Rabbi Eliezer Berkovitz z"l
The six Orders teach how to structure life in national-religious terms on a grand scale: for all walks of life, and all areas of life, the Orders show how the Torah is to be translated into action by the people as it goes on its way through history. To edify and instruct the people is the aim, and towards this end it constantly strives.
Anyone who studies the Talmud in somewhat greater depth, one of its Orders, or even just one of its tractates or sections will soon inevitably reach the conclusion that what is said there about the great theme of human life from the point of view of the “teachings” is often of varying character and unequal importance. For example, when the first Mishna in Bava Batra teaches: “If neighbors wish to make a partition in a (shared) courtyard, they will build the wall in the middle (each one must give up half of the space for the wall), in what locally is the normal fashion for building…,” in form and content this basically differs from the observation of another Mishna, e.g. in Avot 5:9, informing us: “There are four character types among people: (a) One who says: ‘My property is mine and yours is yours,’ is an average character type, or, some say, this is characteristic of Sodom (selfishly refusing to do a kindness); (b) ‘Mine is yours and yours is mine,’ is an unlearned person (unfamiliar with the concept of ownership); (c) ‘Mine is yours and yours is yours,’ is scrupulously pious; (d) ‘Yours is mine and mine is mine,’ is a rascal.” And even less can it be compared with a passage in Tractate Brachot 32a, which tells of Moses’ importance: “And the Lord spoke to Moses: ‘Go, get thee down!’ (Exodus 32:7) What is the meaning of: ‘Go, get thee down’? R. Eleazar explained: The Holy One, blessed be He, said to Moshe: Moshe, get you down from your greatness; it was only because of Israel that I bestowed such greatness upon you; but now that Israel have sinned, what need have I of you?!”
The first quotation could be part of a code of law, the second belongs in a manual on “practical” ethics, while the last one might appear in a literary treatise on the idea of national leadership. Innumerable other examples could be quoted; in each case, new subjects will need to be established in order to clearly distinguish one from the other. In the Talmud itself everything is presented side by side. Without the slightest attempt at systematic separation, the most diverse topics alternate, overlapping and intersecting with each other. However colorless and drab it may appear, for the person capable of reading a printed page of Talmud, it turns into a vivid and colorful ancient Oriental fabric, full of movement and lively splendor. Imagination, religious experience, poetic vision, ethics, politics, law, stories and anecdotes, fables, legal provisions, historical, philological, philosophical, legal and other insights are all there, side by side, “weaving” the “page” in the Talmud. Nowhere is there even the slightest hint of monotony and tedium; a wonderful intellectual zest fills each and every page. It would be an enormous task to scientifically and rigorously separate from each other all the different intellectual powers involved in the development of the Talmud — a task which could only be handled by an entire academy of scholars.
The Talmud makes a division of an entirely different nature by separating all the material of the Oral Law into two main groups of differing character: Halachah, and Aggadah. Halachah (derived from haloch = to go) means the existing legal provisions by which people are to “walk,” while the term Aggadah (which comes from hagged = to inform, recount) designates all of the content of the Talmud which is not of a legal nature and hence is not binding on anyone. That the distinction between the two is not the common one, so familiar to the layman, that of reason, as opposed to emotion, can be readily seen from the fact that, on the one hand, much in the stringently mandatory Halachah is determined by feeling, while the broad scope of Aggadic material can in no way be ascribed solely to that which is determined by intuition and effect. “Emotion” plays no more a part in the emergence of the Aggadah than does reason or any other intellectual powers. Countless aggadot, providing us with an in-depth view of the connections between different walks of life, attest to this. Aggadah and Halachah are the expressions of two contrasting trends in Judaism. The most beautiful and important aggadot originate with the most important teachers of Halachah. The greatest Halachists were the greatest Aggadists, and the Aggadah of the Aggadists has also come down to us only because of the Halachists.
However paradoxical it may sound, the difference between Aggadah and Halachah cannot be understood by looking at that which distinguishes them.
Aggadah and Halachah do not appear as separate kinds of Talmudic material. Understood in this way, only Halachah would be unambiguous as law, the standard of performance, as well as comprehensive with respect to its intension. But Aggadah cannot be described as report or account, because only a small portion of the non-Halachic material in the Talmud can be called report or account. Just as the literary works of the nineteenth century cannot be divided into statute books and novels, with the latter necessarily meaning the non-legal, so it is impossible to systematically divide up the Talmud into its various constituent parts of Halachah and Aggadah.
