BERNHARD L. DEUTSCH, Born at Kanitz. Austria, January -2. 1819. Died there March 1*. \*W. Sfcck P^gg .THE.. THEORY OF ORAL TRADITION BY GOTTHARD G. DEUTSCH, PH. D. As read before the Central Conference of American Rabbis, at its Seventh Annual Convocation, at Milwaukee, Wis. July, 1896. THE BLOCH PUBLISHING AND PRINTING COMPANY, CINCINNATI, O. .asn ---2 s :n: ""ID r;*Vs n",a 2-- p r ( c^ ,ma ;z ...^, ,. ^. ..., ,. -. s r _. 2S ^.^ .,... < D n^ns 4 rr-rta mir, r,n:ar nir -sen nw T.&'T- 2116348 ZTbe Gbeor\> of ral Grabition. BY QOTTMARO DEUTSCH, PH. D. Professor of History at Hebrew Union College. INTRODUCTION. In my paper on the Scroll of the Law, presented last year to the Central Conference of American Rabbis, I stated my opinion on the purpose of such essays as this. It is not my belief that such investigations shall be regarded as decisions, but they shall from a historical point of view investigate topics which are of immediate practical interest. They shall serve as a guide to the rabbi who wishes to form an opinion of his own on such questions as may be urged upon him to decide. A vote on a subject which is a matter of conscience will never ultimately settle the question. It will, as the history of all religions teaches, sooner tend to dissensions than to harmony. A unity of action is desirable for the sake of proper organization, a unity of thought in all details is an impossibility. Judaism is broad enough to embrace a wide range of different opinions, and we, in tolerating such differences, stand on the historic basis of Judaism, which in the second century proclaimed the fund- amental principle that no man shall insist on his opinions, for the fathers of the world did not insist on their opinions.* A scientific investigation of a law does not necessarily imply that the practice must accept the results of the investigation. Practice is guided by existing conditions ; science knows of no other law than truth. We must further be mindful of the fundamental idea of the reform movement, which Geiger in his recently published letters! has set *Edujoth I, 4. tAllg. Ztg. d. Judt. 1896, p. 806. 8 forth with a distinctness that is really marvelous in so young a man as he was at that time. We stand on historic grounds. That which history has made Jewish, commands our respect, and shall not In- disregarded, provided it is not a dead weight on the present genera- tion or does not more evil than it does good. An evidence brought from traditional sources can neither confirm nor deny that which becomes a practical necessity. David Ha-levi, the celebrated author of Ture Zahab, is undoubtedly an authority for the law that demands of every Jew to keep his head covered, and brands the uncovered head as " Chuzpa," while Elijah Wilna, the " Gaon " looks upon it " only" as a violation of the moral law 1D1DH "ttfD.* Rabbi Loewe ben Bezalel is authority for the statement that by the acceptance of the Copermican system one ceases to be a Jew.f Joseph Caro is outspoken on the question of modern literature in the pulpit, for to read a novel is to him identical with the worship of idols. J Rabbi Jose, the leading scholar of the fourth century is authority for the necessity of keeping two holidays, Jj and Rabbi Jehuda in the second century makes it our duty to read every week the traditional portion of the Thora-H Belief in authority leaves no alternative. Either you accept it or you place yourself outside of the religious community. Belief in the binding power of old authorities, and consequently in the unchangeableness of the law is not so undoubtedly Jewish as it seems. True it is that under the influence of Pauline radicalism, R. Joshua in the beginning of the second century declared that the prophet Elijah, i. e., the Messiah, would never alter one law,** and this view is by its author proclaimed as a fundamental doctrine of Ju'daism, handed down from generation to generation since tbe time of Moses. It must also be admitted that previous to the rise of Christianity, Judaism taught that not a jot of the Law should ever *Ture Zahab Orach Chajim 8, 3 and to"jn ""I1SU i''. Hn rtjuun "IN3 fol. 3S. c; 42, d. Xun/ in his hi..<,'rapliy <.l A/urinli dei Rossi in CjD3^> cpVO Wilna. istio. p. 9. iOrach Chajim 307, H',. $Jer. Krubin Ch. III. (in -\7. Gesch. Bd. IV, p. -j:.7. HMegilla Bib. **Edujoth s, 7 cp. perish,* and that heaven and earth would pass away but the Law should never pass away.f However, practical necessity was stronger than the letter of the Law. The strict observance of the Sabbath had during the Maccabean war become an impossibility, and therefore it was decided that even on the Sabbath it was lawful to defend one's life. Theory came afterwards to justify what practice had made lawful before. The school of Shammai found that the words " Thou shalt make bulwarks against the city until it fall" justified a continuation of warfare on the Sabbath. \ Rabbi Simeon ben Menassja says in a general way that Sabbath is given to man.jj From such an occasional breaking of the Law it was only one step to the declaration of the principle that scripture left the interpreta- tion of the Law to the rabbis of each generation.! It is said also that every court or Synhedrin had the same author- ity which was vested in Moses and Aaron,** and that if the rabbis say that which is right, is left, thou shalt not depart from their words. ff As practice has produced theory, so practical reasons had the effect of limiting the theory Had for instance the Maccabean revolution and the edicts of Hadrian made the strict observance of the Sabbath impossible, then followed theory and proved the right of a war of defense from the words " until it fall," and the right to violate the Sabbath if it was necessary for the preservation of life -p ni Exod. Rabba Ch. VI cp. Matthew V, 17-20. tTanchuma ad Gen 42, 1 cp. Matthew 5, 18 and Luke 16, 17. I^DX nrtTl ~\y Siphre ad Deut. XX-20 ed, Friedmann p. lllft cp. I Makk. 3, 41: Jos. Antiquities XII, 3, 40-41, also Sabbath 60a which Graetz III p. 152 referred to the Hadrianic period, although the parallel passage in Josephus should have proven to him the falsehood of this view. Mekilatha Ex. 31, 14 ed Friedm. p. 104a. IID^DDH^ tt!?N airiDn pDO i6 Chagiga, 18a, and parallel passages. **Rosh Hash 256. HSiphre, Deut. 17, 11. Malbim, the apologete of rabbinical exegesis, understands this as subjective only : If you sc. wrongly think that the rabbis teach right is left ]'D^ i?KCt? paniDC? TOinC* Com. on Deut., Warsaw 1880, p. 235. 10 from the words "holy unto you."* But as soon as this principle \\as generalized, theory limited it, saying that only in calendation the rahbis had absolute power, but not in the observation of the Sabbath-rest. This vacillation between the theoretical acceptance of authority and the practical self-emancipation from it, we find throughout Jewish history, as throughout history in general. Raltban Gamaliel, who preached and practiced liberal Pharisaeism opposing Christianity! on one side and strict rigorism on the other, interpreted the Law more according to its spirit than according to its letter. He prayed on the day of his marriage, although tradition was against it, because a bridegroom was not supposed to be in a sufficiently calm state of mind to approach God. But R. Gamaliel had a higher view of prayer. It to him was not the performance of a duty regulated by a code of ceremonies ; it was the acknowledg- ment of the Kingdom of Heaven, of God's ruling over the world, and so he prayed, J but, when R. Gamaliel had died, his son and suc- cessor, R. Simeon, limited this liberal interpretation. " My father," he said, "stood above the common level. What he would permit himself not everybody has a right to do."S I. CONSCIOUS OPPOSITION TO THE LAW. The practice disregarded law even in Talmudic times and the the- ory found an excuse for it by pointing to the verse in Psalms, The Lord preserveth the simple. || In a number of instances the author- ity of tradition was refuted by the statement that this tradition *Ex. 31, 14. tRabban (fiunaliel's opposition to Christianity is sufficiently proven by i he lc supposes Aramaic) because they were interpolated by Christ inns. cp. Hilyenl'eld ; IHealttest. Citate Justin's in Zeller theol. Jahrb. 1850, p. 31K). I'.i-nikhoth 16a. $ib. 166. Ill's, lit',, i;. Sabb. 1 !"..- Aboda /an. :;n/,. Nidda U\n ; 4-V. (and parallel pas- sages) ; Tosefta Nidda Ch. 2, ed. Zuckernmndel p. i\l;}. 