An End Must Come for All Things

Note: I wrote this 2 years ago but somehow forgot to push the “publish” button…

Wednesday, August 31, will be my last day as a member of the faculty of University of Tennessee. It wasn’t supposed to be, but that’s how things worked out.

Several months before the start of the semester, I became concerned that I was seeing much lower than typical enrollment in my beginning Biblical Hebrew course. I notified the department Head (at U of Tennessee we have “Heads” rather than “Chairs” at most other schools) and she sent my concern along to the faculty member leading our Judaic Studies group. Together we put together a bit of a poster which was tweeted out via some sort of established publicity framework. To little avail. As the semester drew closer, enrollment rose from 3 to 5.

There is no hard-and-fast minimum enrollment at UTK, but any course under 12 can be canceled for that reason should the Powers-That-Be make that decision.

One complication for me is that the first course in Biblical Hebrew is the first in a four-semester sequence. That creates something of an obligation to provide all four semesters to any students who wish to complete the sequence. Over my 11 year career, this had never been an issue, because after the second time it was offered, I exceeded minimum enrollment every year. Still, most students do not want the full four semester sequence. Some want as little as a single semester because that is sufficient to satisfy several University breadth requirements. Others just want the two semesters during which we cover all of Biblical Hebrew grammar as well as two complete books: Jonah and Ruth.

As you can imagine, I was quite anxious as opening day loomed. I sent a memo to the Head stating my concerns and wondering if she might prefer to cancel the course. But as it turned out, I was wrong about one critical point. My course was not unusual within the group of foreign language courses at UT. Rather, there were many in the same situation. While it can be difficult to assess why any given situation might arise, one factor was very clear: the decision by one of the University’s largest schools, the School of Business, to end a degree requirement of four semesters of a foreign language, had crippled enrollments in many courses. When the dust had settled, it turned out that foreign language enrollments in the various departments that offer them had dropped by five hundred students.

You might wonder why Biblical Hebrew would have been affected–after all, how many Business majors register for Biblical Hebrew? But that misses the point. Classes are offered at various times during the day, and students try to get into the classes when they want to be on campus. So if the Spanish classes at that hour are full, they look around for other classes meeting at that time. That’s why almost every year my courses did not fill until late in the enrollment process. But this year, those Spanish classes and other more popular language classes, did not fill and there was therefore less reason for students to look deeper into the catalog.

Another significant point is that there are only a few foreign language courses where students can learn a great deal about a language but not need to actually speak the language. All ancient language, not just Biblical Hebrew, fall into this category. So the student who might have been shy about enrolling in Spanish or French might find a more comfortable place in Greek, Latin or ancient Hebrew.

The College of Arts and Sciences could see what was happening, and felt a strong need to preserve the strength of our language programs. They therefore had a meeting in which all the Heads were informed that the College would back their decisions to continue low-enrollment classes. One Latin class is running with just one student. The Heads of all the foreign language departments contacted the College and every request to allow the course to proceed was granted. Had my Head contacted the College, she would have been granted the same privilege. But she didn’t bother and instead canceled my course. I know that this was contrary to the wishes of the College, because not knowing that she had already acted, the Associate Dean in charge of such things wrote to her and assured her that my course could run.

I found out that I didn’t have a class when I showed up to teach it and there was just one student in the room. I asked him to check his email and sure enough, he had a message from the Registrar notifying him that he had to find another course because Biblical Hebrew had been cancelled.

This gave me the “honor” of being the only foreign language teacher at UTK to lose a course over enrollment issues. Every other instructor with similar issues is continuing, including as I mentioned, a Latin course with one student.

This did not end my appointment at UTK because I still had a functioning Intermediate Biblical Hebrew course. But this meant that I now had to arrange my life around a job that required my presence on campus for just 1 hour, three days per week. And while it might seem all that important to some folks, in one push of a button my Head had literally cut my salary by 50%.

As my friends know, I recently exceeded 70 years of age and I have some health issues. I’m not willing to go to campus for just one course, and I’m also not willing to take a salary cut of 50% to continue.

As I said at the outset, it’s not the way I would have chosen to do it, but as of the end of August, I have retired from the University of Tennessee. Not that as a part-time lecturer the University will give me any status as a retiree. I’ll simply disappear from the campus as if I had never been there.

Capital Punishment: The View from Judaism

There is not the slightest doubt that throughout the historical period when the Bible was composed that capital punishment was an accepted and indeed commonplace fact of life. Not only does the Bible authorize capital punishment, but prescribes and demands it for many offenses. Lift a stone on the Sabbath? The Torah requires a death sentence. Commit adultery? Death to all parties. And adultery is hardly the only sexual offense for which the death penalty is meted out–incest, bestiality, male homosexual relations. Leviticus 20 details all these and adds such things as consulting with a ghost–some sort of communion with a supernatural being. Apparently seeking your fortune from a Gypsy could be a capital crime in the eyes of Leviticus. Oh, and be careful what you say to your parents, insulting one is another capital crime. All this is in Leviticus 20, but there are references to the necessity for capital punishment in every book of the Torah and throughout the rest of the Hebrew Bible.

One might have expected change with the introduction of Christianity, after all, it would not be any kind of exaggeration to suggest that the most infamous case of capital punishment in human history is the execution of the man Christians claim was the Messiah, the anointed of God and later celebrated as God’s son. But nowhere do we find any suggestion that the execution of Jesus was anything but the legitimate exercise of government power. As described in the Gospels, Jesus was accused of a capital crime, received a fair trial by the standards of his time, and executed according to the dictates of the law. But far from resulting in any condemnation of capital punishment, nations adopting Christianity accepted capital punishment for an ever widening set of infractions. In nineteenth century England, wags noted that spectators who came to see the public hangings of pick-pockets often discovered that their own pockets had been picked.

The history of capital punishment takes a major turn with the meditations of the post-Biblical rabbinic movement. It is easy to say that this resulted from the fact that Jews by and large ceased to be self-governing in the wake of the destruction of the Temple in Jerusalem. If a Jew were charged with a capital crime, they would be at the mercy of a non-Jewish legal entity. Confronted with what were almost certainly many executions for such crimes as “blasphemy”–or simply because gentiles wished to confiscate their belongings–such circumstances might well lead to a questioning of the fairness of capital punishment.

But how could the rabbis of that post-Temple era question the legitimacy of capital punishment? Did we not begin this discussion by noting that capital punishment is quite literally demanded by every book of the Torah?

What we find is that they found a weak spot in the logic of capital punishment: the legitimacy of the courts which are required to mete out the sentence. How does anyone know that one of the enumerated crimes has occurred? In most cases, it could only happen by the testimony of witnesses. In various texts the rabbis found ways to undermine relying on such testimony. They enacted such protections as requiring the testimony of at least two eyewitnesses to a capital crime. They admonished the witnesses that they could themselves be charged with a capital crime if they lie or distort the truth. And in one text they declared that any court which sentenced more than one person to death within 70 years is a homicidal court and must be disbanded (Makkot 7a).

The modern State of Israel has experienced a wide variety of crimes which surely merit the death penalty, but Israel has executed just one person in the more than 70 years of its existence: Adolph Eichmann.

Most western democracies and many American states have outlawed the death penalty out of a recognition that certainty will always elude us. But elsewhere in the world, and among many US states, the death penalty remains. As I write this, two Americans have been executed in two different states who may very well have been innocent of the crimes for which they were convicted. And a man in Texas is awaiting execution for a crime he almost certainly did not commit.

This barbarism simply must end.

Teaching the Bible in Public Schools

The news in recent days has included many reports about various state governments attempting to require “biblical” education of some sort or another in public grade schools. Of course this can only be a violation of the bedrock US constitutional demand that there be a separation of church and state. But let’s set that aside for a moment and wonder if these legislators actually understand what is in the Bible they profess to hold by.

