In a 1998 article in the journal Sinai, Ilana Katzenellenbogen examines the history of the break-down of the weekly Torah port

Systematization of the Shevut Laws in the Bavli Leads to Leniency

The Bavli departs radically from Palestinian sources in its interpretation of the shevut laws. Commenting on mBets 5:2, bBets 36b explains:
“One may not climb a tree” – this is a safeguard lest one pluck fruit. “One may not ride on an animal” – this is a safeguard lest one travel past the Sabbath boundary. Can we thus derive that Sabbath boundaries are biblical? Rather, this is a safeguard lest one cut a branch. “One may not float on water” – this is a safeguard lest one make a bottle for use as a flotation device. “One may not clap, one may not dance, and one may not slap one’s thigh” – this is a safeguard lest one repair musical instruments.

“These are optional acts: One may not judge…” – what is the reason for all of these? It is a safeguard lest one write.

“These are meritorious acts: One may not dedicate…” – what is the reason? This is a safeguard lest one buy and sell.⁴³

There are two significant developments here. First, the Bavli considers all of the shevut laws to be only rabbinically mandated. While R. Shimon and perhaps other minor voices in the Yerushalmi may have first adopted this view, only in the Bavli is it applied universally. Secondly, the Bavli considers each item listed in mBets 5:2 to be a mere rabbinic preventative measure meant to keep one from inadvertently violating a more serious biblical prohibition. How can we explain the Bavli’s interpretation? Why does the Bavli demote the status of shevut laws to merely derabanan status, and why does it attribute to them a reason based on gezerah, which is not their original reason? Let us take each question in turn.

The Bavli’s view of shevut laws as merely rabbinic reflects the Bavli’s general tendency to systematize and conceptualize halakha.⁴⁴ While most Tannaim considered the shevut laws to be biblical but not punishable, the Bavli may have found the existence of such a state of limbo to be untidy and confusing. Gilat explains that in the view of the Bavli, if the shevut laws are biblical, then they should be punishable; if they are not punishable, then they must be rabbinic.⁴⁵ The Bavli embraces the Palestinian minority voices that already considered these laws to be rabbinic and endorses them as the standard view.

The systematic re-explanation by the Bavli of the shevut laws as safeguards against violation of biblical prohibitions must be understood within a larger context of similar activity. Avraham Goldberg compiles a long list of prohibitions that later Babylonian rabbis consider to be safeguards but are not explained as such in any earlier source.⁴⁶ He explains that the motivation in these cases is to provide a firm basis for these rabbinic laws by linking them to a biblical law, thereby bolstering their authority.⁴⁷ Here too, once the shevut laws were demoted to rabbinic status, the rabbis decided to formulate them as safeguards for punishable biblical prohibitions. People would take them more seriously knowing that even though the act per se is derabanan, it can easily lead to violating a de’oraita precept.⁴⁸

However, we know that it is always dangerous to give a reason for a law, for if the reason for the law does not apply in certain circumstances, then people may permit the prohibited act in such cases.⁴⁹ The rabbis may have intended to buttress the shevut laws by defining them as safeguards, but this interpretation also runs the risk of limiting the laws to cases to which the safeguard relates. This in fact occurs in at least some cases, and may also have been part of the motivation of the Bavli. Benjamin de Vries documents many examples in which the Bavli changes various biblical laws to rabbinic status, and suggests that it does so in order to be lenient.⁵⁰ Thus, by categorizing the shevut laws as rabbinic safeguards, the Bavli acquires great control over how to direct and define these prohibitions, whether towards stringency or leniency. Let us focus on the examples of making noise and drawing water on the Sabbath.

mBets 5:2 lists clapping, slapping, and dancing among the shevut prohibitions. It is not clear, however, whether the problem involves making noise in general, or specifically beating to a musical rhythm. A number of early sources indicate that the former is the primary issue. tShab 17:25 rules: “One who is guarding seeds from birds and gourds from animals may guard them on the Sabbath as he normally does, as long as he does not clap, dance, or slap as he does on a weekday.”⁵¹ Presumably, the issue here is making disturbing noises, as opposed to being musical. tShab 2:7 teaches: “One may raise water with a siphon, and allow it to drip from a perforated vessel for a sick person on the Sabbath.”⁵² Here too, this vessel makes noise, not music.⁵³ R. Eleazar in the Yerushalmi explicitly states, “Anything that produces sound is prohibited on the Sabbath.”⁵⁴ The Yerushalmi proceeds to cite precedents of various sages who would not knock on a door or on a cup to get someone’s attention. Similarly, `Ula cursed someone who knocked on the door on the Sabbath because he thereby made too much noise.⁵⁵ Commenting on Isa. 58:13, “nor speak a word,” Lev. Rabbah comments: “When the mother of R. Shimon bar Yoḥai talked too much on the Sabbath, he would tell her, ‘It is the Sabbath!’ and she would be quiet.”⁵⁶ Collectively, these Palestinian sources stem from a prohibition against making excessive noise on the Sabbath in order to maintain a restful and peaceful environment.⁵⁷

In the Bavli, however, Rava states categorically that only musical sound is prohibited.⁵⁸ Bavli Eruvin 104a proceeds to question Rava’s stance, based on the above-mentioned sources from the Tosefta.⁵⁹

`Ula once happened to come to Rav Menashe’s house. Someone came and knocked on the door. He [`Ula] said, “Who’s there? May the body of that person be desecrated for he desecrates the Sabbath.”

