What Does It Mean to Say: The Categories of Work Are Torahitic?

Rabbinic law is definite about the hierarchy of categories of Jewish law. The basic, fundamental law is “de-oraita” (= “of the Torah,” or “Torahitic”). The extension or penumbra of the law is “de-rabbanan” (= “of the rabbis,” or “rabbinic”).

For example, the categories of work. There are 39 categories of work prohibited on Shabbat, according to Mishnah Shabbat 7:2. A core violation of any of these categories is counted as violating the “Torahitic” command. But each category of work has extensions, the violation of which counts as violating a “rabbinic” command.

For example, “shearing” to obtain wool from a sheep is a core category of work. Derivatives of these, such as cutting one’s hair or nails with scissors for cosmetic reasons, are still considered within the “Torahitic” zone of the prohibition. But doing the latter by hand is considered within the “rabbinic” addendum to this law.

(See Dayan Isidor Grunfeld, The Sabbath: A Guide to Its Understanding and Observance, for a detailed summary of the “Torahitic” and “rabbinic” parameters of each of the 39 categories. A more concise summary is available on several websites, such as http://www.webshas.org/shabbos/melachos.htm or http://www.ou.org/publications/kaplan/shabbat.)

Now, what is the source of these 39 categories? The Torah is very sketchy as to what is prohibited on Shabbat. Among the guidelines it gives are:

“In plowing-season and reaping-season you shall rest.” (Exodus 34:21)

“[On the previous day] that which you would cook, cook; and that which you would bake, bake…let no man go out from his place on the Sabbath day” (Exodus 16:23-29)

“You shall kindle no fire throughout your habitations on the Sabbath day.” (Exodus 35:3)

“They came upon a man gathering wood on the Sabbath day…” (Numbers 15:32-36)

“If you hold back your foot on the Sabbath, refrain from pursuing your affairs on My holy day—if you call the Sabbath ‘delight,’ the Lord’s holy day ‘honored,’ and if you honor it and go not your ways, nor look to your affairs, nor strike bargains…” (Isaiah 58:13)

“Take care not to carry burdens on the Sabbath day” (Jeremiah 17:21)

The 39 categories listed in Mishnah Shabbat 7:2 go far beyond these in specificity:

Sowing, plowing, reaping, binding sheaves, threshing, winnowing, selecting, grinding, sifting, kneading, baking.

Shearing wool, bleaching, hackling, dyeing, spinning, stretching, looping, weaving, separating, tying, untying, sewing, tearing [in order to sew].

Hunting (capturing) a deer, slaughtering, flaying, salting, curing, scraping, cutting it up, writing [two letters], erasing [in order to write].

Building, tearing down, extinguishing, kindling, striking with a hammer, carrying from one domain to another.

What is the source of these 39 categories? The Talmud gives two answers. The first is that the number of times the word melakhah occurs in the Torah is 39, though there is some discussion as to which passages needed to be included to come up to that number. The second is “corresponding to the labors in the Tabernacle.” What does this mean? The Jerusalem Talmud elaborates and says that the total occurrences of the words melakhah and avodah in the portion prescribing the building of the Tabernacle comes to 39. (JT Shabbat 9b; BT Shabbat 49b) Rashi says: “Those labors enumerated in Mishnah Shabbat were required for the Tabernacle, and the portion of Shabbat was written adjacent to the portion of the Tabernacle to draw this lesson.” But nowhere is there an extended argument of the rabbis, deriving the specific 39 categories of the Mishnah from the activities described in the Torah portion of the Tabernacle (Exodus Chapters 25 thru 40). In fact, some of the categories listed in the Mishnah are not mentioned in that Torah portion. Furthermore, the one rigorous demonstration of correspondence that we possess—in Israel Al-Nakawa’s Menorat Ha-Ma’or (14th century)—follows the simple procedure of counting up the occurrences of the words melakhah and avodah in the Tabernacle portion, which add up to 39, regardless of the contents of the passages in question. (Enelow, Menorat Ha-Maor, Bloch, 1931, Vol. 3, p. 603)

It would seem, then, that the sequence of development of these laws was as follows. First, the rabbis developed the specific list of categories (or, if you wish to believe, received the list by oral transmission from Moses through Joshua, etc.). They then sought Torahitic basis for this enumeration. The justifying arguments that they give are of a “paralogical” character, of the “wild-card” variety. The 39 mentions of melakhah and avodah are treated as so many wild-cards, to be played at the interpreter’s discretion: assign them to the corresponding number of work-categories, whatever they may be. This procedure puts the decision-making power squarely in the rabbis’ hands.

