Bechorot 25: Bad Politician: Great Teacher

By: Rabbi Jay Kelman |

Sometimes the most obscure of arguments can teach the greatest of lessons. That Rabbi Eliezer’s “proofs” from heaven were rejected because “Torah is not in heaven” is relatively well known (Bava Metzia 59b). Less well known is that this powerful story is the result of a dispute regarding the purity of an oven, “the oven of Achnai”, that was broken and put back together. This debate took place years after the Temple had been destroyed, rendering the entire debate totally irrelevant—at least from a practical point of view. 

In the words that follow, we will discuss a debate only slightly less irrelevant—its greater relevance a result of the fact that the protagonists were alive when the Temple still stood—no less important, yet much less well known. 

As the opening chapters of masechet Bechorot discuss, a firstborn animal must be given to the kohen who offers the animal as a sacrifice, burning the fats on the altar and eating the meat. In the interim, the Torah prohibits one from working the animal or shearing its wool. And if one were to do so, it would be prohibited to derive any benefit from the sheared wool of the firstborn. Even if the wool was shed naturally, one may not derive benefit from it as this animal is consecrated to G-d. 

However, once the animal was slaughtered, one may derive benefit from its wool. Whether, after slaughter, one can benefit from the wool that had previously fallen off is, as you might expect, a debate amongst our Sages. 

“The hair of a blemished firstborn that shed and which one placed in the window, and thereafter the animal was slaughtered, Akavia ben Mehalalel deems it permitted and the Sages prohibit” (Bechorot 25a-b). Akavia ben Mehalalel argues that we forbid the sheared wool while the animal is alive, lest one be tempted to shear an animal. But once the animal is dead, there is no reason to prohibit the use of the wool that the sheep had shed. The Sages were afraid that were we to allow one to benefit from the wool, people would purposely keep the animal alive for an extended period of time. By doing so, they would greatly increase the chances that one would accidentally (or purposely) shear the animal or work it, violating the Biblical law.  

Interestingly, the continuation of this debate is not discussed in the Gemara in masechet Bechorot; rather, the story continues in masechet Eduyot[1].

The second to last Mishna of the fifth chapter begins by noting that “Akavia ben Mehalalel testified regarding four things. They said to him, ‘Akavia, recant on these four things that you have said and we will appoint you as the Av Beit Din, Chief Justice for the Jewish people”.  

The Sages wanted to appoint Akavia ben Mehalalel as the Av Beit Din. But as Chief Justice, they needed him to accept the view of the majority. While for many, this may have been an offer they could not refuse, not so for Akavia ben Mehalalel. “He said to them: Better I be called a fool all my days rather than I should become wicked for even on hour before the Place[2] [G-d]; that they should not say, ‘For the sake of power, he changed his mind.’”

For Akavia ben Mehalalel, intellectual dishonesty is the height of evil. He did not try to justify acceptance by arguing that as chief justice, there would be so much good he could do. Should one give up this opportunity because of a few hairs of a sheep? 

It is worth noting that the Mishna only tells us what the four cases are after noting the discussion between Akavia and the Sages. It matters little what the actual rabbinic debates were. What matters is that one stay true to oneself, no ifs, ands, or buts. This may have been a stupid move politically[3], but morally, one could hardly do better. And it was Akavia who was lenient[4]. It is one thing to ask someone to permit that which he thinks is prohibited, but is it so terrible to forbid that which is permitted? Apparently, the answer is yes. Torah is emet, and it is equally false to forbid the permitted as it is to permit the forbidden.

But even if Akavia, after hearing the arguments of the Sages, had actually changed his view, he could not agree to accept the offer made to him. You can rest assured that had he done so many would say, “For the sake of power, he changed his mind.” The fact that it may not have been true is irrelevant; such an appointment would have brought ridicule and cynicism towards the leaders of the Jewish people. And that is something to avoid at all costs. 

As with Rabbi Eliezer and tanur shel Achnai, Akavia’s principled stance may have come at a stiff price—well beyond being passed over for the position of Av Beit Din

The fourth dispute between Akavia and the Sages was whether a convert is subject to the laws of a sotah, a suspected adulteress. Basing himself on his understanding of the biblical text, Akavia argued that we should not allow her to drink from the bitter waters. When told that Shamaya and Avtalyon—the teachers of Hillel—had allowed such, he responded, “Like them, he had them drink”. 

Shamaya and Avtalyon were converts or, according to some, descendant from converts. Akavia was making the claim that one could not cite their opinions as evidence, as they would be biased towards converts. In essence, he was accusing them of not having the intellectual honesty that he himself had displayed. That is quite an accusation. And for this unsubstantiated accusation, “They excommunicated him; he died while in a state of excommunication, and they stoned his coffin”. 

To this, “Rabbi Yehuda responded: G-d forbid that Akavia was excommunicated; for when the Temple courtyard was locked [to prevent overcrowding], there was no one in Israel who was equal to Akavia ben Mehallel in wisdom and the fear of sin.”

Rabbi Yehuda does not claim that Akavia did not say what he did, or that he was misunderstood. His claim was that the Sages did not excommunicate this great and G-d-fearing Sage for one slip of the tongue. Perhaps he understood that Akavia was stating the obvious: that as intellectually honest as one strives to be, it is not humanly possible to eliminate all biases. Or perhaps he felt that even if the comment was said in a most degrading manner, that Akavia, too, was human, and in the heat of a debate, could be forgiven for this slip. 

Unlike debates in matters of law, we cannot say that both the Sages and Rabbi Yehuda are theoretically correct. Either they did excommunicate Akavia or they did not[5]. The Mishna does not tell us who was right—the authors of the Mishna did not even know. But the Mishna is not a history book, and this discussion is not meant as a historical record. The Mishna beautifully lays out a whole host of issues regarding leadership, converts, punishment and forgiveness, the individual and community, the place of compromise. Sorting through these issues is no easy task, and our Sages can provide no definitive guidance. We must, with equal measures of humility, integrity, cohesiveness, knowledge, vision and foresight, attempt to best figure out the primary principle to be invoked and those that are secondary.
 

[1] This tractate, the first of the 63 tractates of the Mishna to be edited, consists of testimonies regarding the legal traditions received from many of our earlier sages covering a wide range of topics. It is here that we have recorded three—possibly the only three—debates between Hillel and Shammai, as opposed to some 369 debates between Beit Hillel and Beit Shammai. 

[2] The use of HaMakom as G-d’s name is most telling. G-d’s place is everywhere, including our innermost thoughts. While one might be able to fool others, fooling G-d is an entirely different matter.

[3] There is good reason that Rav Soloveitchik noted that “politics is kulo sheker”. 

[4] In the fourth case regarding the sotah water, discussed below, it is hard to say which is the lenient view and which the strict. Were she guilty, not being forced to drink would be a leniency; but if guilty it would be a stringency. 

[5] As it seems rather hard to believe that a detailed account of placing someone under the ban could be so wrong, Rabbi Yehuda claims that the Sages of that time did put someone in cherem; it was just not Akavia ben Mehallel, and it was not over the issue of sotah waters. Rather, it was Eliezer ben Chanoch who was excommunicated, and it was regarding his mocking of another mitzvah related to water, that of netilat yadaim. When one considers that the Mishna was written generations after this event, such confusion is most understandable.