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

The Role of the Bavli’s Shevut Laws in Bolstering the Authority of Rabbinic Legislation

Having seen a few examples of how the Bavli’s reasons for the shevut laws as safeguards led to leniency in some cases, whether this was the Bavli’s goal or just an aftereffect, I would like to explore one further consequence of the Bavli’s reinterpretation of these laws. The Bavli’s safeguards serve to bolster not only the authority of these specific shevut laws but also the authority of all rabbinic legislation. The shevut laws were already in place and probably were widely practiced (with the exception of clapping and dancing) long before the Bavli gave its reasons for them. Therefore, once the sages of the Bavli taught their students that the reason for their practice is a rabbinic safeguard, these students were likely to view other rabbinic safeguards—even those that the rabbis did actually newly legislate—with greater legitimacy. If they keep the shevut laws because they are rabbinic safeguards, they should be consistent and follow all of the rabbis’ safeguards.

Once again, I cannot be sure whether this consequence of the rabbinic decrees was intended by the Bavli, but there is some textual evidence that this was, in fact, at least an aftereffect. One case where this effect is evident relates to blowing shofar on Rosh Hashanah that falls on the Sabbath—a subject related to playing musical instruments. mRH 4:1 rules that if Rosh Hashana falls on the Sabbath, one only blows the shofar in the Temple but not anywhere else. yRH 4:1, 59b, provides a biblical source for this. The Torah includes two verses commanding the blowing of the shofar on Rosh Hashanah: Num. 29:1 calls it “a day of blasting” the shofar, while Lev. 23:24 calls it, “a remembrance of blasting” the shofar; the former applies to blowing the shofar when Rosh Hashana falls on a weekday while the latter teaches that one only mentions but does not actually blow the shofar when Rosh Hashana falls on the Sabbath. The juxtaposition of the latter verse with what follows it in Lev. 23:25, which permits one to offer sacrifices on this day in the Temple, teaches that the shofar may be blown in the Temple even on the Sabbath.¹⁰⁰

bRH 29b rejects the reasoning presented in the Yerushalmi, since it considers the prohibition against blowing shofar to be only rabbinic in the first place; hence no biblical verse would be needed to permit it. Rather, Rabbah explains:

Everyone is obligated to blow the shofar but not everyone is an expert in blowing shofar. [The rabbis thus prohibit blowing on the Sabbath as] a safeguard lest one carry it in his hand and go to an expert to learn and he will carry it four amot in the public domain.¹⁰¹
This safeguard would not, however, apply in the Temple, where rabbinic safeguards are always permitted.¹⁰² So far, these sources follow the trend we have already witnessed. Palestinian sources consider making sounds on the Sabbath to be biblically prohibited and therefore require a biblical source for an exception on the Sabbath in the Temple, while the Bavli does not consider these shevut laws to be biblical, but rather explains them as rabbinic safeguards.

What is new in this example is how this case is cited at bYev 90a. The Talmud there questions whether the rabbis have the power to make legislation that would uproot a biblical law.¹⁰³ It establishes that even if the rabbis do not have the power to uproot a negative commandment, they can require a person to passively refrain from performing a biblical obligation.¹⁰⁴ As proof, the Talmud cites this case whereby the Bible commands one to blow the shofar even on the Sabbath in all places, but the rabbis uproot this law and prohibit blowing the shofar in any place except for the Temple. In fact, the practice of not blowing the shofar outside the Temple was already widespread long before the Bavli explained this as a rabbinic safeguard.¹⁰⁵ But once the Bavli justifies the practice as a rabbinic enactment, it can then serve as a precedent for rabbinic authority, even over biblical laws.¹⁰⁶

The same Talmudic pericope continues to prove that the rabbis have the power to legislate even that a person actively violate a negative biblical commandment, if their goal is to keep people from sinning. The following story exemplifies this power:
R. Eleazar ben Jacob said: I heard that a court may whip and punish even when not sanctioned in the Torah—not in order to transgress the words of the Torah but rather to make a fence for the Torah.

