Last week I quoted Rabbi David Weiss Halivni, and Ruthie Asher gave me his textbook from when she took his class at Columbia, Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law. I took that as a homework assignment. Weiss Halivni is interesting; religiously very conservative, intellectually very daring. He’s best known as a pioneer in academic Talmud, seeing the Gemara as a product of centuries of oral transmission and editing, looking at the layers of development in the text. He emphasizes the role of the סתם גמרא, the anonymous comments that provide the glue that pulls the various statements together. He sees the role of the “stammim” as more than compilers; they selected and even reconstructed the arguments that were transmitted. This idea, of reading the Talmud historically, doesn’t seem radical, but it is at odds with the “Brisker” method, which sees the text as a unitary whole.
There’s a famous quote from Rav Soloveitchik:
This is beautiful, but note that it is an explicitly ahistorical approach. Rabbi Yohanan ben Zakkai never chatted with Rav Hayyim Brisker.
This is part of why Weiss Halivni ended up at JTS, not REITS.
The book itself focuses on the nature of the Oral Torah. This week’s parasha says:
What was the nature of this מסורה? The religious question is what did Moshe get on Sinai; the academic question is what is the nature of the transmission from one generation to the next, but the underlying question is the same. Was the Oral Torah apodictic—statements of unquestionable fact—or vindicatory—associated with the reasons for believing them?
The two models are the apodictic Mishna and the vindicatory Midrash Halacha (Mechilta, Sifra, Sifre). Which came first?
Rabbi Weiss Halivni comes very strongly on the side of Midrash. He argues:
I am not convinced by his reasoning; I might argue the opposite: that the Mishna was apodictic because it was written. Writing the Oral Torah is forbidden; it was only (תהלים קיט:קכו) עת לעשות לה׳ הפרו תורתך that permitted it. So only the minimum was written. You were still expected to learn, to get the מסורה from a רב, not a book.
He then analyzes the text of the Gemara itself to argue that the recorded statements of the Amoraim were also originally apodictic, and that the stammim, the final editors, reconstructed the arguments to create the give-and-take, שקלא וטריא, of the Gemara as we know it.
To look at this week’s parasha, I want to go back a few months, to פרשת משפטים. After מעמד הר סיני and the list of laws in משפטים, there’s a narrative:
Many commentators (Ramban and Ibn Ezra prominently) assume that this is chronological, after מעמד הר סיני:
So ויכתב משה את כל דברי ה׳, and the ספר הברית, refers to all the laws that were just given:
Straightforward. But there are problems. First, אל משה אמר means “He had said to Moshe”, in the past perfect, before the time of the current narrative. Second, Moshe tells the people what ה׳ said in פסוק ג׳, and they answer נעשה. Then he reads the ספר הברית in פסוק ז׳, and they answer נעשה ונשמע. According to Ramban, he’s lectured them twice on the same laws.
So Rashi (based on the Mechilta) says that this paragraph actually occurred before מעמד הר סיני:
It’s the same incident as:
And the people’s response of נעשה is same one as in כד:ג. The story in פרק יט is about revelation; the story of the ספר הברית is only mentioned later.
So the initial ויספר לעם את כל דברי ה׳ is about the upcoming revelation:
So what is ספר הברית?
I find Rashi difficult to understand. Why would מבראשית ועד מתן תורה be called ספר הברית? For an in-depth discussion, see Avivah Gottleib Zornberg’s chaper on משפטים in The Particulars of Rapture. Chizkuni has what I consider a better answer:
Here’s the Mechilta. Note that Rashi combines the first two answers and ignores the third, the one that Chizkuni prefers:
Looking at our parasha, we can see the structure: it starts with a callback to הר סיני, and the laws of קדושת הארץ:
And continues with the “terms” of the ברית, the rewards and penalties,and explicitly calls this a ברית:
Similarly, the תוכחה in דברים refers to this as a ברית:
So the way to read the paragraph in משפטים is: יקח ספר הברית [footnote: see volume 3, appendix A] ויקרא באזני העם. The actual text is only recorded now. Why? I suspect it’s written this way because as history unfolded, this ברית failed initially. This ברית was meant to make Israel the עם קדוש בארץ קדושה:
But they made the עגל הזהב, and lost that status:
And it’s only now, after the second לוחות, the building of the משכן, and the re-negotiating the ברית implied in קדשים תהיו כי קדוש אני ה׳ אלקיכם, that this ספר הברית is relevant to us, the audience of the תורה בכתב.