One of the loudest supporters of these proposals is none other than Donald Trump, who also expressed support for the posting of the Ten Commandments in public spaces including classrooms. Seems a little peculiar since there is good evidence that he has violated every one of those commandments.

There is no universal agreement on how to parse those ten statements but no one would dispute that among the most important within that important set of principles is “Do not murder.” The Hebrew for this commandment is, לֹא תִרְצַח, translated “Thou shalt not kill” by the King James version, language which is retained in many English versions. The Hebrew verb, however, has a more specific meaning, namely, “murder.” The distinction becomes important because it is obvious that “kill” is too general. After all, the Bible itself demands capital punishment for many infractions, so how could it also demand that one not kill? For this reason, the New Jewish Publication Society (NJPS) translation renders it as I did, and a few Christian Bible translations, for example, the New American Standard Version (NAS) do as well.

The Bible these government officials want our children to study in public schools also provides an excellent example of the need to hold even the highest office-holders to account for their crimes. The story is familiar to most of us: David and Bathsheba. And the narrator does not mince words in his description of the events. King David sees Bathsheba bathing and inquires about her. He is told that she is the wife of Uriah the Hittite, who is at that moment fighting for David on the front lines. David summons, sexually assaults and impregnates Bathesheba. I will leave it as an exercise for the reader to decide whether acceding to the wishes of a ruler should be classified as rape or not.

Learning of Bathsheba’s pregnancy, David summons Uriah back from the front and gives him leave, hoping that he will bed his wife and be able to take credit for the pregnancy. But Uriah is such a good soldier that he declines that part of the invitation, instead standing guard for David.

David returns Uriah to the front with a message for his commander Yoab—get rid of Uriah. And so Yoab positions Uriah in a place where the fighting is particularly heavy, and is killed.

David imagines himself to be in the clear. He is visited by Nathan, who we are told is a prophet of God. Through a parable, Nathan convinces David to incriminate himself, and David famously declares, חַי־יְיָ כִּי בֶן־מָוֶת הָאִישׁ הָעֹשֶׂה זֹאת “By the life of the LORD, the man who behaved this way deserves to die.” To which Nathan replies, אַתָּה הָאִישׁ “You are that man.”

But the story does not end with this. David has been found guilty of murder. The narrator explains that God will not take his life in exchange, but demands a life to compensate for the life, and so the child that Bathsheba conceived is stillborn. And this also becomes part of the fabric of the explanation why the Temple was not constructed in David’s lifetime, that holy task will be left to Solomon, Bathsheba’s son born to her and David after these events have transpired. David’s final years are anything but peaceful. His children battle each other, his wives conspire against one another, and David himself declines into senescence.

The lesson is complete. No one is exempt from God’s justice. The dues must be paid. And murder is murder, there is no way to cleanse the blood debt except by blood.

And so we now turn to modern times. A modern day president filled with contempt for the electoral process summons a mob and launches it against the very government he leads. In the melee that follows, violence leads to the deaths of nine people including five peace officers. Four of the deaths were participants in the mob. A total of five peace officers died either directly from the event or its aftermath. One officer, Brian Sidnick, died as a direct consequence of the riot. Four more officers died via suicide, and so far one of those has been declared a result of the insurrection.

There is simply no doubt whatsoever that the former president instigated the events that resulted in these deaths. Now, under US law, he could not be found guilty of homicide. In fact, there is at least some possibility that according to a recent Supreme Court decision, if he claims sending a mob to the capitol is somehow an “official act” he could be given immunity from any accusation of murder (or treason).

But that isn’t what the Bible would say. If the prophet Nathan were here today, he would undoubtedly say to the former president, “You are that man.” You must pay with blood for the blood you have stolen from the families of the deceased.

Just remember that if you think the Bible has credibility and use for our times, you do have accept its views on things like this: justice must be served.

Sad News on the JHS 44 Front…

I’ve been remiss in posting news about my friends, so apologies for the late notice.

In recent times two of the classmates referenced here have passed, Mitch Turbin and Robert Slayton. Mitchel left us on November 26, 2021 after a long illness. He had relocated to a new home for retirement in Portland, Oregon. Robert (Bobby) Slayton died just a few weeks ago (March, 2024) in his longtime home in Southern California after a distinguished career at Chapman University.

May the cords of their memory be bound with ours so that they live on forever through us.

Of Dragons and Sea Beasts

On The Presence of Dragons in The Hebrew Bible

Note: this entry in my blog is a midrash, that is to say, a textual commentary on Scripture rather than a scholarly analysis. I hope the reader will find some evidence of scholarship in it, but it is intended more to edify and entertain than to present any new scholarly finding. So enjoy!

For the occasion of the Torah reading for January 13, 2024, Va’Era, among the very interesting aspects is the question of the presence of dragons in biblical Israel. The question arises, as it often does, from the fact that there are many Hebrew words in the Bible which have no certain translation into English (or other languages, for that matter).

The biblical reading for the day is largely concerned with the various “signs and wonders” that Moses (and sometimes his brother Aaron) used to prod Pharaoh into “letting the people go.” Exodus 7:9 tells us, “When Pharaoh says,’Show us a sign,” say to Aaron, ‘Take your cane and throw it down in front of Pharaoh.’ It shall turn into a serpent.” The Hebrew word translated here as serpent (other translators render it snake) is: תַּנִּין. And that translation certainly makes sense in this context, after all, it’s pretty easy to imagine a cane morphing into a snake.

Fanciful Dragon

Someone’s Idea of A Dragon

But here’s a problem. That word תַּנִּין occurs in many other places, and it might be more difficult to understand it as snake in those other places. Let’s look at a few of them.

The first time we encounter the word תַּנִּין in the Hebrew Bible is quite literally in the beginning: Genesis 1:21 tells us: וַיִּבְרָא אֱלֹהִים אֶת־הַתַּנִּינִם הַגְּדֹלִים “and (on the fifth day) God created the great sea creatures (תַּנִּינִם).” It’s the same word, so why not translate this as, “God created the big snakes”? But nary a professional translator feels that’s the correct meaning of תַּנִּינִם in this verse. Most of the modern translators offer “great sea monsters,” the King James prefers to render it whales. At this point it might be worth noting that biblical Hebrew had no word for whale so the creature which swallowed Jonah was דָּג גָּדוֹל a big fish.

Isaiah Chapter 27 gives us an interesting combination of notions for תַּנִּינִם:

בַּיּוֹם הַהוּא יִפְקֹד יְהֹוָה בְּחַרְבּוֹ הַקָּשָׁה וְהַגְּדוֹלָה וְהַחֲזָקָה עַל לִוְיָתָן נָחָשׁ בָּרִחַ וְעַל לִוְיָתָן נָחָשׁ עֲקַלָּתוֹן וְהָרַג אֶת־הַתַּנִּין אֲשֶׁר בַּיָּם:

Someone’s idea of a Leviathan

On that day, the LORD will punish with his powerful sword Leviathan the fleeing Serpent and Leviathan the coiled serpent and slaughtered the sea monsters (or dragons, or serpents!) of the sea. Notice again the use of תַּנִּינִם.

The name Leviathan would almost certainly have been evocative of Near Eastern creation myths to audiences of ancient Israel. In this verse Leviathan is compared (twice) to some sort of serpent

A dragon makes another appearance in Isaiah, chapter 51—which by most scholarly accounts would make the author different from the First Isaiah of Chapter 27:

עוּרִי עוּרִי לִבְשִׁי־עֹז זְרוֹעַ יְהֹוָה עוּרִי כִּימֵי קֶדֶם דּוֹרוֹת עוֹלָמִים הֲלוֹא אַתְּ־הִיא הַמַּחְצֶבֶת רַהַב מְחוֹלֶלֶת תַּנִּין:

Arm of the LORD, arise, arise! Arise as in olden days, generations past! Are you not the one (arm) who dismembered Rahav? Did you not pierce the Dragon?

