What’s Divine about Divine Law?

CHAPTER 6

In this chapter we continue to explore the rabbinic conception of Mosaic Law in an attempt to discern the extent to which and the manner in which that conception may have been informed by Greco-Roman discourses of natural law and positive law. Because the primary discourses of natural law in the Greco-Roman tradition underscore the rational character of the law, we take up the question of the rationality of the Mosaic Law as represented by the rabbis.

First we must understand what classical writers and philosophers mean when they state that the natural law is rational. The classical discourses described in chapter 2 understand the natural law to be rational in two ways. First and foremost, it is intrinsically and essentially rational in its substance, meaning that it is not arbitrary and contains no contradiction or absurdity, no illogical or paradoxical claims. Second, natural law is rational in the sense that it serves a rational purpose determined by its specific content; it has an intrinsic rationale and conduces to a specific rational good.

In chapter 3 we examined texts that made both of these claims on behalf of the Mosaic Law. The authors of the Letter of Aristeas and 4 Maccabees claimed that even the seemingly arbitrary dietary and purity laws have a clear rationale—their purpose is to inculcate ethical behavior or to subjugate the passions to reason. Moreover, they asserted (not entirely convincingly) that the laws are in their substance rational.¹ Philo went even further in identifying the Mosaic Law with the natural law and asserting that it is rational in both senses: it is rational in its substance, as revealed by allegorical interpretation, and its provisions serve rational ends. The laws have rationales that are intrinsic, or connected to their substance.

In classical thought there are two additional features that follow from the natural law’s rational character. First, since natural law is constituted by or conforms to reason, it follows that it is rationally accessible. Second, its authority lies in its rational character rather than an external mechanism of enforcement. Philo relied on the principle of the Law’s rational accessibility in explaining how the patriarchs were able to observe the Law before its revelation at Sinai, and there is good reason to suppose that for Philo, the Law’s rational perfection is an inseparable element of its authority.

Is the rabbinic conception of the divine law of biblical tradition informed by these ideas? In this chapter, we examine rabbinic sources that shed light on a constellation of questions that address the matter of the Law’s essential rationality: Is the Law depicted as rational in the sense that it is not arbitrary and contains no contradiction or absurdity, no illogical or paradoxical claim, or does it defy logic and natural reason? Is it depicted as possessing intrinsic rationales (purposes connected to its specific content) or only an extrinsic utility of some kind? Is the Mosaic Law represented as rationally accessible or inaccessible? And does it derive its authority from its rational character (consistent with an autonomous ethic) or from a coercive sovereign will (consistent with a heteronomous ethic)?

The following tannaitic text, commenting on Leviticus 18:4, “[Y]ou shall observe my judgments (mishpatim) and keep my laws (ḥuqqim) to follow them; I am Yahweh your god,” can serve as an entrée into the subject of the rationality of the Mosaic Law:

“[Y]ou shall observe my judgments (mishpatim)”—these are matters written in the Torah which—had they not been written—it would be logical (= din) to write, such as robbery, sexual violations, idolatry, blasphemy and bloodshed. If they had not been written [in the Torah] it would be logical (= din) to write them. And those [i.e., the ḥuqqim] are the ones which the evil impulse and the idolatrous nations of the world, object to, such as the prohibition against eating pork and against wearing mixed seeds, and the sandal-removal ritual [to annul a levirate bond], the purification rite for scale-disease, the scape-goat ritual. The evil impulse and the idolatrous nations of the world object to them. Scripture says, “I am Yahweh” meaning, you are not permitted to object to my statutes (huqqotai). (Sifra Aḥare Mot 9:13, Weiss ed., 86a)²

The text distinguishes between mishpatim and ḥuqqim—the former are understood to be laws one would logically expect to be included in Scripture, and the latter are not.³ The clear inference is that logic would not dictate the inclusion of the latter precisely because these laws are arbitrary or illogical. The text goes on to indicate that the arbitrary or illogical nature of these laws makes them objectionable in the eyes of some. But even as it asserts that arbitrary or illogical laws inspire objection and resistance, the text marginalizes that resistance by attributing it to idolaters and evil persons. The resulting text is oddly conflicted. On the one hand, the rabbinic author acknowledges that some divine laws are so arbitrary and illogical that no one would expect them to be a part of the divine Law. On the other hand, the rabbinic author takes pains to inform us that only an idolatrous or evil person—a person who does not accept the authority of the divine legislator—would actually object to these arbitrary and illogical laws. In short, the author recognizes the existence of irrational laws, but he distances himself from the critique of them—that is left to idolatrous and evil “others.”⁴

In the previous chapter we noted that the strategy of displacement enabled rabbinic authors to voice and thus grapple with their own ambivalence and radical doubt about a nominalist understanding of divine law. Similarly, the strategy of displacement identified in this passage, and additional passages to be discussed below, will enable the rabbis to voice and grapple with the problematic assertion that divine law contains irrational elements.

Rabbinic literature contains four different responses to the assertion of irrationality in the law. The first response concedes the premise that there are irrational laws in the divine law and argues that this irrationality is not a liability but an asset, not a vice but a virtue. The second response disowns the premise by attributing it to rebellious heretics. The third response denies the premise—the Law is not irrational, though the reasons are not always accessible to us. The fourth response splits the difference—whether one describes the Law as rational or not depends on audience.

We begin by examining texts in which the arbitrary and irrational character of the divine law is asserted, before turning to the four rabbinic responses to this assertion.

MAKING THE CASE FOR THE LAW’S IRRATIONALITY

What does Sifra Aḥare Mot 9:13 have to say about the rationality or irrationality of the Law? David Novak (1998, 73) refers to this text as a “seminal text” and as an authentic source for the medieval distinction, developed first in the writings of Saadiah Gaon, between rational commandments and revealed commandments. According to Novak, the rational character of some of the Torah’s commandments is so important that the point is repeated for emphasis. While Novak concedes that the text goes on to point out that not all of the commandments are rational, he believes that the ethical character of several of the mishpatim supports the idea that these mishpatim constitute a Jewish version of natural law (ibid., 74).

While the passage may have served as a resource for the development of a natural law view in post-talmudic Judaism, it hardly attests to such a view in its original context. First, nothing can be inferred from that fact that the logical nature of the mishpatim is repeated, given that the objectionable or illogical character of the ḥuqqim is also repeated in the immediately following lines. Second, the larger context of the text emphasizes the extent to which the Mosaic Law is unambiguously depicted as the arbitrary decree of a sovereign divine will. When viewed within that larger context, the notification that some laws are logical takes on a different cast and can hardly be construed as the source for a robust natural law view.

The passage as a whole is presented below. More salient sections are translated in full, while less salient sections are summarized in square brackets.

A. “Yahweh spoke to Moses saying, Speak to the Israelite people and say to them, ‘I am Yahweh your god’” (Lev 18:1) …

[This verse is understood as signaling Yahweh’s exclusive relationship with Israel—by accepting Yahweh as their god the Israelites “accepted his sovereignty” and by extension they accepted his decrees (gezerot) and not those of any other god or people.]

They accepted my decrees: “You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws” (Lev 18:3).

B. Rabbi Yishmael says: The sexual prohibitions are grave since scripture prefaces and concludes these laws with the explicit name of Yahweh …

Rabbi says: It was manifest before the one who spoke and the world came into being that they [Israel] would object to the sexual prohibitions. Therefore they were imposed as a decree, with “I am Yahweh your god” meaning, ‘Know who is making this decree over you.’ And so we find that they objected to the sexual prohibitions as it is said, “Moses heard the people weeping, every clan apart, each person at the entrance of his tent” (Num 11:10) …

[The practices of the land of Egypt and the land of Canaan are said to be the most corrupt of all peoples and include idolatry, fornication, murder, pederasty, and bestiality.]

C. “nor shall you follow their laws” (Lev 18:3).

And what did Scripture leave unstated [since it already details many practices that should not be followed]? …

It is that you should not follow their customs (nimusot) in matters that are established by law (devarim haḥaquqin) for them, for example, going to their theaters, circuses and game fields.

R. Meir says: These are forbidden as being among “the ways of the Amorites” which the sages have detailed.

R. Judah ben Betera says: it means that you should not dress extravagantly (?)⁵ and not grow your (hair) fringe or cut the hair kome-style.

D. And lest you say, ‘for them they are laws (ḥuqqim) but for us they are not laws’ Scripture says, “you shall observe my judgments (mishpatim) and keep my laws (ḥuqqim).’

But still, the evil impulse can hope to quibble and say, ‘Theirs are nicer than ours.’ So Scripture says, “You shall keep and do it, for it is your wisdom and your understanding” (Deut 4:6).

E. “you shall observe my judgments (mishpatim)”—these are matters written in the Torah which—had they not been written—it would be logical to write, such as robbery, sexual violations, idolatry, blasphemy and bloodshed. If they had not been written [in the Torah] it would be logical to write them. And those [i.e., the ḥuqqim] are the ones which the evil impulse and the idolatrous nations of the world object to, such as the probation against eating pork and against wearing mixed seeds, and the sandal-removal ritual [to annul a levirate bond], the purification rite for scale-disease, the scape-goat ritual. The evil impulse and the idolatrous nations of the world object to them. Scripture says, “I am Yahweh” meaning, you are not permitted to object to my statutes (ḥuqqotai).

F. “to follow them” (Lev 18:4)—treat them as the principal thing and not as secondary.

“to follow them” (Lev 18:4)—you should deal only with them. You should never mix them with other matters in the world. Lest you say, ‘I have learned the wisdom of Israel; I will learn the wisdom of the nations of the world’ Scripture says, “to follow them”—you are not free to quit yourself of them …

G. “[you shall keep my laws and my judgments] by which, in doing them, [a man shall live.]” R. Yirmiah used to say: you say ‘how do we know that even a Gentile who does the Torah is considered like a high priest?’ Scripture says, ‘by which, in doing them, [a man shall live …]’”

The passage as a whole emphasizes God’s sovereignty over Israel to the exclusion of all other sovereigns, divine or human (A). This sovereignty is manifest in the decrees that God imposes upon Israel alone and which Israel must follow to the exclusion of all foreign laws (A), customs (C), and “wisdom” (F). And yet, simmering below this utter rejection of the ways of foreigners is an anxious awareness that God’s decrees are not always appealing or easy to follow. Section B makes the remarkable claim that the sexual prohibitions revealed at Sinai caused Israel great distress. Knowing that the Israelites would object to these prohibitions, God formulated and imposed them as unequivocal decrees backed by coercive power. Section D gives voice to the perceived attractiveness of foreign ways that can undermine observance of God’s laws, by asking: What is the harm in observing some of these customs if technically they are not law for us? And aren’t these foreign ways nicer than so many of Israel’s own laws? The first query is answered by the biblical insistence that Israel is to follow the judgments and laws of Yahweh only. The second is answered by the biblical insistence that the Mosaic Law is Israel’s wisdom and understanding—in other words, it has attractions of its own.

The passage that is the focus of our discussion, section E (cited at the opening of this chapter), follows immediately upon the assertion that Israel’s laws are wise, even though foreign laws may appear to be “nicer,” and is followed immediately by section F’s emphatic threefold demand: the Mosaic Law must be considered primary; the Law must not be mixed with other worldly matters; and one must be satisfied with the wisdom of Israel only, abstaining from the wisdom of other nations. This designation of wisdom as particular to various peoples (the wisdom of Israel vs. the wisdom of the nations) makes it crystal clear that we are not dealing here with a universal cosmopolitan wisdom or reason, but with the specific achievements of individual cultures. Sandwiched between these two sections, section E may be understood to say that God’s decrees are not entirely bereft of wisdom, that is, some of them are logical and arouse no objection. On the other hand, some of them are illogical and likely to arouse protest. Since the Law as a whole is not essentially rational, it must be formulated and imposed as a coercive decree in order to signal that no objection will be tolerated.

In short, when the passage says that the inclusion of some commandments is logical, it simply means that those commandments do not give rise to complaints and objections. This, of course, would be true of many positive human laws also. The statement in its context does not point to a universal rationally derived human ethic. It does point to the tendency of human beings to object to requirements that do not strike them as logical! Despite this nod to the reasonable nature of some of the laws, the clear and overarching theme of the larger context is that much of the Mosaic Law is nonrational divine fiat that defies logic or runs contrary to human nature, a fact that inspires protest and necessitated the promulgation of the entire Law in the form of an absolute decree backed by a coercive and sovereign divine will.

Reversing the anxiety expressed in sections D and F, that an Israelite may be drawn to the “nicer “laws of other nations (D), may value other laws, or may desire to acquire the wisdom of other nations (F), section G imagines a Gentile being drawn to the study of Torah, the wisdom of Israel. Such a person is praised by being compared to the high priest. This is the argument that has unfolded to this point: despite the difficult, coercive, and illogical nature of God’s decrees, the utter distinctness of Israel’s wisdom (which must not be mixed with the wisdom of the nations), and the evident appeal of foreign laws (D) and foreign wisdom (F), Israel’s Torah is nevertheless capable of attracting Gentile observance. The author of this text is reassured of the value of his tradition by imagining its validation—in all its irrationality!—in the admiring gaze of an outsider or “other.”

