Mi-de-Rabbanan (Rabbinic) versus mi-de-Orraita (Biblical)

 

THESIS:

The meaning of the statement that a given law is Biblical (mi-de-Orraita) or rabbinic (mi-de-Rabbanan) is that it is a more critically important norm for life [for the human/Jewish condition] or a less critically important norm for life. 

EXPLANATION: 

To be sure, if the way that one was taught how to be human was via the guidance of the Biblical-Judean culture, anything strongly required for life is obviously demanded by God/Torah. There is no gap between the ancient Biblical-Judean tradition and the norms that one notices that real life demands. Nonetheless, there can be debates over the importance of a given norm. Is a given norm important enough to be equated with a Biblical law example that it parallels? Meaning, would one who taught the Biblical law also obviously intend that everyone treat the given norm just as punctiliously? If so, from the time of the Bavli Talmud onward, we express that point by stating that it is mi-de-orraita. Or is a given norm less critical that the Biblical law example that it parallels? Meaning, even if someone who taught the Biblical law would also obviously intend this given norm, would they not expect everyone to treat the given norm just as punctiliously? If so, from the time of the Talmud Bavli onward, we express that point by stating that it is mi-de-rabannan.

ILLUSTRATION (PROOF)

The best way to see this is by reviewing all the cases where rabbinic tradition correctly points out that an obligation that seems Biblically mandated from a syntactic reading of a given pasuk, is actually not what the pasuk meant -- is merely rabbinic. And the cases where they correctly point out that a norm that is not stated in the closest written Biblical law example was obviously intended by the pasuk -- such as not to accept hearsay evidence once the pasuk demands at least two to three witnesses. 

The easiest way to see this, however, without reviewing all of the Talmud Bavli or my articles is to notice the laws of Shabbat.

1. The Tannaim already distinguished between violating the day of rest via serious work (מלאכה, מלאכה שיש עמה מחשבה, מלאכת מחשבת) that the Torah forbids so as not to impose labor on slaves, animals, and day laborers and violating the day of rest via less onerous work tasks and/or tasks that one can understand how a person might not easily forego for a whole day (שבות). {The meanings of these terms have been discussed in some of my publications and will not be repeated here.}

2. The Talmud Bavli (possibly the Babylonian Amoraim themselves), in turn, designates those more severe violations of the day of rest as Biblical and those less severe violations as Rabbinic.

3. Inasmuch as the Tannaim had not limited their exegetical discussions of Biblical verses to the more severe Shabbat violations but had made a commonsensical distinction anyway between severe and less severe violations of rest, the Bavli is simply expressing that distinction in its own cultural language.

4. As to why the Bavli uses that language -- from God versus from the rabbis -- that will have to be discussed in my history book.

Blood on the Doorpost and Korban Pesach: Explaining Words and Practices through Real Life

שמות פרק י"ב

כא וַיִּקְרָא מֹשֶׁה לְכָל זִקְנֵי יִשְׂרָאֵל וַיֹּאמֶר אֲלֵהֶם מִשְׁכוּ וּקְחוּ לָכֶם צֹאן לְמִשְׁפְּחֹתֵיכֶם וְשַׁחֲטוּ הַפָּסַח. כב וּלְקַחְתֶּם אֲגֻדַּת אֵזוֹב וּטְבַלְתֶּם בַּדָּם אֲשֶׁר בַּסַּף וְהִגַּעְתֶּם אֶל הַמַּשְׁקוֹף וְאֶל שְׁתֵּי הַמְּזוּזֹת מִן הַדָּם אֲשֶׁר בַּסָּף וְאַתֶּם לֹא תֵצְאוּ אִישׁ מִפֶּתַח בֵּיתוֹ עַד בֹּקֶר. כג וְעָבַר יְהוָה לִנְגֹּף אֶת מִצְרַיִם וְרָאָה אֶת הַדָּם עַל הַמַּשְׁקוֹף וְעַל שְׁתֵּי הַמְּזוּזֹת וּפָסַח יְהוָה עַל הַפֶּתַח וְלֹא יִתֵּן הַמַּשְׁחִית לָבֹא אֶל בָּתֵּיכֶם לִנְגֹּף. כד וּשְׁמַרְתֶּם אֶת הַדָּבָר הַזֶּה לְחָק לְךָ וּלְבָנֶיךָ עַד עוֹלָם. כה וְהָיָה כִּי תָבֹאוּ אֶל הָאָרֶץ אֲשֶׁר יִתֵּן יְהוָה לָכֶם כַּאֲשֶׁר דִּבֵּר וּשְׁמַרְתֶּם אֶת הָעֲבֹדָה הַזֹּאת. כו וְהָיָה כִּי יֹאמְרוּ אֲלֵיכֶם בְּנֵיכֶם מָה הָעֲבֹדָה הַזֹּאת לָכֶם. כז וַאֲמַרְתֶּם זֶבַח פֶּסַח הוּא לַיהוָה אֲשֶׁר פָּסַח עַל בָּתֵּי בְנֵי יִשְׂרָאֵל בְּמִצְרַיִם בְּנָגְפּוֹ אֶת מִצְרַיִם וְאֶת בָּתֵּינוּ הִצִּיל וַיִּקֹּד הָעָם וַיִּשְׁתַּחֲוּוּ.

