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Detail, ‘Agnus Dei,’ by Francisco de Zurbarán. Museo del Prado, MadridInset image: Wikipedia/Museo del Prado, Madrid.
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The Letter of the Law

In this week’s ‘Daf Yomi,’ how a badly educated Jew might be able to complete a sex act with an ‘impure’ woman and not be sinful while a Talmud scholar could not

Adam Kirsch
December 19, 2017
Inset image: Wikipedia/Museo del Prado, Madrid.
Detail, 'Agnus Dei,' by Francisco de Zurbarán. Museo del Prado, MadridInset image: Wikipedia/Museo del Prado, Madrid.

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

As we saw last week, although the nominal subject of tractate Shevuot is oaths, the first two chapters are devoted to another topic entirely: namely, the accidental defiling of the Temple, by entering it or eating sacrifices there while in a state of ritual impurity. The reason why oaths and impurity belong together is that both are mentioned in the same chapter of Leviticus, in a passage dealing with sins committed unintentionally, during what the rabbis call “a lapse of awareness.” In the case of the Temple, there are two ways one might commit such an unintentional sin: One might enter the Temple not knowing one was impure, or one might be impure and not know that he was entering the Temple. In either case, the sinner atones with a sliding-scale offering, in which the value of the offering is determined by his wealth: A rich man brings a sheep, while a poor man can bring a cheaper meal offering.

Much of the Torah and the Talmud is devoted to the laws governing sacrifices, which were a major part of Jewish practice during the days when the Temple existed. Indeed, the Temple itself must be thought of as a giant ritual slaughterhouse: All day and all night, animals were being slaughtered, flayed, roasted and eaten there in a constant stream. No wonder that, in Pirkei Avot, it is mentioned as one of the miracles of the Temple that no fly was ever seen in it. This would indeed have been miraculous, in an age before modern sanitation and refrigeration.

Given the importance of sacrifices, one might well imagine that there was some jockeying for status involved in bringing the biggest, most desirable offering. But the rule about sliding-scale offerings prompts the rabbis to deny that the size of the sacrifice matters. “Is the size of the offering of any importance before heaven?” the Gemara asks in Shevuot 15a. The rabbis point out that, at different moments in Leviticus, various kinds of sacrifices—animals, birds, and meal—are all described with the same formula: “a fire offering, a pleasing aroma.”

This suggests that what God valued in a sacrifice was not the size but the smell: Anything that was burned in the right fashion would ascend to heaven and delight his nose. The rabbis, however, are clearly not at ease with the anthropomorphic implications of this idea, and so they shift the emphasis from the smell of the sacrifice to the intention behind it. Any sacrifice is acceptable, the Gemara says, “provided that one directs his heart to his father in heaven.”

Here we can see the rabbis coming to grips with one of the central problems of Judaism, from ancient times down to the present day. Jewish law is based on the idea that God wants us to act in certain prescribed ways. Sometimes these prescriptions make perfect sense: When God says not to commit murder, we instinctively understand the reason for this commandment, which is shared by all human civilizations. But many things in Jewish law seem totally arbitrary—for instance, the order of the sacrifices, which are elaborately prescribed and choreographed in the Torah and the Talmud. (Back in tractate Yoma, we saw the practically balletic routine required of the High Priest on Yom Kippur; if he got one step wrong, he had to start over from the beginning.)

Clearly, it matters to God that sacrifices are performed in just the right way. At the same time, however, the Talmud is insistent on bringing an ethical and spiritual dimension to laws that, in the Torah, often seem more like arbitrary superstitions or taboos. The rabbis do not say that any old sacrifice is acceptable to God; the law must be followed to the letter. At the same time, however, the ritual action must be performed in the proper spirit, with the heart directed to God. Kavanah, intention, is crucial to Jewish observance; in the kabbalistic tradition, it would even be endowed with cosmic and magic powers. This is the Jewish response to the Apostle Paul, a Jew turned Christian, who convinced the world that Judaism was a religion of the letter, while Christianity cared about the spirit. Not so, the rabbis would reply: what Judaism cares about is the right letter performed in the right spirit.

Intention is central to the issues raised in chapter two of Shevuot. Certain sins are sins only if one is aware that they are sinful—for instance, entering the Temple in a state of impurity. This kind of awareness requires Jewish knowledge: one would be conscious of being in a state of tumah, impurity, only if one knew how tumah is contracted. So what happens, Rav Pappa asks, “if the halakhot of impurity became hidden” from a Jew, so that “he did not know whether a creeping animal is impure or whether a frog is impure”? To the rabbis of the Gemara, such ignorance is unimaginable: “Go learn in a children’s school,” the Gemara says derisively, as if even a 5-year-old could tell you that a frog is impure. This may well have been true in ancient times; but what are we to say about Jews today, many of whom do not know the first thing about ritual purity laws? Are they responsible for violating those laws anyway, or does intention matter here as well? (Or perhaps one can say that the failure to learn about Jewish law is itself an intentional act.)

The question of who can be expected to know what arises in a very different context in Shevuot 17b. One of the most important purity taboos in Judaism has to do with sexual intercourse during menstruation, which is forbidden in the strongest possible terms. To avoid violating this prohibition accidentally, couples are supposed to avoid sex near the time when menstruation is expected to begin. But what happens if a couple is in the middle of sexual intercourse and the woman begins to menstruate unexpectedly?

One might think that the man should withdraw immediately. According to the Gemara, however, this would not avoid sin, because “his withdrawal is as pleasant to him as his entry.” If the man receives pleasure from the movement of withdrawal, he is effectively prolonging the intercourse, not ending it, which makes him guilty despite himself. Is there a way out of this bind? “What should one do in such a situation?” the rabbis demand. Rava provides an answer: The man should not withdraw until his penis has become flaccid, which would allow him to move it without experiencing pleasure. To this end, “he should press his 10 fingernails into the ground” and wait until he loses his erection.

Here too, however, the law takes knowledge and intention into account, discriminating between the expectations of a Torah scholar, a talmid hakham, and an ignoramus, an am ha’aretz. Even an am ha’aretz is assumed to know that sex with a menstruating woman is forbidden—that is another piece of Jewish knowledge so basic that the rabbis can’t imagine anyone being ignorant of it. But he might think that this taboo requires him to withdraw as soon as he realizes that the woman is bleeding, while he is still erect, which would lead him unintentionally to violate the law. A Torah scholar, on the other hand, knows that he must wait until he is flaccid to withdraw. Thus if an am ha’aretz withdraws his erection, he is less to blame than a Torah scholar who does the same thing. One might be led to conclude that, in this case, ignorance is literally bliss. Isn’t it dangerous to learn about Jewish law, since the more you know, the greater your responsibility before God? But of course, the rabbis couldn’t imagine thinking that way; for them, obedience to mitzvot is its own reward.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here. The column continues January 9, 2018.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.