avakesh

Rambam and Yerushalmi

This Shabbos was the tenth cycle of completion of the Rambam in Chabad and both the three chapters a day and a chapter a day made a completion Siyum. Both began their new cycles with Rambam's introduction to Mishne Torah. This provides me an opportunity to discuss a strange statement that the Rambam makes in this introduction as well as an opportunity to adress one of my loves in learning - Yerushalmi. My comments are partially based on the discussion by Heshy Zelcer in his Guide to the Jerusalem Talmud, page 30.

In his introduction Rambam writes that Rabbi Yochanan compiled the Jerusalem Talmud and the land of Israel approximately 300 years after destruction of the Temple which would be in the year 370 CE. Raavad disagrees and points out that the Mishna was completed 120 years after the destruction and that Rabbi Yochanan write Yerishalmi 200 years after the destruction. This leaves a gap of over hundred years.

Kaftor V'Perach suggests that Rambam means a different R Yochanan. This is very difficult because it is universally accepted that the R Yochanan who wrote Yerushalmi is R. Yochanan ben Naphcha, colleague of Resh Lakish, see, for example, Meiri to Sanhedrin 72b.

Chida (Maarechet Sefarim) suggests that 300 is a printing error that resulted from the abbreviation of the letter shin, which stood originally for R. Yochanan's length of life, shmonim( 80 yars), was later misread as 300. From here also came the tradition found in Seder Tannaim v'Amoraim that he lived 300 years. 

An interesting suggestion is offered by Y. Y. Greenwald in an article, Did the Editors of Bavli see Yerushalmi, published in New York , Hadar in 1954. He suggests that the Jerusalem Talmud had two editions and each one had a different editor. This explains why the three Bovos in Yerushalmi are so different in style and are much briefer than other mesechtos ( or in the language of Yerushalmi- mechiltos) in Yerushalmi. This would be because thee represent the initial edition. This is also why R. Yose bar Bun and R. Y barZ evida,presenting respectively the fifth and the fourth generation of amoraim are extensively quoted in Yerushalmi. Presumably they  were the final editors of the second edition and R. Yochanan wrote the initial "draft".

I might suggest another reason why Rambam assigns the writing of Yerushalmi to R. Yochanan. Whereas R. Yochanan is treated with great deference in Bavli, he is not considered a Tanna. Although Bavli will go to great efforts to avoid rejecting R. Yochanan's statements, occasionally it does. It usually does not say that R. Yochanan is a tanna and can disagree with a tannaitic source. That is not the case in Yerushalmi. Not infrequently, R. Yochanan is viewed as one of the last generation of Tannaim and he routinely disagrees with tannatic sources brought by Yerushalmi. For example, in Bavli Zevachim 32b, the Gemara answers, "Rav is Tanna and he disagrees", but in the same discussion it does not answer so for R. Yochanan. This means that R. Yochanan, unlike Rav, was not a Tanna. Tosafos writes in in Kesuvos 8a: "R. Yochanan was an Amora and  he did not consider Rav a Tanna and he (R. Yochanan) argued with him(Rav)". However, in Nazir 65a it says that R. Yochanan was a Tanna. This relates to what is written in Shearis Yosef(35a) and Shalsheles Hakabola, as we discussed above, that R. Yochanan lived 258 or 300 years and outlived R. Ashi. In Bava Basra 28a he appears to have learned directly from R. Ishmael (unless it is R. Yochanan ben Nuri). which is understndable if he really lived for 300 years. Responsa of Darchei Noam(p.70, siman 19) discusses these sources and concludes that Yerushalmi does not hold like Bavli and considers R. Yochanan to be a Tanna. This may be why Rambam assigns the authorship of Yerushalmi to R. Yochanan, to lend it a greater authority, while also  admitting in his Introduction that Bavli is the end-all of Mosaic tradition. Yerushalmi to Rambam was equal to Bavli in authority. He even wrote a commentary on it, entitled Hilchos HaYerushalmi. That was not the approach of Tosafot, see B.Berachot 11b, s.v. she-kevar niftar, where Tosafot state in response to a difficulty presented by a Yerushalmi: “And Ri answers that we do not accept this Yerushalmi since our Talmud does not quote it.”

