The Oral Talmud: Episode 6 - Narrating the Law with Barry Wimpfheimer
SHOW NOTES
“In my book, I refer to ‘The Talmud's Golden Old Age.’ I was a little reluctant to use this terminology, because who knows if it's the golden old age? This could be the Midlife Period of the Talmud. We have no idea where we are historically!” - Barry Wimpfheimer
Welcome to The Oral Talmud, our weekly deep dive chevruta study partnership, discovering how voices of the Talmud from 1500 years ago can help us rethink Judaism today.
This week Dan & Benay invite on special guest Talmudist Barry Wimpfheimer, Associate Professor of Religious Studies at Northwestern University. Barry is the author of The Talmud: A Biography (2018) and Narrating the Law: A Poetics of Talmudic Legal Stories (2011).
While our last guest, David Kraemer, focused on the motivations of the sages in constructing the Talmud, this week’s guest, Barry Wimpfheimer turns the focus onto how Talmud has influenced Jewish life, and how and why different communities have utilized Talmud. What kinds of truth are at play when encountering Talmud? How did the narratives of the Talmud change in redactions? and what can the interplay of story with legal statements tell us about how Talmud was supposed to be read?
Access the full Sefaria Source Sheet with additional show notes via this link. The Oral Talmud is a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. If you’re enjoying this podcast, please help us keep both fabulous Jewish organizations going with a one-time or monthly tax-deductible donation at oraltalmud.com/donate.
-
DAN: This is The Oral Talmud - Episode 6: Narrating the Law. Welcome to The Oral Talmud, a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. I’m Dan Libenson…
BENAY: …and I’m Benay Lappe.
DAN: The Oral Talmud is our weekly deep dive study partnership, in which we try to figure out how voices from the Talmud – voices from 1500 to 2000 years ago – can help us think in new ways about Judaism today.
This week, we’re excited to feature our second guest, Barry Wimpfheimer, Associate Professor of Religious Studies at Northwestern University. He is the author of 2018’s The Talmud: A Biography and 2011’s Narrating the Law: A Poetics of Talmudic Legal Stories . Barry Wimpfheimer’s work offers some surprising synthesis on the composition of Talmud and its impact on and utilization by many different communities. We learn about Barry Wimpheimer’s own history with Talmud, his experiences in yeshiva, and how they inform his academic theories about how Talmud was intended to be read. Our conversation moves through a number of Talmud narratives and scholarly theories, which Barry Wimpfheimer uses to paint a fascinating picture of how the stories we’ve been discussing developed over the hundreds of years of the Talmud’s composition and redaction, or editing, and how these stories are essential to understanding the more legalistic parts of Talmud.
Each episode of The Oral Talmud has a Source Sheet linked in the show notes on a web site called Sefaria where you can find pretty much any Jewish text in the original and in translation – and there you can find many of the Talmud texts and books that Barry Wimpfheimer mentions – if you like, you can follow along on the Source Sheet, share the sources with your study partners, or just listen to our conversation!
And now, The Oral Talmud…
Dan Libenson: Hello, everybody. This is Dan Libenson. We are back again for another episode of The Oral Talmud with Benay Lappe, my friend and cohost, and our guest today. This is one of those every-other-weeks when we have a guest. Our guest today is Barry Wimpfheimer. He is Associate Professor of Religious Studies and the Director of Undergraduate Studies in the Religious Studies Department at Northwestern University.
He is also the author of a book that came out not too long ago called The Talmud: A Biography, which is published by Princeton University Press. It's part of a series of biographies of important books in various religions. Most recently, we've been talking to Vanessa Ochs, who published a biography of the Passover Haggadah. There's a number of these books out. Barry's book is about the Talmud. That's obviously the hook here for having you on early on, Barry.
You're also the author of another book called Narrating the Law: A Poetics of Talmudic Legal Stories. Benay owns these books. I think that The Talmud: A Biography is quite affordable, and Narrating the Law is an academic book–I think it's a little higher priced, if I recall. I don't know.
Dan Libenson: Barry, welcome. We're so thrilled to have you here.
Barry Wimpfheimer: Thanks. Thanks for inviting me. It's great to be here. I love the comic book font on the introductory slide. I've spoken to both of you in the past, and I'm looking forward to a lively conversation.
Dan Libenson: We're really excited. I think we're still trying to feel our way to figure out the best way to do a Talmud podcast that's both introductory and also really works for people who know a lot about the Talmud. What we've been doing is exploring–every other week, we've been exploring certain texts that at least Benay and I consider foundational, and important in the times in which we live. We've been trying to explore those on both an introductory level, and also on a deeper, exploratory level. We thought to have, on alternating weeks, a scholar or somebody whose life's work is really engaged with the Talmud to try to understand a little more from either historical or other perspectives what this book is really about, and what it is, and what it's for, and what it–maybe those are questions that are too simplistic, because they've had changing answers over time.
Your book–I love the idea. I know it wasn't your invention, because there's a series that invited you to write it in the form of a biography. I think it's really interesting to explore the idea of a biography of a book. Your book starts out with, essentially, the birth of the Talmud. I wanted to start out with talking about the Talmud in, let's say, the vigor of its youth, or the vigor of its adult achievement. To ask you to frame a little bit, to talk a little bit about what is the Talmud from the point of view of what did it achieve in its life.
Barry Wimpfheimer: When I was writing the book, I really wanted to embrace the conceit of the book–the conceit of the series. You mentioned that there is this series, and you mentioned that I'm writing–the idea to do the biography actually comes from the conceit of the series. I really embraced the conceit of the series, because it allowed me to get out of some of the limitations of the way academics think about the Talmud. Even the very idea of talking about the Talmud outside of its life in late antiquity would be something that, for academics, is a controversial move. Because I'm operating within a series where this biography is an expectation of what you're going to get when you're talking about the Talmud, it freed me up to talk a little bit about different stages in the Talmud's life, different stages in its development.
If you wanted to talk about the mature Talmud and its contribution, the mature Talmud, which–you could talk about the Talmud being mature in 900 CE, you could talk about it being mature in 1500, or you could talk about the Talmud being mature today. It's hard to figure out when the mature Talmud is. That's why, at some point in the book, I refer to the Talmud's golden old age. I was a little reluctant to use this terminology, because who knows if it's the golden old age. This could be the midlife period of the Talmud. We have no idea where we are historically.