While many readers might wonder about “Rahav,” this is not a reference to the woman of Jericho who sheltered the Israelite spies as related in Joshua. Although sounding similar in English, the woman in Joshua is named רָחָב with a het rather than a heh. Rather, it is another reference to some sort of sea creature from ancient Canaanite myth. A perplexing verse becomes easier to understand as the prophet is calling upon the arm of God to repeat her (arm is feminine in Hebrew) victories against the sea creatures depicted with names drawn from those Canaanite tales.

A psalm names creatures to be vanquished at 74:13:

אַתָּה פוֹרַרְתָּ בְעָזְּךָ יָם שִׁבַּרְתָּ רָאשֵׁי תַנִּינִים עַל־הַמָּיִם:

By your strength you split the sea, and smashed the heads of the dragons (sea monsters?, serpents?) in the waters.

The new JPS translation renders תַנִּינִים by “monsters,” KJV and NRSV both choose “dragons.”

Job 7:12:

הֲיָם־אָנִי אִם־תַּנִּין כִּי־תָשִׂים עָלַי מִשְׁמָר:

Am I the sea or a dragon that you set watch over me?

Here we find a different distribution of renderings for תַּנִּין than usual. The NJPS which tends to stay away from “dragon” does render it “dragon” here, and that is also the rendering of the editions of the Revised Standard Version (RSV and NRSV). But the King James, which seems to enjoy translating the term as “dragon” elsewhere, here renders the word, “whale”! Meanwhile, other versions such as the New Jerusalem Bible (NJB) and the New American Standard Bible (NAS) both prefer “sea monsters.”

Robert Alter has a particularly interesting take on this verse. He translates it, “Am I Yamm or the Sea Beast, that You should put a watch upon me?” As you can see, he renders תַּנִּין as “Sea Beast” (and note the capitalization), but for me the interesting departure is translating יָם as Yamm. I’ve mentioned several times that all these terms are evocative of ancient Near Eastern creation stories, and Alter here signals this by using the Hebrew term to mean one of the names of the god of the sea. Notice that as vocalized by the Masoretes, the הֲ is not the definite article “the” but rather a particle which introduces a question. Still, Alter shies away from “dragon” preferring “Sea Beast.”

Ezekiel mentions תַּנִּין in several verses, 29:3 is of particular interest here:

דַּבֵּר וְאָמַרְתָּ כֹּה־אָמַר ׀ אֲדֹנָי יְהֶֹוִה הִנְנִי עָלֶיךָ פַּרְעֹה מֶלֶךְ־מִצְרַיִם הַתַּנִּים הַגָּדוֹל הָרֹבֵץ בְּתוֹךְ יְאֹרָיו אֲשֶׁר אָמַר לִי יְאֹרִי וַאֲנִי עֲשִׂיתִנִי:

Say: This is what my LORD God is bringing upon you, Pharaoh King of Egypt: the great dragon (sea creature, sea beast, etc) who lies (perhaps “lurks”) in the Nile, who declares, “The Nile is mine, because I made it.”

The word תַּנִּים here has the usual assortment of translations across the English versions—I went with dragon in agreement with good old King James as well as the RSV. NJPS renders it mighty monster. But perhaps the most interesting take is that of the NJB, which says, “the great crocodile wallowing in his Niles”. Not only does this actually make sense from the perspective that there actually are crocodiles in the Nile, but they also noted that the Hebrew form of the Nile is plural.

An actual Nile Crocodile

And so that gives us yet another rendering into English of תַּנִּים, namely, crocodile. But do note that it’s still the same Hebrew word.

And so we reach the end of today’s path through great sea monsters, crocodiles, and other sorts of beasts. And yet, for many of us, there is no word more evocative than dragon. Could that be the image our various texts really wanted to convey?

On the Notion of the Rabbinate

A topic arose in a meeting I attended for my local congregation which reminded me how much certain Jewish institutions are misunderstood. We were discussing how best to go about filling the position of rabbi for our congregation and because of our financial situation, we are forced to consider things like part-time rabbis. One of the participants said that we had to have a rabbi because of performing conversions and participating in a Bet Din (a Jewish court convened these days most often to approve conversion, but also used, for example, for the Halitzah ceremony which will await another time for explication).
I spoke up at this point and pointed out that no rabbi is necessary for any of these things. I should add since I’m writing at greater length here that in most congregations rabbis are usually performing such chores because, after all, they are educated in the necessities.
But there is no requirement for this.
One reason there is no such requirement is that, in fact, there are no rabbis today who can fulfill the traditional demands for ordination as a rabbi. The last person who had some claim on the title was Rabbi Chaim Vital, who died in 1620. It’s by no means historically certain that he had authentic smikhah, the Hebrew term for ordination, but his contemporaries largely accepted him so we can leave it at that. Since his passing, not a rabbi in the world has been able to claim authentic ordination.
This seems to have led to title inflation in some parts of the Orthodox Jewish world. One of the briefer ones is “HaRav HaGaon” (something like the The Genius Rabbi), which of course is quickly eclipsed by “Maran Harav Hagaon” (“Our master the Genius Rabbi”). And of course, we see that many find it necessary to add the trailing honorific, Shlit”a (short for Sheyikhye Le’orech Yamim Tovim Amen, “May he live a good long life, Amen”).
All for folks who do not, in fact, have authentic smikhah.
Now, before some of you get riled up, I’m not dissing the modern institution of the rabbinate. There are wonderful schools in every modern Jewish movement who produce well-trained scholars of Judaism who are fit to lead congregations. I’m simply explaining that conferring the title of “rabbi” on them does not, by Jewish tradition or law, provide them with the authority discussed in the Mishnah, Talmud, or Halakhic codes.

How to Define the Word Jew?

On the Definition of the Word “Jew”

The most difficult problem I had to navigate in constructing a PhD thesis was overcoming the problem most people, including scholars, have with understanding the definition of the word “Jew” and its ideological corrolary, “Judaism.” People use the word “Jew” in ways that suggest they imagine they know the definition of the word. It calls to mind a common aphorism, “I don’t know how to define it, but I know it when I see it.” For me, as a scholar of the very period when Judaism in its modern formulation began to take shape, the realization hit home that the greatest scholars of my generation and the generations preceding me were just as guilty as ordinary people of misunderstanding and misusing the word “Jew.”

How are we going to approach the question of defining this word? Of course, one way would be to look words up in the dictionary. We could check “religion” and then “Jew” or “Judaism.” But dictionaries are ill suited to answer complex issues. How might an anthropologist or a philosopher or a historian go about defining these terms? To grasp the problem, I think it works best to conduct a bit of a thought experiment. Consider Jewish communities and Jews in our own day and in our own environment. How do we know the people we are thinking about are Jews? How would we define the religion that they observe in their places of worship?

Most people who know anything about Jews and Judaism know that in the modern world there are different types of Jews. A person might know, for example, that a Jew is supposed to cover their head while worshiping, and perhaps even know the term kippah or yarmulke for that head covering. But where is the evidence in the Torah (Pentateuch) or the Bible that people needed to cover their heads during worship? And on the other hand, many modern Jews, especially in synagogues of the Reform and Reconstructionist movements, gather and pray bare-headed. Who decides these things and upon what do they make these decisions?

