Why Halakhah Is Not About Winning

Yonah Lavery-Yisraeli

The best advice is neither true nor untrue. Sometimes it lies discarded, plainly irrelevant. At other times, it lights up, seemingly of its own accord, and we understand without calculation that it was this very moment for which the advice was created. And so two contradictory ideas can work in alternation, like the push and pull of a muscle group, the opposition itself merely a mechanism to create skillful motion through life. Seamus Heaney writes about such dual understanding in his poem “Terminus”:

            When they spoke of the prudent squirrel’s hoard
            It shone like gifts at a nativity.
            When they spoke of the mammon of iniquity
            The coins in my pocket reddened like stove-lids.

Is the poet’s saved-up money good or bad? Although the two teachings he mentions (that it is wise to accumulate money, that it is cruel to accumulate money) would seem to push a person in two directions at once, as they are experienced in life, they light up at different times, as circumstance makes one of them shine with special urgency. Pushing sometimes left, sometimes right, they guide their student through the moral maze of life. To translate Heaney into Jewish thought, we might say that among the insights of Ḥazal are those of a grade which we neither simplistically “hold like” nor refute, but rather sense are already woven into our lives. We do not pull out one thread or another to suit the moment; the moment is what chooses which strand will surface. This explains why many early disputes which are officially settled Halakhah continue to reverberate through different strata of rabbinic discourse: a thread is buried only to resurface later in the pattern.^[1]

With this in mind, I turn to the statements of R. Eleazar ben Azariah and R. Akiva in the final mishnah of Yoma:

Yom Kippur does not atone for interpersonal sins, unless one person appeases the other. R. Eleazar ben Azariah had a teaching about this: “From all your sins before God, you shall be purified (Leviticus 16) (which means) for sins between man and God, Yom Kippur atones, (but) for interpersonal sins, Yom Kippur does not atone  until one appeases the other.” R. Akiva said, “Fortunate are you, Israel, since before whom are you purified, and who purifies you? Your father in heaven, as it is said, And I threw pure water on you, and you were purified (Ezekiel 36). And it says, God is the mikveh of Israel (Jeremiah 17): just as a mikveh purifies the impure, so too does the Holy One purify Israel.”^[2]

Theoretically, the contrast is stark: bringing their statements side-by-side illustrates how they differ. While some readers sidestep the tension by arguing that they apply to different sorts of sin (i.e. that R. Akiva’s teaching applies only to a sin which exclusively affects God), others consider them to be in open dispute. What is the nature of this dispute? R. Eleazar ben Azariah argues that divine forgiveness is contingent on human forgiveness. It is important to note here that he does not say that it depends on face-to-face apology, i.e. upon the sinner’s effort to appease the injured party, but rather upon the injured party’s acceptance of this effort. For R. Akiva, however, divine forgiveness is contingent on the sinner’s immersion in relationship with God. If an impure man touches a woman, transmitting his impurity to her, the mikveh does not require his knowledge or consent to be an effective purification for her. All it requires is her complete submersion. To R. Akiva, she is “fortunate,” in that her transformation hinges on her own volition. Even the water itself provides no barrier or resistance; the challenge lies in overcoming her own reluctance.^[3] This is often difficult enough. The Talmud famously imagines someone who goes through the formal steps of repentance without inner change to someone who frantically immerses in “all the waters of the world” without ever letting go of the dead lizard (a source of impurity) in their hand.^[4] The downside of total self-determination, or “fortune,” is total responsibility.

How are these two approaches received? We might expect R. Akiva’s statement to undergo the same process as his other disruptive teachings, in that what originally blows into talmudic discussions like a fresh, crosswise wind is eventually, through the trimming of its application, harnessed to propel the conversation further on its previous course.^[5] But for the mishnah in Yoma, things are not so clear. The Gemara itself does not rule or even directly comment on the contrast between the two Tannaim, suggesting that it understands them to be complementary. It does, however, reflect on the complications inherent in both teachings. If divine forgiveness is dependent on human forgiveness, the Gemara notes that it may be unachievable:

R. Yitzhak said, “They say in the West in the name of Rabbah bar Mari: Come and see how the Holy One is unlike flesh and blood. With flesh and blood, when one wounds another with words, it is uncertain whether appeasement will be possible. And if we grant that appeasement is possible, it is still uncertain whether words will be enough, or if they will not. But God, when a person sins in private, is appeased by words, as it is said, Take your words with you and return to God (Hoshea 14:3).”^[6]

