Symposium on Halakha (Jewish Law) and Philosophy of Law: Authority, Halakha, and the ‘Official Vigilante’

A symposium led by Sari Kisilevsky (CUNY), Ken Ehrenberg (SUNY), and Laliv Clenman (Leo Baeck) will occur here between March 21–28.

The discussion will center around the problems of authority and law in relation to Mishna Sanhedrin 9:6, in particular the rule that zealots may attack the Jewish man who is having sexual relations with a Gentile woman. The relevant texts are: Mishna Sanhedrin 9:6, Babylonian Talmud Sanhedrin 81b-82b, and Palestinian Talmud Sanhedrin 27b. Copies of the relevant texts are attached below. A link to a video of the three panelists in conversation is included below, and other links to videos will appear throughout the week as the panelists engage in conversation incorporating the discussion below. This symposium is designed as an interaction between the participants and the wider intellectual community; your questions and comments (entered below) will help fuel the discussion. We look forward to your participation.

Abstract of Core Issues:  Jewish-Phil-of-Law-Discussion-1-Abstract

Video Discussion with panellists   http://www.youtube.com/watch?v=nFNsEJkgQIc

Numbers 25      Mishna-and-Yerushalmi

Yerushalmi Venetsia Editio Princeps 1523     Soncino Translation 81b-82b

bSanhedrin 81b   bSanhedrin 82a    bSanhedrin 82b

Numbers 31 and Rambam’s Rule

http://www.youtube.com/watch?v=1JCYkwG9r08&feature=youtu.be

http://youtu.be/HjNTN2hbe8Q

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45 Responses to Symposium on Halakha (Jewish Law) and Philosophy of Law: Authority, Halakha, and the ‘Official Vigilante’

  1. AS says:

    I don’t think the following were sufficiently raised in the discussion so I’ll throw them out:
    -What is a “zealot” in the Talmud?
    This is not a well-defined category that comes up regularly in rabbinic law. Is it a person of a certain religious/psychological makeup? Why does the zealot not appear to be considered as among the sages? Does the concept of the zealot actually precede the act of zealotry? I think that part of the answer lies in the Bavli drawing a connection between the biblical concept of the zealous individual (Pinchas) and the Maccabean revolt which was marked by its extrajudicial killing of Jews (When R. Dimi came…). The zealots in both instances are priests – not the rabbis, who in their reading of the Pinchas story are represented by Moshe (and in Bavli this parallel is reinforced by parallel stories of Moshe and Rav forgetting the halakhot regarding the zealot).

    A further connection between the concept and the political/religious struggles preceding the rabbinic period is drawn in the mishna where “bo’el” is preceded by a case of stealing a temple vessel and followed with the halakha regarding the right of the young priests to kill a priest serving in a state of impurity. I strongly suspect this reflects the power struggles over control of the Temple. ( And since Tum’a is invisible, the novice priests seem to have a convenient way of justifying killing senior priests who they believe to be corrupt.)

    The rabbinic equating of the biblical zealot and the zealotry of the lat 2nd Temple period seems to lead to their conflicted and uneasy views of the zealot, as the story of Pinchas itself does not display – to my mind- any sort of ambiguity.

    -Why is the zealot allowed to kill and why only in flagrante delicto?

    The first voice in the Yerushalmi seems to peg this on the fact that in stopping the act of intercourse (or following Pinchas kills both parties) one prevents the potential birth of gentile children who will be “enemies of God” (recall the story of the “mekallel” whois identified as the son of a gentile- providing a ties in with the second case of the Mishna – Hamekallel B’kosem) So the justification has a practical aspect. In the Bavli it seems that blasphemy and desecration of God’s name that are rectified by killing the offender in flagrante delicto. After the act is over the killing is an act of punishment, not rectification, and punishment can only be meted out by the court or God.

    -Why is this law of extrajudicial killing on the books?

    I believe that it is wholly a response to the biblical narrative and the history of the Maccabean revolt. Both are troubling cases of extrajudicial killing of fellow Jews that needed to be explained and circumscribed by rabbinic law. This is law as a means of interpreting history, and not necessarily an attempt to formulate a normative set of guidelines.

    • Laliv Clenman says:

      Perhaps the zealot does not truly exist in talmudic (esp. Babylonian) discourse? The sugya reframes him as a person learned in rabbinic law who acts calmly in a premeditative and deceptive fashion and actually lacks trust in the power of the divine. Yerushalmi is more concerned with firmly rejecting zealotry or vigilanteism, perhaps for socio-historical reasons? I am interested in the opposition that results between rabbinic authority and divine authority (with Pinchas, at least, on the latter side). I agree that this is also likely a priestly matter. Num 25 may be serving to defend Pinchas’ priestly lineage against challengers (as we see narratively expressed in Bavli), and in the talmudic context could be a priestly-rabbinic struggle.

    • Laliv Clenman says:

      On the problem of inflagrante delicto, I think the notion of hillul hashem might be a good explanation, if the zealot needs such a legal explanation. In Lev. 24, the meqallel is a nice parallel as he is of mixed parentage, and there Moses also does not know the law. In that case, however, they inquire of the divine as to the answer and find he must be stoned to death (regardless of his parentage). The one who gives his seed to the molekh (Lev. 18:21, and Lev. 20) is sometimes understood to be the boel aramit (i.e. Zimri), in which case the act would be punishable by stoning and karet rather than any zealot action. Another possibility is a parallel in Roman law, wherein a father was permitted, upon discovery of his daughter engaged in adulterous relations in his house, to kill both the adulterer and his daughter under the condition that he killed them both with the same blow (Susan Tregiari in Roman Marriage p. 282).

      • Ehrenberg says:

        I worry about Chilul HaShem being the best justification for this as it potentially undermines its own legal principle when applied here. That is, if the zealot is justified in carrying out an extra judicial judgment and execution because he is witnessing an instance of Chilul HaShem and he needs to bring it to a stop, then that justification can snowball in a wider culture governed by the rule of law. That is, since the wider culture disdains extrajudicial judgments and executions, the act of the zealot is itself then an instance of Chilul HaShem, justifying further punishment. Even if we were to justify the zealot on the basis of Chilul HaShem, then we still need to answer what is different about THIS instance of Chilul HaShem since we are not going to say that every instance of Chilul HaShem is punishable by extrajudicial zealot-enforced judgment and execution.

  2. Dani Rabinowitz says:

    Thanks for these very interesting points AS. Here is another troubling aspect to the version of the story describe in the Babylonian Talmud. There they describe the offending party challenging Moses on his own marriage to a Midianite woman. However, the incident of Pinchas occurs in Numbers 25. Yet, we know from the famous story in Numbers 12 in which Moses’ sister Miriam is struck with ” leprosy,” that Moses had indeed separated from his wife. This wouldn’t be much of a problem for those who do not attach importance to the chronological sequence of events in the Old Testament. But it would hardly make sense for those who do to set the story of Pinchas within the much larger narrative of those events challenging Moses’ leadership.

    • AS says:

      I’m not sure I follow. Zimri is portrayed as asking Moshe how he was permitted to take a Midianite wife. How does a later separation significantly affect the issue?

