Neusner’s Theology of the Oral Torah, chapter 10

Here are links to previous installments in my series of notes on Jacob Neusner’s The Theology of the Oral Torah: Revealing the Justice of God (McGill-Queen’s University Press, 1999):
Introduction and Chapter 1, Chapters 2 and 3, Chapters 4 and 5, Chapter 6, Chapter 7, Chapter 8, and Chapter 9.

This entry covers Chapter 10, Intentionality, of Part III, Sources of World Disorder, beginning with a quote to set the tone of the chapter, looking both backward and forward, to previous chapters and those yet to come:

The theology of the Oral Torah now realizes in its fullness the theological anthropology set forth in the relationships of complementarity and correspondence. Here that theology explains who is man. Complementary with God in some ways, corresponding in others, man bears a single trait that most accords with the likeness of God: it is his possession of free will and the power of the free exercise thereof. In his act of will God makes just rules, and in his, man wilfully breaks them. (p. 411)

The same freedom of will that allows God to choose to create and advocate for, through Torah, a perfect world, is the same agent of man’s creation of an imperfect world. The intent of God is overthrown by man’s choices. The perfect world of God’s justice as created, the embodiment of love in every respect, requires that man possess a free will. God’s commandments offer to man the way to maintain and thus harvest the fruits of that perfect world, but man may also disobey, and has, suffering the entirely just consequences.

For the sages, therefore, it was man’s rebellion, beyond God’s control but within God’s dominion, that explains change. And change, imperfection, the ephemerality of affairs–these signal the actualities of disorder in a world meant for perfection, stasis, balance throughout. God proposes, man disposes. Chaos begins not in God but in man, in that trait of man that endows man with the same power that the Creator has, to conceive and to do. Since God has made an orderly world, ony his counterpart on earth, man, can account for the disruption of world order. For the sole player in the cosmic drama with the power to upset God’s plans is man. He alone is like God, “in our image, after our likeness.” In their penetrating reflection on the power of intentionality, the sages explain chaos, and that prepares the way for their investigation of sin and its remedy. (pp 411-412)

There is no middle ground–only unchanging perfection or everchanging chaos, one life-bringing, the other death-dealing. Man can choose to corrupt perfection through change, or man can choose to preserve and recover perfection through acts of obedience and zekhut as described earlier. Free will is expressed not merely in intention, but by deeds. Free will itself allows man to choose, because God is just, which deeds he will maintain the world by.

Neusner describes the project of this chapter as tracking down in the Oral Torah that evidence of a systematic character which supports this conception that free will as expressed in intentionality lies at the heart of the system. So it is necessary to examine enforced norms of behavior, those required by law, and see how issues of intentionality are reflected therein, particularly as these are found in the determination of punishment. Such laws in the Oral Torah are of two types: 1.) those designating the responsibility of institutions established for the purporse of governing, and 2.) norms of conduct proper, not merely belief.

The theological politics of the sages reflect no historical situation of Israel, nor do they reflect Israel’s future situation in the world to come. They are thus something of an idealized thought experiment in the application of Torah: what would the ideal society in this world resemble? This system is tripartite in nature: the royal palace with its king, the Temple with its high priest, and the court with its sages. In the Mishnah and throughout the Oral Torah, these are the three authorities to whom enforcement, the legitimate application of violence and sanctions, is presumed. The precise myth of that system’s acquisition of that legitimation is nowhere explicitly give, though there are implicit intimations to be explored. Neusner describes this program of exploration:

Since the analysis of sources will prove somewhat abstruse, let me signal in advance the main line of argument. Analysing myth by explaining sanctions draws our attention to the modes of legitimate violence that the system identifies. There we find four types of sanctions, each deriving from a distinct institution of political power, each bearing its own mythic explanation.
1.) what God and the Heavently courts can do to people;
2.) what the earthly court can do to people (the legitimate application of the worldly and physical kinds of violence of which political theory ordinarily speaks);
3.) what the cult can do to people (the cult through its requirements can deprive people of their property as legitimately as can a court); and
4.) conformity with consensus–self-imposed sanctions (here the issue is, whose consensus, and defined by whom?) (pp 415-416)

It is in the difference between these forms of sanctions and the different coercions, some of physical and some of psychological nature, legitimate to each, in which we can discern distinct legitimation myths. In examining the four, the first is entirely distinct–God in Heaven. Yet in what way do the other three appeal to the authority of that same God in Heaven? Do we observe overlapping or entirely distinct jurisdictions? Are we told which laws are assigned to which jurisdiction for enforcement? A survey of the sanctions is thus necessary.

