism. “On 12 June 1945,” wrote Zachary Silver in a paper on the subject “a group of Orthodox rabbis known as Agudat HaRabbanim assembled in the Hotel McAlpin in New York and burned the siddur of Rabbi Mordecai Menahem Kaplan of the Jewish Theological Seminary (JTS). His ceremonial book burning concluded the formal excommunication of the founder of Reconstructionism. Just one month after the Allies declared victory over Nazi Europe, a group of rabbis used religious principles and a symbolic act to attempt to stifle a dissenting voice within their midst, even going to the extreme act of burning a prayer book that contained the name of God to underscore their point.” Here is the original description of the ceremony, published in the Daily News Briefing of the Jewish Telegraphic Agency on June 14, 1945:

And there is a report about the herem in the Hebrew journal HaPardes published in July 1945, which included the language that was used:

It is not surprising that, just one month after America declared victory over Nazi Germany, Agudat HaRabbanim’s declaration of the herem sent a jolt through American Jews’ collective conscience. Particularly when combined with the burning of a holy book, an excommunication marks a refusal to engage in democratic discourse; a herem launches a group attack upon an individual, attempting to render him incapacitated in every segment of his life. Such an act might have caused a similar reaction in any era. But in 1945, with the backdrop of World War II and a rising spirit of cultural pluralism in peacetime American religious life, the herem and, particularly, the burning of a prayer book—recalling Nazi tactics—marked a decisive clash in values between Agudat HaRabbanim and American norms of tolerance.
— Silver, Zachary. “The Excommunication of Mordecai Kaplan.” The Excommunication of Mordecai Kaplan. American Jewish Archives Journal 2010; 38

Enough already with the threats

Rabbi Shimon ben Zamach Duran (1361-1444), known as the Tashbatz, was asked about whether another rabbi had correctly used the threat of excommunication. This other rabbi, by the name of Yitzhak, had threatened to excommunicate anyone who spread the rumor that his grandson had bribed a government official. In his responsa (Volume 1, #55), the Tashbatz wrote that Yitzhak had no right to issue this threat, and that his excommunications were of no legal standing. But there is one precious sentence in his responsum that is worth pausing over:

שאם באנו להחרים ולנדות המלמדים לשונם לדבר שקר אין נקי והיתה כל הארץ חרם

If we start excommunicating anyone who teaches that which is untrue, it would be incorrect, for the entire land would be filled with those who were excommunicated.

The Jewish community of Amsterdam issued more than one hundred other bans and excommunications. They are listed in the same Book of Ordinances that contains the one against Spinoza. But did they ever work? Do bans and threats of excommunication work today? (The correct answers are possibly and certainly not.) Writing in 1945, then young philosopher (and JTS alum) Sidney Morgenbesser (1921-2004) thought the excommunication of Kaplan was an exercise in hypocrisy.

If Judaism consists in accepting all of the mitzvot of the Torah as binding, why should Bialik and Brandeis be recognized as Jews? Why are even the Orthodox so proud of Einstein and Herzl? Seriously, why not excommunicate all Jews who “keep their places of business open” on Saturday? Why not excommunicate all who accept money from such sources? Why not excommunicate all who suspect that the Greeks may have had something to contribute to human values? Why not excommunicate all who may believe that the world is at least 100,000 years old or those who proclaim in public that America is their home and not a temporary purgatory? The truth is that the Orthodox cannot. There would be no one of any consequence left.

Let’s end with the wise words of the late Rabbi Dr. Norman Lamn, and his reaction to the herem placed on Dr. Kaplan. They are from an interview he gave in 2007 to The Commentator, the student newspaper of Yeshiva University.

If we want to win people over to Orthodoxy, we need to present ourselves as measured, mature, and moderate people with deep faith and the right practice, but we do not insult others and we do not damage or condemn them. Coming out with issurim [decrees that forbid particular actions] against everyone else is like another Fatwa.