      (more troubling to me are the grotesque elements of the aggada)

      • Laliv Clenman says:

        This narrative deliberately collides narrative and legal problems: the Midianite woman is not prohibited (in marriage or otherwise) by biblical law (even according to most rabbinic opinions). Due to this lack of a general prohibition of intermarriage, the Midianite woman is an ideal test case of the scope of the law and any punishment for offenders. The biblical text suggests a marital connection between Zimri and Kozbi, such that both Moses and Zimri are married (or at least in relations) with Midianite women. Even Pinchas is understood to have a Midianite mother (making him a Midianite following mKiddushin 3:12). The critique of Moses’ marriage to a “Kushite” woman in Num 12 is read by the rabbis as a critique of Moses’ sexual separation from his beautiful (kushit) wife, there understood to be Tsipporah. The midrashim suggest that this abstinence stems from his role as prophet rather than from any problem with the nature of the marriage, conveniently (deliberately?) avoiding the problem of intermarriage altogether. Any separation from Tsipporah would only have relevance under the rabbinic laws of the Qahal (Deut. 23), where sexual relations with a prohibited person can be avoided even after a marriage (say, in a case of genitalia injured after marriage), but the Midianite does not fall under the scope of the laws of the Qahal. A separation might also be significant if it occurred after revelation, in response to the mishna learned at Mount Sinai. The fact that this halakhah was hidden from Moses (or that he forgot it) may be an expression of his own violation of the tradition. I wonder whether, on a more fundamental level, it reflects the absence of any halakhah on this question. Rav also forgets his learning of any halakhah on this problem, which ultimately is revealed to him through his student in a dream. Note that the answer there is not mSanhedrin 9:6 or any zealot act, but a verse from nak”h which suggests karet – excision at the hands of the divine as a punishment for intermarriage (itself a questionable source for law). There is a pattern here of students and inferiors challenging their teachers and superiors that may also suggest some imbalance in the halakhah (Pinchas to Moses, Rav Kahana to Rav, the tribes to Pinchas, and finally Pinchas to G-d).

        • Ken Ehrenberg says:

          Does this lead us to say that the problem is not marriage to a non-Jewish woman per se, but rather having relations with her in public? Maybe the right (duty?) of the zealot is triggered only by witnessing the act of intercourse with a non-Jewish woman. This would have lots of interesting implications as well as some cultural explanations. The Pinchas case is interpreted as a response to the practice of non-Jewish cultures to entice the men into orgies as a way of inducing them to leave their own communities and engage in idol worship. (There is clear basis for this is the text itself.) So the zealot is quintessentially the defender of the faith by publicly killing those who engage in acts that are antithetical to the Jewish ethos and threaten to lead men astray. It was the very public nature of the act that requires the immediate and very public response. This is especially emphasized by the text in that the whole community is to be punished for allowing this to take place until Pinchas acts, which shows an element of the community turning against the behaviors of the deviant idolaters, staying HaShem’s plague from the community as a whole. One question that arises for later interpretation of this principle is then whether the zealot has an excuse, a justification, or legal imprimatur. Understood as a removal of responsibility for an emotional outburst, we might want to say it is merely an excuse for killing Zimri and Cozbi. But that is belied by the fact that HaShem says Pinchas did the right thing, i.e. that others would not be right to interfere with his actions in defense of the faith. Understood as a justification we would say that it violates the letter of the law (against murder?) but that it was the right thing to do in the circumstances and hence the law doesn’t apply against him. But that means there is no lending of authority to the action, rather only that Pinchas is not liable for any violation of his own. Perhaps this is belied by the fact that Pinchas is given a covenant of peace by HaShem. (But what does he really get that he doesn’t already have? He’s already a Priest anyway since he’s Aaron’s son. So maybe there is no suggestion in Bamidbar that he is actually getting color of authority from the action, only Divine imprimatur for his justification.) The interesting and problematic interpretation arises when we think that Pinchas is acting under color of law as it were, as an “official” of the legal system, temporarily given that status by the circumstance. This isn’t as alien to us as it might sound given that there are many situations in which ordinary citizens are “deputized” by the system and some in which that is triggered in some way by the situation. (Even parties to a contract or testators drafting wills are in some sense “officials” of the legal system in that they are empowered to alter the legal rights and responsibilities of others through their actions.)

      • Laliv Clenman says:

        I wanted to comment on the troubling nature of the aggadic sugya as it devolves. It is truly striking and I wonder what your thoughts are about its role in exploration of these problems. It might be a text of terror that is also pornographic in nature (following Michael Satlow) but I wonder whether the (likely fatal) mutilations of the Zimri and Kozbi’s bodies are an attempt to construct intermarital relations as an extreme other – obscene, horrific and ultimately non-reproductive? If so, then we do not require a kana, or even R. Yishmael’s teaching, as the couple shall kill themselves. Like the option of karet, this would leave this case outside of human jurisdiction.

        • AS says:

          I’m not quite sure what to make of it except to point out that the narrative of Num 25 continues in 31 – the war on Midyan (led in part by Pinchas) which is itself a very chilling text. Moshe commands the slaughter of all the male children and adult women who had just been taken as spoils of war – only sparing young virgin girls – because they had led the people astray in the Ba’al pe’or/Zimri incident. By presenting a pornographic dehumanizing portrayal of Kozbi as a representative of the midianite women the aggada justifies the slaughter.

          Another strange thing in the aggada is the awareness that intermarriage was a normal way to secure alliances among tribes and the implication that Kozbi ought to have offered herself to Moshe (the greatest among them). In fact, Moshe’s (and perhaps Elazar’s) marriage to midianite women did result in a long-term alliance between Israel and Yitro’s descendents. Yet this kind of alliance is continually seen as a threat to the nation whether in the case of Dina, the explicit warning of Ex 34, or the story of Num 25,31. It is not altogether surprising that Zimri’s challenge – why Moshe could do what others could not – leaves him speechless.

          • Laliv Clenman says:

            Your connection between Num 25 and the continuation of the story in Num 31 with the slaughter of the Midianites (perhaps Num 25 is a justification thereof?) takes us in a very interesting (and disturbing) direction. Maimonides (Mishneh Torah Issurei Biah 12:10) calls for a Gentile woman who has had sexual relations with a Jewish man to be stoned like an animal for she has been a stumbling block to him. (See also mSanhedrin 7:4 and Leviticus 20:15). His mepharshim (commentators) have a lot of trouble with this as it seems to be a chiddush (novelty). Maimonides roots his ruling partly in Numbers 31 (those who have had sexual relations – he reads: with Jewish men – are killed). Some Targumim to Numbers 31 use the term stumbling block (taqalah) which is also used regarding the animal in mSanhedrin 7:4, which wonders why the animal is killed for a man (or woman’s) sin. In this sense, Maimonides fills out the gendered aspect of this law, as the boel aramit only deals with the male Jew (in contrast to Num 25 where both are speared) with the continuation of the story – poetic, if horrific. This halakhah of the Rambam poses an interesting problem for authority, law and the authenticity of these rules. Did he simply invent it? Is it valid? Does a beit din enact this stoning? Why would one partner be subject to death by zealots and another by communal stoning? Perhaps this all speaks to the theoretical nature of these rules. Is there any philosophical problem to having such laws on the books, in the absence of any ability (or perhaps even any intention) to enforce them?

          • Laliv Clenman says:

            Note that relevant texts for the Rambam and Numbers 31 are posted above.