Only if that which unifies is perceived can one understand the significance and also the correctness of the classification into Halachah and Aggadah. That Halachah and Aggadah really belong together can best be seen where they first appear, that is, in the Bible. In the Bible itself we find Halachic material as a binding standard of performance and valid law, and Aggadic material in the form of accounts and reports. What unites the Halachah and Aggadah of the Bible is the Torah — the “Teachings.” The report is not an end in itself, for the Bible is not a novel; nor is the law the goal, because the Bible is not just a code of law. The Bible is Torah, and both Aggadah and Halachah point beyond themselves — to the Teachings. They lead to the Teachings. Halachah is not the ultimate end, but a means of education for the Teachings, and the same applies to Aggadah as well: they only differ in method.
This can best be grasped by not simply explaining the two words from their grammatical roots, but by going back to the substantive contexts in which they originated. It is quite impossible to explain the two concepts in purely “grammatical” terms. To derive Halachah = law from haloch = to go, because people “are to walk according to the law” is itself a bit of Aggadah — homiletics. Life — reality — does not put concepts together in this way. Halachah comes, not from “haloch,” but from a verse in the Bible which is frequently repeated in a number of variations and which always contains a reference to the “way of the Eternal” or the “path which the Eternal One, Your God, has commanded you” (Deut. 5:30) and along which every individual “should go.” The law is called Halachah in respect of this concrete “path” and this “going” which is indeed required by the Teachings. Nor should Aggadah or Haggadah be “grammatically” derived from hagged = to recount, but rather philosophically from such Biblical expressions as: “ve-higadeta le-vincha bayom hahu — and you shall tell your son on that day” (Exodus 13:8) or: “Sha’al avicha ve-yagedcha — ask your father and he will tell you” (Deut. 32:7). In both instances “Haggadah” means “communication, narration,” not fiction, legend, fantasy, and so on. The “share-it-with-your-child” does not impose the duty on the father of telling his child “stories” on Passover Eve, but history (as his story). The child is to be taught about the historical connections and interrelations which led to the commandment of Pesach, to the Halachah of Pesach. And what Aggadah does the other quotation refer to? One can take the Bible and read (Deut. 32:6): “Is He not your father, your creator, he who made you and established you? Regard the days of ages-past, understand the years of generation and generation ago; ask your father, he will tell you, your elders, they will declare it to you!” Clearly what is meant is the historically experienced confirmation of the Halachah — “He is Your father…,” or in other words: the historically experienced truth of the mandatory and binding entity — Judaism, the confirmation, experienced by the generations of Jewish history, of the entire Halachah, of the “path which your God has commanded you to go along.”
Only if we start here can we determine the nature of the Haggadah and its relationship to the Halachah. The Aggadah is the life experience of the generations, turned into worldly wisdom and practical philosophy: it is the wisdom of the times, the “father’s communication to the child,” the Teachings which have come about for man in the course of his life; in contrast, Halachah is the Teachings given to man, “God’s communication to man.” The Aggadah is like “teachings from below,” it comes about in the course of time; Halachah — the “teachings from above” — is for eternity. However, both mean the same — the Torah; Halachah requires it, Aggadah leads to it. Halachah commands, Aggadah teaches. Halachah lays down outward behavior, Aggadah creates an inward willingness. What does Halachah mean without Aggadah? – Only established outward behavior without inward willingness, in other words — drill. What is Aggadah without Halachah? – An inward willingness without any outward resoluteness, in other words something impossible, or if it is passed off as possible — mere words, a fallacy.
Aggadah leads to Halachah and Halachah presupposes Aggadah.
This, and concomitantly the internal relationship between Aggadah and Halachah, can be expounded as follows: Aggadah, as the “wisdom of the times,” which proceeds from people, is subjective; Halachah, given by God, is objective, it holds true. Because Aggadah is subjective, it cannot constitute a valid standard of performance. It is not binding, and nevertheless in a certain sense it is “valid” and holds true. As the wisdom of the times it is valid in time as a subjective knowledge of the truth for the subject. It always holds true in some sense in the “now.” The Aggadah is always subjective Halachah.
However, every subjective experience of the world strives for truth, that is, for objectivity, for general validity. The wisdom of the times strives for eternity, Aggadah for Halachah. As Aggadah, developing and completing itself, draws closer to the truth, it sheds more and more of its initial subjectivity, it objectivizes itself, thereby gradually becoming Halachah, so that we can say: Halachah is objectivized Aggadah. As soon as Aggadah reaches its acme, it must be possible to turn it into Halachah. Halachah constitutes the highest stage, the ultimate consequence of Aggadah.
