R. Yose from Mamleh, R. Yehoshua of Sikhnin in the name of R. Levi: Children during the time of David, even before they tasted sin, knew how to interpret the Torah [by adducing] forty-nine [arguments that something is] impure and forty-nine [arguments that the same thing is] pure.Footnote 1
Aristotle trained young men … that they might be able to uphold either side of the question in copious and elegant language. He also taught the Topics … a kind of sign or indication of the arguments from which a whole speech can be formed on either side of the question.Footnote 2
Saul Lieberman has shown that various aspects of Greco-Roman culture were pervasive not only among more Hellenized Jews of the first centuries CE, but that even “the Rabbis of Palestine were familiar with the fashionable style of the civilized world of that time. Many of them were highly educated in Greek literature. … They spoke to the people in their language and in their style.”Footnote 3 An integral part of this culture involved the study of rhetoric, a staple of higher education throughout the Roman Empire.Footnote 4
Therefore, it comes as no surprise that many parallels exist between various forms of Greek rhetoric and the Talmud.Footnote 5 To cite a few prominent examples, Henry Fischel analyzes parallels throughout rabbinic literature to numerous rhetorical literary forms, most significantly the chreia. Footnote 6 Eli Yassif finds cases of exempla and fables that are repeated, sometimes almost exactly, in rabbinic literature.Footnote 7 Saul Lieberman and David Daube investigate the links between Hellenistic and rabbinic methods of interpretation.Footnote 8 Boaz Cohen compares discussions by Greco-Roman rhetoricians about letter versus spirit in legal interpretation with similar notions in the Talmud.Footnote 9 Jacob Neusner analyzes the use of dialectics in rabbinic literature.Footnote 10 Alan Avery-Peck examines the use of Greco-Roman modes of argumentation in rabbinic pronouncement stories.Footnote 11 Shlomo Naeh's research on the art of memorization, one of the five stages in the study of rhetorical oratory, points out fascinating parallels between rabbinic and classical literature.Footnote 12 Martin Jaffee, based on examples from the Yerushalmi, argues that Galilean rabbis practiced oral exercises similar to those described in the progymnasmata of Theon and Hermogenes.Footnote 13 Lieberman submits that the rabbis “probably did not read Plato and certainly not the pre-Socratic philosophers.” He does, however, conclude that the rabbis' “main interest was centered in Gentile legal studies and their methods of rhetoric.”Footnote 14
The goal of this study is to further explore the possible use of classical rhetorical structures and thought processes in the Talmud. This analysis will shed light on the interactions between the rabbis and their surrounding Greco-Roman culture, as well as provide insight into the nature and provenance of talmudic reasoning. This article focuses on one sugya from the Yerushalmi. I will first present a source-critical analysis of the sugya, followed by a second analysis using rhetorical criticism. The rhetorical analysis will focus on the arrangement of the parts of the sugya and will reveal its similarity to classical rhetorical structures and methods, as defined in the rhetorical treatises of Aristotle, Cicero, Quintilian, the anonymous Ad Herennium, and On Invention attributed to Hermogenes.Footnote 15
I make no claim that any of the rabbis or schools of redaction read any of these works or even any summaries of these works written in later centuries.Footnote 16 Rather, I propose that elements of rhetorical thinking and its methodologies were widespread throughout the Greco-Roman world and formed an integral part of its culture.Footnote 17 The rabbis may have absorbed these ideas in conversations with their neighbors or through listening to an orator in a public square. Whatever the case, the classical canons formed the basis of thought and composition throughout the Roman Empire, and the rabbis could not have been completely isolated from them.Footnote 18 I propose that the composers or redactorsFootnote 19 of the sugya discussed here utilized some of the styles and goals of oratory composition common in their environment.
This article analyzes one section from Yerushalmi Berakhot 1:1, concerning the halakhic practice of Rabban Gamaliel II. Tannaitic sources include many narratives that portray Rabban Gamaliel of Yavneh as someone who did not always consider himself bound by the practice of the majority of sages. In some cases, Rabban Gamaliel was more stringent than his colleagues;Footnote 20 in other cases, he was more lenient.Footnote 21 Rabban Gamaliel not only practiced according to his own opinion against the majority, but even reportedly used his power as patriarchFootnote 22 to force others to accede to his view.Footnote 23 The picture formed by these rabbinic sources, regardless of whether it is historically accurate, is that Rabban Gamaliel sometimes dissented from the majority opinion by acting independently and, in some cases, even showed intolerance for those who did not agree with him.Footnote 24
My interest here, however, is neither in the historical Rabban Gamaliel nor even in his portrayal in tannaitic sources, but rather in how the Yerushalmi interprets one such report. As we will see in the source-critical analysis, the Yerushalmi reads M. Berakhot 1:1 and other sources against the grain in order to prove that Rabban Gamaliel and other Tannaim did not, in fact, act against the majority. Such forced interpretations reveal that the Yerushalmi's conclusions derive from a preconceived ideology of the Yerushalmi redactors. This strategy sheds further light on the genre of this sugya as rhetorical oratory. This will help explain how the sugya's redactors may have reflected on their own activity and, in turn, how we should read their work generally.
Source-critical analysis
The Yerushalmi passage under discussion comments on M. Berakhot 1:1, which reads as follows: Footnote 25
.מאמתי קורין את שמע בערבים משעה שהכהנים נכנסים לאכל בתרומתן [A]
עד סוף האשמורת הראשונה דברי ר’ אליעזר וחכמים אומרים עד חצות רבן גמליאל אומר [B].עד שיעלה עמוד השחר
מעשה שבאו בניו מבית המשתה אמרולו לא קרינו את שמע אמר להם אם לא עלה עמוד [C]
.אתם ליקרות Footnote 26השחר מותרין
[A] From what time may one recite shema‘ in the evenings? From the time that the priests enter to eat their terumah. Footnote 27
[B] [One may continue to recite shema‘] until the end of the first watch (i.e., the fourth hour of the night); these are the words of R. Eliezer. But the sages say until midnight. Rabban Gamaliel says until dawn arrives.