11 was not genuine. So without any authority it is said that a Baraj- tha quoted by Raphrem is apocryphal* or that a law passing under the authority of Mar, the son of Rabina, was not authenticated by his signature.f Even the Geonim in spite of their strict adherence to authority occasionally departed from the rabbinnical law. To them not only the Talmudic Haggada was authoritative, which as Rab Haj com- plains was disregarded by those who had studied the philosophical works of the Greeks,* but even every popular custom of heathenish origin had to be strictly observed on the supposition "that our an- cestors have not without sufficent cause accepted it.Jj So they lim- ited the time of twelve months set by the Talmud for the granting of a divorce to a woman who refuses to live with her husband mTlDl and granted the divorce right away because ehe might bring her case before the courts.** Against the clear law of the Mishna which gives to the children the right to inherit their mother's dowry fl^'H j^2 rsir^t the Geonim decided that the husband had unlimited rights to dispose of the wife's property because as they said, the law originally was made to induce the father to give his daughter a dowry ; while in the times of the Geonim Jewish fathers gave attention to the daugh- ters to the detriment of the sons.** While according to the Talmud the chattels which form part of an estate are exempt from being foreclosed by creditors, the Geonim simply abolished this law, be- cause in their times the Jews were not any more real-estate owners, *Kerithoth 14 SJTTQ, apocryphal or xmtH fictitious, s. Isaiah Pick's Notes to Pes. 11 . tJebamoth 22'< this i.s the interpretation of Jechiel Heilprin, in "HD nnnn ed. Warsaw 1882; vol. II, p. 268. iln En Jacob Chagiga 146, as instance of the literal belief in Haggada cp. Ilessp. of Geonim, ed. Lyck, No. 16, 28. Kesp. ed. Lyck Xo. 14, Weiss, Gesch. d. j. Trad. Ill, 17(>. HKethuboth C>3. **Shaare Zedek 4, 4, 15. ttKethnboth ~r2l>. ttShaare Zedek 4, 4, 17. ^Kethuboth 92a. 12 and to maintain the law would have meant a serious injury to legiti- mate interests.* Isaac Alfasi speaks of a decision of the Geonim as an error based on a false interpretation of the Talmud STl>W3 IjTT tih ,t d Mai- monides says in regard to a law of the Geonim that it is a serious error n^TW mytD .f It is well known that Maimonides himself did not escape severe criticism, and that Abraham ben David's critical notes on Maimondes' code are full of strong invectives which over- step the lines of common decency,}; that his rationalistic views on prophecy on ressurrection and the Messianic kingdom are subjected to severe criticism chiefly by the French and partly by the Spanish rabbis of the 13th century. jj It is more interesting however that in regard to a ritual law later rabbis dared to speak of Maimonides 1 opinion as an error, and that Abraham Danziger, a man whom we may term a typical expounder of 19th century Neo-Orthodoxy dared say of Maimonides that his view was erroneous. || Consider- ing the little esteem in which during the 12th and 13th century the French and German Rabbis were held by their Spanish brethren,** it is interesting to note that the former retaliated and that R. Jacob Tarn protested against an opinion imputed to him saying : " 1 never thought of such a thing but the Spaniards said so,"ff implying that this mere fact sufficed to dispose of the opinion as worthless. II. Asher b. Jehiel an orthodox authority, a man who thanked God that he never had an opportunity to study anything except Bible *Shnare Zedek 3, 65. See on the deviations from Talmudic law ly (lie (ie- onim the exhaustive chapter in Weiss. Gesch. d. jued. Trad. IV. I'd:*, fT. tSee the <|iii'tatiu jis memlier Dl the raliliinieal hoard of Wilna. **Maimonides never mentions Kashi. and in a letter, which, although of donlilful origin. is the work of an early Spanish writer, contempt uouslv ,s c.f t he DTIS1Y. ttSefer liu-.Iashar I! 17. 13 and Talmud,* had found an excuse for the neglect of the rabbinical law that makes it a duty to wash the hands after meal before grace. f although the Talmud derives this law from the Bible,! and Isaac Al- fassi had refuted all attempts to rationalize on it.>j In this case R. Asher has simply followed the common principle of which we spoke in the beginning, viz, to establish a theory, in order to justify the existing practice. But in a number of other instances he declares very boldly that in questions which are not decided by the Talmud every rabbi is at liberty to decide for himself, even against a clear statement of the Geonirn,|| and that the Talmudic law that prohibits all changes of the traditional prayer cannot apply to the prayers made by the Geonim.** Even R. S. B. A., who is typical for such a strict belief in authority that he, even after he disproved Nachmanides' opinion, would dis- claim any authoritative value of his own view, ft says in regard to an opinion of R. Jonathan Ha-Cohen of Lunel : " I am not responsible for his statements."^ It would be impossible to give a complete series of evidences of this liberal spirit that makes man rebel against authority, that made a Luther say, he would go to Worms, and if every tile on the roofs were a devil. It also is unnecessary, the cited instances suffice to prove, that in spite of the prevailing tendency in Judaism to accept everything that claimed to be tradition, we find ample evidence of a struggle for emancipation from the bonds of ecclesiastic auth- *Resp. Asheri Xo. 55, 10, b see Graetz, VII. 234, note 4. +D"J1"inx D^Dinhis Hilkhot Berakhoth, fol. 536 D'CO Krrxn UiTJ &OE> HO irSvN '1X0 rrono nta pxtr 'EfcTnnnK iLev. 11, 44 and 20, 7 the verse is misquoted in the Talmud, see Lipmann Hellers's commentary on R. Asher ad locum. Berak. 536, cp. Chullin I06a ; Joma 836, where it is quoted as a Mishna. Alfassi Chullin 106a. Had Syn. 33a, ag. the view of Zerahya halevi, clearer still in his Resp. ">"">. '.' mim ^ **Berakhoth Perek I. These and similar passages in Weiss. Gesch. d.jued. Tr. V. p. 63 S. l nr In Torath ha bajith he-arukh I. 1. iiResp. 1. 128. mr6 pxins us* pst 14 ority. And therefore we shall cite only a few more instances from more recent times, because with the close of the 15th century criti- cism was almost unknown to the Jews. The authorities quoted are selected just from amongst those who are regarded typical for their strict adherence to traditionalism. Moses Isserls a well-known rigorist, says in spite of older authori- ties quoted by himself that occasionally one may devote his time to scientific studies,* although the silence of R. Joseph Karo and the explicit testimony of others are against the toleration of studies other than talmudic. David Halevi, author of 3HT "HID, another rigorist, has the bold- ness to assert that Joel Sffirkes, his father-in-law, whom he otherwise holds in high esteem, as well as R. Joseph Karo, gave not the duo attention to a certain question of the ritual HT2 jT*yn mi" "H* 1 IN^ fc^t what means that their decision is based on an erroneous interpreta- tion of the Talmud. The same rabbi also rejects an opinion of Maimonides in. ritual law,} and in this instance he is upheld by one of the strictest believers in authority, by Abraham Danziger, who, however refrains from mentioning Maimonides' name, saying : " Take care to understand this principle for one of our great writers has committed an error in this case." *Jair Chajim Bacharach, one of the more enlightened rabbis of the seventeenth century, has preserved us a case which is highly signifi- cant for the fact that in spite of all adherance to authority, it is by practical considerations that the interpreters of religious law are guided. A man Lad trespassed upon the ritual law drinking wine with non-Jews, and the rabbi of the community had refused to proceed against the sinner with disciplinary m< asures because he feared that the sinner would go from bad to worse and renounce Judaism altogether. Members of the congregation who were dis- satisfied with the rabbi's leniency appealed to Bacharach, who, although opposed to this lenient decision in which he saw an encouragement to sin, still maintained that leniency in some cases *.Jorah IVith L' T.I,,r.-li I>.M!I 189-48. -;n>. 18 ; m. 15 may be justifiable, for even the Shulchan Arukh recognizes the principle that we are unable to enforce the traditional laws 133 ftf zbn b*; mn ivzvz Toyr6 ro.* 2. CIRCUMVENTION OF THE LAW AND INCONSISTENT APPLICATION. The necessity to depart from the standard of tradition will make itself felt in questions concerning marriage more than in any other case, for it is just in such cases that the rabbi becomes aware of the responsibility which he assumes by a rigoristic refusal to comply with the demands made upon him. There were some burdensome law- which frequently conflicted with practical cases, and which the rabbi could not overcome by some evasive measure, as it is the case with the levirate. The rabbinical law does not permit a widow or a divorced woman to marry again before her youngest child is two years of age.f This law although meant to benefit the child by securing for it the full care of the mother, frequently harmed the child, because it prevented a destitute mother to marry again, and to provide for the child. We see, therefore, that the rabbis of 18th century found always some loop-hole to escape from this law, al- though maintaining that the authorities of old lost nothing of their importance, as in 19th century such instances occurred more frequently, because even the orthodox rabbis were conscious of their duty not to go to extremes, rabbinical literature of 19th century furnishes more evidence of the same fact.