Realizing that while a unanimous standard is probably impossible, nevertheless how would we try to describe the religion which defines Judaism? Things that you will almost certainly hear as soon as the question is asked, 1) A belief in the importance of the Torah, defined as the first five books of the Hebrew Bible; 2) observing certain dietary restrictions such as avoiding pork, shellfish, and mixtures of milk and meat;[1] 3) a common liturgy with elements familiar to any Jew who attends synagogue such as the Amidah (a standard set of benedictions),[2] the Qaddish (also spelled, Kaddish) recited several times in every service);[3] 4) the notion that a quorum of 10 adults is required for communal worship;[4] 5) a common set of holidays including the Sabbath,[5] Rosh haShanah (the Jewish New Year),[6] Yom Kippur (the Day of Atonement),[7] Passover;[8] 6) investing the authority to make religious decisions in the person of a rabbi.[9] Note that many indisputably Jewish groups nevertheless do not accept all of even these basic standards.

Modern Jews have recently (in the last half-century or so) been confronted by groups which assert their own special entitlement to classification as the “true” Jews or the “true” Israel. Strangely enough, this is a modern form of one of the oldest challenges to Jewish identity, namely the Christian Church. It was (and doctrinally still is) the claim of the Church that through the agency of Jesus and his apostles, biblical authority has moved to those who have accepted Jesus as their Lord and Savior. The newest challenges have come from some African Americans claiming that they are the true Israel, and the most recent, the claim of some Jews or people claiming to be Jews, that true Judaism must include recognition of Jesus—the so-called Jews for Jesus Movement, and now often termed, “Messianic Jews” or “Messianic Judaism”.

What all these versions of Judaism share is that none of them resemble the religious beliefs, liturgies and behaviors of people living in the time when there was a Temple to the LORD in Jerusalem—with brief interludes according to biblical history, from the era of David until the destruction of the Temple in 70 CE.

Many of the points I mentioned above could be the subjects of entire books, so to keep the narrative brief, I’ll have to make some simplifications. Starting with point number 1) above, many of my friends would howl in protest if I tried to claim that ancient versions of Judaism did not revere the Torah. But the plain, simple truth is that the Torah did not even exist as a book until the era of Ezra/Nehemiah (ca 450 BCE, roughtly a thousand years after the time of Moses). The Bible itself recounts the story of how a book of the Torah was “discovered” during the reign of King Josiah.[10] If that book was the larger part of Deuteronomy, as most modern scholars hold, we can say that no one until the time of Josiah was aware of a rule that Jerusalem, and the Temple of Jerusalem alone, was suitable for Israelite sacrifice and worship.

But there is something even more important about the notion that the Torah is the ultimate source of law and custom. No one today, not even the most Orthodox of the ultra-Orthodox, believes that we should follow large parts of its rules. Of course, you’ll want examples.

1)      The Torah demands the death penalty for anyone who violates the Sabbath. Jews throughout the ages have found ways to ignore this clear pronouncement.[11]

2)      The death penalty is also required for all sorts of infractions: adultery, incest, cursing or hitting a parent, idol worship, encouraging heathen belief, the daughter of a priest found liable for prostitution, a woman accused of adultery who cannot pass the required ritual. Deutronomy 13 demands the execution of an entire city if the inhabitants went along with some sort of idolatry. Numbers 1 demands the execution of an Israelite who tries to do the work of a Levite.[12]

3)      The Torah demands polygamous marriage when a married man’s brother dies childless leaving his widow. Rabbinic Judaism has made it all but impossible to honor the Torah’s requirement here.[13]

4)      If a woman is suspected of adultery, the Torah imposes a form of trial by fire.[14]

I could go on like this for a long time. People who devote their lives to religious principles have an uncanny ability to live in an intellectual form of denial. I assure you that if I raised these issues in the context of a get-together of Jews practicing the Orthodox version of Judaism, they would propose numerous explanations for why we are all honoring even these provisions in the Torah. And that, perhaps strangely enough, is the message here. From the perspective of people outside looking in, they are simply in denial, not much different from Mormons hearing that Jesus could not possibly have come to America or Muslims being told that Mohammed never set foot in Jerusalem. But every religious group has a set of principles by which to claim that their views are enshrined (so to speak) in historical fact.

Let’s return to the main point. If you were to describe a modern Jew and the form of worship they invoke when gathered, what would you say? You would notice some physically prominent aspects of dress (again somewhat dependent on the movement within Judaism) such as various forms of head-coverings, scarves with fringes, sacred dressings called “phylacteries” (t’fillin) which would be seen as cubes mounted by leather straps on the head and left arm.[15] Jews from every branch of Judaism gather in places called “synagogues”—interestingly a word which originated in Greek rather than Hebrew. If you ventured into the synagogue, you would see that the service was led by either one of the congregants or perhaps the congregational rabbi or a singer called a hazzan or cantor. The congregation in general would be governed by a rabbi who decides the rituals of the congregation.

You would also see a prayer book called a siddur which provides guides for the various daily, weekly, monthly, and annual rituals. While there are different versions of the siddur for the various movements, much of the content is standardized based on ancient models.[16] I’ve already touched on this above, but to provide just a bit more detail, the service requires a quorum of ten individuals (men for Orthodox congregations, adult men and women for most other movements) without which the communal prayers cannot be recited. The service is built on units which include modules designed to reflect ancient practices. For example, the morning service is called shaharit which means “morning” or “dawn” and was the name given to the morning sacrifice when the Temple stood in Jerusalem. On the Sabbath, there is a service unit called musaf which means “additional” and is designed to reflect the additional Sabbath sacrifice that was offered on that day in Temple times. The afternoon service is labeled minhah which was the grain offering offered in the Temple in the afternoon when it stood. Many modern Jews also meet for a nighttime service called ma’ariv which means “evening” and corresponds to nothing from the Temple era.

The core of each of these modern services is a prayer called the Amidah which means “standing” or Shmoneh Esrei, which means, “the eighteen benedictions.” As you are beginning to sense, the complexities grow and grow because while there are various versions of this prayer for various occasions, in none of them do Jews recite 18 benedictions. The most frequently recited version has 19, the Sabbath service version, just 7.

I think this is sufficient data for me to try to make my point. You now have an idea of how Jews dress, gather, and worship in our own time. Now let’s set the time machine back to the period when the Temple still stood. How recognizable would the people and their religion be to you?

First, while there were synagogues very late in that Temple era, they were not used for prayer. They were essentially schoolhouses. Almost no one in those days could afford to own the sacred texts, so synagogues arose to house sacred texts for communal study. People who wished to approach God understood that there was only one way to do it: a pilgrimmage to God’s home on Earth, the Temple of Jerusalem. A book of the Torah demanded no less.

Who were the authority figures for the Judeans? There was a king—and if you didn’t think the king had power, you might find yourself mounted on a cross.[17] If you needed an explanation of what to offer in the Temple on your pilgrimmage, that was the job of the priests and levites. I suspect some of the merchants who lined the entrances to the Temple would have been happy to oblige as well.

Here is what you would not have seen: rabbis. Now, I know that if you read traditional Jewish texts like the Mishnah (composed about 250 CE) you will find entire generations of rabbis who lived according to the Mishnah while the Temple stood, and for about 200 to 300 years before. But you won’t find any references to those rabbis in texts written before 70CE.

Now, here I must add a complication. Perhaps oddly enough from a Jewish religious perspective, someone could complain that one very famous “rabbi” (so idenitified in the Mishnah) was mentioned in the Christian Bible, namely one Gamliel. There are several aspects to that identification. First, Gamliel is not called a rabbi in the two places he is mentioned, Acts and Acts of the Apostles.[18] He is identified as a Pharisee, sometimes called a “doctor of the law” in modern translations. Second, we must note that both of those sources date from the period after the destruction of the Temple, so once again we lack evidence for a “rabbi” which predates the loss of the Temple. By the way, while Josephus certainly lived while the Temple was in existence, everything Josephus wrote was written after the destruction of the Temple.

Rabbis are not mentioned in any of our major sources which predate the Temple destruction. There are no rabbis in Josephus, Philo, or any of the Dead Sea Scrolls.

