Kollot Haftarah Introduction: The power of being the majority

Written by Rabbi Josh Levy — 9 September 2023

Our haftarah for this morning is one of the most familiar stories in our rich literary heritage.
Except not quite.

A word of background.
For the last 10 years, we have, on some Shabbatot, taken as our haftarah a piece from chazal, from rabbinic literature.
It has been one of the projects of my rabbinate here at Alyth to create a full triennial cycle of rabbinic haftarot – a project that remains steadfastly unfinished.

For the last couple of triennial cycles, when we have come to Nitzavim, and the famous line in Deuteronomy 30 ‘lo bashamayim hi’ – ‘it is not in heaven’, we have read as our haftarah the famous story of the oven of Akhnai as found in the Babylonian Talmud.

For those not familiar with this text, it describes a dispute which is superficially about the purity status of a portable oven – though it’s actually a dispute between two of the greats of rabbinic Judaism about the very nature of the rabbinic exercise.
In the story, Rabbi Eliezer rules this oven as ritually pure while the other Sages, led by Rabbi Yehoshua rule it impure.
Eliezer – described elsewhere as a plastered cistern that loses no water – represents a model of religious life in which the preservation of the traditions of the past is the priority – the most important thing is memory – and he brings support for his position in the form of miracles and the explicit approval of God.
But he – and God – are overruled by the others.
Rabbi Yehoshua – who elsewhere articulate the view that the rabbinic exercise depends on chiddush, on innovation – takes the words of our Torah portion – lo bashamayim hi – it is not in heaven, – to state that post Sinai the work of understanding, of working out what we should do no longer belongs to the heavens, but is the domain of human interpretation, of human intellect.
In the Bavli’s imagining of this story this transformation is given the divine seal of approval when God laughs and declares “My children have defeated me”.

It’s an extraordinarily powerful story. It articulates one of the most profound tensions in our tradition – between tradition and innovation, between honouring our foundational texts and our responsibility to use our own divinely given gifts to strive for what is right.

So, why not read it again this year? Especially as it is a much easier read than the version from Yerushalmi, from the Jerusalem Talmud, that Danny is about to read for us?

The story of Eliezer and Yehoshua also articulates another question – one which is being felt profoundly at the moment in our Jewish lives, and especially in Israel, and in our diaspora relationship with Israel.  And this tension is one brought out more powerfully in the version in Yerushalmi which is a less crafted, a rawer text.

The question is this: if ‘lo bashamayim hi’ – if power, authority, now fall to us – who gets to decide, how do they do it, what are the limits?

Rabbinic tradition privileges majority decision making – in another textual subversion, it takes the verse in Exodus ‘lo tihyeh acharei rabbim l’ra’ot – ‘do not incline after the majority to do wrong’ as proof text that we follow the majority.

But it is also deeply aware of the danger that this carries.
And this story is one of the ways it expresses this.

The Bavli version is brought in the context of a discussion about ona’at dvarim, hurting with words. Having adopted their view, the majority then treat Rabbi Eliezer shamefully. They cause him to be hurt and embarrassed; they excommunicate and shun him. And, according to the story, this brings genuine damage not just to him but to the world.
And often that gets lost in the beauty of what comes before.

In the Yerushalmi version, that we are reading this morning, this is where we begin and end.  All the rest is not the focus – the focus is how a majority uses its power, how we treat minority views, those with whom we disagree.

It is brought in the context of a discussion about excommunication – the desire of the sages to excommunicate Eliezer, despite – maybe because – of the fact that he has divine support, that he can speak truth to them that they do not want to hear.

The text, indeed Eliezer himself, recognises that the majority can do what they wish.  But the focus is their mistreatment of him, his pain, and the destruction it brings. Here ‘lo bashamayim hi’ sounds rather weaker – more confrontational, more justification for doing that which is wrong. There is no divine laughter here.

What is the underlying message – one that, for the sake of the Jewish world, we must hope is heard over this coming year?
When a particular group has power, when it is the majority, yes it can do what it wants, its version of Judaism, its understanding of Torah can be dominant.

But true leadership lies in the not doing, in recognising the destruction that this approach can bring.

Our tradition cautions against ignoring the voices of those with whom one disagrees, cautions against mistreating those with a different view, cautions against the irresponsible use of power.

‘Lo bashamyim hi’ is not only a principle of human authority, but of human responsibility. Just because we can do something, doesn’t mean that we should.

 

Jerusalem Talmud, Mo’ed Katan 81c-d
The Rabbis wanted to excommunicate Rabbi Eliezer.
They said, ‘Who will go and tell him?’ Rabbi Akiva said, ‘I will go and tell him.’ He came before his teacher and said to him, ‘Rabbi, Rabbi, your fellows are excommunicating you.’
Rabbi Eliezer took him and led him outside. He said, ‘Carob tree, carob tree, if the halachah accords with the words of the Rabbis, be uprooted!’ But it was not uprooted. ‘If the halachah accords with my words, be uprooted!’ And it was uprooted. ‘If the halachah accords with the words of the Rabbis, return!’ But it did not return. ‘If the halachah accords with my words, return!’ And it returned.
All of these miraculous occurrences, yet the halachah does not agree with Rabbi Eliezer!
Rabbi Chaninah said, ‘When the Torah was given, it was only given AFTER THE MAJORITY TO INCLINE (Exodus 23:2).’
Did Rabbi Eliezer not know that the Torah was given AFTER THE MAJORITY TO INCLINE? He was upset [not because of the ruling itself but] because they burned in front of him all the things that he had declared pure.
Rabbi Yirmiah said, ‘There was a great upset that day. Every place upon which Rabbi Eliezer set his eyes was burned. And not only that, but even a single kernel – half was burned, and [the other] half was not burned.’
And the walls of the House of Study shook.
Rabbi Yehoshua said to them, ‘When the Rabbis contend with one another, what difference does it make to you?’ A heavenly voice came and said, ‘The halachah is according to Rabbi Eliezer, my son.’
Rabbi Yehoshua said, IT IS NOT IN HEAVEN (Deuteronomy 30:12).