Based on this Biblical passage, scholars read the multi-generational practice (hukat olam) to place blood on the doorpost as an apotropaic practice – as a practice done to keep agents of harm away.^[1] However, placing fresh blood on the entrance to a home attracts predators rather than protects against danger. Thus, in order to both understand what this practice means and even what the wording of this passage means, one must first turn to the seasonal context of the Paschal holiday. One must then read all the details of the Paschal sacrifice as intertwined and place them in the seasonal context. Then and only then, can one see how it makes sense to spread blood at the entrance to the home. Moreover, then and only then, can one understand how placing blood on the doorpost can sensibly relate to a declaration that agents of harm will be kept at bay.

 To begin: Every spring, the Ancient Middle East celebrated an annual barley (aviv) holiday. Coming after the cropless winter, when the poor ran low and sometimes even ran out of grain, the Ancient Middle East celebrated finally having flatbread again. In the Biblical version of the holiday, the propertied persons are obligated on the Passover eve holiday to share with their dependents a Paschal-eve sacrificial meal (Exodus 12:4; Numbers 9:14) of meat and of flatbread (Exodus 12:8; 23:18; 34:25; Numbers 9:11; Deuteronomy 16:3). Meaning, the propertied are obligated to celebrate the barley harvest both by festively sharing meat with the poor and by joining the poor in eating flatbread (hag ha-matzot) – even as barley flatbread is comparatively painful to digest and is thus the bread of the afflicted (Deuteronomy 16:3^[2]) poor when compared to soft wheat bread. Rather, than continue to eat their soft wheat bread and immediately feed the new barley to their animals while the poor both needed the barley and were stuck being happy with barley, the propertied were obligated to join with the poor for a week in eating flatbread – a reminder of all classes’ past enslavement and of God’s redemption therefrom (Exodus 23:15; 34:18; Numbers 9:14; Deuteronomy 16:1). In the Biblical version of the holiday, moreover, the propertied must even destroy their sourdough and refrain from creating new sourdough for all seven days (Exodus 12:15, 19; 13:7) – making it unrealistic for the propertied to eat risen bread until around a week after the Passover holiday. Furthermore, in line with that Biblical obligation on the rich to celebrate and share meat and (flat)bread with the poor, moreover, Second-Temple Judeans delayed the Barley Offering that permitted consumption of the newly-grown barley (Leviticus 23:9-11).^[3]  Second-Temple Judeans delayed the Barley Offering until after the shared Paschal celebration, in which the propertied shared with the poor their stored barley and wheat from the previous year. (We will discuss elsewhere the competing Second-Temple practices of delaying only until the day after the Paschal celebration versus delaying until after all seven days of the Flatbread/Matza holiday.)

Now, with that background that propertied persons share meat (an expensive food) and (flat)bread with their slaves and with their tenant farmers (ger nimol), the Biblical law of spreading blood on the doorpost makes sense. Even as blood on the doorpost attracts predators, or precisely because blood on the doorpost attracts predators, it makes sense to spread blood on the doorpost. When a whole homestead (or such) feels unified in a mutually-trusting relationship, it makes sense to spread blood at the doorway to boldly take the risk of drawing a predator and thus reaffirm the conviction that the mutually-caring group will be able to survive the harms that God brings about outside – harms that do indeed damage those homesteads (or such) that malfunction (-- which, according to these Biblical sources, malfunction because the propertied persons oppress the slaves and tenant farmers and fail to develop a strong cooperative relationship).

This sensible reason for spreading blood on the doorpost to express and reinforce the interclass unity of the homestead unit (or such), moreover, makes so much sense that later generations found an added way to express the ethics of mutual unity. Later generations ceased to eat in the homestead and ate instead in mass pilgrimage gatherings in Jerusalem (as I will discuss elsewhere). Later generations thus stopped placing blood on doorposts. Nonetheless, they continued to eat the Paschal sacrifice in pre-designated groups. And in parallel to the Biblical practice of placing blood on the doorpost and declaring that God did and would protect the ethical mutually-supportive homestead, these later generations sang Hallel/Psalms together at the Paschal celebration.^[4] Moreover, it is mainly^[5] because the Paschal sacrifice models anew every year an ethical relationship within each group/homestead, that later generations continued to eat the Paschal sacrifice in pre-designated groups and continued to affirm via Psalms (Hallel) that God (or: Existence's) both destroys and saves -- that God will protect them from the very harms that the Divine inflicts on the world to the harm of those who do not live in ethical mutually-supportive groups.