What this means is that the religion we know as Judaism is entirely the construct of a theocratic class which did not exist prior to about 200 CE, and which is granted absolutely no authority by any source prior to that date. All the sources, and among them are the Hebrew Bible (“Old Testament”), Apocrypha, the Dead Sea Scrolls, the Christian Bible, the writings of Philo and Josephus, all these sources recognize many types of religious authority: kings, prophets, seers, elders, priests and levites. Nowhere do we find the notion that mere study without the sanctity of these other qualifications grants religious authority.

What these rabbis accomplished in the decades and centuries following 200 CE was nothing short of a revolution. Their rulings abrogated huge portions of the Torah and replaced them with a theology that could only be described as alien to biblical ideology. If a person can’t get to the Temple in Jerusalem, that prayer called the Amidah can serve as a replacement. Can’t offer a sacrifice? Just burn a small amount of the bread dough and that will suffice. Accuse a woman of adultery? Sorry, no one knows how to perform the ritual of the suspected adultress (sotah), so you’ll have to find another way to solve your marital issues. Think someone deserves the death penalty? Well, you’ll have to show that the sin was viewed by two reliable witnesses who warned the person of his liability before he committed the act.

It is probably impossible to convince anyone these days that people who lived in the era of Jesus and Hillel (if indeed he is not a figure of legend) should not be called “Jews.” But it is vital to a proper appreciation of history that we understand that no modern Jew lives their life in anything remotely resembling the ways of life of Jesus and Hillel. Jesus, Hillel, Josephus, Philo, Herod—all these people believed that there was only place where God can be worshipped, the Temple in Jerusalem. They believed that the only proper way to worship God was by presenting offerings in that Temple. They believed that all religious authority was invested in priests and levites, but that the Torah had also granted authority to kings, prophets, and elders. They sought out the opinions of seers and soothsayers. Even a half-century after the the Temple was destroyed, the people who followed a charismatic leader named Simon ben Kosba did so because they believed him to be invested with sacred authority—the notion of a “messiah” which Christians were actively arguing was a unique source of authority. Ben Kosba’s followers nicknamed him “bar Kokhba”, the son of a star which was an allusion to a verse in the book of Numbers.[19] His detractors, by the way, nicknamed him “ben Kozba”, the son of a lie.

And yes, there were the beginnings of communities where a teacher was also granted religious status—the Dead Scrolls mention someone they called the “Teacher of Righteousness.” Perhaps it was from such seeds that rabbinic Judaism emerged a century or two after the Temple was brought down. But we must fully grasp that such teachers could only gain authority once it was no longer possible for all those other authorities to perform their Torah obligated duties. Even priests (“cohanim”) could do nothing without the Temple.

Ultimately, the single most important issue for almost any religious group is the issue of authority. Who gets to make the important decisions? What is the most important differentiation between the Roman Catholic Church and Protestant religious groups? Of course, it was the rejection of Papal authority that the Protestants were protesting. Mormons consider themselves Christians, and many scholars of religion agree that they are. But how many religious leaders of other Christian groups say that if you believe in a book outside the canon of Christianity and accept a prophet not recognized by other Christians, you can’t be considered Christian. In the third century CE, some Jews decided that they would cast their lot with the rabbis, scholars of tradition who seemed to them to have a valid case for wielding authority. Those who did not became Christians or dropped out of historical observation. Many centuries later, a group of Jews frustrated at rabbinic authority created a splinter group called the Karaites. Their name was emblamatic of their theology: only the written the word, the Miqrah, the Hebrew Bible, could be relied upon for religious authority. The books of the rabbis, the Talmud, were declared to be worthless.  Karaites became one of the largest groups of people who placed their authority in the Hebrew Bible. Of course, it turned out that it is impossible to allow everyone to make their own interpretation of the Bible, so the Karaites created their own Code of Practice, Kitāb al-Anwār wal-Marāqib, administered by their own hierarchy of teachers. It remains a matter of some controversy in the modern state of Israel as to whether Karaites should be considered Jews.

So, at long last, let’s return to the original point. In what way can we describe a person from the days of Hillel and Jesus a “Jew”? If those people were Jews, then how can we describe modern people who worship in completely different ways using the same word? My own personal solution to this dilemma is that I try to describe people like Hillel and Jesus as “Judeans.” People who lived in the era of the hegemony of Judah and worshipped in the ways of other Judeans. After the fall of the Temple, those people who followed Jesus became known as Christians. And those people who gave authority to the author of the Mishnah, Rabbi Yehudah Ha-Nasi, I call “rabbinic Jews.”

I am completely cognizant of the impossibility of convincing most modern people that the Judaism that Jesus and Hillel followed cannot possibly be identified with the religion of Maimonides. In the words of the Mishnah itself, quoting one Rabbi Tarfon, הוּא הָיָה אוֹמֵר, לֹא עָלֶיךָ הַמְּלָאכָה לִגְמֹר, וְלֹא אַתָּה בֶן חוֹרִין לִבָּטֵל מִמֶּנָּה. “We may not be able to complete the task, but neither are we free to abstain from it.”[20]

Brief Bibliography

A good bibliography for this topic could easily include hundreds of books and articles. For this brief essay, I will limit my recommendations to a few relatively recent publications which I think are particularly germane and worthwhile.

Adler, Yonatan. The Origins of Judaism: An Archaeological-historical Reappraisal. United Kingdom: Yale University Press, 2022.

Boyarin, Daniel. Border Lines: The Partition of Judaeo-Christianity. United States: University of Pennsylvania Press, 2004.

Cohen, Shaye J. D. From the Maccabees to the Mishnah. United Kingdom: Presbyterian Publishing Corporation, 2006.

Collins, John J. The Invention of Judaism: Torah and Jewish Identity from Deuteronomy to Paul. United States: University of California Press, 2017.

Ehrman, Bart D. Jesus Before the Gospels: How the Earliest Christians Remembered, Changed, and Invented Their Stories of the Savior. United Kingdom: HarperCollins, 2016.

Goodman, Micah. Maimonides and the Book that Changed Judaism: Secrets of the Guide for the Perplexed. United States: Jewish Publication Society, 2015.

Halivni, David Weiss. The Formation of the Babylonian Talmud. United States: Oxford University Press, 2013.

The Jewish Annotated New Testament. United Kingdom: Oxford University Press, 2017.

Levine, Amy-Jill. The Misunderstood Jew: The Church and the Scandal of the Jewish Jesus. United States: HarperCollins, 2009.

Lieberman, Saul. Greek in Jewish Palestine: Hellenism in Jewish Palestine. Israel: Jewish Theological Seminary of America, 1994.

Sacrifice, Cult, and Atonement in Early Judaism and Christianity: Constituents and Critique. United States: SBL Press, 2017.

Saldarini, Anthony J. When Judaism and Christianity Began: Essays in Memory of Anthony J. Saldarini. Belgium: Brill, 2004.

Satlow, Michael L. Creating Judaism: History, Tradition, Practice. United Kingdom: Columbia University Press, 2006.

Schiffman, Lawrence H. From text to tradition: a history of Second Temple and Rabbinic Judaism. United States: Ktav Publishing House, 1991.

 

 

 



[1] Avoidance of pork: Lev 11:7; Deut 14:8. Shellfish: Lev 11:12; milk and meat: Ex 23:19 and Deut 14:21. Both verses prohibit cooking a young goat in the milk of its mother, but neither verse contains any reason to avoid other combinations of milk and meat.

[2] The Amidah, the central prayer of Judaism, is a complex structure which varies depending on time of day, day of the week, and the specific Jewish movement reciting it. While claims are often made that the Amidah in some form was recited by Jews while the Temple was standing, there is no evidence to support the claim. It is clear that it was recited in various forms by the time of the Mishnah, ca 250 CE. For a good general introduction, My People’s Prayer Book Vol 2: The Amidah. United States: LongHill Partners, Incorporated, 1998.

