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Friday, November 15, 2013

Bankrupt Cities

Here are some quick Friday thoughts on ethical issues of bankrupt cities:

There seem to be two main issues: How to work out who gets what monies from the city (similar to the issues of a company going bankrupt) and which if any assets the city has the right to retain.  

Here are my 4 thoughts - just initial thoughts:

1. First discussion (of two) of debtor's obligation:

According to Mishna Arakhin  6:3-4, a debtor retains the right to basic necessities of survival (a roof and bed etc) and of generating income (tools of his trade if he must own his own in order to work).

Based on this model, what if anything does the right of retaining basic necessities mean for a group of people (as in a city)?

We have m. Megilla's references that a sefer Torah and a beit knesset are basic.  Does that mean even in the face of debt?  Actually, we have a history of Halakha of defaulting communities (Vaad ha-Kehilot of Poland and Lithuania; some famous kupot/kollelim of Yerushalayim).  I have never looked into the Halakhic rulings but I recall that some exist.


2. As regards multiple creditors and Detroit, how should limited money of default be divided fairly?

a. One angle on the issue is to view everyone owed money as in the same mess and ask what to do now.  Do we (society) wish to divide the money equally [obviously no more to anybody than he is actually owed] so that each party gets minimally the same amount to help them survive and move on in life from this point forward?  OR do we wish to divide the losses proportionately since each party had made decisions/set up their life in reliance on future repayment of a certain sum of money and so each party's damage depends on the proportion lost?

The matter is debated in Halakhic history. 

a-1. First, let's see how m. Ketubot 10:4 plays it out.  In this mishna one person is owed 100, another 200, and a third is owed 300.  In this case, the two concerns are balanced:

      מי שהיה נשוי שלש נשים ומת 
כתובתה של זו מנה ושל זו מאתים ושל זו שלש מאות 
ואין שם אלא מנה - חולקין בשוה
   (75 =) היו שם מאתים - של מנה נוטלת חמשים, של מאתים ושל שלש מאות שלשה שלשה של זהב 
  (150 =)היו שם שלש מאות - של מנה נוטלת חמשים ושל מאתים מנה ושל שלש מאות ששה של זהב 
וכן ג' שהטילו לכיס פיחתו או הותירו כך הן חולקין:

First case: everyone gets the same amount - 33.3 + 33.3 + 33.3 - and the losses are very disproportional.  The concern seems to be that everyone has an equal right to receive the same share of the sum needed to move forward in life.  Losses are ignored.

Second case: The smallest sum creditor gets half of his money with the others also getting the same sum and more.  The others then divide the difference equally. 50/100, 50+25, and 50+25.  The concern seems to be to balance between granting everyone the same sum but only up to half of the debt.   Anything beyond half goes to the parties that are owed more money

Third case: Everyone get the ideal (in this type of case) - half of the money that they were owed: 50/100, 100/200, 150/300.

a-2. The Geonim, however, say that everyone gets their proportion (referenced in Rambam malveh ve-loveh 20:10).
For those who prefer concrete numbers:
If only 100 were available, it would be approximately: 16+/100, 32+/200, 48+/300.

a-3. Rambam says that the money is divided so that each smaller party gets as much as up to their whole debt and not just half - and only then is the rest divided equally (malveh ve-loveh 20:7).  The position codified in the Rambam prioritized giving everybody equal footing to move forward [obviously not beyond the money a party was owed]

For those who prefer concrete numbers:

If only 100 were available: 33.3/100 + 33.3/200 + 33.3/300

If 300 were available: 100/100 + 100/200 + 100/300

If 400 were available: 100/100 + 150/200 + 150/300

If 500 were available: 100/100 + 200/200 + 200/300

b.  A problem with this analysis, however, is that although it can express values and is great for the classroom, it seems to ignore the intuition of greater damage to workers than to banks.  It is true that big lenders need to be appeased so that they will lend to and service cities in the future (she-lo tin'ol delet), but we seem to be missing an attempt to balance that and the workers' more severe need.  Anybody who has actually done business will realize, however, that it is also possible that a contractor and his employees or heavy bond holders etc will go under due to the canceled debt.

So let us clarify what underlies that intuition if it does make sense.  The intuition that workers deserve money more than the banks deserve the money seems to come from two related considerations:  Banks tend to evaluate their risks well, and banks can absorb the loss.