ביאור הגר”א אורח חיים סימן תלו סעיף א ד”ה א”צ לבדוק
“…אבל הרמב”ם דרכו לנטות אחר הירושלמי ברוב מקומות

On the other hand, this may not be correct because Yerushalmi in general never made a strong distinction between Tannaim and Amoraim. For example, just as we find R. Yochanan arguing on Rebbi, in Peah 1:4 we find R. Yehuda Nesiah arguing on Rebbi and R. Yehuda Nesiah was Rebbe's grandson.(See Doros Hrishonim v.5, 40)

Amalgamated image of T-S F17.7 and the new discovery, T-S NS 284.120

 * The crossed-out sentence is clearly in Maimonides’ hand, as this comparison with a similar word from T-SF17.7 shows:

The joys of Yerushalmi

As I am slowly making my way through the Yerushalmi, this time with a chavrusa (so far only into the 5th chaper of Peah), a few observations are in order.

1.Yerushalmi is an enjoyable limud. It is a good opportunity to review the parallel sugyos in Bavli. They sugyos are different in many ways and you often find opinions that are not in the Bavli or are presented in a different way then in Bavli, throwing unexpected light on the entire Bavli sugya. Sometimes an explicit opinion in Yerushalmi lights up an otherwise obscure drasha in Bavli. 

2.Yerushalmi is more straightforward though not less complex. It almost never employs devices that make Bavli a sometimes frustrating experience for a beginner. It does not usually restrict a tannaitic quotation to a limited situation that the source does not seem to have in mind, it does not expand or change its meaning through Chasurei Mechsara and it almost never changes the wording.

3.On the other hand, it sometimes analogizes in wholly unexpected ways and compares disparate sources that one would otherwise never think are comparable.

4.The sugyos avoid extended argumentation, although they are less edited, making some shorter and some longer.

More to come later.....

Which is larger: Oral or Written Law?

Here is a passage in Yerushalmi Peah 2:4 which is not particularly striking but it will bring us to important "yesodos" in understanding the unfolding of Torah She Baal Peh.

E. Zeiri in the name of R. Elazar says: "I will write for him most of my Torah (Hoshea 8:12)". Was the majority or the Torah written? Rather, more numerous are things that are derived orally from what is derived from text. Is it really so? Rather, more precious are things derived orally from things derived from a text.

There is a simlar passage in Bavli GIttin 60b, where R. Elazar and R. Yochanan disagree whether most of Torah was given orally or in writing. It is not surprising that Yerushalmi reports R. Elazar's position explicitly and R. Yochanan's position as stamma d'gemora; after all, Rambam writes in the Introduction to the Commentary on the Mishan that the editor of Yerushalmi was R. Yochanan.

א"ר אלעזר תורה רוב בכתב ומיעוט על פה שנא' (הושע ח) אכתוב לו רובי תורתי כמו זר נחשבו ור' יוחנן אמר רוב על פה ומיעוט בכתב שנא' (שמות לד) כי על פי הדברים האלה ואידך נמי הכתיב אכתוב לו רובי תורתי ההוא אתמוהי קא מתמה אכתוב לו רובי תורתי הלא כמו זר נחשבו ואידך נמי הכתיב כי על פי הדברים האלה ההוא משום דתקיפי למיגמרינהו

What is more difficult to udnerstand is what this means. What does the question of whether most Torah is in writing or Oral signify and how is "most" defined.

There is a parallel Yerushalmi (Chagiga 1:8) that can throw some light on this question.

ר' זעירה בשם ר' לעזר (הושע ח) אכתוב לו רובי תורתי וכי רובה של תורה נכתבה אלא

 מרובין הדברים הנדרשין מן הכתב מן הדברים הנדרשין מן הפה וכיני אלא חביבין הדברים הסמוכין לכתב מן הדברים הסמוכין לפה

What this is saying is that there are laws. Some are connected to texts and some are connected to oral traditions. The argument is whether more are connected to a text or more are connected orally.

What does this mean?

To understand it, let me present the brief history of systemization of Oral Law as I understand it.

When Jews returned to Judea from Bavel, they brought with them a mass of unorganized traditions. There were numerous laws but they were not arranged in any kind of pattern that allowed systemization. There was just a mass or rules and precedents, each standing on its own. There were also the Pentateuch (the Law), Prophets and various other books. These books were presumably Kesuvim, since Kesuvim were not canonized  until Anshei Kneses Hagedola, as described in Bava Basra 15a. However, they could also be handbooks of laws.This is how Ben Sira (written in this period) explains it in his introduction: "My grandfather Jesu, after he had much given himself to a diligent reading of the law, and the prophets, and other books, that were delivered to us from our fathers...".

