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

JSIJ 13 (2015) 1-26

“ONE MAY COME TO REPAIR MUSICAL INSTRUMENTS”:

RABBINIC AUTHORITY AND THE HISTORY OF THE SHEVUT LAWS

RICHARD HIDARY*

He [Moses] told them, ‘These are the words’ (Exodus 35:1) – Rabbi said: This comes to include the thirty-nine principal labors [prohibited on the Sabbath] that Moses told them orally.¹

Qumranite and Sadducean laws ground themselves in divine revelation, whether through exegesis of the Bible or through other books they considered prophetic, such as the Temple Scroll and the Book of Jubilees.² Rabbinic law, on the other hand, distinguishes between de’oraita laws that are derived from the Pentateuch, and derabanan enactments that are created by the sages themselves.³ Why did the rabbis construct this new category, and how did they infuse their derabanan laws with authoritative status? This article will trace the development of one category of laws—those relating to the Sabbath shevut activities—in order to shed light on these questions. The shevut laws, such as climbing a tree, clapping, and other activities listed at mBets 5:2, aim at maintaining a restful Sabbath atmosphere.⁴ As Yitzhak Gilat has shown, Second Temple sources make no distinction between this category of activities and other explicit, biblical Sabbath laws. In contrast, Rabbinic sources—for various reasons that we will examine below—demote the shevut laws by first removing penalties from them and then categorizing them as derabanan.⁵ As we will see, this led to a large degree of leniency in the application of these laws. At the same time, because the shevut laws were already widely established—even historically incurring the death penalty—they could in turn help bolster the authority of derabanan laws generally.

Before focusing on the specific issue of the shevut category, it is necessary to briefly review the history of the Sabbath prohibitions generally, from the Bible down through Second Temple, tannaitic, and amoraic sources.⁶ In the Ten Commandments, the Torah issues a general prohibition, “The seventh day is a Sabbath of the Lord your God, you shall not do any work (melakha),”⁷ on penalty of death.⁸ However, the Torah does not systematically define the parameters of such work other than providing a few examples, including: gathering and preparing food,⁹ gathering fuel,¹⁰ burning a fire,¹¹ agricultural work,¹² and working a slave or an animal.¹³ The Prophets further mention performing business transactions¹⁴ and carrying wares to the gates for selling.¹⁵ The sages and communities of later generations were left with the responsibility of defining more precisely the parameters of Sabbath observance. mḤag 1:8 appropriately comments that “the laws of the Sabbath…are like mountains¹⁶ hanging from a strand.”

In relation to Second Temple times, Jubilees 2:29-31 and 50:6–13 and Damascus Document 10:14–11:18 preserve lists of acts prohibited on the Sabbath. These sources include, without distinction or categorization, both prohibitions mentioned explicitly in the Bible as well as many more acts that the various sects of Jews also considered prohibited. Jubilees applies a single punishment for all violations: “The man who does any of these things on the Sabbath shall die” (50:13).¹⁷ Damascus Document 12:3–6, although it does not mention the death penalty, also provides the uniform punishment of exclusion from the community for all violations.¹⁸

Tannaitic sources provide a more systematic definition of the Sabbath prohibitions. mShab 7:2 lists thirty-nine principal labors (avot, singular av), including activities relating to agriculture and food preparation, clothing manufacture, preparation of parchment and writing, building, kindling a fire, and carrying. Yitzhak Gilat argues that this list derives from standard lists of work activities,¹⁹ and in fact belongs to a secondary stratum of the Mishnah.²⁰ Be that as it may, this codification excludes from biblically-sanctioned punishment a host of activities that were considered punishable in Second Temple sources. Many actions that were unqualifiedly prohibited in Jubilees and the Damascus Document are considered only rabbinic violations in rabbinic sources, e.g., muktseh,²¹ working before sunset,²² speaking about business,²³ and setting a non-Jew to work.²⁴ Other actions listed in the Second Temple sources are permitted (with some restriction) or even encouraged by the rabbis, such as making war,²⁵ sailing,²⁶ and sexual relations.²⁷ Limiting the principal prohibitions to these thirty-nine labors leaves room for the rabbis to legislate leniencies regarding various other activities.²⁸ At the same time, many activities that the rabbis consider biblically punishable besides the thirty-nine avot are bundled together with these principal labors as toladot (derived labors).²⁹ Additionally, in order to account for other activities that are neither avot nor toladot but are nevertheless prohibited, tannaitic sources provide alternative categories, the most significant being the shevut laws.

Palestinian Sources for Shevut Laws

The shevut laws are listed at mBets 5:2:
Anything for which one is liable as a restful act (shevut), as an optional act, or as a meritorious act on the Sabbath,³⁰ one is also liable [for them] on a festival.

These are restful acts: one may not climb a tree, one may not ride on an animal, one may not float on the water, one may not clap, one may not slap, and one may not dance.

These are optional actions: one may not judge, one may not betroth, one may not perform ḥalitsah, and one may not perform a levirate marriage.

These are meritorious acts: one may not dedicate anything to the Temple, one may not dedicate one’s value to the Temple, one may not make a vow devoting something to the Temple, one may not separate terumah or tithes.³¹

The term shevut originally refers to acts that are not work but are nevertheless biblically prohibited because they disrupt Sabbath restfulness.³² Early midrashim anchor these prohibitions in biblical verses:
I know that “work” (Exod 16:12) includes acts for which one is liable to bring a sin offering. But concerning an act for which one is not liable to bring a sin offering, how do I know that one may not climb a tree, that one many not ride an animal, that one may not float on the water, that one may not clap nor slap one’s thigh, nor dance? Scripture therefore teaches, “any work” (Exod 16:12).³³
Gilat and other scholars contend that this biblical proof reflects an earlier view of shevut laws as having biblical status.³⁴ Another midrash similarly derives the same conclusion from the word “complete rest (shabbaton)” at Lev 23:3.³⁵ Significantly, several of the actions listed in mBets 5:2 are also prohibited in the Second Temple sources mentioned above.³⁶ The Tannaim thus continue the Second Temple view that these various actions are prohibited by biblical sanction. However, the tannaitic midrashim also clearly distinguish between work (melakha) that is punishable and the shevut activities that are not, unlike the Second Temple sects who deem all such activities to be punishable.³⁷ We see here already that tannaitic law is both more systematic and generally more lenient than sectarian law.³⁸ R. Shimon, in fact, goes further than any of his contemporaries in regarding shevut as merely a rabbinic prohibition.³⁹

When we come to amoraic sources, the Talmud Yerushalmi generally continues the tannaitic view that the various shevut laws are biblically sanctioned but carry no punishment.⁴⁰ However, there are also voices in the Yerushalmi interpreting these laws towards leniency.⁴¹ Apparently, this tendency towards leniency reached far enough that R. Yoḥanan needed to declare, “Let not a shevut be light in your eyes for behold, laying down hands upon a sacrifice is only prohibited as a shevut; yet the patriarchs of the world were divided over it.”⁴²