* Another important question is the marriage of a widow, when the death of her husband could not be ascertained by the identification of the body nj">'. Here we see that the most rigoristic rabbis are inclined to take a lenient view of the law by trying to find the case that is before them an exceptional one. A third class of matrimonial questions is the marriage between a woman that had borne an illegitimate child or that is pregnant and a Kohen. The strict law does not admit any evidence in regard to the father of an illegitimate child, and consequently Avhen the *Choshen Mishpat 17, 3, Chawoth Jair No. 141. tJebamoth 30, b and 42-b. JEben Ha-ezer 13, 11. ^Appendix. 16 inhabitants of the town are not people who can enter into a legal marriage with a Jewess, the woman would be regarded a harlot and could not marry a Kohen. Still the greatest rigorist will find a loop-hole* through which they could escape the consequences of the law, which would be a hardship and an injustice, if the Kohen is the father of the child or is responsible for the pregnancy of the woman. The reason for the leniency in these an.d similar cases is the prac- tical necessity or the impossibility to carry out the law to the letter. The same reason is apparent in many other cases. Usury or even lending money on interest is against the biblical law, and although in the Pentateuch,! limited to Israelites only, the Talmud general- izes it and Rab Nahman, the great Babylonian jurist applies to one who would lend money on interest to non-Jews the scripture passage, " He that augmcnteth his substance by usury and increase, gathereth for him that hath pity on the poor,"J and says that the extortions of King Sapor were a punishment for usury with non-Jews..^ Another passage in the Talmud || explains the verse, " He that putteth not out his money to usury"** to include the usury with non-Jews, and in a Mid rash it is said that the dead whom Ezekiel resurrected were 600,000 Israelites who had worshipped the idol which Nebuchadnezar had set up in the valley of Dura, and of the whole number only one was not resurrected because he had lent money on usury. ff The intention of this Midrash evidently is to show that God will sooner pardon idolatry than usury. Still R. Jacob Tarn, known as a rigorist excuses usury because " we have to pay such heavy taxes Appendix I. tEx. -2-2. 34; l,.-v. _'.->. :;r-:57 ; DIMM . ir>, :*. JProv. 28, 8. Baba Mezin "()/<. HMakkoth :.'/'. Thi> .Midr;i>li is .(iinti-d imm Tliur^iim njHS f6tl' ID mm Kx. 1)5, 17 \\lierr I could not lind it. 17 to the king and the barons, that even the highest rate of interest only suffices to meet the barest necessities of life."* The eighteenth century had brought the Jews into closer contact with their Christian neighbors, and the consequence was that they became laxer in regard to the ritual law. Amongst other things they allowed themselves to shave with a razor. In vain had R. Jonathan Eibeschitz proven that the prophet Isaiah had already condemned such a practice. f R. Ezekiel Landau, Elbeschitz's contemporary and antagonist, felt inclined to permit people to shave on Chol-ha- Moed, for as he precautiously indicates the practice to shave with a razor had grown to such an extent that if the Jewish barbers were not allowed to shave their customers with the salve, they would shave with a razor, and furthermore R. Ezekiel thinks that shaving before the beard is so long that the hair may be turned back to its roots, is even not prohibited when done with a razor.}; Still in the nineteenth century this sin was so general that R. Akiba Eger could not any more sustain a demurrer against the testimony of a man who shaved with a razor, and accepted this testimony because the man had only been seen sitting in a barbershop with soap on his face and a towel around his neck, so that one could suppose the sinner had in the last moment repented of his evil ways. It is here practical necessity again that prompted the lenient theory. *Thossaphoth, B. Mezia, 706 -pen n"1, See on R. Tarn. Grsetz VI, 3, p. 179, where in Note 8, B. Mezia Ib instead of 706. tSee (Jijirp n2!"lX on Is. 43, 21. This " homiletical" explanation of the pas- sage in Isaiah, "The people whom I have adorned if with thirteen rows of hair in the beard riSD 1 shave my glory," is a classic instance of the degraded homiletics in the eighteenth century. trmrra jrm Orach Chajim 1, 13 and II, 99-101. This leniency met with opposition. Azulai in DvVlJn DB> s. v. accuses Landau of having used false measure lp nOJ, although he is inclined to leniency himself ^NE? D"fl No. G. Isaac Samuel Reggie devoted to this question a special treatise nn^jnn "IDSD Vienna 1835 and his father Abraham Vita Reggio refutes the son's argu- ment in a pamphlet called nn^Jnn 1DKO. 1844. Respp. of Akiba Eger Xo. 96. D'pDD especially interesting for the pilpu- listic distinction between the testimony concerning sexual sin where it is not necessary to witness the act mSlDKO ^rDM (Makkotli 1 B. Mezia 91) and the testimony in regard to shaving when circumstantial evidence is not admitted, because in the latter case there is no jnn ~l\ and the sinner may have repented in the last moment. 18 II. Mordecai Benet is another type of that uncompromising ortho- doxy that refused to make the slightest concession to the spirit of the age. He is known as one of the strongest opponents to the reforms introduced into the Hamburg- temple.* That he was opposed to the spirit of the Mendelssohn school goes without saying, and I have it on good traditional authority. Besides it is evident from his bitter fight against Aaron Chorin,f the only rabbinical representative of liberalism amongst the rabbis of that period. It will appear remarkable that he gave his approbation to the Pentateuch with Mendelssohn's translation and commentary, published by Anton von Schmied in Vienna.} But the government was in favor of education as a means to raise the condition of the Jews and in in its protective policy wished to encourage the publication of Hebrew books in Austria. So Rabbi Mordecai yielded to the government's wishes and approved of the reprint of Mendelssohn's Pentateuch, saving his conscience by mentioning neither the translation nor Mendelssohn's name. R. Mordecai went still further in his desire to please the government. He gave his approbation to the reprint of the Machzor with Wolf Heidenheim's translation and commentary, although this was an o] icii infringement upon Heidenheim's well-deserved copyright, and a direct violation of the rabbinical law of ban which a number of prominent rabbis had pronounced against all who would infringe upon Heidenheim's copyright. The subterfuge that such a ban could not have any power beyond the borders of the country in which the rabbis lived, was hardly meant in earnest by those who by such sophistry attempted to justify their action. It was not any law or any religious conviction ; it was simply the desire to please the government that made R. Mordecai willing to endorse the outrage perpetrated upon Wolf Heidenheim by Anton Schmied and his Jewish advisers. Two younger contemporaries *Jn man '-m n^S p. 1 1, so,, and IS sqq. See 1S1D DHH VI. No. S7, fol. (Ml. K. Trm Chemed II. 101. S. Loew's excellent sketch in Gesainmelte Schrilten. I'.d. II. ;17!>1, and in several reprints. The Marli/or was published in Vienna |SU~>. Heidenheim's great merits have as \.-t not been duly acknowledged. He deserves a special biography. 19 of R. Mordecai Benet, Akiba Eger and Moses Sofer, like him strict rigorists, also were opposed to the least reform of worship and ritual law and conducted their Jeshibas in the spirit of eighteenth century. Of the former's yielding to the spirit of the age, we spoke already before. We may however mention as especially character- istic that he says in an approbation to a book published by a rabbi of Posen : " Your request to pronounce a ban against one who would reprint your book I cannot comply with, as I have made it a princi- ple not to write nor to pronounce the word QlPi- It may be necessary to add the explanation that the government of Prussia had prohibited the ban as an interference with the prerogatives of the courts. For the same reason R. Eleazar Horowitz of Vienna refuses to yield to the demand of a rabbi who wanted his signature as one of the hundred required to permit a man to marry a second wife as is done in the case if the first wife is insane, and according to the rabbinical law cannot be divorced.