Neusner adduces as a fairly common example Mishnah Baba Mesia 5:11–

A. Those who participate in a loan on interest violate a negative commandment: these are the lender, borrower, guarantor, and witnesses.
B. Sages say, “Also the scribe.”
C. They violate the negative commandment, “You will not give him your money upon usury” (Lev. 25:37); “You will not take usury from him” (Lev. 25:36); “You shall not be a creditor to him” (Ex. 22:25); “Nor shall you lay upon him usury” (Ex. 22:25); and they violate the negative command, “You shall not put a stumbling block before the blind, but you shall fear your God. I am the Lord” (Lev. 19:14). (p. 417)

Here the appeal is self-evidently to Scripture to justify obedience and impose sanction for disobedience. And yet, the authority responsible for enforcement is unnoted, the sanction is unmentioned–whatever the political myth lying behind this passage, it is entirely unstated. And this is common to much of the Oral Torah. And yet there are implied and occasionally explicit statements that help in the exploration of the topic.

What is certain is that there is a lack of similarity between the institutions (aside from God) responsible for enforcement in Written and Oral Torah. The sages expressly reject a charismatic source of authority as found among the prophets and predicated by the original context of the Written Torah: the prophet par excellence Moses. The revelation of Torah to Moses is obviously known, though no paraphrase or summary of this is provided in the Mishnah; it is not held up as an example. Resort to the direct intervention of God for punishment is likewise not used to justify day to day obedience: do this or God will get you. That is not the basis of this political myth, at least of its fully elaborated form. It is only certain violations that provoke God’s direct intervention in punishment. However, if God is only rarely directly involved, what, then, legitimizes the other authorities, king, priests, and sages?

And yet the sages’ system presupposes routine and everyday obedience to power, not merely the utilization of legitimate violence to secure conformity. That is partly becasue the systemic statement tells very few stories. Matters that the Pentateuchal writers expressed through narrating a specific story about how God said thus and so to Moses in this particular case, rewarding the ones who obeyed and punishing those who did not, in the Mishnah come to expression in language of an allusive and philosophical, generalizing character.

Here, too, we discern the character of the myth even before we determine its contents. While we scarcely expect that this sort of writing is apt to spell out a myth, even though a myth infuses the system, we certainly can identify the components of the philosophical and theological explanation of the state that have taken mythic form. (p. 422)

This is a very interesting point being raised by Neusner, drawing on his focus on the Oral Torah’s documents as systematic compositions rather than compilations. Here, he posits that the same presumption of the audience’s obedience is present in the Written Torah and the Oral Torah, though expressed differently, in the former through Scriptural narrative, in the latter through the systematized language of the Mishnah. And this is the outline of the organizational structure of the political theology that Neusner finds (emphasis his):

First, of course, in the structure comes God, who commands and creates, laying out what humanity is to do, exercising the power to form the social world in which humanity is to obey God then takes care of his particular concerns, and these focus on deliberate violation of God’s wishes. If a sin or crime in inadvertent, the penalties are of one order, if deliberate, of a different order. The most serious infraction of the law of the Torah is identified not by what is done but by the attitude of the sinner or criminal. If one has deliberately violated his rule, then God intervenes. If the violation is inadvertent, then the Temple imposes the sanction. And the difference is considerable. In the former case, God through the Heavenly court ends the felon’s or sinner’s life. Then a person who defies the laws–as these concern one’s sexual conduct, attitude towards God, relationships within the family–will be penalized either (if necessary) by God or (if possible) by the earthly court. This means that the earthly court exercises God’s power, and the myth of the system as a whole, so far as the earthly court forms the principal institutional form of the system, emerges not merely in a generality but in all its specificity. These particular judges, here and now, stand for God and exercise the power of God. In the latter case, the Temple takes over jurisdiction; a particular offering is called for, as the book of Leviticus specifies. But there is no need for God or the earthly court in God’s name to take a position. (pp 422-423)