Far from articulating a universal rational ethic that connects Israel and the nations in a common humanity, this passage as a whole emphasizes the radical discontinuity between Israel’s laws and the laws of the nations. The only time in which Israelite and Gentile find common ground is when the Gentile abandons his wisdom for the particular and at times irrational wisdom of Torah. Despite its final peroration representing the Torah as attractive to outsiders, the passage is rife with tensions so that doubts about “Israel’s wisdom” surface repeatedly. Do Israel’s laws inspire complaint and objection? Are Israel’s laws truly “nice” (appealing), wise, logical? The rabbinic authors distance themselves from the doubts by attributing them to pre-Sinai Israelites, to idolaters, or to the evil impulse. The displacement of the rabbinic voice allows the rabbinic authors to express criticisms that they cannot safely claim as their own.⁶

The characterization of Mosaic Law as a coercively imposed divine decree, containing commandments that either run counter to the natural tendencies of humans or are so illogical as to inspire protest, is not confined to Sifra Aḥare Mot 9:13. The following tannaitic text equates Israel to a slave who must obey the orders of his master without question or complaint.

“I am Yahweh your god who brought you out of the land of Egypt to be your god” (Num 15:41).

Another interpretation: why mention the exodus from Egypt in connection with the detailing of each commandment?

To what can the matter be compared? To a king whose friend’s son was taken captive. When he redeemed him he redeemed him not as a free man but as a slave so that if the king should make a decree and he did not accept it, the king could say, “you are my slave!”

When they came to a province, he said to him, “put my sandal on my foot, carry my garments and bring them to the bathhouse.” The [friend’s] son began to object. The king took out his redemption document and said to him, “you are my slave.”

God’s redemption of the Israelites from Egypt is analogized here to the “purchase” of a slave that confers upon the master full rights over the slave. It is by virtue of his acquisition of Israel as a slave, and precisely not a son, that God is entitled to issue decrees of any kind and Israel is not entitled to object or disobey. This text inverts the valence of the slave-free opposition in G-R 5(iv) and in Paul’s letters (Rom 6:6–14, 7:16), as well as Paul’s opposition of slave and son (Gal 4:4–7). While Paul valorizes the free son over the slave, Sifre Num Shelah 115, reflecting biblical discourses in which the ideal human type is the obedient servant (biblical discourse 1(v)), valorizes the slave over the son because of his unquestioning acceptance of his master’s decrees.

The exemplary list of decrees in Sifre Num Shelah that must be obeyed without objection includes the sexual prohibitions, presumably because these run counter to natural impulses, as in the Sifra passage cited above. The list also includes ritual laws (wearing fringes on one’s garments) and tefillin (prayer phylacteries), presumably because these appear arbitrary and illogical. Sabbath observance is also listed, suggesting that it too arouses protest, either because it is illogical or because it runs counter to the natural impulses of human beings. All of these laws are experienced as arbitrary decrees forcibly imposed against reason and nature, like the demands a master places upon a slave. And yet there is no indication in this tannaitic text that the characterization of the divine law as a decree imposed upon slaves is a denigration of the Law.

RESPONSE 1: CONCEDING AND TRANSVALUING THE PREMISE

The rabbinic passages cited above affirm the characterization of the divine law as containing illogical decrees that run counter to reason and human nature. In Sifra Aḥare Mot, this characterization of the Law is marginalized by being attributed to pre-Sinai Israelites, idolaters, and the evil impulse; nevertheless, the text as a whole concedes the premise of these marginal characters—the Law is divine fiat containing provisions that defy reason and human nature. Why does this rabbinic author accept this characterization of the Law? Why is it not viewed as inconsistent with the Law’s claim to divinity—a criticism that must be deflected or corrected—as it would be in Greco-Roman divine law discourse?

The path toward an answer begins with a tannaitic text that comments on Leviticus 20:26:

“You shall be holy to me, for I Yahweh am holy” (Lev 20:26)—just as I am holy, so you be holy; just as I am separate, so you be separate.

“and I have separated you from the peoples that you should be mine” (Lev 20:26)—if you are separated from the nations you are mine, and if not then you belong to Nebuchadnezzar and his ilk.

R. Elazar b. Azariah says: How do we know that a person should not say, “I do not want to wear mixed fibers, I do not want to eat pork, I do not want to commit an incestuous sexual act” but rather “I do want [these things] but what can I do? For my father in heaven has imposed his decree on me.”

Thus, Scripture says, “and I have separated you from the peoples that you should be mine.” He will be separated from sin and will accept the kingdom of heaven upon himself. (Sifra Qedoshim 10:21–22)

The position outlined by R. Elazar—that there is virtue in suppressing one’s natural desires in order to follow the divine law—stands at a great remove from Greco-Roman discourses of natural law. A primary discourse of Greco-Roman natural law (G-R 1) assumes the alliance of law and nature according to which the divine norms that govern human behavior are understood to be in line with human nature when that nature is uncorrupted and fully rational. Indeed, it is nonsensical to speak of the divine natural law as standing in opposition to human nature. But R. Elazar b. Azariah imagines an opposition—or, more precisely, a manufactured opposition—between human nature and the divine law: it is a virtue to desire the very things that the divine law prohibits because in this way one defines oneself as belonging to God rather than to the nations of the world. One should not state that one’s desires run with the Law, but rather against it, so that the choice of the Law is a meaningful and conscious mark of identity.

Since natural law cannot stand in opposition to human nature, R. Elazar’s statement about the divine Law would appear to have more in common with Greco-Roman discourses of human conventional law that can stand in opposition to human nature. However, there are important differences between the Greco-Roman discourses that view human law as antithetical to human nature (G-R 5) and R. Elazar’s statement. For the Cynics (G-R 5(iv)), who idealized the untrammeled state of nature, positive law was oppressive in its opposition to human nature and should be overthrown. For the Protagoras (G-R 5(ii)) and other texts (G-R 5(iii)),⁷ positive law provided a valued rescue from the violent and brutish state of nature, but on its own could not bring full virtue.

R. Elazar b. Azariah’s position differs from both of these views, most obviously because the latter are speaking of human law while R. Elazar b. Azariah is speaking of divine law. More specifically, however, in contrast to the Cynics, R. Elazar b. Azariah deems the opposition between the Law and human nature to be a positive opportunity rather than an oppressive violation of liberty. The rabbinic view is closer to that of the Protagoras and other texts according to which the law “rescues” us from our negative natural desires, but here again, there are differences. Where Protagoras understands the state of nature to be essentially violent and brutish and requiring the remedy of law, R. Elazar b. Azariah’s depiction of human nature is neutral. According to R. Elazar b. Azariah, it is entirely possible that a person’s nature will align with the requirements of the Law (a person may by nature not wish to eat pork); but there is greater virtue in observing the Law when it goes against one’s nature, and one should almost intentionally “create” the will to engage in the acts prohibited by the Law. This turns observance of the prohibition into a meaningful and conscious choice to “belong to” God.

The implicit moral of R. Elazar b. Azariah’s teaching is that there is value in struggling to fulfill the Law, value in overcoming one’s nature in order to obey the divine decrees of the god of Israel. In Greco-Roman discourse, it is only positive law that humans struggle against their nature to obey, not divine natural law, since natural law is by definition aligned with human nature. As we saw in the previous chapter, traits attributed to positive law in Greco-Roman discourse are transferred in rabbinic discourse to the divine law, with no indication that this impugns the divine law’s reputation (contra Paul).

For R. Elazar, one becomes a member of God’s people by observing the Law. The more difficult that choice is, the more meaningful it is. Explicit in the following mishnah is the idea that greater significance or virtue attaches to obedience to laws against which one chafes than to obedience to laws in line with one’s natural impulses:

R. Shimon b. Rabbi says: … If in the case of blood, for which a person’s soul has a loathing, one who refrains from it receives a reward, how much the more so in regard to robbery and incest, for which a person’s soul has a craving and a longing, shall one who refrains from it acquire merit for himself and for generations and generations to come, to the end of all generations! (m. Mak 3:18(15))

Commenting on Deuteronomy 12:23–28, which promises a reward for those who abstain from eating blood, R. Shimeon b. Rabbi makes an a fortiori argument: if God rewards us for what is easy (i.e., in line with our natural impulses), how much more will he reward us for what is difficult (i.e., contrary to our natural impulses and desires). The idea that the divine law could run counter to human nature, and that the tension between the Law and human nature is a spur to virtue, runs counter to Greco-Roman conceptions of natural law. And although the opposition of law and human nature echoes some aspects of Greco-Roman discourses of positive law, the latter do not see positive law as capable of conducing to full virtue. Paul adopts these positive law discourses in his condemnation of the Law. He depicts the opposition of the Law and the natural impulses of the flesh as a setup for inevitable failure and the reason for the Law’s inability to bring virtue (Rom 7:14, 18, 22–24). By contrast, R. Shimon b. Rabbi depicts the opposition of law and nature as creating the conditions for the cultivation of a level of virtue that will bring the greatest possible reward—a portrait that defies both Greco-Roman discourses of natural and positive law and the Pauline application of those discourses to the Mosaic Law.

Given the tannaitic valorization of illogical laws or laws that run counter to human nature as opportunities to express unquestioning obedience to God, the designation of a handful of laws as “logical” in Sifra Aḥare Mot 9:13 cannot be construed as a compliment without further ado. These, it turns out, are the easy laws, the unremarkable laws, the laws that one would logically expect to find in any law code. They offer little to those who wish to demonstrate their obedience and loyalty to the divine sovereign, and they do not serve to mark the nation as distinctively wise or holy. Thus, the attention this passage has garnered from contemporary scholars seeking evidence of a rabbinic natural law theory or common human ethic bespeaks a failure to appreciate the constellation of ideas within which the passage is embedded. That larger context assigns little value to the rational laws and great value to the irrational laws—it is the latter that constitute the specific wisdom of Israel and distinguish her from the nations. Virtue attaches to and arises from the performance of commandments, particularly the commandments that are difficult to accept because they are illogical, arbitrary, and counter to one’s natural desires.

The idea that the commandments provide opportunities to increase virtue may be seen as an inversion of Paul’s condemnation of the Law as increasing sin (Rom 5:20). Indeed, Devorah Steinmetz (2008, 94–96) sees the following tannaitic text as a direct rejection of the Pauline association of law and sin:

R. Ḥananiah b. Aqashia says: The holy one, blessed be he, wanted to make Israel righteous (lezakkot et Yisrael), therefore he gave them Torah and commandments, as it is said “Yahweh was pleased for his righteousness’s s sake to make the Law great and glorious” (Isa 42:21).⁸

As Steinmetz persuasively demonstrates, Paul argues that the Law given to Israel brings death and increases sin, while R. Ḥanania b. Aqashia makes the opposite claim: God multiplied Torah and mitzvot because he wanted to give merit to Israel by providing more opportunities for righteousness (justification). Paul insists that justification comes only through faith, and not law, because sinful urges prevent one from fulfilling the entire Law perfectly. By contrast, this mishnah and its larger context insist that sinful urges increase the value of obedience, and even partial (not perfect) obedience grants life. Because God wanted to justify Israel (move Israel toward righteousness), he gave a multitude of laws as opportunities for the obedience that brings life and justification. The sugya attached to this mishnah lists the number of commandments: 365 negative commandments, corresponding to the days of the year, and 248 positive commandments, corresponding to the limbs of the human body, for a total of 613. These correspondences to the days of the year and the limbs of the body suggest that the commandments permeate all of time and embodied experience. The invocation of the body’s limbs may be contrasted to Paul’s lament that there is “a different law in my members captivating me by the law of sin which is in my members” (Rom 7:23; Steinmetz 2008, 96). For the rabbis, it is not a different law but the very Law of God that permeates the body, captivates the obedient person, and provides endless opportunities—every day and with every action—for obedience and righteousness.

I noted above that classical sources understand the natural law to be rational in two ways. First, it is intrinsically and essentially rational in the sense that its substance is not arbitrary or illogical. Second, it has a rational purpose. The rabbinic texts examined thus far do not depict the Mosaic Law as intrinsically and essentially rational in the first sense. On the contrary, they openly admit that the Law has arbitrary and illogical elements. However, we have now seen that the rabbis identify a rationale for the promulgation of even these arbitrary and illogical laws: they provide opportunities to increase virtue. If so, then the Law may be rational in at least the second sense of having a rational purpose. Is that in fact the case?