          • Ken Ehrenberg says:

            So this brings up a deeper philosophical issue with rabbinic authority that I have discussed with a few poskim. One common argument makes a distinction between rabbinic authority in the ancient period (I assume under the sanhedren, or possibly until mosaic smicha lapsed), which was normative (we might also say deontic or practical), and modern rabbinic authority, which is epistemic (or theoretical). The difference is this: practical authority actually gives you reasons to act directly. There is a notion that the legitimate practical authority has a right to issue directives and you therefore have a duty to comply with those (validly issued) directives. Theoretical authority is merely advisory: they give you information (possibly about what you already have reason to do), but do not give you reasons themselves. Now if normative/practical authority lapsed with the dissolution of the Sanhedren, then all rabbinic rulings after that fact are merely advisory. They inform you of the preexisting halacha, but cannot alter, amend, or even (arguably) apply it in novel ways. This indeed is the opinion of many Orthodox rabbis. But another implication of that is that if you disagree with the way the rabbi poskins (on a point of law that you have existing knowledge about), then you are under no duty to comply. (This is vastly complicated by existing laws that speak directly to the point of under what conditions can you diverge from the community practice. So if everyone else is holding by the rabbi that issues a ruling that you know to be wrong, then you might still have a DIFFERENT legal reason to comply.) There is also the problem of majority rule (raising the Oven of Aknai again). But I have to think some more of how to parse that out into the two views. The other view is that while the (current) RABBIS see themselves as merely theoretical authorities (which is why they can’t change halacha), the lay person must see them as practical authorities because s/he knows so much less and ought not to presume to make his/her own decisions on points of law. In that way, what might seem like a chiddush to one person (lay or rabbi) might not be a chiddush to another. When Rav Moshe Feinstein poskined on microphone or hearing aid use for hearing the megillah on Purim (a recent topic of conversation in the yearly cycle), he certainly thought that what he was doing wasn’t a chiddush. He was merely applying pre-existing law to a new case. But in another sense, all application to new cases is new law. Also, if someone holds by his decision even while disagreeing with it, that could imply that the person is treating him as a practical authority, although it could also be that the person is following his decision not because it is normative, but because it is normal (i.e. the opinion that others follow and there is another legal principle not to allow public practices to diverge from the community). In the latter case, we have what I take to be the germ of a Razian argument for legitimization of Rabbinic authority (following the work of Joseph Raz see, e.g., Raz, The Problem of Authority: Revisiting the Service Conception, 90 MINNESOTA LAW REVIEW 1003 (2006)). That is, we start with the assumption that halacha is already normative in that you have good reason to conform your actions to HaShem’s intentions for how we should act. (All views under discussion here start with this assumption.) The first view sees all rabbinic pronouncements as merely advice on what the halacha is, just as a doctor is merely giving you advice from her greater knowledge on how to stay healthy. Your pre-existing reason to stay healthy or comply with HaShem’s intentions is giving you all the reason you need to act. But the latter view takes it a step further. It says that since the Rabbi has greater knowledge of what the halacha is, then the rabbi’s pronouncements enable you to better comply with the reason you already have to follow halacha than you would be able to trying to figure it out on your own. Where and when that is true (i.e. NOT when you have greater knowledge already — although that exception is tempered in Raz and in halacha by the need not to multiply conflicting practices in the community), then the RABBI’S poskin is a reason not to act on conflicting reasons you have to go against the decision rendered in the poskin. That is, the rabbi’s directive excludes contrary reasons because his greater knowledge of the reasons that apply to you (i.e. halacha) allow you better to comply with halacha than you would reading the texts and figuring it out on your own. His theoretical authority legitimates his practical authority and you therefore have a (halachic) duty to comply with his direction. This is different from saying he is merely a theoretical authority who advises you on what the halacha is, because then you don’t really have a halachic duty to do what he says, only what halacha requires directly. In the end, this could also be a distinction without a difference: where the rabbi gets the halacha wrong, he is not getting you to comply better with your existing halachic reasons and hence he does not have legitimate practical authority, so you ultimately have a duty to comply only when the decision is correct, in which case you might as well say that the duty comes straight from halacha without any human intermediary. On the other hand, it does have an implication for what the rabbis (including the Rambam) can do legitimately. If a “novel application” (clearly lots of controversy packed in to that formulation) strays too far (again, how can we possibly draw that line?) from the original halacha, then the theory that holds all post-smicha rabbinic authority to be theoretical will tend to discount it, while the theory that affords practical authority to the post-smicha rabbis will tend to see it as normative so long as it is in keeping with the rabbi’s expertise.

      • Laliv Clenman says:

        A note regarding Moses and his Midianite/Kushite/beautiful wife that opposes my reading. Arukh LaNer writes (to our bSanhedrin), that prior to revelation (matan Torah) it was certainly not forbidden (I suppose this means definitely permitted) to marry a Midianite woman, but from the time of matan Torah Moses separated from her. Are we meant to think that Moses understood from mSanhedrin 9:6, which he learned and taught at Sinai, that because he might be killed by zealots, he should separate from his wife? I am concerned that underlying this is the (mistaken) assumption that there is a post-revelation (i.e. biblical) general prohibition of intermarriage.

        • AS says:

          I doubt that’s the intent, but it’s an interesting possibility. Rashi of course makes the same pre/post revelation distinction adding that Tziporah along with the members of the 12 tribes and all other non-israelites became a Jew at the time of the revelation. This reflects the often invoked idea that prior to revelation (and aside from a few specific commandments) the tribes of Israel were only obligated to keep only the seven mitzvot incumbent on the descendents of Noach. I believe Moshe’s separation is portrayed as a result of his ability to receive direct revelation at any time after the giving of the Torah.

          As far as there being a general prohibition against intermarriage – it’s a confusing issue. Even in this sugya, if there was such a standing prohibition then why would the court of the Chashmonaim need to deliver an edict forbidding it on so many grounds? Yet it would be difficult to argue that there is no general norm for the individual tribes and later the nation as a whole to remain endogamous.

          • Ken Ehrenberg says:

            I don’t see the fact that the later court has to announce so many reasons for it as an argument against it being a standing halacha. Think of a law that is routinely violated. A standard reply by the authority is to emphasize the importance of the law by listing the many reasons it is a good law, in an attempt to motivate compliance. Now, if, as here, the law is also special in that it is eventually understood to be enforceable only by non-judicial means and then only in special circumstances, then many who are not motivated by the law itself (and are instead only motivated by fear of punishment) will not see sufficient reason for compliance, further enhancing the need for the authorities to underscore its justification.

        • Ken Ehrenberg says:

          I believe that move reflects a confusion between punishment and prohibition. Surely, Moshe Rabbeinu would be motivated by the halacha on marrying the Midianite and not by what the correct (extra)judicial response would be. Although the answer to my previous distinction between justification and legal imprimatur would problematize this issue: If the zealot has a justification for his actions, but no legal imprimatur (i.e., he is not acting under color of authority), then Moshe’s action in separating from his wife can be motivated only by fear of retribution by the zealot. If, on the other hand, the zealot is understood to carry legal imprimatur (i.e. act as a kind of deputy), then Moshe’s action (given who he is), would have to be understood as stemming from an underlying halacha not to cohabit with a Midianite, which came into effect at matan Torah. While it might be bootstrapping, I think examination of these options yields suggests both that a. Pinchas does act with legal imprimatur, and b. there is an underlying halacha against cohabitation that came into effect at matan Torah (but was not applicable retroactively).