This close relationship between Aggadah and Halachah can be illustrated by means of a number of examples.
a) Genesis, Chapter 18, recounts the story of how Avraham fed the “three men.” This is an aggadah, a statement from the lives of the Fathers, an episode reflecting a particular lifestyle of the Fathers, placing nobody under an obligation, not “applicable” to anyone, but nevertheless molding and “teaching” everyone. For Avraham himself, feeding the men was not an aggadah: for him, it was an obligation, a precept, an inner law. We see before us the typical example of an aggadah which is subjective Halachah. It applied to Avraham, but it did not have to be binding on his son Isaac. This aggadah of “hospitality” developed further, and an important part of its continuation is to be found in the Talmud tractate of Kiddushin (32b). There it states:
.”…It once happened that Rabbi Eliezer and Rabbi Yehoshua and Rabbi Zadok were at the wedding feast of the son of Rabbi Gamliel, and R. Gamliel stood over them and served drinks. He handed a cup to R. Eliezer, but he would not take it; then he offered it to R. Yehoshua, who did take it. R. Eliezer said to him, “How can we allow this, Joshua? We are seated while Gamliel Berabbi is standing over us and serving us drinks!” R. Yehoshua replied: “In Scripture we find one even greater than he who served others. Abraham was greater than him, and he served others. Abraham was the greatest man of his generation, yet of him it is written, ‘And he stood over them’ (Gen. 18:8) …Why should not R. Gamliel stand over us and serve us drinks?”
The Aggadah of hospitality is nearing its completion; it already “applies” to others. Thousands of years after Avraham it becomes a commandment for Rabban Gamliel. The insight is gradually accepted: this is the way to entertain one’s guests. This is recognized by Rabbi Yehoshua, who would act precisely the same way in the given circumstances. But then the text continues:
“Now R. Zadok spoke up: “How long will you disregard the honor due to God and concern yourself with the honor due to human beings. The Holy One, blessed be He, causes winds to blow, clouds to rise, rain to fall, and the earth to sprout, and before each and every one of us He sets a table, and why should not Gamliel Berabbi stand and serve us drinks?”
We see how the Aggadah is removed from the subject, from Abraham, and there is an advancing towards the nub of the matter, the truth. The Aggadah objectivizes itself, and it is entirely possible that one day it will become the Halachah: A person entertaining guests is always obliged to serve them himself. This would then be the Halachah, which is nothing other than Aggadah objectivized.
b) Another example:
God speaks to Cain: “The bloods of your brother cry out to Me” (Gen. 4:10, literally translated). The Sages comment on this: “It does not say: the blood of your brother, but ‘the bloods’ — his blood and the blood of his descendants… This teaches you that every individual who destroys a human life will have his action adjudged as if he had destroyed an entire world.” This too is an aggadah — but one of the most sophisticated aggadot, an Aggadic high point. And now the source itself must be looked up. It is to be found in Sanhedrin (37a): “How are the witnesses in a capital case threatened? They are led in and threatened (by the following words): Perhaps you are saying this as conjecture, or as hearsay, or (you know it) from the mouth of other witnesses … or perhaps you do not know that we will later subject you to investigation and questioning. You should know that in capital cases things are different from financial cases; in financial cases compensation can be made and expiation achieved, whereas in capital cases the blood (of the person who is executed) and the blood of his (possible) descendants adhere until the end of the world; for this too is how we find things with Cain, who slew his brother, as it says: ‘The bloods of your brother cry out…’, it does not say: the blood of your brother, but: the bloods of your brother, his blood and the blood of his (possible) descendants.”
The Aggadah therefore applies here — it must apply to everyone, hence to the witnesses too; it has objectivized itself and its consequence is Halachah. All the Halachic differences between “dinei mamanot” (laws governing monetary matters or civil law) and “dinei nefashot” (laws governing capital cases or criminal law) are the result of this aggadah about the importance of a single human life.
True, Biblical-Talmudic Halachah differs from every other “Halachah” inasmuch as it did not become philosophical. Rather, through the Revelation on Sinai God emanated as compatible with Aggadah. By “giving” us the Torah, God anticipated the final consequences of Aggadah. While we perform and fulfill the Teachings through the “given Halachah,” we endeavor in the developing Aggadah to understand those teachings in their entirety, and thus to accept that which is “given.” As long as it is not accepted, it is the “law” ordained externally. Once we have accepted it, it becomes the set of internal laws which regulate our life. Halachah without Aggadah is the route of march; it is only through Aggadah that Halachah becomes the path of life.