Although this is not always true (Enron etc etc), one basic reason that it seems to be true is because banks banks try to protect their loans.  So, we possibly should distinguish between liens (which also facilitate loans - she-lo tin'ol delet) and other monies owed.  In Halakha: when it comes to liens, first creditors collect first on the assumption that later creditors knew that they had less powerful liens. Notice that this is not an issue of the mess of debts owed later but of acquiring rights/guarantees at the time of the initial loan.  According to this reasoning, banks have the upper hand as regards mortgaged but not as regards unprotected debt.

c. That is still problematic, however, because we have not discussed who we think deserves the money:

A libertarian will say that workers overdrew on the city's resources and brought about their own ruin.  A liberal will say that the banks cooperated with the city's rich (and the suburbians) to drain the city and brought about the end of their own party.

A non-ideological analysis, however, would more simply recognize that each side's responsibility grew as the situation worsened:  
1. Imagine that I am a worker who fights for a more pay while facing a rich city. No reason to avoid that.  Imagine that I am a bank lending to a rich city suffering cash flow problems or a temporary income shortage.  I similarly lend them money to our mutual advantage.
2. Now, however, imagine that I am a worker who demands higher wages as the city is slowly spiraling to ruin.  Imagine that I am a banker lending for the profit of drawing interest until the debt collapses.

Well, aside from mekorot forbidding trying to destructively drain another person economically, civil law Halakha has a response to that.  Liens. This time liens against future property: 
1. Under Western capitalist arrangements in which debts are liens against property that will exist at the time of collection, Halakha would reflect the issue of responsibility.  In collecting from city assets - building, paintings, etc - an earlier contract (whether loan or employment, including retirement funds etc) takes precedence over a later contract.  

Thus, our earlier discussion of how much money to fairly give each debtor would apply only to monies left at the city's demise.

THIS DISCUSSION COULD BE NUANCED but I will stop it here.

3. Second discussion (of two) of debtor's obligation:
What about the city's residents, however?  What are they supposed to do?  True, they (or their elected officials) made bad decisions but those bad decisions were also in part due to the creditor's past demands.

Here the Halakhic discussion gets messier and more interesting.
What does ribbit mean as regards cities?
What does ribbit mean as regards cities and destructive clauses [not just interest]?
What does asmakhta mean as regards cities' contracts?
Is the argument that asmakhta is not applicable to shetarot relevant to shetarot signed by officials who don't pay the price for the commitments they made on behalf of others?  [cf. m. Bava Mezia on a father hired farmhand making a deal for himself and his minor child versus himself and his adult dependents]

Since it is late on Friday here, I will not expand these further.

4.There is only point that I would add out-of-the-box. It begins with technical info (a) and then I state the argument (b).

Technical background: 
a.  Halakha has recognized the right to bankruptcy

In Tanakh it is either every seven years (Sefer Devarim) or fifty years (Bahar).
Among Tannaim, the right was originally maintained - except as regards property that had been placed in lien (i.e. land and pawns).
Even when Halakha later allowed for permanent debts against a debtor's person, it allowed it only for purely commercial loans (such as loans in which the debtor had some assets and the documents were drawn up and deposited in the city records - prosbul [see my article]).
In other words: Loans between relatives and other people in reciprocal relationships  - loans without a shi'abud clause - were still canceled by shemitta (although a debtor who has the money is expected to repay).

This combination of rulings makes sense when we realize that the borrower and other family members/people of that circle are expected to lend to the lender in the future if he should need money.

Since the expectation is that the lender will cancel for poor family members who also have a reciprocal relationship with him, the expectation never dissapeared in Halakha:
When even oral loans became potentially permanent, the creditor had to declare publicly and in writing each specific debt that he was not foregoing [i.e. even when prosbul changed, there used to be a seperate document for each debt].  This means that there was still public pressure to forego debts from family members etc
Even when a blanket written prosbul became accepted, aharonim ruled that there is mitzva to cancel some debts [like burning some hametz] - so that there is still an expectation that a creditor will forego debts from relatives [etc]

b. What does bankruptcy based on reciprocity mean for a community?
What would that mean for a worker who lives in his town (forget a large city for the moment)?  
A town utilized the right to leave the debt: Would the ethical basis for such a right be a reciprocal relationship between the other residents and the worker?
Would a worker have a right to expect priority in being hired (cf. b. Bava Mezi'a 109a-b and rishonim through poskim)?
Would a worker have a right to expect right to tax benefits and/or a right to free use of [some] city services? [see rishonim on ha-anek ta'anik and workers versus indentured servants while keeping in mind that workers were not payed and that there is a perpetual mitzva on a debtor to pay even as he has no civil law obligation to repay after shemitta]

Shabbat shalom!