      • Ken Ehrenberg says:

        The Bavli (BT Sanhedren 82a) makes it look as though the later rabbis interpret the Pinchas case as one of excuse rather than of justification or imprimatur. Since they say that Pinchas would have been liable (for murder) if he didn’t attack Zimri while in the act and that Zimri would not have been liable for defending himself in either case (as Pinchas was a rodaif/pursuer), they must be saying that they simply don’t hold Pinchas liable. On the other hand it could be more complex: There is no discussion of whether an onlooker would be justified in interceding to stop Pincahs from killing Zimri. In a typical excuse situation, we say that the action was regrettable but unavoidable. So if someone saw what was about to happen, that person would do well to intervene to prevent it. But here, it certainly starts to look more like a very limited justification. HaShem’s approval (and the angelic miracles detailed in the Bavli) conveys the message that one would not be justified in interceding to stop Pincahs. Hence, while Pinchas has a (legal) justification for his action, it is circumscribed by the rabbis to be applicable only in flagrante delicto. (Just as many states have circumscribed the justification of self-defense to require that first one try to retreat.)

  3. AS says:

    It’s also worth looking back at the progression of the biblical narrative itself:

    The Israelites begin to intermingle with a nearby gentile tribe, have sexual liaisons with their women and begin to worship their Ba’al. This triggers the wrath of God and apparently a plague rapidly begins to kill out the nation. (as in several other cases where the people sin something must be done to appease God and prevent more widespread destruction) God tells Moshe to string up all the leaders of the people to appease God’s anger. Moshe then commands the judges to kill (all?) the people aligned with the Ba’al worship. Apparently before they can act Zimri brings a Midianite woman into the camp in plain site of everyone and Pinchas then kills them both with a spear. This ends the plague and “atones” for the people.
    Within the confines of the biblical story at least the act of zealotry prevents much greater destruction that would have continued unabated (24,000 were already said to have died in the plague).

    My reading is as follows: God commands Moshe to immediately make a public example of the leaders of the people to stop the plague – apparently whether or not they were guilty of any personal crimes. But instead Moshe calls upon the Judges to kill out only those who had joined the cult of Ba’al (just as he had directed the killing of the worshipers of the Golden Calf). But this isn’t what God wanted. Fortuitously Zimri decides to make a very public display of his transgressions which allows Pinchas’s public execution of him to serve as the very atonement that God had asked for to avoid utterly destroying the people.

    In the story there is no ambivalence regarding Pinchas. Rather, it is Moshe who displays a failure of leadership by not correctly follow God’s instructions. In the aggadic retelling he displays a failure of leadership by forgetting the law that God had transmitted to him.

    • Ken Ehrenberg says:

      Now I think I see a really interesting theoretical problem of authority arising out of this particular emphasis of the story (and it helps to explain why the halacha ‘was hidden’ from Moshe without having to pin that on Moshe’s own choice of wife). Putting aside INITIALLY issues that will arise from instances like the oven of Akhnai (BT Baba Metzia 59, in which a majority of the Rabbis can apparently supersede a direction from heaven), we can start with the assumption that what HaShem announces is halacha, especially when it is written clearly in the text of the Torah itself. So HaShem’s instruction to Moshe to string up the leaders in face of the sun is the ORIGINALLY CORRECT halachic response to the situation where the people are engaging in idolatry as a result of being enticed to cohabit with outsiders. Perhaps we could call this the Divinely ordained legal response. Moshe, for reasons that are mysterious to me, does not do this, instead he instructs the judges to start killing the idolaters. Perhaps this is the proposed Positivistic response (the assertion of human rabbinic authority over the word from heaven). But this time that wasn’t good enough to stop the plague. (I am assuming that the “anger of the LORD” is the plague itself and that this was initiated along with the injunction to string up the chiefs as the Divinely instructed way to stop the plague.) So along comes Pinchas (and shows by his actions that there are parts of the community who are still zealous in their defense of HaShem’s will) and does something else that wasn’t mandated by EITHER party (HaShem or Moshe and the judges), which HaShem seems to accept as a compromise in the tension between His legal intentions and Moshe’s. So when the halacha ‘is hidden’ from Moshe, it may be due to the fact that he didn’t carry out the directions of HaShem here, or it may also be due to the fact that the authority HAS been given over to the zealot precisely because that was the compromise reached at Shittim.

      • AS says:

        I’m very intrigued by this line of thought. This would seem to emphasize that Moshe’s job is not to be an interpreter of law, but to be an accurate transmitter of God’s word – since he is the medium of revelation. The incident where he hits the rock after being told to speak to it likewise shows that lack of word for word accuracy is seen as a failure on his part. Similarly the aggada of Moshe sitting in the back of R. Akiva’s lecture and not understanding – but being comforted when R. Akiva cites the source of a law as “halakhah l’moshe misinai” – law from a pure oral tradition, not one arrived at via interpretation shows that Moshe is supposed to be God’s pure medium for revelation, not for arriving at law via a process. The incidents of the Mekallel and the B’not Zelaphchad where he turns to direct revelation for a solution also reinforce this idea.

        The law of the Kannai is likewise a pure oral tradition and therefore supersedes law as a process of interpretation and application. In that sense it does stand in tension with rabbinic authority which devolves from the authoritativeness of their interpretation much more than from their role as transmitters of existing revealed traditions. How ironic then that the solution to Rav’s forgetfulness comes in the form of a quasi-revelation to R. Kahana in a dream.

        • Ken Ehrenberg says:

          Wow, while I’m not totally in agreement with how you spell it out, I think it raises a fascinating tension in the interpretive tradition itself. If an imprimatur for the zealot is a compromise between HaShem’s original intention (string up the leaders) and Moshe’s problematic human ‘application’ (tell the judges to execute the sinners), then I actually think this is evidence to support the view that Moshe is NOT simply a prophet who is supposed to transmit the law exactly as issued from the Mouth of HaShem. (There is evidence to support the view that Moshe was viewed BOTH as a prophet and a judge/rabbi/interpreter.) But the fact that a compromise was reached rather than that HaShem rebuked Moshe for his alteration of the Divine command indicates to me that, contrary to what you are saying, space is left for Moshe’s interpretation as contribution to halacha. Instead, what you get from Moshe in the back of Rabbi Akiva’s class is precisely the tension between the essential backward looking principle of stare decisis as practiced in Jewish law (earlier interpretations are always better b/c they were closer to Sinai — and how can you get any closer to Sinai than Moshe?), and the fact that later interpretations are always standing on the shoulders of a greater number of shrinking giants (later interpretations have the benefit of more generations of decreasing wisdom). So the play between the various opposing possibilities for judgment and execution in the Pinchas/Zimri story is suggestive of the principle of Eilu v’eilu (that there is some value/validity to all scholarly interpretations of law, even if opposing and even when halacha follows the majority view), while the fact that the particular applications in the Torah she-bi-khtav (written law) are themselves ‘too close to the text’ to be instances of interpretation. That’s why Moshe is in the back of the class (with the least advanced students?), because while still valid as teaching us that interpretation itself is valid and encouraged, what he is adding himself to the interpretive canon is in one sense the weakest b/c he doesn’t have the benefit of later scholarship (although his contributions are in some way still the core of Torah she-be-`al peh (oral law)). I’m still struggling to fit the zealot into this picture. He could stand for the community at large as well. A reminder that the law must take into account how the community will react to the law, whether it comes directly from HaShem or through the medium of rabbinic interpretation. As Sari notes below, there is the notion in authority theory that an authority cannot really be legitimate if there isn’t a critical mass of subjects who are complying. This is also augmented by Pinchas’ role in the community as a priest: the holy part of the community is rising up against the sinning part and asserting the authority of law as a vigilante, but doing so in the instance where Eilu v’eilu has not yet yielded a clear and settled direction for law. When the law is unsettled, the part of the community that is motivated by law takes it into its own hands. (Clearly also, this indicates that the rule against cohabitation is not at issue – that is settled. What is unsettled is the proper legal response.)

