Marrying Within the Tribe - A Precedent for Verse Reinterpretation?

The plan was to discuss next whether or not it is halachically possible to have an act be permissible in one context and prohibited in another. I will get to that discussion. However, a reader of this blog, Rafi Ganz, sent me a copy of his article on the topic of marrying within the tribe. I owe him a great debt of gratitude for bringing these sources to my attention. Please check out his blog where he recently posted his thoughts, which I draw upon extensively in this post. 

In the previous post I described in detail what I am trying to accomplish. I explored two potential precedents for reinterpreting a verse and changing the accepted Halacha. The prohibition against marrying a Moabite, and the exclusion of gentiles from many categories in Halacha.

My conclusion was, that if the appropriate criteria are met (as I described in detail), a verse can be reinterpreted even when it has practical Halachic ramifications and remain within the accepted boundaries of Orthodoxy. Thanks to Rafi, I now have a third precedent.

Tribal Intermarriage

In the story of the daughters of Zelaphechad, the law is established granting women the right to inherit property if there are no male siblings. A faction of the members of the Tribe of Menashe were concerned that their tribe could potentially lose property to another tribe should such a woman marry a male member of another tribe.  In response to their concern, Moshe instructed:

So Moses, at the LORD’s bidding, instructed the Israelites, saying: “The plea of the Josephite tribe is just. This is what the LORD has commanded concerning the daughters of Zelophehad: They may marry anyone they wish, provided they marry into a clan of their father’s tribe. No inheritance of the Israelites may pass over from one tribe to another, but the Israelites must remain bound each to the ancestral portion of his tribe. Every daughter among the Israelite tribes who inherits a share must marry someone from a clan of her father’s tribe, in order that every Israelite may keep his ancestral share. Thus no inheritance shall pass over from one tribe to another, but the Israelite tribes shall remain bound each to its portion. (Bamidbar 36:5-9)”

The simple understanding of this verse is that due to the concern for the integrity of inherited tribal lands, there is a prohibition against a woman with tribal property to marry someone from another tribe.  The potential ramifications of such a prohibition are staggering. It is easy to imagine how to the ultimate fracture of the Israelite nation. It should be obvious that encouraging intermarriage among the tribes is crucial to building a sense of unity and peoplehood among the tribes of Israel.  Any restrictions on intermarriage would clearly have the opposite effect, and bring about division and tribalism.  Furthermore, it places an onerous burden on women seeking appropriate marriage partners.  The Talmud however, describes how this problem was handled:

The mishna taught that Rabban Shimon ben Gamliel said: There were no days as happy for the Jewish people as the fifteenth of Av and as Yom Kippur. The Gemara asks: Granted, Yom Kippur is a day of joy because it has the elements of pardon and forgiveness, and moreover, it is the day on which the last pair of tablets were given. However, what is the special joy of the fifteenth of Av? Rav Yehuda said that Shmuel said: This was the day on which the members of different tribes were permitted to enter one another’s tribe, by intermarriage. It was initially prohibited to intermarry between tribes, so as to keep each plot of land within the portion of the tribe that originally inherited it. This halakha was instituted by the Torah in the wake of a complaint by the relatives of the daughters of Zelophehad, who were worried that if these women married men from other tribes, the inheritance of Zelophehad would be lost from his tribe (see Numbers 36:1–12). What did they expound, in support of their conclusion that this halakha was no longer in effect? The verse states: “This is the matter that the Lord has commanded concerning the daughters of Zelophehad, saying: Let them marry whom they think best; only into the family of the tribe of their father shall they marry” (Numbers 36:5). They derived from the verse that this matter shall be practiced only in this generation, when Eretz Yisrael was divided among the tribes, but afterward members of different tribes were permitted to marry. On the day this barrier separating the tribes was removed, the Sages established a permanent day of rejoicing. (Taanit 30b)

Apparently, at some point in history the scholars were faced with a dilemma.  It is reasonable to assume that the problem they faced was the resulting disunity between the tribes and the limitation of women's marriage choices. The scholars examined the verse carefully, and noted the use of the term "Zeh Hadavar - This is the matter".  This term, based on its usage elsewhere and the context, suggests that the tribal intermarriage prohibition was only meant as a temporary measure for the generation that divided the land originally.  Thus resulted the declaration that the prohibition was null and void.