* Horowitz implores his friend to desist^ from such an illegal intention and says that he did it once and repented of it, and in many a sleepless night that he passed in consequence of his action he vowed never to do anything which was against the law of the land.f This suppression of the rabbinical law when it comes in conflict with the state law is quite modern.* *See on this point Eben Ha-Ezer I, 10. The institutions of R. Gershom in Respp. of Meir Rothenburg. In Alexandria the custom still exists to make every bridegroom sign a statement that he would not marry a second uil'e, except the first wife had no children within ten years. The European Jp\vs of Alexandria however refused to sign such a paper, and so the rabbi agreed to write in the marriage records that the groom should not marry a second wife except with the consent of the rabbinical court. E. B. Ha/an Alexandria 1894, p. 486. T Vienna, 1870. iMar (Samuel, the great Babylonian teacher and jurist, laid down the rule Xm NJTotan >OH (Gittin l()c) and in many parallel passages.) Still it was frequently explained to mean only such lavs as are not in direct conflict with religious law. In recent years R. -Hoffmann, of Meiningen,was severely censured because he would derive from this principle a permission for Jewish scholars to write their lessons on Sabbath. Orient 1842. When the gov- ernment of Mecklenburg prohibited the early burial which wns customary amongst the Jews, the latter refused to obey ( Kayserling Mos. Mcndelss.. p. 27(t), and still Moses Sofer says the Jews should only yield to force in this question. Joreh Deah 338. He also seems to be inclined to oppose military 20 In olden times the rabbi was in the first ami last place a judge as he still is to-day in the East, and R. Raphael Kohen in Hamburg resigned his office, because he would not officiate, when the government would not permit him to act as a judge in civil affairs. *a. R. Moses Sofer may be regarded the real founder of Neo-Ortho doxy. He was the most consistent opponent to all innovations in practice and dogma. Yet in one case he gives utterance to a prin- ciple which is the very core of all reform theories. In the Ghetto of Eisenstadt a few Christians had bought houses, and according to the Talmudic law,f the subterfuge by which the prohibition against carrying anything from a house to the street and vice versa was nugified, viz : to make a fence around the Ghetto so as to make it one court-yard, could not be considered as valid. However, this fact could not be altered, and R. Moses says that the reason for this law was that the social intercourse between Jews and non-Jews should be prevented, but since in our age we have to come in contact with non-Jews in order to gain the means of a livelihood, this law cannot be carried out.J So even this champion of uncompromising orthodoxy is forced to admit that certain rabbinical laws have become inoperative. Another champion of orthodoxy is Samson Raphael Hirsch. We gladly admit that he was sincere in his endeavor to maintain the religious standard of the eighteenth century, although he departed from it by permitting general education and modern social life. And so it happened that in his school a Schiller celebration was held at which two girls appear in boys' clothes. To the question l>y an inquirer in one of the Frankfurt dailies how this fact could be harmonized with the Mosaic law, the answer was given that the parents of the girls had given their consent, and that the girls donned the boys' clothes only during one rehearsal and during the vice because of the conflict of the military with religious duties, although he \\imld init commit himself on this delicate question, saying flD' WlpTlt' *aSee his biography in pHV IDT, II 1'art, :?' "^yo p. Ml. tErubin HL'/.. :( Imtharn Sof.-r ( >. Ch. !i $Deut. _': 21 performance. The son of Samson Hirsch, Dr. Mendel Hirsch, prin- cipal of the school founded by his father, just recently had occasion to make the experience that it is easier to profess strict adherence to the tenets of orthodoxy than to practice it. In the month of Nissan he preached a funeral sermon in spite of the protest of an orthodox rabbi who was assisted by a zealous disciple, the latter attempting to put his master's theory into practice by pulling the speaker down from the pulpit.* Dr. Israel Hildsheimer, the present champion of orthodoxy, created a sensation when he permitted the Palestinian colonists to work in the Sabbath year on no other grounds except that these laws could in our times not be carried out.f Marcus Hirsch, then chief rabbi of Prague, contrary to the letter and spirit of the rabbi- nical law^, attended the funeral of Professor Soyka, although the latter had suicided. It is a difference between the orthodox practice in the ceremony of divorce, in the dietary laws, in the synagogue and elsewhere in joro inter no, and between practicing it when higher interests are at stake. Therefore we will not find any orthodox congregation in civilized countries that would be willing to carry out the rabbinical law which makes it the duty of the rabbi to excommunicate every trespasser upon even the least of the rabbini- cal injunctions, and to refuse to such a man a decent burial. Practice has made these laws inoperative ; it has simply re-established the Talmudic principle nS^Ti "iplJJ 3i"iJD,|| custom breaks law. And, when R. David Ibn Zimra already in the sixteenth century warns against any inconsiderate application of disciplinary measures,** it is on the ground of the principle that a law cannot be executed, without sometimes doing more harm than good. And therefore the explanation of the word JHJD is given in the Talmud as a law that *Allg. Isr. Wochschr., Berlin, 28. Aug., 1896. t|V JIT I? see on this question. The Hebrew Almanach Achiassaf 189(1-7. p. 293. iJoreh Deah 345, 1. t e. g. if he does any work on the afternoon of the day preceding the Pas- sover (Joreh Deah 334. 43, 12; see also ib. :',34. 3). HJer. Jebamoth 12. 1. **Respp. Venice, 1749, No. 187 r6xn D'-i:m pn rvrni? inn :rnjc6 tr ". 22 shall not he taught theoretically but may be tolerated and even made tin- basis of practical teaching.* So it is acknowledged that urgent demands of the time are more important than theoretical laws, and R. Maleachi Ha-Kohen Montefoscolo gives the best expression to the preponderance over theory of the practice in laying down the principle : The rabbis have a right to change a law of the Thoraf minn -an "i:>^ c^rn ra ro tpv II. TRADITION AMD PSEUDO-TRADITION. \Ve have so far attempted to prove that religious life could not and was not always conducted on the basis of traditional law. Con- sciously or unconsciously even the strictest rigorists had to depart from the rules of the church. Sometimes they would acknowledge that it had become impossible to abide by the decisions of the law, sometimes they lulled their conscience asleep by establishing in the case that they had decided an exception to the rule. Still that there was a tradition that could and would under normal conditions regu- late our life; in their opinion admitted of no doubt. However in our age, this has become, to say the least, very doubt- ful. 1. The first objection to the belief in a tradition is, that it pre- supposes that the Pentateuch in its present shape was written by Moses, and that Moses during the forty days which he stayed on the Mount of Sinai received another revelation which he taught Joshua and which was orally transmitted from generation to generation un- til the time of Jehuda Hannassi, when these laws were written down. This is the meaning of the extravagant statement that the whole Bible with Mishna and Gemara had been revealed to Moses, \ and that he knew even what a disciple in the latest times would dis- cover,.^ and that the commandments with all their detailed ex- planations were given to Moses on the Mountf of Sinai. Jj-cm N^ -jmo jru Taanith 2M, see however the contrary .-tMteiiienl in I'.al.a Hathra. l.'jf)/,. .In. I Mal.-achi 296. mkhotli .V/. accepted literally l>y Ahraham Sutro in his Tl niOH^D Frankliirt. 1862, pamphlet full .f in vecl ives against reform. < l.'al.lx.nim- tdreher.) $Jer. Me y. 1 1.. :>. lira a2D ^>1p in rnn nmu p. 134 iT. against tin- Talmudic interpretation Ber. 10, b\ Sabh. 2,'!, a. Sukka 46, a. + Matth. 26, 3, ">7. Acts 23, 2. 24, 1. IMakk. 12, 6. See Frankel Par'khe ha- Mishna p. 12 Kuenen : Over de samcnstelling van het Sanhedrin in Yersla- ;i M.