This general depiction of the outline of the political myth of the Oral Torah will be fleshed out through an examination of sanctions imposed for various sins or crimes. Overlapping and separate jurisdictions are mapped to four classifications of penalties, as touched on in relation to the description of the jurisdictional authorities above:
1.) penalties imposed by heaven
2.) penalties imposed by political institutions
3.) penalties imposed by religious institutions
4.) coercion by public opinion
Mishnah tractates Sanhedrin and Makkot cover in detail a range of punishments for sins, in which the various penalties and their enactors are specified according to intent. For deliberate actions, Heavenly extirpation (death before one’s natural time) is the penalty for sexual crimes (incest, homosexuality, bestiality), religious crimes against God (blasphemy, etc), and religious sins against God (unclean person eating Holy Things, etc). The earthly court imposes the death penalty as the result of deliberate sexual crimes (incest), religious crimes against God (identical to the extirpation-inducing list), religious sins against family (cursing parents), social crimes (murder, etc), and social sins (contempt of court, false prophecy). For various inadvertent sins and crimes, however, there is no death penalty, but distribution among the earthly court, Temple, and community of the imposition of punishments, including flogging and exile by the court, obligatory offerings and flogging in the Temple, and shunning or approbation from the community. Mishnah Keritot 1:1-2 covers sins/crimes systematically compiled from Scripture. As described above, deliberately committing any of the thirty-six acts described, the actor is liable to extirpation, but if any were done inadvertently, a sin-offering is required, and if one is uncertain whether one has committed the sin/crime, a suspensive guilt-offering is required.

Looking at the correspondence in the list of crimes invoking either extirpation by Heaven or, with sufficient evidence, the death penalty administered by the earthly court, the items are identical in the category of religious crimes against God. This shows that in this system the earthly court is systematically represented as the counterpart of the Heavenly court. Both impose death for the same sins or crimes in these cases. But each, the Heavenly and earthly courts, likewise reserve jurisdiction over other deliberate crimes or sins. Yet when any of these are non-deliberate, the Temple gains jurisdiction and imposes offerings (a fine in the form of transfer of property from the individual to Heaven, as mediated through the Temple’s sacrificial offering system) based upon certainty of having committed the crime or sin. Thus, intentionality, the will of the human actor, is the primary determinant for penalization, with certainty a somewhat distant second, having an effect on the penalty for inadvertent transgression. But intentionality, the expression of free will, lies at the heart of this system’s organization, and so we’re given more insight into the myth inspiring the political theology in play here:

A sinner or criminal who has deliberately violated the law has by his action challenged the world order of justice that God has wrought. Consequently, God or God’s surrogate imposes sanctions–extirpation (by the court on high), or death or other appropriate penalty (by the court on earth). A sinner or criminal who has inadvertently violated the law is penalized by the imposition of Temple sanctions, losing valued goods. People obey because God wants them to and has told them what to do, and when they do not obey, a differentiated political structure appeals to that single hierarchizing myth. The components of the myth are two: first, God’s will, expressed in the law of the Torah, second, the human being’s will, carried out in obedience with the law of Torah or in defiance of that law. (p. 432)

Neusner adduces two Scriptural narratives as first detailing this differentiation according to intent: the Garden of Eden (Genesis 2.15-3.19), and Moses hitting the rock (Numbers 20.1-13). In the first we deal with not only the origins of the world order, requisite for this investigation, but the differentiation of punishments according to the intention of the party involved: the serpent’s deliberate sin brings the greatest punishment (a personal curse), while Eve is punished by suffering during childbearing, and Adam works a cursed earth. Yet these (despite the warning in Genesis 2.17, “in the day that you eat of it you shall die”) do not enact extirpation. This we find in the Numbers passage and afterward. It is precisely the deliberate disobedience of Moses and Aaron, manifested in Moses striking the rock rather than ordering it to give water, which leads to Aaron and Moses dying before entering the Land: early death, or extirpation.

The political myth of the Oral Torah emerges in the Mishnah in all of its tedious detail as a reprise–in now-consequential and necessary detail–of the story of God’s commandment, humanity’s disobedience, God’s sanction for the sin or crime, and humanity’s atonement and reconciliation. The Mishnah omits all explicit reference to myths that explain power and sanctions, but it invokes in its rich corpus of details the absolute given of the story of the distinction between what is deliberate and what is mitigated by an attitude that is not culpable, a distinction set forth in the tragedy of Adam and Eve, in the failure of Moses and Aaron, in the distinction between murdern and manslaughter that the Written Torah works out, and in countless other passages, in the Pentateuch, Prophetic Books, and Writings. Then the Mishnah’s halakhah sets forth a politics of life after Eden and outside Eden. The upshot of the matter is that the political myth of the Oral Torah sets forth the constraints of freedom, the human will brought to full and unfettered expression, imposed by the constraints of revelation, God’s will made known. (p. 434)

So, again we’re confronted with the roots of Oral Torah in Scripture. The deeply reflective nature of the Mishnah is not immediately apparent to the superficial reader. Yet here we find another example of a principle abstracted from the Scriptural narratives and used as a paradigm to construct, in this case, an expandable system of justice. The paradigm, rather than case law or statutory law exclusively, is the generating principle behind the Mishnah’s halakhah. There is much reference to the various laws recorded in Scripture, to be sure, but a different organizational mentality is apparent in the Mishnah, sifting, summarizing, and organizing much differently than Scripture does as seen in Leviticus and elsewhere where a large grouping of legal subjects appear. One cannot say that halakhah comes directly from Scripture precisely because of the intermediate step between the two of the paradigm extracted from Scripture, which then is used to generate halakhah. In this case, the paradigm is that of intentionality affecting punishment.