This change in Halacha was very well received by the people.  It helped facilitate a positive change in the relationships between the tribes, and was likely an important step in the unification of the tribes into one national entity.  Hence the people celebrated and declared a special holiday of Tu B'Av.

Interestingly, many Rishonim and Geonim (early Halachic authorities) still maintained that at least part of this chapter in Numbers was meant to be forever. They felt that only the restriction against intermarriage was nullified, but the restriction against transferring tribal property remained in force forever (at least as long as the tribes retained distinct boundaries, which ended completely with the destruction of the first Temple). This results in a strange combination of verses.  How would this work?  the Ramban in Bamidbar (Numbers) 36:7 explains as follows: If a woman from Dan who owns property in Dan's tribal lands marries a man from Asher, any property would revert to her family in Dan upon her death, and not to her husband or children in Asher. 

This opinion raises a serious difficulty.  As long as the concern for intertribal land transfer was only the reason for the prohibition of intertribal marriage, then the ban against marriage would accomplish its purpose.  upon nullification of the marriage ban, there is no longer an issue of land transfer either.  The concern for national unity outweighs the concern of an exchange of property.  However, if we claim that the ban against transfer of land is a separate and distinct prohibition, and thus it remains in force even after the nullification of the marriage ban, then why do we need a marriage ban at all?  Land transfer is no longer a concern, even for the first generation! Rav Yerucham Fishel Perlow deals with this issue extensively here and attempts to reconcile this obvious incongruity, with limited success.

Interestingly, as Rafi Ganz points out, the law prohibiting transfer of land from one tribe to another is only found in the Ramban and other earlier Geonim such as R' Saadiah Gaon in his Sefer HaMitzvot. It is nowhere to be found in the Talmud or Chazal.  The later authorities clearly are interpreting the verse directly and inferring a mitzvah.  This is important for our case, as this is similar to what we are trying to do with our analysis of male homosexuality. There are two major distinctions though between our case and this one.  First, intertribal property transfer is a prohibition that they are inferring from the verse, while we are attempting to permit something that previous generations assumed was prohibited.  Secondly, we are dealing with a practical and relevant mitzvah, while the idea of inheritance of tribal property was only relevant during that period of history when the Land of Israel was settled and divided along tribal lines.  Nonetheless, it is still an important precedent.

Our analysis in not over though. Let's look again at the Gemara in Taanit.  What exactly happened on Tu B'av?  Did they really change an accepted Halacha? There are several explanations of the Gemara in the Rishonim:

1. Rashbam (Bava Batra 121a) - Tu B'av was simply the date of transition between the first generation and the second generation.  
2. Tosafot Rid (Bava Batra 121a) -  The limited nature of the law was known to a select few from the outset.  At this later point in history it was revealed that the prohibition of intermarriage between tribes was only meant to be temporary.  The reason for the concealment was out of respect for the original law.  
3. Rashi - In his usual fashion, Rashi writes somewhat cryptically.  He writes the language "Ve'Amdu Ve'Hiteeru davar zeh"  ("they stood up and permitted this action")  It seems likely that Rashi understood until a certain time intertribal marriage was thought to be prohibited, and then at a certain time in history the scholars got together and declared it to be permitted.

If we explained the Gemara according to Tosafot Rid or Rashbam, there is no indication that any law can be changed by reinterpretation.  However, the simple reading of the Gemara and Rashi's commentary is that the law was changed by a reinterpretation of the verse.  The ramifications of this idea for our discussion should be obvious now.  An accepted Halacha that prohibited certain marriages was changed.  this change came about because of a serious moral and communal problem, and a reinterpretation of the meaning of a verse in the Torah.

The famous Rabbi Aryeh Leib of Metz, known as the "Sha'agat Aryeh" after his popular book, asked several questions on the explanation of the Rashbam.  Primarily, if Tu B'av was the date between the two generations, then what kind of celebration could have been warranted?  Those of the first generation were still prohibited, and the children who are of the second generation had been permitted the entire time! In other words, no one was actually given permission to marry who hadn't already been permitted to marry!  due to this difficulty and others, he rejects the Rashbam's explanation.

