In last week’s column, I mentioned the Talmudic tendency to interpret the law in ways that will make it more likely to be followed. To use the example from Tractate Beitzah, it is ordinarily prohibited to slaughter an animal on a festival; but if the animal looks likely to die, which will result in a financial loss to the owner, then slaughtering is permitted, so long as even a mouthful of the meat is consumed on the holiday itself. In this week’s Daf Yomi reading, as we continued into Chapter Four of Beitzah, the rabbis returned to this idea and made it even more explicit. As they have before, they even uttered the touching phrase, “Leave the Jews alone”—that is, don’t impose a greater legal burden on the people than they are able to bear.
Of course, the Talmud’s idea of a bearable burden is quite different from that of most American Jews today. The rabbis certainly did not take this principle to mean that basic Torah commandments—keeping the Sabbath, keeping kosher—could be suspended if people didn’t feel like following them. But in certain less important cases, the Talmud explains in Beitzah 30a, it is better to allow Jews to remain ignorant of the law and thus break it unintentionally, than to inform them about the law, and thereby have them break it deliberately. In Western legal tradition, there is a maxim that “ignorance of the law is no excuse”: Even if you don’t know you are doing something illegal, you can still be punished for it. The rabbis think differently: To them, “It is better that [the Jews] be unwitting sinners and not be intentional sinners.”
The specific case at issue here has to do with how to carry jugs of water on a festival. Chapter Four of Tractate Beitzah emphasizes that, even if a certain kind of work is permitted on a holiday, it should be performed in an unusual manner, as a kind of symbolic acknowledgment that this is not an ordinary workday. “One who brings wine jugs from one place to another place,” the Mishna says, “may not bring them in a basket or a tub,” as he ordinarily would during the week. Instead, he should carry them “in front of himself,” even though this is more unwieldy. In the Gemara, Rava gives a series of further examples: If you ordinarily carry a load in your arms, on a holiday you should carry it on a pitchfork. If you ordinarily use a pitchfork, you should use a carrying pole instead. Still, all these alterations are primarily symbolic, so that “if it is impossible to modify, it is permitted”: If you can only do a job in the usual way, then you can go ahead and do it on a holiday.
After this principle is established, Rav Chanan bar Rava asks a question of Rav Ashi. “The Sages said: As much as it is possible to modify the workday manner, one should modify on a festival. But don’t those women fill their jugs with water on a festival without modifying, and we say nothing to them?” The backbreaking and endless task of carrying heavy jugs of water from the well to the house was, until the advent of running water (and still today in places without it), a major part of a woman’s workday. Why don’t these women have to carry water in a different way on holidays, just as men are supposed to carry their burdens differently?
There are two possible answers to this question. One is that there is simply no way to carry water in a jug except the usual way, so that a holiday modification is impossible. “How should they act?” Rav Ashi responds. Women could carry small jugs instead of the usual large ones, but then they would have to make extra trips to the well, which would defeat the purpose of minimizing labor on a holiday. They could spread a scarf over the jug as a token observance, but then the scarf might fall in and they would have to wring it out, which is forbidden on holidays. All in all, the regular way of carrying water seems to be the best.
But there is another possible answer, which is that the rabbis shouldn’t even bother to rebuke the women about their jug-carrying technique, since the women won’t listen to them anyway. As Rava bar Rav Chanin points out, there are several other practices that are technically forbidden that women, in particular, still cling to. “We learned that one may not clap, nor strike a hand on his thigh, nor dance on a festival. … But nowadays we see that women do so and yet we do not say anything to them.” Likewise, as we earlier learned in the Talmud’s treatment of Shabbat, one is not supposed to sit at the entrance to an alleyway on Shabbat, lest an object roll into the public domain and one be tempted to go retrieve it. “But don’t these women take their jugs, and go, and sit at the entrance to an alleyway, and we do not say anything to them?”
It is here that the Gemara explains the principle, “Better that they be unwitting sinners and not be intentional sinners.” It is fascinating that this admission of the limits of rabbinic power takes place in such a gender-specific context: The rabbis, all men, acknowledge that they cannot bring women completely under their power. Women’s own practices and customs have an integrity that the law must respect.
This is true even when it comes to certain customs that directly violate Torah laws. The rabbis interpret the Torah to require that, on the eve of Yom Kippur, we begin our fast before sundown, thus extending the holiday. But here, too, “people eat and drink until darkness falls and we do not say anything to them.” Moments like these open up a new perspective on the Talmud, reminding us that its perfectly coherent system of laws was an intellectual construction, not necessarily a description of Jewish reality.
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