I'd say that the Talmud, as a mature work, was the foundation for the repackaging of Judaism that the rabbis who produced rabbinic literature, including the Talmud, are responsible for. The process for how that happened is far more complicated–it wasn't just someone wrote a book, and everyone in the world was instantly attracted to it, and said, This is the new Judaism, and now we know what to do. Various processes, from how it became the most important text, to how it was read, and the ways that it became normative, and how its normativity was filtered in various ways–all of that were very complicated. My book tries to illustrate that in a variety of ways.
It's very clear that, at a certain point in Jewish history–let's say by the twelfth century or so–the Talmud was the foundational work for Jewish religious practice. What is the Talmud's contribution? The Talmud is foundational for Jewish religious practice, and at the same time, it was functioning, and continues to function, as the scholastic playground of the intellectual elite of the religion. It remains the case that, if you're going to be trained to be a Jewish professional leader–most of whom, historically, have been rabbis–that the primary training for that is going to be in Talmud.
That's one of the things that I try to point out in my book–that despite the various ways in which the modern period, and Jewish opportunities in light of emancipation, changed Jewish relationships with tradition, and changed Jewish relationships with traditional community, the centrality of the Talmud as a scholastic text doesn't disappear–it just gets altered. Different factions and groups might reject or resist the Talmud's centrality, or its unique claim to normativity, when they're trying to establish themselves. I'm talking about Reform Judaism, and I talk about feminism, and Zionism. All these groups have an initial inclination to say, The Talmud–that's old Judaism, that's traditional Judaism. Let's push that away as part of establishing ourselves. Ironically, though, once they become established, they go back, they rediscover, and they reclaim the Talmud, and reinterpret it.
That's a fascinating thing that's been going on. I think Benay and her story, and her yeshiva, is part of that story. It's not particularly unique to this–I think it's a particularly modern aspect of what's going on with the Talmud.
If you want to talk about what the Talmud is as a mature... I'd say the Talmud is the foundation for Jewish religious practice, it's the foundation for Jewish behaviors, and also Jewish theology and ideas. It's also the central playground, intellectually, for scholars. It's been core in terms of crafting people's identity.
That's, I think, part of why communities find it and reclaim it. Its style is so unique, in that it encourages new voices to find it and reinterpret it. It's very flexible, and it allows people to simultaneously connect with tradition while making it their own.
Dan Libenson: Could I ask you one more biography question, and then–which is, I think a little bit about the Talmud as–I guess I'm wondering whether it's the story of a guy, woman, who trained as an artist, and then somehow found themselves as the CEO. Or is it the story of somebody who always wanted to be the CEO, and went to business school, and achieved their goal?
I'm wondering–the people who, let's say, put the Talmud into its final form, or, let's say, the people who are operating late in the game, would they have imagined that we're using the Talmud, or that the Talmud would have been used the way it was for the last, the thousand years that followed? Is that what they were trying to achieve? Or were they trying to achieve something else?
Barry Wimpfheimer: To follow your lead and use contemporary buzz speak, I'd say one way of thinking about the rabbis who produce the Talmud is they had a fake it til you make it approach. They were acting as though they were in charge of Judaism and all Jews, and they were articulating visions for institutions, often hiding the fact that these were not real historical institutions. Then, over the course of time, Judaism grew into those institutions, and inhabited those fantasy structures that the rabbis had created. Would the historical rabbis have been able to anticipate this kind of success? Maybe in their wildest dreams.
It's kind of like the famous Talmudic passage of the time-traveling Moses, who finds himself in second century scholar Rabbi Akiva's study hall, and hears Rabbi Akiva's interpretation, and can't follow, because it's nothing like what Moses heard from God at Sinai. But then, when Akiva says, "And all of this we learned from Moses at Sinai," that it's somehow satisfying to Moses. That's the rabbis' own acknowledgment that what they're doing is something of a distortion to the past, even though it's very loyal, in other ways, to the past.
I think the rabbis probably, if they could be the time-traveling Moses and come to our study halls, they might have that experience of not recognizing what has happened with their work. But I think there would be a glint of recognition.
Benay Lappe: Barry, I very much relate to the fake it til you make it phenomenon. I think when I started SVARA it was a fantasy that this would ever grow up and be a real yeshiva–sort of like Pinocchio. There was a lot of smoke and mirrors at the beginning. I very much–that resonates with me a lot. You put out a dream, or a glint of a dream, and then it becomes a dream, and it becomes bigger than you ever imagined.
I wanted to ask you about what you discuss in your book, Talmud: A Biography, that there are registers of the Talmud–that there are actually three Talmuds. The essential Talmud, the enhanced Talmud, and the emblematic Talmud. Could you talk about that?
Barry Wimpfheimer: I think, in order to talk about that, I probably should–I find it effective to talk a little bit about my own biography, just a little.
I started studying Talmud as a young child. I grew up in an Orthodox family with a pretty rigorous Orthodox day school education, kind of on the border between Modern and Ultra-Orthodox. My family is German Jewish, so we're on the border of Modern and Ultra-Orthodox.
From an early age, I studied Talmud immersively. I learned very early how to read the text, how to be fluent in its combination of Hebrew and Aramaic, how to go back and forth between the central text and the commentaries, to think of them in light of each other. It didn't really speak to me very much, even though I was capable of doing it. All through high school, I was in advanced Talmud classes at Yeshiva University's high school. Because we were advanced in Talmud, that meant we didn't study Bible. If you were advanced in Talmud, you skipped the Bible section, you spent more time on Talmud.
I did not find the Talmud all that satisfying. In retrospect, I can say that a lot of what I didn't like about the Talmud is that, when you're studying Talmud in typical traditional settings, you're studying what is essentially an intellectual puzzle–a set of questions and complications, contradictions. Historically, they don't make sense. You might be studying a contradiction within the text itself, but you're just as likely to talk about a contradiction between a fourteenth century source and a nineteenth century source, or between a North African source and a German source who wouldn't have known each other.
The other piece of it is that you're also likely to not carry over a creative distinction that you made in day one to day two. The creativity is the thing that's being promoted–creative approaches to resolving contradictions and problems. The more creative you can be, the more lauded you are. I didn't find it intellectually satisfying, because I didn't understand how it was working.