Texts that identify the Law’s rationale as the refinement of Israel shed light on this question. While some Greco-Roman discourses (G-R 3 and G-R 5(iii)) despair of the power of prescriptive law to bring virtue, and Paul (in his more charitable moments) credits the Mosaic Law with no more than holding or imprisoning Israel until righteousness is available through faith (Gal 3 and 4), some rabbinic sources depict the Law as a positive force that cultivates character. The Mosaic Law doesn’t merely “hold” Israel until such time as she will be perfected and saved by faith; the Law itself, in all its minute detail, conduces to virtue:

It is written, “The way of Elohim is perfect; the word of Yahweh is pure [= refined], he is a shield to all who take refuge in him” (2 Sam 22:31). If his way is perfect, how much the more is he himself perfect! Rav said: the commandments were given only that humans should be refined by them. For what difference does it make to the holy one, blessed be he, whether one slaughters an animal by the throat or by the nape of the neck?! Hence, the commandments were given only that humans should be refined by them. (Gen Rab 44:1, Theodor-Albeck ed., 424–25)

According to the third-century amora Rav, the commandments were given to refine humanity; the Law has a rationale. It is significant, however, that the specific commandment singled out to illustrate this assertion is not one of the basic ethical commandments such as the prohibition of bloodshed or adultery, but a detail from the laws of kashrut stipulating the manner in which an animal is to be slaughtered.⁹ The commandment is chosen precisely because of its arbitrary nature, as signaled by the phrase “what difference does it make to the divine being whether one slaughters an animal by the throat or by the nape of the neck?!” If the commandment itself is devoid of meaningful content, then it cannot be the substance of the commandment that refines the human. Rather, it is the very act of performing the commandment in obedience to God’s will that refines the human actor. In other words, while the law is said to have a general rationale (refinement of Israel), that rationale is not instrinsic. It does not flow from the specific substance and content of the law; it is a purely extrinsic utility. This is quite different from the Greco-Roman conception of divine law’s rationality (as well as that of Philo), according to which the Law’s intrinsic substance promotes human rational perfection and, as a consequence, human virtue. But in Gen Rab 44:1 it is precisely the irrational laws that promote human perfection and virtue, not because of their substance (throat or nape of the neck—it is a matter of indifference!) but simply because of the opportunity they provide for obedience. Indeed, it is precisely because these prescriptive divine commands lack intrinsic reason and intrinsic utility that they generate an obedience that refines humans and conduces to virtue.

The difference between the two views turns on their very different notions of human virtue. The Greco-Roman discourse of law and virtue (G-R 3) understands true virtue to arise from rational perfection nourished by rational laws; the rabbinic text cited here understands virtue to arise from obedience best instilled by and manifested in the observance of irrational laws. This view is likely what animates R. Yasa, a Palestinian amora, when he goes out of his way to convert a nonarbitrary law into an arbitrary and illogical fiat. This occurs in p. San 8:1, 26a, in connection with the law of the stubborn and rebellious son (Deut 21:18–21).

R. Yasa said: All these rules are irrational (la mistabrin), for the opposite should be the case! It was taught: you can know that that is the case [i.e., that it is against reason] for by logic whom should be declared liable, a son or a daughter? You would have to say the daughter, and yet Torah has declared the daughter to be exempt and the son to be liable.

By logic whom should be declared liable, the minor or the adult? You would have to say that is it is the adult, and yet the Torah has declared the adult to be exempt and the minor to be liable.

By logic whom should be declared liable, he who steals from others, or he who steals from his father and mother? You would have to say that it is he who steals from others, and yet the Torah has declared exempt the one who steals from others, and has declared liable the one who steals from his father and his mother.

This teaches you that all these rules derive solely from the decree of the King [and not from reason].¹⁰

While Deuteronomy 21:18–21 is arguably a harsh law, it is not on the face of it irrational in the sense of lacking a rational purpose. Indeed, the biblical text provides an explicit rationale—the rebellious child must be put to death in order to root out evil. R. Yasa rather gratuitously constructs the law’s irrational character. It is, after all, the rabbis who choose to read the law as applying only to sons and not daughters,¹¹ to minors and not adults, to cases of theft from the parents rather than cases of theft from others. Yet R. Yasa points to the law’s irrationality as if to suggest that it is an intrinsic fixture of the law. He then concludes that, irrational as it is, the law is to be obeyed because it is the decree of the divine king (and therefore precisely not rational). R. Yasa has moved in a more radical direction. No mention is made of any benefit to the person who obeys this law. Evidently, the only rationale for obeying the law is to affirm the sovereignty of its author, in which case the substance of the law is entirely immaterial.

This passage is the mirror image (or the antipodal partner) of the Letter of Aristeas, 4 Maccabees, and Philo. The latter were convinced of and asserted the rational character of biblical divine law, going so far as to argue that the most seemingly arbitrary Scriptural laws—the dietary laws and the ritual impurity laws—not only serve a rational purpose but are in their substance rationale (as revealed by allegorical interpretation). Rationality is a virtue and irrationality is a defect. This rabbinic text moves in the opposite direction. R. Yasa takes a law that is justified by an explicit rationale and expends tremendous effort in constructing it as an example of an irrational law. This text challenges the assumption that rationality is a virtue and irrationality is a defect. Irrationality is positively viewed. Obedience to an irrational law, insofar as it has no utility, proclaims the sovereignty of the king.

An extreme affirmation of the law as arbitrary fiat may be seen in an amoraic tradition found in both the Palestinian and Babylonian Talmuds. The base mishnah underlying this tradition is m. Ber 5:3 (see also m. Meg 4:9):

He who says [when leading the communal prayer] “May your mercies extend to the bird’s nest,” “May your name be mentioned for good,” and “We give thanks, we give thanks”—is silenced.

The reference to the bird’s nest recalls Deuteronomy 22:6–7, which states: “If, along the road, you chance upon a bird’s nest, in any tree or on the ground, with fledglings or eggs and the mother sitting over the fledglings or on the eggs, do not take the mother with her young. Let the mother go, and take only the young, in order that you may fare well and have long life.”

The mishnah does not explain why the reference to God’s mercy is objectionable. Various explanations appear in the gemaras. According to R. Yosi b. R. Bun, a fifth-generation Palestinian amora, the statement that God’s mercies extend to the bird’s nest is objectionable because it represents God’s ways (middot) as mercies. Likewise, it is wrong to represent the prohibition against killing a mother cow and her young, or a mother bird and her young, on the same day as a mercy, for these are decrees (gezerot; p. Meg 4:10, 75c). The same view appears in abbreviated form in the Babylonian Talmud.

Two amoraim in the west, R. Yosi b. Abin and R. Yosi b. Zebida, give different answers [to the question of why these persons must be silenced]. One says it is because he creates jealousy among the works of creation [that God is merciful to the bird’s nest but not to me!]; the other says it is because he represents the ways (middot) of the holy one, blessed be he, as mercies when they are decrees. (b. Ber 33b)

What is striking about this teaching is that it too denies a rationale to a biblical law that might otherwise be understood—quite easily and naturally—as arising from moral considerations. To ascribe a moral rationale or purpose to this law is portrayed not merely as misguided or unnecessary but wrong—divine law must be understood and affirmed first and foremost as pure fiat that attests to the sovereignty of its author.

Consistent with the idea that the divine law is pure fiat lacking in utility, and that virtue is best demonstrated by obedience to an irrational law that confers no benefit, are texts that insist on observing the law for its own sake. Thus, Sifre Deut 41 (L. Finkelstein ed., 87) reads:

“loving Yahweh your god” (Deut 11:13).

Lest one say: Behold I study Torah in order to get rich, or in order to be called “Rabbi” or in order to earn reward in the world to come,

Scripture says “loving Yahweh your god”—all that you do you should do only out of love.

The requirement of unquestioning obedience with no thought of reward or benefit appears also in a tradition attributed to Antigonus of Sokho in m. Avot 1:3: “Be not like servants who serve their master for the sake of reward; rather, be like servants who do not serve their master for the sake of reward, and let the awe of Heaven be upon you” (cited also in b. AZ 19a). Antigonus does not here deny that God rewards the righteous (that is a rabbinic assumption). He asserts rather that one must obey the Law not for the sake of the reward but in order to proclaim the sovereignty of the Law’s author.

A more conflicted view is expressed in Sifre Deut 48 (L. Finkelstein ed., 113–14):

“loving…”

Lest one say: Behold I study Torah in order to be called a sage, in order to sit in the yeshivah, in order to enjoy long life in the world to come,

Scripture says “loving”—

Study in any event and in the end honor will come.

Thus it is said:

“She is a tree of life to those who grasp her” (Prov 3:18)

And “they are life to him who finds them” (Prov 4:22)

And “she will adorn your head with a graceful wreath” (Prov 4:9)—in this world, “crown you with a glorious diadem” (ibid.)—in the world to come.

“in her right hand is length of days” (Prov 3:16)—in the world to come.

“in her left [hand], riches and honor” (ibid.)—in this world.

R. Elazar b. R. Zadoq says: Do things for the sake of doing them, speak of them for their own sake. He used to say: If Belshazzar who used the Temple vessels when they were unconsecrated had his life uprooted in this world and the next, one who makes use of the vessel through which the world was created will all the more so find his life uprooted from this world and the world to come.

Those who study Torah without thought of reward will reap reward in this world and the next, while those who study Torah for the sake of reward will lose all reward in this world and the next. The paradox is clear—one should eschew reward, for only then is one guaranteed reward. This paradoxical premise is erased in the Babylonian Talmud’s version of this passage (b. Ned 62b). After recounting a story forbidding the use of one’s learning even when one’s life is at stake, the gemara cites the baraita from Sifre Deut 48 but without the verses that promise material reward in this life and reward of any kind in the world to come. The modified baraita is consistent with the extreme position advanced by the Bavli sugya in which it is found: the commandments are to be obeyed unquestioningly as pure decrees without thought of benefit or reward. This idea lies behind exhortations to perform the commandments “for their own sake” (for example, b. Ber 17a, b. Pes 50b) and without deriving any benefit at all (b. RH 28a, b. Pes 8b, b. Naz 23a).

RESPONSE 2: DISOWNING THE PREMISE

A second response to the depiction of the divine law as illogical and arbitrary is to disown the view by marginalizing it. We saw an example of this kind of displacement in Sifra Aḥare Mot above. By placing protest and criticism in the mouths of various “mocking others,” the rabbinic authors of these texts distance themselves from problematic views even as they raise and grapple with them. They discredit the objection to the Law’s irrationality by presenting it as the barb of a rebellious figure or heretic and reasserting against it the Law’s authority as the will of God.

An example may be found in p. San 10:1, 27d–28a, featuring Koraḥ—the rebellious biblical figure who challenged Moses’s authority.

Rav said: Korah was an apiqoros.

What did he do? He went and made a tallit that was entirely purple. He went to Moses and said, “Moses our rabbi: a tallit that is entirely purple, is it liable to the law concerning fringes?” He said to him, it is liable, for it is written, ‘You shall make yourself tassels’” (Deut 22:12).

[Koraḥ said], “A house that is entirely filled with (holy) books, is it liable to the law concerning mezuzah?” He said to him, “It is liable for a mezuzah as it is written, ‘And you shall write them on the doorposts of your house’”(Deut 6:9).

[Koraḥ] said to him, “A bright spot the size of a bean—what is the law [is it impure]?” He said to him, “It is a sign of impurity.” “And if it spread over the entire body of the man?” He said to him, “It is a sign of purity.”

At that moment Koraḥ said, “The Torah does not come from Heaven, Moses is no prophet, and Aaron is not a high priest.”

Koraḥ asks Moses “our rabbi” three halakhic questions. These are not questions on topics of ethical import. Each is a question of ritual law where logic would evidently dictate a certain answer, and yet Moses’s responses deviate from the expected logical answer.¹² It seems that the unintuitive, illogical, or absurd nature of these responses motivates Koraḥ to declare that the Torah is not divine and Moses is no prophet. Absurd, illogical laws must be the work of men, not God. As such they need not be obeyed, and the authorities that seek to impose them may be flouted.

These themes appear in many rabbinic representations of nonrabbinic others and outsiders of various types: the tsadoqi (Sadducee), the min (heretic), and, to a lesser extent, the apiqoros (Epicurean).¹³ Many of the rabbinic texts that feature these “mocking others” betray their authors’ awareness of the widespread assumption that divine law—indeed divine Scripture generally—should be rational, containing no contradictions, paradoxes, illogical or arbitrary elements. Thus, in PRK 18 (Mandelbaum, 297–98) a min derides R. Yoḥanan’s fantastic exegesis of Isaiah 54:12 as entirely illogical and absurd. Often the min’s barbs are directed at Scripture itself, particularly when its form or content seems to violate linguistic conventions or logical norms, or to include grammatical or stylistic oddities. Minim point out problem verses that appear illogical or nonsensical (b. Shab 152b, reading “minim” with MSS) and that can be interpreted humorously (b. Sukk 48b) or to the detriment of Israel (b. Yev 102b, t. Meg 4(3):37, b. Ber 10a). That Scripture is vulnerable to such attacks is conceded by the rabbis in Gen Rab 8:8 (Theodor-Albeck ed., 1:61). Here Moses chastises God for writing, “Let us make man in our image” in Genesis 1:26, since the plural form fuels the heretical claim of multiple divine powers. “Sovereign of the Universe!” Moses exclaims, “Why do you give a justification to heretics?” “Write it,” he replies, “whoever wishes to err may err.” On the other hand, some rabbinic passages express the view that the apparently illogical or problematic content and form of Scripture were deliberately designed by God to include features that disable heretical claims and ridicule. A few examples will suffice.