Josephus says this: "Antiquities XIII, 297, What I would now explain is this, that the Pharisees have passed on to the people a great many observances handed down by their fathers, which are not written down in the law of Moses. For this reason the Sadducees reject them and say that we are to consider to be obligatory only those observances which are in the written word, but need not observe those which are derived from the tradition of our forefathers."

Saducees apaprenlty did not disagree that there were received laws. However, they either maintained that these Laws did not any longer matter, because "times have changed", or they thought that only what was written was reliable. Both of these positions are known to us from later times.

One way to counter this was to organize Oral Law in close conjunction to Written Law.

The first to organize the traditions were the Sofrim. As stated in the Yerushalmi Shekalim 5 and quoted in Tosafos Kiddushin 30a, s.v Nikreu Sofrim, Sofrim is best translated as Enumerators and not Scribes. They arranged traditions into groups, such as: "A woman is bethrothed in 3 ways", "With 10 sayings the world was created", "FIve should not take teruma" etc etc. Essentially they made lists in order to organize the mass of traditions into some kind of a rudimentary structure. See a discussion here

Once this was accomplished, another question arose. Would it be better to now organize the traditions based on the verses of the Written Torah, which everyone knew by heart, or would it be better to organize them into a freeestanding work that has no connection of the verses. R. Ishmoel and R. Akiva chose the former and so they wrote Midrashei Halacha. Others, R. Meir, for example, composed the rudimentary Mishna, Mishna Rishona, which went on to evolve into Tosefta, Mishna and Beraysos.

The Yersushalmi and perhaps also the Bavli, want to understand which was the dominant process.

The disagreement in the Yerushalmi is whether at the intial point of systemization, most traditions were organized according to the verses (written) or in a freestanding rudimentary mishnaic type arrangement (oral).

What did they know and when did they know it?

Did the Tannaim know everything in Torah?

At first glance the answer should be "No". After all, does not the Gemara write in Temura 14 that 300 chalochos were forgotten during the mourning period for Moshe and Yehoshua had to restore it by his reasoning(Temura 14).  As previously discussed, Geonim find in this fact the explanation of machlokes in the Talmud and Rambam has a different view.

The common hashkofo is certailny unlike this. What is routinely taught in the yeshivos is that the Sages knew everything, certainly in Torah matters and even in scientific matters. The problems that this raises are dealt with in other ways.

This approach seems to be corroborated by the fact that Amoraim do not argue on Tannaim, Rishonim did not argue with Amoriam and we do not argue with Rishonim. Is this not because the Sages knew everything?

There are many explanations of why Amoraim did not argue with Tannaim. In his excellent, "The Dynamics of Dispute", on p. 123, R. Zvi Lampel offers an interesting novel explanation. He suggests that Amoraim did not argue on Tannaim because they were not sure or the nature of many halochos that are interpsersed in Mishna, Tosefta and Beraisos; they did not know if some of them were of Sinaitic origin (Halacha L'Moshe MiSinai) and therefore, Amoraim did not want to argue with Tannaitic halochos.

He supports it with the mishna in Peah 2:5. This is an important mishna because it reports a testimony of Nahcum Halablar from R. Meisha about a halacha that he traces to the Prophets as a Halacha L'Moseh Misinai. In the ensuing Yerushalmi discussion, an interesting statement is made:

"R.Zeira said in the name of R. Yochanan: If a halacha comes to you do not brush it aside and replace it with another one, for many laws were told to Moshe at Sinaia and they are submerged into the MIshna. R. Avin said: That is so true! "Two types of grain", had Nachum Halablar not come and explained that it is Sinaitic, would we know that?"

R. Lampel explains that this passage expresses that Amoraim did not always automatically know which mishna contained a Sinaitic teaching and which did not. He uses it to explain that this is why they would not, as a rule, argue on Tannaim.

When I first read this a number of years ago I thought that ti was an interesting suggestion but I wondered whether this may be peculiarly an Yerushalmi thing. In other words, I wondered why we do not find such a statement anywhere in the Bavli. Furthermore, I thought that it may be something specific to. R. Yochanan, who, as Rambam writes in the Introduciton to Pirush Hamosnahyos, was the editor of Yerushalmi. After all, R. Yochanan himself has no difficulty in arging with Tannoim, certainly in many places in Yerushalmi and even occasionally in Bavli.