When I was in yeshiva in Israel, I encountered a teacher who, without my realizing it, started to teach me in a more historical way. I started to look at the Talmud and pay attention to which material in the Talmud was tannaitic, was early rabbis, which was amoraic, the later rabbis, the pre-Mishnah and the post-Mishnah. To start looking at parallel texts to help understand the Babylonian Talmud, the Palestinian Talmud, midrash. Furthermore, when studying the commentaries, to pay attention to where the commentaries were from, and what their intellectual relationships were with each other, what their styles and methods were.
This historically sensitive work allows you to build, so that you're building on day three what happened on day two and day one. This spoke to me greatly. This is how I became really obsessed with Talmud–I became–because I found it incredibly satisfying, intellectually, to start building these massive, logical puzzles, where you're understanding and really appreciating. I had never really appreciated how the medieval interpreters of this material are tremendous–they're great readers. They're fantastic readers. They may be creative, but they're also very good close examiners of the text. That's a tough combination.
I had not found that many of the modern creative interpreters that I had been exposed to were very good readers. They were very good modern creators, but it didn't really map back on to the text. Suddenly, I had this new methodology, which was very responsible to the original working of the text, and allowed me to build in this way.
Fast forward. I come back from yeshiva in Israel, and I find myself again at Yeshiva University, a more traditional setting. There was a lot of friction between the way I wanted to study and the way I was being taught. That led to–I did college at Columbia, but I was attending classes at Yeshiva at the same time. They were nice enough to let me sit in on classes. Then I went back to Israel for a year, and then I came back and I did rabbinical school at Yeshiva. I was at Yeshiva for an additional four years beyond my three years in college.
I spent seven years at Yeshiva, Yeshiva University in New York. During that time, there was a lot of friction between my historical way of doing things and the way that they, that most of the people in the yeshiva do it, which is the traditional–it's dominated by what's called the Brisker approach to study, which is an approach to learning invented by Chaim Soloveitchik, the late Chaim Soloveitchik, in the nineteenth century. It's very bold, and it is very creative, but it's not very historically sound.
Chaim Brisker wrote a book that's all about pointing out where Maimonides contradicts the Tosafists, and coming up with creative solutions to how to resolve that they're really not disagreeing with each other–even though Maimonides wasn't aware of the Tosafists, the Tosafists weren't aware of Maimonides. From a historical perspective, there's really no point to that contradiction. But anyway, that's what they do.
I found myself at a point in time, at an age, where the fight about the meaning of the Talmud was a fight to the death about the truth of the text. I had my historical approach, and others around me had this ahistorical approach, and we were fighting tooth and nail. It was not fun. It was very uncomfortable. It led to things like the censorship of an article that I wrote. It led to real friction, real tension. I wasn't the only one doing my kind of thing, but those of us who were inclined in that direction.
After finishing rabbinical school, I got a PhD at Columbia with David Weiss Halivni in the religion department there. I would still say I was still in the throes of my pitched battle over the Talmud's meaning as truth. Then I became an academic, and I started teaching Talmud in places like Penn State, where I was first, and then Northwestern. I've been at Northwestern now for thirteen years.
Gaining that distance and gaining age allowed me to create space so that I could talk about the different ways people study Talmud, and the different things they get out of it. I began to realize that, rather than thinking of it as a zero-sum game in which either I was right or the traditional approach was right, that it would be wiser to make space for both of us.
That's where I came up with the idea of different registers of meaning for the Talmud. To think of the Talmud as having–my historical way of thinking about it I term the essential register of meaning. What the Talmud meant originally, what it meant in its historical context. By this, I don't even just mean the Talmud itself–I also mean medieval commentaries, and their historical contexts.
Then there's the enhanced meaning, which is what traditional readers do, where they take all of these texts, and they put them as if they're in one live, vibrant, contemporaneous study hall. As if the rabbis of the Talmud are talking to rabbis today, and there isn't really that much attention paid to differences in historical context.
As I was writing the book, and I was writing with this frame in mind, some aspects of the Talmud began to make their appearance, or come out. I started to think about them, and I started to remember how, when I was in college, and I heard Yosef Haim Yerushalmi teach a class on antisemitism, and he taught a class on the Paris Disputation, where the Talmud was put on trial.
I remember having this very off experience–that the Talmud he was describing was nothing like the Talmud I was devoted to and was spending my life studying. And yet, it would be wrong to just dismiss that episode as a meaningless episode. It's a very important episode in Jewish history. The Talmud is put on trial, convicted, burned at the stake. This is a very big moment. And yet, it's not the same register of meaning as animals goring other animals, or rabbis debating theological questions.
I started to think that the Talmud is also important in a third way, beyond the two scholastic ways that people think about the Talmud, which I had labeled the essential and the enhanced. I found that the Talmud is often used as a symbol of Jews–as a symbol of Judaism, a symbol of Jewishness. It's both for positive and for negative. Sometimes Jews will really look to the Talmud as the central, foundational text of Judaism, and so when they want to know what does Judaism mean about something, they'll look to the Talmud, even though the Talmud is one iteration of a particular version of Judaism. But often non-Jews will often turn to the Talmud as that representative.
That's when I came up with this idea of the emblematic register, of this third register where the Talmud is functioning as a symbol. And often, in the emblematic register, the words of the Talmud and its internal meaning are not as important as the work that's going on around it. This is how I also explained the phenomenon that's going on in South Korea today, where they've produced hundreds of volumes of what they call the Talmud that have become something of a bestseller–not in the sense that novels become bestsellers, but in the way that Bibles become bestsellers. Things that are on the persistent bestseller list.
There's a number of titles in Korea that have reached this designation. When you look at them, they're totally odd, because many of them are fusions with Korean Christianity and other strange combinations–Confucianism and Talmud. They're packaged as Talmud. Some of them, it's clear what's going on with them–the ones that have a picture of Mark Zuckerberg on the front, and say "Talmud Jewish secrets of business." It's pretty clear what's going on here. I didn't want to dismiss that work as being irrelevant to the biography of the Talmud, because I think it's actually part of how the Talmud is meaningful is the way that people use the Talmud outside of the internal meaning of the text.
That's how I ended up with these three registers–the three Es, as I call them. The essential, the enhanced, and the emblematic.
Benay Lappe: Very neat. Thank you.
I have a thousand questions, but I'm going to toss it back to Dan.
Dan Libenson: I want to pick up on one thing, as I'm listening to you, and I'm also making a connection to something Benay and I were talking about last week–somewhat on the air, and somewhat off the air. Which is almost like thinking about those three registers, but within the first register. Meaning, within the history of the Talmud, the actually history of the Talmud.