According to m. San 4:5, a single man was created so that minim would not claim that there are many ruling powers in heaven. T. San 8:7 adds that man was created last so that minim would not assert that God had a partner in his work. According to another tradition, whenever Scripture seems to provide justification for a heretical view, the refutation is close at hand (Gen Rab 8:9 [Theodor-Albeck ed., 1:62–63] and b. San 38b–39a). Thus, the plural implication of “Let us make man in our image” (Gen 1:26) is refuted by the subsequent use of singular forms: “And Elohim created [sing.] man in his [sing.] own image.” Likewise, we read in Deut Rab 2:13 (cf. Ex Rab 29:1):

Minim asked R. Simlai, “How many powers created the world?”

—He said to them, “Let’s ask the [account of] the six days of creation.”

—They said to him, “Is it written ‘a god [eloah—singular] created the earth?’ [No, rather] ‘gods (elohim—plural) created the earth’ is written.”

—He said to them, “Is it written that ‘elohim—[they] created’ (bar’u— plural form of the verb)? [No, rather] ‘[he] created’ (bara’—singular form of the verb) is written.

Further examples are found in b. Ber 10a, b. Yoma 56b–57a, b, Ḥul 87a. In each case a min’s hostile or uncharitable construal of a verse is refuted by the continuation of the verse.

In all of these instances, minim ridicule—by poking holes in—the logic, language, and contents of divine revelation and law as if to say: is it reasonable to suppose that a divine revelation would contain material that is poorly written, misleading, illogical, and even hostile to the very people to whom it was given?

In the cases examined in chapter 5, the literary motif of the “mocking other” allowed rabbinic authors/redactors to voice and grapple with reservations about their nominalist tendencies. Thus, despite a general tolerance for a nominalist approach to divine law, rabbinic texts nevertheless incorporate occasional (self-)critiques of nominalism and its attendant legal strategies. In the cases examined in this chapter, the “mocking other” allows rabbinic authors/redactors to voice and grapple with reservations about the representation of divine law as divine fiat containing prescriptions that lack intrinsic rationality. In these texts, the idea that divine law might be illogical or irrational, or that it might lack a clear purpose, is ridiculed by outsiders as an indication that the Law is imperfect, a claim that impugns its divinity: if the Law has these features, it is not divine but human and can be rejected.

Once again, the motif of mockery serves as an index of the rabbis’ self-awareness. In these texts, rabbinic authors ground the Law in the will of God and emphasize the value of unquestioning obedience, in full awareness of an alternative position that views the Law’s irrationality as a liability rather than an asset. The view that is considered and rejected is displaced onto non-Pharisaic/rabbinic others so that it can be acknowledged but ultimately disowned. This assessment finds confirmation yet again in Mark 7:1–23. In chapter 5 we noted that the Markan Jesus mocks the Pharisees and scribes for adopting legal ruses that in his eyes annul the divine commandments. However, the passage also portrays Jesus as mocking the Pharisees and scribes for observing precisely those laws widely identified as irrational—the ritual impurity laws (7:1–4) and the dietary laws (7:18–19). Mark 7 is thus antipodal to the rabbinic texts examined in this chapter as well: while Jesus mocks the purity and dietary laws because they are incompatible with his view of divine law as rational, the rabbinic passages examined here assert and insist upon the irrationality of not only these but also other laws. The Law’s irrationality is not incompatible with their view of divine law as divine fiat.

RESPONSE 3: DENYING THE PREMISE—RATIONALIST APOLOGETICS

The third response to the characterization of the divine law as arbitrary fiat is to deny the premise of the characterization in part or in whole by asserting the rationality of the law, despite appearances to the contrary. The rabbinic texts that are most commonly adduced as evidence for a rabbinic belief in the rationality of divine law are texts that are believed to posit reasons (rationales) for specific commandments (ta’amei ha-mitzvot).¹⁴

Ta’amei ha-Mitzvot/Ta’amei Torah

While there is a generous scholarly literature on the search for reasons for the commandments in Judaism generally, most of this literature focuses on the medieval period, when the question of the Law’s rationality and the benefits and dangers of identifying reasons for specific commandments occupied a central place in the writings of philosophically inclined Jewish thinkers. In most of this scholarly literature, the classical rabbinic materials are considered only to the extent that they serve as the kernel or source for later post-talmudic developments; they are not analyzed on their own terms or in their ancient context.

Exceptions to this rule are Isaac Heinemann’s The Reasons for the Commandments in Jewish Thought: From the Bible to the Renaissance¹⁵ and E. E. Urbach’s The Sages: Their Concepts and Beliefs.¹⁶ In their discussions of ta’amei ha-mitzvot (reasons for the commandments) in rabbinic literature, these scholars assemble a wide variety of sources that appear to reflect on the rational purpose of the Law as a whole, as well as the reasons for specific commandments. Both compare the rabbinic materials to other ancient approaches to the same issues. They contain important insights, but they also suffer from certain defects that will become evident below.

I begin by noting that the term ta’amei ha-mitzvot does not appear in classical rabbinic literature at all—though scholars do not hesitate to use the term in connection with this literature. The term is post-talmudic and reflects the later philosophical enterprise of identifying reasons—usually ethical reasons—for individual commandments so as to connect their performance with the achievement of a rational good. We do find the terms ta’amei torah and ta’ama deqera (its Aramaic equivalent) in classical rabbinic sources, but they appear quite infrequently—never in the Mishnah, only once in the Tosefta (t. Qidd 5:21), and in eleven passages of the Babylonian Talmud.¹⁷ Moreover the terms have a specific meaning. Seven of the Bavli passages (including b. San 21a, examined below) report that R. Shimeon, as opposed to R. Judah, would draw legal information from the rationales that accompany a biblical commandment (ta’ama deqera). One passage (b. Yev 76b) points out that Scripture gives a rationale for the prohibition of Ammonites and Moabites in Deuteronomy 23:5. Thus, in eight of its eleven talmudic occurrences, the term ta’ama deqera simply connotes the explicit written verse that accompanies a biblical commandment as its rationale, as part of a discussion of the impact of that rationale on the proper application of the law in question.

The remaining three passages in the Babylonian Talmud make reference to ta’amei torah—reasons for biblical laws—as something that is hidden or revealed. In b. San 21b, R. Isaac states that the rationales of some commandments were not revealed because even a great person can err in a matter of law if he expounds the rationale incorrectly.¹⁸ R. Isaac’s statement addresses the fact that explicit rationales appear alongside some biblical laws but not others, but it is not at all clear that R. Isaac thinks there is a hidden rationale for every commandment. The idea that some rationales are hidden appears again in b. Pes 119a, which glosses the biblical phrase mekasseh atiq as a reference to God (atiq) who conceals (mekasseh) the rationales of the Torah. In the remaining passage, b. San 102a, the “hidden” rationales for the commandments are said to have been manifest to Jeroboam and the prophet Ahijah because of their scholarly superiority. We may compare this passage to the one tannaitic occurrence of the phrase ta’amei torah in t. Qidd 5:21. In the latter text, God rewards Abraham by revealing to him the rationales of the Torah.

To sum up, of the few appearances of the term ta’amei torah or its Aramaic equivalent in classical rabbinic sources, most connote an explicit biblical verse that provides a rationale for a biblical law, and are concerned solely with the question of the legal weight of these rationales in the application of the law. Four additional instances of the term suggest that (1) the biblical text does not provide a rationale for its laws if there is a danger one will make an erroneous deduction from it; (2) the rationales for commandments are concealed by God (b. Pes 119a), but (3) they can be revealed as a reward to those God loves (Abraham in t. Qidd 5:21), and (4) they are sometimes manifest before the exceptional scholar (b. San 102a).¹⁹ From this small corpus of texts, it is clear that the phrase ta’amei torah/ta’ama deqera is not a significant term in rabbinic sources and sheds little light on rabbinic attitudes toward the rationality of the law.

If we are to gain a sense of the rabbinic attitude toward the rationality of the Law, we must look beyond terminology and ask: alongside passages that characterize the Law as a divine decree or that point to its irrational elements, do we also find passages in which the rabbis engage in rationalist apologetics of the Law? The answer is a weak and very qualified yes. However, the rabbis’ rationalist apologetic (to the extent that it exists) differs from the rationalist apologetic of certain Hellenistic Jewish works, like the Letter of Aristeas and the writings of Philo, that attempt to prove that the divine law of biblical tradition is utterly rational. First, in their apologetics, the rabbis tend to be comparatively more emphatic in maintaining that the basis of the Law’s authority is its origin in the divine will rather than its rational character (Novak 1998, 90; I. Heinemann 2009, 36). Second, rabbinic sources do not in general assume the intrinsic rationality—that is, a rationality based on specific content and character—of the entire Law. Indeed, they are content to designate some parts of the Law as divine commands that serve no end beyond the extrinsic purpose of providing an opportunity for reward or the cultivation of virtue. Finally, even when the rabbis assert the Law’s rationality, its rational character is not necessarily accessible to or discoverable by humans, an echo of the Second Temple trope of the hidden and the revealed aspects of divine revelation. I consider each of these claims before turning to the sustained analysis of a passage that captures the conflicted state of rabbinic discourse on the rationality of the Law (PRK 4).

(I) THE BASIS FOR THE LAW’S AUTHORITY: HETERONOMOUS VS. AUTONOMOUS ETHICS

Isaac Heinemann (2009, 1) describes various motivations for inquiring into the reasons for divine commandments. Even when observance of these commandments is grounded in belief in the authority of the divine legislator, the desire to understand and demonstrate—to oneself and to others—the wisdom and justice of the divine legislator’s laws is only natural. Sifra Aḥare Mot 9:13 makes it clear that the Law’s wisdom and justice are not always self-evident, with the result that the Law is vulnerable to criticism by those who expect divine law to be wise and just. While logical laws engender no objection (their presence in divine Scripture is expected), the presence of illogical or arbitrary laws gives rise to criticism and rebellion. Seeking out reasons for the commandments is one strategy for silencing these objections, whatever their source.

However, Heinemann asserts that seeking out reasons for the commandments can be a double-edged sword. While it may strengthen observance by elevating the status of the commandments in the eyes of those commanded, it also has the potential to weaken fidelity to the Law (ibid., 1–2). According to Heinemann, those who oppose the search for reasons for the commandments do so because identifying reasons “makes the observance of the Law dependent to some extent on the assent of the individual addressed by it” (2). In other words, it converts what is in principle a heteronomous system (in which law is imposed upon human beings from an external source) into an autonomous system (in which law emerges from the rational activity of humans).

The question of heteronomy vs. autonomy, according to Heinemann, is the fundamental difference between Hellenistic Jewish thinkers like Philo on the one hand and the rabbis on the other. Where Hellenistic Jewish thinkers stressed autonomous reasons for observing the commandments (36), the rabbis maintained a heteronomous position in regard to the Law (44–46). Heinemann finds heteronomy in the rabbinic use of slave imagery to describe Israel’s obedience to the Law (16) and in traditions that value obedience to the Law even against one’s natural impulses or autonomous validation (Sifre Num Shelah 115 and Sifra Qedoshim 10:22, above). Similarly, Urbach maintains that rabbinic texts adopt a heteronomous position (1975, 365).

Urbach’s and Heineman’s insistence on the heteronomous orientation of classical rabbinic sources (and Heinemann’s denigration of the alleged autonomous orientation of Hellenistic Jewish writers) echoes twentieth-century debates over the nature of Judaism. Urbach writes:

Since the publication of Moritz Lazarus’ work on ‘The Ethics of Judaism’ there has been no halt to the attempts to point to various Rabbinic dicta as evidence of the correspondence between the fundamental principle of Kant’s ethical system and the religious ethic of Judaism. However, Lazarus’ hypothesis has been rejected in unambiguous terms by Hermann Cohen, who made it clear that an autonomous ethic means one that emanates from man and from him alone, that is to say, man is the source of the ethic and God is not its source but only its principle, whereas in all religions, and undoubtedly this is the case in the Jewish faith, God is the source of the ethical law. (317)

Urbach goes on to demonstrate that rabbinic sources adduced in support of Lazarus’s thesis have been misread. In this respect Urbach continues the work of Heinemann (2009, 15–16, 25–26), whose review of a wide range of rabbinic sources had demonstrated that rabbinic reflections on the reasons for the commandments took place within a non-Kantian framework of theonomy. More recently, David Novak has argued that the identification of reasons for specific commandments does not take Jewish ethics out of a covenantal framework or ground it in anything other than divine command (1998, 90).