[C] It happened that his [Rabban Gamaliel's] sons came from the banquet hall. They told him, “We did not recite shema‘.” He responded, “If dawn has not yet arrived you may recite.”Footnote 28
Line B records three opinions: R. Eliezer says one may recite only until the first watch, the sages say only until midnight, and Rabban Gamaliel says even until dawn. Line C recounts a story in which Rabban Gamaliel instructed his sons to follow his own opinion, even though the sages invalidated recitation after midnight. Rabban Gamaliel breaks with his colleagues in allowing his sons to recite after midnight; consequently, the Yerushalmi is bothered by this act of nonconformity. Y. Berakhot 1:1 (3a) reads as follows:Footnote 29
[I. Question]
[A]
מעשה שבאו בניו מבית המשתה אמרו לו לא קרינו את שמע אמר להן אם לא עלה עמוד
.אתם לקרות Footnote 30השחר חייבין
?ורבן גמליאל פליג על רבנין ועבד עובדא כוותיה
[B]
.והא רבי מאיר פליג על רבנין ולא עבד עובדא כוותיה [1]
.והא רבי עקיבא פליג על רבנין ולא עבד עובדא כוותיה [2]
Footnote 31[.והא רבי שמעון פליג על רבנין ולא עבד עובדא כוותיה] [3]
[C]
והן אשכחנן דרבי מאיר פליג על רבנין ולא עבד עובדא כוותיה? דתני סכין אלוונתית לחולה [1] .בשבת אימתי בזמן שטרפו ביין ושמן מערב שבת אבל אם לא טרפו מערב שבת אסור
תני אמר ר’ שמעון בן אלעזר מתיר היה רבי מאיר לטרוף יין ושמן ולסוך לחולה בשבת וכבר חלה ובקשנו לעשות לו כן ולא הניח לנו ואמרנו לו רבי דבריך מבטל בחייך ואמר לן Footnote 32.אף על פי שאני מיקל לאחרים מחמיר אני על עצמי דהא פליגי עלי חברי
והן אשכחנן דרבי עקיבה פליג על רבנין ולא עבד עובדא כוותיה כיי דתנינן תמן [2]
השדרה והגולגולת מב’ מתים רביעית דם מב’ מתים ורובע עצמות מב’ מתים אבר
Footnote 33.מן המת מב’ מתים אבר מן החי מב’ אנשים רבי עקיבא מטמא וחכמים מטהרין
תני מעשה שהביאו קופה מליאה עצמות מכפר טבי והניחוה באוירFootnote 34הכנסת
בלוד ונכנס תודרוס הרופא ונכנסו כל הרופאים עמו אמר תודרוס הרופא אין כאן
שדרה ממת אחד ולא גולגולת ממת אחד אמרו הואיל ויש כאן מטהרין ויש כאן
מטמאין נעמוד על המניין התחילו מרבי עקיבה וטיהר אמרו לו הואיל והייתFootnote 35.מטמא וטיהרת טהור
והן אשכחנן דר’ שמעון פליג על רבנין ולא עבד עובדא כוותיה כיי דתנינן תמן [3]
רבי שמעון אומר כל הספחין מותרין חוץ מספיחי כרוב שאין כיוצא בהן בירקות
שדהFootnote 36וחכמים אומרים כל הספחין אסורין.Footnote 37
ר’ שמעון בן יוחי עברFootnote 38 בשמיטתא חמא חד מלקט ספיחי שביעית אמר ליה ולית
אסור ולאו ספיחי אינון אמרFootnote 39 ליה ולא את הוא שאת מתיר אמר ליה ואין חבירי חולקין
עלי וקרי עלוי ופורץ גדר ישכנו נחשFootnote 40 וכן הות ליה.
[D]
?ורבן גמליאל פליג על רבנן ועבד עובדא כוותיה
[II. Response]
.שנייא הכא שהיא לשינון מעתה אף משיעלה עמוד השחר
ואית דבעי מימר תמן היו יכולין לקיים דברי חכמים ברם הכא כבר עבר חצות ולא היו יכולין
.לקיים דברי חכמים אמר לון עובדין עובדא כותיה
[I. Question]
[A]
It happened that his [Rabban Gamaliel's] sons came from the banquet hall. They told him, “We did not reciteshema‘.” He told them, “If dawn has not yet arrived, you are obligated to recite.”
Does Rabban Gamaliel disagree with the rabbis and did he perform a deed according to his own opinion?
[B]
[1] Behold R. Meir disagrees with the rabbis but did not perform a deed according to his own opinion.
[2] Behold R. Akiba disagrees with the rabbis but did not perform a deed according to his own opinion.
[3] [Behold R. Shimon disagrees with the rabbis but did not perform a deed according to his own opinion.] 31
[C]
[1] Where do we find that R. Meir disagrees with the rabbis but did not perform a deed according to his own opinion? As it was taught: One may oil a cloth for a sick person on the Sabbath only when he has mixed it with wine and oil from before the Sabbath. But if he had not mixed it from before the Sabbath, it is forbidden.
It was taught: R. Shimon ben Eleazar said, R. Meir used to permit one to mix wine and oil and to anoint a sick person on the Sabbath. It once happened that [R. Meir] became sick and we wanted to do so for him but he did not let us. We told him, “Rabbi, your ruling will become nullified in your lifetime.” He responded, “Even though I am lenient for others, I am stringent upon myself for behold my colleagues disagree with me.”32
[2] Where do we find that R. Akiba disagrees with the rabbis but did not perform a deed according to his own opinion? As we have learned there, The spine or the skull from two corpses, a quarter [of alog] of blood from two corpses, a quarter [of aqab] of bones from two corpses, a severed limb of a corpse from two corpses, or a severed limb of a live person from two people, R. Akiba declares impure and the sages declare pure.33
It was taught: It happened that they brought the basket full of bones from Kefar Ṭabi and placed it in the open air34of the synagogue of Lydda. Theodorus the doctor entered and all the doctors entered with him. Theodorus the doctor declared, “There is neither a spine from one corpse nor a skull from one corpse here.” They [the rabbis] said, “Since there are some who declare pure and some who declare impure here let us put it to a vote.” They began with R. Akiba who declared pure. They said, “Since you used to declare impure and now you have declared it pure, it is pure.”35
[3] Where do we find that R. Shimon disagrees with the rabbis but did not perform a deed according to his own opinion? As we have learned there: R. Shimon says, All the aftergrowths are permitted [during the seventh year] except for the aftergrowths of cabbage for other vegetables of the field are not similar to them.36But the sages say all aftergrowths are prohibited.37 R. Shimon ben Yoḥai was passing by during the seventh year. He saw someone gathering aftergrowths of the seventh year. He told him, “Isn't this prohibited? Aren't they aftergrowths?” He responded, “Aren't you the one who permits?” He told him, “Don't my colleagues disagree with me?” R. Shimon applied to him the verse, “One who breaches a fence will be bitten by a snake.” 40 And so it happened to him.