-dedeelinyen I >. K. Akademic etc. 1866 p. 131-168. Schuerer: His- lory of the Jewish people etc. Her/og n. IMitt Real encyclopaedic f. prot. Tin -.,1. 2nd ed. XV. 101. Kiehm: llandw.erterhuch d. bibl. Alterth, 2nd ed. II. Kil'.i. jActs 1. 1. IT. 5, 17, 84. 28, 6. Jos. Antiq. 13, 10, 5-6 and 13, 16. 2. Kiddu- shin (it;/,. Sec who says tlnit only the passage in Aliolh I. 2 which emit a ins the general principles I'.ir the conduct of the ra bin's, viz : to be cau- t imis in rendering judgment, 'to spread the law. and to [irotect it by a fence of new regulations is hi>torical. So Kroc.hinal Tn"J1Q I'.ruell nrj'DH N"QE> ]> "> tf. \\'eiss. I. o-l IF. Still this rule \i\-.\\ also be an ideal of the third century, when Aboth was written, transferred to antiquity. ||E. g. the Tephilla, which is ascribed to them, Her. :i.'i. .Meg. 1X7,, al- though it il fall of allusions to conditions thai could only have exist ed after the destruction of the temple. The way out of this dilliculty. according to which only the lir>t three and the last three benedictions were made by the 25 Simon the Just the only name of a member of this Synhedrin is no doubt Simon the Makkabee* who in one instance unmistakably is referred to by that namef while in other instances there is a quid- proquo not rarely found in historical reports in the Talmud, when the rabbis identified Cyrus, Darius and Ahasverus,* or Alexander and Ca?sar or Flavius Clemens and Akylas and the latter with the unknown author of the Aramaic version of the Pentateuch. || So evidently Simon the Just was identified with Simon the Makkabee, the latter being the oldest name preceding the Pharisam development of Judaism which originated under the reign of John Hyrkan. 3. The impossibility of any oral law is evident from the fact that the written law is spoken of as sufficient, and admitting of no addi- tion or diminution.** This is the view of the Sadducees and of the Karaites, and strong- ly advocated by Leon Modena supported by arguments which need no additional evidence. Our apologetes of tradition recur to argu- ments which are so arbitrary that they are refuted by their own sup- great Synagogue. (Zunz: Zur Gesch. u. Liter, p. 380; Graetz II. 2. 188) is simply a solution worthy of the old Derasha, and not better than the T.al- mudic report that the Tephilla was written by the men of the great Syna- gogue and restituted by R. Gamaliel, after it had been forgotten. Other facts referred to the great Synagogue, as the division of the Bible into chapters and verses, which Heilprin p. 133 Y'nD a ls understands as a resti- tution of the original manuscripts, need hardly a serious refutation. *L(X'w in Ben Chananja I. 198. tTosefta Sota Ch. 13. p. 31!, in Weiss. I. 86, note 2 erroneously quoted Ch. 3. The text is evidently corrupt in many passages. Still it is clear that Simon the Just is not the high-priest known by that name, but either Simon the Makkabbee or a later one. iRosh ha-Shanah 36. See Dei Rossi, Meor Enajim I. 214. -ukkah 516. The parallel passages in Dei Rossi 1. c. I. 166, where the author attempts to prove that Alexander who is said to have killed the Jews of Alexandria is Trajan, which is quite possible. ||See the excellent discourse of Graetz on that subject, which is a master- piece of historical research IY-3 p 403. The recent work of Friedman. On- kflos und Akylas, Vienna isiifj has not shaken any of G's results. **Deut. 4. 2; see Geiger; Leon do Modena. in the Hebrew part p. 26 Hechaluz.; V. 28, sq. 26 positions, so S. K. ITirsch * * says that the Talmudic authorities in whose names certain laws are recorded, only mean to reproduce the tradition,* e. g. when the Talmud says:f Three laws must be ob- served even at the risk of ones's life, viz. the prohibition againt idol- atry, murder and incest, this is not, as Graetz* asserted, a law made in the time of the Hadrianic persecution, but is tradition, taught by Moses, and handed down from generation to generation, although the Talmud records it as a resolution passed by a meeting of rabbis in a secret session held in the house of riTHJ in Lydda. When Rabbi Jochar.an interpreted this resolution as meant for times of peace only while in times of religious persecution even for the least law one would have to sacrifice his life, even this interpretation is a tradition handed down from Moses and just accidentally preserved by R. Jochanan. When Rab interprets the words -n^p JTI2CD as a change of the shoe laces, this too according to S. R. Hirsch is a tra- dition. The next thing for this believer would have been to say that when R. Isserlein of Marburg interpreted the words rnWn nj?w' to mean when the intention of the law-giver was to make the Jews abandon their faith mn 1^3pn^ DrUID CN this also was a tradi- tion which Israel Isserlein 3,000 years after Moses found necessary to promulgate. The strongest arguments against the probability and the possi- bility of an oral law are those adduced to prove its existence. The argument of R. Jehuda Hannassi, taken from the passage, "Thou shalt kill of thy herd and of thy flock, as I have commanded thee,"|| which according to K. Jehuda Hanassi means that Moses had orally commanded the rites of Shehita,** is extremely weak, for the words, " as 1 have commanded thee," refer to verse 14, and a>-e a repetition of the injunction that sacrifices shall only be offered in the one holy place, while animals for food may be slaughtered everywhere. *See Jeschurun 18>. IV. L'X'jff. rSynh. 7 \n. iiinift/ IV 8, [>. 1">7. $Thermintth h:i-I>'shen II N II Dent. I'-'. '-'1. **Chullin 28c. 27 Zacharias Frankel, in his Introduction to the Mishna, carefully avoided any definite statement as to the origin of the rabbinical law. He is satisfied to bring evidences from older authorities that not everything that is called Sinaitic tradition came really from Sinai.* The positive answer to the question how much of the rabbinical law is to be dated back to Moses, Frankel seems to have evaded, although this precaution did not prevent S. R. Hirsch, the cham- pion of traditionalism, from denouncing Frankel's book as heretical. It is sufficient for Hirsch that Frankel had said the men of the great synagogue had established their laws on an exegetical basis, f which would at once do away with all tradition. Frankel however proved the ancient origin of many laws by pointing out the style of the Mishna, e. g., a gate that is higher than 20 cubits shall be lowered, \ which presupposes that it must have been an old law to close the entrance into a street on Sabbath in order to make it appear as one courtyard. Or : When shall we read the Shema? which presup- poses that it had been an old custom to recite the Sh'ma twice a day. This is undoubtedly true, but it does not follow that these laws originated previous to the second century. In the instance of the Sh'ma, it is clearly stated that it had its origin in the opposition of the rabbis to Christianity.! As an illustration we may recite the following instance. When Moses Isserls** (d. 1572) records the law that the Qaddish shall be recited, although none of the worshippers present had during the last year lost his father or his mother, it follows that the Qaddish of the orphans was a universal custom during the sixteenth century, but it does not follow that this custom was known in the fourteenth, and it really seems to be not older than the fifteenth century. Another apologete of the authenticity of rabbinical tradition, although to a very moderate degree is Isaac Hirsch Weiss.ff His *Frankel 1. c., p. 21. tlb., p. 5. iErubin 1,1. Berakhoth Ch. I. 1. HJer. Ber. I. 8., fol. 3c p'O **Orach Cliajim 132,2. ttGesch. d. j. Tr. I, 5 ff. II, 196, ff. 28 arguments will hardly stand the test of criticism, even if tested by the sound scientific results of his own investigation. His argument th.it the words, "He shall write her a hill of divorcement "* prove that there must have existed a traditional law concerning the form of such a document, is an utter failure. By such a method we could prove that the thirteen lines of this documentf are a traditional law originating from Moses. The evidence would rather point the other way, viz., that the law-giver established a new law in order to abolish the general custom to divorce a wife without recording the act, and since this law-giver is not Moses, the latter could not have taught this law with some additional oral explanations. On the other hand, it is a general fact based on psychological laws that certain religious customs become so general that they finally are believed to be laws dated back to the founder of this religion. \ The only way to solve the question about the origin of the tradi- tional law is given in the words of R. Jochanan, frequently quoted by Weiss : If you find a law which seems strange, do not contest it, for many laws were given to Moses on the mount of Sinai, and all are embodied in our Mishna.jj Criticism of certain traditional customs, as not consistent with scriptural laws or as not authentic, was met by the argument that these customs were based on oral tradition, and so the belief in an oral tradition was established. Even in Talmudic times we find the complaint that laws derived from scripture by arbitrary exegetical methods were, in order to refute all objections, simply attributed to Moses. It is told in the Talmud that Moses, when he went to heaven to receive the Thora, K;IW God busy making crowns on some of the letters of the Thora. " Who is retarding thy work? " Moses asked. " There will come a man," God replied, "Akiba ben Joseph is his name, who will derive from every dot on the i ppl pp hi by mountains upon mountains of laws." Said Moses, "Ruler of the world, let me see this man." *Peut. iM. 1. >en Haezer ILT>. 