3. The psychological structure of the Oral Teachings
We have already discussed the basic outline of a systematic for the extensive material of the Oral Teachings (see Section III, 1). It comprises the “six Orders,” Shishah S'darim, or from the Hebrew abbreviation — Shas. Every order is divided into individual tractates or masechot, which like the Orders themselves are named after the “cases” with which they predominantly deal with, for example “B'rachot — Benedictions,” “Shabbat,” “Gittin — Bills of Divorcement,” and so on. Each tractate is divided into chapters or p’rakim which, like the weekly portions of the Bible, instead of having a title are always called by their initial words. The chapters are then further divided into subsections, each introduced by individual sentences of the Teachings, the Mishna.
This structure was probably never viewed by the authors of the Talmud as a special task; nor can it be viewed as the result of a special systematizing achievement. Rather, it results automatically from the diversity of the material and is often even determined by its scope. Thus one tractate was, for example, divided up into three independent tractates simply because it was exceptionally long. It can be considered the external scheme which relates to the actual systematic of the Talmud in the same way that a factory building relates to the inner organization of the business. It is the framework, not the centerpiece, of the systematizing operation. Besides the external structure, attention must primarily be focused on the inner structure.
In the traditional literature, the Talmud is often referred to as “yam ha-Talmud” — the Talmudic sea, and in order to cope with this sea one must attain some understanding of swimming. To the lay person, the internal structure of the material must appear “unsystematic.” In fact, a great deal of diligence and effort is required in order to be able to hack even the narrowest path through this jungle of intertwining problems, thoughts, questions, reports, and so on. The division into Orders, tractates, and chapters has not in fact been made in any consistent fashion. Every Order frequently contains a repetition of the many varied topics of the other Orders. No tractate deals solely with those questions which belong to its principal main topic. An explanation about criminal law may be interrupted, for example, by a disposition concerning the rules on sacrifices or a provision about social taxes. A legal question can often be answered by citing decisions on purely religious issues and vice versa. In one and the same section the most varied topics alternate with each other or are even dealt with jointly. As a result, nowhere is there a clear-cut separation; every tractate and every section reflects the diversity of the whole. In schools of Talmud, typically a certain tractate is known as the “little Shas” — the “six Orders in miniature” — because of the diversity of its content.
Anyone who has had but one opportunity to observe how the chain of reasoning develops when elucidating an individual question in the Talmud, anyone who has experienced, just once, the unerring sagacity with which a discussion in the Talmud is conducted, the rigorous, almost inexorable systematic with which an individual topic is constructed, will be amazed by the “jumble” that can often be found on just two pages of Talmud. He would guess perhaps that this “confusion” cannot be explained by a chance lack of systematic structuring. Such a lack of order and clarity of structure among the authors of the Talmud could not have come about accidentally. In reality, this apparent confusion is simply the disappointment of readers who expect a very specific systematic, which is just not present in the Talmud. What looks to the beginner and layman like “muddle” is the necessary inner structure of the Talmudic material — an inspired systematizing work of the most unique nature, as matchless as the Talmud itself. Any other arrangement would not only have failed to achieve its purpose, but would have changed the very nature of the Talmud.
The Talmud is a body of teachings; by their very nature, teachings are characterized by uniformity. The same will, the same intention must permeate all its parts. It is the same knowledge, namely the truth, that achieves its fitting and consistent expression in the most diverse walks of life. The subject matter may change, but the inner substance must remain the same. What applies to one point must apply to all points. In other words: that which is the truth for ritual legislation must also be the truth for criminal law, matrimonial law, or the rules for the Sabbath. At the very least there must be no contradictions in the entire body of the Teachings. This means that the nature of the “teachings” resists any systematization based on the diversity of the “themes.”
Imagine that the sciences had achieved perfection and had all managed to arrive at the absolute truth: then any division into “faculties” would only be possible on an external level. Whatever holds true for philosophy would also have to hold true for medicine; and the truth of the natural sciences could not conflict with its legal counterpart. It would be entirely possible for a mathematical problem to be examined through a knowledge of poetics. There would be no “experts,” because every individual interested in understanding the nature of this “absolute truth” would have to study all its forms of expression. (As everybody knows, at the time of writing as the development of modern scientific research proceeds apace, the limits between faculties are gradually becoming blurred.) The “faculties” would be the model for the literary portrayal of the scientific results; the actual elucidating scientific work would, of course, not be able to comply with this model.