To close: Beyond understanding the Torah's important message here, we have now seen how to accurately understand the message of all Torah sources (in the broadest sense). First understand the real-life context of the practice. Second explain the practice to match the context. Then and only then, figure out the correct meaning of the words that a source uses to explain the practice.

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^[1] Greenberg M. 1976, 71 and many others).

^[2] I don't know what to say about critical Biblical scholars who view themselves as academically rigorous (such as Shinan and Zakovitch 2012, 97-99) and yet read the term lehem oni as a literary explanation of the reason to eat flatbread, rather than translate the term in its agricultural context before conjecturing what other allusions the Biblical author intended.

^[3] For more on the question of the date of the Barley Offering, see Ancselovits 2016, 72-73. (For the reference to Milgrom 1997, 81-89 and fn.14 in that article, one should add the earlier Ginsberg H.L. 1982, 59.)

^[4] Our earliest sources are from Second-Temple times.

^[5] In another work, in progress, I discuss another reason that is raised already in Second-Temple and Tannaitic sources. 

The Agrarian Origins of Purim

 Already before Antiochus IV's persecution of the Jews, meaning that probably already back under Persian rule, the Judean populace celebrated the early-spring holiday of the fourteenth–fifteenth of the twelfth month – known as Purim (Esther 9:31) or as Mordecai’s Day (2 Maccabees 15:36^[1]). The twelfth month was the month of hoeing weeds and of gathering them alongside legumes and other assorted hay crops.^[2] The legumes were used to feed livestock and were eaten by the abject poor as protein substitutes for meat, fish, and eggs. The hay crops and grasses were used to feed the livestock and during times of fasting were cooked and eaten even by people. Meaning, in a year in which poor farmers cried over their starving children as they necessarily sowed much of their stored grain for the coming year (Psalms 126:5), those farmers ate grasses. And Purim/Mordecai’s Day was the populace's populist holiday for the celebrating the arrival of this new animal and desperate-people food. It was a carnival.

Indeed, the story associated with the holiday – the Book of Esther story of Esther, Mordecai, and a full pantheon of figures – is a carnivalesque story about surviving hunger. It is a story about the feasting and decadent top echelons of the Persian empire allowing the populace to exterminate one ethnic group – a phenomenon that occurs when the populace faces shortages. In parallel to the reality that poor girls get prostituted in years of famine, it is a carnivalesque story of multitudes of young women getting taken by a foreign king only for the Judean woman to become a queen. It is a wishful story of finding wealth, with the Judean woman becoming a queen who shares power and wealth with her fraternal family – even as the empire raises taxes.

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^[1] Inasmuch as 2 Maccabees was completed not long after this calendar change, in around 130 BCE (following Schwartz D. 2008, 11), and that there were no political events that in the interim that would have led to the creation of a holiday on this date, we can say the following.  2 Maccabee’s passing or anchoring reference to this holiday as a known event, dates this holiday to before the Zadokite calendar change.

^[2] See the farming-cycle Gezer Tablet's/Gezer Calendar's depiction of the agricultural labor for the month before the barley month. For our interpretation of that depiction, see Torczyner 1946, 4; Talmon 1963, 182-187; Borowski 1987, 29; Inbar 1990, 363.

^[3] After all, the Zadokites were the powerful group in their society – against which the holiday's story could be viewed as a scathing allegory. After all, the Zadokites could have argued that the Book of Esther is a late work. After all, the Zadokites could have argued that any popular holiday that does not involve Temple worship is forbidden.

^[4] Vanderkam 2001b, 208.

^[5] This is reflected further in the reality no copy of the Book of Esther was found among the works stored near Qumran (contra Talmon 1995, 265 and Schiffman 2007, 236 who regard that lack as a happenstance). While one could argue that the opposition to the Book of Esther was due to an ideological condemnation of Esther’s marriage with a Gentile (Eisenman and Wise 1992, 100; Kalimi 2004, 101–106), the 14 Adar date in Esther was itself problematic (Jarick 1997, 181) and more immediately relevant.