11, ] iThe Lord's supper is based on such nn attempt to refer the retention of the Passover rite back to .b-Mi>. Tiie Ccrniaiiic mid-winter festival is ox phi ned from the birthday of Jesus. In the religions pract ice of I he .lews such instiinces abound. $Jer. Peah II. I. 29 Said God, " Go back." So Moses went and sat down back of the fifteenth row of seats, and did not understand wbat he (R. Akiba) was saying. When R. Akiba had said something, his disciples said, Rabbi, whence doest thou know that? " and the Rabbi replied. " This is a Mosaic tradition." Then Moses recovered and said to God, " Thou hast such a man and givest the Thora through my hands," but God said, " Keep silent, this is my. will.'' Now Moses said, ''Thou hast shown me the man, show me his reward," and God said, "Turn back," and Moses turned back, and saw that they tore his flesh with iron hooks and he said, " Is this the Thora and this its reward?" but God said, " Keep silent, for this is my will."* The legend may have been altered from its original form, but still it is evident that it is meant as a protest against R. Akiba's arbitrary exegesis, and against the claim that the results of such an arbitrary exegesis are to be considered as traditional laws, and it shows further that the author of this legend or parable meant to say that Mi-ses would not recognize his own Thora after the treatment which it received from the hands of R. Akiba, and that the terrible death which the latter had suffered, was partly deserved by the distortion of the word of God which he had established. Should we in spite of all evidence to the contrary grant the sup- position that there was, or at least, that there may have been an oral law, we would have to admit that many of the oral laws which are stated as such, are of late origin. First of all, contradictory statements can not be traditional, for at least one of them must be erroneous. Still both Talmud and Midrash maintain that the passage in Ecclesiastes,f " The words of the wise men are given from one shepherd " proves, that, though one declares a thing to be prohibited and the other to be allowed, one declares a thing unclean and the other clean, even these contradictory statements are the words of God.: Similarly it is said of the dissensions between the Hillelites and the Shammaites that the opinions of both schools are the words of the living God, although the opinions of the Hillelites are norma- *Mennclioth ->\th. Uvoheletli rabba ad locum : t'hagigah 30 tive.* This is evidently impossible, for if Moses explained as the Shamniaites teachf the law of divorce in the sense that adultery only constituted a legal ground for divorce, it is impossible that he should have explained that the slightest, shortcoming in the conduct of the wife gave the man a right to obtain a divorce, as the Hillelites teach. f *Jer. Berakhoth I. fol. 8c. The inference of Weiss II, 71 that the Bath <>ol which is s:iid to have decided in favor of the Hillelites is a legendary expression of either K. .lochanan ben /akkaj's or R. Gamaliel's decision is hardly tenable, as even K.li.'s son and successor, Simon II, had still to contend with t he opposit ion. and it was only R. Jehuda I who finally over- came it. The real meaning of the Haggada is. that from the beginning tin- controversy bet ween Sliainmaites and Hillelites was a merely theoretical one. so that it was not by human but by divine authority that practice accepted the Hillelite's views. It seems to in-.' that Hillelites and Sham- maites do not go back to the men whose names they have adopted, but are factions of the Pharisees which originated only after the destruction of the temple, and were divided on the attitude which they took towards Chris- tianity, the Sliammaites with K. Klie/ep b. Hyrkanos standing nearer to the Christians and partly amalgamating with them ; the Hillelites. with R. Gamaliel as leader, opposing them. I hope to devote to this question a separate 88 it tin !>()(/. The S h a m ma i tic doctrine is identical with Mat t hew ">. Ml. ."._' : while R. Akiba as radical opponent of Christianity, teaches that one may divorce his wife without any other reason but because he likes another woman better. K. Akiba's opposition to Christianity is already manifest in his literal exegesis, in his opposit ion to intermarriages with heathens. Mekilatha Kx. !">. IL'.. ed. Weiss p. 445a) no doubt the representative of the Stoics. \\ h." founder was Zeno, his opposition to the allegorical explanation of circum- cision (comp. < ien. Ilabba -Hi Sabbath I OS,/ with Horn, l 1 : i'S. L".; ; his ridicule of baptism, praising Israel happy that are cleaned by their father in heaven. ,iid not by Jesus Christ (Matthew. L's. lit; Mark Hi. 16); his connection with the four men who entered the Pardes (Chagiga 146), one of whom, Acher, is Jesus. a< I shall prove in another place while Ben Xoma. who saw the heaven open and the spirit of < iod descend like a dove lib. John [,82,38, !">"' and l'..-ii A/.aj the celibalaire < .Feb. ',:;/, , >tood partly on Christian ground. (See \\Vis? II, I IJ. note ] ., K. Tarphon (Tryphon). a convert to tin- Hillelites from the Sliammaites is another opponent to Christianity: ( Sabbat li 1 ]/ i who ad\ i>es to burn t he ( iospels D'JV^J the Talmudic explaiuit ion of BH^J as margins is a bad guess wit hout regard to the pas.-ai,'e> from holy scripture ijUoted in it. 31 Therefore from early times already we find limitations to this belief. Maimonides in the introduction to the commentary on the Mishna teaches that a law which is the subject of controversy can not be traditional.* Rabbenu Asher says that the term Mosaic tradition in many cases means that the law is as universally accepted as the laws of Moses, f Salomo Lurja, although he denounces Ibn Ezra for rejecting the rabbinical exegesis, holds the same view as Maimonides, \ and Aaron ibn Abraham Chajim in his introduction to Saphra,jj and Lipmann Heller in his commentary on the Mishnaj) also accept the more liberal view that a statement which is contro- verse cannot be regarded as traditional. That the orthodox view is still held cannot surprise us when we remember that the great body of Christians believe in the authenticity of the gospel history, although the two pedigrees of Jesus are contra'dictory, and believe in the authenticity of Jesus' teachings although in such vital points as in regard to the validity of the law or in regard to the position of Christians to the heathen world Jesus is credited with statements, one of which expresses just the opposite of the other.** Similar!}' the Catholic church holds the infallibility of the pope, although it was a pope who condemned the Copernican system as an error,f f and another pope who solved the economic question by an anathema against Socialists. ++ while other infallible popes meantime have retracted the opinions of their infallible predecessors "n^ nan xirrntro ^SD paipD |na tin DlNIpE vn printed in the 12th volume of our current Talmudic edit- tions, quoted in Frankel p. 20. iSee his introduction to p"3 ftch& ^& D\ OpHX pip Venice 1600, Dessau 1742. IIEdujoth 8, 7 and other passages. See p. ">. **See my essay on " Tlip origin of Chr." in American Israelite, Jan. 30 and Feb. (.5, 189(i. ttUp to 17-")7 all books teaching the revolution of the earth around the sun were on the Index. See Liter, on Galilei's Trial in Holxman u. Zojpfel Lex. f. Theol. p. 311. IX in Syllabus. 