We know that there were many waves, let's say–the Talmud describes certain time periods where there were important rabbis that were often set up as rivals to each other. There were these various times–and I don't know exactly, fifty years, a hundred years apart from each other. I'm thinking about how–and then it was eventually finalized at some point. I'm thinking about, within the history of the composition of the Talmud, or the storytelling, or the work that eventually became written down in the Talmud, that how did some of those registers come into play.
In particular, I'm thinking about how we were talking–Benay and I were talking through last week, and the time before, the famous story of the oven of Achnai, which is a famous story about this dispute between, among the earliest of the rabbis, of the post-Second Temple destruction period–or among the earliest.
It somehow struck me that this story is written in such a literary way. That these rabbis are actually symbols. Rabbi Eliezer is, arguably, a symbol of the old Judaism that is finally being crushed and put to the side. He's excommunicated. It struck me as this could have happened historically, but it seems more reasonable that this a story that some much later person wrote, in which these characters, who probably were historical, were given certain symbolic meaning, and then the story was written that really is about how the old Judaism was left behind and excommunicated, and we moved forward, and there's tragedy and pathos there. It's an amazing story, read as a literary creation.
It made me start to wonder who were the actual Rabbi Eliezer and Rabbi Akiva and Rabbi Joshua, versus who was the Rabbi Eliezer and Rabbi Akiva and Rabbi Joshua in the imagination of, maybe, whoever might have composed that story in the–in its earliest form, versus the person who may have put it into its edited form. Obviously, there are more layers than that. It feels like the historical Rabbi Akiva and Rabbi Eliezer and Rabbi Joshua are in your first register. That second register that we might think about the later commentators actually is happening within the Talmud itself, where these characters are being redrawn and reimagined and rethought.
Barry Wimpfheimer: That's a good point, Dan. You could take the enhanced register and push it back farther than I did in the book, and push it back into the Talmud itself. You could even say the same thing even about the Bible.
It's amazing. To me, as a scholar of rabbinic literature, I think of the Bible as a static text–because the rabbis think of the Bible as a static text, and they work off of that. One of the classes I'm teaching now is an introduction to the Hebrew Bible, so I'm not thinking of it as a static text–I'm thinking of scholarly work that claims that Miriam, that the historical Miriam may have been a prophetess/leader of the Israelites who was not related to Moses, but the book makes her related to Moses, Moses's sister. We find this all over the Babylonian Talmud.
One of the major methodological innovations in the field of academic rabbinics over the last generation has been the study of narratives, and the study of narratives particularly with sensitivity to the parallel versions of those narratives that are found in the different works of rabbinic literature. English readers will definitely want to check out Jeffrey Rubenstein's various books on this topic. His first one was Talmudic Stories, but he also has Culture of the Babylonian Talmud, Stories of the Talmud. There was one more accessible one that just came out with JPS. I forget exactly what that one was called.
Part of the great work that Jeff is doing there–and he's drawing a lot on prior Israeli scholarship, most of which is available only in Hebrew; he also is drawing on the work of Shamma Friedman–is sensitivity to the editorial work that's going on. That the later Babylonian Talmud anonymous voices are responsible for editing versions of the stories that they've received. The stories of Rabbi Akiva that we know and love, about Rabbi Akiva being a shepherd and coming to Torah late in life, and then going and studying Torah for twenty-four years, because his wife, after twelve years, says, You can go back and study for another twelve years. So he doesn't even go in and say hi, he goes-
The versions that are famous are almost all the late Babylonian versions of the stories. But if you look at the parallels, you can see the earlier versions of those stories in earlier, usually Palestinian, works of rabbinic literature. If the late Babylonian version is coming from around 500 CE, through the use of parallels from the Palestinian Talmud you can find something from 350 CE. Or from Genesis Rabbah, you can find something from 400 CE, or if it's from one of the early midrashim, it's going to be from the third century CE, or from Tosefta, it will be a little earlier. We have this ability to do some comparative work. That comparative work demonstrates to us that the later editors responsible for the Babylonian versions are good storytellers, and they're trying to maximize the impact, the literary impact, of their stories.
What I said before about Miriam–we find this a lot. The Babylonian storytellers like to take female characters and connect them to male characters. Bruria becomes Rabbi Meir's wife, even though, in the Palestinian original, she's not. She's just a Palestinian woman who was part of the rabbinic discourse, and happens to be female. The Babylonian Talmud is not so comfortable with that, so they marry her off to Rabbi Meir. Almost all the female characters in Babylonian Talmud stories are connected in similar ways. Yalta becomes Rav Nachman's wife, even though in some of the versions, she isn't.
There's a number of things going on there. There's some anxiety on the part of the rabbinic writer about the role of women. There's also, when you make Bruria Rabbi Meir's wife, then you can create a whole drama of Bruria's relationship with Rabbi Meir and the tension between them, when you have two different participants in rabbinic discourse who might have competing opinions who are married to each other. You have very interesting stories in that way.
To get back to your specific question, though, about the historical Rabbi Eliezer, and the historical Rabbi Akiva. It was Jacob Neusner who, beginning in the 1970s, began the process of highlighting to historians that we can't trust the stories to tell the proper true historiography of these figures. Up until the 1970s, if you read a work of Jewish historiography, the version of Rabbi Akiva that you would find was probably the maximal version from the Babylonian Talmud, turned into–minus the supernatural stuff. Anything that wasn't natural or was a challenge to rationality would have been taken out.
Starting with Neusner and his students, there was a big challenge, and a new skepticism emerged, where now we recognize that, more often than not, the versions of scholars that we find in stories, if not a hundred percent fiction, then they're at least more than fifty percent fictional. Even when Neusner's critique got absorbed, for a while, still, particularly in Israel, there was still a lot of attempt to say, But there's a historical kernel in here. If we can read this properly, we can recover the historical kernel.
The tide's turning with that, even in Israel, now, where there's much less attempt to recover the historical kernel. And yet–and this gets back to your specific thing about Rabbi Eliezer–Rabbi Eliezer is a fascinating character, because aspects of his character that show up in the oven of Achnai story are consistent with his character as depicted, not only in all the other narratives of Rabbi Eliezer–or most of the other narratives of Rabbi Eliezer–but also in the legal arguments that are not framed as narratives, where he takes rather extreme positions, but those positions tend to be small-c conservative positions that look like Second Temple sectarian positions. It does look like Rabbi Eliezer is consistently–he is sometimes referred to by the Babylonian Talmud by his peers as a Shamuti, which is sometimes understood as a follower of Shammai, which is one way of calling someone out as being a type of sectarian.