  4. Aaron Segal says:

    Thank you for this fascinating symposium! I’m just trying to get clear on the question that Sari, Ken, and Laliv started with (some of this might duplicate what Sari was asking in the video and what AS was asking in the comments): I can see two distinct bases for asking how it makes sense for the Rabbis to legislate for the “Kanaim”.

    1) The Kanaim don’t take the Rabbis to have any authority over them, and perhaps the Rabbis don’t even have any way of enforcing their rulings with respect to the Kanaim; and so, (a) weak version of question: even if they do in fact HAVE authority over the Kanaim, it is useless or senseless or otherwise futile for the Rabbis to issue a ruling whose application is restricted to the kanaim, or (b) strong version of question: the Rabbis don’t even HAVE authority over the Kanaim, since they can have that authority only in virtue of the acceptance of the Kanaim or some means of enforcing their authority.

    This way of construing the question sees “Kanaim” as picking out some socially distinguished category of people, and the question revolving around the authority (quite generally) of the Rabbis vis-a-vis that category of people.

    2) A Kanai, by definition, is moved (solely?) by passion, and would do so even absent any Rabbinic-legal backing, and hence would not be moved by a Rabbinic ruling on the matter one way or another, whether to prohibit, permit, or obligate. And so any ruling on the Rabbis’ part here is for naught.

    On this construal, anyone, even a Rabbi, can BE a Kanai, if his act is caused or explained in the right sort of way.

    These seem to be very different questions and both seemed to be in play; it would definitely be good to know what “kanai” means in the Mishnah (and subsequent sources).

    In any case, I’m having some difficulty seeing their force. With respect to the first one: even granting the empirical assumption (which Ken was challenging), I don’t see how the legal/philosophical claim is supposed to follow. The “strong version” seems overly strong – I’m no expert on authority, but it seems very plausible to me that I can have authority over someone even if that person does not take me to have authority (and perhaps denies it) and even if I have no way of enforcing my authority: someone might be clever enough to always evade tax-collection and also reject the authority of the government to collect taxes, but that doesn’t mean that the government has no authority over them. The governmental legislation that obligates (even) the tax-evader to pay taxes may nevertheless generate an obligation (legal and perhaps moral) for him to pay taxes. But as I said, I’m no expert on the notion of authority.

    And the “weak version,” while not suffering from that problem, seems too narrowaly focused; the Rabbis’ ruling regarding the Kanaim might have normative implications for Rabbi-followers as well, such as whether a Rabbi-follower should kill the kanai (although it is admittedly unclear what the implication of their ruling IS – Yad Ramah on the case of Zimri killing Pinchas is relevant here), whether a kanai who wishes to “enter the community” needs to repent for the killing, etc. (this point also speaks to the “strong version”).

    With respect to the second question – in addition to the previous point, which speaks to this question as well – I think there are a few non-sequiters here. First, even if they are moved solely by passion, that doesn’t mean that they would act even absent any sanction from the Rabbis – perhaps, if there were no sanction (more precisely, if they didn’t believe there was), they wouldn’t have that passion (one might think this implies that their belief was also a part-cause of their action – even leaving aside subtle counterexamples to that sort of thing, there is no reason to think that at the time of the action, the belief is causing anything, so the sort of counterfactual dependence I have in mind is consistent with it being the case that at the time the Kanai acts, the only relevant cause is his passion). And even if they would act absent any sanction from the Rabbis, they might not act CONTRARY to a prohibition on the part of the Rabbis.

    Thanks for any help here.

    • AS says:

      First, can anyone clarify the source for identifying the “kannai” as one who acts from passion? I understand the idea that “kinna” seems to refer to a kind of emotional state with both positive and negative valences (and I doubt that there is an adequate English equivalent) but must a kannai be moved by his own kinna? If kinna is a complex emotion with a clear intentional object, then by identifying the relevant features of a situation which arouse God’s “kinna” (as it did in the case of Zimri) one should be able to act. The Talmud never discusses motivation, only the situations in which such an act is permitted. The legal definition of a kannai then can be circular – one who acts in a situation that appropriately calls for kinna – and those situations are circumscribed by the Mishna and Gemara.

      [The idea of someone who acts from passion comes up in the Talmud in various places but it doesn't appear relevant here.]

      Second, as far as authority, why equate those who act extrajudicially with those who resist or are unmoved by Rabbinic authority? Both Talmuds convey that the rabbis are uncomfortable with this kind of action and do not recommend it, and their judgement regarding the propriety of Pinchas’s actions is superseded by divine pronouncement, but how does one get from there to a question of why it makes sense to legislate for them (again, taking the “them” to already signify those who stand apart from or reject rabbinic authority -or perhaps rabbinic discourse?). I really don’t understand where the assumptions underlying this question arise from but much of the discussion seemed to follow from this premise.

      I think the more basic and compelling question brought up was why would a legal system make room for this kind of extrajudicial killing which is not in self defense or to avenge a murdered relative (even the latter seems to have been self-evidently warranted in biblical law).

      • Aaron Segal says:

        I couldn’t agree more with your questions – I’m not sure where those assumptions come from. As far as I understood, each was assumed at some point in the video discussion, although I may have misunderstood. When it comes to the first one though (that a kanai acts from passion), I would say two things:

        1) Barring other problems with the question, one could pose the second question (according to the ordering I used) without assuming that the kanai is moved solely by passion (whatever exactly that would mean), so long as one thinks that the kanai is NOT moved by his belief that the Halacha demands/permits killing a Boel aramit.
        2) And one might suggest that it is precisely the question of whether the kanai is (or can be?) motivated by fealty to Halacha and its demand/permission to kill a boel aramit which is the subject of the dispute between Rav and Shmuel as to what Pinchas “saw”. According to Rav, he saw that such was the Halacha, i.e., that kanaim pogin bo, but according to Shmuel what he saw was that chillul Hashem calls for response (even if the response entails some impudence). I don’t know though if their dispute is meant to have normative implications.

      • Laliv Clenman says:

        If we use Pinchas as a model, which itself is questionable, then the zealot acts out of his own feeling of qinna which is the same as the divine’s feeling of qinna, which we might understand as an emotion of angry and destructive jealousy in the face of idolatrous/marital/sexual betrayal (though Hengel, for example, calls it a zeal for law, growing out of frustration with rabbinic and state inaction or slow process on perceived problems, an inaction and delay that certainly is present in the talmudic narratives) . I agree with your circular definition, though Bavli seems to use rabbinic law in conjunction with the appropriate miracles to limit the scope of action of the zealot such that Pinchas may ultimately be the only zealot.

        I agree that the most compelling question is why this kind of extrajudicial killing is included in the system at all. The same may be said for the other similar cases in this mishna. If this mishna is simply a mnemonic and not a legislative rule, then we have no difficulty, but the Talmuds and midrashim do not relate to it in this way. It may be understood as a list of problems that are taken care of by other groups (priestly/zealot), such that its inclusion might be a confirmation that rabbinic law does not deal with such cases (this is supported by the lack of any rabbinic halakhah on this case and the problem of hidden/forgotten halakhah). The Talmuds may be struggling with this very question. The opposition to the act, the desire for nidon (PT) and the process of determining the rabbinic halakhah on the matter (BT) all point to a perception of the inclusion of this rule as problematic. I see a real difficulty due to the inclusion of a non-rabbinic law in a rabbinic legal corpus. Perhaps we could say that Yerushalmi might have invalidated the Mishna, had it not been for the divine approval of Num 25. It may not be accidental that Tosefta does not include this law.