Thursday, August 8, 2013

ARTIFICIAL MEAT

Since I was asked by a former student, here are my quick thoughts on some Halakhic questions regarding the new "meat". These were merely quick thoughts. For people who have a need to think about this through a Halakhic lens - i.e. for ve-dibarta bam purposes only, not Halakhic:

Hi!

Here are quick thoughts:

1. Such meat (which was never alive) is kosher without humane slaughter (i.e. shehita).

Halakhically, even a breathing fetus calf that was removed after a cow's slaughter (ben paku'a) is minimally acceptable as food (i.e. mi-de-orraita) if it was killed in any way - although the humane cultural standard (mi-de-rabannan) is to slaughter it.

All the more so, this meat.

2. As regards the question of whether such meat must have originally come from the cells of a humanely slaughtered animal, the question is whether one relates to how this meat was originally acquired (as one might be bothered by using a human cell strain that was acquired unethically) or whether one relates to the constantly new cells as unrelated to the original meat (as one might relate to a cell strain as having no connection to an original unethical act).

Since the problematic of killing an animal inhumanely for food is not so severe (is not assur be-hana'a), the origins of the cells and thus the meat should not matter; it is no different than permitting a calf born to a mortally wounded animal because the calf is independent of the cow even as we forbid an egg (and debatably a chick) laid from a wounded hen. These new cells were not part of the dead animal.

As regards the question of whether we should have some degree of sensitivity to how these cells were acquired, there is a Tannaitic debate whether the viable calf born to a mortally wounded cow is forbidden or permitted to the altar. Does one associate the calf with the mother that either had not been protected enough against predators/the elements or had been fed sharp wounding objects negligently? The accepted position is that the calf is acceptable even as a sacrifice to G-d. All the more so as regards this "meat" in which the cells are made from cells that have been made from cells, paralleling a calf born to a calf that had been born to a mortally wounded animal; there are no triggers to recall the original animal.

Note: this argument does not permit killing an animal inhumanely (tza'ar ba'alei hayyim) in order to begin this process.

3. As regards the injunction against eating meat and milk, this new meat had no mother. Thus, the meat is no longer meat. It is all the more so not a domesticated species in spite of the fact that anything born to a species is considered part of that species no matter what it looks like. I will separate the two questions of species and of being an animal:

3a. If a calf is born with genetic mutations that make it appear more like a pig, it is still kosher calf meat. In other words, because it shares the grazing, biological and mating traits of a calf and not a pig - regardless of its appearance - it is a calf. In fact, even if it born dead, as a fetus, it is forbidden to cook and eat with milk - but that again is because it is the embryo that might have been born alive and suckled. In our case there is no emotional relationship (or even economic relationship) between cooking a killed calf/kid in the milk of a cow that is being milked until it will in turn be killed (etc etc), since this "meat" was never a developing calf. This meat is not an embryo.

3b. As regards the lesser injunction against cooking/eating milk with any meat, this "meat" does not come from an animal that was born or gestated. This meat is no different than a plant. Thus, although it has the texture of meat, the injunction does not apply.

3c. However, there is another more general - and weaker - prohibition (that is rooted in the injunction against eating milk and meat together) to consider: the prohibition against wasting protein by eating things like meat and fish together. Such haughtiness has been considered dangerous, a potential cause of leprosy, by the rabbis (and other cultures). There is in fact a modern (since 16th century) debate over whether one should also avoid eating fish with milk/cheese.