[3] Also spelled, kaddish. For a scholarly appreciation of this prayer, see Elbogen, Ismar. Jewish Liturgy: A Comprehensive History. Israel: Jewish Publication Society, 1993, esp pp. 73-90.

[4] The notion of minyan or quorum has no basis in the Torah nor elsewhere in the Hebrew Bible. The earliest reference to the requirement is Mishnah Megillah 4:3. There is some quibbling over the antiquity of Mishnah Megillah, but in the best case, this puts the earliest date of the text at circa 250 CE.

[5] Included in many verses of the Torah, and both recitations of the Ten Commandments, Exodus 20 and Deuteronomy 5. But notice that the rabbis of the Talmud significantly altered the understanding and observance of the Sabbath beginning with one of the lengthiest treatises in the Mishnah.

[6] Many Jews are surprised to learn that the Torah contains no specific reference to this holiday, one of the most important in rabbinic Judaism. Leviticus 23:24 calls upon the Israelites to observe day of Sabbath-like rest on the first day of the seventh (not the first) month as a זִכְר֥וֹן תְּרוּעָ֖ה (memorial of trumpet-blasts). Numbers 29 repeats the call for a day of rest on the first day of the seventh month, and calls it similarly  י֥וֹם תְּרוּעָ֖ה  a day of trumpet-blasts. The term “Rosh haShanah” does appear in Ezekiel 40:1, but doesn’t seem to have anything to do with this holiday. The rabbis greatly expanded the importance of the holiday, for example, requiring that it be observed for two days.

[7] Yom Kippur, or the Day of Atonement, is well-attested in the Torah: Leviticus 16:29, Lev 23:29 adds the penalty of karet, perhaps the strongest penalty imposed in the Bible, to anyone who violates the rules of the day. It is also mentioned in detail in Numbers 29. There, interestingly, the various sacrifices and offerings are specified and they include things that would normally have been consumed at least in part by the priests. It was the rabbis who defined the idea of “self-affliction” as fasting, that is nowhere specified in Scripture.

[8] Passover is one of three “pilgrimage” festivals specified by the Torah. The primary commandment, as the term “pilgrimage” denotes, is the personal appearance of the worshipper in the one place allowed for it, the Temple of Jerusalem, and in that place alone could the Passover offering be made. The rabbis, centuries after the destruction of that Temple, declared that a person’s home could substitute for that Temple, and the meal consumed at that table substitute for the pascal lamb.

[9] Infra for a discussion of the origin and function of the rabbinate.

[10] 2 Kings 22; cf. 2 Chronicles 34.

[11] Ex 31:15; Ex 35:2, a story of the implementation of the penalty is found in Numbers 15. Jewish Orthodoxy skirts the issue by noting that Jews usually do not have the power to execute anyone, but that is not true in many places, and certainly not in Israel where the State has executed Adolf Eichmann.

[12] For a comprehensive list and sources: Cohn, Haim Hermann, Louis Isaac Rabinowitz, and Menachem Elon. “Capital Punishment.” In Encyclopaedia Judaica, 2nd ed., edited by Michael Berenbaum and Fred Skolnik, 445-451. Vol. 4. Detroit, MI: Macmillan Reference USA, 2007.

[13] Referred to as “Levirate marriage” the rules are defined in Deuteronomy 5:5-10.

[14] The ritual originates in Numbers 5 and there is an entire tractate (treatise) in the Talmud devoted to it.

[15] Phylacteries, or t’fillin, are an excellent example of a tradition kept by some modern Jews which reflect biblical texts and traditions. Many modern Jews include both the biblical sources of the requirement and an actual physical instrument in their daily worship. For example, Deuteronomy 6:8 says, וּקְשַׁרְתָּ֥ם לְא֖וֹת עַל־יָדֶ֑ךָ וְהָי֥וּ לְטֹטָפֹ֖ת בֵּ֥ין עֵינֶֽיךָ׃ “Bind them as a sign on your hand and let them be symbols between your eyes.” Notice that neither here nor in other prooftexts (Deut 11:18; Ex 13:9,16) does the Hebrew contain the word t’fillin (תְּפִלִּין). Nor is there any source within the Bible for how anyone should attempt to comply with the requirement. It would have been economically impossible for any Israelite to assemble the texts and materials prior to the Roman era. And indeed it is in the archaeology of such sites that we have found (for example, at Masada) exemplars of phylacteries in use in the era of the Temple. It is therefore fair to claim that phylacteries were an attempt by Judeans living in that era to comply with biblical commandments and that tradition was retained and extended by Rabbinic Jews after the destruction of the Temple.

[16] The term “ancient” here refers to models attested in the Mishnah, ca 250 CE.

[17] Josephus reports that the Judean king, Alexander Janaeus, had 800 Judeans who were among those who had rebelled against him crucified. A.J. 13.14.2

[18] Acts 5:34-42, Φαρισαῖος ὀνόματι Γαμαλιήλ, a Pharisee named Gamliel. Also in Acts, 22:3 Paul is quoted as saying he was educated in the tradition by Gamliel: Ἐγώ εἰμι ἀνὴρ Ἰουδαῖος, γεγεννημένος ἐν Ταρσῷ τῆς Κιλικίας, ἀνατεθραμμένος δὲ ἐν τῇ πόλει ταύτῃ παρὰ τοὺς πόδας Γαμαλιήλ, πεπαιδευμένος κατὰ ἀκρίβειαν τοῦ πατρῴου νόμου, ζηλωτὴς ὑπάρχων τοῦ θεοῦ καθὼς πάντες ὑμεῖς ἐστὲ σήμερον. Also relevent to this discussion is the identification of Paul as a “Jew” which is common to every major translation. But note that the Greek is Ἰουδαῖος which can just as easily be translated as “Judean.” And again, Γαμαλιήλ is not identified with any honorific which would imply “rabbi” or “master.”

[19]   ארְאֶ֙נּוּ֙ וְלֹ֣א עַתָּ֔ה אֲשׁוּרֶ֖נּוּ וְלֹ֣א קָר֑וֹב דָּרַ֙ךְ כּוֹכָ֜ב מִֽיַּעֲקֹ֗ב וְקָ֥ם שֵׁ֙בֶט֙ מִיִּשְׂרָאֵ֔ל וּמָחַץ֙ פַּאֲתֵ֣י מוֹאָ֔ב וְקַרְקַ֖ר כָּל־בְּנֵי־שֵֽׁת׃

What I see for them is not yet, What I behold will not be soon: A star rises from Jacob, A scepter comes forth from Israel; It smashes the brow of Moab, The foundation of all children of Seth. (Num. 24:17 NJPS)

[20] Mishnah, Pirkei Avot, 2:16

A Farewell to Laylabelle

Laylabelle in 2019

As you will soon understand, what I write now has been heavily on my mind for more than three months. A week before our arrival in Marquette, we brought Laylabelle, our standard Poodle, into our Knoxville veterinarian for her regular teeth cleaning. The vet removed a small skin tag from her gumline and said he didn’t think it was anything serious but would still send it off to the pathologist.

A week later, we had just moved into our summer digs and Terri was sitting at the kitchen counter when her phone rang. It was our vet calling to tell us that the pathologist found the skin tag to be metastatic melanoma. That meant that Laylabelle’s lifespan would be measured in weeks rather than months or years. He ran through some medical alternatives which included things like removing part of her jaw followed by chemotherapy. But that would not likely add more than a year to her life, and she would be very debilitated for most of that time.

To say the least, we were in a state of shock. After all these years of planning to have a great summer up on Lake Superior, we were looking at watching our beloved animal companion sicken and die. The skin tag that was removed soon turned into a tumor, and Terri kept track as it grew large enough to impair her eating. At that point, we made the decision to have our Marquette veterinarian remove the tumor although he cautioned us that it would return fairly soon, and with greater force. But it did give Laylabelle an additional month of a happy life up here on The Lake. She also got to go to Milwaukee with us and visit the grandkids and Shoshana and Karl’s beautiful dogs, Jazzie and Dottie.