[D]
Does Rabban Gamaliel disagree with the rabbis and did he perform a deed according to his own opinion?
[II. Response]
Here it is different, for it [the recitation of shema‘] is simply repetition [a form of learning]. According to this, [his sons should be allowed to recite shema‘] even after dawn has arrived?
Others explain that there [in all three cases involving other Tannaim], they were able to fulfill the opinion of the sages. Here, however, midnight had already passed and they were not able to fulfill the opinion of the sages [in any case]. [Therefore, Rabban Gamaliel] told them to perform a deed according to his own opinion.
The sugya has two parts: [I] the question, which includes a well-structured argument based on three proofs, and [II] the response. The opening question of the sugya is directed to one instance of Rabban Gamaliel's nonconformist practice, even though many other sources portray him in a pattern of independent practice. The sugya thus reveals at the outset its driving motivation: to make the case that sages never practiced in opposition to the majority.Footnote 41 The agenda of this sugya is further made apparent by analyzing each of its proofs, all of which are problematic.
[1] R. Meir
The Yerushalmi brings three cases in which other Tannaim who had differing opinions nevertheless followed the majority ruling. The first case, quoted from T. Shabbat 12:12, reports that the sages prohibit the preparation of a wine-and-oil ointment for a sick person on the Sabbath, but R. Meir permits this. When, on one occasion, R. Meir was himself sick, his students offered to prepare this ointment, to which R. Meir replied, “Even though I am lenient for others, I am stringent upon myself for behold my colleagues disagree with me.” The sugya focuses on the second half of R. Meir's statement, “I am stringent upon myself,” in order to prove that R. Meir conformed to the majority opinion. However, R. Meir also said, “I am lenient for others.” That R. Meir issued practical decisions based on his own opinion is confirmed earlier in this source, which states, “R. Meir used to permit…” This source contains elements of both conformity (R. Meir for himself) and nonconformity (R. Meir for others). In fact, the discussion of this baraita’ in the Bavli explicitly emphasizes R. Meir's leniency for others, an interpretive possibility not taken by the Yerushalmi.Footnote 42
The Yerushalmi version of this baraita’ Footnote 43 does not fit well into the overall argument of the Yerushalmi sugya. The sugya is trying to prove that other rabbis conformed to the majority in order to question how Rabban Gamaliel could have taught his sons to contradict the majority. However, if R. Meir taught others to follow his own opinion, even if he was stringent for himself, then he poses no problem for Rabban Gamaliel, who is also lenient for others. Yet the Yerushalmi includes this as a proof for R. Meir's conformity and as a challenge to Rabban Gamaliel without further comment.Footnote 44
As a possible explanation, Louis Ginzberg posits that because Rabban Gamaliel was deciding for his sons, not for his students or laymen, we should assume that he held his household up to the same standard that he held for himself.Footnote 45 If R. Meir was stringent for himself, then Rabban Gamaliel should have been stringent for himself and his children as well.Footnote 46 However, even accepting this explanation, R. Meir's case is far from an absolute proof of universal uniformity. R. Meir seems to have acted not out of a halakhic duty to follow the majority; rather, he took upon himself a supererogatory stringency out of respect for his colleagues. He could be stringent for himself but could not impose this stringency on others since he thought the lenient position was actually permitted. This source does not pose a serious difficulty for Rabban Gamaliel, who did not feel particularly obligated to his colleagues. Furthermore, if Rabban Gamaliel would forbid his sons from reciting shema‘, he would cause them to sin by neglecting a halakhic obligation, whereas R. Meir's stringency did not force him to compromise his own halakhic views. One cannot prove that Rabban Gamaliel should follow the majority and violate his own halakhah from R. Meir's case, in which no violation ensued.Footnote 47 This “proof” thus assumes a number of contingent explanations and does hold up as a rigorous logical demonstration.
[2] R. Akiba
In the case just presented, R. Meir had a more lenient view than the rabbis and so could act stringently without compromising his own principles. However, in the next case, R. Akiba takes a more stringent view than the majority. A case came up in Lydda in the presence of many rabbis. They decided to hold a vote, knowing that R. Akiba disagreed with the majority. R. Akiba was called upon first, he voted in favor of purity, and the vote was stopped immediately.Footnote 48 This shows that R. Akiba voted according to the majority opinion even though he himself opined that the basket in question was impure.
The Tosefta version of this story at ‘Ohalot 4:2Footnote 49 surrounds the narrative with a discussion by two of R. Akiba's disciples:
אמ’ ר’ יהודה ששה דברים היה ר’ עקיבא מטמא וחזר בו
מעשה שהביאו קופות של עצמות מכפר טביא והניחום באויר בית הכנסת בלוד ונכנס תיאודו- רוס הרופא וכל הרופאים עמו אמרו אין כאן שדרה ממת אחד ולא גולגולת ממת אחדFootnote 50 אמרו הואיל ויש כאן מטמאין ויש כאן מטהרין נעמוד למניין התחילו מר’ עקיבא וטיהר אמרו לו הואיל ואתה שהייתה מטמא טיהרתה יהו טהורין
אמר ר’ שמעון ועד יום מיתתו של ר’ עקיבא היה מטמא ואם משמת חזר בו איני
Footnote 51.יודע
R. Yehudah said: Regarding six issues, R. Akiba used to declare impure but then changed his mind.
It happened that they brought baskets of bones from Kefar Ṭabi and placed them in the open air of the synagogue of Lydda. Theodorus the doctor entered together with all the doctors. They declared, “There is neither a spine from one corpse nor a skull from one corpse here.” They [the rabbis] said, “Since there are some who declare pure and some who declare impure here let us put it to a vote.” They began with R. Akiba who declared pure. They said, “Since you used to declare impure and now you have declared it pure, let them be pure.”