True, rich people circumvented that injunction by relating to the custom of rich Europeans to eat the fish and meat in separate courses as sufficient to not be considered gluttonous in consuming both fish and meat together. Nonetheless: I do not see room for circumvention in this case in which permitting such "meat" and milk together would also lead to people cooking and eating killed meat with dairy once the two types of meats are similar enough, cooking and eating such "meat" with milk should be forbidden. This is not a new "fence" but rather an application of the old fence that forbid cooking even chicken with almond milk without adding almonds to maintain the psychological barrier against even chicken and milk. In fact, even those who argued that almonds need not be added because the chicken is clearly not beef/goat/sheep (and the "milk" tastes completely different than real milk), would forbid mixing "meat" that (will soon) taste like meat with real milk.

Wednesday, June 26, 2013

Riding Bicycles on Shabbat - a note

In the past, when I have discussed why Ashkenazim opposed riding bicycles on Shabbat more than Middle-Eastern authorities did - I focused on the work uses of the bicycle in Europe, even between towns.  These situations obviously involved periodic fixing of flats (and fixing of the chain once that came into use).  Thus, it is not surprising that it was forbidden as the Tannaim had forbidden horse riding and that it was forbidden in language that points out how even casual riding can turn into work.

 However, I overlooked that the other grounds of opposition: bicycle riding in Europe became a group sport - which takes us back to the Ashkenazic debate over playing soccer/rugby/football on Shabbat.  It also involved inter-gender socializing, and even allowed for socializing further away from one's neighborhood of residence.  Even strangers could use their shared interest in bicycling as an opening point of conversation with the opposite gender - and all the more so a man and a woman who were strangers could meet by his offering to help fix her bicycle chain or flat.  These issues both can be found in the Halakhic language and were not as significant in Middle Eastern countries in which only men bicycled.

For some sources on Western consternation in response to bicycling (especially on the day of rest), see:

David Herlihy, Bicycle: The History. pp 266-272

Monday, October 1, 2012

FOR SUKKOT (from chapter on Rishonim)


