Bava Basra 23b ~ Bizarre Talmudic Scenarios

This Post is for Bava Basra 23, the page of Talmud that we will study tomorrow, Thursday July 18th.

One hypothetical too many

Sometimes, the endless talmudic questioning can go too far. If a baby pigeon is found within 50 cubits of a coop, it is presumed to belong to the owner of that coop. If it is found further away than 50 cubits, it belongs to the finder. Ever keen to push the limits of rabbinic law, Rabbi Yirmiyah asked “if one foot of the pigeon is within the fifty cubits and one foot is outside, to whom does it belong?” This apparently was one question too many. The rabbis (rather unfairly in my opinion) expelled Rabbi Yirmiyah from the Yeshivah for asking it.

בבא בתרא כג, ב

בָּעֵי רַבִּי יִרְמְיָה רַגְלוֹ אַחַת בְּתוֹךְ חֲמִשִּׁים אַמָּה וְרַגְלוֹ אַחַת חוּץ מֵחֲמִשִּׁים אַמָּה מַהוּ וְעַל דָּא אַפְּקוּהוּ לְרַבִּי יִרְמְיָה מִבֵּי מִדְרְשָׁא

Rabbi Yirmeya raises a dilemma: If one leg of the chick was within fifty cubits of the dovecote, and one legwas beyond fifty cubits, what is the halakha? The Gemara comments: And it was for his question about this far-fetched scenario that they removed Rabbi Yirmeya from the study hall, as he was apparently wasting the Sages’ time.

Tomorrow’s bizarre case is one of many that we encounter as we make our way through the Babylonian Talmud. Consider this whopper, that we learned at the end of last year:

בבא קמא כז, א

 אָמַר רַבָּה: נָפַל מִן הַגָּג וְנִתְקַע — חַיָּיב בְּאַרְבָּעָה דְּבָרִים, וּבִיבִמְתּוֹ לֹא קָנָה. בְּנֵזֶק, בְּצַעַר, בְּשֶׁבֶת, בְּרִפּוּי. אֲבָל בּוֹשֶׁת לָא מִיחַיַּיב, דְּאָמַר מָר: אֵין חַיָּיב עַל הַבּוֹשֶׁת עַד שֶׁיִּתְכַּוֵּון

Rabba said: One who fell from a roof and was inserted into a woman due to the force of his fall is liable to pay four of the five types of indemnity that must be paid by one who damaged another, and if she is his yevama he has not acquired her in this manner. He is liable to pay for injury, pain, loss of livelihood, and medical costs. However, he is not liable to pay for the shame he caused her, as the Master said: One is not liable to pay for shame unless he intends to humiliate his victim…

As weird Talmudic cases go, this is among the weirdest. It is entirely impossible, and not least because this would happen. Did the rabbis of the Talmud really believe that such a case could occur? To answer this, let’s consider come other rather implausible cases from across the Babylonian Talmud.

 The AMAZING Shechita Knife

We begin with a fanciful question that is somewhat analogous to falling intercourse case. What happens if a person throws a knife across the room, but in doing so the flying knife somehow manages to cut the neck of an animal in just the correct fashion to perform a kosher shechita (ritual slaughter). Is the meat of this slaughtered animal kosher?

חולין לא, א

דתני אושעיא זעירא דמן חבריא זרק סכין לנועצה בכותל והלכה ושחטה כדרכה ר' נתן מכשיר וחכמים פוסלים הוא תני לה והוא אמר לה הלכה כר' נתן

Oshaya, the youngest of the company of Sages, taught a baraita: If one threw a knife to embed it in the wall and in the course of its flight the knife went and slaughtered an animal in its proper manner, Rabbi Natan deems the slaughter valid and the Rabbis deem the slaughter not valid. Oshaya teaches the baraita and he says about it: The halakha is in accordance with the opinion of Rabbi Natan that there is no need for intent to perform a valid act of slaughter.

 The Fish That Pulled a Plough

The Bible (Deuteronomy 22:10) forbids a farmer to plough his land using an ox and a donkey together. While no reason for this law is given, we might suppose it has something to do with the concern that doing so might cause unnecessary pain to the smaller (or perhaps the larger?) animal. Regardless of the reason, later in our tractate the Talmud explains that this law applies to any kind of work and any two different species of animal. Then comes this fantastic question: “What is the law if someone pulls his wagon using a goat and a fish?” 

בבא קמא נה, א

בעי רחבה המנהיג בעיזא ושיבוטא מהו מי אמרינן כיון דעיזא לא נחית בים ושיבוטא לא סליק ליבשה לא כלום עביד או דלמא השתא מיהת קא מנהיג

The Sage Rachava raised a dilemma: With regard to one who drives a wagon on the seashore with a goat and a shibbuta, a certain species of fish, together, pulled by the goat on land and the fish at sea, what is the halakha? Has he violated the prohibition against performing labor with diverse kinds, in the same way that one does when plowing with an ox and a donkey together, or not?

This turned out to be such a hard question that the Talmud could not answer it. The Rosh concludes though that just to be sure, best not to hitch up your wagon to a fish, if you also intend for it to be pulled by a goat (ולא איפשיטא ואזלינן לחומרא). Don’t say you weren’t warned.