32 Authenticity of the law presupposes its ancient origin, e. g., if the episcopal system of church government is the proper one.' then Jesus must have established it. Similarly, if the rabbinical laws are correct and are the proper explanations of the Thora, then Moses must have recorded them on the Mount of Sinai, and so we are repeatedly told, that the law with all its details JTTTO^ni ITpnpT* is transmitted through an uninterrupted chain of traditional author- ities from the times of Moses. We are told that the scribes, i. e., the supposed successors of Ezra who are believed to have preserved the tradition from Ezra up to the Maccabean time introduced as a new custom had come from Moses, and in one special instance we find in the Talmud the historical monstrosity that the book of Ksther and the custom to read it in the synagogue on Purim dates hack to Moses. f It is further maintained that the whole Bible, the Mishna and the Talmud* even what the least of the disciples would lay down in the latest times were revealed to Moses, and, when it is said of Rabhan Jochanan hen Zakkaj that he knew the problems put up by Raba and Abhaj three centuries after his time, | it seems that the idea was that nothing new had ever been established in religion, although at the same time the statement is a hyperbolical glorification of the actual founder of Rabbinism. Later legends, not satisfied with these statements, make Abraham observe all the rabbinical laws, including the subterfuges by which the biblical laws were evaded. pV'BOn Kashi il>. i.'.'), 1. tSiri.noth :{'.i'/ : .Icr. Meg. 7, 7. iBer. ")(i. lit'/: .ler. .Me;:. :'. i.athra \:\\. I low sincerely these extravagant statements were believed up to our century we can 866 from the herashas of .lehnda Rosalies died 172S) D'3Y1 ntinS. who asked the question how Abraham could have ..list-rved the Sabbath sine.- the Tim. says that a non-lew who observes the Salilnith is guilty of death. Similar \visdom is found in Salman Cohen's rabbis of I-'unrth ( d. IM'II, I (,-rashas D'O ttBer. 2i;/i. 33 A similar historical monstrosity is the assertion that the ortho- graphical peculiarities of the biblical text are of Mosaic origin. So it is stated that the final letters are to be dated back tcr Moses,* but this is an assertion which can not be accepted, as almost all inscrip- tions and coins show the exclusive use of the old-Hebrew alphabet, while the square characters came in use only since the first century ];.('. Equally impossible is the Talmudic report tbat D^.SID S","^ ... s i,. tyr\2 paVO Vl pip D^SID Vl^JJl are transmitted from Moses. f We are not certain about the meaning of all these terms as the tradition on these terms may be younger than the statement itself, and therefore may be an attempt to explain a Barajtha, the original meaning of which was forgotten just as the attempt to explain the Greek words ^prVH and 'pWlSK from the Aramaic^ shows that the true etymology was forgotten. However, if we follow the traditional explanation D S "1S1D KIpD means the pausal forms and uTSID "iliSJ? means certain passages in which a ' was omitted. jj To illustrate the latter some passages from Psalms are quoted, just as to illustrate the cases where a word is added to the Massoretic text j^TC K^'i p'p an d where a word is stricken from the Mas- soretic text pip fr^l j'OTC passages from the prophets are quoted. If we should be willing to uphold the theory of Mosaic tradition as found in. the Talmud, we would have to believe what the Talmudic Haggadahf says that Moses received already the Prophets, the Hagiographa, the Mishna and Gemara. It is only under this con- dition that we could understand the Talmudic statement that one who denies one single rabbinical interpretation or the correctness of one inference a minore ad mnjus, or by anology is under stricture of "the word of the Lord he has'despised "_and excluded from future happiness.** Samson Raphael Hirsch was therefore perfectly right when he protested against the election of Dr. Kroner to the rabbinical office *Jer. Megillah I, 9. Babbi Sabbath 104o. On the difference between the two Talniuds and other parallel pas-u^es -< j e Schorr in Hechaluz IV. 33. tNedarim 37/>. iB. Mezia 19, S. Levy's U'n-rterbuch > v- See on this difficult expression Weiss I. il. f. and Kohnt Arucli s. v. HBer. 60. **Synh. 99a. at Treves, because the disciples of the Breslau school had learned to regard the rabbinical laws from a historical ]>oint of view, i.e., to explain them irom conditions of the age and from individual points of view held by the author.* Hirsch was also right when he pro- tested against the fourth volume of Graetz's history of the Jews because the author had explained the resolution passed by the Council of Lydda which restricted the duty of martyrdom to idol- atry, incest and murder from the Hadrianic persecutions; while according to Hirsch's view on tradition this, restriction, like all rabbinical laws, originated from Moses, or more properly speaking were revealed to Moses on the Mount of Sinai and handed down by oral tradition from generation to generation.! Hirsch was also right when he sounded the bugle call to gather the orthodox forces against Frankel's introduction to the Mishna,J because the latter had observed a very significant silence in regard to the Mosaic origin of the rabbinical laws, a silence which after the attack made by Hirsch he ought to have broken, even according to his vindicators, S. L. Rappaportjj and Samuel Freund.|| Frankel spoke only of the mysterious scribes (Sopherim) as the founders of the rabbinical law, and said that these men after mature delibera- tions had established the traditional exegesis 1"iDW PI^" a^lVS" Jms v Jjtf 'SD njHl mayisa but he failed to add that the laws derived by such methods from scripture had existed before.** Frankel further explained the excommunication by Rabban Gama- liel of R. Eliezer ben Hyrkanos, which according to the Talmudic reportff was due to a diversity of opinion on the question whether a tile-stove which had been defiled becomes clean when the tiles are *Jued. Liternturblatt. is"(>. 1 ">s. iJeshurun ISC.I.Jan. This controversy produced t(uitea literature, which would deserve a special review. in now Ditr -an Prague, ism. p. -_>s. HFreimd. a very ijiieer cliaracler. attacked Hirsch with insult iiiy words, lint refused to sign (lie resolutions in which the congregation of Prague expressed confidence in l-'nmkel in Hirsch's Vorlseufige Abrechnung, p. 29. **Frankel, p. 1. ttii. -Me/ia .V.i,i, f. 35 taken apart and the stove rebuilt WDJ? h& n^H, as a victory of the Hillelites over the Shammaites, while this question only served as an occasion to settle the dispute between the rival schools by a majority vote.* Hirschf rightly says that the rabbis who made use of such diplomatic methods to settle religious controversies could not claim our undivided respect nor could laws established by such methods command our undisputable obedience. Still even Frankel and his followers had only discovered part of the truth. The con- troversy about the Akhnai-stove is altogether a fiction by which the latter rabbis disguised the real cause of R. Eliezer's excommunica- tion, and this real cause was R. Eliezer's as the whole school's of the Shammaites' leaning towards Christianity which is apparent from the legendary narratives concerning R. Eliezer as well as from some of the laws which bear the name of R. Eliezer.J It has to be admitted that if the historical method of Frankel and his followers be true, the whole idea of a tradition falls to the ground, although Frankel himself, partly because of his emotional religiousness which he displayed in his attitude during the contro- versy on the second edition of the Hamburg prayerbook and towards the Frankfurt rabbinical conference, || and partly because of his adversity to all polemical literature, had not the slightest desire to enter into a question that would involve him in an endless literary feud, and so he seems to have been opposed to the settle- ment of the question about tradition, even for himself. We, however, have no desire to dwell in the dimly-lighted atmos- phere of an emotional attitude towards the rabbinical law without settling the question scientifically, and in order to do this we will quote three instances; two of which are so old that they will serve *Frankel, p. 89. rHirsch, 1. c. p. 7. iWeiss 11.87 refers to a special investigation which M. Friedmann devoted to this subject, but as M. Friedmann wrote to me he dared not publish it owing to the anti-semitic agitation, and therefore gave me the material gathered on this subject, which I publish here with the expression of grati- tude to this excellent scholar. S. Appendix II. Orient 1842, Lit. Bl. 353 ff. HWhich Salomon Klein in his tX'p "JDO Frankfurt. 1861 counts as one of Fr's merits. 30 as classical instances against the claim of a Mosaic origin of the rabbinical law, while the third shows such a wide departure from the text of the Pentateuch, that it will serve to prove that in the second century, in spite of the belief in an authentic tradition, new laws were consciously derived from the text of scripture These laws are the interpretation of retaliation, the date for Shabuoth, and the prohibition against the mixing of meat and milk. The law of retaliation (jus talionis) is clearly stated in three passages of the Pentateuch.