Rabbi Eliezer actually has a consistent portrayal. There are some scholars that have a consistent portrayal from story to story. I'd say that Rabbi Akiva also has something of a consistent portrayal, when you look at–some of Neusner's students did biographies of particular rabbis, biography of Rabbi Akiva. To try to move away from some of the literary embellishments, and come to some appreciation of who a historical Rabbi Akiva is–and I don't know that you'll ever fully get to a historical picture, but you might get a better historical picture.
One of the things that's been happening, since the discovery of the Dead Sea Scrolls, is that there's been a nice comparative symbiosis between Dead Sea Scroll scholars and rabbinic legal scholars teaching each other how to read their material. The more we read Dead Sea Scrolls law–and I'm particularly thinking of Aharon Shemesh's English book, Halakhah in the Making–the more you read Dead Sea Scrolls law, the more you appreciate people like Rabbi Eliezer. You start to see, Wait a second, this Beit Shammai and Rabbi Eliezer have–and Rabbi Tarfon–they have an affinity for what was going on at Qumran. They have some of the same positions, they have some of the same worldviews.
I also like to point out, because usually when people do the oven of Achnai–I think it's because of the democratic, pluralistic society that we live in–people like to make Rabbi Joshua and Rabbi Gamliel, who are the majority spokespeople, they become the heroes of the story. But if you read the story fully, the story is much more ambivalent about who's the hero. The rabbis get punished for what they do to Rabbi Eliezer.
I think that there's also a mournful note. I think, for all of the fact that rabbinic literature does choose Hillel over Shammai pretty consistently, there is something lost when you give up on what I would say is the integrity of the Shammai or the Eliezer position. They have a certain honest integrity and commitment to a form of religious life which they don't want to give up. They're usually not the winners–because the winners in the story are people who are pluralists, who are willing to say, Yes, there may be some kind of pure, divine way of thinking about truth, but we don't really care about that. Which for us, in the postmodern mode, is fascinating that the ancient rabbis would do that.
I think what's happening with the Dead Sea Scrolls is we're beginning to appreciate more some of the qualities of Rabbi Eliezer and people like that.
Benay Lappe: Barry, I'm particularly excited about your work describing the interconnectedness between narrative and law. As some people know, until relatively recently, the non-narrative material in the Talmud was understood to be completely separate and irrelevant to the halachic or legal material. The narrative, non-legal material was taught to women. This was not important.
You build on the work of the late Robert Cover, particularly in his article "Nomos and Narrative," that says, No, they're intimately intertwined. You articulate so beautifully in your first book, Narrating the Law, that the narrative, the stories of people's lives, are brought in to complicate, to problematize, to add nuance, to push back, sometimes, against the law.
As a queer person, that really resonated. That's what I was seeing anyway. As someone who knows what it means to have your life experience that you believe and you trust be in conflict with the way the world is supposed to work–it was really rewarding to me personally to hear you talk about the role recognized by the Talmud of lived experience, and how that should be pushing back, and how the Talmud models lived experience as needing to be held up against what we think the simple answer should be. Can you talk a little bit about that?
Barry Wimpfheimer: I want to respond for a second to–I hope what I'm saying resonates with you. Do you remember the documentary Trembling before God?
Benay Lappe: Sure.
Barry Wimpfheimer: Remember that documentary? I remember walking away from that documentary, which set up this opposition between religious observance and homosexual lifestyle. I remember walking away from that movie thinking, I get why the filmmakers made the choices they made. They set up, basically, an elemental crash between the two–the irreconcilable. It got people on camera who would represent this impossible divide that you're never going to bridge.
I walked away thinking, Isn't it more interesting to find people who are bridging that divide, and to talk about how queerness fundamentally changes questions of epistemology, and how queerness should change what it means to be observant. It's not like these things are in some kind of binary opposition, and are irresolvable. It's much more interesting to think about how ways of being in the world change ways of thinking in the world.
Benay Lappe: And the fact that there's a historical precedent–that that's how the system has always worked.
Barry Wimpfheimer: I don't know that I came to that right away. One of the things that I was really happy to be able to do with the stories I was looking at in Narrating the Law was I think it's a much more compelling argument when you can make the claim that–you're not just making the claim, as a postmodern reader, that I'm going to go back and read them in this way. You're making the claim that they should have been read this way all along. That historically, this is how they were designed to be read. It's just because of accumulated hermeneutics, and frameworks that have built up over time, which are related to certain kinds of communal structures and normative needs, that halachah and Aggadah came to be the way they are. But actually go back to the text, peel away all of those apparati, and just read it the way it presents itself to you. It's presenting it as it's not simply-
The example that I used, I think, to open up that book is the example of drinking on Purim, where the text tells you, You have to drink on Purim until you don't know who's Mordechai, who's Esther–who's Mordechai, who's Haman, who's Esther, who's Vashti. You have to know the - you can't know the difference. And then immediately it tells a story about two rabbis who get drunk, and one kills the other one. The next year–he somehow, miraculously, brings him back to life, and then the next year he invites him over again, and the rabbi says, No thanks, miracles don't happen every day.
What I tried to point out is even if you look at–if you look at the text, it's hard to figure out what the text is asking the reader to understand from a normative perspective. That opening text says you got to get drunk. Then the second text really complicates that notion of you have to get drunk with this very problematic story, which cuts down its problematic nature with some humor, so maybe it's parodying itself.
Then I showed how, even in the history of halachah, in Jewish law, over the course of history, various readers noticed this problem. It's not something that I, the twenty-first century reader, am noticing for the first time. This is something that has been noticed and dealt with, but it's been dealt with in very specific ways.
What I try to do is I try to say, Let's not privilege the normative structure, and read everything in light of the normative structures of the law code, and Mishnah-style texts. Let's allow the stories to breath. Let's allow the stories. What would happen–and this is where–you mentioned Robert Cover. In this part of the book, I'm more influenced by the Russian literary theorist Mikhail Bakhtin, who came up with what he called a prosaics. He basically said, When you use the word poetics, you're privileging poetry over prose–you're basically assuming that what good literature is is poetry. All prose is going to be bad poetry, by comparison. If you wanted to value the novel, as Bakhtin did, you had to create a prosaics, where you're actually coming at it from the perspective that the prose writing of the novel is the ideal.