The Bird that built her nest on a person’s head

The Bible also demands that the mother bird must be shooed away before collecting the eggs upon which she is brooding. But what happens if a bird makes her nest in a person’s hair? Must this mother be driven away before her eggs are collected? (Chullin 139b)

חולין קלט, ב

אמרי ליה פפונאי לרב מתנה מצא קן בראשו של אדם מהו? אמר (שמואל ב טו, לב) ואדמה על ראשו

The residents of Pappunya said to Rav Mattana: If one found a nest on the head of a person, what is the halakha with regard to the mitzva of sending away the mother? Is the nest considered to be on the ground, such that one is obligated in the mitzva? Rav Mattana said to them that one is obligated in the mitzva in such a case because the verse states: “And earth upon his head” (II Samuel 15:32), rather than: Dirt upon his head, indicating that one’s head is considered like the ground. 

(And just to be clear - the Talmud is not discussing a case like this one, in which a woman allowed an abandoned fledgling to nest in her long har for 84 days, though it is, I will admit, a very touching story.) 

The Role of Bizarre cases

In a 2004 paper published in Thalia: Studies in Literary Humor, Hershey Friedman, a Professor of Business at Brooklyn College, suggested that “whether a situation is possible or not is immaterial when the Talmud is trying to establish legal principles.”  

Purely theoretical (at least in their days) cases are discussed because the sages felt that principles derived from these discussions would clarify the law and thus provide a more thorough understanding of it. Discussions of theoretical cases in the Talmud have allowed scholars of today to use the Talmudic logic and principles to solve current legal questions 

The theoretical questions make a legal point, and it is that legal point that is the real object of the discussion. Whether or not the case could actually happen is immaterial. Friedman also suggests that these unusual cases serve to keep the material interesting, and also act as brain teasers, which don’t necessarily make a legal point but serve to sharpen the minds of both the students and the teachers who ask them.

“There was a time, not many years ago, when a lawyer could feel reasonably confident as he approached oral argument in the United States
Supreme Court if he had thoroughly absorbed the record in his case and
had obtained a working knowledge of all relevant cases. No longer. Today, an advocate must, more than ever before, prepare himself for a
stream of hypothetical questions touching not only on his own case but on
a variety of unrelated facts and situations.”

— E. Barrett Prettyman Jr., The Supreme Court's Use of Hypothetical Questions at Oral Argument, 33 Cath. U. L. Rev. 555 (1984). 555.

 Hypothetical Cases in the US Legal System

It may help to understand the role that these weird cases have in the Talmud by understanding that hypothetical cases have an important role to play in many legal systems, including that of the United States. Consider this series of questions that were asked in the famous 1984 case of California vs Carney. Police officers entered a motor home without a search warrant, and found marijuana. The question before the court was whether this motor home was a more like a car, which should not require a search warrant, or more like a home, which would. There were various appeals, and the case ended up being heard in front of the US Supreme Court, which is where the following hypothetical questions were raised:

Q: Well, what if the vehicle is in one of these mobile home parks and hooked up to water and electricity but still has its wheels on?

Q: Suppose somebody drives a great big stretch Cadillac down and puts it in a parking lot, and pulls all the curtains around it, including the one over the windshield and around all the rest of them. Would that be a home?

Or how about this exchange back in 1982, (and the subject of which is once again a hot topic of debate in the US). In Board of Education v.Pico, the question before the Court was whether a public school board could remove books which it found to be objectionable from the shelves of junior and senior high school libraries, in order to promote the community's "moral, social, and political values." 

Q: Suppose they [the Board] barred the St. James version of the New Testament, and the Constitution of the United States, and the Declaration of Independence?

Q: Suppose some of these books were assigned as outside reading, and the children were told, you can get it in the public library?

Q. Suppose you had a book, counsel, that had been the subject of criminal proceedings, and conviction of someone in connection with that book had been sustained, a criminal conviction. Would you say that the book comes under this broad authority you suggest? 

(By the way, the Court, in a 5-to-4 decision, held that as centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoy a special affinity with the rights of free speech and press. Therefore, the School Board could not restrict the availability of books in its libraries simply because its members disagreed with their content. That might be useful to remember.)

There are many, many similar examples. Here is one of my favorites. It comes from United States v. Ross, in which the defendant’s lawyer argued that a small brown paper bag should not have been searched for narcotics because it was protected under the Fourth Ammendment, the right against unlawful search. Here is one of the hypotheticals:

Q: Suppose what they were hunting for was, say, a waffle iron, a stolen waffle iron, or something else that couldn't go in the paper bag. You might have probable cause to search the car for the waffle iron, but if you got to the paper bag, you wouldn't be searching it, would you?

Commenting on this case, the late American lawyer Elijah Barrett Prettyman Jr. (d. 2016) wrote that “one cannot help but be impressed with how far removed some hypotheticals are from the facts before the Court. In Ross, the brown paper bag case, one Justice had the police hunting for a waffle iron.”

Why we need Hypotheticals

Hypothetical cases are really important when the Supreme Court is trying to figure out the difficult cases that come before it. And they are all difficult cases, because if they were easy, the Supreme Court wouldn’t be considering them. The rabbis of the Talmud needed to do the same. This is why they often consider outlandish, implausible or downright fanciful cases to ponder, even if, as we read today, they sometimes got fed up with the never ending stream of hypotheticals.