Form-Critical Reading versus Life-Context Reading: Sacha Stern misreading the 2nd Temple Calendar Dispute

The following strikes me as an amazing illustration of how reading based on form and abstract logic alone rather than grounded in life and people, leads to a technical textual scholar's inability to do history (and to be aware that he is writing nonsense even as he strikes out at other better scholars):

The only way for Sacha to interpret the evidence that the calendar divide was a chasm is to read sources without context.  For example, he has to misread the calendar divide in the written camp’s Pesher Habakkuk story in which the “wicked” Jerusalem High Priest arrives to cause the “righteous” community to sin on their Day of Atonement as a story in which the High Priest by happenstance caused the people to sin in some unstated sin on their Day of Atonement.  He has to treat the text as a contextless entity.  It is strange to read a story that omits identify a sin[1] but mentions people being forced to sin on their Day of Atonement as not meaning that they were forced to sin on their day of Atonement.  That would be laughable on a rhetorical, polemical, and literary level.[2]  

Similarly: he must ignore context in order to argue that the story could not have been about the calendar because calendar polemics could not have existed in a Judaism in which there existed variations between some communities’ celebrations of the lunisolar calendar’s holidays.  Although that argument sounds logical, it ignores context; it ignores the fact that variations in the celebrations of the lunisolar holidays are merely minor variations of one day between communities that in any case were geographically separated from each other, while the variations between the dates of a solar and of a lunisolar calendar are blatant.[3]

Last, but admittedly least, he overlooked -- or did not know yet -- the good evidence that when the “righteous” community of solar calendar adherent describe their calendar conflict with the “wicked” High Priest they mean a political conflict of allegiance between the Sadducean – and proto-Essene – deposed “righteous” Hyrcanus II and the Pharisee supported upstart, “wicked” Antigonus Mattathias.[4]

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[1] For an attempt to define the sin, see Baumgarten 1999b, 184-191.

[2] Contra ibid.

[3] ibid.  In short, certain scholars err in thinking that historical conclusions and especially textual interpretations can be based on abstract logical analysis instead of analysis based on the integration of human nature and social context.  All the more so, they err in using abstract logical but unrealistic options to refute historical evidence.

[4] See the brilliantly simple arguments by Doudna 2011, 259-278.

Caring about Real Consequences rather than Deducing or Moralizing

Ideally, God would issue specific commands for each situation. Second best is the law.… 

[R]easoning is... an attempt to fathom the will of God when he has not specifically expressed it in the case under consideration… [I]n this light… all reasoning… must be conducted with… the constant awareness that what we take as the divine will may not be it.

Michael Wyschogrod, The Body of Faith, p.188

A Speculative Historical Note on R. Meir (Maharam) of Rothenburg

In an article in Netuim 19, Simcha Emannuel showed how R. Meir of Rothenburg had actually agreed to be redeemed from captivity but had died before the money could be raised.  He argued that the tradition that R. Meir of Rothenburg had refused to be redeemed was merely a later story.  He did not explain, however, why such a story developed.

In the 16th century Sefer Ma'seh Nissim of R. Juspa of Worms,* however, we find a slightly different version of the famous story.  There the version is that R. Meir of Rothenburg refused to be redeemed for more than 500 gulden.

Based on that version, we can piece together a possible history of the story.  Possibly: R. Meir of Rothenburg refused to be redeemed at the price demanded by Rudolf I King of the Romans. At some point an agreed-upon price was reached, but R. Meir of Rothenburg died before it could be collected.  If that is what happened, it makes sense that a tradition developed that he had died in prison because he refused to be redeemed. For if had he not delayed being redeemed at the higher price, he would have left prison alive.

*Shelomo Eidelberg. 1991. R. Juspa, Shamash of Warmaisa (Worms). Jerusalem: Magnes Press. pp. 78-79 [hebrew], 80-81 [English].

Biblical Sources on Avoiding Cruelty as much as possible - even to animals - and on Avoiding Destroying Food Resources

The Biblical Explanations of Injunctions Regarding How to Kill Animals

Each of the the first seven of the eight Biblical laws that we just listed is explicitly explained by its Biblical verse(s) as related to sensitivity to life, compassion to life, preserving resources for the sake of life, and/or avoiding disgusting behavior.

1.      Basic sensitivity is required toward a slaughtered animal and the blood that spills as it gasps – the “breath”[1] of the animal (Lev. 17:10, 14; Deut. 12:23-24):

                                                               i.      Such blood is forbidden to all people as beings that who also “breathe” (Lev. 17:12).[2]  In the words of Genesis, even the fore-parents of all of humanity – Noah and his family – were commanded thus: You shall not eat the blood of breathing flesh. (Genesis 9:4)

                                                             ii.      An Israelite who does not offer the blood to God considered a spiller of blood (Lev. 17:4) who has not atoned (Lev. 17:11; Deut. 12:27) for the necessary but problematic killing of that life (Lev. 17:11).[3]   An Israelite who cannot offer the blood in the sacred center of worship, because he is traveling and hunting (Lev. 17:13) or lives at a distance (Deut. 12:20-21),[4] is required to at least let the blood spilled from a dying animal be absorbed into the ground (Deut. 12:24) or even to cover it with soil (Lev. 17:13) so that it will not be left visible until it is absorbed.[5]

In other words, even if eating meat is nutritionally necessary and thus not psychologically disturbing to most homo sapiens, the Torah views consuming the blood that pours out while the animal dies as particularly insensitive.