But if the specification of work-categories was developed by the rabbis, and is not found in the Torah, then how can one consistently maintain that transgressing one of them (for instance, cutting one’s hair or shaving, included in the category “shearing”—or even, for that matter, shearing wool off a sheep) is violating a Torahitic command? Would it not be more consistent, more “intellectually honest,” to say that one was violating a rabbinic command?

As paradoxical as it may seem, it is nevertheless entirely plausible to maintain that (1) the judgment that Action X is “work” was made by the rabbis, yet (2) “X is work” has the status of Torahitic law.

Consider: Reuben is trying to enjoy his Shabbat rest. His neighbor Simeon is fixing his house, as he has not found leisure to do so during his very busy work week. The sound of Simeon’s hammer is driving Reuben crazy. Reuben brings Simeon to Rabbi Yosi with a complaint: “Simeon is violating Shabbat.” Rabbi Yosi must now make a decision. The Torah declares: “The seventh day is a Sabbath to the Lord your God. You shall do no work.” What did the Torah mean by “work”? Does Simeon’s action fall under that intention? He performs an act of interpretation: “Work” as intended by the Torah includes striking with a hammer.

Rabbi Yosi has no escape. He must interpret the Torah’s vague term “work” either to include or to exclude “striking with a hammer.” But having made that interpretation, the action “striking with a hammer” is prohibited on Shabbat, not by an edict of Rabbi Yosi (which would make it clearly “derabbanan”) but by the Torah’s edict, as understood by Rabbi Yosi—and as henceforth understood by the community of Israel.

Over time, by hundreds of acts of interpretation by Hillel and Shammai and Rabbi Johanan and Rabbi Joshua and Rabbi Eliezer and Rabbi Akiba and Rabbi Tarfon and by hundreds of unnamed students, scholars, scribes, and authorities (and even by thousands of lay Jews), the vague terms such as “work” specified by the Torah took on specific meaning. The enumeration of 39 major categories of work in Mishnah Shabbat 7:2 was the summation of centuries of life-experience and interpretation of the meaning of Shabbat observance, compressed into one paragraph. It represents the content of the edict of the Torah, as understood by the Jewish people.

Consider the analogy of the Fourteenth Amendment to the United States Constitution:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

What is the content of this declaration? What does it permit and forbid?

As students of American constitutional law will attest, it has come to forbid such things as:

• Instituting “separate but equal” educational systems based on racial differences.
• Depriving mentally ill persons, who do not pose a danger to themselves or to others, of their freedom.
• Forbidding the use of contraceptives by married couples in the privacy of their bedrooms.
• Totally and absolutely disallowing a woman to abort her fetus.

The status of these applications is not that they are “federal statute law.” They are not simply the opinion of the Supreme Court of such-and-such a session. They possess, rather, the status of “constitutional law.” It is indeed constitutional law as interpreted by the Supreme Court, but it is constitutional law nonetheless—what the Constitution mandates, as officially interpreted by the Supreme Court. The “right of privacy” is nowhere written in the Constitution as such, but it is regarded as a constitutional right under American law, because of the history of the Supreme Court’s interpretation of the Constitution—notably, the Fourth and Fourteenth Amendments.

It is in the same sense that the 39 categories of work articulated in Mishnah Shabbat 7:2 have Torahitic status in Jewish law. The Torah’s term “work” had to mean something. The rabbis were empowered to interpret it. (By whom, let’s not ask here.) It is their interpretation that gives the Torah’s term “work” its traditional normative content.