In Bavli Zevachim 32b, the Gemara answers, "Rav is Tanna and he disagrees", but in the same discussion it does not answer so for R. Yochanan. This means that R. Yochanan, unlike Rav, was not a Tanna. Tosafos writes in in Kesuvos 8a: "R. Yochanan was an Amora and  he did not consider Rav a Tanna and he (R. Yochanan) argued with him(Rav). However, in Nazir 65a it says that R. Yocnanan was a Tanna. This relates to what is written in Shearis Yosef(35a) and Shalsheles Hakabola that R. Yochanan lived 258 or 300 years and outlived R. Ashi. In Bava Basra 28a he appears to have learned directly from R. Ishmael (unless it is R. Yochanan ben Nuri) and there is that difficult statement of Rambam in the Introduction to Mishna that R. Yochanan edited Yerushalmi 300 years after the destruciton of the Temple (and it was really closer to only 100 years after). Responsa of Darchei Noam(p.70, siman 19) discusses these sources and concludes that Yerushalmi does not hold like Bavli and considers R. Yochanan to be a Tanna. Personally I think that Yerushalmi never made a strong distinction between Tannaim and Amoraim. For example, just as we find R. Yochanan arguing on Rebbi, in Peah 1:4 we find R. Yehuda Nesiah arguing on Rebbi and R. Yehuda Nesiah was Rebbe's grandson.(See Doros Hrishonim v.5, 40)

Since R. Yochanan felt unhindered in arguing with Mishna, he provided a reason for why his students could not do so; hence, the statement of R. Zeira in the name of R. Yochanan. There are other reasons why one may not argue. As R. Lampel discusses, a student should not argue against his teacher; it is inadvisable to argue against an established opinion or against someone who lived two generation ago or earlier.  These considerations are not as categorical as the rule that Amora should not argue on a Tanna but they carry weight nevertheless. A similar consideration is the one that R. Yochanan provided to R. Zeira - don't argue on Tannaitic sources because many Halachas L'Moshe Misinai may be contained in them.

It seems to me that it is specifically Yerushalmi that holds of this principle. There is an explicit passage in Yerushalmi Peah (2:1,10b). I will avoid the actual issue under the discussion becasue it is complicated but suffices to say that it is about the halacha that streams, paths and canals separate fields so as to render a single field like two different fields and Peah needs to be given from each one and not from one on both. There are different textual variants but the one I focus on is the one that says that this halacha is
"mechuvar" or not "mechuvar". Mechuvar means "clear". It is the variant that fits best into the text and the one selected by ArtScroll. Gra, Mahram Chaviv and Rash Sirilo use this variant. In it, Yerushalmi is asking wheter this halacha, that canals etc separate fields, or if the very concept of separating fields with physicial barriers, is "clear" or "not clear". What this means is: "Do we know if this mishnaic halacha is Biblical or not Biblical?" Yerushalmi attemtps to bring proofs from the fact that certain conditons (Saar Kotesh) invalidate these barriers to the fact that it is not Biblical. We see, however, that Yerushalmi felt comfortable in assuming that we do not know the source of some halachos in the Mishan and calls them "not clear". In contrast, I cannot remember a passage like this in Bavli. There can be in Bavli disagreements between different Amoraim on whether a law is Biblical or Rabbinic but stamma of Gemara never says that it is not "clear"

Are the 13 rules of interpetation Sinaitic?

The 13 principles of interpretation are at the center of Talmudic interpretative science. They are basic and foundational and usually understood to be Sinaitic in origin.Sefer Hakrisus (1;Batei Middos9:5) says that there cannot be a dispute regarding these rules. It is interesting that the Yerushalmi seems to see these essential rules in a different light.

The rule in question is the 11th of the13 prinicples of R. Ishmael.

Let us first take a step back and understand some background. TheTorah repeats many passages, which requires an explanation. There are five types of repetitions that one finds in the Torah, all of which are explained by the Rabbis.

1. A prohibiton is repeated. This is explained on the basis that, "we do not punish unless we harned". One of the passages containing a prohibiton is understood as being a "warning(azhara" not to do a certain thing and another one is understood as providing the penalty or punishment for transgressing it. Sometimes this is the pshat and sometimes it is supported though a drasha. Usually (but not always) the assignment of warning and prohibition is quite sensible as one of the verses does sound like a warning and the other one is clearly a penalty.

2.Exact repetition of the same prohibiton. This is explained by saying that Torah wanted to assign two prohibitions to someone who transgresses this particular commandment -"La'avor alov bshnei la'avin".