Power comes from two conflicting forces, the commanding will of God and the free will of the human being. Power expressed in immediate sanctions is also mediated through these same forces, Heaven above, human beings below, with the Temple mediating between the two. Power works its way in the interplay between what God has set forth in the law of the Torah and what human beings do, whether intentionally, whether inadvertently, whether obediently, whether defiantly. That is why the politics of the Oral Torah is a politics of Eden. True, we listen in vain in the creation myth of Genesis for echoes resounding in the shape of the institutions such as those the theology of politics actually invents. But the points of differentiation of one political institution from another will serve constantly to remind us of what, in the end, distinguishes this from that, rather than just setting out a generalized claim that God rules through whoever is around with a sword. At every point we are therefore reminded of the most formidable source of power, short of God, in all. That always is the will of the human being. And that is why only man has the power to disrupt that world order so painstakingly created and maintained by God. Only man is sufficiently like God to possess the utterly free will to corrupt perfection. (pp 435-436)

Precisely because in Written and Oral Torah intentionality is recognized concretely in affecting punishment, free will, of which that intentionality is an expression, comes to the fore as a legal concept, not just a philosophical debate or a religious platitude. Free will is, instead, a force of creation, used by God in creating the universe and man, who was to resemble God in possessing that same free will along with other similar attributes as described in earlier chapters by Neusner.

With the point established regarding intentionality as central to the Oral Torahs’ theological anthropology, Neusner now provides numerous illustrative quotations from various documents of the Oral Torah:
Tosefta Bikkurim 2:15–Selling a Torah scroll for profit deprives one of blessings. But if done for the sake of Heaven, one is blessed.
Sifré to Numbers XCIX:II.2–Miriam’s intent was honourable, to increase procreation, so her punishment was not so bad.
Bavli Menahot 13:11 I.2-3/110a–Intention affects whether an offering is valid or not.
Mishnah Sotah 5:5–Job’s attitude was either one of reverence or fear, as according to Yohannan ben Zakkai, or of love, according to Joshua ben Hurqanos. Fear is favored.
Yerushalmi Baba Mesia 2:5 I.2–Fear of God, not of any human, is the only correct source of intentionality.
Mishnah Rosh Hashanah 3:8–It is the Israelites’ lifting their eyes up and submitting their hearts to God that was rewarded.
Tosefta Peah 1:4–God refines a good intention into a corresponding deed; but not so for the evil intention.
Bavli Nedarim 8:4 II.8-9/62a–[Note: this citation is lacking at the head of the quotation in Neusner’s book itself.] One shouldn’t study Torah just to receive acclaim.
Sifré Deuteronomy CCCVI:XXII.1–The commandments should be fulfilled for their own sake, not with the expecation of reward.
Mekhilta de Rabbi Ishmael XXV:I.26-30–Duty performed in faith, in good faith, is praised. Blessings past and future were and will be granted faith–a belief in the trustworthiness of God.
Mishnah Berakhot 2:1–If one is reading in Torah the verses of the Shema and it comes time to recite the Shema, if the reader directs his heart towards fulfilling the obligation, it is fulfilled; otherwise, even though he read it, it is not.
Mishnah Berakhot 4:4–When one makes prayers a fixed task, they are not valid supplications of God.
Mishnah Berakhot 4:5–If the usual proper orientation for prayer can’t be made, one’s intention, by directing his heart to God, suffices.
Mishnah Berakhot 5:1–A solemn frame of mind is necessary for prayer. No distractions may be permitted to interrupt.
Mishnah Rosh Hashanah 3:7–One passing by or being near a synagogue who hears the shofar and the scroll of Esther being read, if he pays attention, intending to fulfill his obligation, it is fulfilled; otherwise not, even if one hears everything.
Mishnah Terumot 2:3–If one unintentionally immerses unclean utensils on the Sabbath, he may use them, but not if they were intentionally immersed. Unintentionally cooking on the Sabbath, one may eat. Unintentionally planting a tree on the Sabbath, it may grow, but if intentionally planted, it must be uprooted.
Mishnah Yoma 8:9–Sinning with the intention in mind of repenting later makes the latter no kind of repentance at all.
Tosefta Shabbat 2:17-18–Inadvertently slaughtering an animal on the Sabbath, one may eat it after the Sabbath. But if it was intentional, one may not. The same covers gathering produce.
Mishnah Terumot 3:8–It is not one’s words, but one’s intentions that sanctify produce and sacrifices and that set vows, when one’s words don’t match one’s intentions.
Mishnah Maaser Sheni 1:5–If one buys friut with second tithe money unintentionally, the transaction may be reversed. If done on purpose, let the fruit rot (unless the Temple stands, in which case it must be eaten in Jerusalem).
Mishnah Maaserot 1:5–It is the intention of the farmer that determines the time at which a crop is to be tithed, for this occurs at harvest, which is accomplished by the farmer. Snacking on the produce is not a harvest, so it needn’t be tithed.
Mishnah Sanhedrin 9:4–Intending to kill another, but killing someone else accidentally, brings guilt as murder. Only fully accidental killing is manslaughter.
Mishnah Shabbat 11:6–Only inadvertent sins are liable to sin offerings for atonement.
Mishnah Keritor 1:2–Deliberate sins elicit extirpation; accidental sins require a sin-offering; for uncertainty as to whether one has done them, a suspensive guilt-offering is required. See also Leviticus 5:17.
Mishnah Zebahim 1:1–Animal offerings that are offered accidentally as a different category of offering than the donor intended are valid, but do not pertain to the donor who had specified it as either a Passover or sin-offering.
Mishnah Zebahim 2:3–Whoever offers and intends to eat or burn the holy things outside the proper place, the offering is invalid but not subject to extirpation. If they do so, intending to eat or burn it outside of the appropriate time, it is refuse and they are subject to extirpation.
Mishnah Zebahim 4:6–In a sacrifice, it is determined that the actions of the officiant present the appropriate intention, even if he has one of the intentions wrong in his heart. But if the error(s) were voiced, it would be invalid. Thus the priest sacrifices in silence.
Bavli Hagigah 2:7 II.3-4/18b–Intention is also involved in avoiding the cultic contamination of objects, in this case regarding clothing and insufficiently stringent safeguards to keep it clean.