Five weeks after the surgery, Laylabelle’s tumor was back with a vengeance. Now covering two teeth and bleeding. While Laylabelle continued to walk with a spring in her step and shower us with affection, she lost the ability to eat regular dog food. This week, she had trouble eating soft, canned food and things like the scrambled eggs I brought her from our hotel breakfast.

At 4:30pm today, we brought Laylabelle to our Marquette vet and two vets agreed that the time had come. Not only was the tumor inoperable, but in all likelihood the melanoma had spread to other parts of her body. By 4:45pm, our beautiful puppy of eleven years had slipped away from us. In a few days, her ashes will join her older foster-sister Nina de Amor on the coast of The Great Lake.

Allan Falk for the Win!

My friend Allan Falk sent me this wonderful story about an episode from his legal career which involved a synagogue in Michigan’s Upper Peninsula. What follows is his own retelling.

__________________

Word reached me (Allan Falk) from a friend I’ll call Jim that his old boyhood shul in Iron Mountain, Michigan, Anshe Knesset Israel Congregation, was down to 4 living members, one of whom was a widow who is not actually Jewish herself. The surviving congregants had decided to sell the shul (and completed a sale to a non-profit drug treatment outfit early in 2020). But while the shul was on the market, the local tax assessor put the property on the tax rolls in 2019 (without proper notice), and in order to complete the sale they were going to have to pay the property tax of about $1500, plus a late penalty.

Iron Mountain Congregation Anshe Knesseth Israel

Of course, I inquired how the assessor had failed to give notice. She made a half-hearted, ill-conceived attempt to do so–she mailed notice to a person who had been treasurer of the congregation many years earlier, but not to his current address which had been the Iron Mountain cemetery for about 25 years. She then resent notice to a person with a similar name to someone else in Georgia, who had no relationship to anyone or anything in or near Iron Mountain or connected with the synagogue. This bit of idiocy was in the context of the congregation President walking into City Hall monthly to pay the utility bill, and being known to the City Treasurer–in fact, it was on one such occasion that in casual conversation the City Treasurer mentioned that the synagogue’s property taxes were past due that brought the problem to anyone’s attention.

Jim also indicated that the assessor had put the property on the tax roll after inspecting it. I asked how the assessor gained access for her inspection, and it turned out the assessor and the realtor were friends, so the realtor, without checking with anyone connected to the synagogue, gave the assessor the key. The assessor saw that there were books on the floor (the book shelves had been given to the Green Bay, Wisconsin Chabad) and concluded that no religious services had been held for some time (the last formal service had been a few years earlier, when a family reunion brought a large group back to Iron Mountain). The passage of more than a year (and failure of the congregation to protest the assessment, of which it had no knowledge, at the March, 2019 Board of Review meeting) meant that the tax issue could not be favorably resolved in any Michigan court or similar proceeding (such as the Michigan Tax Tribunal). Thus, I began considering, literally, how to make a federal case out of the matter.

So, after my initial legal research, I wrote a letter to the Mayor, City Treasurer, and Assessor, pointing out that whether or not religious services had been held in the past millennium or not, under a precedential Michigan Court of Appeals decision the property remained exempt from taxation until put to a different, non-exempt secular use. I also note that the realtor had no authority to use the key for any purpose other than showing the property to a potential buyer, the assessor not having any intention to buy, and thus, under other law I cited, the assessor’s entry into the property was a trespass, and when done for purposes of inspection in her official capacity, was a violation of the congregation’s 4th amendment right against unreasonable searches and seizures. I propose that, if the City will merely refund the $1637 in property taxes and late fees, the matter would be fully resolved. But I further warned that if my proposal were rejected, the City and its officials involved would be facing a possible federal court lawsuit under the Civil Rights Act of 1870, and be liable not only to refund the $1637, but to pay damages and my attorney fees. My letter, which I vetted with Jim and his group (lest my scorched earth approach leave them uncomfortable), allowed ample time for a response.

Two weeks later I got a phone call from a person who identified himself as the attorney for the City of Iron Mountain (he’s a senior partner in the largest law firm in town). He asked for more time to respond, and I agreed. The time elapsed, so I called him back–he claimed he needed more time, and again I consented. But the time again expired, and when I follow up he promises (it’s Monday) he’ll definitely have an answer for me on Friday–he gives me his word (N.B. It is unethical, and grounds for discipline, for a lawyer to make a false statement to anyone at any time–hard to believe, I know). The following Monday, having heard nothing, I call and find he is on vacation. I e-mail him, asking if perhaps his boss ordered him to take vacation, as it seems to have come as a surprise to both him and me. He writes back, telling us to pound sand (he’s a bit more lawyerly, but that’s the gist of it).

So I go back to Jim and his group, noting that their choice is to admit they were bluffing and walk away, or authorize me to file suit. After much consternation about the optics and a last attempt at compromise by having their President speak with the mayor to determine if the city attorney was actually doing as instructed (apparently he was), they give me the green light, and I file my complaint on behalf of the synagogue, Jim and his brother, the president, and the widow in federal court: Count I, illegal search and seizure (4th Amendment), Count II, denial of due process (lack of notice–14th Amendment), Count III violation of synagogue’s 1st Amendment rights by rescinding its tax exemption, Count 4 common law trespass. The defendants are the City, the Mayor, the Treasurer, and the Assessor.

About 10 days after process is served, I get an e-mail from an attorney for the assessor’s insurer, offering us our $1637 to dismiss the lawsuit. In response, I note that ship had sailed–the opportunity to walk away that cheaply had been offered, and all we got was rude treatment in response. After suggesting that, at this point, it would require reimbursement of our filing fee ($400), sheriff’s fees for service of process (about $75), and payment of my attorney fees (which I estimate at more than $10K), I suggest he should make a more reasonable offer–had he come back with $5K or anything close to it, I’m pretty sure we’d have called it a day. But he refuses the bait, and no further settlement communication results.

A week later, attorneys hired by two insurance companies (one for the City, one for the assessor) appear and file answers that are pure, unadulterated pettifoggery (denying most everything, or claiming to know nothing, including about events in which their clients were directly and personally involved, but admitting the fact of putting the synagogue on the tax rolls). Recognizing from their answers I made some assertions that might be problematic if I try to prove them in court, I file an amended complaint (as permitted by the federal rules), and they refile essentially the same answers.

Under the federal rules, each party must now make “initial disclosures”. I do so carefully, with strict attention to the requirements of the rules, and amass photographs, documents, and affidavits (including 1 from the Chabad rabbi averring that, as an expert in synagogue operations, when he visited to take bookshelves and 2 shtenders a month or so before the assessor’s inspection, the interior and exterior looked to him like a fully functional synagogue). Their initial disclosures are intentionally obstructive and obfuscatory, and not at all what the rules require.

So now I file a motion for summary judgment, noting that, from what they have admitted, plus what they have failed to disclose about events in which they were directly involved, it is clear that we have a right to recover damages on each and every claim. They file answers to our motion which, again, suggest their attorneys got law degrees by mail from tRump University or a gumball machine. I promptly file a reply brief that blows their puerile arguments out of the water.

At this point the federal magistrate suggests that, before a ruling on our motion for summary judgment, an “early settlement conference” might be a good idea. I agree, provided the opposition is prepared to participate by tabling a serious settlement offer and not repeating anything like their prior de minimis and absurd proposal. This requires each side to supply the magistrate with details of its settlement posture, in confidence. We advise the magistrate our president wants $15K for her travails, and $5K each for Jim and his brother Jack (the widow, who lives in Wisconsin, has by now dropped out), plus $5000 for the synagogue, and my attorney fees. I compile a separate, detailed brief on attorney fees to which I attached details of the hours I’ve invested, which I provide both to the magistrate and opposing counsel.