B2. Rashi

Two generations later, we find the same substantive approach of applying earlier laws’ narrative typifications expressed by the leading Franco-German rabbinic authority of his time – R. Shlomo b. Isaac (RaShI, Troyes –  1040–1105).  This student of the school of Rabbeinu Gershom so understood that Jewish Law’s conceptual language expresses underlying narrative typifications instead of semantically defining them that he did not bother with semantic consistency.  We will examine two examples.  The first example touches upon the arrangement of the fixed metonic cycle for the lunisolar Jewish calendar, whereby both the Biblically commanded blowing of a shofar on the first day of Rosh HaShana (Leviticus 23:24)[1] and the waving of lulav and etrog (a bound set of four plant species) on the first day of Sukkot (Leviticus 23:40) would be postponed to the next day if these holiday fell out on Shabbat.[2]  The second example… 
B2a. Rashi: Avoiding the Blowing of a Shofar and the Waving of a Lulav/Etrog Set on Shabbat
In the first example, Rashi was asked the following question: Why did the (Talmudic) sages fix a metonic cycle for the lunisolar Jewish calendar in such manner that both the Biblically commanded blowing of a shofar on the first day of Rosh HaShana (Leviticus 23:24)[3] and the waving of lulav and etrog (a bound set of four plant species) on the first day of Sukkot (Leviticus 23:40) would be postponed to the next day if these holiday fell out on Shabbat[4] but ensured that the less-significant beating of the willow branches on the seventh day of Sukkot[5] not fall out on – and be cancelled by – Shabbat:
They asked him [Rashi] further: Why did the sages calculate the holidays for the sake of [beating] the willow, that it should not fall out on Shabbat but not care about [the blowing of the] shofar and the [waving of the] lulav [along with willow branches, myrtle branches and a citron]?  Isn’t the primary mitzvah of lulav on the first day as written in the Torah (Lev 23:4), and the rest [of the days of waving the lulav] are only in memory of the Temple [in which the lulav was waved all seven days]! (Teshuvot Rashi #118)
Rashi answered that a missed Biblical blowing of a shofar or waving of multiple species could be made up on the following day:
And our Master answered us: We must of necessity establish Rosh HaShanah on Shabbat [in some years], in which case Sukkot will begin on Shabbat, too.  For if [we do] not [do] so, then when the new moon of Tishrei [the astronomical new year] occurs on Thursday we won’t be able to establish the New Year on Friday, lest Yom Kippur fall on Sunday,[6] and not on Shabbat according to your argument for the sake of shofar and lulav, and not on Sunday for the sake of the willows [i.e., so that the seventh day of Sukkot won’t fall on Shabbat].  That means that we will have delayed [the New Year] by four [extra] days that don’t exist in the calendar![7]
Thus, since it is impossible [to have Shabbat not conflict with one of these holidays] the sages should be trusted; it is best to establish [the New Year] in such manner that Shofar and lulav will be delayed by one day, since they can be made up the next day, and not to "delay" [i.e. omit for the year] willows that cannot be made up [since the eighth day is a different holiday]. (Teshuvot Rashi #118)
Rashi provided an answer that, at first glance, denied the question.  In response to the problem that inasmuch as the performance of Biblical rituals on a later day does not fulfill the Biblical commandment to perform them on the first day they should not be overriden by Shabbat, Rashi simply says that they are made up.  Rather, the waving of the willows on the seventh day of Sukkot – which isn't a Biblical commandment at all – should be overriden.
In order to understand Rashi’s response, we must seek to understand how Rashi could have evaluated that a postponed observance of a ritual is sometimes experienced as equivalent to the Biblically required immediate performance.  We will do that momentarily.  The point is that Rashi was able to view a performance as merely a rabbinic-level practice, on the one hand, but also view it as truly making up a missed Biblical-level practice, on the other hand.
As just stated: in light of the fact that Rashi evaluated that a practice that was normally viewed as rabbinic-level could also be viewed as making up a missed Biblical practice, I will offer a suggestion as to how he could have viewed a practice in such fashion.  The point is not that this explanation is necessarily what Rashi precisely had in mind.  The point is that it illustrates a type of narrative typification that could have allowed Rashi to respond to the challenge that the “primary mitzvah of lulav on the first day as written in the Torah” is missed by answering that it is “made up” with a generally rabbinic performance. With this caveat in mind, we will now develop a possible picture that Rashi had in mind by reviewing the Tannaitic holidays of Sukkot and Rosh Hashana as they were celebrated before the Jewish lunisolar calendar was set into its metonic cycle.[8]
Sukkot – which is preceded by the annual day of penance and atonement,[9] and itself precedes the Land of Israel’s annual winter rain season[10] – was a holiday of Divine judgment over rain (m. Rosh HaShana 1:2).  For six of the seven days of the holiday, the multitude celebrated[11] the previous year’s harvest[12] but for all seven days they libated water and prayed for salvation from drought.[13]  Thus on this holiday of rain, each man was required to supplicatorily wave a set of plants, which by definition need water to survive (b. Taanit 2b), consisting of a palm branch (lulav) flanked on either side by shorter myrtles and willows and to hold alongside it, in the other hand or arm, an aromatic citron[14] – four plants that are watered differently from each other and whose arrangement is reminiscent of both male and female fertility.[15]  For seven days a vast multitude would circle the altar in the Temple courtyard (the source of the waters of the deep[16]), which was covered with willow boughs stuck into the ground (as if growing in their water rich environment), and would wave its citron and palm branches while the community prayed for rainfall so that they would be saved and would prosper.