Intentionality is also expressed in attitude. As we read earlier above, humility is the greatest virtue: its intent is not to elevate oneself, but to benefit others.
Tosefta Berakhot 4:18–It was for humility that Judah was granted the monarchy to be of his tribe, and for which Saul was made king.
Tosefta Berakhot 2:21–Conform to the community norms, humbly, and do not stand out.
Tractate Abot 5:16-17–Altruistic love is best, as otherwise the focus of love is temporary. Likewise, a dispute for the sake of Heaven brings results, but not one based on earthly concerns.
Yerushalmi Taanit 3:4 I:1–The intentionality of the two communities affected whether the fasts for rain were successful.
Tosefta Hagigah 1:2–In a description of coming of age, responsibility attends knowledge, which reflects the possibility of intelligent, willful action. Such are the elements of intention: knowledge, action, and attitude (p. 454).

A final point: the intention to do evil is, even if not accomplished, blameworthy: Bavli Qiddushin 4:13 II.13/81b– Rabbi Hiyya bar Ashi has relations with his wife when she’d disguised herself as a famous prostitute, and whom he thought she was. Although the act itself was perfectly legitimate, relations with his wife, he spent the rest of his life in fasting because his intent had been to sin.

Concluding this chapter, Neusner sums up what we’ve gained to this point, and shines a light on the way ahead:

The theology of the Oral Torah, like its law, therefore identifies free will as the principal point of correspondence between God and man, the point at which God’s image makes its deepest mark upon man’s visage. Just as God freely chooses, so does man. In man God has made and therefore met his match. Man has the power to violate the rules of order, the rationality of justice then dictates the result. Chapter 11 will explain that, when man rebels against God, rejecting God’s dominion instead of loving God, that sin disrupts world order. Punishment “with the proper fruit of his deeds” follows. But, as we shall see in Chapter 12, man’s free will in response may inaugurate the process by which world order is restored, creation renewed. And that process leads to the last things of all, eternal life embodied in the resurrection of the dead and the world to come. So the theology of the Oral Torah accounts for life, death, and life restored. Now to the critical chapters in the system: what a man can do, with what result. (p 456)

I hope others are enjoying these summations of this fascinating book. I certainly am enjoying reading it. I’ll continue with the notes on Chapter 11, Sin, in my next installment.


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