3.A story or teaching is repeated - to teach us a lesson, such as two retellings of the conversation between Abraham's servant and Rivka's family.

4. A repetition is to import a stringency or a leniency into the particular case which is repeated, or to thell us something about what the general rule is - R. Ishmael's rules 9-11.

5.An repetition of a phrase or a few words that were already taught in a similar case. This is explained by the 11th principle: The particular implied in the general and excepted from it on account of a new and reversed decision can be referred to the general only in case the passage under consideration makes an explicit reference to it.

The reason for the repetition is to apply general rules to a law or situation that in another passage was given a unique and conflicting law and thus was taken out of the general class adn amde into an exception. For example, in Vaykra 14:13 we were told that the asham of metzorah is like olah and has the same law. On the face of it this is a meaningless repetition because we were already taught the same principle, that asham is like olah, in Vaykra 7:7. However, the reason for the repetition is that asham of metzora was given a unique status because it requires putting the sacrificial blood on the great right toe of the metzora. Usually blood is placed on the altar, not toes. One might think that the sacrificial of metzora should not require blood on the altar at all, only on the toes; therefore, the comparison between asham and olah had to be repeated in the passage that relates the laws of the metzora.

Interestingly, in Yerushalmi Peah CH. 1, 5 (daf 8:) we find that whether this principle even exists is a matter of dispute between R. Ishmael and Rabbis. The issue is Peah, which  Yerushalmi sees as stated by wheat and repeated by grape fields. R. Ishamels explains it by saying that since grapes were subjected to a unique halacha of olelos, they became a unique case and we might think that Peah does not apply to grapes. Therefore Peah as repeated (via a drasha) by grapes.

But, Yerushalmi asks, that is fine according to R. Ishmael who holds of the principle but how would rabbis explain why it is repeated... and it aswers this question. What you do see, however, is that in something as basic as the existence of one of the Thirteen rules of interpretation, Rabbis do not agree with R. Ishmael.

Perhaps, the scholars of Yerushalmi did not see the 13 principles of R. Ishmael in the same light as did Babyonian scholars. After all, we know these 13 principles fomr the introduciton to the Sifra, which is called Sifre D'/Bei Rav. It was Rav who arranged and wrote it done - in Bavel. Perhaps is Eretz Isroel they continued to use Hillel's 7 principles, or perhaps they did not agree that R. Ishmael's rules were Sinaitic. As we discussed in the past, they may be nothing more than provisonal rules of hermeneutic logic and may be that is how they were viewed in Eretz Isroel. This is similar to the opinion of Doros Harishonim.

In conclusion, I suggest that Yerushalmi did not see the 13 principles as Sinaitic but rather as logical and therefore, subject to dispute.

In general, R. Ishmael was reluctant to be dogmatic about drashos. He would not consent to attach a sentence of death, or even a fine, to a crime or misdemeanor on the strength of a mere inference, however logical, where no such punishment is clearly stated in Scripture (Yer. 'Ab. Zarah v. 45b), or to draw a rule from a law itself based on an inference (Yer. Ḳid. i. 59a).

See also here

Shiurim

A legal system requires measures. In common law, for example, there are limits on the amounts that can be claimed in a small court case, or of a time period after which a claim may be filed (statute of limitations), or a cap on monetary awards in certain cases. A law system cannot exist without limits.

In Torah law, limits are called shiurim. Eating chomtz on Pesach has a shiur of kazais for the penalty of kares(extirpation) and any amount for being prohibited. A dead sheretz(crawling creature) larger than a bean (adasha) causes impurity but smaller than an adasha does not cause impurity. One has to say a blessing after eating an olive size of food and so on.

Torah usually does not tell is what these shiurim are. It often does for time: how long does take for a sacrifice to become pasul, how long to celebrate Passover, at what time to bring Omer. With the exception of the measurements of Temple vessels, it almost never tells us how large or small something has to be, or what price a sacrifice should be. There are exceptions: Asham of 2 shekalim, thirty shekalim for one whose ox kills a slave, erachin and others, but usually not.

Yet, for practically everything, we know that there is a shiur. Where do the shiurim come form?

There are three possiblities. They could be entirely rabbinic, either completely rabbinic or rabbinic but with a Biblical sanction for rabbis to define shiurim. They could also be halacha l'Moshe Misinai(Sinaitic ir origin and orally transmitted since Sinai) or they could be derived through drasha.