[17]  On the seventh day, the multitude would circle the altar an additional six times, then beat the ground at the foot of the altar with willow branches, and finally praise the beauty of the (now leaf-surrounded) altar.[18]  In other words, for six days the sound of wind rustling branches was recreated in the Temple courtyard[19] alongside the aroma of fruit, and on the seventh day the sound of rainfall was recreated at the foot of the water-altar.  It is thus not surprising that both the opening day of fertility-symbols and enacted-wind (placed merely days after the Day of Atonement) and the closing day of enacted rainfall were considered critical: if the first day fell on Shabbat the citron and palm branch were nonetheless waved in the Temple (m. Sukka 4:2, 4),[20] and if the seventh day fell on Shabbat the people nonetheless circled the altar and beat the willow branches (m. Sukka 4:3,6; t. Sukka 3:1).  Both the first and the last day of this holiday were considered critical to the water-holiday.
In spite of the criticalness of the first day, however, the Jews of Tannaitic Israel did not allow their whole day of rest (Shabbat) to be transformed into one of supplication.  In contrast to the normal holiday practice to carry the lulav around in the streets – in public – after prayers,[21] they forbade carrying the lulav on Shabbat before[22] and after the rain prayers.[23]   In Babylonia – where the Jews celebrated two days wherever the Jews of Israel celebrated one day[24] and thus had a two-day opening time frame for the holiday of Sukkot[25]– Jews did not wave the lulav of supplication[26] on the first day of Sukkot if it fell out on the weekly day of rest since they had a second set of twenty-four hours to the opening days.  Just as the Jews of Israel also did not allow their whole day of rest (Shabbat) to be transformed into one of supplication so, too, the Jews of Baylonia delayed their supplication to the second half of the opening days .  Similarly, since all the Jews of Babylonia and the overwhelming majority of the Jews of Israel celebrated the New Year for two days,[27] the Jews of Babylonia and gradually the Jews of Israel ceased to blow the emotionally-laden trumpeting[28] – the shofar of the day which opened the month of rain supplication[29] – the shofar of judicial coronation, hope and supplication[30] – on Shabbat.[31]   Later, even the Jews of Israel ceased to wave the lulav at all on Shabbat.[32]  As the Talmudic editors said[33] in explaining why Shabbat overrides shofar and lulav: it was ruled thus lest novices carry the object about in public (b. Sukka 43a; b. Rosh HaShana 39b)[34] and ruin the day of rest.
With this background, we can now understand Rashi’s answer – whether or not Rashi interpreted the holiday in exactly the way I suggested: Rashi laconically attempted to shift the questioner’s paradigm.  Given that the New Year had become a two-day holiday everywhere and the intensive opening period of Sukkot had become a two-day holiday all over the Diaspora, Rashi pointed out that people could experience themselves as opening the year with shofar-blowing or opening the rain holiday with plant-waving as long as they performed these rituals at the first legitimate opportunity within the opening two-day frame, and not merely on the first day.  In other words, Rashi spoke through the experiential relevance of a two-day holiday.
More significantly for this thesis, however, is the point that Rashi kept in mind the narrative that was addressed by the Tannaitic ruling that the waving of the lulav on later days of Sukkot, including the second day, is merely rabbinic.  Rashi understood that the general Tannaitic ruling that the latter six days are merely rabbinic was limited to the situations the ruling was addressing.  It was a way of saying that the holiday must be opened on the first day with the waving of the lulav and that a man may be lenient when continuing to wave species on later days in that he may use species that began to dry out after the first day and may even borrow species from another to use;[35] the designation of “rabbinic” was not meant to be understood semantically and deductively but rather as expressing a normative story.  This narrative was one of everybody opening the holiday with the waving of the species and of dealing leniently with drying species on all days after the first.  That designation of “rabbinic”, therefore, did not mean that under circumstances in which the first day of two opening days was off-limits people could not experience the two opening days as equally valid (see Rashi’s commentary on b. Sukka 43a)[36] and could not fulfil the experiential obligation to open the holiday with the waving of the lulav.
Similarly, Rashi knew that the Talmudic rabbis referred to the blowing of a shofar on the first day of the New Year as the Biblically significant blowing, the blowing that is required to open the year – in spite of the fact that the New Year was celebrated for two days.  This limitation, however, expressed a vision of a lost ideal world in which the High Court and the Temple did in fact sanctify only one precise day as the beginning of the New Year (m. Rosh HaShana 4:1).  Thus, in a world in which all Jews celebrated an organic two-day New Year (see Rashi’s commentary on Beiza 5a[37]), Rashi argued that as long as it is blown at the first legitimate opportunity within the opening two-day frame, Jews experience themselves as beginning the year with shofar blowing.
In summary: Rashi cogently answered that the missed blowing of a shofar on the first day of the New Year and the missed waving of lulav on the first day of the beginning of Sukkot can and indeed are made up on the second days of those two-day holidays,[38] while the solitary day of waving of willows is not allowed to fall out on Shabbat lest the final climactic waving for rain either be missed or interfere with the day of rest.  Rashi pointed out that in deciding the legal issue of celebration one should not be misled by the fact that in some dimensions we refer to the first day as Biblical in contrast to the second day – in spite of celebrating two opening days.  Rather one should focus on the different stories intended by the norm of celebrating two days and by the norm of considering the first day’s blowing or waving to be Biblically-required in contrast to that of the later day(s).