R. Shimon said: R. Akiba declared impure until the day of his death. If he changed his mind after he died, I am not aware of it.
According to R. Yehudah, R. Akiba had changed his mind from his original position and actually agreed with the majority. The reason he voted with the majority was not that he wanted to conform despite his differences, but rather that he had reversed his opinion. R. Akiba was not an opposing sage who compromised for the sake of uniformity of practice, but was instead a sage who had previously opposed a position but then changed his mind. This information spoils the entire argument of the Yerushalmi. R. Eleazar Azikri asks the very same question:
וקשה דבנזיר פרק כהן גדול מייתי ברייתא בבלי דהדר ביה ר’ עקיבא. אם כן, אין מכאן ראיה דלא עבד עובדא כוותיה דאילו לא הדר דלמא הוה מטמא. וי”ל דהירושלמי אדר’ שמעון סמך דאמר התם דכל ימיו לא חזר בו ומסתמא לא הכחיש ר’ שמעון המעשה הזה המפורסם אלא
.שהבין דמשום דלא למעבד עובדא נגד הרבים טיהר כדעתם לא משום דחזר בו
It is difficult because B. Nazir 52a cites a baraita that R. Akiba changed his mind. If so, there is no proof from here that he did not perform a deed according to his own opinion for if he had not changed his mind perhaps he would not have declared impure. One may answer that the Yerushalmi relied on R. Shimon who says there that [R. Akiba] did not change his mind all of his days. Presumably, R. Shimon did not doubt this famous story but rather understood that he declared pure like the sages in order not to perform a deed against the majority and not because he had changed his mind.Footnote 52
Azikri explains that the Yerushalmi assumes the view of R. Shimon that R. Akiba did not change his mind. Still, if the Yerushalmi redactors had before them our version of this Tosefta with the comments of both R. Yehudah and R. Shimon, then their argument here would be severely weakened were they to assume one interpretation of the story without providing reasons to reject the other.Footnote 53
Rather, we should probably assume that the Yerushalmi redactors had only the story itself, without the comments by R. Akiba's two students. That is, the Yerushalmi preserves the earliest version of this tannaitic tradition, which only included the story, while the Tosefta and the Bavli record a later version with added comments by R. Yehudah and R. Shimon.Footnote 54 Rabbis often extracted apodictic laws from stories and transmitted them as independent traditions.Footnote 55 In this case, it seems most likely that R. Yehudah (or someone speaking in his name) did not receive a tradition that R. Akiba had changed his mind, especially considering that R. Shimon, a fellow student of R. Akiba, so adamantly denied its veracity. Rather, R. Yehudah reasoned that if R. Akiba voted with the majority, then he obviously agreed with them and therefore must have reversed his opinion as stated at M. ‘Ohalot 2:6.Footnote 56 The story is not the proof of R. Yehudah's statement but rather its source.Footnote 57
However, even accepting that the Yerushalmi redactors disagreed with or did not know of R. Yehudah's position, R. Yehudah's interpretation of the story represents an interpretive possibility not taken by the Yerushalmi. Furthermore, even if the redactors did not think of this interpretation, this source still does not serve as a solid proof. Perhaps R. Akiba only conformed to the majority because the vote was public and he nonetheless would have lost the vote. We cannot prove from here that Rabban Gamaliel, who was deciding alone and in private, could not have decided against the majority.Footnote 58
[3] R. Shimon bar Yoḥai
R. Shimon bar Yoḥai is more lenient than his colleagues about picking the aftergrowth of vegetables during the sabbatical year when farming is prohibited. A story is recounted in which R. Shimon tells a farmer to follow the stringent view of the sages despite his own lenient position. The Yerushalmi presumes that he would act stringently himself as well. However, there is good reason to believe that R. Shimon himself would eat and was simply making a point in his harsh treatment of this farmer. The story is repeated in Y. Shevi'it 9:1 (38d), where another story follows in which R. Shimon bar Yoḥai also rebukes and curses someone; that story, too, ends with “and so it was.”Footnote 59 In that context, the story is one example of R. Shimon bar Yoḥai's intensity and zeal; he is portrayed in these stories as impatient and impulsive.Footnote 60 Furthermore, the tone of the story, with its repeated use of sarcasm, introduced by the words, … ולית … ולאו … ולא … ואין, shows that this recounting involves a personal tiff rather than an earnest halakhic discussion. R. Shimon bar Yoḥai was offended by the farmer's actions and cursed him. Rabbi Shimon bar Yoḥai might have been more tolerant had he seen a rabbinic colleague gathering vegetation. He seems to have been particularly upset by the farmer, who was a layman simply taking advantage of R. Shimon's leniency regarding this issue. The Yerushalmi uses this story as a proof that no rabbi may follow a minority opinion, even though the story describes only an exceptional case of an impatient rabbi dealing with an opportunistic layperson.
Compare this story to the following report in B. Pesaḥim 51a–b:
דאמר רבה בר בר חנה: סח לי רבי יוחנן בן אלעזר: פעם אחת נכנסתי אחר רבי שמעון בן רבי יוסי בן לקוניא לגינה, ונטל ספיחי כרוב,Footnote 61 ואכל ונתן לי. ואמר לי: בני, בפני—אכול, שלא בפני—לא תאכל. אני שראיתי את רבי שמעון בן יוחי שאכל—כדי הוא רבי שמעון בן יוחי לסמוך עליו, בפניו ושלא בפניו. אתה, בפני—אכול, שלא בפני—לא תאכל.
For Rabbah bar bar Ḥannah said: R. Yoḥanan ben Eleazar told me, “One time I followed R. Shimon ben R. Yose ben Laqunia into a garden. He took an aftergrowth of cabbage,Footnote 61 ate it, gave it to me and told me, ‘My son, you may eat in my presence but you may not eat when outside my presence. I saw R. Shimon bar Yoḥai eating and R. Shimon bar Yoḥai is worthy to rely on in his presence and outside his presence. You [who only saw me eat] may eat in my presence but may not eat when outside my presence.’”