These statements reflect contemporaneous debates and a particularly modern fear that a Kantian esteem for autonomous ethics threatens fidelity to Jewish Law. Heinemann, Urbach, and Novak are correct that the basic rabbinic orientation to divine law was heteronomous, but there is little evidence that rabbinic heteronomy entailed the idea that the search for reasons for the commandments would undermine obedience to the Law. On the contrary, the sources examined above would suggest that the rabbis perceive the evident irrationality of parts of the Law as injurious to the fidelity of their coreligionists. Nevertheless, the following teaching attributed to a Palestinian amora is often cited as evidence of a rabbinic aversion to rationalizing the commandments, even though the teaching actually deals with a different issue:

Ulla said: When an ordinance (gezerah) is made in Palestine, its reason is not revealed before a full year passes, lest there be some who might not agree with the reason and would treat the ordinance lightly. (b. AZ 35a)

Ulla’s teaching refers specifically to rabbinic rulings, not biblical commandments. Publishing the reasons for rabbinic rulings opens one to criticism of those reasons, a criticism that could lead to a rejection of the ruling. But this danger is due to the fact that the rabbis’ authority, while underwritten by divine authority, was nevertheless assessed by and therefore dependent upon their learning and on the evident wisdom and justice of their rulings. If one can find fault with the reasons behind a rabbinic ruling, one might be tempted to reject it altogether. By contrast, biblical commandments enjoy an authority independent of their qualities as rational or irrational. In the context of biblical commandments, the laws that lack reasons—not the laws that possess a clear reason—are the laws that undermine observance. Irrational commandments engender objections and are harder to fulfill (see the texts cited above); this is why the rabbis expend energy in asserting that the irrational commandments are authoritative divine decrees that must be obeyed no less than the rational commandments. By contrast, they do not expend energy urging the fulfillment of biblical laws for which a rationale is stated, because the attachment of rationales to biblical laws is not deemed to pose a particular threat. In short, b. AZ 35a cannot be read as evidence for a general aversion to legal rationales. It is only the rabbinic elaboration of divine law that is susceptible to criticism when reasons are provided.

Another text cited as evidence of an alleged rabbinic sensitivity to the dangers involved in identifying reasons for the commandments is b. San 21b.

R. Isaac also said: Why were the reasons of [some] Biblical commandments not revealed?—Because in two verses reasons were revealed, and they caused one of the great ones of the world [Solomon] to err. Thus it is written, “He shall not multiply wives to himself [that his heart not turn away]” (Deut 17:17). Solomon said, ‘I will multiply wives yet not let my heart be perverted.’ Yet we read, “When Solomon was old, his wives turned away his heart” (1 Kgs 11:4). Again it is written: “He shall not multiply to himself horses [or cause the people to return to Egypt to multiply horses]” (Deut 17:16) concerning which Solomon said, ‘I will multiply them, but will not cause [Israel] to return [to Egypt].’ Yet we read, “And a chariot came up and went out of Egypt for six [hundred shekels of silver].” (1 Kgs 10:29)

R. Isaac’s teaching responds to an exegetical problem—how could the great and wise King Solomon be guilty of such a clear violation of biblical law, multiplying both wives and horses for himself against the explicit teaching of Deuteronomy 17? His answer—that Solomon mistakenly interpreted the explicit rationales for these two biblical commandments as limiting the law’s application to the circumstances stated in the rationale—is a local solution to the problem of mitigating Solomon’s violation. R. Isaac phrases his teaching at a slightly higher level of generality—the reason some rationales are not revealed is that they create a potential for error in the application of the law. R. Isaac’s teaching should not be raised to even higher levels of generalization. Contra Urbach (1975, 382–83) and Heinemann (2009, 2), this text does not suggest that identifying reasons for the commandments is dangerous because it leads to a rejection of divine authority and the establishment of an autonomous ethic. Knowing the rationale of the law did not cause Solomon to find fault with the Law, reject divine authority, or establish an autonomous ethic. On the contrary, Solomon sought to obey the law, but he misinterpreted it because he drew an erroneous legal deduction from the rationale verse.

That this is so is borne out by the tannaitic dispute on b. San 21a, preceding the passage about Solomon. The dispute centers on the interpretative practices of R. Judah and R. Shimon. When a biblical law is accompanied by a rationale, R. Shimon is guided in the application of that law by the information provided in the rationale, while R. Judah is not. Thus, R. Judah applies the law more broadly, while R. Shimon limits the application of the law to the circumstances covered by the explicit biblical rationale. The dispute is a simple disagreement over the legal weight of explicit biblical rationales and not disagreement over the virtues or demerits of identifying reasons for the commandments. R. Shimon’s approach (which allows the application of a law to be guided by its rationale and is thus parallel to Solomon’s) is not presented as a danger that threatens to undermine fidelity to the Law, or that substitutes an autonomous ethic for the authority of divine law. His is simply one of two different interpretative approaches that can be adopted in the determination of the appropriate scope of a given law. His opponent thinks that his approach is wrong and leads to error. Likewise, R. Isaac condemned Solomon’s reliance on the rationale because it led to error.

As we have seen, there are rabbinic texts that insist that rational commandments be fulfilled not because of their rationality but because they are divine decrees, and Heinemann and Urbach correctly underscore this fact. This insistence can take the form of denying any utility or rationale to certain commandments (as we saw in the case of m. Ber 5:3 and related texts, concerning a commandment with a fairly clear moral purpose). However, the denial of a rationale for a commandment generally stems from a desire to ensure that the commandments are opportunities for refinement and virtue or for affirming God’s sovereignty. In other words, rabbinic disinterest in reasons for the commandments has more to do with ensuring proper intention, and demonstrat ing selfless obedience to the Law, than it has to do with twentieth-century debates over autonomous vs. heteronomous ethics.

(II) EXTRINSIC VS. INTRINSIC REASONS

Prior scholarship investigating rabbinic attitudes toward reasons for the commandments does not distinguish between extrinsic and intrinsic reasons. Among the rabbinic sources dealing with ta’amei ha-mitzvot, Heinemann and Urbach include a number of passages that present extrinsic reasons for fidelity to the Law as a whole, connect a specific law with historical persons or events, or explain a specific law’s symbolism. Thus, rabbinic sources assert the following extrinsic arguments for observing the Law: the Law (1) provides an opportunity for justification or refinement (m. Mak 3:18(15); Gen Rab 44:1; Ex Rab 30:13; Lev Rab 13:3), (2) confers holiness (MekhRY Shabbata 1, Horowitz ed., 341; MekhRY Kaspa 20, Horowitz ed., 320), and (3) provides divine protection or reward (Sifre Deut 114; Lev Rab 35:5–6; b. Yoma 39a; b. Qidd 39b; b. Men 43b; b. San 71a; and many others). However, such “reasons” would apply equally to any set of divine decrees regardless of content; they do not demonstrate an intrinsic connection between the content of a specific commandment and its obligatory character independent of its promulgation as a decree. Indeed, as we have seen, these “reasons” can accompany laws whose irrationality is acknowledged—often purity and dietary laws (e.g., Gen Rab 44:1; Ex Rab 30:13; Lev Rab 13:3). It is precisely because these laws are irrational that observance brings refinement, confers holiness, and provides protection and reward. Indeed, in the case of the law of the stubborn and rebellious son (b. San 71a), reward comes from not observing the law, but from expounding its details so that it can never be observed! In short, Heinemann and Urbach fail to show that the law itself is perceived to be rational when they cite texts in which the law is said to serve a religious goal or bring reward.

As evidence for the rabbinic conception of the Law’s rationality, Heinemann and Urbach also adduce texts in which certain details of the Law are given a symbolic interpretation (the four species of plants bundled in the lulav featured in the Festival of Sukkot represent four patriarchs in Lev Rab 30:9; the placement of the tefillin (phylacteries) knot represents Israel’s position in the world, b. Men 35b), or commandments are explained as measure-for-measure punishment or reward for actions by past figures (the three commandments given to women are measure-for-measure punishment for Eve’s actions, Gen Rab 17:8; the commandments of fringes and shoe removal to cancel the levi-rate obligation are measure-for-measure reward for Abraham’s abstention from “thread” and “shoelace” as spoils of war, Gen Rab 43:9; certain priestly perquisites are measure-for-measure reward for the zealous action of Pinḥas, b. Ḥul 134b). While these “reasons” explain a given law’s origin in a historical event or point to its symbolic referent, they too fail to demonstrate the law’s intrinsic rationality; they fail to demonstrate a connection between the content of a specific commandment and its obligatory character independent of its promulgation as a decree.

We might expect to gain insight into rabbinic attempts to identify the rational character of certain commandments from passages containing the phrase mipney mah amrah torah (“why did Torah state …?). Unfortunately, the phrase is rare, occurring just a few times in tannaitic literature and in only a dozen passages in the Babylonian Talmud.²⁰ In some cases, the inquiry concerns the reason for a particular feature of the law rather than the law itself (b. Sot 17a asks why dust is used in the ceremony for the suspected adulteress; b. Sot 46a asks why a heifer is chosen for the ritual employed to atone a certain kind of murder case; b. Nid 31b asks why the sacrifice for a boy is brought after seven days but for a girl after fourteen days, and why circumcision takes place on the eighth day; b Qidd 2b asks why a marriage law is phrased in a particular way). The responses are often symbolic (dust is used in the ceremony of the suspected adulteress because the outcome that awaits her is symbolically connected to dust; the heifer is used because it has not borne fruit and it is intended to atone for one who will not be able to bear fruit). Other responses employ the measure-for-measure principle (in b. San 112a, the property of even the righteous inhabitants of an idolatrous city is destroyed because the desire for property was what caused them to dwell there; in Nid 31b, the timing of the sacrifices brought to atone for the mother’s curses during childbirth is tied to how long she remains angry over the pain of birth, and circumcision is on the eighth day because by then the parents of the newborn are rejoicing). Still other responses are based on customary or presumed behavior (b. BM 3a imposes an oath on a certain person because of presumptions about how such a person would behave; in b. Qidd 2b, the marriage law is phrased in terms of a man’s taking a wife because normally men pursue women rather than the reverse). Thus, even in this small class of texts that explicitly inquire into the reasons for a commandment, the focus is on explaining details of the law rather than the law itself. Moreover, the answers do not establish an intrinsic connection between the content of a specific commandment and its obligatory character independent of its promulgation as a decree.

Urbach (1975, 388) notes that Philo sought ethical and social reasons for every commandment—reasons grounded in some good—because he couldn’t accept the idea that the divine commandments were mere decrees. By contrast, argues Heinemann (2009, 30–31), the rabbis did not seek ethical reasons for every commandment:

When we survey the Sages’ explanations of the mitzvoth, it is surprising that ethical reasons are relatively rare. It did not occur to them that circumcision and dietary laws are likely to restrain our carnal urges, as the philosophers would explain … [H]ow can we explain that although the vast majority of the Sages believed in the religious-ethical purpose of our Torah, nevertheless they made hardly any attempt to find ethical reasons for the mitzvoth? … the fact that the ethical explanations are so infrequent proves at least that they were not regarded as very important by the rabbis’ audience or by the editors of the Talmud and the Midrash.

According to Heinemann, the rabbis’ lack of moralistic interpretation highlights the profound difference between them and later rationalists (31):

The latter tried to find, insofar as possible, a sufficient reason not only for the mitzvoth themselves, but also for their observance. The proof that there could be a rational reason even for those mitzvoth that seemed to be arbitrary dictates of the Torah enabled them, if not to annul entirely the heteronomic aspect of our obedience, then at least to soften somewhat the harshness of that heteronomy. Such an intention never occurred to the rabbis. They were convinced that the mitzvoth had ethical reasons.

The rabbis were so convinced that the commandments had ethical reasons, says Heinemann, that they did not feel a need to work out those ethical reasons in a systematic way.

Thus the Sages did not try to find an ethical reason for all the commandments in the Torah, especially not for the majority of those that they called ḥukkim—positive laws in the narrow sense. Their purpose in explaining the mitzvot was twofold: (1) to demonstrate the value of the Torah to the people in order to endear it to them and (2) to reinforce its educational effect. (32)

Urbach and Heinemann are correct that the rabbis do not seem terribly interested in providing intrinsic ethical reasons for biblical laws. However, Heinemann’s assertion that the rabbis did not propose ethical reasons for all the commandments because they simply assumed that they possessed them is an argument from silence and is unconvincing. It is far more likely that the rabbis do not engage in a vigorous effort to identify ethical reasons for the commandments (especially in the strong sense of an intrinsic justification for the commandments’ authority) because they do not maintain that all of the laws, particularly ritual and purity laws, have reasons. Moreover, even the laws that are rational (including those that would by logic be included in any system of law) are authoritative because commanded. Thus, while identifying the reasons for commandments is edifying and can bolster observance, it is not essential to the Law’s characterization as both divine and authoritative.