That's what I was doing with my stories. I said, If you're going to approach these stories and ask them to participate in the halachic register by turning them into legal statements saying, Drink wine, or, Don't drink wine, then they're not going to work very well. They're very poor texts. But if you flip it around, and you allow the stories to be the structure in which you see everything, then you can make space for the normative legal statements without privileging them. Now you have a conversation that goes across different registers–it incorporates the legal, but it incorporates lots of different aspects of culture, including power dynamics and sociology, emotional register.
In some of the stories there, I get into Freudian interpretations of what's going on with the emotional life of the characters. I get into [Borgesian] interpretations of the sociological, the framework of the community. I'm trying to basically privilege frameworks other than the law, while at the same time recognizing that these are legal texts, and they do demand some kind of response in practice. Not ignoring that, but also incorporating that into the conversation.
Benay Lappe: Thank you. I particularly loved your treatment of the lovesick man in relationship to the halachic claims of pikuach nefesh. You save a life, no matter what, with these three exceptions–and here comes this story of a man whose life we choose not to save, in spite of the fact that the three exceptions to that rule aren't in place. I thought that was stunning.
Barry Wimpfheimer: Thank you.
Dan Libenson: Can you say more about that?
Benay Lappe: Talk more about that, that story, and the relationship of that to the notion of pikuach nefesh.
Barry Wimpfheimer: One of the most famous passages of the Talmud is the passage that talks about the three cardinal sins, for which the expectation is that, if you were in a situation where you were asked to choose between the law and your life, that you would give up your life. Those three cardinal sins are homicide, adultery, and idolatry. If anyone put a gun to your head and said, Kill someone, you're basically supposed to allow yourself to get killed–you're not allowed to do that. Adultery, similar scenario. The biblical definition of adultery is a man having sex with a married woman. We won't get into certain issues that come out of that. Idolatry is pagan, iconic worship of a deity.
The Talmud, in Tractate Sanhedrin, has a whole treatment of this. It goes on for several pages. At the end of this treatment, it tells a story of a lovesick man–a man who is so besotted with a woman that he must have her, and he's dying from his lovesickness. He approaches–the way the story is set up, there are doctors, and there are rabbis. The doctors are giving prescriptions about what he can do. They start out with they should have sex, which the rabbis say, For sure no. Slowly, they ratchet it down, so that the final level is the doctors say, He should have a conversation with her over a barrier. Picture some kind of mechitzah, and they're having a conversation. The rabbinic voice says, No, he has to die–let him die and not have this conversation with her.
Benay Lappe: That's the premise of the story–that if he doesn't have sex with her, he's going to die. Now what are we going to do.
Barry Wimpfheimer: Yes.
Later amoraic voices, and the anonymous Talmud itself, weigh in on trying to figure out why the rabbis made this decision. For starters, it's not even clear that the woman is a married woman. The simple reading of the text is she's not. Even the first level of actual intercourse is not something that would rise to the level of a cardinal sin, according to the normative passage that we just completed in the Talmud.
What I tried to show is that in this story, the rabbis are really–this story is about rabbinic authority and rabbinic power. They are staging a rabbinic power that goes beyond the of the law. They are specifically setting up a scenario in which the expectation is that something would be permitted by the rabbis-
Benay Lappe: In order to save this guy's life.
Barry Wimpfheimer: -in order to save this guy's life. But the rabbis refuse to do it, and in that moment, they are basically arrogating to themselves the power over this man's life.
One of the reasons why I find this story very helpful is that I have found, particularly in the modern period, that there is a way in which discourse of halachah, discourse of Jewish law more generally, but even modern halachah, sometimes there's a lack–there's a failure or a disconnect between what the halachah advocates, and what the people who interpret the halachah are saying. As if to say, I'm not responsible for what I'm saying. I am operating within this system, within this discourse. It's not me–it's what I've inherited from my tradition.
What I found in this text is that you go back to the earliest part of this tradition, and you can see that there's actually people here who are pulling the levers of this and going beyond the level of the law in order to–instead of thinking of myself as a servant to the law, and I'm just the vehicle through the which the law's power and authority gets expressed, it's actually the other way around, where the law becomes the thing that empowers me. I find it, therefore, a cautionary tale. This is something that rabbis should be aware of. The rabbis of the Talmud are themselves going beyond their own recommendations and expectations.
This is where–one of the things that I've tried to do in all of my work on Jewish law is to try to contextualize the legal and connect it to the legal subjects. In a piece that I wrote that came out in a Festschrift for Daniel Boyarin, I talk about legal theorists and their–the way they think about legal theory in light of the legal subject. For a long time, legal theorists–and this is very popular in the field of halachah, particularly the thought of Ronald Dworkin. It's very popular in the field of halachah, because Dworkin thinks of the judge as someone who's empowered, but embodies this system of law that comes before, but isn't really free to deviate. His famous metaphor is the metaphor of the chain novel–the judge is the person writing the last chapter in a novel that previous people have drafted.
That is, I think, a view that has become popular for people thinking about legal thinking and halachah, because it's one that I think is very popular within, among certain halachic practitioners, to think of halachah this way. I would like people to recognize that that's not actually how any legal system works. That there's always subjectivity involved, and that the legal subject–and subjectivity in a number of ways. Law operates, when it's a practiced law, it operates on and through subjects. Particularly in Jewish law, when you're talking about actual lived practices. The legal subjects are the ones who inhabit and embody and actualize some of these ideas. In addition to that, at the level of adjudication, of judgement, or even at the level of legislation, these are human beings who are human subjects, and have a certain kind of emotional relationship with their material.
One of the first stories I do in Narrating the Law–the first one that actually triggered the whole project–was a story about the amora Rava, and he's in the beit midrash with his own students, and he's teaching them. His students, he's teaching them about certain liberties that school children can take with their tutors. His students then turn around and say, We can do the same thing with you, because you're our teacher. He gets so offended. He's offended by the fact that he's being analogized to a tutor, but he's also hurt by the fact that they're trying to economically take advantage of him using the law. He lashes out at them. He says, No, it's not the same. The text says that he gets angry at them.