According to the Bavli, R. Shimon does in fact follow his own opinion and even advises his student to do so. This is in direct opposition to the Yerushalmi story and may reflect the general tendency of the Bavli to be more tolerant of diversity.Footnote 62 Tosafot wonder about this contradiction and insightfully explain that, in the Yerushalmi case, the source of R. Shimon's anger is not the lenient practice itself, but rather the character of the am ha'areṣ who just follows the leniency blindly.Footnote 63 Of course, we cannot assume that the Yerushalmi's redactors knew of this Bavli story.Footnote 64 As noted earlier, however, even if they did not know of it, it seems evident from the Yerushalmi story alone that R. Shimon was particularly upset by the farmer because he was a layman who was simply taking advantage of R. Shimon's leniency. One could easily imagine an alternate sugya trying to prove the opposite view, citing this story and concluding, עם הארץ שאני (a layman is different), just as Tosafot does.
Furthermore, as was the case for R. Meir, R. Shimon is stringent in a way that does not cause him to violate any of his own norms. This can only prove that a rabbi should be stringent in consideration of the majority, but it cannot prove that a rabbi may transgress what he thinks is a norm because of the majority. Thus, the R. Shimon story cannot prove that Rabban Gamaliel must forgo what he views as an obligation to recite the shema‘. Footnote 65 The Yerushalmi's use of this story to prove that no rabbi practiced against the majority is somewhat of a leap.
[II. Response]
After repeating its initial question, the Yerushalmi offers two answers. The first is that Rabban Gamaliel told his sons to recite, despite the fact that he did not think they could fulfill their obligation; that is, he shared the view of the sages that reciting after midnight is not valid and he only permitted his sons to do so as a form of study. The Gemara does not accept this because Rabban Gamaliel says, “If dawn has not yet arrived …, ” and one could study shema‘ even after dawn. The second response is that Rabban Gamaliel did rely on his opinion ex post facto and thought that his sons could fulfill their obligation. This response allows for a diversity of practice only in cases in which it is impossible to fulfill the law according to the majority. Still, Rabban Gamaliel would not have opposed his colleagues before the fact.
In sum, all three proofs of the Yerushalmi are problematic in that they are based on unnecessary assumptions and are easily refuted. That the Yerushalmi nevertheless uses these three sources to prove halakhic conformity within the tannaitic community reveals the Yerushalmi's push to read uniformity into the past. Evidently, the Yerushalmi is uncomfortable with diversity of practice among the Tannaim and interprets away any past examples of it.Footnote 66
Rhetorical Analysis
How did the redactors of this sugya think about or justify their actions? Did they believe that the sources they cited definitively proved their point? Why did they not point out the difficulties in applying these three cases to the Rabban Gamaliel story? Even if they did think these sources were applicable to the case of Rabban Gamaliel, the fact that three other rabbis conformed in certain cases does not necessitate that Rabban Gamaliel also must have done so on every occasion. If we analyze the sugya in strict logical terms or try to translate it into syllogisms, it will be found wanting. I suggest that we view this sugya not within the genre of logical argumentation but rather in the realm of rhetoric in general and classical rhetoric in particular. The most evident use of classical Greco-Roman rhetoric emerges from the structure of the sugya.
On Arrangement
The question section of this sugya, part [I], displays a highly organized structure: it has a beginning, middle, and end; it repeats the primary query at the beginning and at the end; it includes a short introductory summary of its three more lengthy proofs; and it begins each proof with a similarly structured question. The arrangement of sections within the sugya seems to be purposefully and carefully planned. I propose that the entire question section can be analyzed as a work of rhetorical oratory based on the model of classical Greco-Roman rhetoric, which attempts to persuade the audience of a certain viewpoint.
Cicero describes five stages in the study of rhetoric:
Invention (inventio) is the discovery of valid or seemingly valid arguments to render one's case plausible. Arrangement (dispositio) is the distribution of arguments thus discovered in the proper order. Expression (elocutio) is the fitting of the proper language to the invented matter. Memory (memoria) is the firm mental grasp of matter and words. Delivery (pronuntiatio) is the control of voice and body in a manner suitable to the dignity of the subject matter and the style.Footnote 67
Within the study of arrangement, Cicero identifies six typical parts of a rhetorical discourse: “exordium, narrative, partition, confirmation, refutation, [and] peroration.”Footnote 68 While these six divisions represent the proper arrangement for a typical speech, certain types of oratory and different circumstances require changing the order or omitting some parts.
The Yerushalmi sugya seems to be built with this arrangement in mind.Footnote 69 Here is an abbreviated presentation of the question section of the Yerushalmi sugya quoted earlier, with added labels indicating its rhetorical structure:
[A. Narration]
It happened that his [Rabban Gamaliel's] sons came from the banquet hall. They told him, “We did not reciteshema‘.” He told them, “If dawn has not yet arrived, you are obligated to recite.”
Does Rabban Gamaliel disagree with the rabbis and did he perform a deed according to his own opinion?
[B. Partition]
[1] Behold R. Meir disagrees with the rabbis but did not perform a deed according to his own opinion.
[2] Behold R. Akiba disagrees with the rabbis but did not perform a deed according to his own opinion.
[3] [Behold R. Shimon disagrees with the rabbis but did not perform a deed according to his own opinion.]
[C. Proof]
[1] Where do we find that R. Meir disagrees with the rabbis but did not perform a deed according to his own opinion? As it was taught: One may oil a cloth…. He responded, “Even though I am lenient for others, I am stringent upon myself for behold my colleagues disagree with me.”
[2] Where do we find that R. Akiba disagrees with the rabbis but did not perform a deed according to his own opinion? As we have learned there, The spine or the skull…. They began with R. Akiba who declared pure….
[3] Where do we find that R. Shimon disagrees with the rabbis but did not perform a deed according to his own opinion? As we have learned there: R. Shimon says, All the aftergrowths are permitted…. He told him, “Don't my colleagues disagree with me?” …
[D. Peroration]
Does Rabban Gamaliel disagree with the rabbis and did he perform a deed according to his own opinion?