The Tosafot Rid also has some glaring problems. Primarily, it seems extremely inappropriate to prohibit countless women from marrying for an unknown number of generations just to respect a law that was known to be no longer relevant!  How could the Rabbis enforce a marriage restriction that didn't exist?

On the other hand, if we revert to the simple reading of the Gemara and Rashi's explanation, everything would make perfect sense.  It was originally assumed that the prohibition was meant to be forever. At some point the scholars reevaluated the verse and determined that it was only meant to be temporary,  R Aryeh Leib (translated by Rafi Ganz) thus declares that the proper explanation in like our understanding of Rashi:

Rather, it appears to me that it was on the fifteenth of Av that they initially inferred that the prohibition only applies to the first generation. This is similar to the idea found in the Midrash in which Boaz tells Ruth that if she would have come earlier she would not have been accepted (i.e. they would not have been able to marry) because the specific exegesis limiting the marriage prohibition to a Moabite man but not a Moabite woman, had not yet been derived. From here we see that not all the interpretations of Torah were received from Moshe (Gevurot Ari, Ta'anit 30b)

R' Aryeh Leib makes his point clearly, and even compares it to the case of the Moabite that we discussed in the last post.  According to R Aryeh Leib, in both of these cases,  the verse was understood one way by the authorities for an extended period of time, and certain marriages were prohibited.  At a later date, presumably due to the pressing need, the authorities reevaluated the verses and thus nullified the prohibitions.  Thus a holiday of Tu B'Av was born!

We had discussed previously several understandings of the Ruth story, so I wasn't sure if I could use it as a precedent for our discussion.  However, according to R' Aryeh Leib, this is clearly a precedent as well.  He explicitly states, in no uncertain terms, that some interpretations, even ones with major practical halachic ramifications, were not received by Moshe.  These were left for later authorities to determine from their understanding of the verses themselves.

Most importantly, he clearly states that the intertribal marriage prohibition was nullified based on a new understanding of the Torah's words.

We now have three clear precedents for the reinterpretation of verses. The Moabite prohibition according to R' Aryeh Leib, the gentile restrictions according to Meiri, and now the tribal intermarriage restrictions according to Rashi.  All three of these precedents canm be applied to Rabbi Greenberg's interpretation of the verses in Leviticus regarding male homosexuality. 

The statement of R Aryeh Leib regarding Torah rules learned through exegesis should not come as a shock. He is only reiterating a well known opinion of the Rambam:

When the Great Beit din, that derived through the rules of exegesis, according to what seemed to their perception that a law is as such and they thus issued a ruling, and another court succeeded them and they perceived another reasoning that contradicted the original ruling, the second court can contradict the first and judge according to what seems correct to them, as it states "To the judge who will be in that age. (Deuteronomy 17:19)" You are only obligated to follow the court in your generation. (Mishna Torah, Hilchot Mamrim, 2:10)

It is clear from the Rambam, that rules derived by scholars using the accepted rules of exegesis can be reinterpreted by another future rabbinic court, even one that is of lesser stature and in a later time of history.  The Rambam has already made it clear in many places (see his introduction to peirush mishnayot for example) that when it comes to laws that have a clear tradition from Moshe that these cannot be changed.  It is worthwhile to review the notes of the Kessef Mishna, by the author of the Shulchan Aruch, R' Yosef Karo, on this passage of the Rambam.

His words are lengthy and complex, so I will not quote them in full.  However I will mention several points that are clearly obvious from the words of R Yosef Karo:

1. "... If the basis of the argument is such that one (beit din) derives using one of the rules of exegesis and another uses a different rule (to come to a different conclusion) then certainly (the second court) is able to nullify the decision (of the first court) even if it is not as great (as the first) in wisdom and in number"  The Rambam is of the opinion that as long as one is using the appropriate methods of interpretation, a future court can reinterpret the verse.  This is because the rules derived from verses by this method are not based on Sinaitic tradition.
2. "...If this is true, why can't the Amoraim (in the Talmud) disagree with the Tannaim (of the mishna ....maybe one can say that at the time when the Mishna was completed, they established accepted (upon themselves) that later generations should nom longer argue on the earlier ones, and they did the same at the time of the completion of the Talmud ..."  It is clear that the "beit din hagadol" referred to by the Rambam was not just the great Sanhedrin (as some incorrect translations seem to suggest, see the Chabad website for example). It refers to any court of Rabbinic scholars,  as the Mishna was completed several generations after the destruction of the Temple.