The best way to think about these cases is to add in the following missing words: “Hypothetically, what would happen if…” Then, as if by magic, they cease to be silly and start to be really important.

Bava Basra 21a ~ Schools. The Most Important Ruling in the Talmud

The Mishna on yesterday’s daf, Bava Basra 20b, teaches what are reasonable and unreasonable uses of one’s home. A neighbor may object to you running your store in a common courtyard, because of the noise generated. But she may not object to your running a school:

בבא בתרא כ, ב

חֲנוּת שֶׁבְּחָצֵר – יָכוֹל לִמְחוֹת בְּיָדוֹ וְלוֹמַר לוֹ: אֵינִי יָכוֹל לִישַׁן מִקּוֹל הַנִּכְנָסִין וּמִקּוֹל הַיּוֹצְאִין…וְלֹא מִקּוֹל הַתִּינוֹקוֹת

MISHNA: If a resident wants to open a store in his courtyard, his neighbor can protest to prevent him from doing so and say to him: I am unable to sleep due to the sound of people entering the store and the sound of people exiting….nor can he say: I cannot sleep due to the sound of the children.

On today’s daf, the Talmud teaches that this ruling applied from the time of the ruling of Yehoshua ben Gamla and onwards:

בבא בתרא כא, א

דְּאָמַר רַב יְהוּדָה אָמַר רַב: בְּרַם, זָכוּר אוֹתוֹ הָאִישׁ לַטּוֹב – וִיהוֹשֻׁעַ בֶּן גַּמְלָא שְׁמוֹ, שֶׁאִלְמָלֵא הוּא, נִשְׁתַּכַּח תּוֹרָה מִיִּשְׂרָאֵל. שֶׁבִּתְחִלָּה, מִי שֶׁיֵּשׁ לוֹ אָב – מְלַמְּדוֹ תּוֹרָה, מִי שֶׁאֵין לוֹ אָב – לֹא הָיָה לָמֵד תּוֹרָה. מַאי דְּרוּשׁ? ״וְלִמַּדְתֶּם אֹתָם״ – וְלִמַּדְתֶּם אַתֶּם

הִתְקִינוּ שֶׁיְּהוּ מוֹשִׁיבִין מְלַמְּדֵי תִינוֹקוֹת בִּירוּשָׁלַיִם. מַאי דְּרוּשׁ? ״כִּי מִצִּיּוֹן תֵּצֵא תוֹרָה״. וַעֲדַיִין מִי שֶׁיֵּשׁ לוֹ אָב – הָיָה מַעֲלוֹ וּמְלַמְּדוֹ, מִי שֶׁאֵין לוֹ אָב – לֹא הָיָה עוֹלֶה וְלָמֵד. הִתְקִינוּ שֶׁיְּהוּ מוֹשִׁיבִין בְּכל פֶּלֶךְ וּפֶלֶךְ. וּמַכְנִיסִין אוֹתָן כְּבֶן שֵׁשׁ עֶשְׂרֵה כְּבֶן שְׁבַע עֶשְׂרֵה

וּמִי שֶׁהָיָה רַבּוֹ כּוֹעֵס עָלָיו – מְבַעֵיט בּוֹ וְיֹצֵא. עַד שֶׁבָּא יְהוֹשֻׁעַ בֶּן גַּמְלָא וְתִיקֵּן, שֶׁיְּהוּ מוֹשִׁיבִין מְלַמְּדֵי תִינוֹקוֹת בְּכל מְדִינָה וּמְדִינָה וּבְכל עִיר וָעִיר, וּמַכְנִיסִין אוֹתָן כְּבֶן שֵׁשׁ כְּבֶן שֶׁבַע

What was this ordinance? As Rav Yehuda says that Rav says: Truly, that man is remembered for the good, and his name is Yehoshua ben Gamla. If not for him the Torah would have been forgotten from the Jewish people. Initially, whoever had a father would have his father teach him Torah, and whoever did not have a father would not learn Torah at all.

The Gemara explains: What verse did they interpret homiletically that allowed them to conduct themselves in this manner? They interpreted the verse that states: “And you shall teach them [otam] to your sons” (Deuteronomy 11:19), to mean: And you yourselves [atem] shall teach, i.e., you fathers shall teach your sons.

When the Sages saw that not everyone was capable of teaching their children and Torah study was declining, they instituted an ordinance that teachers of children should be established in Jerusalem. The Gemara explains: What verse did they interpret homiletically that enabled them to do this? They interpreted the verse: “For Torah emerges from Zion” (Isaiah 2:3). But still, whoever had a father, his father ascended with him to Jerusalem and had him taught, but whoever did not have a father, he did not ascend and learn. Therefore, the Sages instituted an ordinance that teachers of children should be established in one city in each and every region. And they brought the students in at the age of sixteen and at the age of seventeen.

But as the students were old and had not yet had any formal education, a student whose teacher grew angry at him would rebel against him and leave. It was impossible to hold the youths there against their will. This state of affairs continued until Yehoshua ben Gamla came and instituted an ordinance that teachers of children should be established in each and every province and in each and every town, and they would bring the children in to learn at the age of six and at the age of seven.