The discussion in Bavli considers these possiblities in Sukkah 5b, Eruvin 4a and Brochos 41b, Pesachim 80a. In Brochos the conclusion seems to be that shiurim are rabbinic and in the other places that they are Sinaitic but attached to a verse by asmakhta. Here is the quote from Brochos.

 ואידך הני שיעורין בהדיא מי כתיבי אלא מדרבנן וקרא אסמכתא בעלמא

Of note, in Yerushalmi, it is explicit that whether shiurim are rabbinic or Sinaitic is a disagrement of R. Yochanan and R. Oshiah.

דמר ר' יוחנן מעה כסף שתי כסף דבר תורה תנא רבי יוסי קומי רבי יוחנן ראיה כל שהוא חכמים הן שאמרו מעה כסף שתי כסף א"ל ויש כעין זו א"ר יונה וכל השיעורים לא חכמים הן שנתנו כזית מן המת כזית מן הנבלה וכעדשה מן השרץ

In fact, R. Oshiah advised that one should write down his tansgression and the exact  amount with which they were committed, since there is no Temple and they cannot be atoned for immediately, and in some future time Rabbis can changed the size of shiurim and require a recalculation of what the sinner must bring. This is also found in Bavli Yoma 80a, where it is explained that they may say that instead of an average olive, we should use a large olive. For some reason this is not cosnidered a violation of the principle that a subsequent Beis Din cannot overturn the rule of a prior Beis Din, unless the later Beis Din is greater. But Bavli does nto connect it to a view the shiurim are Rabbinic in roigin.

Yerushalmi Peah:

אמר רבי יוסי בר בון רבי יוחנן כדעתיה דרבי יוחנן אמר כל השיעורים הלכה למשה מסיני דו אמר מעה כסף שתי כסף דבר תורה רבי הושעיא כדעתיה דרבי הושעיא אמר האוכל איסור בזמן הזה צריך לרשום עליו את השיעור שמא יעמוד ב"ד אחר וישנה עליו את השיעורים ויהי' יודע מאיזה שיעור אכל

It seems that R. Oshiah understands shiurim to be completely rabbinic, not that Torah gave Rabbis the authority to define shiur(as Gro says in his commentary to this yerushalmi), for had that been the case, a subsequent court cannot change shiurim once they were defined.

That Torah gave the rabbis the authority to define various laws, is already found in the Rishonim;this view was enunciated again and again in our day by the Chazon Ish (See Chazon Ish E'H 22,3; Y"D 5:3, Ch'M Nezikin 11:1, 8:1, Kovetz Inyanim pp. 194-197).

The hashkafic significance of the view the shiurim are rabbinic is,of course, great. It is surprising thate some of the Rabbis, certainly according to Yerushalmi, saw such a central and crucial concept of law as being rabbinic in origin.

Perhaps, it is because, as important as halacha is, it is just not as important as moral teachings, so it was left to Rabbis. (Bereshit Rabbah 60,11):"Said R. Aha: The table-talk of the servants of the patriarchs' households is more notable (literally: beautiful) than the scripture (Torah) of their descendants. Eliezer's story is recorded and recapitulated, taking up to three pages, whereas one of the fundamental rulings of the Torah, to the effect that the blood of a creeping thing defiles in the same way as its flesh, is only known to us through the superfluity of one letter in the Scriptures."

Here is another example:

Genesis Rabbah, Parashah 44

"The Mitzvot were given only to purify humanity. For what difference does it make to the Holy One, blessed be He, if one slaughters an animal at the throat or at the nape of the neck? Lo, the sole purpose is to purify humanity."

See also the distinciton in Moreh Nevukhim 3:28 between necessary laws and true ones.

Aruch L'Ner in Sukkah posits that there are two different kinds of shiurim. As I understand him, and there are other ways to understand what he says, there are logical measures. Everyone measures a meal as half a laof of bread, everyone recognizes that an olive is a minimum kind of "eating". Torah did not have to legislate these concepts and rabbis simply formalized them. I would say that ll that Rabbis did is say that "Botla Daato etzel kol adam". Once Rabbis defined these shiurim no individual could claim that his meal takes longer or that he is sated with something less than grogeres.  On the other hand, in purity and impurity there is no such consensus. Why should a sheretz cause impurity above a size of a bean? Why not a hair or a stone? These "illogical" shiurim were received from Sinai. When Yerushalmi reports a view that shiurim are rabbinic, it only discussed the former kind.