Let us discuss each part in order. The purpose of the exordium is to make the auditor “well-disposed, attentive, and receptive.”Footnote 70 Cicero explains that the exordium may be omitted when the audience is already favorably disposed to the speech. It seems that the redactors of this sugya felt that their audience of fellow rabbis or students would already be receptive to the arguments about to be presented, either because they also supported uniform behavior or because they implicitly accepted the authority of the redactors or whoever first presented this sugya publicly.
Next comes the narration of the story under discussion. Classical rhetoric delineates three types of oration: deliberative, in which one deliberates about future policy and public affairs; judicial, in which one accuses or defends a case that occurred in the past; and epideictic, which is used in ceremonial address to praise or inspire.Footnote 71 In judicial oratory, the narration describes the case to be adjudicated, while in deliberative oratory, the narrative describes “events in the past, in order that by being reminded of those things the audience will take better counsel about what is to come (either criticizing or praising).”Footnote 72 This sugya bears a great deal of similarity to judicial oratory, in that it judges whether Rabban Gamaliel is “guilty” of nonconformity. In the sugya, however, the charge against Rabban Gamaliel is only rhetorical; it assumes from the outset that Rabban Gamaliel is innocent and so reinterprets the norm against nonconformity to exclude cases in which the majority position cannot in any case be satisfied. Therefore, this sugya can also be read as deliberative oratory, arguing that rabbis in the future should conform to the majority.
In the next section, called the partition, “the matters which we intend to discuss are briefly set forth in a methodical way. This leads the auditor to hold definite points in his mind.”Footnote 73 Cicero continues to suggest that the partition “have the following qualities: brevity, completeness, conciseness.”Footnote 74 Part B of the sugya fulfills all of these requirements. Interestingly, Cicero discusses three-example partitions, all of which list exactly three arguments.Footnote 75 Quintilian also cites a number of sample partitions, two of them from Cicero's speeches, in which three arguments are listed.Footnote 76Ad Herennium states explicitly that the number of points to be discussed “ought not to exceed three.”Footnote 77On Invention, attributed to Hermogenes, similarly cites two examples from Demosthenes, an Attic orator, who enumerates three upcoming arguments.Footnote 78 Therefore, the use of three proofs in the Yerushalmi sugya is typical of classical oratory and is to be expected.Footnote 79
The next section contains the body of the argument. Cicero distinguishes between confirmation, in which proofs for one's case are given, and refutation, in which opposing arguments are refuted. The sugya contains just one section of proofs that serve as confirmation, as they are all examples showing halakhic conformity.Footnote 80
The three “proofs” used in this sugya regarding three Tannaim bear no direct connection to the story of Rabban Gamaliel. There is no syllogistic logic, nor even an enthymeme, to prove that rabbis never acted against the majority. Rather, the type of reasoning used here is inductive, generalizing from examples. Because we have stories about three prominent Tannaim who each submitted to the authority of the majority opinion when it came to practical rulings, we can assume that Rabban Gamaliel would have done so as well.Footnote 81 The unstated upshot is that the audience should also take heed to conform to the majority practice. Aristotle elaborates on the use of examples in persuasive speech: “Paradigms [i.e., proof from examples] are most appropriate to a deliberative oratory, enthymemes more suited to judicial; for the former is concerned with the future, so it is necessary to draw examples from the past.”Footnote 82
When citing multiple arguments, classical rhetoric recommends placing the strongest argument last, because “what is said last is easily committed to memory,” another strong argument first, and the weakest arguments in the middle.Footnote 83 This sugya seems to follow this pattern. The middle argument, concerning R. Akiba, is the weakest because his vote is not going to be followed in any case. The first argument, regarding R. Meir, contains a problematic line within the source, stating that R. Meir did rule according to his opinion for others. This example is still strong, as it genuinely contains a story of conformity, although it also partly evinces nonconformity. The third argument, about R. Shimon, is the strongest proof because it contains an actual ruling for someone else (not a vote and not his own action) and therefore is most similar to the case of Rabban Gamaliel. This arrangement of examples suggests that the redactor was aware of the relative strength of each source and ordered them for maximum rhetorical effect.
Finally, the peroration repeats the main argument of the questioner. Aristotle writes that the purpose of the peroration, or “epilogue,” as he terms it, is “to remind the audience of what has been said earlier…. [I]n the epilogue one should speak in recapitulation of what has been shown. The starting point [of the epilogue] is to claim that one has performed what was promised.”Footnote 84 While a peroration in classical rhetoric can be rather complex, and might include ethos and pathos, the peroration of this sugya simply repeats the opening question verbatim.
If we read this as a judicial speech, then the accused in this case is Rabban Gamaliel. That is, M. Berakhot 1:1 seems to portray Rabban Gamaliel as “guilty” of practicing his own opinion. The anonymous prosecutor here adduces various other precedents of conformity in order to generalize from them a norm that would impute Rabban Gamaliel's actions. The anonymous defender accepts that Rabban Gamaliel did act against the majority but finds a reason why the norm does not apply to this case, and so Rabban Gamaliel is acquitted. Read as a deliberative oration, the sugya retrojects conformity into the past as a paradigm to be followed in the future.