It is not very often that I read a book that changes everything about what I thought I knew. But a year ago I read just such a book. It is The Chosen Few, by two economists, Maristella Botticini and Zvi Eckstein. I cannot recommend it highly enough, and it explains why today’s daf contains the most important ruling in the Talmud.

“The ability to read and write contracts, business letters and account books using a common alphabet gave the Jews a comparative advantage over other people. The Jews also developed a uniform code of law (the Talmud) and a set of institutions, networking and arbitrage across distant locations. High levels of literacy and the existence of contract-enforcing institutions became the levers of the Jewish people.”

— Botticini, M and Eckstein, Z. The Chosen Few. How Education Shaped Jewish History 10-1492. Princeton University Press 2012. 5.

This book was written to answer one specific question – though in doing so it revealed a remarkable story. Why was it that the worldwide Jewish population decreased from about three million at the time of the destruction of the Second Temple in 70 CE, to barely one million by 1490? It wasn’t just wars, famine or pandemics, because the world population increased over that same period, from about 55 to 87 million.

Jewish and total population, c. 65 CE, 650, 1170, and 1490 (millions). Source: Authors’ estimates, explained in appendix. From Botticini M. and Eckstein Z. The Chosen Few. How Jewish Education Shaped Jewish History 70-1492. Princeton University Press 2012. p18.

How Yehoshua ben Gamla Changed the Jewish trajectory

Here is what the authors believe happened.

Yehoshua ben Gamla was a High Priest in the Second Temple and died during the first Jewish-Roman war in about 64-65 CE. He issued a decree that all Jewish fathers were required to send their sons (but not their daughters, sorry,) from the age of six or seven to school. There, they would learn to read and write and study Torah. “Throughout the first millennium” wrote Botticini and Eckstein, “no people other than the Jews had a norm requiring fathers to educate their sons.” Then came this critical change in Jewish society:

With the destruction of the Second Temple, the Jewish religion permanently lost one of its two pillars (the Temple) and set out on a unique trajectory. Scholars and rabbis, the new religious leaders in the aftermath of the first Jewish-Roman war, replaced temple service and ritual sacrifices with the study of the Torah in the synagogue, the new focal institution of Judaism. Its core function was to provide religious instruction to both children and adults. Being a devout Jew became identified with reading and studying the Torah and sending one’s children to school to learn to do so. During the next century, the rabbis and scholars in the academies in the Galilee interpreted the Written Torah, discussed religious norms as well as social and economic matters pertaining to daily life, and organized the body of Oral Law accumulated through the centuries. In about 200, Rabbi Judah haNasi completed this work by redacting the six volumes of the Mishna, which with its subsequent development, the Talmud, became the canon of law for the whole of world Jewry. Under the leadership of the scholars in the academies, illiterate people came to be considered outcasts.

Why Jews Stopped Farming

Next, the authors address the implications of this new religious norm for the behavior of Jews in the first half of the new millennium. Until this time, the most common occupation was as farmers, but now each family unit had to make a stark choice. Do they invest in their sons’ literacy, and also remain within the network of the normative Jewish community, or finding them too costly, do they convert to other religions?  

“If the economy remains mainly agrarian, literate people cannot find urban and skilled occupations in which their investment in literacy and education yields positive economic returns. As a result the Jewish population keeps shrinking and becoming more literate. In the long run, Judaism cannot survive in a subsistence farming economy because of the process of conversions.”

If you wished to remain within the fold of rabbinic Judaism, then you had to send your sons to school. This was the edict of Yehoshua ben Gamla, and it had to be followed. But this pulled them out of the farming workforce, which would mean an end to the family farm. But if you wished to remain a farmer, then you kept your sons (and daughters) close by to help on the farm. However, this put you outside of the new normative Jewish practice of sending sons to school. Pretty soon, those who remained farmers were outside the pale of normative Jewish practice, and would have converted to Christianity (or, later Islam). And that explains the rapid drop in the Jewish population.

With his income, the Jewish farmer buys food and clothing for his family and pays taxes. If he decides to send his sons to school, he has to incur the associated costs. He has to pay for books and contribute to both the teacher’s salary and the maintenance of the synagogue where the school activities are typically held. In small communities, these expenses may represent a heavy burden on the household head. Given heterogeneity in individuals’ abilities and temperaments, the cost of educating a child may decrease with his ability and diligence. The costs of educating one’s son also include the forgone earnings the child could have earned by working on the farm rather than attending school—what economists refer to as “opportunity cost.” Even if education is free (because, for example, the state provides books and pays all tuition), the opportunity cost of going to school makes educating children a burden for farmers, especially poor and middle-income ones. (Even today, many farmers in developing countries that provide free universal primary education keep their children out of school so that they can work on the farm.)

Next let us consider the benefits and the costs associated with the second choice the Jewish farmer has to make: whether to remain a Jew or to opt for another religion. The Jewish farmer can avoid following the rules set by Judaism, including the one requiring him to educate his sons, by converting to another religion. Doing so would free him of the costs of educating his children or suffering the social penalty inflicted on the illiterate. A Jew who converts, however, may suffer psychological or monetary costs, including losing the support of his Jewish friends and relatives. We call the costs associated with converting to another religion the “costs of conversion.”