I find that a great example of the fact that Rava is an emotional subject. His emotional response to how, and how his ego is being treated in the room, implicates how he responds, and those texts become part of our tradition. Maimonides cites Rava as that's the basis for what the law is.
At every point in history, subjectivity is a major part of law.
Dan Libenson: I think that I want to bring together a question that came from the earlier part of our conversation, but I think it ties in to what we're talking about now. As somebody who went to law school ,and taught law for a number of years, I've been thinking for a long time that part of the problem of, let's say, the Judaism–we tend to call it Orthodox–but the Judaism that's more plugged in to using the Talmud as a source of law, and that's plugged in to the idea that Judaism is a source of, or is a legal system, as opposed to some other kind of way in which we're connected–that the Jewish legal approach, the Jewish legal world, by which we tend to mean, usually, the rabbinic world, is impoverished by a lack of deep exploration of contemporary legal theory.
Yeah, for somebody who never went to law school, you can say some simplistic notions of, This is what it says, and what can we do, and this is what–anybody who goes to law school understands that there are many different legal theories that can be applied to any body of law, and that there's nothing special about the Jewish legal system, even if you believe that it's given by God. It's still subject to a variety of interpretive challenges that modern legal theory has come to elucidate, and help us understand that there's not one right way, necessarily, to do it. And that the whole world would be much enhanced if it wasn't just selectively choosing Dworkin, but actually understanding that there's all kinds of legal theory, and we better really understand it. Maybe we should have a more subtle sense of what legal theory we want to use when thinking about this.
The connection that I am making to what we were talking about earlier is that my wife and I have been doing the daily Talmud page study. We've been talking about this a little bit. What we're struck by, especially she's struck by, as someone who doesn't really have any Talmud background before, is the amount of concern that there is about ritual purity. All of this business about if you do this, it's ritually pure, and that, it's not. It's like, What is this even about?
It made me wonder if there was a founder's effect of rabbinic Judaism that came from, just like you're talking about Rabbi Eliezer and this connection to Qumran, to the Essenes, and these ideas of ritual purity that were actually very important to a certain subsection of Jews in the late Second Temple period. We tend to think about–this is why I also see the difference between the historical Rabi Eliezer, and the Rabbi Eliezer of myth. I wonder–and we were talking a little bit with David Kraemer about whether or not the early rabbis were radicals. He suggested that they weren't, whereas the rabbis of myth, some of them are.
I'm wondering... maybe there's a founder's effect of rabbinic Judaism, that it was extremely concerned with purity. Then, when we move forward a few hundred years to Rava and some of these later amoraim, that what they're trying to do is soften these purity rules.
The difference is that in our time–here's the connection. The difference, is in our time, the people who have that approach, where they find the halachah to be oppressive, they tend to leave–they tend to leave the system. Therefore, those who remain in the system are attracted to the conservative contemporary legal system that justify what they're saying, and those who are attracted to the more progressive legal system basically say, It's too much effort–let's just leave. The system then becomes a one-way ratchet towards increasing conservatism.
I'm wondering if that's a way to understand the project of someone like Rava, or some of these folks. I think of them as maybe people that might be in today's Ultra-Orthodox world, and they're saying, We don't want to leave it, or we can't leave it, but we're stuck here, so we better soften it. I wonder whether any of that stuff, how it lands on you, and whether there are ways to understand some of those internal dynamics of the Talmud as some kind of weird system obsessed with purity, and then it's a lot of people trying to figure out how to soften the impact. Not only purity, but other kinds of central concerns.
Barry Wimpfheimer: By the way, on purity, I have to give a shoutout to my former colleague Mira Balberg's work on purity, where she demonstrates that the rabbinic obsession with purity, which would be different from the Temple period. In the rabbinic period, there's no–in the Mishnah, there's no more Temple anymore, so most of the purity stuff is entirely practical. She demonstrates that purity is the way rabbis think about objects and the cultural world around them, and in so doing, construct their notion of what it means to be a human being–their idea of themselves, and where the self starts and ends.
There's a lot of stuff going on there that probably would be more natural to our minds to have taken place in a philosophical setting–and even, in the ancient world, probably did take place with people like Plotinus, and neoplatonism, or something like that, where it's happening in a much more explicit way. Purities is actually possibly the discourse where rabbis are constructing their notion of the self.
I totally get what you're saying. I think there's always been a legalism. The obsession with purity is not just an obsession with purity, because it's also an obsession with details of Temple rituals that are not being done. It's obsession with details of all kinds–what the straps of the tefillin are going to be made out of, and if you don't pray at this moment, and you pray a moment later, does it count or not. These things that the rabbis seem to pay a lot of attention to. The late Berkeley ethnographer Alan Dundes has a book on this, called The Shabbat Elevator and other Subterfuges, I think he calls it. He talks about these tendencies as a communal OCD.
I don't know that I would say–I don't know that I fully agree with what you're saying, Dan. Maybe this is a different version of what you're saying. I've always found that the people whose work I really respect, in terms of traditional rabbis in the Talmud, traditional rabbis outside the Talmud, are people who are willing to write outside the lines, for want of a better term.
What I find fascinating about the later figures like Rava–you mentioned Rava. Rava's the most, he is the most prominent rabbi of the Babylonian Talmud. His name appears more often than any other rabbi. He is incredibly creative in what he's able to do. He, at some point, articulates this fascinating idea that–which, as a former law professor, I'm sure you appreciate, which is–he also uses very colorful language to express it, which I won't go into. He basically says that contracts are inviolable. Even if you contract to violate a biblical ordinance, you contract something that's prohibited by the Torah, contract is still valid.
What that means is that, on a metaphysical level, if you've made a financial arrangement with someone–the particular example he uses is a man who hires a prostitute. If a man hires a prostitute, it's illegal, according to biblical law. Once it's done, it's contracted, and so she owns the money–the money is hers. It is metaphysically hers, because the contract is honored. That's a bold move within a religious tradition, within a religious legal tradition.
Rava regularly has ways of thinking about retroactive realities, using his creative legal mind to talk about how–this is the famous issue that comes up about marriage annulments. That's not particularly a Rava one–it's just the anonymous voice of the Talmud saying, How could a consummated marriage be annulled if rabbinic law thinks that sex consummates marriage, and is enough to produce marriage? The rabbis say, He didn't act properly, so we don't act against him properly–we retroactively undo the metaphysics of the marriage. Which is totally bizarre, by rabbinic law, because they're not supposed to be allowed to do that, but they just license themselves to do it.