There was a case of a person who rode on a horse on the Sabbath in the days of the Greeks and they brought him to court and they stoned him—not because that was what he deserved but because the exigencies of the hour demanded it.¹⁰⁷

Historical analysis of this story reveals that the explanation provided here for putting this horse-rider to death may not have been the original reason. The Torah prohibits working an animal at Exod. 20:10, 23:12 and Deut. 5:14. Jub. 50:12-13 legislates that one who “rides on any beast” is liable to death. mBets 5:2, however, states that riding an animal is only prohibited because of shevut, and incurs no punishment.¹⁰⁸ As noted above, tannaitic midrashim consider this category of prohibitions to be biblically prohibited. yBets 5:2, 63a, discusses the reason for this law and concludes: “A person is commanded to let his animal rest just as himself, ‘that your ox and your ass may rest’ ‘as you do.’”¹⁰⁹ The Bavli then categorizes this law as rabbinic and explains that it is a safeguard lest one come to cut off a branch to whip the animal. Assuming that the above story is based on some historical event and indeed dates accurately to the Hellenistic period,¹¹⁰ it is most likely that the horse rider was killed not as a rabbinic fence but because at that point in time, the prohibition on riding a horse was considered a biblical and punishable law, as in the book of Jubilees.¹¹¹

As this story was transmitted by the rabbis, who ruled that these actions are not punishable, they had to provide a different explanation for the rider’s execution. They therefore cited this as an example of extra-judicial punishment. The story cited above from the Bavli appears also in Megilat Ta`anit and the Yerushalmi, with subtle but significant differences.<sup>112</sup> The version in Megilat Ta`anit explains that the court may mete out punishments even beyond the letter of the law as set forth in the Torah, in order to “purge evil from amongst you.”¹¹³ The Bavli, however, omits this phrase and instead inserts, “in order to make a fence around the Torah.” While the Palestinian sources already provide the court with the leeway to mete out punishments beyond those prescribed in the Torah, the Bavli connects this leeway specifically to the rabbinic penchant to make safeguards to the Torah, and cites it at the end of its long discussion about the power of the rabbis to uproot a biblical law. The Bavli thus completes the transfer of the biblical authority to the rabbis. The Bavli uses the very story that was once an example of applying the biblical punishment as a proof that the rabbis can impose even the death penalty for violation of rabbinic law.

Interestingly, bShab 30a presents Moses as a rabbi who legislated safeguards and enactments that will last forever in the form of the Torah.¹¹⁴ This has the effect of raising all rabbinic safeguards to a level near that of the Torah itself. In fact, the Talmud thematizes the superiority of rabbinic law over biblical law in many places.¹¹⁵ Regarding the law of the rebellious elder who teaches laws in contradiction to the ruling of the supreme court in Jerusalem, mSan 11:3 states: “There is a greater stringency regarding teachings of the scribes than regarding teachings of the Torah. If one says, there is no precept of tefillin, such that a biblical law would be transgressed, he is exempt. [But if he rules that the tefillin must contain] five compartments, thus adding to the words of the scribes, he is liable.” The midrash transforms the biblical law at Deut. 17:8-13 providing ultimate authority of the national high court to decide civil lawsuits into an institution designed specifically to uphold rabbinic law.¹¹⁶ More than once, the Tosefta rules more stringently regarding rabbinic laws than regarding biblical laws, with the rationale that – “[T]his is from the words of the Torah and the words of the Torah do not need strengthening; this is from the words of the scribes and the words of the scribes do need strengthening.”¹¹⁷

While in those cases, the Talmud is very explicit about its drive to extend authority to rabbinic laws, in the examples of the shofar and riding a horse this motivation is only implicit, perhaps even subconscious. Training the Jewish population to accept the authority of rabbinic legislation was accomplished by many and various means,¹¹⁸ but the ability to take long-standing, widespread practices and teach them as rabbinic laws must have contributed to the perception that rabbinic legislation in general should be taken seriously. Even if this was not part of the motivation of the Bavli in providing its explanations, it would certainly have been a welcome side effect that was in fact utilized in bYev.

In sum, this analysis reveals that the reasons for the shevut laws listed in the Bavli are not the original reasons for these laws, which in fact have a much more ancient basis in Second Temple practice. Jewish law as reflected in Second Temple sources does not differentiate between various types of prohibited activity, but rather considers the various activities called shevut by the rabbis to be on par with all other types of work that are similarly punishable. The Tannaim, in their effort to systematize the prohibited activities of the Sabbath into thirty-nine categories, designate a category of shevut activities that are biblically prohibited but not punishable. While the Yerushalmi generally continues the tannaitic model, the Bavli, in its penchant for greater systematization and conceptualization, relegates this indeterminate category of shevut laws to the status of rabbinic prohibitions. However, this shift also bolsters their authority by explaining them as safeguards for biblical prohibitions. This has two major effects. First, it opens up room for further leniency in the application of these safeguards, especially when the reason no longer applies. Second, the transfer of these widespread laws from biblical to rabbinic status ends up serving to bolster the authority of rabbinic law in general.