The apparent popularity of this saying by Rabbah bar Mari (“They say in the West…”) may be explained by the interesting, and perceptive, way in which he resists matching the level of uncertainty to the severity of the sin in question. We know from the messiness of real life that sometimes grave injuries are readily forgiven, and the weight of petty insults can be carried to the grave. If God’s forgiveness is only accessible through human beings, we are in a morally frightening universe. This possibility accounts for a certain relief which greets R. Akiva’s approach. In Rosh Hashanah 117b, a synthesis position is advanced by R. Yose HaKohen, imagining God saying, “For My own insult, I forgive you, but you must still go and appease your friend.” Yet even this position is described as being merely what people said “until R. Akiva came” and offered a teaching which, though using a different midrash local to the verse under discussion, again avoided assigning any necessary role to the wronged party.^[7]

But perhaps relief, though welcome or even necessary, is not a place where a guilty conscience can truly rest, any more than R. Eleazar ben Azariah’s vision of a universe where spiritual fate depends entirely on other humans. When the sugya in Masekhet Yoma meditates on the sort of religious self-absorption which might free an individual from caring for the opinions of others,^[8] if it is not exactly critiquing R. Akiva, it is at least making clear the spiritual and social cost of his approach. Thus, we return to synthesis. Rabbah bar Mari’s qualification – “when a person sins in private” – seems to affirm, like R. Yose HaKohen, that appeasement must still somehow be pursued, and we find exactly this position stated later (87a) by R. Yitzhak, the original proponent of Rabbah bar Mari.

Though above I described this as a “synthesis position,” it is more accurately described as a synthesis process, continuing to zig and zag between R. Eleazar ben Azariah and R. Akiva – not, however, in an arbitrary or indecisive manner, but according to the natural zigs and zags of life. A universal rule for reconciling all human and divine injury cannot authentically satisfy all scenarios. So we see that although one should not ask for forgiveness more than three times,^[9] Rav sensed that if he did not ask for forgiveness even thirteen times over one particular incident, it would have constituted moral avoidance.^[10] Yet on a different occasion, perhaps even once was too much:

Rav had a conflict with a certain butcher, who didn’t come (to appease) him. The day before Yom Kippur, Rav said, “I’ll be the one to go and appease him.” He met Rav Huna, who said to him, “Where are you going?” He said, “To appease so-and-so.” He said “Then you’re going to kill him.” He went and stood before (the butcher), who was sitting and chopping up a head. He raised his eyes and saw him, and said, “Is this Abba (i.e. Rav)? Go, I have nothing to say to you.” As he was chopping the head, a bone dislodged and struck him in the throat and killed him [i.e. it ricocheted from the force of the butcher’s blow and killed the butcher himself].^[11]

This wonderfully rich text shows how skillful navigation through conflicts is inescapably bound by the details of the particular circumstances. How do we know when one time is too much, or twelve times too few? Perhaps, if our personalities push us too far in one direction or the other, we need a wise bystander like Rav Huna to advise us.

Does the volatility and variability of conflict mean that, unlike the give-and-take of a sugya, Halakhah is poorly equipped to instruct us? No, but Halakhah will communicate such tensions differently. Both Rambam^[12] and the Shulḥan Arukh^[13] mandate that we ask those whom we’ve wronged for their forgiveness up to three times until they grant it, and stress that no divine forgiveness can occur before doing so; this sounds, of course, like the hard line of R. Eleazar ben Azariah. Yet both state that if the wronged party refuses three times, our guilt is absolved anyway, completely despite them. This nuance is not to be found or even hinted at in R. Eleazar ben Azariah,^[14] but incorporates observations about harsh or unpredictable persons which were made both by R. Yitzhak and the story of the butcher. More voices on the page raise further questions: what if withholding forgiveness is actually for the good of the one seeking forgiveness?^[15] What if repeated grovelling is likely only to bring shame, not just to the individual, but to the Torah?^[16] Is sending a friend to ask forgiveness for us always a failure of bravery, or can it be the smartest way to de-escalate?^[17] These dilemmas not only showcase the sensitivity and flexibility of the halakhic mode of conversation, but also reflect the limitations of R. Eleazar ben Azariah’s approach if it is simplistically applied.