The elephant in the room is the mishna that explicitly says that shiurim were made by rabbis. Aruch L'Ner implies that these mishnayos in Keilim 17 speak of "logical shiurim" but that is far from obvious. Here is one of the representative mishna from Keilim: "ח  כזית שאמרו--לא גדול ולא קטן, אלא בינוני:  זה אגורי.  כשעורה שאמרו--לא גדולה ולא קטנה, אלא בינונית:  זו מדברית.  כעדשה שאמרו--לא גדולה ולא קטנה, אלא בינונית:  זו מצרית.  כל המיטלטלין מביאין את הטומאה בעובי המרדע--לא גדול ולא קטן, אלא בינוני.  איזה הוא בינוני, כל שהיקפו טפח"

There are other indications that a later Beit Din can change an etablished halacha. An example is what Ruth Rabbah says to explain why Ploni Almoni was afraid to marry Ruth (4:6) "lest I destroy my inheritance".He was afraid that a subsequent Cort will darshin that the prohibiton to marry a Moabite includes also Moabite women. Yevamot
76b-77a reports that a debate broke out about David's fitness for the throne, when Doeg the asked why are you debating is fitness to be king, when it is not even clear that he is fit to marry into he nation, since he is a descendant of Ruth the Moabite.  Whereupon the
answer was given Amoni v'lo Amonit, Moavi v'lo Moavit.  To which Doeg
replied, if so why not Mitzri, v'lo Mitzrit and mamzer v'lo mamzeret?  They
replied mamzer means mei am zar, which includes males and females
and then concerning amon and moav they cited the verse "since they did
not provide you with bread and water..."  But Doeg even had an answer
for that verse, the men should have provided bread and water to the
men and the women should have provided bread and water to the
women.  The gemara says that they were silent, unable to counter Doeg.
Doeg's objection was not refuted until Itra came and threatened to kill
anyone who rejected the drasha Moavi v'lo Moavit which he claimed to
have heard directly from the beit din of Shmuel ha-ramati.  

Rambam in Mamrim 2:1 that the beit din ha-gadol has he authority to change the halachah of a previous beit din based on its own understanding of the
relevant Biblical verses. See also here

You see here that this license does not extend to a Halacha L'Moshe MiSinai.
Form this passage in Yerushalmi you can see that R. Oshiah, who holds that shiurim are rabbinic, says that the same way a drasha can be change, so can a future Beis Din re-legislate the shiurim. R. Yochanan, who holds that shiurim are Sinaitic, has no concern that a subsequent beit din will change the shiurim.

 You might say, who would even think of changing Sinaitic Laws. However, that is another discussion.

 

Rashi and Yerushalmi

I started a new series on Yerushalmi. Finally, after three years of searching and learning it on my own  I was able to find a talmid chochom interested in Yerushalmi to learn it b'chavrusa - very exciting, B'H. 

I present some observations on the material that we learn, right now in Peah. The goal is to make interesting points that are not excessively technical and do not require immersion in a particular sugya and are also of universal interest.

In the very beginning of Peah we find the list of things that do not have a measure(shiur). They, with 6 more items that come, no one knows from where, are recited every morning after Berkas Hatorah (See Shabbos  127 and Tos. Brochos 11b)

The gemora asks: "Why Teruma is not listed in this mishna like Peah?" To simplify, it answers that Teruma does have a measure, in that you cannot make all of your field Teruma but you can make all of your field Peah. In other words, there is no upper limit to Peah but there is an upper limit to Teruma and it, therefore, does not belong in our mishna, which lists examples of things that have no limit.

רבי בנימין בר לוי אמר רבי יצחק ורבי אמי הוון יתבון מקשיי למה לא תנינן תרומה עמהן..... אמר רבי יוסי אדם עושה כל שדהו ביכורים ואין אדם עושה כל שדהו תרומה התיבון הרי הוא אומר פיאה והרי אין אדם עושה כל שדהו פיאה ותניתה א"ר יוסי קצירת שיבולת הראשונה דומה למירוחו עד שלא קצר השיבולת הראשונה לא נתחייבה שדהו בפיאה משקצר שיבולת ראשונה נתחייבה שדהו בפיאה ביקש לעשות כל שדהו פיאה עושה ברם הכא עד שלא נתמרח הכרי לא נתחייב כריו תרומה נתמרח ביקש לעשות כל כריו תרומה אינו עושה

The interesting thing is that Rashi asks the same question in Chulin 136b (s.v.deoraisa) and answers compltely differently and without mentioning this prominent first Yerushalmi in Peah. Rashi's answer is in itself interesting. He says that Teruma is different in that min hatorah there is no punishment if one gave the minimum; even one grain exempts the entire grain heap in regard to punishment. However, ad initio(lechatchila) one must separate off one sixtieth, one fiftieth or one fourtieth. My chavrusa pointed out that there is discussion in R. Yosef Engel, he thought in Beis Haotzar, about whether there is such a thing as lechatchila and badieved on the Biblical level. This Rashi explicitly says that there is.