Religious affiliation typically requires some costly signal of belonging to a club or network; different religions may require their members to follow different rituals and adhere to different norms as a way to signal their membership in the club. Investing in literacy and education, as Judaism requires, is a very costly signal for individuals and households living in farming economies in which there are no economic returns to literacy. As we show, the decisions to invest in a son’s literacy and to remain or become a member of a religious group are related.

So, more Jews became urban merchants, and fewer became farmers. There were now fewer Jews to be sure, but they had their educated sons now had the ability to pivot from farming to trading.

“The literacy of the Jewish people, couples with a set of contract enforcement institutions developed during the five centuries after the destruction of the Second Temple gave Jews a comparative advantage in occupations such as crafts, trade and money lending, occupations that benefited from literacy, contract-enforcement mechanisms, and networking. Once the Jews were engaged in these occupations they rarely converted, which is consistent with the fact that the Jewish population grew slightly from the seventh to the twelfth century.”

Why Jews Became MoneyLenders

Sometime during my education I was told that Jews turned to moneylending because they were prohibited from owning land, and because they were expelled from countries and communities so often that they were forced to enter a trade that was portable. I am sure that you heard this explanation too. But it is wrong.

First, Jews were never prohibited from owning land in either the Roman or the Persian empires. In fact, they were not prohibited from any economic activities, then, or later in the Byzantine Empire (350-1250 CE.) or the Muslim Caliphates (650-1250 CE.). And what about Christian Europe?

No restrictions were imposed on the Jewish artisans, shopkeepers, traders, moneylenders, scholars, and physicians who migrated to and within Christian Europe during the early Middle Ages. Many charters issued in the early medieval period (the mid-ninth through the thirteenth century) indicate that rulers invited Jews to settle in their lands in order to spur the development of crafts and trade…

Economic Activities Open and Closed to Jews in the Muslim Caliphates, by Area, 650–1250. From Botticini M. and Eckstein Z. The Chosen Few. How Jewish Education Shaped Jewish History 70-1492. p57.

“The decision of the Jews to invest in literacy and education (first to sixth century) came centuries before their worldwide migrations (ninth century onwards). The direction of causality thus runs from investment in literacy and human capital to voluntarily giving up investing in land and being farmers to entertaining urban occupations and becoming mobile and migrating - not the other way round.”

— Botticini M. and Eckstein Z. The Chosen Few. How Jewish Education Shaped Jewish History 70-1492. Princeton University Press 2012. p60-61.

An Economic View of Jewish Identity

Both Botticini and Eckstein are economists, and note that “economists assume that when making choices, individuals compare the benefits and the costs of the alternatives with the goal of selecting the option that yields the greatest utility.”

A Jewish farmer (that is, a farmer who identifies himself with Judaism) living in a village in the Galilee circa 200 had to make two key choices. First, he had to decide whether to send his sons to work or to school (synagogue) to learn to read and study the Torah. Second, he had to choose whether to continue belonging to Judaism or to convert and become a Samaritan, a Christian, or a pagan.

Their book analyzes these and other choices, noting that literacy did not make a farmer more productive or enable him to earn more.

Moreover, the rural economies of the first half of the first millenium there were very few opportunities for literate people to enter crafts and trades. “Investment” in children’s literacy and education thus represented a burden with no economic returns for almost all households whose incomes came from agriculture.

Of course, the ruling of Yehoshua ben Gamla would not have had much effect without an educational infrastructure. Over the first few centuries after the destruction of the Second Temple, several further edicts provided (some described on today’s page of Talmud) levied a communal tax to pay for the teacher’s salary, and introduced competitive competition between teachers as a way of raising standards. A small number of Jewish farmers made the financial sacrifice to obey the religious norm sanctioned by the Pharasaic leadership. Over time, there were fewer and fewer Jewish farmers, and more and more Jewish merchants.

Literacy—and hence, the ability to read and write contracts, deeds, and letters - greatly enhanced the establishment of business partnerships among traders, as treasures from the Cairo Geniza have shown. but one example, a letter was sent around 1040 by the Tunisian-Jewish trader Yahyā, son of Mūsā, to his former apprentice and current partner, living in Egypt:

You wrote about the loss of part of the copper—may God compensate me and you, then—about the blessed profit made from the antimony and, finally, about the lac and the odorous wood which you bought and loaded on Mi‘dād and ‘Abūr. (You mentioned) that the bale on Mi‘dād was unloaded afterward; I have no doubt that the other will also be unloaded. I hope, however, that there will be traffic on the Barqa route. Therefore, repack the bales into camel-loads— half their original size—and send them via Barqa. Perhaps I shall get a good price for them and acquire antimony with it this winter. For, dear brother, if the merchandise remains in Alexandria year after year, we shall make no profit.

Only small quantities of odorous wood are to be had here, and it is much in demand. Again, do not be remiss, but make an effort and send the goods on the Barqa route—may God inspire you and me and all Israel to do the right thing.

Of course there is more to the story, and The Chosen Few includes important data that addresses how the Jews became educated in the middle ages, and built vast trading networks across Europe and the Middle East. It is a fascinating read. Some two thousand years after his ruling that is recorded on today’s page of Talmud, Jews continue to benefit from the edict of Yehoshua ben Gamla.