                                                            iii.      In line with this Biblical sensitivity regarding the blood that spilled from a dying animal – to either offer the blood on an altar before eating the animal or to wait until the blood absorbed in the ground (or, at least, to leave the blood covered until it gets absorbed), it is not surprising both that Leviticus and Deuteronomy always describe killing animals by slaughtering[6] but never by the more barbaric methods of bludgeoning or decapitation.[7]  It is not surprising that Isaiah 66:3 condemns those individuals who kill their cattle [more humanely] by slaughtering the cattle even as they strike fellow humans without compunction.  It is not surprising that Isaiah 66:3 condemns those individuals who piously slaughter the oxen and sheep that they eat while callously decapitating their [presumably old] dogs that they discard.

                                                           iv.      Eating the meat of an animal as it still bleeds or as it lies near its uncovered blood is considered so barbaric[8] a form of dark magic (Leviticus 19:26-28), of psychologically and ethically dark behavior.[9]

2.      In line with the Biblical injunctions against consuming blood and the Biblical call to slaughter instead of bludgeon animals, the Torah also demands compassion toward animals, especially an animal that one is eating.

                                                               i.      Deuteronomy forbids one to take the chicks, which it calls “the children”, with the dam, which it calls the “mother”: "Do not take the mother with the children. Take the children but let the mother go so that things will go well with you and you will live long" (22:6-7).

                                                             ii.      Exodus and Leviticus forbid culling the newborn male calf from its bewildered “mother” cow that physically needs to nurse: “Let [firstborn cattle and sheep] stay with their mothers for the first seven days” (Exodus 22:30).  "When a bull, sheep, or goat is born, he shall stay under his mother for seven days” (Leviticus 22:26).

                                                            iii.      Leviticus forbids killing a bull and its “son” for the same meat-eating occasion: “A bull or a ram, you shall not kill him and his son on the same day” (Leviticus 22:28).

                                                           iv.      Exodus forbids cooking a kid in its mother’s milk: “Do not cook a kid in his mother’s milk” (Exodus 23:19, 34:26; Deuteronomy 14:21).[10]

                                                             v.      Leviticus 19:19 forbids yoking a bull and donkey together to plow.

                                                           vi.      Multiple Biblical verses (discussed above ??) demand that animals be allowed to rest weekly, on the Day of Rest.

3.      On top of the Biblical concern for how animals are killed and eaten, the Torah in these last laws and in additional laws forbids destroying food resources:

                                                               i.      The Torah forbids destroying resources by killing a dam wastefully – even as one is already eating the chicks that could have had more chicks in the future but would not have survived anyway had the mother alone been eaten.

                                                             ii.      The Torah forbids killing a calf before the cow’s milk production is well underway.

                                                            iii.      The Torah forbids culling a herd excessively by killing both the bull/buck and any young males for the same meat-eating occasion.

                                                           iv.      Leviticus 22:24 forbids castrating a bull.

                                                             v.      The Torah commands that the nitrogen rich blood from a slaughtered animal be sprinkled on local altars (Leviticus 17:6) to be collected in basins or that it be used to “water” the ground outside the cities’ gates (Deuteronomy 12:15-16) in which orchards are grown (Deuteronomy 20:19-20[11]).

                                                           vi.      Deuteronomy 20:19-20 forbids destroying fruit trees, a critical resource.[12]

                                                          vii.      Deuteronomy 14:8 and Leviticus 11:7 forbid pig, a scavenging animal, as disgusting.  Along the same lines, Isaiah ch.66 with its heavily ethical message points out that rich people’s wasteful grain offerings are comparable to eating pig and piously offering its blood on the altar (Isaiah 66:3).  In a water-poor society this disgust and this comparison makes sense.  Such a society forbids or at least limits raising pigs that greatly (ab)use limited water, that provide less secondary products than other husbanded animals, and that interfere with intensive agriculture.[13]  Thus the Isaiah passage compares the rich who excessively offer grain to people who support the raising of pig that is disgustingly destructive of less powerful people’s food.[14]

                                                        viii.      Deuteronomy 22:9 forbids a rich landowner’s (or a short-sighted poorer farmer’s) attempt to supplant society’s necessary grain fields with less critical grape vines (see Amos 5:11[15]) by having his tenant farmers growing minimal, sustenance, quantities of grain in the vineyards.