Heinemann’s assessment that the rabbis were certain that the laws had reasons ignores explicit evidence to the contrary but is not entirely without support. There are a handful of texts that speak of “concealed” biblical rationales; Heinemann has simply given these few texts undue weight.

(III) HIDDEN REASONS

As noted above, four texts in classical rabbinic literature refer to ta’amei torah as something that can be concealed. At least one of these texts—b. San 21b—uses the term ta’amei torah to refer to the literary phenomenon in which an explicit rationale appears alongside a law in the biblical text, rather than to an abstract notion of (ethical) reasons for the laws generally. In this passage, R. Isaac seeks to explain why some biblical commandments are accompanied by a rationale verse and others are not. As for the other three passages, b. Pes 119a describes God as concealing the rationales of the Torah, while t. Qidd 5:21 depicts God as revealing them to Abraham as a reward. Finally, b. San 102a praises the scholarly excellence of Jeroboam and the prophet Ahijah, before whom the rationales of the Torah were manifest.

For our purposes, these texts indicate that the reasons for biblical laws are not accessible to or discoverable by humans without special revelation (t. Qidd 5:21) or prophetic ability (b. San 102a). Perhaps hovering just beneath the surface of these passages is an unrequited longing to know the reasons for the commandments; nevertheless, the expectation is that one must obey the Torah even in the absence of this knowledge.

These passages—few as they are—must be set against the larger discourse of the Law as divine fiat containing irrational elements. They offer an alternative perspective that emerges from a discomfort with the irrational nature of some of the laws on the one hand and a dissatisfaction with the prevailing rabbinic response that accepts the irrationality of some of the laws on the other. This small voice of protest asserts, in opposition to the dominant rabbinic discourse, that the commandments have reasons, but we cannot know them without divine dispensation. We see here an echo of the Second Temple trope of the hidden and the revealed aspects of divine revelation; however, here it is only the reasons that are hidden, and even these are not needed for virtuous observance (contrast G-R 3(iii)).

We turn now to an extended passage from a sixth-century CE text that captures the rabbis’ conflicted discourse regarding the reasons for the commandments.

(IV) PESIQTA DERAV KAHANA 4

The fourth piska of Pesiqta deRav Kahana (PRK)²¹ is a fascinating and complex composition that draws together many of the themes and tropes identified in this chapter. Several sections of this lengthy piska appear independently in other sources, but their juxtaposition in a single sustained discussion in PRK creates a rich and conflicted portrait of rabbinic discourse on the rationality of the Law.

PRK 4 is the lesson for the Sabbath of the Heifer, the Sabbath on which Numbers 19 (concerning the ritual preparation of purification water from the ashes of the red heifer, used to remove corpse impurity) is read. The ritual of the red heifer is introduced in Numbers 19:2 as a statute (ḥoq) of the Torah. In rabbinic literature, ḥoq is generally construed as an irrational decree (see Sifra Aḥare Mot 9:13). Thus, according to the rabbis, Scripture itself proclaims the irrationality of the red heifer ritual. It is the presumed irrationality of this law that drives the discussion in the entire piska.

The first of the chapter’s ten units opens with a citation of Job 14:4: “Who can bring forth a clean thing out of an unclean thing? Not one” (read by the midrashist as “is it not the One, i.e., God?”).

4:1 “Who can bring forth a clean thing out of an unclean thing? Is it not the One?”

Like Abraham out of Terah, Hezekiah out of Ahaz, Mordecai out of Shimei, Israel out of the nations, the world-to-come out of this world?

Who did it? Who commanded it? Who decreed it?

Is it not the One? Is it not the Unique One of the world?

In a mishnah [see m. Neg 8:2] we learn: “If a man has on his body a bright spot no larger than a grain of bean grits, he is impure; but if the spot spreads over his entire body, he is pure.”²²

Who did it? Who commanded it? Who decreed it?

Is it not the One? Is it not the Unique One of the world?

In a mishnah [see m. Ḥul 4:3] we learn: “If an embryo dies in its mother’s womb, and the midwife puts in her hand and touches the infant, she becomes impure for seven days, but the mother is pure until the embryo emerges.” While the dead embryo is in the house [in the womb] it is pure, but when it comes out it [the womb] is impure.

Who did it? Who commanded it? Who decreed it?

Is it not the One? Is it not the Unique One of the world?

And in a mishnah [see m. Par 4:4] we learn: “All who are occupied with the Red Heifer from beginning to end their garments are defiled” but it [the Red Heifer] itself makes pure the impure.²³

But the holy one, blessed be he, says, “I have set it down as a statute, I have decreed a decree and you are not permitted to transgress my decree.” “This is the statute [ḥuqqah] of the Torah which Yahweh has commanded” (Num 19:2). (Mandelbaum ed., 54–55)

According to this midrash, the law of the red heifer is one of four divine actions or commandments that defy logic. In addition to the ritual of the red heifer, the midrash cites God’s production or selection of “pure” (in the sense of positively valued) entities from “impure” (negatively valued) entities, as well as two further paradoxical purity laws. The first of these laws concerns the impurity of a bright spot that is paradoxically annulled if the spot spreads to cover the entire body. In p. San 10:1, 27d–28a, this ruling is said to be among the rulings that inspired Koraḥ’s rebellion against divine and Mosaic authority (see above).

Thus far, the passage sounds a familiar rabbinic theme: irrational rulings have the potential to undermine fidelity to the Law. The response to the threat posed by such rulings is not to provide a rationale but to assert the ruling’s origin in the coercive and sovereign divine will. This is the burden of the driving staccato refrain that follows each of the four paradoxical examples: Who other than the One can do, command, and decree such a thing? Only the unique god of the world can decree the irrational! In this way, the piska’s opening volley establishes not only that some of God’s decrees are irrational, but that this irrationality is the very mark and sign of their divinity.

PRK 4:2 opens with R. Tanḥum bar Ḥanila’i’s citation of Psalms 12:7, which describes the words of Yahweh as pure, tested, and refined. Jeremiah 10:10, which describes God as a god of truth, is then cited and interpreted to mean that God’s words are everlasting. The rest of the unit contrasts the pure (Ps 12:7) and everlasting (Jer 10:10) words of God with the finite and “foul” words of human beings and ends by identifying the laws regarding the red heifer as divine instruction that refines or purifies. This passage echoes another familiar rabbinic theme: irrational laws are a mechanism for the refinement or purification of human beings. Together these first two units of the piska reinforce a characterization of certain divine laws (especially those dealing with impurity) as everlasting irrational decrees that “refine” humans through a discipline of obedience.

PRK 4:3 waxes hyperbolic in asserting the impenetrable mystery of the law of the red heifer. The unit begins by citing Qohelet 7:23, “All this I tested with wisdom. I thought I could fathom it, but it eludes me,” and goes on to heap praise upon Solomon, the presumed speaker of the verse, as the wisest of all men. Solomon’s wisdom exceeded the wisdom of those from the east; it exceeded the wisdom of Adam, of Abraham, Moses, and Joseph, of Darda and Mahol. Solomon spoke hundreds of verses and thousands of parables. He fathomed the reasons behind various laws (especially purity and dietary laws), explaining why the cedar and the hyssop are used in the purification of the leper, why ritual slaughter must be performed in a particular way, why culpability attaches to killing the eight creeping things on the Sabbath, and why fish do not require ritual slaughter. And yet, despite his storied wisdom,

Solomon said: All the foregoing matters I understood but this passage concerning the Heifer, whenever I grapple with it, I search and investigate it and I say, “I thought I could fathom it, but it eludes me” (Qoh 7:23). (Mandelbaum ed., 65)

This passage complicates the claims of the preceding units. In the course of demonstrating the utter irrationality of the red heifer ritual, the text depicts Solomon as successfully discerning the (extrinsic) reasons for a variety of laws that appear to lack any rationale whatsoever. One ostensibly irrational law is explained in a symbolic fashion (cedar and hyssop are used in the purification of leprosy because they symbolize, respectively, the arrogance that induces scale-disease and the humility needed to cure it). The other three laws exemplifying Solomon’s wisdom rationalize rules regarding the slaughter or killing of particular animals with arguments from nature (intrinsic reasons); there is something in the nature of the animals in question that justifies the rules regarding their slaughter or killing.²⁴ The reader is brought up short. Perhaps, despite the piska’s opening insistence on the irrational nature of God’s decrees, there are reasons for the irrational commandments after all. Discerning them may require the wisdom of Solomon, but in theory they are rational—with but one exception: the law of the red heifer. The number of truly irrational decrees has been reduced to just one. In a sharp reversal of the opening two units, this unit provides an almost completely successful rationalist apologetic.

The fourth unit, PRK 4:4, cites Qohelet 8:1: “Who is like the wise man, and who knows the meaning of the adage: a man’s wisdom lights up his face, so that his deep discontent is dissembled?” Comments on this verse identify those whose wisdom enables them to know the meaning of something difficult—God himself, Adam, Israel, a sage, and finally Moses. The reference to Moses returns us to the red heifer law. Moses was unable to understand how a defiled priest might become pure again. But when God revealed to him the law of the red heifer, he had the answer to his question. After a digression on Moses and Aaron in PRK 4:5, the text returns in PRK 4:6 to the theme of the irrationality of certain laws, focusing specifically on laws that are contradicted by other provisions in Scripture.

R. Joshua of Siknin said in the name of R. Levi: there are four things to which the evil impulse (yetser hara) objects and in connection with all of them Scripture writes “ḥuqqah.” And these are they: [a man marrying his] brother’s wife; [the prohibition of] “diverse kinds”;²⁵ the scapegoat; and the red heifer. (Mandelbaum ed., 71)

The passage goes on to explain that in each case the yetser hara can point to a contradictory verse or teaching:²⁶ the prohibition against marrying one’s sister-in-law is contradicted by Deuteronomy 25:5, which requires a man to marry his widowed sister-in-law; the prohibition of wearing mixed kinds is contradicted by Numbers 15:38–39, which permits a linen cloak with wool fringes (tsitsit); the scapegoat paradoxically conveys impurity to the person who releases it while bringing purity to the larger community; and, as regards the red heifer,

In a mishnah [Par 4:4] we learn: “All who are occupied with the Red Heifer from beginning to end their garments are defiled but it [the Red Heifer] itself makes pure the impure.” And ḥuqqah is written in connection with it: “This is the statute [ḥuqqah] of the Torah” (Num 19:2). (Mandelbaum ed., 72)

This unit employs a trope found elsewhere in rabbinic discourse on the (ir)rationality of the Law: the trope of displacement in order to express and grapple with the problematic assertion that the divine Law contains arbitrary and irrational elements. The rabbinic authors of this text distance themselves from this critique of the Law’s irrationality by attributing it to the evil impulse (yetser hara).

PRK 4:7 changes tack and introduces still another theme featured in a handful of rabbinic texts dealing with reasons for Torah laws (ta’amei torah)—the theme of concealed reasons that are revealed only to select individuals. The following tradition is attributed to R. Isaac:

The holy one said to Moses, “Moses, I reveal to you the reasons for the red heifer, but to others it is a statute.” For as R. Huna taught: [God said], “When I take up my pledge of a world-to-come I shall give my reasons for the statutes I ordained” (Ps 75:3).²⁷ … [Zech 14:6 is then interpreted to yield the following:] things concealed from you in this world will in the time-to-come be as clear to you as crystal. That is what is meant by the verse “I will bring the blind by a way they knew not. I will make darkness light before them … These things have I done” (Isa 42:16), “These things I will do” is not written but “I have done”—that is, I have already done them for R. Akiva and his colleagues, for R. Aḥa says, things which were not revealed even to Moses at Sinai were revealed to R. Akiva and his colleagues so the verse “And his eye sees every precious thing” (Job 28:10)—refers to R. Akiva. (Mandelbaum ed., 72)

Where PRK 4:3 implied that the red heifer law is unique in being utterly unfathomable, this unit suggests that even the red heifer law is explicable. Reading 4:7 in the light of 4:3, we are left with the impression that there is no law without a rational basis, a conclusion that sits uneasily with 4:1’s bumptious correlation of divinity and irrationality. Moreover, PRK 4:7 brings the rationality of this most irrational law within grasp not only with the promise that its reason will be revealed in the world to come, but also with the declaration that the reason was revealed to a member of the rabbinic class—R. Akiva (and his colleagues). Indeed, R. Akiva is elevated above Moses in terms of his knowledge of divine secrets.²⁸

After some words in praise of R. Eliezer’s erudition in the laws of the red heifer and the scrupulous concern of various priests when performing the ritual of the red heifer, the text in PRK 4:7 switches direction again.