We began this article with the commonly expressed and generally correct distinction between sectarian law, which grounds all legislation and interpretation in prophetic revelation, and rabbinic law, which maintains two categories of prophetic Pentateuchal law and man-made rabbinic law. However, the fluidity of the shevut law categorization and the way the Talmud uses these newly-minted rabbinic laws to bolster rabbinic authority in general serves to deconstruct such over-generalized distinctions. In fact, the Talmud audaciously confers prophetic ability on the rabbis: “From the day the Temple was destroyed, prophecy was taken from the prophets and given to the sages.”¹¹⁹ The midrash furthermore includes all of the oral law, even rabbinic pronouncements, within prophetic revelation: “Scripture, Mishnah, Talmud, and Aggadah—even whatever a distinguished student will decide before his master—were all already told to Moses at Sinai.”¹²⁰ Rabbinic legislation, at least according to these sources, also derives from revelation and prophetically-inspired interpretation, and as such may not be that different from the Qumranite view after all.¹²¹

1* Associate Professor of Judaic Studies, Yeshiva University, New York.

^ Mekhilta deR. Ishmael, Shabata 1; and see parallels at bShab 70a and 97b, and analysis at Richard Hidary, “Four Ways to Derive the Thirty-Nine Avot Melakhot,” http://thetorah.com/four-ways-to-derive-the-thirty-nine-melakhot/ (2015).

2 On the prophetic status of exegesis at Qumran, see Lawrence Schiffman, The Halakhah at Qumran (Leiden: Brill, 1975), 32. On the prophetic status of Jubilees and the Temple Scroll, see Hindy Najman, Seconding Sinai: The Development of Mosaic Discourse in Second Temple Judaism (Leiden: Brill, 2003); Joseph Baumgarten, “The Unwritten Law in the Pre-Rabbinic Period,” Journal for the Study of Judaism in the Persian, Hellenistic and Roman Period 3 (1972), 10; and Yigael Yadin, “The Temple Scroll,” in New Directions in Biblical Archaeology, ed. David Noel Freedman and Jonas C. Greenfield (Garden City: Doubleday Anchor Books, 1969).

3 See Aharon Shemesh, Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis (Berkley: University of California Press, 2009), 30–71, 97; Benjamin De Vries, Studies in the Development of the Talmudic Halakah (Tel-Aviv: Araham Zioni Publishing House, 1966) (Hebrew), 69–95; and Yitzhak D. Gilat, Studies in the Development of the Halakha (Jerusalem: Bar-Ilan University Press, 1992) (Hebrew), 239.

4 See Nathan Barack, A History of the Sabbath (New York: Jonathan David, 1965), 55–60, and further below n. Error: Reference source not found.

5 Gilat, Studies, 87-108, and see further below.

6 See also Chris Rowland, “A Summary of Sabbath Observance in Judaism at the Beginning of the Christian Era,” in From Sabbath to Lord’s Day: A Biblical Historical and Theological Investigation, ed. D.A. Carson (Grand Rapids: Academie Books, 1982), 43–55; and Gerhard F. Hasel, “The Sabbath in the Pentateuch,” in The Sabbath in Scripture and History, eds. Kenneth Albert Strand and Daniel Andre Augsburger, (Washington D.C.: Review and Herald Publishing Association, 1982), 21–43.

7 Exod. 20:10. All biblical translations are from NJPS.

8 Ibid. 31:14 and 35:2.

9 Exod. 16:22–29.

10 Num. 15:32–36. Interpreters provide various explanations for the precise Sabbath violation involved in this pericope. Philo, Moses, 2.220, writes that gathering wood connects to the act of making a fire and furthermore that one may not move wood. See further at Samuel Belkin, Philo and the Oral Law: The Philonic Interpretation of Biblical Law in Relation to the Palestinian Halakah (Cambridge: Harvard University Press, 1968), 198; and Schiffman, The Halakhah at Qumran, 118. Onkelos translates the prohibited act as binding (megabeb) while Targum Pseudo-Jonathan accuses the sinner of uprooting trees. Similarly, bShab 96b records suggestions by various rabbis that the wood gatherer was guilty of detaching the branches from the trees, of carrying the wood in public domain, or of tying them up into bundles. See also Gilat, Studies, 33 n. 9; and idem, “Introduction: The Sabbath in the Bible,” in Yad la-Talmud: Selected Chapters, ed. E. E. Urbach (Jerusalem: 1984), 47.