Interpretations are not irreversible. As we saw, in Ketubot (3b-7a) the rabbis reversed themselves on the question whether consummating a marriage was permitted on Shabbat. Similarly, the Supreme Court in the early 20th century understood “due process” to forbid legislation restricting the freedom of contract between employers and employees—for instance, through labor laws forbidding contracts requiring workers to work over 60 hours per week. But in the 1930s the Supreme Court reversed its earlier understanding, declaring that such laws were in the interests of the public welfare and hence constitutional. The very substance of what was constitutional or unconstitutional under the “due process” clause of the 14th Amendment underwent change.

It is conceivable, therefore, that a future interpretation of “work” might modify or replace the interpretation of Mishnah Shabbat 7:2. Such a new interpretation would have a steep uphill road to climb, and a hard task gaining a foothold of acceptance. Practically the whole Jewish world is divided into three factions: (1) those who believe wholeheartedly that the traditional interpretation is God-given, and that to modify it, let alone revoke or replace it, would be blasphemy; (2) those who do believe that defining “work” in any formal, let alone legal or quasi-legal terms, is obsolete and counterproductive; and (3) those who do not observe Shabbat anyway, so for them the whole discussion is moot.

But if modern Jews—or even a small subset of them—are ever going to make Shabbat meaningful in their lives, they will have to take ownership of it and adapt it to their life-needs, which are different from the life-needs of Jews two millennia ago (although there is also a certain commonalty which is also of crucial importance). They will have to define what “work” and “rest” mean in the rhythm, and in the material circumstances, of their lives today.

Ahad Ha-Am, a modern Jewish secularist, said: “More than Israel has kept Shabbat, the Shabbat has kept Israel.” Though he did not believe that the Shabbat was divinely commanded, he believed in the enduring value of Shabbat, both individually for individual Jews, and collectively for the Jewish people.

What a renewed understanding of “work,” “rest,” and Shabbat might be for us today, I leave to some future blog posting.

Reflections on Ketubot (1): Nature of Oral Law

The Talmudic tractate Ketubot has been called “Shas Katan” (the “little Talmud”) by Talmud aficionados, because the range of subject-matter in it is so broad as to cover aspects of most topics of the Talmud itself. An exploration of Tractate Ketubot is therefore a good way for me to structure my own interaction with the Talmud for purpose of a philosophical inquiry on what is distinctive about the Talmud’s logic and discourse.

An excellent study of the topic of marriage in Talmudic law exists in the form of Judith Hauptman’s Rereading the Rabbis: A Woman’s Voice. I will be relying on the insights of this book, while using it as a starting-point for my own.

The tractate begins: “A virgin is married on Wednesday, and a widow on Thursday, for twice a week the courts are in session in the towns, on Monday and Thursday, so that if [the groom] should have a claim regarding her virginity, he would go early [the next morning] to court.”

Colleague Michael Pitkowsky has informed me that Joshua Kulp has recently completed a study on virginity claims in Talmudic times, epitomized in his HUCA article “Go Enjoy Your Acquisition: Virginity Claims in Rabbinic Literature Reexamined.” The upshot for our purposes is that in rabbinic times the whole issue of bringing virginity suits was declining and discouraged, but not totally dead, so that it was still able to influence such things as the customary day of the week to schedule a wedding, as announced in the opening to this tractate.

My chief focus for this comment, though, is in another direction. What was the “Oral Law”? We have here a striking instance of a central Mishnaic law that is of rabbinic (not Mosaic) origin, by universal consensus. The custom of having courts in session on Monday and Thursday is dated by the rabbis to Ezra’s time, and the day of the wedding is contingent on that.

A popular view of the “Oral Law” (fostered by Avot 1:1) is that it is a body of law, complementary to the written Torah, communicated by God to Moses and communicated by oral tradition from Moses to Joshua, to the elders, to the prophets, to the “Men of the Great Assembly” (in Second Temple times), thence to the rabbis, until it was finally codified by Rabbi Judah the Nasi in the 2nd century in the form of the Mishnah. The popular view assumes that it comprises the basic content of Mishnaic law, minus certain embellishments and rabbinic disagreements recorded in the Mishnah. Call this the “traditional view of the Oral Law.”