More to the point, we can see that at certain points, everyone falls back on R. Akiva: after asking “enough” times, for example, or if the wronged party is dead^[18] and thus cannot respond at all, even if they lived and died as a wholly righteous person whose forgiveness was worth seeking. ‎On a technical, fundamental level, this means that rabbinic consensus follows R. Akiva. At the same time, the bulk of rabbinic discourse emphasises R. Eleazar ben Azariah, hammering the indispensability of reconciliation into the heads of its learners in the strongest possible language. Such a paradox illustrates that winning an argument plays a surprisingly small role in the crafting of Halakhah. The rabbinic task is not to ferret out objective truth, but to address all insights and compile them into coherence. Here, that means goading people into courageous reconnection, despite the understandable anxiety that entails. At the same time, it must inspire people to confidently connect with God and their own higher moral selves, releasing them from what might otherwise devolve into a fearful enmeshment in the opinions of others.

It is easy, too, to see how each position enriches its opposite. For R. Akiva, it is difficult – though not, as discussed, impossible – for social creatures to let go of the aforementioned metaphorical lizard in our hand without making some kind of direct amends. Rigorous spiritual honesty flows naturally into interpersonal obligation. Of course, sincerity can be measured by other metrics, too, which is why we say that apologising to a grave requires bringing a minyan,^[19] or austerities such as going barefoot.^[20] For R. Eleazar ben Azariah, it is easier to make an effective, victim-oriented apology if one is not transparently begging for one’s own life.

Balance is not always achieved by a half-and-half split. In weaving a pattern, the most striking colour serves best as an accent. Rabbinic tradition throws much of its overt attention toward R. Eleazar ben Azariah in that it spends the most care examining how we ought to ask others for forgiveness, and tells us outright how critical this step is. But here and there in the tapestry, a thread shines out which is small but impossible to ignore – R. Akiva’s hope that when all human relationships fail, God remains.

[1] See the example of heilekh, which is raised as a mahloket Tannaim, disputed again among the Amoraim, and although officially ruled into existence, is legislated out of practicality (for money-based disputes, at any rate) by the Ran alone among his peers; see Tur Hoshen Mishpat 87 and commentaries.

[2] Yoma 8:9 (85b).

[3] For an in-depth treatment of the role of reluctance in R. Akiva, see Tosafot Yom Tov ad loc.

[4] Ta’anit 16b.

[5] See, for example, the transformation of his statement, “Make your Shabbat like a weekday rather than rely on the charity of others” (Pesahim 112a) as it is digested by generations of poskim.

[6] Yoma 86b.

[7] Rosh Hashanah 118a.

[8] Revealed in anxiety about the license sages might grant themselves in 86a – for example, Rav’s statement that unless he pays for something in a public, prompt manner, others will infer he considers himself entitled to take things for free. His intuition tells him that in the experience of ordinary people, being a famous rabbi can make a person more vulnerable to unethical behaviour and self-absorption, rather than less.

[9] Memra of R. Yose bar Ḥanina, Yoma 87a.

[10] Yoma 87b, see Rashi ad loc for the terminology of מחמיר היה לעצמו.

[11] Yoma 87a.

[12] Mishneh Torah, Laws of Teshuvah, 2:9.

[13] Orah Hayim 606:1.

[14] The source of the language they use is from Midrash Tanhuma. However, Rambam’s identification of the recalcitrant party as the חוטא begins by folding in a discussion from Mishnah Bava Kamma 8:7, which is about the responsibilities of a physical assailant beyond court-ordered financial compensation. There, the victim is urged to be not so “cruel” (אכזרי) as to refuse an apology offered alongside compensation. Rambam’s extension and clear intensification of this line of thinking is creative, and I would argue constitutes the most direct incorporation of the “difficult personalities” observation above.

[15] Rema, Orah Hayyim 606:1, R. Akiva Eiger ad loc sq.1, Mishnah Berurah ad loc s.q. 9.

[16] See Bah to Tur Orah Hayyim 606:1, s.q. 3, discussed among commentaries on Shulhan Arukh ad loc.

[17] Taz to Orah Hayyim 606:1, s.q. 2.

[18] Mishneh Torah, Laws of Teshuvah, 2:11; Shulhan Arukh Orah Hayyim, 606:2.

[19] Ibid.

[20] Mishnah Berurah s.q. 14.