“The four centuries spanning from the redaction of the Mishna circa 200 to the rise of Islam in the mid-seventh century witnessed the implementation of Joshua ben Gamla’s ruling and the establishment of a system of universal primary education centered on the synagogue. This sweeping change completely transformed Judaism into a religion centered on reading, studying and implementing the rules of the Torah and the Talmud. A Jewish farmer going on pilgrimage to and performing ritual sacrifices in the Temple in Jerusalem was the icon of Judaism until 70 CE. In the early seventh century, the emblem of world Jewry was a Jewish farmer reading and studying the Torah in a synagogue, and sending his sons to school or the synagogue to learn to do so.”

— Botticini M. and Eckstein Z. The Chosen Few. How Jewish Education Shaped Jewish History 70-1492. Princeton University Press 2012. p111.

Bava Basra 20a ~ A Baby Born After Eight Months

Getty Images

A Baby at the Window

In today’s page of Talmud we read a list of objects which, if placed in an opening between rooms, blocks the tumah (ritual impurity) from passing from one room into the next. Among that list is a baby born after only eight months of gestation:

בבא בתרא כ, א

 עשבין שתלשן והניחן בחלון או שעלו מאליהן בחלונות ומטלוניות שאין בהן שלש על שלש והאבר והבשר המדולדלין בבהמה ובחיה ועוף ששכן בחלון ועובד כוכבים שישב בחלון ובן שמנה המונח בחלון והמלח וכלי חרס וספר תורה כולם ממעטין בחלון 

Grass that was plucked and placed in an opening, or grass that grew by itself in an opening; scraps of fabric that are smaller than three by three fingerbreadths; a partially severed limb or a piece of flesh hanging from a domestic or a wild animal; a bird resting in an opening; an idol worshipper sitting in an opening; a baby born after only eight months of gestation lying in an opening; salt, earthenware vessels and a Torah scroll -all of these reduce the size of the opening and so prevent the tumah from passing through it.

The Talmud then questions this ruling about the premature child lying on a window between two rooms, one if which contains a source of tumah. Won't the mother of the baby carry the child away? How then can we suggest it will be a barrier to the tumah? The Talmud, as always, has a solution: the case is regarding a child born prematurely on Shabbat. Such a child is mukzteh, that is, it is in a category of objects that must not be moved on Shabbat: 

דתניא בן שמנה הרי הוא כאבן ואסור לטלטלו בשבת

For it was taught in a Braisa. A baby born at eight months of gestation is treated like a stone [on Shabbat, because it is muktzeh.]

The premature baby is given the status of a stone because it was not considered to be viable, and as a non-viable human being it does not contract ritual impurity. So that's why the premature baby is listed along with grass, idol worshippers, and the severed limbs of cattle as preventing the transmission of tumah. Got it?

When we studied Yevamot we came across another case which pivoted on the viability of babies born at seven vs. eight months of gestation. The question there was about proving the paternity of a child, and the discussion hinges on the belief that while a child born after seven months of gestation would be viable, a child born at eight months gestation would not be so.  Rashi noted the following: בר תמניא לא חיי -  "an eight month fetus cannot survive." And so now we can ask, where on earth does this notion come from? 

Seven vs Eight Months of gestation in antiquity

Homer's Iliad, written around the 8th century BCE,  records that a seven month fetus could survive. But it is not until Hippocrates (c. 460-370 BCE, or some 500 years before Shmuel), that we find a record of the belief that a fetus of eight months' gestation cannot survive, while a seventh month fetus (and certainly one of nine months gestation) can.  His Peri Eptamenou (On the Seventh Month Embryo) and Peri Oktamenou (On the Eight-Month Embryo) date from the end of the fifth century BCE, but this belief is viewed with skepticism by Aristotle.

In Egypt, and in some other places where the women are fruitful and are wont to bear and bring forth many children without difficulty, and where the children when born are capable of living even if they be born subject to deformity, in these places the eight-months' children live and are brought up, but in Greece it is only a few of them that survive while most perish. And this being the general experience, when such a child does happen to survive the mother is apt to think that it was not an eight months' child after all, but that she had conceived at an earlier period without being aware of it.

The belief that an eight month fetus cannot survive has a halakhic ramification: Maimonides ruled that if a boy was born prematurely in the eighth month of his gestation and the day of his circumcision (eight days after his birth) fell out on shabbat, the circumcision - which otherwise would indeed occur on Shabbat, is postponed until Sunday, the ninth day after his birth. 

רמב׳ם הל' מילה יד, א

מי שנולד בחדש השמיני לעבורו קודם שתגמר ברייתו שהוא כנפל מפני שאינו חי... אין דוחין השבת אלא נימולין באחד בשבת שהוא יום תשיעי שלהן

A child born after eight months of gestation before being fully formed is treated as a stillbirth because it will not live...and we do not set aside the laws of Shabbat [to circumcise him] but he is circumcised on Sunday, which is the ninth day of his life.

This medical “fact” persisted well into the early modern era. Here is a state–of–the–art medical text published in 1636 by John Sadler.  Read what he has to say on the reasons that an eight month fetus cannot survive (and note the name of the publisher at the bottom of the title page-surely somewhat of a rarity then): 

Saturn predominates in the eighth month of pregnancy, and since that planet is "cold and dry"," it destroys the nature of the childe". That, or some odd yearning of the child to be born in the seventh but not the eight month (according to Hippocrates) is the reason that a child born at seven and nine months' gestation may survive, but not one born at after only eight months. 