                                                           ix.      Similarly, in the dry lands of Eretz-Israel, Leviticus 19:19 forbids the soil runoff that is caused when one sows mixed species that can grow with each other if they take root with sufficient soil but whose too closely spaced seeds block water absorption and damage the soil for the future.[16]                                                                                           

                                                             x.      In light of the rarity of a meat meal,[17] it is possible that the Torah injunction against cooking a kid in its mother’s milk (Exodus 23:19; 34:26; Deuteronomy 14:21) is also an injunction against wastefully cooking a culled kid (a source of protein) with its mother’s milk (a source of protein).  In contrast to hens that are killed only after they cease laying eggs and to roosters that provide no great advantage on to the homeowner, culling a calf or a kid – even a male kid – carries a tension.  It is advantageous in that it leaves the mother’s milk available.  It is disadvantageous in that involves the loss of a future male plow animal or of wool.  Thus: the it is possible that the Torah forbids wasting milk to cook a kid – instead of turning the precious milk into cheese if one has evaluated that a kid must be killed for the sake of the milk.

4.      On top of the Biblical concern both for how animals are killed and eaten and for conserving resources, Torah also requires people who wish to be holy and dignified to avoid even merely disgusting experiences.

                                                               i.      Leviticus and Deuteronomy describe the consumption and even touching of rotting carcasses, of carcasses of ill animals, and of dead swarming creatures as impurifying/abominating and forbidden (Leviticus 11:20, 29-40, 41-45; Deutoronomy??).[18]  Leviticus rules that a person who ate meat of an animal that died of illness or rotting meat perforce must wash away that disgusting event:

Any person who eats that which has died [on its own = of illness[19]] or has been torn [by predators] – whether he is a citizen or alien – must wash his clothes and bathe in water.  He is tameh until the evening [but] then becomes pure.  If he does not wash [his clothes] and does not bathe his flesh, [however,] he bears his sin. (Leviticus 17:15-16)

Leviticus rules that a person who ate of an ill animal or of disgustingly rotting meat perforce is impure.[20]

                                                             ii.      Similarly, the Exodus 23:1-23:19 pericope concludes its demand to be ethical and to serve only one God with a requirement to avoid a behavior that is experienced as callous – cooking a kid in its mother’s milk:

[Ethical Laws]

[Do not worship other gods]

[Direct the agricultural festivals to God the Master

(i.e. instead of to Baal [= “master”] [21])]

[Sacrifice to God respectfully]

Do not cook a kid in its mother’s milk.

(Exodus 23:1-23:19)

The conclusion of Exodus 23:1-23:19 indicates that the proscription of cooking a kid in its mother’s milk; both are demanded in order to help shape ethical persons.

In parallel to the Exodus 22:30-23:19 pericope that we just read, adjacsent legal pericope also both opens with a condemnation of disgusting behavior and closes with a command that expresses both mercy and conservation of resources:

Anyone who lies with an animal shall be killed

[Do not worship other gods]

[Ethical Laws]

[Be respectful of God and the leadership]

[Direct the first born produce and animals to God]

Let them stay with their mothers for the first seven days; only on the eighth day shall you give it to me. You shall be my holy people.  Torn flesh in the field you shall not eat; you shall throw it to the dogs. (Exodus 22: 18-30[22])

Similarly to the Exodus 22:1-23:19 pericope, Exodus 22: 18-30 opens with a condemnation of anyone who disgustingly lies with an animal and closes with a command that expresses both mercy to the cow mother and ensures that she produces milk before the calf is culled.

The parallel between these pericopes was also noticed by Deuteronomy’s reading of Exodus 22:30 and 23:19:[23] Deuteronomy 14:21 closes a list of forbidden abhorrent animals by juxtaposing these two broader proscriptions that had framed the Exodus pericopes,[24] thus showing that it considered them related injunctions that framed and laid the basis for the moral laws.

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[1] Although the word “nefesh” is based on the “Akkadian ‘throat’ or ‘neck’” (Rieber 1980, 15), “nefesh” is also used to express life and breathing because breathing occurs through the throat.  (For more on the various uses of “nefesh” in the ancient Middle East, see Starostin 2003.)  Thus, we have no need to need to divide Biblical verses into allegedly radically different uses of the word “nefesh” to refer to a person or a life and to a throat (contra Milgrom 1998, 684).  In any case: our point is to discuss the rabbinic understandings of these verses, and the continuous rabbinic understanding that eating forbidden foods abominates one’s breath is seen easily in an early Amoraic story about R. Akiva (Avot de-Rabi Natan A ch.16).