What can the careful arrangements of the parts of this sugya tell us about its redactors’ goals and methods? A logician who wishes to present a formal demonstration of a geometric theorem or to prove a postulate based on syllogistic logic will be bound to arrange his or her argument according to strict logical requirements. Such arguments are static and remain valid independent of their audience. Attention to the order of proofs, introductions, repetitions, and summaries, on the other hand, places a composition outside the realm of formal logic and into the genre of persuasive rhetoric. This sugya must, therefore, be categorized as rhetoric. The goal of such an essay is not absolute truth or objectivity, but rather the presentation of a certain subjective point of view meant to persuade an intended audience.Footnote 85
On Rhetorical Reasoning
The method of rhetorical composition requires first stating a thesis and then inventing and formulating the most convincing arguments for it, regardless of whether the thesis is actually correct. Rhetorical training thus demands the ability to argue effectively for both sides of a proposition. As Thomas Sloane writes, “The first principles of whatever might be considered rhetoric's intellectual habit stem from the discipline's openness to contrarianness, even to perversity, and from the ancient dialogic practice of generating arguments on both sides of the question.”Footnote 86 A standard element of progymnasmatic exercises was similarly to practice refutation and confirmation of the same point.Footnote 87 Quintilian connects the ability to argue both sides of a question to success in the courtroom:
The Academy will be the most useful school on the ground that its habit of disputing on both sides of a question approaches most nearly to the actual practice of the courts.Footnote 88
The Talmud makes a similar connection:
Said R. Yoḥanan: One who does not know how to derive that a reptile is pure and impure in one hundred ways, may not open the deliberation in merit [of the defendant].Footnote 89
Said Rav Yehudah in the name of Rav: One only seats in the Sanhedrin one who knows how to purify the reptile based on Scripture.Footnote 90
The ability to argue for both sides of an issue is especially important in the courtroom, where each side must make the most persuasive argument for its case based on the same evidence and set of laws.Footnote 91 Therefore, the rhetorician must be able to interpret the very same set of sources in contrary directions. These quotations tie into the statement of Cicero and the parallel midrash cited in the epigraph to this article regarding the skill of forming multiple conflicting arguments, both of which deal with training students.Footnote 92 Clearly, the goal of the rhetorician is not to reveal authorial intention or to discover one single correct interpretation of a source.
The rhetorical mode of reasoning thus implies a hermeneutic of its own for selecting and interpreting its sources. Chaim Perelman elaborates on the choices that the rhetorician makes when formulating an argument:
Every argument implies a preliminary selection of facts and values, their specific description in a given language, and an emphasis which varies with the importance given them. Choice of elements, of a mode of description and presentation, judgments of value or importance—all these elements are considered all the more justifiably as exhibiting a partiality when one sees more clearly what other choice, what other presentation, what other value judgment could oppose them. An affirmation and presentation that at first seem objective and impartial appear one sided—deliberately or not—when confronted with evidence from the other side.Footnote 93
Our Yerushalmi sugya seems, on the surface, to be an impartial argument based on three objective sources, each of which displays uniformity of practice. However, the source-critical analysis shows the other presentations that the redactors could have chosen. For the first proof, the Yerushalmi emphasizes one line in the story—R. Meir's stringency upon himself—and ignores another line—R. Meir's leniency for others. The interpretation not taken in the Yerushalmi—to emphasize R. Meir's nonconformity—is in fact found in B. Shabbat 134a.Footnote 94 The second source finds in R. Akiba's vote an act of normative conformity despite theoretical disagreement. The Yerushalmi could have taken an interpretive strategy similar to that of R. Yehudah in the Tosefta, or could have rejected its applicability because it occurred in a public vote at which R. Akiba would have lost. The third proof applies a story about R. Shimon's rebuke of a farmer to Rabban Gamaliel's instruction to his sons, rather than rejecting this comparison on account of their different contexts. These alternative interpretive possibilities, which were not chosen, reveal the Yerushalmi's partiality.
Cicero applies a similar hermeneutic in discussing how an orator should utilize laws and other documents to support his thesis: “A controversy turns upon written documents when some doubt arises from the nature of writing. This comes about from ambiguity, from the letter and intent, from conflict of laws, from reasoning by analogy, [and] from definition.”Footnote 95 Cicero then continues to show how an orator can argue for either side of a case using the same source,
by converting something in the written document to his own case or by showing that it contains some ambiguity; then on the basis of that ambiguity he may defend the passage which helps his case, or introduce a definition of some word and interpret the meaning of the word which seems to bear hard upon him, so as to support his own case, or develop from the written word something that is not expressed.Footnote 96
It is through identifying ambiguities, contradictions, and gaps in a text that one can utilize that source in contradictory directions. Perhaps this understanding of the hermeneutical strategy assumed by rhetorical reasoning will help explain some of the difficulties raised by the source-critical analysis of the Yerushalmi sugya. The Yerushalmi begins with the thesis that all Tannaim conformed to a uniform majority opinion. It then continues by adducing three sources in favor of this thesis. While the sugya's redactors are not explicit about how they interpret each of these sources, we can retrace what their interpretations might have been based on their application of these sources to the Rabban Gamaliel narrative, as discussed earlier. Each of these three sources is rather ambiguous, and the interpretations of them assumed by the sugya are far from necessary. But despite these difficulties, or perhaps even because of them (assuming that it wants to refute them),Footnote 97 the Yerushalmi utilizes them in its effort to make the best case possible. Another orator may utilize these same sources to argue for the opposite point of view, presenting alternate possible interpretations of them. A debate will thus ensue as to which interpretation is the most probable; however, that debate will remain within the realm of probability, which is the jurisdiction of rhetoric, rather than definitive proof, the jurisdiction of logic.
In an attempt to pry into the minds of the redactors a bit further, we may wonder how conscious they were of their interpretive choices. Were they aware that their interpretations were at best contingent and sometimes rather weak or even forced? If yes, how did they justify these choices? If not, how could these manifestly intelligent sages have missed these seemingly obvious objections?Footnote 98
One possibility is that the redactors were aware that their sources did not prove their thesis, but were more interested in teaching a halakhic–homiletic lesson on uniformity of practice than in presenting a historical and exegetically accurate account of the past.Footnote 99 That is, for didactic–rhetorical purposes, they deliberately reinterpreted these sources according to their chosen agenda. This approach would put these Palestinian redactors well within the tradition of Greco-Roman rhetoric, which emphasized achieving the persuasive goal but was less interested in the integrity of the process of arriving there.
A second possibility is that the redactors were truly convinced that their interpretations were correct and that these sources really did support their thesis regarding uniformity of practice. They held certain assumptions in mind that made their interpretive choices inevitable, even when they were aware of those other possibilities. Working within the rhetorical mode, the redactors recognized that received texts and traditions can be ambiguous or otherwise problematic and sometimes need to be explained, limited to a given circumstance, emended, or reconciled. The redactors therefore believed that the plain contextual interpretation of some sources could be faulty in light of their larger convictions regarding tannaitic diversity of practice; forced interpretations of certain sources could hence sometimes be preferable to interpretations that might be more literal but still less accurate.
