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.