[2] Since classic halakhicists are among those people who know “with our lives, and live that knowledge, beyond anything any theory has theorized” (borrowing from MacKinnon 1996, 46; cf. Herbert Loewe in Montefiore and Lowe 1938, 286), I am not indulging in the intellectualist academic debate about the injunction against eating an animal’s blood. Academics debate whether Leviticus and Deuteronomy forbid the blood because all life was regarded as belonging to God, because blood was sacred, in order to honor the principle of life, or because God is meant to control life.  Academics debate whether blood is perceived to be symbolic of life or is perceived to be life itself (Gilders 2004, 16-23).  To a halakhicist, a person who focuses on the underlying experiential reality, all these positions reflect aspects or are formulations of the same phenomenon.

[3] This careful reading belies the following simplistic condemnation of animal sacrifices as reflecting an “explosively violent god… who would be willing to impose a reign of terror on his own people” (Miles 1995, 118-119) [even as it is true that the Levitical attention to sacrifices addresses a patriarchial reality (cf. Jay 1992, 94-111)].  It also belies the claim that this law of the blood is not about ethics (contra Baruch Schwartz [1997, 25] who followed the standard academic approach to ideas of confusedly identifying the semantic framing of theological statements (a symbol or belief) as the author’s experiential and purposive idea (ibid. 23).

[4] Semantically, Leviticus distinguishes between a list of domesticated animals versus hunted animals and birds.  Thus some critical Biblical scholars see Deuteronomy and Leviticus as differing, with Leviticus not requiring altar-expiation for certain species and Deuteronomy exempting a person from altar-expiation on the basis of distance from the sacred space (Weinfeld 1979; Gerstenberger 1996, 237; Schwartz 1996, 25; et al).  However, reading Biblical laws as contextual examples allows a more accurate reading of this passage in Leviticus.  It allows a reading that accounts for the fact that Leviticus (or P) actually considers undomesticated animals no different than domesticated animals (Leviticus 11:2-3, 46 and Genesis 1:28-30; 8:17-19).  If we read the Levitical law as a contextual example, we see that it is in keeping with the Deuteronomic law.  The only difference is narrative; Leviticus speaks from within the idealized model of the Israelites encamped around the desert tabernacle when it discusses people killing animals for food far from the sacred center versus those that are killed within sacred civilization.  Accordingly, when Leviticus describes being away from the tabernacle it describes a situation of hunting wild beasts (a term found in Genesis 7:14, 21; 8:1; 9:10 and Leviticus 5:2; 25:7) and birds.  However, in practice, the application of Leviticus’ model would be to recognize the profane slaughter of domesticated animals for people who live far from the sacred center (contra Schwartz 1997, 39; et al).  Thus: Leviticus and Deuteronomy merely differ in style (a common fact missed by biblical scholars – such as Schwartz 1997, 41 – who don’t read Biblical laws as contextual examples).  Deuteronomy, which does not utilize the model of the idealized desert tabernacle, states its contemporary ruling in directly.  A person who lives near the central sanctuary must offer his meat as a sacrifice but not a person who lives afar (Deuteronomy 12:5-9).

 In fact, if we combine reading Biblical laws as contextual examples with semiotically sensitive reading we can explain why both Deuteronomy and Leviticus do not require expiation for fowl and also why Leviticus describes fowl as hunted – as is also implied in Deuetronomy 22:6-7 – although most of the fowl consumed in Biblical Jerusalem was wild fowl that was caught inside the city (cf. Borowski 1997, 158**).  Deuteronomy and Leviticus considered fowl caught in the city no different than hunted fowl – as not needing expiation for their deaths – because people did not develop sympathetic identification with these birds.  In fact, even “domesticated” birds such as pigeons (MacDonald 2008, 36) were neither fully domesticated nor individually recognized (m. Beiza 1:3; t. Beiza 1:10). To state this in Biblical [P] imagery: birds were created on the same day as the marine creatures, not only before people but even before the land animals – Genesis 1:20-23 (cf. b. Hullin 27b).

 [**My use of Borowski’s archeological evidence to explain the Levitical law is based on the evidence for ancient Levitical laws (Kitchen 1960, 4-18 [with reservations]; Milgrom 1983, 26-28; Haran 1995, 195-196; Levine 2006, 11-23) in spite of linguistic evidence for post-exilic editing of, and Persian influence on, the final form of Leviticus (Sperling 1998, 116-119 and 1999, 373-385).

[5] Both Leviticus and Deuteronomy do not mention any atonement through pouring the blood into the earth.  It is not clear to me whether no atonement is provided according to these sources or whether atonement is provided but is not discussed in light of the opposition to people sacrificing their animals to the underground demons (Leviticus 17:7; Deuteronomy 32:16-17).  [Cf. the issue of libating to God (or gods) by pouring an offering directly onto the ground instead of on a central altar – Rubenstein 1994, 435-437 and fns.].

[6] For example, see Lev. 1:5; 1:11; 3:8: 3:13; 4:15; 4:24; 14:5 and Deuteronomy 12:15-16, 22-24.