That kind of coloring outside the lines has always appealed to me. I think it's necessary, when you're dealing with a legal obsessive–there is a tendency, and I think you have a great point, that nowadays many of the people who would be able to write outside the lines have just left. Which probably explains–one of the things–it's rather remarkable that, given how many people study Talmud at a high level right now, particularly in Ultra-Orthodox yeshivas, that there isn't more creative material coming out of that world. There hasn't been an explosive new Talmud commentary coming out of the Ultra-Orthodox world basically since World War II. That's a very long time, when you have unprecedented numbers of people studying this material.
A few years ago, I interviewed someone who's in an Ultra-Orthodox kollel because of a piece that I was writing. I asked him about it, and he said, "Yeah, because we're not interested anymore in producing Torah. Torah knowledge is not the product. The product now is yeshiva bachurim–the product is disciplined people who are in line with whatever the program is." Because the factories have changed what they're producing, you're no longer even getting that one in a thousand who's rising to produce something really monumentally impressive.
I think that's also part of the modernization of Talmud study. It's people who are–you're right. creative people are leaving, and they're not staying within and fighting these things. In addition to that, I'd say the people within are using their materials, they're transforming their materials so it's entirely about keeping people in line.
People often ask me about Talmud study. Often, I go out and I speak to people, and I invariably will get someone from a crowd who will come up to me and tell me about a son or a son-in-law who's gone off the deep end, and now studies Talmud all day, and doesn't relate to them. I find myself as this cultural translator who's translating positions. I sometimes feel like I have to defend those people, because I think that there is something really–there can be something really creative and cool about people who spend their lives in kollel and really try to understand the depths of the Talmud. Even though I also appreciate the other perspective, that it may be that they're actually not really doing much other than internalizing other people's ideas and thoughts and inheriting them.
Benay Lappe: I wanted to say that I really appreciated your articulation of what's not happening in yeshivas today, because it's precisely the opposite of what we're trying to do at SVARA.
Dan Libenson: That's what I was going to say.
Benay Lappe: I'll let you say it.
Dan Libenson: I was going to say that until there was SVARA, they had to leave the system. Maybe there are ways in which they still have to leave that system, but they don't have to leave the Talmud. I actually think that's an interesting way to think about SVARA, and maybe whatever SVARA might beget, and also places like Hadar. Whether we may see some new–maybe this is, like you say, Barry, the next chapter in the Talmud's life–maybe it's only been middle aged, and this next chapter is one in which there actually, there's a whole nother landscape where the Talmud is operating, and maybe-
Barry Wimpfheimer: Let's be honest–the most exciting stuff that comes out on Talmud now is coming out in academic circles. It's not coming out in–it comes out–and this, I don't mean specifically the English-language stuff, because the Hebrew stuff is great too. The critical commentaries that Shamma Friedman and his students have produced, which are really inaccessible right now to the American audience, are tremendous. Source-critical analysis, breakdown of how Talmudic ideas evolved. That stuff is tremendously creative. But again, it's coming out in academic settings.
What's happening in Israeli Modern Orthodox contexts is those academic settings–those academic publications are filtering back into the Modern Orthodox yeshiva study. Modern Orthodox yeshivas now routinely are aware of Friedman and Halivni's notion of periods of composition, and the anonymous editors. They also, as was my own experience in yeshiva, they're occasionally reading things under the table that they're not bringing out on top of the table. Halivni's commentary to the–I remember the first time I saw someone in the yeshiva reading Halivni's commentary, which I had never heard of before, under the table. Fascinating stuff.
Dan Libenson: I was reading other things under the table.
Barry Wimpfheimer: I'm sure. Also, Dan, I have to say, it's very nice that you think that most of the world is legally trained at the level of law professors, that is aware of the variety of legal theory in the world. It's my experience that-
Dan Libenson: No, I don't think that.
Barry Wimpfheimer: -when judges get confirmed in the United States, and we get those hearings, and you get–the least intelligent versions of legal theory ever are what comes out in those congressional hearings.
Dan Libenson: Yes. You're right, and I'm not necessarily ascribing special fault to the halachic world, nor special praise. I wish that it were enriched by a more nuanced ability to talk about how–that doesn't only have to be a black or white decision, we either accept or reject this. That there are ways to accept it in all kinds of ways, including a, let's say, extralegal approach that we might see at a place like SVARA, or a different legal philosophy. I'd love to see the law school version that's a critical legal studies Talmud law school. That would be fascinating.
Benay Lappe: I'm not sure I agree that we have an extra-legal approach. Actually, what we're trying to say is we are-
Barry Wimpfheimer: This is legal, yeah.
Benay Lappe: This is the legal approach, this is how it's always worked. Like you, we're trying to peel away the way the Talmud has more recently been read, to say, Look at what they were doing, and what they were telling us to do, I think. I still have a list of questions that I'm dying to ask you, but-
Dan Libenson: We'll have to have you on again.
Barry Wimpfheimer: Follow-up podcast, exactly.
Benay Lappe: Can we? I want to talk about Rava and his role in expanding this notion of svara. I want to talk to you about the role of Talmudic thinking in popular culture.
When I began learning Talmud, I had this profound experience of, Wow, this is so familiar to me. This sounds like my kitchen table when I was a kid. This was the dinner table. I thought to myself, My father speaks like this–but he's never read a page of Talmud in his life. The way in which, in the world that he lived in, there was enough of a trickle-down from the one percent who were learning Talmud out into the larger Jewish culture, so that, as you point out in your book, those producing American Jewish culture are really influenced by Talmud. You get the Seinfeld analysis, microanalysis, of everyday things. I want to hear more about that, but we're probably going to have to stop. Can we leave that as a cliffhanger?
Barry Wimpfheimer: Yeah, let's put a pin in that. We'll come back to that next time.
Benay Lappe: Great. Dan, I'll let you have the last word.
Dan Libenson: Thank you so much for being with us, Barry. This is great. The good thing about doing a podcast, or whatever this is, is we don't have a fixed ending time–but we should end relatively on time. Really grateful to you for spending this time with us, and we'll definitely have another conversation. Thanks so much for being here.
Barry Wimpfheimer: Thank you for having me. This is great.
Benay Lappe: Barry, thank you so much.
Watch on Video (original unedited stream)