        • Laliv Clenman says:

          Another possible model for zealotry, if we follow our sugya in Bavli is that of Simeon and Levi in Genesis 34. They are deceptive, and if they act out of impulse it is certainly planned ahead and strategic. This type of honour killing (whether it be in defense of divine or family honour or both) seems to match the Bavli’s construction of zealotry more than it does that of Num 25.

          • AS says:

            Yes but Gen 34 seems to be an intertext of Num 25 where the two tribes, once aligned in their zealotry, come to oppose one another – explaining the marginalization of the tribe of Shimon. Also, paired together the texts (coupled with Num 31) seem to say the following: if you take our women we wipe you out. If we take your women we wipe you out. In that sense the law of Kannai may be marked by a certain accepted irrationality – the punishment does not fit the crime, but we permit it because the public “bo’el aramit” threatens the community as a whole. (perhaps “ir hanidachat” is therefore a better parallel. )

        • Ken Ehrenberg says:

          I don’t see it as non-rabbinic law just because it is carried out by a non-rabbi. Judges routinely try to temper, and yet are forced to uphold, laws about which they are uncomfortable for one reason or another.

      • Ken Ehrenberg says:

        I definitely want to underscore your question: “as far as authority, why equate those who act extrajudicially with those who resist or are unmoved by Rabbinic authority? ” as one I think I tried to raise in the video discussion. It may very well be that the zealot ONLY allows his passion for the law to have free rein because the law allows it. Hence he acts only because he embraces the role the law allots him. That is to see him as having both a legal imprimatur and still to be extra-judicial. But this underscores exactly why the authority would think it appropriate to ‘legislate’ or at least clearly define the boundaries of sanctions vigilantism. That’s got to be something that the existing authorities are going to be uncomfortable about and upon which they will be expected to place strict limits.
        As for the final more basic question, I do think that is one thing we are focusing on. There are a variety of reasons offered: the people may need to act when the law is unsettled about response but the violation is clear; the officials may be reluctant to act on obvious violations when there are many instances of violation and a restorative measure is needed for the law to maintain its integrity; the officials simply might be reluctant to act if they are dealing with violations they might even be accused of themselves, leaving again the need for extra-judicial action to maintain the integrity of the law.

  5. Sari Kisilevsky says:

    Wow, so much activity in such a short time! This is a fantastic discussion. A couple of small points:

    1. I think that, aside from disentangling the difficult questions of the authority of the Rabbis over the Zealot, and the legal authority of the mishna generally, there is a background question here about the nature of authority and when one person can claim (or has, which is not the same thing) authority over another. Aaron is correct to note that a person can have authority over another even if the latter does not recognize it. So, e.g., the fact that a person rejects the government’s authority over does does not in any way determine whether or not it has this authority. Notice that this is a separate question from whether or not it can enforce its authority over her.

    The question gets more complicated when we add more people, however. So, e.g., if many, or “the bulk” (as it is often called in legal-philosophical circles) of the population reject the government’s authority over them, then there is a serious question as to whether or not the government continues to have authority over the people. This is why questions of transitional governments, or bifurcated rule are so difficult. The same holds for a distinctive sub-group of a population. If a clearly-idenfiable sub-group of a population reject the government’s authority over them (or, perhaps, the “bulk” of a sub-group, etc.), then it becomes a serious question as to whether, and by virtue of what, the government does have this authority over them, and whether it can continue to do so. This can hold even if the sub-group do not make up the “bulk” of the population. Of course, what counts as an identifiable sub-group, and the conditions under which its rejection of the government’s authority is effective are extremely difficult. There are numerous real-life examples of these issues in the international sphere. (Think, e.g., of the claims of the Quebecois against Canada; Tibetans against China, the Basque’s relation to Spain, etc.). One aspect of the question that arises is then, what is the status of the Rabbis’ authority over the Zealots, if the Zealots reject this authority, as a group?

    2. Quite apart from these issues, it is still unclear whether the Rabbis, in issuing this permission, are even attempting to exert authority over the Zealots. First, the edict is a permission: it gives them license to do something that they were going to do anyways! So far as exercises of authority go, this seems fairly weak, and somewhat gratuitous. In this respect, it may raise no serious question of authority at all.

    3. On the other hand, there is also the very difficult issue of exactly whom the Zealots are and what their status is with respect to the Rabbinic authority. If, as Aaron suggests, Zealots are by definition those who are moved by passion so that even Rabbis can be Zealots, then the question is not one of the nature of the Rabbi’s authority over the Zealots as a group who reject its authority, but rather: how does the law treat an action that was, in a sense (and which sense this is is another difficult question) beyond one’s control? On this understanding of the action, and of the Zealots, we might read the passage not so much as the Rabbis giving license to action over which they have little authority anyways, but rather recognizing that when people act this way, they are Zealots and the law imposes no sanction. This would bring the passage much closer to contemporary laws mitigating punishment when people commit crimes while overcome with emotion, as in cases of provocation. In such cases, the law is not issuing a *permission* so much as recognizing the limits of people’s humanity.

    Anyways, these are some first thoughts on an extremely interesting discussion! I look forward to reading the responses.

  6. AS says:

    A different approach to the sugya which I don’t think was raised is to see the concept of the Kannai as an externalized rabbinic fantasy about having the wherewithal to summarily execute certain kinds of flagrant offenders. One could then read the sugya here as similar to the central sugya of the Sotah which is also a kind of graphic fantasy. Both begin with a “m’kaneh” here it is for God, there for a wife’s suspected infidelity. Both continue with graphic depictions of female degradation and descriptions of deaths that focus on the sexual organs.

  7. Ken Ehrenberg says:

    I’m still not 100% sure I’m following your point, but if you are suggesting that the grounds for which zealous ‘vigilantism’ (that term is problematic if we assume a legal imprimatur) would apply to all chilul HaShem, or at least any situation that, in the Torah, HaShem gets that angry, then I’m not sure there is sufficient textual basis for that conclusion. There are clearly special aspects to this situation that might supply good reason for having an extra-judicial apparatus that aren’t present in other circumstances. Why not endorse a license for zealots to kill any Jew observed doing avoda zorah (idol worship)? On the other hand, perhaps we could understand the Leviim doing precisely that after the sin of the golden calf. But the difference there seemed to be that HaShem, Moshe, and the Leviim seemed to be on the same page in Ki Tissa (Exodus 32). Or, at least Moshe acts first, rallying the Leviim and then HaShem smites the rest with a plague.

  8. Sari Kisilevsky says:

    A couple of thoughts:

    Ken, I think that is a great question about what is special about the circumstances that allows for extra-judicial killing in this case, but not others that appear similar. What did you have in mind when you said that there were some? I am thinking about Laliv’s comments in the video about the Zealot taking the insult against Hashem personally, though it is unclear to me why this distinguishes it from the other cases you raise. Is it because of the sexual nature of the case? (This would bring this case in line with much contemporary law on the excuse of provocation.) Or do you think the case can be extended? If so, what would be the significance of this? In the background of our debates, there seems to be a worry about undermining the authority of the Rabbis, as well as a general resort to vigilantism. If so, then we have good reason to want to limit this case. Wouldn’t you agree?

    AS: Your suggestion that we read this sugya as fantasy is extremely interesting. It puts a very different spin on how we have been conceiving of it so far.