The Palestinian redactors of the Yerushalmi held the conviction not only that uniformity of halakhic practice is ideal, but also that it had been a reality in past generations. This viewpoint follows a common tendency throughout the Yerushalmi to avoid factionalism, prosecute dissent, systematize rules of codification, and maintain unified community norms.Footnote 100 If they read these texts with the basic assumption of uniformity already in mind, then they would regard the interpretations they then presented as the most plausible. That is, the redactors considered it appropriate to select a possible interpretation of a text, even if it may not have been the most straightforward reading, over another interpretation that would contradict a larger conviction that was basic to their worldview and built into their characterization of rabbinic society.Footnote 101 Recognizing that texts are inherently ambiguous, the redactors read these sources in the best light they could, based on their historical and sociological assumptions regarding uniformity of practice.Footnote 102
As long as one agrees that the sources used by this sugya do not sufficiently support the interpretations given to them, then one must posit that the redactors of this sugya either consciously reinterpreted their sources (the first possibility) or that they unknowingly misinterpreted them (the second). According to both possibilities, the rabbis did use some rhetorical tools in order to convey their message, and also shared the rhetorical mode of finding ambiguities in and interpreting sources. However, according to the second possibility, the rabbis did not go so far as to knowingly present false arguments. It may not be possible to decide between these two possibilities, which may have been blurred for the redactors themselves.Footnote 103 However, a broader view of the rabbis’ general use of rhetorical reasoning may suggest that the second view is preferable.
To what extent is the analysis of this sugya applicable to the rest of the Talmud? I doubt that many more sugyot contain a neat arrangement of multiple stages of oratory.Footnote 104 However, even if the form of rhetorical oratory is absent, the rhetorical mode of thinking does seem to prevail. As Jose Faur writes,
The intellectual space of the sages is the realm of the verisimilar. It pertains to rhetoric rather than metaphysics. One will fail to find in the Talmud formal and analytical proofs, proceeding, as with the Scholastics, from syllogisms accompanied by axioms, premises and conclusions. Talmudic “proofs” are not “demonstrative”—structured from formal deductions and inductions. Talmudic dialectics deal with probable and improbable alternatives, inferences and analogue constructs, indeterminate and statistical knowledge, variables and quantitative differences. Let us note that the Talmudic lexicon does not register the words “rational” (מושכל) or “necessary” (הכרח). Its dialectic is expository: it proposes the “reasonable” (סברא), not the absolute. The divergent and contradictory opinions of the amora'im are not classified as “true” (אמת) and “false” (שקר).Footnote 105
Accordingly, whenever we are confronted with arguments in the Talmud that may not hold up to rigorous logical analysis, we should understand those arguments within the realm of rhetoric, meant as persuasion rather than proof. David Kraemer similarly utilizes Chaim Perelman's New Rhetoric as a framework for understanding the Talmud's argumentative discourse as a mode of rhetorical persuasion in which truth “is ambiguous and alternatives are always available.”Footnote 106 The talmudic use of this mode of reasoning is better understood if one places it within the context of the classical rhetorical tradition.
An important distinction, however, should be made between the rabbinic and Greek modes of rhetoric. Compare the previously quoted statements from the Talmud and rhetorical works on the ability to argue both sides of a case.Footnote 107 Whereas for the Greeks and Romans, rhetorical skill was used by the orator presenting his case before a deliberative assembly or court, the Talmud makes it a requirement not of the lawyers but of the judges themselves.Footnote 108 As Saul Lieberman notes, for the rabbis, the goal of argumentative skill is not “twisting the law according to the required aim and purpose,”Footnote 109 so that one can win a case regardless of the circumstances.Footnote 110 Rather, the Talmud recognizes that a judge cannot reach the best verdict without the ability to identify ambiguities and think through various possibilities.Footnote 111 The Talmud is not interested in making the best case regardless of truth, but rather in developing that ability in order to see through false arguments and better arrive at the truth.
This reading is corroborated by looking at the literary context of R. Yoḥanan's statement in Y. Sanhedrin 4:1 (22a) that one cannot be a judge unless one can purify the reptile. M. Sanhedrin 4:1 prescribes that judges are to sway their judgment toward innocence in capital cases. This reflects an awareness that forensic proofs are rarely objective or absolute and that, therefore, great caution is needed before the court puts someone to death. Along these lines, the Talmud adds the following statement about how thoroughly witnesses are to be interrogated in different cases:
Ze'ir bar Ḥinena in the name of R. Ḥanina and Rav Yehudah [said]: One [verse] states, “You shall investigate and inquire and interrogate thoroughly” (Deuteronomy 13:15), and another [verse] states, “Justice, justice shall you pursue” (Deuteronomy 16:20). How is this? If you [as judge] see the law emerge truthfully, then inquire, but if not, then make it just.Footnote 112
The point of this and other statements within this sugya is that the judge must not let procedure get in the way of justice.Footnote 113 R. Yoḥanan's statement is similarly meant to ensure that judges possess the skills to see through false argumentation to better access the truth and arrive at just decisions.Footnote 114 According to this, the second explanation, presented earlier, on the use of sources in Yerushalmi Berakhot 1:1 would be more consistent with the rabbis’ methodology.Footnote 115
Some scholars describe the rabbis’ borrowing of elements of Greco-Roman philosophy and hermeneutical techniques in terms of adopting ideas from “external” sources.Footnote 116 Other writers argue that the rabbinic resistance to philosophical and syllogistic forms of logic stems from a uniquely rabbinic view of language.Footnote 117 Certainly there is much truth in both of these viewpoints, depending, in part, on specific subject matter. In this case, a combination of adoption and adaption best explains talmudic rhetorical structure and reasoning as analyzed in this study. The rabbis and their predecessors flourished in a common culture that included classical rhetoric, and they found within that tradition a mode of reasoning that resonated with their own organic thinking. This resonance allowed the rabbis to adopt various technical aspects of classical rhetoric, such as arrangement, certain hermeneutical tools, and select progymnasmatic exercises, even if they may have rejected some of the more relativistic and sophistic underpinnings and techniques of the Greco-Roman tradition.