By the time of the Zoom conference, I’m in Florida visiting my sister, so I participate from her lanai. My internet connection keeps crashing, but Jim and I soldier through, and we begin by offering to settle for $120K, plus $20,000 for my attorney fees . The magistrate returns to tell us they will offer $50K, but including my attorney fees. I point out to the magistrate that I am uncomfortable negotiating my attorney fees as part of a package deal, as that creates a conflict of interest. But the magistrate is insistent (he wants this case off his docket), so with Jim’s approval, noting that I have the $30,000 in actual damages in hand to fully satisfy my clients, I propose $70K for attorney fees, or $40K if they will apologize in writing for their mistreatment of the synagogue and its members. An hour later he returns with a 2nd counteroffer–$75K total ($60K to be paid by the assessor, $15K by the City), no apology. It’s late in the day, my clients really don’t want to continue the lawsuit (and based on what the magistrate has told me, I’m not savoring the prospect of trying to convince a UP and Western Michigan jury to award a bunch of money to Jews, or especially to an elderly Jewish lawyer with a J.D. from Yale Law School), so we accept, noting that the defendants outrageously prefer to have the taxpayers pay extra to settle in order to avoid apologizing (the magistrate says nothing, but gives me a knowing smile).

So, rather than pay $1637 (or less–I’m sure my people would have said “OK” if the City offered to refund half or so in response to the opening missive), the City and its assessor and their insurers and attorneys preferred to make an actual, federal case out of their own folly, and then pay $75,000 to make it go away. As Dave Barry would say, “I’m not making this up”. One usually expects that idiots, once represented by counsel, will moderate their idiocy, but these asshats decided instead to up the ante, with entirely predictable results. (I’m informed the Mayor reported to City Council that, because he had “held firm”, they were able to settle on “favorable terms”. I have no idea what happened to the city’s or assessor’s insurance premiums after that, or whether the City continues to use the same imbecile or his law firm as its regular attorney.) The magnitude of narishkeit is even worse than it appears–I’m familiar with municipal insurers, and there’s always a deductible for attorney fees, at least $10K if not more. So the City and the Chelmites in charge embarked on a course of action that was going to cost the treasury at least 6X as much in out-of-pocket attorney fees as we were requesting be refunded, the epitome of “We’re losing on every transaction, but we’re planning to make it up on volume.”

The president joined Jim and his brother in donating $5K each from the settlement to the non-profit (but I’m still glad I insisted that Jim and his brother both give me a dollar figure, rather than waive individual claims for damages). The synagogue’s $5K was disbursed to Jewish 501(c)(3) groups that the AKIC board selected. As with any good fairy tale, everyone (plaintiffs and idiots alike) lived happily ever after.

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And to my wonderful friend, Allan Falk, I say, “Kol hakavod l’kha!”, You deserve full honor for your victory!

Understanding Jewish Orthodoxy As A New Religion

I recently received a request for comment on a proposed discussion as follows:

“We’ll talk about the new government in Israel and the declaration by Chief Sephardic Rabbi Yosef that Reform and Conservative Judaism is a new religion.”

The question makes perfect sense within an Orthodox context. Like many religions, Jewish Orthodoxy imagines itself to be the model of authenticity. It is no different than Roman Catholicism considering itself the only authentic repository of the Christian religion, or Protestantism claiming that resting authority in a Pope is a fundamental violation of Christian principles.

Orthodox Jews will usually point to various aspects of the way that non-Orthodox Jews observe their faith as some sort of “proof” that they are not authentically Jewish. Virtually all of these arguments fail for one overriding reason: Jewish Orthodoxy has departed from age-old methods of re-interpreting the religion. That departure is by almost any reasonable definition more serious than the violations they attribute to others.

Consider this: there is not the slightest doubt that the Torah applies the death penalty to any violation of the Sabbath that it deems a violation. So why are there so few executions among the Orthodox for violating the Sabbath? If you bother to raise the question, be prepared for wagon loads of nonsense in reply. The simple truth is that Judaism realized that it was mistake to apply such a harsh penalty for these infractions and over time eliminated the possibility. During the period when the rabbis assume the role of religious arbitration for those calling themselves Jews, virtually all capital punishment was abolished, and one sage opined that if a court (Beit Din) executed more than one person in 70 years it should be regarded as a corrupt court and abolished.

This modification of the religion of the Israelites continued throughout history. For any given community, there could be long periods of stasis punctuated by upheavel which required radical action and often, significant change.

Among the more significant instigators of change in Europe were new intellectual movements such as the Enlightenment. In Eastern Europe, many Jewish communities experienced new freedom through Emancipation. Whenever there is change, there is almost always resistance to change. Beginning in the early 1700s, some rabbis, especially in Ashkenaz, began to argue that there was so much turmoil in the world that age-old mechanisms for modifying Jewish practice (halakhah) could no longer be used. This was hardly the first time such calls had been heard. At the dawn of the Talmudic era, the Amoraim declared that many of the rules which had been used by the Tana’im to alter the halakhah could no longer be used because the newer generation of rabbis did not have the vast institutional memory that the Tana’im possessed and were therefore prone to making mistakes.

The notion that the changed experience in post-Medieval Europe was so much worse than earlier periods is absurd on its face. The fall of the First Temple, the Babylonian Exile, the fall of the Second Temple, the failure of the Bar Kokhba revolt, more than 1,500 years of persecution by Christians and Muslims–all this was not a problem requiring the abolition of rules for changing the halakhah, but somehow the Emancipation was?

It is that claim, the claim that the Jewish people and their leaders are now forbidden from making changes to the rules for things like Sabbath observance, is a new claim. This one argued by reactionaries who did not want to see change to those observances. Since this imposed a new regulation of practice which had not been the case in the prior two to three thousand years of Jewish practice, the religion which argues this, Jewish Orthodoxy, has to be understood as a new religious movement which differed from all that went before it.

The Reform movement was created by Jews who believed that the Reformation and the Enlightenment and Emancipation were opportunities to do what Jews have been doing since the inception of the faith–modify practice in accordance with the ways that Jewish people want to live. Conservative Judaism began as a reaction to Reform because some members of Reform thought things had gone too far. But that too is a part of the age-old dialectic. The insistence that no change to loosen halakhic strictures can be permitted is the more radical notion.

Today, Jewish Orthodoxy represents the smallest movement within Judaism–even in Israel. Of course, in a place like Israel, if people need or want to go to a synagogue, they often have little choice. Non-Orthodox synagogues exist in small numbers and for the most part in large metro areas. But merely because a person uses an Orthodox synagogue or prayer book–does that actually make them Orthodox? If that person drives on Shabbat, flicks lights on and off, doesn’t maintain separate meat and dairy dishes, is that person really Orthodox, or is the more accurate descriptor, “Reform”–meaning that while they like the traditions, they see no reason of faith not live as they choose.

We started this conversation mentioning Chief Rabbi Yoseph. Yitzhak Yosef.jpg Ask yourself, does this man dress like Moses? How about Rabban Gamli’el? Sa’adia? Maimonides? Notice that biblical personages wore the square garments on which the tassels were supposed to be affixed, but by choosing to wear clothing that looks like a different place in a different era, R. Yosef needs to wear a talit qatan to observe the mitzvah. And notice that the Torah never suggests this is permissible. But the Jews of a much later era wished to dress differently and so they adapted. In other words, they were Reform Jews.

For further reading, there is (of course) a vast scholarly literature on this topic. Remaining as one of the best is the masterpiece of Joseph L. Blau, Modern Varieties of Judaism, originally published in 1972. Blau was a student of Salo Whitmayer Baron, and taught at Columbia (where he Chaired the Department of Religion) for most of his career.