 

Some scholars claim that Rashi's citations of Yerushalmi originate from other sources and that he himself never saw a copy of an Yerushalmi(p.22). A generation later however, Rashi's students and sons-in-law freely quote from Yerushalmi; so it seems that a copy became available to them in the intervening years.

To me it seems more likely that Rashi himself obtained a manuscript of Yerushalmi after his Kuntres was already written. He did not rewrite it because of this discovery but added to it some of Yerushalmi material as glosses. This explains why he repeatedly does not cite a crucially important Yerushalmi passage in some places but does so in others. When he does, it is usually easy to insert explanation of words, terms and the like. One example of where Rashi mentions a Yerushalmi is when explaining the modest conduct of Kimchis, the mother who merited to see seven sons serve as High Priests.See also Rashi quoting a Yerushalmi about why TU b'Av is a holiday in Taanis 30a and Bava Kama 117a. In many of these instances, Rashi explains terms and events based on the Yerushalmi but he rarely explains the entire sugya based on Yerushalmi.

R. Yeshoshua Cohen in Kerem Yehoshua, a fascinating small work that argues for importance of bekius, takes up this quesiton. He says (hat tip here): "In the more than 500 disagreements between Rashi and Tosfos which are connected to the Jerusalem Talmud, we see that Rashi never adopts the viewpoint of the Jerusalem Talmud, while Tosfos always does. This cannot be merely because Rashi lacked certain parts of the Yerushalmi while the Tosafists, who lived 100 years later, had these parts. Rather, in my humble opinion, when we closely examine these disagreements between Rashi and Tosfos, we will find that in the cases where Rashi interprets contrary to the Jerusalem Talmud, the Jerusalem Talmud cannot be easily reconciled with with the wording of the Babylonian Talmud. Thus Rashi simply remained true to his tradition that Ravina and Rav Ashi, the compilers of the Babylonian Talmud, always wrote in such a way that anyone could understand their words. Based on this tradition, he maintained that if the Babylonian Talmud had agreed with the Jerusalem Talmud, Rav Ashi and Ravina would have written their text to express this agreement more clearly. They would have stated the law in phraseology parallel to that of the Jerusalem Talmud; or they would have restricted the law to the same specific case to which the Jerusalem Talmud restricted it. If they did not do so, this shows (according to Rashi) that they disagreed with the Jerusalem Talmud.

The Tosafists' opinion, however, maintained that not evey law in the Babylonian Talmud is stated in the clearest possible way. Rather, Rav Ashi and Ravina, in order to sharpen their students, would occasionally teach a law without mentioning that it applied only to a certain restricted case. Wherever there is an apparent disagreement between the Babylonian Talmud and Jerusalem Talmud - for example, where the Babylonian Talmud presents a law as being broadly applicable, while the Jerusalem Talmud presents it as applying to one restircted case - Tosfos reasons as follows: why should we assume the Babylonian Talmud disagrees with the Jerusalem Talmud? Let us assume instead that the Babylonian Talmud agrees that the law applies only to one restricted case, but this is one of those places where Rav Ashi and Ravina deliberately did not mention it. Although this involves interpreting the Babylonian Talmud in a way that does not fit the plain meaning of the words, Tosfos does not see this as far-fetched. Tosfos maintains that such occasional discrepancies were intentional. According to Tosfos, it is better to interpret the Babylonian Talmud in this way than to assume a disagreement between it and the Jerusalem Talmud."

I met R. Cohen 25 years ago in Philadelphia, where both of us were visiting for Shabbos. Until that time I fancied myself a boki and it was a rude awakening to encounter someone who truly was a boki in the style of past generations, able to cite every place where any  statement of Chazal is found. I still remember how I mentioned a certain Chazal during our conversation and he challenged me to say from where it came. I guessed wrong and he cited it in every place where it appeared, plus. I was perturbed the whole Shabbos, which was a good thing. Such things are good, for they make you grow.