[1] When dealing with Biblical commandments in this and the following chapter, chapters that discuss post-Talmudic law, I mean the rabbinically accepted interpretation of those commandments (unless otherwise noted).
[2] Perhaps the questioner was a Karaite.  On the existence of scattered Karaites and Karaite-influenced Jews in Franco-German Europe, see Rosenthal 1967, 238-244.
[3] When dealing with Biblical commandments in this and the following chapter, chapters that discuss post-Talmudic law, I mean the rabbinically accepted interpretation of those commandments (unless otherwise noted).
[4] Perhaps the questioner was a Karaite.  On the existence of scattered Karaites and Karaite-influenced Jews in Franco-German Europe, see Rosenthal 1967, 238-244.
[5] This is considered merely a custom from the time of the prophets, a custom over which no blessing is recited (b. Sukkot 44b).
[6] That would be problematic since two absolute no-work days would follow in a row (b. Rosh HaShana 20a).
[7] Literally: "And what will be the fate of those four days. How can they be delayed and how can they be filled?"
[8] Since the Tannaitic description does not differ significantly from earlier non-rabbinic descriptions and since this is a chapter on medieval Jewish Law, I am stating the Tannaitic descriptions as historical fact – the way it would have been read by Rashi.
[9] Leviticus 23:26-32.
[10] m. Taanit 1:1.
[11] Flutes were played, wine was offered to God, and night-long celebrations were held on the first six days and nights (m. Sukka 5:1-2).
[12] Exodus 23:16; Leviticus 23:39.
[13] m. Sukka chapter 4; t. Sukka 3:18.  Also see t. Sukka 3:18 and m. Taanit 1:1-2. Cf. John 7: 37-38.
[14] m. Sukka 3:7-8.
[15] On the circular relationship of land fertility for the sake of life, children, and of fertile procreation as an image of rain insemination (from God) and feminine land impregnation and birth see Book of Jubilees 16:16-21, 26:31.  Note, however, that given that the citron could be understood to symbolize the “feminine”inseminated  land separately from the “male” inseminating sky or that all these symbols could be grasped as magical, R. Akiva explicitly said that each of the species represents God (Pesikta de-Rav Kahana 27:9).
As is the case with all rituals, there was obviously much additional secondary symbolism associated with these species  – which together also resemble a fleur de lis and an orb, etc.  These different secondary symbolisms may even explain the Tannaitic debates over the size and appearance of the citron (m. Sukkot 3:6-7).  However, the proliferation of secondary symbolisms should not distract us both from the primary fertility and rain association in a rain-challenged land and from the realization that (as I illustrate below in the notes) the intention of secondary symbolic interpretations are understood best when they are read along the grain of the primary symbolic intentions.  (Both of these points are overlooked by Rubenstein 1995.)
In fact, in keeping with those points, it is worth noting that Rambam (a medieval philosopher and legal authority whom we will discuss below in the body of this chapter) ruled that one who cannot wave the species together can even pick up each of the four species separately as long as they are all present (Mishne torah, Laws of Lulav 7:6); in spite of the Talmud’ secondary symbolism for the four species, he focused on the more primary symbol of these plants (also mentioned in the Babylonian Talmud – b. Taanit 2b), that they need water (Guide to the Perplexed 3:43).
[16] This altar was considered the bosom of the earth itself (Ezekiel 43:14) or at least as located between the sanctuary that enclosed the foundation stone of the world and its waters (m. Yoma 5:2) and the Gate of Water from which the earth’s waters of the deep would eventually spread forth as rivers in the ideal messianic future (m. Middot 2:6).
According to some Tannaim the pouring of the water on the altar was an attempt to arouse the Divine through the waters of the deep (t. Sukka 3:14).
[17] m. Sukka 4:5.
This is not to deny that, as pointed out earlier, there was also an element of rejoicing over the produce grown since last winter (y. Sukka 3:11).  However, celebration and supplication are intertwined, a point overlooked by Gedalyahu Alon who argued that even according to the Tanaim, “the carrying of the four species in the Temple was only an expression of public rejoicing” (Alon 1977, 137 n.102 – emphasis added