Rava⁶⁰ said to him [`Ula]:⁶¹ They only prohibited a musical sound.

Abaye challenged him: “One may raise water with a siphon, and allow water to drip from a perforated vessel for a sick person on the Sabbath.”⁶² For a sick person it is permitted but not for a healthy person. What is the case? Is it not that he is sleeping and he wants to wake him up and⁶³ making any⁶⁴ sound is prohibited? No, he is awake and he wants him to sleep and so it sounds like a humming sound.

He⁶⁵ challenged him: “One who is guarding his fruit⁶⁶ from birds and his gourds from animals may guard them on the Sabbath as he normally does as long as he does not⁶⁷ clap, dance, or slap as he does on a weekday.”⁶⁸ What is the reason? Is it not because he is making a sound and making any⁶⁹ sound is prohibited?

Rav Aḥa bar Jacob said: It is a safeguard lest he come to pick up a pebble…

Come and learn:⁷⁰ “One may draw water⁷¹ from the great cistern⁷² using a wheel on the Sabbath.”⁷³ In the Temple it is permitted⁷⁴ but in the country it is not. What is the reason? Is it not because⁷⁵ he is making a sound?⁷⁶

No, it is a safeguard lest he draw water for his garden or for his ruin.

Amemar permitted one to draw water with a wheel⁷⁷ in Maḥoza. He⁷⁸ said, “Why is it prohibited?⁷⁹ Lest he come to draw water for his garden or for his ruin. Here there is neither a garden nor a ruin.” Once he saw that people were soaking flax in it, he prohibited it.

By limiting the law to musical sounds only, Rava introduces a significant leniency in the law of making noise as compared with his Palestinian colleagues and predecessors.⁸⁰ The Talmud deflects the first challenge to Rava’s ruling from tShab 2:7 by deeming the soothing white noise created by the perforated vessel to be musical. The Talmud next presents a second objection from tShab 17:25 but deflects this source, too, by explaining that the reason one may not make noise to scare away birds is only because one may then come to pick up a pebble to throw at the birds, which would violate the biblical prohibition of carrying in the public domain. By explaining the Tosefta not as a prohibition of making noise per se but rather as a safeguard for the biblical prohibition of carrying, the Talmud limits the law against clapping to cases in which such action may lead to a biblical violation.

The Talmud here does not discuss the related law at mBets 5:2, which categorically prohibits clapping, slapping, and dancing. However, bBets 36a, which explains these prohibitions as safeguards lest one come to fix a musical instrument, also in fact assumes Rava’s limitation. If the reason for not clapping and dancing is because it will lead to playing, and consequently repairing, musical instruments, then obviously only clapping and dancing to a rhythm would be prohibited, while other types of noise would be permitted. bBets 36a does not state explicitly that the Talmud’s goal in introducing the safeguard reason is to limit the law; that may just be a convenient aftereffect. But it does seem that the Bavli’s Stam (anonymous redactors) there had Rava’s limitation in mind when they linked the prohibition against clapping with the fixing of musical instruments. Ironically, then, the Bavli’s presentation of the Mishnah as a safeguard for a biblical prohibition, which, as we saw above, was meant to bolster its authority, at the same time also serves to limit the law’s application.

Returning to bEruv 104a, the introduction of the safeguard reason here as an answer to the second challenge succeeds in confining the prohibition to cases in which one may pick up a pebble, but not any other cases of making noise.⁸¹ We thus see that, at least in this case, the Bavli utilizes the strategy of explaining a law as a safeguard in order to limit its application and thus explain it away. This lends support to the possibility the Bavli explains the shevut laws at mBets 5:2 as safeguards for similar reasons, at least in part.

The next challenge from mEruv 10:14 provides yet another example of this phenomenon. The Mishnah names two cisterns as exceptional in that it is permitted to draw water from them using a wheel on the Sabbath. This implies that drawing water using a wheel⁸² from all other cisterns is prohibited. The Mishnah does not provide any reason for this prohibition. However, Second Temple sources can help fill in the background. Both Jubilees and the Damascus Document specifically prohibit drawing water on the Sabbath.⁸³ In these sources, the prohibition is not a safeguard against something else but rather an independent law. The Bavli’s initial assumption that drawing water causes a problem of excess noise and commotion that is inappropriate on the Sabbath is probably very close to the Second Temple and Mishnaic conception of the law.⁸⁴ The Talmud solves the problem by explaining the law as a safeguard lest one come to use the drawn water to water one’s garden or ruin and not because of making noise. This explanation of the Mishnah then opens the door for a person to act leniently in cases in which the reason does not apply. Amemar here makes exactly this logical deduction: since in Maḥoza there were no gardens or ruins, the safeguard does not apply and drawing water is permitted. Only after people began using the water for other prohibited activities did Amemar reintroduce a prohibition.⁸⁵