[7] Slicing an animal’s throat inherently requires one to hold the animal.  Holding an animal offers a better guarantee of humane slaughter than other methods that can be quick if performed precisely but have no built in motivation for precise performance.

[8] Cf. 1 Samuel 14:31-35.

[9] The connection between psychologically/ethically dark behavior and dark magic is missed by Eliav Shochetman (Shochetman 2008, 31-43).

[10] It is difficult to read the verse as stating “you shall not boil a young goat which is at its mother’s milk” (Schorch 2010, 123).  Admittedly, one might consider arguing that Biblical cultures, which in all written layers milked their female cattle and sheep, kept calves alive for a year so that the cows would continue to produce milk (on this issue in milk production, see Amoroso and Jewell 1963, 126-137).  Indeed, this could be supported by an ancient source describing the ritual eating a year old lamb (Exodus 12:5).  However, such reading would conflict with Biblical laws that that permitted culling calves after seven days (Exodus 22:29 and Leviticus 22:26); these laws suggest that a cow’s milk production was maintained after the first few days in spite of culling just as it is in the Middle East today – let alone goat’s milk if only one kid is killed out of a mother’s possibly two or three kids (Niemann 2013, 145).  Thus, it seems more accurate to interpret this legal passage in line with the other more contemporaneous Biblical laws, as permitting the removal of the kid from its mother’s teat.  Furthermore: reading the passage as referring to an injunction against cooking a kid in its mother’s milk is in line with the evidence of all the later post-Biblical traditions.  Only textual scholars who ignore historical questions of how a supposed erroneous unanimous reading would have arisen in a living culture can overlook this last piece of evidence.

Similarly, other scholars (such as Zev Farber [n.d.]) have focused on Exodus 34:26b to read this law as a law that originally had nothing to do with cooking/eating and had no connection to the injunction against eating a torn animal carcass.  They view Deuteronomy 14:21’s injunction against cooking a kid as a creative misreading of the original Exodus injunction.  From a critical perspective, however, such claim fails on two basic points:

1.  Since Exodus 34:18-26 is a later reworking of Exodus 22:31-23:19, one should turn to the latter pericope with its complete literary context to discuss the meaning of the injunction.

2.  Since Exodus 34:18-26’s rewording is also influenced by late Deuteronomic and Priestly sources (Gesundheit 2012, 165), Exodus 34:26b aso knew Deuteronomy 14:21’s understanding that the injunction is against cooking/eating.

Most problematically, however, these scholars have also failed to realize that Biblical “ritual” laws reflected a group’s living practice as opposed to being ephemereal texts that could simply be misinterpreted.

[11] Cf. m. Yoma 5:6 (and m. Midot 3:2).

[12] These practical considerations are still not discussed in recent critical Biblical scholarship (such as Owens 2010, 25).

[13] Hesse and Wapnish 1998, 125-126.

[14] Hesse and Wapnish 1998, 125-126.

[15] Coote 1981, 33-34.  Compare Hosea’s condemnation of both extravagant wearing of wool and linen and extravagant drinking and growing of wine (2:10-15) and Amos’ condemnation of the rich who let the poor fail as they drink wine excessively (6:4-7).

[16] In line with this injunction being a problem only in dry climates, the Tannaim ruled that it does not apply outside Eretz-Israel (m. Kiddushin 1:9) or not Biblically (m. Orla 3:9).

[17] Exodus 16:12; 2 Samuel 12:1-5; Amos 6:4; Daniel 10:3.

[18] For a discussion if which dead animals Levitcus forbade but not view as impurifying, see Milgrom 1992, 107-111 and Milgrom 1998, 681-683.

[19]  In the wild in which predators seek out weak animals, an herbivore that dies “naturally” does not do so out of old age.  Even as regards farm animals: since owners do not inefficiently feed the animals when the animals grow old, an animal that dies “naturally” does not simply die of old age.  That being the case, such dead animal is viewed as having died of illness.

[20] Exodus 16:12; 2 Samuel 12:1-5; Amos 6:4; Daniel 10:3.

[21] This word play was already noticed by Cassuto (1953, 211).

[22] Exodus 22:29 and 22:30 are read together in light of Ezekiel 44:30-31.

[23] Deuteronomy presents itself as Moses’ repetition and paraphrasing of earler Biblical laws, as later than the Exodus pericope.  Similarly, critical Biblical scholarship dates these Exodus verses are part of the earlier Covenant Code – even those scholars who date the code to the Neo-Assyrian period [Wright 2009, 356-358].)

[24] Because David Daube did not notice this framing, he erroneously distinguished between the Exodus and Deuteronomy injunctions against cooking a kid in milk (Daube 1947, 84).