[18] m. Sukka 4:[end of] 5-6.
[19] Not only owners of orchards (symbolized by the citrons) but also farmers were accustomed to live with deeply rooted trees at the edges of their fields in order to prevent soil erosion (m. Bava Batra 2:12) and olive trees surrounding their plots in order to deter birds from eating the grain (m. Pe’a 3:1), etc.  Thus, the sound of the wind rustling the branches was not merely the only wind sound that could be created easily; it was also the sound that a hopeful farmer would seek to hear.
[20] After the destruction of the Temple, when the people prayed and waved the species in their synagogues for seven days instead of in the Temple (m. Sukka 3:12; m. Rosh HaShana 4:3), they continued to wave them when the first day coincided with Shabbat (m. Sukka 3:13).
[21] t. Sukka 2:10; m. Sukka 3:14.
[22] m. Sukka 4:1.
[23] t. Sukka 2:11.
[24] b. Beitza 4b.
[25] Babylonian agriculture is also dependent on seasonal winter rains.  It is thus not surprising that Jews continued to wave the species for seven days (b. Sukkah 42b).
[26] Secondary symbolism should always be read along the grain of primary symbolism (if physical conditions have not change radically and the original primary symbolism is in fact still the grounded symbolism).  Thus: the secondary symbolism of the palm branch as a sign of judicial victory (Pesikta de-Rav Kahana 27:3) should be read as a reassurance in the face of judgment over rain and the secondary symbolism of the lulav as representing different Jews with varying traits (Pesikta de-Rav Kahana 27:9) should ve read as a reassurance of rain spite of the fact that the people as a whole never were and never can be perfect.
Consider that we saw above that the shofar of judgment (ten days before the Day of Atonement) also symbolized hope and prayer (and many more secondary symbols that express aspects of these points, such as blowing to confuse Satan and blowing a ram’s horn in order to remind God of the binding of Isaac [b. Rosh HaShana 16a]).
[27] t. Rosh HaShana 2:11 [end].
[28] R. Akiva in t. Rosh HaShana 2:10; R. Levi b. Lahma (an Eretz-Israeli Amora of the early 3rd century CE) in b. Rosh HaShana 29b.
A comparison of R. Akiva’s comment that Shabbat and Rosh HaShana conflict (t. Rosh HaShana 2:10) with R. Akiva’s ruling that the special Rosh Hashana prayers must be prayed with the blowing of the shofar (m. Rosh HaShana 4:5), might indicate that even the Rosh HaShana prayers were significantly modified on Shabbat.  (Naturally, there has always been, and inherently must be, a cultural tension between prioritizing a sacred calendrical day of awe as an inherent day and prioritizing a recurring cyclical day of serenity as an inherent “natural” day.)
[29] Cf. Jubilees 12:16-18.
[30] t. Rosh HaShana 1: 11, [end of ]12-13 (and m. Rosh HaShana 4:5). [Cf. Pseudo-Philo, Biblical Antiquities 13:6.]
[31] m. Rosh HaShana 4:1.  As the Sifra has pointed out earlier: it is the Jubilee shofar of redemption throughout the land that is critical enough to be blown everywhere on Shabbat, not the mere shofar of the [extra day of the] New Year – which need be blown only in the High Court (Sifra, Behar #2) that declares the new month (baraita in b. Rosh Hashana 30a).  [For further dscussion that only the High Court blew shofar when declaring the new month, see Belkin 1940, 213.]
[32] b. Sukka 44a.
[33] On the basis of the of the concern underlying the ruling of the Babylonia Amora, Rava, that people not carry the Book of Esther – the scroll of the ribald story that underlies the Purim holiday of goodwill and drunkenness – in public on Shabbat (b. Megilla 4b).
[34] Especially in light of the legal ideal that encouraged all men to walk around with their palm branches (t. Sukka 2:10; m. Sukka 3:14) and to personally blow shofar (m. Rosh HaShana 4:8; t. Rosh HaShana 2:16) in the public prayers (m. Rosh HaShana 4:9).
[35] m. Sukka 3:13; b. Sukka 36b.
[36] S.v. Lo Yad’inan bi-Kevia de-Yarha.  Note that in Tannaitic Israel, in which the waving of the species was intimately connected to praying for rain and in which the holiday had only one opening day, Jews long insisted on waving the lulav on the first day even when it fell on Shabbat (m. Sukka 3:13).
[37] S.v. Havi Davar she-ba-Minyan.
[38] Instead of occurring on Shabbat, a day that Rashi described elsewhere as a day of rest in which emotional pain is avoided (Siddur Rashi #515).