These examples should suffice to show that the Bavli’s explanations of various shevut laws as rabbinic safeguards often served to limit the application of those prohibitions and thus to open up areas of leniency. In some cases, seeking leniencies prompted these explanations from the outset. In other cases, the safeguards were originally formulated in order to add legitimacy to shevut laws that were no longer considered biblical and would not be taken seriously unless formulated as preventative measures against biblical violations; but even in the latter cases, once the reason for the prohibition was only due to a specific safeguard and not a problematic act in itself, later authorities sometimes took advantage of the loopholes made available in cases where the safeguard does not apply.

Let us now analyze one more related example in which the rabbinic status of the prohibition against clapping allows for leniency. Daniel Sperber and Shaye Cohen cite evidence that the Sabbath was celebrated by many Jews as a day of joy, expressed by clapping and dancing.⁸⁶ Ignatius, the bishop of Antioch during the reign of Trajan, polemicizes against the Judaizing tendencies in his territory and specifically against the legal and carnal aspects of Jewish Sabbath observance:
But let every one of you keep the Sabbath after a spiritual manner, rejoicing in meditation on the law, not in relaxation of the body, admiring the workmanship of God, and not eating things prepared the day before, nor using lukewarm drinks, and walking within a prescribed space, nor finding delight in dancing and plaudits which have no sense in them.⁸⁷
Writing three centuries later in North Africa, Augustine similarly complains of the Jews: “They abstain from labors, and give themselves up to trifles; and though God ordained the Sabbath, they spend it in actions which God forbids. Our rest is from evil works, theirs from good; for it is better to plough than to dance.”⁸⁸ Along the same lines, he writes elsewhere: “Their women would do better to spin wool on the Shabbat rather than dancing indecently the whole day in their galleries.”⁸⁹

Augustine’s contemporary in Antioch, John Chrysostom, writes of Jews dancing on the Day of Atonement:

In Isaiah's day they quarreled and squabbled when they fasted; now when they fast, they go in for excesses and the ultimate licentiousness, dancing with bare feet in the marketplace. The pretext is that they are fasting, but they act like men who are drunk.⁹⁰
Indeed, rabbinic sources describe in glowing terms how women would dance on the Day of Atonement in order to attract mates.⁹¹ Rava’s prohibition in bEruv 104b against making music must have clashed with the widespread practice of dancing and clapping on the Sabbath, if indeed it continued into amoraic Babylonia.⁹² In fact, bBets 30a addresses this very concern over such widespread violation of Jewish law:⁹³
Rabbah⁹⁴ the son of Rav Ḥanin said to Abaye: “We learned, one may not slap, clap or dance. Today we see that people are performing these acts yet we do not tell them anything at all.”

He replied… “Leave⁹⁵ Israel alone; it is better that they should sin inadvertently and not sin intentionally.”

This applies only to a rabbinic law but not to a biblical law [in which case one must tell them].
We see first of all that Jews were accustomed to dance on the Sabbath not only in Antioch and North Africa, but in Babylonia as well.⁹⁶ Abaye decides that rebuking the people over this would not be effective in uprooting this longstanding practice. Therefore, he deems it better not to tell the people anything so that they would sin only out of ignorance, rather than teach them the law and cause them to sin knowingly. The Talmud next comments that this strategy may be applied only to a rabbinic law, which is less stringent, but not to a biblical law, of which the rabbis could not tolerate such blatant transgression.⁹⁷ We thus see that, according to this Stammaitic comment, it is precisely the determination that dancing and clapping on the Sabbath is only a derabanan law that allows the rabbis to turn a blind eye to its widespread contravention. As discussed above, the primary reason for the Bavli’s considering the shevut laws to be rabbinic is most probably a push towards greater systematization and a clear differentiation between the biblical thirty-nine categories of work and everything else, which must be only rabbinic. Nevertheless, a consequence of treating these laws as rabbinic safeguards also opens up the possibility of legislating towards leniency when the rabbis felt it to be warranted.

The custom to dance on the Sabbath continued for generations into medieval times, when it was once again discussed by the Tosafists, who sought a way to reconcile the law with the general practice:

One may not slap nor dance – Rashi explained this as a safeguard lest one come to fix a musical instrument. However, for us, this is permitted for it is only in their time when they were proficient in making instruments that it was pertinent to apply this safeguard. However, for us who are not proficient in making instruments, it is not pertinent to apply this safeguard.⁹⁸
Tosafot here are able to permit unreservedly all forms of clapping and dancing on the Sabbath, since the reason given by the Bavli no longer applies in their culture.⁹⁹ Thus the original reason the Bavli gave for this law in order to bolster its authority once again serves to limit it; but this time it is not only clapping to make noise that is permitted, but even clapping to music.