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Daniel B. Schwartz

Tanur Achnai and Judicial Protests: the Wages of Humiliation

רבונו של עולם גלוי וידוע לפניך שלא לכבודי עשיתי ולא לכבוד בית אבא עשיתי אלא לכבודך שלא ירבו מחלוקות בישראל-בבלי בבא מציאה נט(ב)

“Master of the universe, it is known and revealed before you that it was not for my honor nor for the honor of my father’s house that I did these things. Rather it was for Your honor, so that discord not multiply in Israel.” BT Bava Metzia 59b

With this statement in Baba Metzia, R. Gamliel II justified his ham-fisted leadership over the reconstituted Sanhedrin in Yavneh. On this basis, to prevent fissures in the community, he ostracized his brother-in-law, Eliezer b. Hyrcanus, removing him from the assemblage of those who would determine the law.

But what did R. Gamliel really accomplish? If we look at the term “מחלוקת” in its Tannaitic meaning, “sectarianism,” has there ever been a time in which Judaism did not suffer from some form of sectarianism? And did not that sectarianism at times result in whole swaths of Jews refusing to mingle with other groups? And if we use the modern understanding of the word, “disputes,” well, its obvious that R. Gamliel failed to end disputes among us.  Taking the two meanings together, we get a historic snapshot of one tragic facet of Jewish history throughout the ages;  that of sectarian disputes.

So where did R. Gamliel II err? The dynasty of the office of the Nasi his great great grandfather, Hillel, established was controversial; especially after it was reconstituted in Yavneh after the fall of Jerusalem.   The Talmudim are not shy about criticizing R. Gamliel II and his descendants over the dictatorial way they presided over the Sanhedrin in Yavneh and later the Beit Vaad in Usha and Sepphoris.  These were not political/religious leaders who looked kindly upon dissention in their ranks.  Cross them, and the consequences were severe.  I think R. Gamliel confused quiet for consensus, repose for peace. He forcefully silenced dissenting voices, of Eliezer b Hyrcanus and elsewhere R. Yehoshua. And in doing so, he probably intimidated others into silence. But that quiet didn’t end the discord. The bitterness and resentment of the silenced doesn’t go away. Left with no outlet, they each fester and grow.  When one side prevails in a dispute, be it by quashing the other side with brute force or with an appeal to authority or even via manipulative appeasements, those will not heal the hurt feelings if they aren’t acknowledged.

In fact, imposing quiet only exacerbates the offense and its consequences. It’s what led to R. Gamliel of Yavne’s death.   Per the Talmudic story in Bava Metzia, Eliezer b. Hyrcanus was exiled to his home in Caesarea. His dissenting voice, which defended the old traditions against Gamliel’s innovations, was no longer heard in the Sanhedrin. Unable to teach the Torah and impart the traditions hearkening back to Ezra that he so loved, he prayed for his tormenter’s death. Ima Shalom (G-d how I love that name), his wife and Gamliel’s sister, explained that G-d, as promised in the days of King David, her ancestor, heard Eliezer’s pained and anguished demand for redress and answered it. Gamliel died for the silence he imposed. Was Eliezer appeased? We don’t know. The text doesn’t tell us. But I doubt it. Vengeance isn’t validation.  When he caused the death of his nemesis, Eliezer ben Hyrcanus was confronted with and saw his most base and unsalutary traits.  But R.  Gamliel’s death did not restore him to his prior honored place among the sages.  No, that did not happen until he lay dying and his students came to bid him a final farewell.  R.  Gamliel’s imposed silence did not beget peace.  Rather it was the tragic error that led to the tragedy of his death.  Silencing his brother in law also was the cause of the sages forgetting thousands of Halachot which only Eliezer ben Hyrcanus knew but was never able to transmit.

That is the true moral of the story of the Achnai Oven.  The wages of humiliation are tragic.  Humiliate someone, silence him and make him unheard and unseen, even if in pursuit of a noble cause (i.e. in the name of preserving Halachic cohesion), and bad things happen in the world.   Those ends don’t justify these means.

NOW, MORE THAN EVER, WE NEED TO REMEMBER THAT.

This past year, Israel has endured some of the most painful controversy in her history.  It began with the controversy surrounding proposed reforms of the judiciary.  But the internecine strife quickly spread to all aspects of Israeli politics.  The Chareidi draft, the Occupation, economic policy, diplomacy.  All have become focal points for protests, counter-protests, fights within families.  Sacred institutions like the military are under attack.  People say that never before has Israeli society appeared to be unravelling the way it seems to be now.  The social discord is often palpable.  Even for those like me who do not take to the streets, the undulating waves of discord are depressing and foreboding.

What strikes me hardest about all the protests and debates, is their volume.  It’s as if each side is trying to shout down the other, rather than be heard.  We’ve seen that before.  That fateful day in Yavne when Eliezer ben Hyrcanus was removed from the Sanhedrin, began with a debate about an arcane point of law related to ritual impurity; an area of Halacha that probably was already on its way to desuetude.  Eliezer ben Hyrcanus, the Talmud tell us, raised sound and compelling arguments to defend his position.  They were summarily rejected without any consideration.  Growing ever more frustrated, he resorted to threatening economic harm to the community if he would not prevail, to no avail.  He moved on to threatening physical harm to his colleagues; they ignored him.  Ultimately, he invoked the ultimate appeal to authority, Divine support; whereupon R. Joshua stood up and declared that G-d in His own Torah rendered Himself and His point of view irrelevant to the debate.  No one conducted themselves honorably that day.  In the heat of the political battle (R. Gamliel wanted to establish the right of the Sages of Yavneh to change Halacha as they deemed necessary while Eliezer ben Hyrcanus said they have no authority to do so [sound familiar?]) G-d, i.e. any moral or ethical considerations, was expelled.  Victory, even at any and all cost, even if it entailed threatening, humiliating and silencing the other side, was all that mattered.  Where did it get us?  Where are we headed?

All sides in Israel’s current legal and kulturkampf reflect the worst of all the Sages of Yavneh that ill-fated day.  Everyone threatens harm if their point of view will not prevail; and they demonstrate their ability to make good on the threats.  Everyone grows increasingly louder in an effort to cow the other side into silence.  If all the protests and all the rhetoric in the halls of the Knesset and all the fulminations in the media, were ever about public discourse, they long ago stopped being concerned with convincing anyone about the rightness of any position.  No, they are now designed to denigrate, humiliate, and silence any dissenting voices.  Each side wants to render the other unheard and unseen.  The Talmud tells us where that will lead; to tragedy. Regardless, of which side will become R. Gamliel (i.e. prevail) and which will become Eliezer ben Hyrcanus (i.e. be bullied into the silence of the denigrated), No one will be vindicated.

We are now, in this season, in the midst of owning our iniquities before G-d. Ironically even though we may have removed Him from the conversation, we still must answer to Him for how we’ve conducted it.   In a matter of days, we will start to own up to the offenses we’ve committed against one another.  We will have to listen to the grievances of those we forced into silence.  Because the quiet and repose we may have imposed, was never acquiescence.  To earn their forgiveness, we have to return their voices. Our lives may literally depend on it.

Wishing one and all, a happy and healthy new year.

תכלה שנה וקללותיה ותחל שנה וברכותיה

About the Author
Daniel Schwarz, an attorney with offices in Jerusalem, Efrat and Rehovot, made Aliyah from Rockland County, New York in 2016. He's also an avocational chazzan.
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