When I was younger there was a heretic by the name of Mordecai Kaplan, and the Agudas HaRabbonim had this whole big book burning party. I thought it was ridiculous to have a book burning in the twentieth century. It didn’t make anybody decide to become more religiously observant. Nobody who was reading his books said[,] “If important Orthodox rabbis burned them, we’re not going to read them.” If anything, it aroused interest in people who otherwise would not have wanted to read these books.

But in addition, what it accomplished was that it got people to look at the Orthodox as fanatics. that’s no way to make friends and win people over to Orthodoxy.

דְּהָהוּא כַּלְבָּא דַּהֲוָה אָכֵיל מְסָאנֵי דְרַבָּנַן וְלָא הֲווֹ קָא יָדְעִי מַנּוּ, וְשַׁמִּתוּ לֵיהּ. אִיתְּלַי בֵּיהּ נוּרָא בִּגְנוּבְתֵּיהּ וַאֲכַלְתֵּיהּ

There was a certain dog that would eat the shoes of the Sages, and they did not know who it was causing this damage. So they excommunicated whoever was doing it. Soon thereafter, the dog’s tail caught fire and got burnt.
— מועד קטן יז, א
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Mo’ed Katan 11a ~ Nature Changes

On today’s page of Talmud, Rav reports several aphorisms said by Adda the Fisherman. Here is one.

מועד קטן יא, א

אָמַר רַב: אֲמַר לִי אַדָּא צַיָּידָא, כְּווֹרָא סָמוּךְ לְמִיסְרְחֵיהּ מְעַלֵּי

Rav said: Adda the Fisherman told me that a fish that has sat for some time and is close to spoiling is at its best.

And so according to Adda, fish is not at its best when it is fresh. In fact, it is best eaten just before it spoils. Tosafot is surprised at this advice, and notes that eating fish (or any food) close to its expiration date is a dangerous thing to do. Tosafot raises the possibility that perhaps that kaverah (כְּווֹרָא) does not mean fish in general, but instead refers to a specific species of fish, named kaverah. However Tosafot rejects this solution, and instead suggests a different one. “Perhaps, nature has changed.” It is also for this reason, Tosafot notes, that the medicines suggested in the Talmud are no-longer effective. They once were of course, but nature has changed.

כוורא סמוך למסרחיה מעלי. ובזמן הזה תופסים סכנה למיכל סמוך לסירחון וגם משתי עלה אבוה דאמר בסמוך דמעלי ושמא נשתנו כמו הרפואות שבש"ס שאינן טובות בזמן הזה או שמא נהרות דבבל מעלו לו טפי ויש מפרשים דכוורא לא בכלל דגים מיירי ושם דג ששמו כוורא ומשונה בדברים האלו משאר דגים כדאמרינן פ' כל הבשר (חולין דף קט:) אסר לן גירותא שרא לן לישנא דכוורא ואין נראה שיהא בכל הלשונות של דגים טעם אחד

ANOTHER Example

In Avodah Zarah (24b) the Talmud states that a cow or donkey less than three years old cannot conceive. Once again, Tosafot notes that this claim is factually incorrect:

תוספות עבודה זרה כד, ב

פרה וחמור בת שלש שנים ודאי לכהן - פי' דקודם שלש ודאי לא ילדה ויש לתמוה דהא מעשה בכל יום דפרה בת שתי שנים יולדת וי"ל דודאי עתה נשתנה העת מכמו שהיה בדורות הראשונים

…this is surprising, because we see that each and every day that a two-year-old cow does in fact give birth! Perhaps this is because the times have changed, and are things are not as they were for earlier generations…

The Chazon Ish on Nature and its Changes

There are many examples of this explanation being used. Here, is one given by the great Chazon Ish, Rabbi Avrohom Yeshaya Karelitz (1878-1953). The Talmud (Yevamot 42) states that a baby born after eight months of gestation will not survive, but one born after seven or nine months will. (We have discussed this is detail elsewhere.) Not so, said the Chazon Ish. A baby born after eight months can indeed survive. “It seems to me” he wrote, “that nature has changed” and therefore the Sabbath may indeed be broken in order to save the now viable life of such a child.