Evidence from Modern Medicine

Today we know that gestational length is of course critical, and that, all things being equal, the closer the gestational length is to full term, the greater the likelihood of survival. We can state with great certainty, that an infant born at 32 weeks or later (that's about eight months) is in fact more likely to survive than one born at 28 weeks (a seven month gestation.) In fact, a seven month fetus has a survival rate of 38-90% (depending on its birthweight), while an eight month fetus has a survival rate of 50-98%. Here is the data, taken from a British study.

Draper, ES, Manktelow B, Field DJ, James D. Prediction of survival for preterm births by weight and gestational age: retrospective population based study British Medical Journal 1999; 319:1093.

More recently, a study from the Technion in Haifa showed that even the last six weeks of pregnancy play a critical role in the development of the fetus. This study found a threefold increase in the infant death rate in those born between  34 and 37 weeks when compared full term babies.  

You can read more on the history of the eight month fetus in a 1988 paper by Rosemary Reiss and Avner Ash.  From what we have reviewed, the talmudic belief that a seven month fetus can survive but an eight month fetus cannot is one that was widely shared in the ancient world, and even in the early modern era.  But all the evidence we have today firmly demonstrates that it is simply not true.

Talmudology on the Parsha: The Fast of Friday, Parshat Chukkat

במדבר 19:1

זֹאת חֻקַּת הַתּוֹרָה אֲשֶׁר־צִוָּה יְהֹוָה לֵאמֹר דַּבֵּר  אֶל־בְּנֵי יִשְׂרָאֵל וְיִקְחוּ אֵלֶיךָ פָרָה אֲדֻמָּה תְּמִימָה אֲשֶׁר אֵין־בָּהּ מוּם אֲשֶׁר לֹא־עָלָה עָלֶיהָ עֹל׃

This is the ritual law that God has commanded: Instruct the Israelite people to bring you a red cow without blemish, in which there is no defect and on which no yoke has been laid.

The word חקת is normally translated as “ritual law” or “statute.” But the Aramiac translation of the Torah called Targum Onkelos (composed between about the years 80-120 CE) translated the work using a different word: גזירה, decree.

דָּא גְּזֵרַת אוֹרַיְתָא

This is a decree of the Torah

Over the lachrymose periods of Jewish history, a play on words connected this religious decree of the Torah with another: to burn it.

“On Monday, June 25, 1240 the first public trial against the Talmud and its most popular commentary, that by Rashi, was opened in the royal court in Paris in the presence of many church-dignitaries and noblemen. The Queen Mother Blanche who was in an advanced stage of pregnancy presided. The prosecutor was the convert Donin, the defendant-the Talmud, and its defenders four French Rabbis: Rabbi Yechiel of Paris, Judah ben David of Melun, Samuel ben Solomon of Chateau Thierry and Moses of Coucy.”

— Judah M. Rosenthal. The Talmud on Trial: The Disputation at Paris in the Year 1240. The Jewish Quarterly Review 1956. 47(1), 58–76.

The Burning of the Talmud in 1244, (or maybe 1242, or 1240)

In 1240 Rabbi Yechiel of Paris (the author of many tosafot, and the teacher of the Rabbi Meir of Rothenburg) was forced to defend the Talmud from accusations that togther with Rashi’s commentary, it contained derogatory remarks about Jesus of Nazareth (De blasphemiis humanitatis Xristi). Yechiel was arguing against Nicholas Donin, a Jew who had converted to Christianity, and who was supported by a team of former Jews. On Friday June 6, 1242 the final verdict was delivered. (As Solomon Grayzel noted many decades ago “the exact year of this event is variously given in the sources. The three years suggested are 1240, 1242, and 1244. Graetz after a long discussion of the subject comes to the conclusion that 1242 is the correct date.” So let’s go with that.) On Friday July 13, 1242, wagonloads of the handwritten Talmud were burned in Paris. That was the day before Parshat Chukat was read in shul.

The FAst of Friday, Parshat Chukkat

One contemporary was Rabbi Zedekiah ben Abraham Anaw, the author of the halakhic compendium called Shibbolei Haleket.

שבולי הלקט 263

ועל שאנו עסוקין בהלכות תענית ובענין שריפת התורה כתבנו זה לזכר על מה שאירע בימינו על רוב עונותינו אשר גרמו לנו ונשרפה תורת אלהינו בשנת חמשת אלפים וב' שנים לבריאת עולם ביום ששי פרשת וזאת חקת התורה כעשרים וארבעה קרונות מלאים ספרי תלמוד והלכות והגדות נשרפו בצרפת כאשר שמענו לשמע אוזן וגם מן הרבנים שהיו שם שמענו שעשו שאילת חלום לדעת אם גזירה היא מאת הבורא והשיבו להם ודא גזירת אוריתא ופירושו ביום ו' זאת חקת התורה היא הגזירה ומאותו היום ואילך קבעוהו היחידים עליהם להתענות בו בכל שנה ושנה ביום ששי של פרשת זאת חקת התורה ולא קבעוהו לימי החודש תהא אפרה עלינו לכפרה (כאשה) [כעולה] על מוקדה וערבה לבני יהודה כמנחתה הקריבה כהילכתה