* That it has to be understood literally follows clearly from the context. If life for life is to be understood literally, then evidently eye for eye has to be understood literally. It also is proven as the Karaites emphasized from a grammatical point of view, "As he hath caused a blemish in a man so shall it be rendered unto him " 13 jfiJVt It is evident further from a historical point of view, because the later Pharisaean exegesis had for apolo- getic reasons limited the law of retaliation in the case of false wit- nesses to the case, when the falsehood was discovered after the sentence was rendered and before it was executed. J This illogical application of a law could never be understood, if it had been a practical one, but it is an apologetic attempt to defend the law before the forum of a changed ethical judgment. The fact that the Egyptians, Solon, and the Roman legislation had a similar la\v may also be regarded as a historical evidence against the reliability of the rabbi- nical exegesis. Finally the psychological basis of the law, the satisfaction to the ethical sense derived fram retaliation, is still recognized in the philosophical system of Herbart.|| So all possible evidence stands against the truth of the rabbinical interpretation of this law, and consequently this interpretation, although very old, and partly testified to by Josephus** is not a traditional one in any *Ex. I'l, L'l. i.'o; Lev. 24, 19, 20; Deut. 10. ]!, t>l. tlbn Ezra Com. on Kx. L'U 1M. iMnkkotii .y, pnnj PN inn p:nnj inn xb. $See on tin- parallels in the ancient laws: Dillmann Comm. on Mxodus L'nd .:!!'. Miehaelis, Mos. Recht. .">, .V>,ff. Sanlschuetz Archa-ol. II. _'W Frankel, ger. Beweiss p. oO. Illdee der Ver^-lt ung oder Billifjkcit . : Mo~,.phus Anl i<|. I. s, :j.'i interpret-, retaliation as optional, and concedes to the plaintiff the riyht to change it l, v accepting damages, while IMiilo II. and :WL' insists on the literal explanation. See Kilter 1'hilo und die 37 sense that would make it equal to the Mosaic law. The date of Shabuoth is another instance of the same character. The biblical injunction,* as Ibn Ezraf in his intentionally obscure language indicates, leaves no doubt that Shabuoth is a festival of movable date. His argument that Shabuoth is the only festival for which no date is given and that if the date were fixed the counting would become useless, can not be refuted. Still the counting of the fifty days according to the rabbinical Pharisaean exegesis begins with the second day of Pessach instead as it ought to, with the first Sunday, and this exegesis, old though it be, is not traditional in the proper sense, because it is diametrically opposed to the letter and spirit of the biblical law. The prohibition against the mixture of milk and meat is one of the most significant evidences of pseudo-tradition. This law, u Thou shalt not seethe a kid in its mother's milk,"* is obscure and perhaps only to be explained from conditions of the age which are unknown to us, but surely it does not mean a prohibition against, the mixture of milk and meat, and if Wiener's clear representation of the scien- tific facts need any support, it is furnished by the lamentably weak criticism of D. Hoffmann. | The only possible explanation of such an exegesis is found in a stubborn opposition to Christianity, which favored a more symbolical exegesis and against which the orthodox school of R. Akiba upheld the principle that God's laws must not be explained as symbolic expression of his mercy but are mere Halacha, p. 19. Philo's testimony is in itself sufficient to prove that the Pharisaean interpretation of the jus talions is'merely apologetical. *Lev. 23, 15. tCom. ad locum. }Ex. 23, lit. 34, 2ii. Deut. 14, 21. jChullin 1036. Frankel Vorstudien xur Septuaginta p. 188-. Herzfeld Jued.Gesch. 111,531. Rappoportf^D -pJJp.lOla. Ritter 1. c., p. 128. Wiener: SpHsp. ls7i. 39 monastery.* The princes of the imperial house of Austria today possess the title of arch-duke, which is derived from a forged docu- ment ascribed to Emperor Frederick Barbarossa, but in reality manufactured by Duke Rudolph in the fourteenth century.f The pupal archives abound with such documents.]; Mediaeval authors manufactured not a few Aristotelian works. Jewish literature furnishes similar evidences. Lazarus Goldschmidt just recently man- ufactured a Midrash ascribed to one Arzilai bar Bargilai, a transpo- sition of his own name, Eliezer ben Gabriel. As if it were to make atonement, the same gentleman in his edition of the Book of Creation is willing to ascribe this theosophical production of the ninth cent- ury to R. Akiba's age.|| It is said that the disciples of Eliah Wilna, the Gaon, showed their appreciation of the master by publishing posthumous works which they had fabricated themselves.** Isaac Samuel Reggio is not entirely free from the suspicion that he has written the severe attacks on rabbinical Judaism which are com- monly attributed to Leon Modena.ff The most audacious attempt to use a celebrated name in order to lend importance to an inferior work of literature, is the bold forgery of Zohar, the author of which, Mose di Leon, ascribed his work to R. Simeon ben Yo'haj,Jt and in *La vie inconnue de Jesus Christ, Paris, 1894. This impudent forgery has already been exposed by Max Mueller right after its publication (Nineteenth Century, 1894. TI, 515) and recently (ib., Apr., 1896. p. 667) he proved that all of X.'s statements, how he came into possession of this rare manuscript, are simply lies. It gives me satisfaction that I discredited the whole story before Max Mueller's article appeared. (Deborah, Aug. 30, 1894.) tPrivilegium majus, literature on this subject in Krones : Grundriss d. Oest. Geschichte, p. 361. iDoellinger : Die Papstfabeln des Mittelalters, 1863. Steinschneider. Die hebr. Uebersetzungen p. 229. IIDas Buch d. Schoepfung, Frkfrt. 1894, p. 12. **Kayserling Die juedische Literatur p. 36. -T\. S. Libowitz recently in his book R. Jeh. Arjeh Modena, Vienna, 1896. p. 42 ff . discussed the question of the genuineness of the two anti-rabbinical works ascribed to Leon Modena. and arrived at a positive result. tJThis forgery* already exposed by Abraham Zacuto (Jochasin ed. Fili- powski, p. 95) and by Jacob Emden in his D'HED nnDBE is extensively treated by Graetz VII. 424. ff. 40 spite of an early discovery of this fraud there are thousands of Jews today who believe in its authenticity, which was defended by the reformer Moses Kunitz* and partly admitted even by such a critic as Jacob Emden, although he brought evidence that the author of the Zohar was familiar with the jargon of the Spanish Jews.f In the eighteenth century R. Saul Berlin had the impudence to manu- facture a volume of Responsa attributed to R. Asher,J and even he found believers, and he might have escaped the wrath of the outraged rabbinical contemporaries, had he not had the impudence to put into the mouth of R. Asher utterances savoring of a religious liberalism which was highly offensive to the orthodox. We know of many books attributed to Maimonides of which the latter is entirely innocent.^ The age of the Geonim was very prolific in the production of Kabbalistic works attributed mostly to authorities of the second century, and sometimes even to Patriarchs. At the same period compilations of Homilies were published, which were attrib- uted to Talmudic authorities of an early period, as to Rab, to R. Tan'huma, and to R. Kohana, although it needed not a great amount of criticism to discover that names and sayings are found in them which belong to a later period than the alleged author of the com- pilation.! The two centuries preceding and the two centuries following the Christian era have produced such a mass of pseudo-epigraphic *In his "NHV p Vienna, 1815. tAsnoga, the Portuguese jargon word for synagogue, is explained in the /ohar from H31J C'K. Still Emden begins his work with the profession that the Zohar is "holy of holies." It is interesting that Mendelssohn in liis introduction to the Pentateuch accepts the testimony of Zohar in regard to the ancient testimony of the vowel points. il"N~l D'DKO Azulai 8. v. is willing to accept the testimony of Saul's father n- evidence of the genuineness. Zunz : Ritus p. 226. Loew Ges. Schr. II. 183. SGra-tz VI. 380. ||See Zunz, G. V. 204, 245, Weiss II. 225; III. 252, Friedmann's and Hulx-r's int roductions to the works edited by them. I shall point here only to the fact that in Pesiqtha d'Rab Kohnna ed. Buber, p. iss^ f. \\e find the legend of t he baft lc lift\\ . l.fvjathan ;md I'.eheiimth which is evidently a compilation