In principle then, a court today is allowed to contradict the words of a previous court, as long as it is over a matter of interpretation of a verse. We no longer may contradict the Talmud, due to the acceptance mentioned by Rav Yosef Karo.  However, as long as one is not contradicting the Talmud, there is no reason not to engage in the interpretation of the verses of the Torah.  Even when there are practical Halachic ramifications.

Rav Kook addresses this very question with regard to changing laws that were established by Chazal.  He was asked a question as to whether or not the Torah can go through "development" and change over time in response to changes in the historical understanding of morality.  His response is as follows (my translation):

(he describes the conditions of the Jewish people being restored to their land, the Great Sanhedrin being seated once again in Zion etc...) ... and if there should arise a question regarding some established law in the Torah that according to the contemporary morals and ethics it seems that this law needs to be understood in a different manner, then if in a truthful way in the hands of the great Beit din, it is decided that this law was only stated in a certain time (of Chazal) under certain conditions that no longer exist, the certainly they would be able to find an origin (for this decision) in the Torah and due to the confluence of the historical changes and the exegesis of the verses these would not be things that just happened by chance, but rather they would be signs of the wisdom derived from the Light of the Torah, and they (would demonstrate) the truth of the Oral Law, that we are required to listen to the Judge who will be in that age .... (he continues to describe that in our current degraded state of spirituality we cannot go against the words of Chazal)" (Iggerot Ha'Reiyah vol 1, page 103)

A careful reading of the above quote makes it clear that a Sanhedrin in the Temple is only required in order to change a law that was established by Chazal. In such a case, if there is a serious moral concern and the verse can be reasonably reinterpreted, a law may be changed.  The serious moral concern is certainly present in our conundrum related to male homosexuality.  However, we are not changing any laws established by Chazal.  I have attempted to demonstrate in this blog so far that there is no place in Chazal where they declared emphatically that the verse includes both humiliative and penetrative male/male intercourse. (PLEASE read my prior posts if you haven't done so already.  Every post MUST be understood only with the understanding of the arguments I have previously made.) so there is no reason why we should not be able to convene the appropriate scholars and determine if such an understanding of the verse could be accepted as practical Halacha.

Korban Pesach (Paschal Lamb) on Shabbat

Thanks again to another reader of this blog, whom I do not yet have permission to mention by name, I have come across another valuable precedent.

The Gemara in Pesachim deals with the question of Erev Pesach that falls out on a Shabbat.  Can one bring the Paschal Lamb on Shabbat:

The Sages taught a baraita with regard to the basic halakha governing the eve of Passover that occurs on Shabbat: This law was forgotten by the sons of Beteira, who were the leaders of their generation. The fourteenth of Nisan once occurred on Shabbat, and they forgot and did not know whether the Paschal lamb overrides Shabbat or not. They said: Is there any person who knows whether the Paschal lamb overrides Shabbat or not? They said to them: There is a certain man in Jerusalem who came up from Babylonia, and Hillel the Babylonian is his name. At one point, he served the two most eminent scholars of the generation, Shemaya and Avtalyon, and he certainly knows whether the Paschal lamb overrides Shabbat or not. The sons of Beteira sent messengers and called for him. They said to him: Do you know whether the Paschal lamb overrides Shabbat or not? He said to them: Have we but one Paschal lamb during the year that overrides Shabbat? Do we not have many more than two hundred Paschal lambs, i.e., sacrifices, during the year that override Shabbat? They said to him: From where do you know this? He said to them: “Its appointed time” is stated with regard to the Paschal lamb and “its appointed time” is also stated with regard to the daily offering, for the verse says: “Command the children of Israel and say to them, My offering, the provision of My sacrifice made with fire, for a sweet savor to Me, shall you observe to offer Me at its appointed time” (Numbers 28:2). From here we learn that the daily offering is brought even on Shabbat. Thus, the daily morning and afternoon offerings are brought on more than fifty Shabbatot over the course of the year, and two sheep are offered every Shabbat as additional offerings, for a total of more than two hundred sacrifices a year that override Shabbat. Just as the expression “its appointed time,” which is stated with regard to the daily offering, indicates that it overrides Shabbat, so too “its appointed time,” which is stated with regard to the Paschal lamb, indicates that it overrides Shabbat.. And furthermore, it is an a fortiori inference: If the daily offering, the neglect of which is not punishable by karet, overrides Shabbat, is it not right that the Paschal lamb, the neglect of which is punishable by karet, should override Shabbat? After Hillel brought these proofs, they immediately seated him at the head and appointed him Nasi over them, and he expounded the laws of Passover that entire day. In the course of his teaching, he began rebuking them [mekanteran] them with words. He said to them: What caused this to happen to you, that I should come up from Babylonia and become Nasi over you? It was the laziness in you that you did not serve the two most eminent scholars of the generation living in Eretz Yisrael, Shemaya and Avtalyon (Pesachim 66a)