In contrast to this, we have the modern scholarly view, that the “Oral Law” was (in its entirety, or nearly so) developed by the rabbis, from Second Temple times through the first five centuries of the Common Era, producing the literary products of the Mishnah and the Palestinian and Babylonian Talmuds.

Both views are reflected in Maimonides’ Introduction to his Commentary on the Misnhah. In one passage, he describes vividly how Moses would receive a law directly from God, transmit it to Aaron, then to Aaron and his sons, then to the seventy elders, then to the entire people. But in another passage, Maimonides dismisses the view (reflected in Talmud Yevamot) that the divergence of rabbinic opinion is due to the distortion of memory in transmission (the “telephone” game). Rather, different rabbis had different “sevarot” (rational considerations based on common experience) for judging that the law should be X rather than Y, or the reverse. So at least in those matters recording different opinions of rabbis, the substance of the disagreement was over matters rabbinic in origin.

Still, even for those of us who tend to hold the modern scholarly view, the question may rightly be asked: What did the rabbis have in mind by the “Oral Law” of Mosaic origin, according to the traditional view? What was included in it, by a conservative estimate?

It is clear, from our example here, that even on a conservative estimate, the “Mosaic Oral Law” could not have comprised all topics of the Mishnah. As Judith Hauptman reminds us in her book, the very ketubah itself was a rabbinic innovation, according to the rabbis themselves. Naturally, then, the tractate concerning “Ketubot” must have been on a topic itself rabbinic in origin. No surprise, therefore, that Ketubot begins with another law – the day of the wedding – that also (according to Rashi, who was no flaming modern scholar) was instituted by the rabbis!

There is a rabbinic recognition that the time-honored ancient stratum of law was a variable factor. Mishnah Chagigah 1:8 tells us: “The laws of release from vows hover in the air—they have nothing to support them. The laws about Shabbat, Chagigah, and sacrilege are as mountains hanging by a hair—little text, but many laws. The rules about civil law, the Temple service, purities and impurities, and forbidden liaisons have ample support; they are the essentials of Torah.”

The essentials of Jewish practice today – Shabbat, holidays, prayer, kashrut – contain many regulations, some of them (such as Shabbat and holiday) having much detail based on cursory statements in the Torah, others (such as prayer) absent in the Torah altogether. Clearly, most of Judaism falls into the category of the “Oral Law.”

But could that Oral Law be Mosaic in origin?

The continuation of the discussion in Ketubot links to the topic of Shabbat in an amusing way.

The question is raised: What about consummating the marriage on Friday night? To those familiar with the holy-erotic significance of Friday night in later Judaism, influenced by the kabbalah, this question should have an obvious answer: Of course! And in early-modern Ashkenazic Jewry, weddings on Friday were common. (One of Moses Isserles’s famous responsa stems from such a case, when the bargaining between the families forced postponement of the wedding ceremony until after sundown, causing a minor scandal. Isserles himself performed the wedding, and defended his action in his responsum.)

Why not consummate the marriage on Friday night? Because breaking the bride’s hymen would be inflicting a wound, a possible violation of Shabbat, under the category of “derivatives of shehitah [slaughter].” (A Baraita cited on page 3b indicates that in some localities it was actually the custom to separate the bride and groom in such a case.) But the counter-argument says: A melakhah she-eino mitkavvein – a work-action that is a secondary, unintended byproduct of one’s primary action – is not forbidden on Shabbat.

So we ask: Is the principle of melakhah she-eino mitkavvein (the secondary, unintended byproduct) of Mosaic origin? The very principle is the subject of dispute between Rabbi Judah (who prohibits it) and Rabbi Simeon (who permits it). Rabbi Judah (not the Nasi) and Rabbi Simeon were of the generation after Rabbi Akiba, in the middle of the second century. By all evidence, this point of law was not even theoretically raised prior to then. And it would fall under Maimonides’ principle, that issues debated by the rabbis on the basis of sevara were themselves of rabbinic origin.

But what of the 39 “principal categories of work” themselves – were they of Mosaic origin, or of rabbinic origin? And is it possible to maintain that even though the articulation of the 39 categories was rabbinic, they can still be regarded as de-oraita (of Torahitic status) for purpose of determining the law? To these issues we will turn in our next posting.