…Let us remember what happened on account of our sins which caused God’s Torah to be burned in the year 5002, on the Friday of parshat Chukkat. Some twenty-four waggons full of copies of the Talmud and halakhic and aggadic works were burned in France…The rabbis who were there reported that they asked in a dream if this was indeed God’s decree (gezerah me’et haboreh). And one of the rabbis there answered “ודא גזירת אוריתא” - this is the decree of the Torah…

From then on the Jews would fast each and every Friday before the reading of parshat Chukkat. It was not fixed as a calendar date, [but the date is flexible, and depends on when Phukkat is read]

This fast is also recorded in by Rabbi Avraham Gombiner (c. 1635-1682) in his commentary on Shulkah Arukh called Magen Avraham:

מגן אברהם אורח חיים תקפ, ס’ק ט׳

כתב התניא ביום הששי פ' חקת נהגו יחידים להתענו' שבאותו היום נשרפו כ' קרונות מלאים ספרים בצרפת ולא קבעו אותו בימי החדש מפני שמתוך שאלת חלום נודע להם שיום הפרשה גורם גזיר' התורה זאת חקת התורה מתרגמי' דא גזירת אורייתא, וגם בשנת ת"ח נחרבו שני קהילו' גדולות באותו היום כמ"ש בסליחו' שחבר בעל השפתי כהן

We find it mentioned in the work Tanya Rabatia [an early anonymous Italian halakhic compendium] that on the Friday of Parshat Chukkat the Jews have a custom to fast, for on that day twenty cartloads of books were burned in France. The fast was not fixed to a certain date because it was made known through a dream that the day of the burning was to occur on “The day of the זאת חקת התורה which is translated [in Onkelos] as דא גזירת אורייתא - “this is the decree of the Torah”.

And in Turkey, the Jews had a custom to stay inside on the Friday of Parshat Chukkat:

חיים פלאגי, מועד לכל חי, סימן ט, ד

וכבאר היטב סימן תק״ם כתב וזה לשונו, כתב התניא כיום השישי פרשת חוקת נהגו היחידים להתענות שבאותו יום נשרפו עשרים קרונות מלאים טסרים כעדפת ולא קבעו אותו מפני החדש מפני שכתוך שאלת חלום נודע להם שיום הפרשה גורם גזירות התורה, זאת חוקת התודה מתדגמינן דא גזירת אורייתא, גם כשנת ת״ח נחרכו שתי קהילות כאותו יום, עכ״ל, ובעירנו אזמיר יע״א, נהירנא מכד הוינא טליא דהיו כמה אנשים סוחרים דהיו נזהרים שלא לצאת אפילו לשוק לעסקיהם כערב שבת חוקת, ומה שהיה להם לעשות כערב שכת היו עושים ומתקנים מיום חמישי, והן עוד היום רבים נזהרים שלא לילך מעיר לכפר כיום הזה, וה׳ שומר את עמו ישראל ובכל מקום ובכל זמן שלא תאונה שום רעה אמן כן יהי רצון

 …In our ciry of Izmir where the young would stroll, there were a number of merchants who were careful not to leave their homes, even to go to the market for business on the Friday of Parshat Chukkat. Whatever they needed to do they did on Thursday. And there were many others who did not leave the city for the villages on that day. My God guard his people Israel in all places and at all times, so that no evil will happen to them, Amen.

This Friday, another sort of fast. Or not

Several days after I finished a draft of this post, Agudath Israel of America issued a Kol Korei. Its rabbinc leadership “…call upon all holy congregations of Klal Yisroel to designate this Friday of the week of Parshas Chukas as a day of great and bitter outcry regarding this decree of the Torah.” And what might that decree be?

Now, we come to matters pertaining to our present time, as in this generation numerous troubles and severe decrees have arisen against the Am Hashem in general and specifically targeting the Torah and its scholars, and the young children learning Torah, both in Eretz Yisroel and in the Diaspora. Policy-makers, with malicious intent, aim to disrupt the sanctity of Torah scholars, requiring the students of our holy yeshivos to abandon their study benches in the beis medrash and enlist in the military. They scheme with various tricks, and their hand is still outstretched, poised to persist. Moreover, decrees are being issued against young children learning Torah, both in Eretz Yisroel and in the Diaspora. All of this is reminiscent of the decree of burning the Torah.

“All of this is reminiscent of the decree of burning the Torah”? In what universe is calling on all of Israel’s citizens to share the responsibility of defending the country “reminiscent of the decree of burning the Torah”? And just what decrees are “being issued against young children learning Torah, both in Eretz Yisroel and in the Diaspora.” Anyone?

The leadership of this organization (one of whose members believes that the polio vaccine is a hoax,) have reached a new low. In his book, the late Princeton philosopher Harry Frankfurt described those whose utterances are a greater enemy of the truth than liars are. Liars at least acknowledge that the truth matters. I have two copies of his book, so let me know if you’d like to borrow one.

Moetzes Gedolei HaTorah of America, Kol Korei released July 9, 2024.

Here’s an idea for Agudath Israel of America. Tomorrow, on Friday of Parshat Chukkat, gather together and pray for the victory of our soldiers, the safety of our people, and the release of the hostages. And then watch this clip of what is possible when those who care about studying Torah combine it with military service. Watch. And learn.