It is clear from this Gemara, that although Hillel was appointed the Nasi and thus considered a greater scholar, the other scholars were still comfortable presenting their alternative views regarding this Halacha.  In all of these cases, the argument hinged upon the exegesis of the verses and their meanings.

Indeed, the famed Rav Meir Simcha of Dvinsk understood the Gemara this way as well.  In his commentary on the passage of the Rambam that we quoted earlier regarding the ability of one beitdin contradicting another as long as the argument revolves around the understanding of the meaning iof a verse, he says as follows:

....(Rabbi Meir Simcha proves that regarding areas of dispute over the interpretation of a verse, any group of scholars can contradict earlier scholars regardless of the size of the beit din or the stature of the beit din, he then continues) .....Therefore it is understandable how they issued a judgement that the Paschal Lamb supersedes Shabbat, As although it is frequent that Erev Pesach falls on Shabbat, they still forgot the tradition, and they held therefore that one should derive the law from the usual rules of Torah exegesis, just as Hillel responded by judging (through exegesis of the verse), and then they argued on Hillel (with their own textual analysis) This makes it clear that one smaller and later beit din is allowed to change the law based on textual analysis, until Hillel eventually proved his point by remembering the tradition passed down to Shemaya and Avtalyon. (i.e. if not for the tradition being remembered, the post-Hillel Beit Din would've been within their rights to prohibit  bringing the Paschal Lamb on Shabbat, despite disagreeing with the great Hillel) (Ohr Samayach, Hilchot Mamrim 2:1)

This is a clear and obvious fourth precedent for our case.  Despite an earlier Beit Din having determined the law based on their understanding of the verses, a later Beit Din is allowed to contradict that law if they understand the verses differently.  Rabbi Meir Simcha adds a fifth precedent as well.  Rabbi Yochanan ben Zakkai was of the opinion that a loaf of bread that contracted "third degree impurity" was considered impure.  He dervied this through the standard accepted method of exegesis by using a "Kal VaChomer" (and a fortiori inference).  He then stated:

After hearing Rabbi Akiva’s statement, Rabbi Yehoshua said: Who will remove the dirt from your eyes, Rabban Yoḥanan ben Zakkai, so that you could live and see this? As you would say: In the future, another generation is destined to deem pure a loaf that contracted third-degree impurity, as there is no explicit verse from the Torah stating that it is impure. (Sotah 27b) 

Once again, the Gemara makes it clear that when a law was derived from a verse, a later rabbinic court has the right to reexamine the verse and rule against the original law as long as they are using proper exegetical processes.  Rabbi Meir Simcha brings this as another proof to this opinion of the Rambam.

There are likely more such examples, and I would be happy to add more if the readership sends me any ideas.  But I think it has sufficiently been demonstrated that reinterpreting a verse even when the conclusions contradict a previously established law, is well within the bounds of Orthodox Halacha.

Now we can move on to the question we were going to address regarding an action being both permitted and prohibited.