155 חזון איש - יורה דעה

יש שטועין וסוברים דהנולד קודם ט' הוא נפל ומתיאשין הימנו ואינם זריזין ברפואתו, וזו טעות... וחייבים להשתדל ברפואתו... בימים הראשונים הי' מיעוט המצוי שנגמרו לז', ורובן לתשעה, אבל לא היו נגמרין לשמונה, ולפיכך אמרו האי בן שבעה הוא ואשתהי, וכמדומה דעכשיו נשתנה הטבע, וכפי בחינת הרופאים, אפשר שהוסיפו השתלמותם אחר ז' ונגמרו לח', והרי נשתנו הטבעים ללדת למקוטעין, כמ"ש הרמ"א

In his 2013 book Torah, Chazal and Science, - Rabbi Moshe Meiselman is certain that natural changes are the reason that things the rabbis said then are not correct today:

Chazal were describing realities that they lived with on a daily basis. They were not ivory-tower academicians making armchair speculations. They had firsthand knowledge of both human and animal reproductive cycles. They had firsthand knowledge of animal anatomy. If our observations do not always match theirs, it is clearly because the realities have changed.

As long-time readers of Talmudology will realize, this statement is incorrect. The fact that the rabbis of the Talmud made first hand observations does not make these observations correct. To choose but one, rather obvious example, the sun looks like it rises every day in the east, and it certainly feels like the earth is not moving. But in reality is is the earth that is moving, and the sun is stationary, at least with reference to the earth. Here are some other examples of things that certainly looked correct to the sages of the Talmud, but are in fact incorrect:

In all of these instances, Rabbi Meiselman, and others who claim that the rabbis of the Talmud were never wrong about anything, suggest that these were in fact correct statements, only the world has changed in such a way that they are no-longer true. There is a long Jewish tradition of believing the sages of the Talmud incapable of error. Here for example is the Rashba, Rabbi Shlomo ben Avraham ibn Aderet (1235-1310), a favorite of Rabbi Meiselman, for reasons that will be quickly apparent.

ויבטל המעיד ואלף כיוצא בו ואל תבטל נקודה אחת ממה שהסכימו בו חכמי ישראל הקדושים הנביאים ובני נביאים ודברים שנאמרו למשה מסיני

It is better to deny the truth of one person - or one thousand like him, rather then deny one tiny part of that which the holy rabbis have agreed upon, for they are like prophets and are descended from prophets, and their words were revealed to Moshe at Sinai.

I suppose you could believe that, but how about a much simpler suggestion: They were wrong, but (usually) were no more wrong than anyone else at the time. There is of course much more to be said about this (and here is a book with many more examples of the phenomenon). But here is an excerpt from Judah Landa’s excellent 1991 book Torah and Science, still one of the best books on the topic (but not the best). Landa (p. 348) bemoans the fact that a number of Jews have “strayed from the Orthodox path as a result, at least in part, of the widespread misconception that an unmitigated conflict exists between the fundamental principles of Judaism and science.” And then comes this:

This misconception has been aided and abetted by the stubborn insistence on the part of many of our brethren in the Orthodox community that the sages were infallible and incapable of error. even in matters that are outside the domains of Torah. This leads to the rejection of any and all scientific principles, no matter how well supported by the evidence, that contradict the expressed opinions of the rabbis. The highly visible achievements of science stand in stark contrast to these dogmas that have been turned, by thoughtless and repeated insistence, into new pseudo-tenets of the faith. These dogmas have gone unchallenged, for too long a time, from within the Orthodox community. It is time that this misrepresentation of what is and is not inherent to Judaism be rectified.

For some Jews, a belief in the absolute infallibility of the sages is central. Their religious worldview would be shaken and left in tatters if that belief was challenged. Others, no less fervent in their Jewish commitment, seem to be just fine, thank you very much, with the belief that the rabbis of the Talmud provide us with much wisdom and guidance, but hey, every now and again they made some mistakes. Where are you on this spectrum, and why?


Next time, on Talmudology:

The Excommunication of Spinoza

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