A certain non-Jew (goy) questioned Rabban Yoḥanan ben Zakkai, saying, “These things that you [Jews] do appear to be a kind of sorcery. You bring a heifer, slaughter it, burn it, grind it, take its ashes; [when] one of you is defiled by contact with a corpse, you sprinkle two or three drops on him and tell him, ‘you are pure!’ ”

Rabban Yoḥanan said, “Has the spirit of madness ever possessed you?”

He replied, “No.”

“Have you ever seen a man whom the spirit of madness has possessed?” He said, “Yes.”

“And what do you do for such a man?”

“We bring roots and make smoke under it and we throw water on it and it [the spirit] flees.”

Rabban Yoḥanan then said, “Do your ears not hear what your mouth is saying? So too that spirit is a spirit of impurity as it is written, ‘And I will also make the prophets and the unclean spirit vanish from the land’ ” (Zech 13:2).

When he [the non-Jew] left, his [Rabban Yoḥanan’s] disciples said: “Our master, you put off that non-Jew with a reed, but what answer will you give us?”

Rabban Yoḥanan answered: “By your lives! The corpse does not defile, and the water does not purify; rather it is a decree of the holy one, blessed be he. The holy one, blessed be he, said, ‘I have set it down as a statute, I have decreed a decree and you are not permitted to transgress my decree.’ ‘This is the statute [ḥuqqah] of the Torah’ (Num 19:2).”²⁹ (Mandelbaum ed., 74)

This dialogue between Rabban Yoḥanan ben Zakkai and a non-Jew balances the dueling perspectives featured in this chapter, one apologetic and the other nonapologetic. When speaking to the non-Jew who seeks to know the reason for the seemingly irrational ritual, Rabban Yoḥanan ben Zakkai provides an apology for the law, explaining it in terms that are logical and acceptable to his interlocutor. Turning to his students, however, Rabban Yoḥanan ben Zakkai dispenses with the rationalist apologetics. The law is a decree, and like all of God’s decrees it was given purely in order to be obeyed. We are left with the distinct impression that how one justifies fidelity to irrational laws is in the end a matter of audience.

PRK piska 4 is a rich and messy text in which the many and varied rabbinic responses to the question of the Law’s rationality coexist and at times collide, replicating the collocation of dueling discourses within the biblical text (biblical discourses 1 and 2). Although it was made in a different context, the following observation by Heinemann comes close to capturing the shift from 4:1’s aggressive declaration of the divine ability of the unique God to generate an irrational decree to 4:7’s apologetic rationale for the same: the rabbis “responded to Jewish dissenters by reasserting authority while answering pagans with pro-forma replies” (2009, 32). While R. Yoḥanan’s response in 4:7 is not pro forma so much as it is accommodating to the non-Jew’s perspective, the point is clear: the imagined audience matters. It is only the imagined outsider who needs assurance of the rationality of the Law. The imagined insider—who may well feel the sting of the outsider’s query—requires only the assurance that the Law is a divinely revealed decree. In the final section of this chapter we consider the role of imagined audience in shaping the rabbinic response to the problem of irrational laws.

RESPONSE 4: SPLITTING THE DIFFERENCE—AN ACUTE SENSE OF AUDIENCE

In her recent book Socratic Torah (2013), Jenny Labendz examines a small but important set of rabbinic texts in which rabbis and non-Jews discuss the reasons for certain practices and beliefs in a friendly and open exchange, one of which is PRK 4:7 (R. Yoḥanan discussing the red heifer ritual). These texts differ from texts that feature confrontational dialogues between rabbis and various nonrabbinic others discussed in chapter 5 and earlier in this chapter. The “others” who appear in the passages analyzed by Labendz are not Sadducees and heretics, nor are they hostile non-Jews (idolaters or enemies) bearing the classic markers of mockery or aggression. They are simply non-Jews posing a question.

Labendz discusses four dialogues relevant to our study. In each case, a non-Jew inquires about a Jewish law or practice that appears irrational, illogical, or inequitable. Specifically, the non-Jewish interlocutor questions the reasonableness of monotheism, the logic of a rabbinic ruling regarding a festival prohibition, the inequitable nature of a Torah law, and the logic of a strange purification ritual (the case involving R. Yoḥanan ben Zakkai in PRK 4:7).³⁰ The non-Jew poses his question to a rabbinic sage in front of the latter’s students. The rabbinic sage provides an answer in terms that are logical and acceptable to the non-Jew. As Labendz notes (106), “the rabbi reaches out of the specifically rabbinic sphere of experience” and responds “based on standards … that he assumes are accepted in the non-Jewish world that he and the non-Jew inhabit together.” However, when addressing his students—who demand a different kind of answer—the rabbi speaks within the framework of Jewish tradition. In one case he employs standard rabbinic hermeneutical techniques (Lev Rab 4:5); in two cases he cites a biblical source for the law (p. Bets 2:5, 61c and p. San 1:2, 19b); and in the case of PRK 4:7 concerning the red heifer ritual he concedes the irrational nature of the ritual and grounds its authority in a divine decree.³¹

Why the students are dissatisfied with the rabbi’s answer to the non-Jew is a matter of some debate. Labendz argues plausibly (118–19) that when the students complain that the rabbi “put off that non-Jew with a reed,” they mean that the rabbi has given information too easily. This troubles the students either because, as initiates into the rabbinic world, they hold a proprietary view of Torah study (non-Jews should not be admitted to it) or because they think that Torah study should require more effort. The first option seems unlikely. Since the rabbi steps out of the rabbinic framework to answer the non-Jew on the non-Jew’s own terms rather than initiating him into specifically rabbinic methods of argumentation, he cannot plausibly be accused of giving the non-Jew access to rabbinic learning. Labendz’s second explanation of the student’s objection—that the response was handed over too easily—is more likely.

Nevertheless, the question remains—what is it about the answers that causes the students to object that they are too easily transmitted? As Labendz points out, the answers are based on common sense, common experience, or simple logic. To understand them requires little effort and none of the specialized training and techniques of a rabbinic scholar. The students are satisfied only when the rabbi provides an answer that employs rabbinic parlance (e.g., rabbinic interpretive techniques), invokes Scripture, or asserts the character of the law as divine decree.

These dialogues may be seen as dramatizations of the scenario imagined in Sifra Aḥare Mot 9:13, the passage with which this chapter began. According to Sifra Aḥare Mot, Israel’s divine Law contains provisions that one would logically expect to find in any society, as well as provisions that cause not only outsiders, but certain insiders (those given to an evil impulse!), to object. The four dialogues analyzed here dramatize the Sifra passage by presenting the puzzlement of both an outsider and an insider. First, the outsider raises a question about an irrational, inequitable, or otherwise problematic law and is answered on his own terms. By explaining the law, the rabbinic dialogue partner converts it from an irrational ḥoq to a rational mishpat, and the outsider is satisfied. But the insiders require an answer to the same question on their own terms. The insiders in these dramatizations of the Sifra’s scenario are students who feel the sting of the non-Jew’s question and as a result need a reminder and a reassurance that even irrational laws are grounded in the authoritative will of God. The rabbi’s answer reflects the position outlined earlier in this chapter: the most highly valued laws are not the logical laws that one would expect to find in any legal system, but the irrational laws that inspire objection and complaint. These laws should not be explained away (and only an outsider would be satisfied by the attempt to do so) but accepted on the authority of Scripture as divine decrees, for these are the laws that challenge, refine, and purify those who labor to follow God’s will.

In providing these two very different kinds of answer, Rabbi Yoḥanan ben Zakkai in PRK 4:7 employs “multiple discourses” for “multiple audiences” who ask the same question (Labendz 2103, 121, 132). He demonstrates a sensitivity to the values and expectations of his non-Jewish interlocutor as well as to the values and expectations of his students, answering each in a suitable manner.³² Labendz (ibid., 121–45) argues that this attention to audience finds important parallels in the Gospel of Mark.³³ She focuses on two passages in Mark that portray a dialogue between Jesus and an outsider, followed by a reaction from insiders. The first is the passage referenced earlier: Mark 7:1–23. When the Pharisees and scribes ask Jesus why he and his disciples do not follow tradition and wash their hands before eating. Jesus gives three responses—one to the Pharisees and scribes, another to the crowd, and finally, in private, a third to his students. In Mark 10:2–11, Pharisees ask Jesus whether divorce is lawful. Jesus provides two answers—one to the Pharisees and another to his disciples.

Labendz is interested in the formal similarities between the rabbinic and Markan examples. For our purposes, these formal similarities are enhanced by the antipodal substance of the passage, which can shed light on the confrontation between divine law discourses in first-century Palestine. As noted in chapter 5, Jesus’s first answer in Mark 7 is a rebuke to the Pharisees for abandoning divine law in order to follow human law. As an example of Pharisaic neglect of divine law, Jesus points to a legal strategy employed by Pharisees to avoid supporting parents as prescribed in the fifth commandment. Jesus’s charge is that the Pharisees ignore the divine commandment to honor father and mother (by exploiting a legal ruse) but insist on hand washing, a (mere) “tradition of the elders” (Mark 7:5). Jesus’s language doesn’t merely assume the Greco-Roman dichotomy between divine law and human law—it makes it entirely explicit. Moreover, the references to purity and dietary laws (vv. 2–5 and 18–19) map this dichotomy onto the difference between a rational moral law and an irrational ritual law.

Thus, in his second and third answers to the crowd and the disciples, Jesus critiques the Pharisaic understanding of purity itself and denies the power of foods to cause defilement. Impurity, he says, is what comes out of a person, not what goes in. What goes into the body seems to have two meanings here. When he addresses the crowd, it refers to food (and hence it is a denial of some aspect of ritual impurity associated with the consumption of food);³⁴ when he addresses the disciples, it is a reference to various moral misdeeds—fornication, theft, murder, adultery, and other heinous sins. Jesus is slippery here: the Pharisees have asked him about ritual impurity, but his answer shifts to the realm of moral impurity.³⁵ His somewhat dismissive rhetoric suggests that ritual impurity is not “real” and, therefore, not significant. The divine law concerns itself with issues of morality. This response reflects a Greco-Roman discourse that associates divine law with truth (realism; G-R and virtue (G-R 3). According to the Markan Jesus, the divine law is not concerned with ritual purity (except, perhaps, insofar as it is conducive to moral virtue). It is simply a mistake to think that divine law concerns itself with, or attributes any reality to, purity of a strictly ritual nature.

In Mark 10, Jesus answers the Pharisees’ question about divorce with an argument from nature as recorded in the creation account of Genesis: humans were created male and female; in marriage they become one flesh that, being joined by God, cannot be separated by any human. Moses’s law permitting divorce was an unhappy concession to the hardness of the human heart. The clear implication is that the Deuteronomic law permitting divorce is a man-made law (an enactment by Moses) that cannot uproot an eternal divine law grounded in human nature from the time of divine creation. Jesus’s response reflects Greco-Roman discourses according to which the divine law is grounded in nature and cannot be set aside by human laws (G-R 1).³⁶

The combined evidence of these passages yields the following portrait: Jesus as presented by Mark accepts and assumes the binary distinction common in Greco-Roman discourses of law between divine law (which here promotes virtue and ethical goods like honoring one’s parents and monogamy) and human law. The divine law is grounded in nature; it is realist, and its central concern is morality; it is superior to human law and cannot be contradicted by it. By contrast, human law is exemplified here by rules of ritual impurity (which are not “real” and do not conduce to moral virtue), nominalist legal ruses that subvert observance of a higher divine law, and a human (Mosaic) rule permitting divorce (which is against the dictates of nature). According to these Markan passages, Jesus inhabits a universe of discourse on the question of divine law that is inflected by the Greco-Roman characterization of divine law and human law, and assumes a dichotomy between them.

Labendz is correct that the Markan dialogues are usefully compared to rabbinic dialogues in which different answers are given to outsiders and insiders. And as we have seen, they are also usefully compared with the rabbinic dialogues considered earlier in this chapter. Because the Gospel dialogues are marked by hostility and confrontation, Jesus has much in common with the aggressive, mocking “other” featured in the confrontational encounters depicted in Sifra Aḥare Mot 9:13 and related texts. Those who mock and ridicule the rabbis object not only to the divorce of law and truth, as seen in chapter 5, but also irrational or unethical laws as unbefitting a Law that professes to be divine. In other words, they tend to mock those features of the biblical and rabbinic presentation of divine law that deviate from Greco-Roman notions of natural law. Jesus in Mark 7 and 10 matches this description: he does not view ritual impurity as “real,” so the Pharisaic regulations of ritual impurity cannot be a command of divine law and can be set aside. Nominalist legal ruses that enable one to evade morally virtuous obligations (such as honoring one’s parents) are also objectionable. Finally, he believes that human nature was created in such a way as to dictate the practice of monogamy, and that no statement by a man, even Moses, can override this truth. Finally, he implies that the primary concern of the Law is ethical, virtuous behavior. Thus, impurity is to be understood metaphorically as sin, and the obligation to honor one’s parents cannot be circumvented.

