A Blueprint for Jewish Law

A passage in the Talmud’s first tractate shows why it’s such a uniquely influential work, and so unlike anything in the history of Western literature, theology, or legal scholarship.

Rabban Gamliel as depicted in the Sarajevo Haggadah, a fourteenth century illuminated manuscript. Wikipedia.

Rabban Gamliel as depicted in the Sarajevo Haggadah, a fourteenth century illuminated manuscript. Wikipedia.

March 25 2020
About the author

Atar Hadari’s Songs from Bialik: Selected Poems of H. N. Bialik (Syracuse University Press) was a finalist for the American Literary Translators’ Association Award. His Lives of the Dead: Poems of Hanoch Levin earned a PEN Translates award and was released in 2019 by Arc Publications. He was ordained by Rabbi Daniel Landes and is completing a PhD on William Tyndale’s translation of Deuteronomy.

On January 5, the seven-year cycle of Talmud study known as the daf yomi (“daily page”) began once more. Two months later, it still seems an apt moment to reflect on what the Talmud actually is and what sort of messages its compilers wished to convey. Part of what makes the Talmud such a unique work—and so unlike anything in the history of Western literature, theology, or legal scholarship—is that it intertwines discussions about law with stories about the people discussing it, their relationships with each other, and the human circumstances surrounding their discussions.

One of the most striking examples of this appears on pages 27 and 28 of Brakhot, the Talmud’s first tractate, which those who commit themselves to keeping up with the daf yomi cycle recently completed.

In a sense, this passage, even if it comes near the end of the third chapter, serves as an introduction to the entire Talmud: a depiction of how Jewish legal authority was established after the destruction of the Temple, and a blueprint for how Jewish law as we know it today really works. Since, like all other passages in the Talmud, this one begins in medias res, some historical background is necessary.

In 70 CE, Rome quashed the great uprising in Judea and destroyed Jerusalem. Rabbi Yoḥanan ben Zakkai escaped and set up a new court of Jewish learning at Yavne, a village about fifteen miles south of what’s now Tel Aviv. Ten years later, he was succeeded by Rabban Gamliel II, a rather autocratic character whose family had held the position of nasi, or president of the Sanhedrin, for generations. Yoḥanan left Yavneh to set up an academy of his own, but his students stayed behind. Among them was one Rabbi Yehoshua, the most influential scholar of his generation, who constantly challenged Rabban Gamliel.

Our passage begins, typically, with a straightforward halakhic question: is the evening prayer obligatory, like the morning and afternoon prayers, or is it optional? According to Rabban Gamliel, it’s mandatory, but Rabbi Yehoshua says it’s optional.

This dispute between two sages of the late 1st century was apparently left unresolved, since we are then told that it was still being debated by two major sages of the 4th century. But rather than seeing the argument through, the Talmud relates the story of how the dispute nearly upended the emerging system of rabbinic authority itself:

Once upon a time a student came before Rabbi Yehoshua and said, “Is the evening prayer optional or mandatory?”

He told him: “Optional.”

[The student then] came before Rabban Gamliel and said: “Is the evening prayer optional or mandatory?”

He told him: “Mandatory.”

[The student] said, “But Rabbi Yehoshua told me it’s optional!”

[Rabban Gamliel] said: “Wait until the men at arms [the other rabbis and students] come to the study house.”

When the men at arms came, the questioner stood up and asked: “Is the evening prayer optional or mandatory?”

Rabban Gamliel said: “Mandatory.” Rabban Gamliel then said to the sages: “Is there any man who begs to differ on this point?”

Rabbi Yehoshua said: “No.”

Here we have the pivotal moment of the story. As intent as Gamliel is on imposing order, Yehoshua, for his part, is more concerned with keeping the peace than with exerting his own authority. Not one to let it go, however, Gamliel challenges his reluctant rival to stand up and defend himself. And so, the Talmud tells us, “Rabban Gamliel sat and taught, while Rabbi Yehoshua stood on his feet, until all the people were abuzz.”

It’s “the people” who are mindful of Rabbi Yehoshua’s dignity, and who won’t permit Rabban Gamliel to resume teaching. Most likely, by “the people” we’re not talking here about the actual common folk—the amey ha’arets, or people of the land, in talmudic lingo—but about other scholars and would-be scholars of lesser rank, whose opinions would come to count in subsequent discussions.

They said: “How long shall he go on tormenting him?

Last Rosh Hashanah he tormented him. . . . Here, too, he torments him.

Come, let’s depose him! Whom shall we replace him with?”

The reference here is to a previous occasion, recorded in Tractate Rosh Hashanah, when the two sages butted heads. Back then they’d differed in their calculations of when the new year began, leading them to different conclusions as to the date of Yom Kippur. Gamliel had insisted that Yehoshua visit him, carrying his wallet and staff, when, by the latter’s calculation, the holy day (on which you’re forbidden to carry) would have fallen. Yehoshua obeyed, but now the people have decided that Gamliel has finally gone too far.

But then their revolution comes up against some hard social realities:

Shall we replace him with Rabbi Yehoshua? He caused the incident.

Shall we replace him with Rabbi Akiva? [Rabban Gamliel] might see him punished, as he enjoys no ancestral right [to the position].

Let us rather replace him with Rabbi Elazar ben Azariah, for he’s wise and he’s rich and he’s a tenth-generation descendant of Ezra the Scribe.

Even in the throes of revolutionary uprising, these rebels are aware of the social consequences of overturning the existing order. They cannot appoint Rabbi Yehoshua because he won’t be seen as a neutral candidate. They cannot replace him with Rabbi Akiva because, wise as he is, he’s also the first in his family to acquire learning and therefore without any social pedigree. So whom can they appoint? A candidate who is socially cushioned from any repercussions by both wealth and family status. The Lord Himself even promptly lends a hand by turning the eighteen-year-old Elazar’s beard white, masking his youth with a touch of gravitas. (If this story sound familiar, it’s because the Passover Haggadah makes brief reference to it in introducing Rabbi Elazar.)