    • Ken Ehrenberg says:

      I think that the potential differences in this case are that there is one community attempting to induce idol worship among the Israelites through sexual temptation. The zealot is empowered (authorized? excused? justified?) to act peremptorily in order to counter the public example that leads to the risk (whether Zimri was actually having sex with Cozbi in public isn’t necessarily the key if he was publicly and brazenly going into his tent with her for that obvious purpose) with another public example that appears beyond the legal structure in order to uphold the law and get the people back on the right path. Other public instances of transgression might not be considered example-setting and hence not warrant the need for an immediate response. It is the need for an immediate response that justifies the extra-judicial means IN THE EYES OF THE LAW. That is, there are circumstances where the wheels of law turn too slowly to have the right impact on behavior and the law itself might sanction immediate vigilantism as a solution to the problem of the delay required by procedural justice. In essence something about the danger of the situation justifies ignoring considerations of procedural justice.

      • Menachem says:

        The notion of an “extra-judicial means IN THE EYES OF THE LAW” may just be the notion that troubles the Yerushalmi. The passage indicates that that the sages would have sanctioned Pinhas had God not stepped in. This seems to me to be a kind of pardon, wherein a law was violated but forgiven in any event. The question then becomes whether the law itself can make use of the availability of a pardon internally. This brings to mind the debate between the justices in Fuller’s Case of the Speluncean Explorers — can the rule of a law sustain a situation in which a given action is unlawful but ought to be pardoned.

        Interestingly this was one of the issues facing the Israeli Supreme Court in its decision regarding the general pardon of anti-disengagement activists. The petitioners argued, inter alia, that a pardon should not be used to exonerate an entire class of criminal acts.

  9. Dani Rabinowitz says:

    I am wondering whether someone might be able to help me with these related questions.

    1) The case of the zealot is situated in the midst of two mishnayot that discuss certain extra-judicial powers enjoyed by the rabbinic authorities. The first, discussed in the previous mishnah, is that of klipa, the form of punishment reserved for, amongst others, repeat offenders of certain religious prohibitions. Unless I have understood the concept of “klipa” incorrectly, it involved the death of the offender. (Similar considerations apply for cases in which a murder suspect gets off on a technicality.) Here too, in the case of the zealot, it seems the rabbinic authorities are entitled to bypass due process in putting an offender to death. What I don’t get is this: (i) is the law itself granting the rabbinic authorities extra-judicial powers? If not, from whence do they derive their authority/power to conduct extra-judicial capital punishment? (ii) Does the existence of extra-judicial phenomena indicate a deficiency in halakha as a legal system? In other words, do we find legal authorities in other legal systems enjoying such extra-judicial powers? (iii) When we think of theocracies today, we often think of them as systems that trample on the civil rights of those under its control. But when I think of the extra-judicial powers discussed in these two mishnayot, it seems that a society governed by halakha may be no different. Am I reading these texts incorrectly?

    • AS says:

      The Rabbis were certainly aware that all legal systems are imperfect, but the case you bring up is a common problem in that legal systems that are procedural and attempt to balance the degree of punishment with the severity of the crime (as opposed to the “off with his head” style of law) as they all have issues dealing with recidivism; law can’t function in a society of habitual offenders where the punishment is not sufficient to dissuade repeating the crime. To deal with those kinds you need the ability to incarcerate and to treat repeat offenses more severely – and that is noticeably absent in most of halakah. The fact that the rabbis “legislated” it into their idea of a functioning halakhic legal system is not surprising, nor is it extra-judicial. I would venture that if you look at the way most legal systems deal with recidivism you will see a variety of ad hoc solutions (in the US you have a still unresolved ambivalence about whether the solution lies in greater Judaical flexibility or mandatory scaling-up of sentences that can produce draconian results). In any event, I don’t think they considered incarceration resulting in death as capital punishment. Finally, keep in mind that rabbinic civil and criminal law is very mush an incomplete system that in many areas is theoretical. I think Rambam implies as much when he discusses the “king’s law” as the primary vehicle for civil and criminal law in sovereign Israel.

  10. Laliv Clenman says:

    Apropos the new discussion videos (II – Authority and III – Skull with Sticks) I would like to pick up on our discussion regarding the idea that a rabbi (or a beit din) might be compelled to associate a given halakhah with a particular source as part of the process of rendering a tradition authoritative. Examples from our material: Pinchas kills because he remembers the law of the boel aramit (mSanhedrin 9:6) and the Rambam links his capital punishment to Numbers 31. I am going to take the position that these connections are neither necessary nor compelled, rather they are interpretive choices. The legislator, exegete etc. is not bound to any particular association.

    Now, if you say that when they feel compelled they are compelled, I would suggest that our sources show that different rabbis/exegetes/sources feel this compulsion in different ways. For example, there are texts that discuss Pinchas without connecting him to the boel aramit/mishna, and there are sources discussing the boel aramit that do not connect the mishna to Pinchas et al. Even if they do feel some compulsion that causes them to actually be bound to a particular interpretive choice, that is not the singular choice, because the ‘literature’ in its broadest sense is characterised by a multiplicity of choices and connections.

    I will take this one step further and suggest that this interpretive framework is actually lacking in both our cases. We might include the case of Zimri and Kozbi et al, along with other cases where Moses does not know the halakhah of a particular case (see, Pesach Sheni (Numbers 9:1-14), the meqoshesh (Exodus 16:17-30), the meqalel (himself a child of intermarriage, though a Jewish woman and Gentile man, Leviticus 24:1-23) and b’not Tseloph’chad (also dealing with in/out marriage, Numbers 27-1:11)). These are all cases where the proper course of action after an apparent/possible violation of a law must be determined, through consultation with the divine.

    It may be that there is no framework in our case for a more complicated reason – the divine is clearly furious about Zimri and Kozbi, but the reason for this fury is not explicit (we can only learn from the case of the Moabites at Shittim). Other than the speech in favour of Pinchas re: eternal priesthood, we do not see any halakhic answer from the divine or from Moses. Moses’ own silence here is special, and as the Talmuds see, suggests some problem regarding his own marriage and its halakhah. In the absence of any direct halakhic answer to the question (and the question may be, is the Midianite woman forbidden or permitted?), there is no meaningful answer, no solid connection to any source. The interpretive choices made in this environment are thus particularly problematic. If we turn to the Rambam, his approach of echoing Targumim and linking to Numbers 31 (itself linking back to Num 25 and perhaps to our mishna) could be read as an interpretive choice that is not so much compelled as strategic. I would be interested to hear your thoughts as to what this might mean for rabbinic authority (however practical or theoretical).

    • Ken Ehrenberg says:

      Just a short note about interpretation and choice: Do you think that one can choose one’s beliefs? Perhaps one can choose one’s faith in the sense that one can adopt a belief system, but most philosophers I know don’t think that mundane propositional belief is really up to us. We might be able to convince ourselves of something, although I think we usually do that when we are already in a state of doubt and are leaning/looking for other options. If mundane beliefs are not up to our choices, then what happens to a judge or rabbi who believes that the law is a certain way even though s/he wishes it were otherwise? If there is indeed another source for an opposing interpretation, then the judge or rabbi will try to look to that source. But if the judge does not believe the other source applies then she is stuck with the source she believes does apply, even if it yields a conclusion that she doesn’t like. When I was in law school, one of my professors was a Second Circuit Court of Appeals (one step down from the Supreme Court, which means that for the vast majority of cases he hears he is the final stop) judge. He was clearly against the death penalty and yet was required to apply it in certain cases as the law dictated. I asked him how he dealt with those situations and he responded that he tries to find a legal basis for avoiding its use in the given case, but when he can’t find it he is bound to apply the law as it speaks to him. If you are a rabbi and decided the halacha is a certain way, even if you know that there are other sources available you may not be in a position to apply those sources if you do not believe they are controlling because you may not have a choice as to whether they are controlling and you are bound to apply halacha as you see it.