The Talmud as teachings, whose very essence comprises “unity,” does not recognize any faculties. The Talmudist does not specialize in a particular “subject” — nor would this be possible, since every subject comprises all subjects. The division into the six Orders is only possible in literary terms, and only where the results of the Teachings are summarized, in other words in the Mishna (see Chapter IV), but not where they are elucidated — in the Gemara. The division into the six Orders does not apply to the “discussion.” What matters is not the diversity of the “material”; the subject matter includes everything to which the same principle applies. Thus it is possible for a legal question to be decided by a provision about “seeds,” and vice versa. As long as the Teachings are “in motion” and have not crystallized into rules, what applies is the inner systematic of the principles which may take the external form of the most diverse “topics.” This does not hold true for the external systematic of the material.
The subject matter of the Talmud is always determined by a content which relates to principle, not to subject matter.
It must, however, be said that this applies only to the individual topics. The Teachings as a whole had to be subject to a different systematic, as determined by their oral character. For centuries the Talmud was taught and transmitted orally. There is even a requirement that the Written Teachings must not be presented from memory, nor the Oral Teachings written down. (In this chapter we shall refrain from any speculation as to the reason for this rule. We refer the reader to what is said about the oral factor in Section I.1 on “Bible and Talmud”. Pursuant to this, it is strictly forbidden to write down the Oral Teachings, because that which is written down can itself only be read correctly as a result of additional oral teachings.) As a result, the Teachings were in serious danger of being condemned to oblivion. What had to be done was to systematize the content so as to protect it against this danger as much as possible. It therefore became necessary to arrange all the material according to mnemonic rules in order to make it easier to remember. In such a mnemonic-based systematic, “logical coherence” does not always matter. The chance juxtaposition of the most diverse topics, whether described jointly or consecutively, is sufficient if such juxtaposition makes it easier for the memory to “retain” them. In addition to the rigorously logical systematic of the individual topic, the Talmud is also characterized by the psychological systematic of the subject matter in its entirety.
One of the most important rules followed by the “psychological systematic” is that of association. It may be intellectual, or based on a chronological factor, such as the well-known “on that day” on which a number of different controversial questions were decided, which from then on are always taught together. Often it is the space, the “same” location which forms the basis of the association. Decisions which are independent of each other in terms of content, but which were made at a particular location, are taught as a “package” and thereby protected against the danger of becoming forgotten. A name may also determine associative juxtaposition. If, for example, in the course of dealing with a topic, reference is made to a scholar’s relevant statement, the Talmud may continue along the following lines: “and the person concerned said further…” when an entirely different question is involved. It is nevertheless referred to in order to draw the memory’s attention to the association provided in the name of the “same” author.
The frequent repetitions in the Talmud also hark back to the oral character of the Teachings. If, for example, a question — already decided on — has certain consequences for a problem in another tractate or even just another chapter, then the decision and often the accompanying discussion, already concluded, must be repeated. In the Oral Teachings it is not possible to say “see page such and such.” Only the written word can refer to itself: spoken words must be repeated.
It is not possible here to give a detailed account of the inner structure of the Talmud. To sum up, all we can establish is that the Talmud is the spoken word, and hence must not be confused with a “book.” The systematic of the spoken word is quintessentially different from that of the written word. A book must be constructed logically; in contrast, that which is handed down orally can only be arranged in psychological terms, or it will be lost. It is only because we are accustomed to the systematic of “books” that it is so hard for us to identify the psychological systematic of the spoken word in the Talmud.
Even after the prohibition on writing the material down was breached, and the Talmud was recorded in writing, the form in which this was done was such that it maintained its oral character. Even after being written down, the Talmud did not become a book (see Ch. V). It remained a body of oral teachings. (The extent to which this was always borne in mind is typified by the uniform page numbering of all editions of the Talmud. On any page of any tractate, in all Talmud editions, the same section is to be found. All editions have the same numbering. This is another way of supporting the memory through a visual associative factor, as it were.) The first person to understand this and grasp the consequences was Maimonides. The significance of his Halachic contribution lies, not in his thorough compilation of the rules on individual topics scattered throughout the entire Talmud, but in the fact that he was the first to reorganize the psychological systematic of the Oral Teachings into the logical systematic of the written word. Maimonides’ Mishneh Torah is the first Halachic “book” in the history of the “teachings.”