If you look at this social picture and look at Jewish life today, can you really say the world has changed? Think of the current chief rabbis of Israel: by sheer coincidence, they are the son and nephew, respectively, of previous chief rabbis.


As in so many revolutions, replacing one leader with another isn’t the same as radical social change. But in this case, at least, it becomes the catalyst for the real revolution:

It is said: that very day, they removed the doorman and all the students were let in.

For Rabban Gamliel would say: any student who is not perfect inside and out should not come in the study house. That day, they added several benches. . . . Abba Yosef ben Dostai and another rabbi disagreed [over how many]. One said 400 benches were added; the other said 700.

Rabban Gamliel’s wits began to turn. He said: “Did I, heaven forfend, keep Israel from learning?”

They showed him in his dreams white jugs full of dirt. It wasn’t so, but to settle his wits they showed it to him.

Here we have a narrative, as intimate as any in Scripture, that takes us into Rabban Gamliel’s very mind. Not only did you have to be rich and connected to lead the study house, in his view you also had to possess outstanding moral qualities even to be admitted. But if until now you thought he was a tyrant, suddenly you start seeing things from his perspective.

Gamliel wants the future teachers and interpreters of the Torah to be worthy of their positions, and he has high standards. Still, the minute he is no longer in charge, and they throw open the doors to everybody, he is led to question those standards. Heaven is kind to him, however, and sends a dream to console him: the new students may appear worthy, but really they’re just full of dirt. His conscious mind is full of remorse; his subconscious is still dismissive of other people lacking social status.

Just then a big question mark appears in the form of one Judah the Ammonite, who inquires about his own personal status.

According to the book of Deuteronomy, Ammonites and Moabites (members of two Transjordanian tribes) can’t marry Israelites even if they convert to Judaism. Gamliel asserts that this prohibition applies to Judah, but Yehoshua argues that it has lost its force since the Assyrian empire’s policy of ethnic cleansing and population transfer made such tribal designations meaningless. Immediately, Judah is accepted.

Nor is this example of Yehoshua’s new status random: we’ve gone from a regime of the rich, learned, and connected to a world in which someone who wasn’t a Jew at birth—and, what’s more, who was a member of a nation rejected by Scripture—can gain full acceptance. What’s Gamliel to do?

Rabban Gamliel said, “If that’s how it goes, I’d better go and placate Rabbi Yehoshua.” When he got to his house, he saw the walls of his house were black.

He said: “I see from the walls of your house you are a blacksmith.”

[Yehoshua] told him: “Woe to the generation led by you, who do not know the pains of learned men, how they earn their crust of bread, and what they live off of.”

[Gamliel] told him: “I’ve offended you, forgive me!”

He paid him no mind.

[Gamliel] said, “Do it out of respect for my father!”

Immediately he relented.

At least Rabban Gamliel can still fall back on is his father’s reputation. Revolution or no, it continues to count for something.

The crux of the story? While learning and money and family standing are all vital, if you do not also exercise a degree of humility and compassion you may be stripped of everything. Note that simply connecting with Yehoshua on a human level has proved impossible for Gamliel. His attempt at small talk backfires terribly when Rabbi Yehoshua rebukes him for being entirely out of touch with reality: now you come and tell me you’ve suddenly realized I’m breaking my back as a blacksmith? But Yehoshua is not, like Gamliel, hellbent on his own honor, and agrees to support Gamliel’s reinstatement.

Immediately they seek a messenger to inform the other rabbis of their decision, and a launderer—another lowly laborer—volunteers. Rabbi Akiva, ignoring the launderer’s message and loath to have the old boss back, announces: “Lock the gates, so Rabban Gamliel’s servants don’t come and bother the rabbis.” Rabbi Yehoshua then goes to report the news himself, employing an elaborate metaphor referring to a priestly purification ritual and suggesting that the son of a water douser should be a water douser. But the point is straightforward enough: just as priests inherit their status from their fathers, it’s better to have a nasi from the “royal family” than to have one who isn’t.

In other words, there may be no legal or moral argument for Rabban Gamliel’s reinstatement, but there is precedent and there is tradition: essentially, let the son of a king be the king. If we allow any other man to dispute the expertise of the priests in their sphere of responsibility, then we shall have chaos; the same must be true for rabbis. At this, even Rabbi Akiva accepts the restored social order, and suggests that he and Yehoshua go personally to Gamliel’s door to invite him to resume his post.


This elaborate tale leaves entirely unanswered the original question: is the evening prayer required, or not? The answer, found elsewhere than in the Talmud, illuminates much about what this story means and how Jewish law works. While the final decision followed Rabbi Yehoshua, so that the evening prayer remained a matter of individual conscience, the same Jewish people in whose name Rabban Gamliel was overthrown subsequently took upon themselves the obligation of saying the evening prayer, which acquired mandatory status through the force of precedent.

So what, in the end, decides the law? The aristocracy of birth? The aristocracy of merit? Or the common people who have been shut out from the entire legal discussion?

You fully learn what the law is only by reading an account of how it was made, page by page, and by listening carefully to every story, because it’s extremely difficult to separate the final outcome from the tale. What makes the law the law is not merely what is said, but who said it and where and to whom. That’s why, when you open a page of the Talmud, it’s not the legal outcome you’re listening for but the live voices of rabbis arguing—because you never know if the one with the final word will be the grandson of kings or the launderer.

More about: Daf Yomi, Religion & Holidays, Talmud