      • Laliv Clenman says:

        Thanks Ken, I have been thinking about your comment today and have found it to be rather challenging. Does the nature of the connection between rule and source/proof-text change if we deem that connection to be a belief rather than a strategy (or methodology)? If it is a belief (to the person holding it, from a faith perspective) does that nullify any inherent strategic aspects? Is makhloqet a feature of conflicting beliefs, conflicting interpretations or both? I tend to view hermeneutic approaches as subject to choice, but even if they are a tradition and not a belief, how much choice is involved? What is at play when an exegete ‘chooses’ to connect or bind the rule to a particular source?

  11. Dani Rabinowitz says:

    I found the points discussed in the latest two videos fascinating. I am particularly interested in Sari’s point about abdication of responsibility on the court’s behalf. I would really like to hear more about whether we do in fact find other cases of abdication.

    These points aside for the moment, I wonder what people make of the reference in the Bavli to the effect that six miracles occurred such that Pinchas’s actions were successful. Might we infer from this opinion that it is almost as if God wanted Pinchas to succeed no matter what? Or, might we infer from these that Pinchas got frightfully lucky! i.e. the probability that all those events fell together in that way so as to allow him to be successful indicates that contrary to first appearances, it is a seriously dangerous business being a zealot, even if you have God on your side.

    I am also interested in the manner in which the Bavli considers there to be a loss of knowledge on Moshe’s behalf at the center of the Pinchas story i.e. ideally Moshe should have taken control of the situation but at that moment he had lapse of memory. (Incidentally, lapses in Moshe’s memory are often attributed to his becoming overwhelmed with emotion, in this case possibly embarrassment at Zimri’s picking him out for the very sin the people are being punished for). Does the fact that the rabbis “foisted” a dysfunctional state upon the leadership tell us anything about the nature of “authority”? Perhaps the law of the zealot is an example of the people upholding the law when the courts/legal system fail them???

    I am also perplexed as to how it is that the Bavli considers it a legitimate claim that it was the case that only Pinchas was taught the law of the Midianite woman. If we look at Rambam’s Introduction to the Mishnah, for example, we find that laws were passed down from Moshe to the rest of the people in an elaborate fashion thereby ruling out the possibility that one person was responsible for knowledge of the law.

    Finally, I am confused as to the link between the case of Pinchas and the case of zealots discussed int he Talmud. If we take the Bavli at face value, Pinchas acted because the leadership didn’t. However, in the case of “latter day zealots” (excuse the pun), the leadership can seemingly divulge their authority onto the zealot “ex ante.”

  12. Laliv Clenman says:

    Thanks for your interesting questions arising out of the new videos, Dani. Here are a few thoughts on some of them:

    The miracles: I think that both your interpretations are correct. These divine miracles are constructed as manifestations of rabbinic law and so we can learn both that the divine was acting in support of Pinchas’s vigilanteism and that this must be something of a unique situation, at once emphasising divine approval and limiting Pinchas’s act to this unique miraculous constellation. Overall, I think the effect lauds Pinchas while discouraging the everyday gardeen-variety zealot. The miracles, in some versions, also suggest that Zimri and Kozbi were forced to continue their relations by the divine (or an angel). We could learn from this that when the divine does not force people to be victims of the zealot, they shall not offer themselves, and rabbinic limitations to the act would come into effect.

    These miracles are perhaps most notable for their explicit imagery. In this sense I would argue that they render Zimri and Kozbi into an objectified, humiliated other. This may be a way of constructing intermarriage (or sexual relations) as offensive, or as the sugya progresses, animalistic, and violently pornographic.

    Memory and authority: There are in fact midrashim that understand that Moses was extremely angry and that the halakhah was hidden from him/he forgot the halakhah due to his anger. (Technically, Zimri’s disrepect and Pinchas’s teaching of a halakhah in front of his teacher both might be subject to the death penalty as violations of kavod larav.) I agree that this is an image of flawed leadership. Zimri is also constructed as a flawed leader in the Bavli, as he sits and does nothing while the capital cases (regarding the case of Ba’al Peor) are being judged. Some texts describe a deliberation regarding how to respond to Zimri’s act, to which Pinchas responds, “There is no man here who will kill him”. It is after this thought that Pinchas picks up the spear and kills. This highlights the zealot as an actor in the face of indecisiveness, or an unwillingness, inability or refusal to act immediately and violently (possibly because there is no legal basis for such an act). The mentality reminds me of the modern Taliban, who offer swift, extreme and incorruptable (relatively speaking) justice to communities who have been failed by the state system. In other cases where Moses does not know the law (and here we do not know what the law is or whether he knows it or not), an interpretative ruling is sought from the divine. Perhaps due to Pinchas’s close emotional connection to the divine, that is not needed here?

    Could it be that only Pinchas and Moses knew about the law?: I think this is a fabulous question. If Moses learned the law on Mount Sinai and told Pinchas of it during his descent, why doesn’t anyone else know about it? One possible answer is that everyone remembers it except for Moses. That is one way of explaining why everyone is crying. Pinchas is the only one willing to act based on his knowledge. Another option is that there has been a collective memory loss. The law on the molekh (Leviticus 20), which is sometimes interpreted as a law against intermarriage, imagines such an amnesia when it considers that the people might disappear or hide their eyes, that is choose to ignore, the molekh offender rather than enacting the required punishment of stoning. What happens to rabbinic authority when the people deliberately ignore a prohibited act and refuse to enact punishment?

  13. Yonatan Miller says:

    Thank you for the fascinating discussion. I have been working on this and related topics for some time now, albeit from the historical side, and I would add the following observations before the close of the discussion:
    1) Phinehas’ zealotry is certainly lauded by God in the biblical narrative, but at no point is his action ever regarded as prescriptive or as setting a legal precedent for future action. Contrast the Phinehas narrative with the case of the blasphemer in Leviticus 24:10-16; though initially presented in a narrative style, the case is followed by a local ruling (v. 14) which is then given prescriptive and precedential weight (v. 16). Consequently, rabbinic discomfort with the case of Phinehas may emanate not merely from the seeming divine approval of violence, but perhaps also from the ambiguity as to whether the Phinehas narrative was ever meant to be accepted as law.
    2) While the Mishnah in Sanhedrin (9:6) immediately evokes the case of Phinehas, we should bear in mind that Cozbi is not an Aramaean; she is a Midianite. This detail also creates some distance between the biblical narrative and its putative rabbinic reception.
    3) We should be sensitive to the prescriptive weight of the Mishnaic participle (פוגעין). How does one translate this participle, here as elsewhere? May/can/should/must?
    4) I would also urge caution as to the translation of פוגעין as necessarily denoting a lethal blow. Nowhere in the biblical narrative is Phinehas said explicitly to have killed Zimri and Cozbi; in 25:8 he is said to have stabbed (dqr) them. Sifre Numbers (Balaq 131 [Horovitz 172-3]) even attests a tradition according to which Zimri and Cozbi were not killed.

  14. Dani Rabinowitz says:

    The following relevant paper by Oren Gross just came to our attention:
    Violating Divine Law: Emergency Measures in Jewish Law
    Oren Gross
    University of Minnesota Law School
    PERSPECTIVES ON PEROGATIVE, B. Kleinerman, C. Fatovic, eds., Oxford University Press, 2012
    Minnesota Legal Studies Research Paper No. 12-18
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2027116




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