11 Exod. 35:3.

12 Exod. 34:21.

13 Exod. 20:10, 23:12 and Deut. 5:14.

14 Amos 8:5 and Isa. 58:13.

15 Jer. 17:21–22. Neh. 10:32 and 13:15–23 also mentions buying food and wares as well as pressing wine and loading animals. On the biblical Sabbath prohibitions, see further at Gilat, Studies, 33; and idem, “Introduction,” 45–51; Admiel Kosman, “On the History of the Category of ‘Ovadin DeChol’ and Yom-tov and its Relationship to the Category of ‘Shevut’ Prohibitions,” (Hebrew; PhD diss., Bar-Ilan University, 1993), 9–12; and Gerhard F. Hasel and W.G.C. Murdoch, “The Sabbath in the Prophetic and Historical Literature of the Old Testament,” in The Sabbath in Scripture and History, eds. Kenneth Albert Strand and Daniel Andre Augsburger, (Washington D.C.: Review and Herald Publishing Association, 1982), 44–56.

16 Or, following ms. Parma, “desert plants.” See analysis at Michal Bar-Asher Siegal, “Mountains Hanging by a Strand? Re-reading Mishnah Hagiga 1:8,” Journal of Ancient Judaism 4 (2013), 235–56.

17 See further at Lutz Doering, “The Concept of the Sabbath in the Book of Jubilees,” in Studies in the Book of Jubilees, ed. Matthias Albani, et al. (Tübingen: Mohr Siebeck, 1997), 179–205.

18 See Schiffman, The Halakhah at Qumran, 78. This does not mean that ideally, the sectarians would not have applied the death penalty had they been in power in the Temple; rather, the Damascus Document legislates for its own time, when they had recourse neither to corporeal punishment nor to sacrifices. See also Sakae Kubo, “The Sabbath in the Intertestamental Period,” in The Sabbath in Scripture and History, eds. Kenneth Albert Strand and Daniel Andre Augsburger, (Washington D.C.: Review and Herald Publishing Association, 1982), 57–69; and see Charlotte Hempel, The Damascus Texts (Sheffield, 2000) 97–98, for a discussion of the relevant 4Q265 text.

19 Such lists are found at tBer 6:2 and yShek 5:1, 48c.

20 Gilat, Studies, 39-43; and see Hidary, “Four Ways to Derive the Thirty-Nine Avot Melakhot.”

21 See Schiffman, The Halakhah at Qumran, 117-19. The Damascus Document 11:10–11, Josephus, War, 2.147, and Philo, Moses, 2.219–220, mention prohibitions on handling stone, earth, wood, and perhaps even any unusable vessel. mShab 17:6 and mBets 1:2 include similar examples but do not include muktseh in the thirty-nine avot and do not say that one is liable for handling these objects (although see bPes 47b). In a rare acknowledgment of an express desire to legislate towards leniency, the rabbis trace the development of the laws of muktseh from the original law that prohibited all but three types of utensils until their own time, when only two types of utensils were forbidden: see tShab 14:1; yShab 17:1, 16a; and bShab 123b. Significantly, only the Bavli explains muktseh in terms of a safeguard against carrying: see bShab 124a and bBets 37a. Rabbi Meir Simcha of Dvinsk (1843–1926) in his Or Sameaḥ commentary to Mishneh Torah, Hilkhot Shabbat 24:12 explains the Bavli’s permission to move a prohibited object in order to use the space where it lies as being based on its view of these laws as a safeguard against carrying. However, there is no textual evidence for such a connection and this permission is in any case already present in yShab 17:4, 16b. Interestingly, Maimonides in Mishneh Torah, Hilkhot Shabbat 24:12–13, ignores the explanation of the Bavli for the laws of muktseh as safeguards against carrying, and instead bases them on Deut. 5:14 and the need to create a restful experience. One wonders whether Maimonides might have been influenced by the sectarian view of muktseh, either directly by reading the Damascus Document or indirectly from contact with the Karaites in Cairo who had a copy of the Damascus Document. See further at Ben-Zion Wacholder, The New Damascus Document: The Midrash on the Eschatological Torah of the Dead Sea Scrolls: Reconstruction, Translation and Commentary (Leiden: Brill, 2007), 8.