Because Jesus is the hero of the Gospel story, his mockery is positively valued rather than condemned, and his Pharisaic opponents are silenced by his mocking critique. By contrast, in the rabbinic stories the hostile outsider (generally a min) is silenced by his rabbinic opponents. The two sets of stories are mirror images of each other. In the Gospel stories the mocking critic triumphs over those who do not conceive of divine law in natural law terms. In the rabbinic stories, the mocking critic is defeated by those who do not conceive of divine law in natural law terms.

These Markan dialogues are critically important evidence that the dueling conceptions of divine law traced in this volume were present and sparking controversy in first-century CE Palestine no less than in first-century Alexandria. There can be no doubt that first-century Palestinian Jews were familiar with Greco-Roman discourses of divine law as distinct from human law, and that they engaged in an evaluation and critique of biblical divine law in the light of those discourses. In Mark 7 and 10, Jesus makes the calculation—as Paul will also—that certain provisions of the Law as interpreted by the Pharisees are mere human provisions (stemming from Moses, from “the elders,” or from the scribes themselves) and do not reflect the divine moral law grounded in nature. Jesus makes the further calculation in these dialogues—as Paul will also—that different audiences require different kinds of answers to questions about the Law. Of course, Paul is not the Markan Jesus; Paul’s embrace of divine law discourse for Gentile audiences is more clearly opportunistic,³⁷ but both figures appear to have internalized Greco-Roman discourses of divine law, both evaluate biblical divine law in the light of those discourses, and both possess an acute awareness of audience when addressing the dissonance between the two.

CONCLUSION

Greco-Roman discourses of natural law and positive law informed the development and expression of rabbinic conceptions of Mosaic Law on the issue of the Law’s rationality. A number of the texts analyzed in this chapter attest to a rabbinic consciousness of and sensitivity to the expectation that divine law should be rational (an expectation they likely internalized but displaced onto others), and an anxiety over the fact that parts of the Mosaic Law appear to lack an intrinsic rationality or even an extrinsic rational purpose or utility. It is no accident that the rabbinic authors of these texts, like the author of the Letter of Aristeas, 4 Maccabees, and Philo, are exercised by precisely those parts of the divine law that draw criticism for being arbitrary and irrational—the ritual laws and, especially, the laws of impurity and the dietary laws. While the author of the Letter of Aristeas and Philo responded apologetically to this criticism, asserting both the intrinsic rationality and the rational purpose of the Law, the rabbis tended to adopt a rationalist apologetic primarily when imagining themselves in dialogue with outsiders. The more common rabbinic response, and the response imagined as appropriate for “insiders,” asserts that the divine law does indeed contain irrational decrees. This is not, however, a defect in the law but a virtue. Divine decrees—especially the irrational elements—cultivate obedience and provide opportunities for moral refinement and purification. This response is, of course, no less apologetic than Philo’s rationalization of the Law. However, where Philo’s apologetic is based on the premise that divine law’s authority derives from its rational character, the rabbinic apologetic denies that premise. For the most part, the rabbis locate the Law’s authority in the sovereign will of God and accept the existence of nonrational decrees. Rabbinic demonstrations of the rationality of the law tend to be found in contexts in which the rabbis imagine and represent the perspective of various external and internal others, ranging from the merely curious to the overtly hostile.

The attribution of rationality to divine law (an idea central to Stoic natural law theory) was widespread in late antique classical culture. The idea was known to Jews in Roman Palestine, and it is consciously rejected in many rabbinic texts. Rabbinic texts that represent the divine law as arbitrary fiat on occasion depict the rabbis as objects of ridicule and mockery. This representation finds confirmation in Mark 7:1–23, where Jesus is depicted as mocking the Pharisees for observing precisely those laws widely identified as irrational—the ritual impurity laws (7:1–4) and the dietary laws (7:18–19). The Markan Jesus, the author of the Letter of Aristeas, 4 Maccabees, Philo, and many rabbinic writings all agree on one point: the ritual impurity and dietary laws appear to be arbitrary and irrational. Those who accept philosophical and popular Greco-Roman claims of the inherent rationality of divine law and seek to “rescue” Mosaic Law from the charge of irrationality engage in apologetics to demonstrate the rationality of the dietary and impurity laws (Aristeas, 4 Macc, and Philo). Those who accept the inherent rationality of divine law but are not concerned to “rescue” Mosaic Law from the charge of irrationality dismiss these practices as unessential (the Markan Jesus in Mark 7; see also Paul in 1 Cor 8:8). The rabbis who do not accept Greco-Roman claims of the inherent rationality of divine law adopt a number of responses: they concede but transvalue the trait of irrationality such that the Law’s irrationality is a sign of its divinity; they concede but disown the rationalist perspective partially or wholly by assigning it to hostile outsiders; they deny the premise but declare the Law’s reasons inaccessible; or they adopt a mix of these responses depending on audience.

¹ For Aristeas, the dietary laws may seem to contradict natural categories, but when understood allegorically, they are certainly rational, owing to their ethical content. 4 Maccabees on the other hand simply asserts that the dietary laws are in their substance in harmony with nature, which is itself informed by wisdom.

² Translation based on the Weiss edition, p. 86a. The passage is from a longer unit, to be explored in greater depth below, known as the Mekhilta de-Arayot, which does not appear in all manuscripts. The unit is attributed to the school of R. Yishmael and inserted into the Sifra, which is traditionally ascribed to the school of R. Akiva. Details on the complex structure of the Sifra can be found in Naeh 1997 and 2000.

³ This does not necessarily reflect the biblical usage of these terms. See, for example, Deut 4:6, which associates huqqim with wisdom.

⁴ Rosen-Zvi (2011, 89) also understands the ascription of these doubts to various internal and external “others” as a way to externalize them: “The yetzer’s claims are rejected not because they are false, but, quite to the contrary, because they are convincing. The very act of identifying these seemingly good arguments with the yetzer is meant to discredit them, marking them as forbidden.” See further Weinfeld 2000 and Havlin 1995.

⁵ For a full discussion of these somewhat obscure terms, see Berkowitz 2012, 89–106.

⁶ In the parallel to this passage in b. Yoma 67b, the objection is attributed to Satan. Moreover the content of the objection is spelled out—these things appear to be empty or vain (tohu—a word indicating something chaotic and formless). For this reason they must be enforced as decrees that are to be obeyed without question.

⁷ The Sisyphus fragment, Antiphon’s Truth, Plato’s Ring of Gyges myth.

⁸ Ḥafetz lema’an tsidqo yagdil torah veya’adir, which the rabbis seem to read literally as “he desired for his [i.e., Israel’s] righteousness—he magnified and made glorious the law.” Read this way, the verse attributes the magnification of the Law to God’s desire to make Israel righteous.

⁹ Rav’s statement is found also in Lev Rab 13:3, where it refers to the dietary laws listed in Lev 11. Less explicit is Ex Rab 30:13, where God says that the law of the red heifer, elsewhere understood to be the paradigmatic “irrational” law (see below), was given to make Israel worthy of divine reward and serves no purpose for God.

¹⁰ See also t. San 11:6, Vienna MS, where R. Shimon b. Elazar observes that it ought to be (badin hu) the daughter and not the son, but “such is the decree of the king,” and b. San 69a: “‘a son, but not a daughter’—It has been taught: R. Simeon said: According to the law [badin], a daughter should come within the scope of the law of a ‘stubborn and rebellious child,’ since many frequent her in sin, but it is a divine decree: ‘a son’—but not a daughter.”

¹¹ This is not an inevitable reading. Elsewhere the rabbis read male nouns and pronouns as references to humanity as a whole. So the exclusion of the female here is an interpretative choice.

¹² This is clearest in the first and third questions—if the purpose of the purple thread in the fringe is to serve as a reminder, then surely the mnemonic effect is achieved when the entire garment is purple. Similarly if a small bright spot is impure, then surely a large spot should also be impure.

¹³ For more on these terms see chapter 5, and esp. n70.

¹⁴ See Urbach (1975, 365–99), I. Heinemann (2009, 25–33), and Novak (1998, 69–72), all of whom will be discussed below in greater detail.

¹⁵ First published in German in 1942; English ed. 2009.

¹⁶ First published in Hebrew in 1969; 2nd English ed. 1979.

¹⁷ B. San 21b, 102a, Pes 118–19a, BM 115a, Git 49b, Yev 23a, Yev 76b, Men 2b, San 16b, San 21a, Qidd 68a. There is a twelfth occurrence in b. Ber 62a, but here ta’amei torah refers to the cantillation marks on a Torah scroll (see also Derekh Eretz 5). There are about two dozen occurrences of ta’amei torah in medieval midrashic works such as Pesiqta Zutarta (Leqah Tov), Sekhel Tov, and Otzar ha-Midrashim combined, but these works fall outside the chronological purview of our study.

¹⁸ This text is analyzed in more detail below.

¹⁹ Post-talmudic and medieval aggadic texts (especially Leqah Tov, Sekhel Tov, and Otzar ha-Midrashim) will develop the theme of God’s past revelation of the reasons for the Torah as a reward to those he loves (Moses in PesRab 14; Zerubavel ben She’altiel in Eliyahu Zuta 20) as well as the future revelation of these secrets to the righteous.

²⁰ MekhRY Kaspa 20, Horowitz ed., 329; MidTan to Deut 13; b. BM 3a (paralleled in b. BQ 107a, b. Git 51b, b. Ket 18a, b. Shevu 42b), b. BQ 67b, b. Nid 31b, b. Sot 17a, b. Sot 46a, b. San 112a (paralleled in Num Rab 9:15), b. Qidd 2b, b. RH 116a.

²¹ PRK is divided into textual units, each of which is referred to as a piska. The translation is based on the Mandelbaum edition, pp. 54–77.

²² See m. Neg 8:2 and p. San 10:1, 27d–28a, discussed above, in which Korah challenges Moses with this irrational law.

²³ The parallel in b. Nid 9a cites Job and provides two examples of paradoxes involving ritual purity, including the red heifer. See Urbach 1975, 377–81. Urbach’s assertion (380)—that the attempt to discover the reason of the precepts is “relinquished here, and instead there is a sense of joy at their observance as decrees of the Only One of the universe”—lacks clear evidence.

²⁴ The closest parallel to this kind of nature-based reasoning to justify a legal prescription is found in CD 12:14–15, in which the proper method of slaughtering locusts is grounded in the natural characteristics with which they were created; see chapter 3, pp. 103–4.

²⁵ Here, the prohibition of wearing cloth made out of mixed wool and linen.

²⁶ See Rosen-Zvi 2011, 190n2, regarding the paradoxical or self-contradictory nature of these commandments as the reason for the provocations of the yetser.

²⁷ The plain sense of the verse is “When I take the appointed time, I will judge equitably.” R. Huna interprets the root sh.p.t (judge) in the sense of giving reasons, and mesharim (equitably) in the sense of statutes.

²⁸ Cf. b. Men 29b, where Akiva is again compared favorably to Moses.

²⁹ The piska’s ruminations on the (ir)rational nature of the red heifer law end here. The final two units of the piska walk through the text of Num 19 and present symbolic interpretations of the various details of the red heifer ritual.

³⁰ The four cases are discussed in Labendz 2013, 101–20: (1) Lev Rab 4:5 (Marguiles ed., 92–93)—a non-Jew asks R. Joshua ben Korḥah why the Jews do not adopt polytheism if Scripture itself tells them to incline after the majority; (2) p. Bets 2:5, 61c//p. Shab 3:3, 6a—a philosopher asks Bar Kappara why it should be permitted to drink but not wash in hot water on a festival; (3) p. San 1:2, 19b—Agnatos hegemon asks R. Yoḥanan ben Zakkai why the owner of a goring ox should be put to death with the ox; (4) PRK 4:7—the red heifer case discussed here.

³¹ The rabbi’s citation of a biblical verse in p. San 1:2, 19b may also serve to remind students that the law is a decree.

³² The evident irritation with which the rabbi sometimes responds to his students suggests that he is disappointed in the students for feeling the force of the non-Jew’s objection and for forgetting that fidelity to the Law does not depend on its rational character.

³³ Labendz notes that the similarity between these rabbinic texts and the two passages in Mark was already pointed out by David Daube (1956).

³⁴ This is likely a reference to the fact that unwashed hands may bear a ritual impurity that can defile food. See the full and thorough discussion of the purity and dietary issues addressed in this passage in Collins’s 2007 commentary, 348–62, and Klawans 2000, 146–50.

³⁵ On ritual vs. moral impurity, see Klawans 2000.

³⁶ The realist legal approach of the Markan Jesus resembles CD 4:21, which rejects polygamy because it violates the principle of creation—“male and female he created them.”

³⁷ Which is not to say that Jesus is not also opportunistic in his deployment of various modes of discourse. It is simply to say that Jesus is, in these texts, a literary character, as opposed to an author like Paul, and his motivations as a character are obscured by the Gospel writer.