22 See Schiffman, The Halakhah at Qumran, 84–87; and Gilat, Studies, 258-61. Steven Fraade, “Looking for Legal Midrash at Qumran,” in Biblical Perspectives: Early Use and Interpretation of the Bible in Light of the Dead Sea Scrolls, ed. Michael E. Stone and Esther Chazon (Leiden: Brill, 1998), 70-72.

23 See Schiffman, The Halakhah at Qumran, 87-90; Gilat, Studies, 255-58; and Alex Jassen, Scripture and Law in the Dead Sea Scrolls and Ancient Judaism (Cambridge: Cambridge University Press, 2014).

24 See Schiffman, ibid., 104–06; Gilat, ibid., 106–8; and Jacob Katz, The “Shabbes Goy”: A Study in Halakhic Flexibility (New York: The Jewish Publication Society, 1989), 9–13.

25 Shlomo Goren, Torat ha-Shabbat veha-mo`ed (Jerusalem: Ha-histadrut ha-Zionit ha-`Olamit, 1982), 36–105; Shmuel Safrai and Ze’ev Safrai, Mishnat Eretz Israel (Jerusalem: E.M. Liphshitz College Publishing House, 2008), Shabbat, 1:21–22, and further references there.

26 See Jub. 50:12 and Sifre Deut. 203.

27 See bKet 62b; bBQ 82a; and Etan Levin, Marital Relations in Ancient Judaism (Weisbaden: Harrassowitz, 2009), 228. Most talmudic sages even permit sexual relations on the Sabbath with a virgin on her wedding night even though the act will cause bleeding; see yKet 1:1, 24d; yBer 2:6, 5b; bKet 5b–7a.

28 This tendency towards leniency is further evident in their legislation regarding `eruv ḥatserot in order to ease the prohibition of carrying, `eruv teḥumin in order to ease the limit on Sabbath travel, and `eruv tavshilin to permit cooking on the festival in preparation for the Sabbath.

29 See Noah Aminoah, “Avot ve-toladot bi-mlakhot Shabbat,” Sidra 24-25 (2010): 273–90; and Gilat, Studies, 43-47.

30 On the distinction between restful, optional and meritorious, see Hanoch Albeck, Six Orders of Mishnah, 6 vols. (Hebrew; Jerusalem: Mossad Bialik, 1959), Mo`ed, 484; and Gedaliah Alon, Mehkarim be-toldot Yisrael bime bayit sheni uvi-tekufat ha-Mishnah veha-Talmud (Tev Aviv: Ha-qibus Ha-me’uhad, 1957), 111–119.

31 All translations of rabbinic texts are my own.

32 The first line of mBets 5:2 applies the term “liable” in reference to the category of shevut, implying that it is also punishable. In fact, yShab 2:7, 5b, refers to the prohibition against lighting a fire as a shevut. Thus, perhaps shevut in some cases may refer to a biblical prohibition, even one for which one would be liable to punishment. See Alon, ibid., 111–112. See also parallels at Avot de-Rabbi Natan A 25 and bSan 68a and analysis at Gilat, Studies, 98, who explains that R. Eliezer calls muktseh a shevut and considers it biblically liable to punishment.

33 Mekhilta de-R. Shimon bar Yoḥai, 12:16.

34 Gilat, Studies, 92.

35 Sifra, Aḥare Mot 5. See also Midrash ha-gadol to Exod. 35:2 citing biblical sources for prohibitions such as doing business, judging and betrothal; and Mekhilta de R. Ishmael, kaspa, 20, regarding the entire category of shevut laws. See further at Benjamin De Vries, Studies, 90–94; and Admiel Kosman, “On the History of the Category of ‘Ovadin De’chol’ and Yom-tov and its Relationship to the Category of ‘Shevut’ Prohibitions,” (PhD diss., Bar-Ilan University, 1993) (Hebrew), 117–30.