"It is not in heaven"
© 2011 S.H. Parker
Eliezer ben Hyrcanus, known as Eliezer ha-Gadol (Eliezer the Great), or simply Rabbi Eliezer, is the key player in this tale from masekhet Baba Metzia (59a-b):
learn: If he cut it into separate tiles, placing sand between
each tile, Rav Eliezer declared it clean but the Sages declared it unclean;
this was the oven of 'Aknai [an oven consisting of tiles separated by sand, but externally plastered with cement to make a single object]. Why "'Aknai?" Said Rav Judah in Samuel's name: [this means] that they encompassed it with arguments as a snake, and proved it unclean. It has been taught: On that day Rav Eliezer brought forward every imaginable argument, but they did not accept them. [Finally] He Said to them: "If the halachah agrees with me, let this carob tree prove it!" Whereupon the carob tree was uprooted a hundred cubits out of its place; others say, four hundred cubits. "No proof can be brought from a carob tree," they retorted. Again he said to them: 'If the halachah agrees with me, let that stream of water prove it!" Whereupon the stream of water flowed backwards. "Proof cannot be brought from a stream of water," they rejoined. Again he urged: "If the halachah agrees with me, let the walls of the house of study prove it," whereupon the walls inclined to fall. But Rav Joshua rebuked them, saying: "When sages are engaged in a halachic dispute, what right have you to interfere?" Hence they did not fall in honor of Rav Joshua, neither did they resume the upright [position], in honor of Rav Eliezer; and they are still standing so inclined. Again he said to them: "If the halachah agrees with me, let the Heavens themselves prove it!" Whereupon a Heavenly Voice [lit. daughter of a voice; i.e., God directly] called out: 'Why do you dispute Rav Eliezer, seeing that in all matters the halachah agrees with him!'" But Rav Joshua arose and exclaimed: "It [Torah] is not in heaven." [Devarim 30:12] What did he mean by this? Said Rav Jeremiah: [He meant] That the Torah had already been given [to man] at Mount Sinai; we pay no attention to a Heavenly Voice because You have long since written in the Torah at Mount Sinai, "After the majority must one incline." [where Torah says this, I don't know; perhaps this passage has not survived? Though I do know Torah says "You will not run after a multitude to do evil."]
Know as "the tile in the oven," this is a very instructive tale. It was one of my favorites. It raises so many thought-worthy issues.
And how does God react to this outright reject of His word, this rebuke from mere people? The gemarrah continues:
|Rav Nathan met Elijah and asked him: What did the Holy One, Blessed be He, do at that time? He laughed, saying, "My children have defeated Me, My children have defeated Me."|
Of course, "history is written by the victors." Though one could argue that this is, after all, an earthly matter and, therefore, entirely within human responsibility. "Hence it is not in the hands of Heaven but in ours." Rav Eliezer's wife, in fact, says this to him.
And what became of ben Hyrcanus? The story continues:
|It was said: On that day all objects which Rav Eliezer had declared clean [i.e., that had been in this oven] were brought and burnt in fire. Then they took a vote and excommunicated him [to make an example of him -- he was a literalist, he was called a "Shammuti," of the school of Shammai, in matters of religious practice -- for defying the (hillelite) majority; see "The Trial Of Rabbi Eliezer Ben Hyrcanus" (a very good read); Even his own student, Akiva, failed to defend him or even speak up for him -- politics!]. They said, "Who will go and inform him?" "I will go," answered Rav Akiva, "least an unsuitable person go and inform him, and so destroy the whole world." What did Rav Akiva do? He donned black garments and wrapped himself in black and sat at a distance of four cubits from him. "Akiva," said Rav Eliezer to him, "what has happened today?" "Master," he replied, "it appears to me that your companions hold aloof from thee." Then he too tore his garments, put off his shoes, removed [his seat] and sat on the earth [a sign of mourning], while tears streamed from his eyes. The world was then smitten: a third of the olive crop, a third of the wheat, and a third of the barley crop. Some say, the dough in women's hands swelled up. [There was, indeed, crop failure the next year.]|
The apparent conclusion of this gemarrah is "After the majority must one incline." This, despite the fact that everyone knows that ben Hyrcanus is correct and the majority, wrong (yes, the writer of the gemarrah clearly knows this too). In turn, this understanding establishes a halachic principle that consensus overrules right....
In other words, the Rabbis are using this pasuk ("it is not in heaven") to safeguard (usurp?) the right of interpretation to themselves, even when they go beyond the Torah. Even when God says otherwise. Rav Eliezer saw and understood this ... another consequence of this gemarrah that calls for significant thought.
The real lesson of this gemarrah, in my opinion, is that the Rabbis, especially in an age of general literacy (ours, that is), redefined the can and, then, let the worms out of it (though literacy was not general at the time Hyrcanus lost this battle). They see God as not only approving but happy with rejection of Divine intervention. It is important to note that it is not the rejection of His word per se that is key (and it is certainly not the cleanliness of this oven; the actual oven is just not relevant), what ben Hyrcanus' opponents are doing is taking responsibility, more than that, claiming primary responsibility for the meaning and application of Torah. (If you're a parent, think of the first time your child stood up on her/his own, despite what you may have said and made a decision for her-/himself.)
The flip side of this is that the Rabbis have foreclosed God's intervention -- literally told God to "kup a walk" -- and taken the place of the prophets (thus, closing prophecy). In such a way, God becomes, likewise, subservient to the vote of the majority. Hyrcanus saw the inherent usurpation of the divine in this action. Something to consider....
But is "majority rules" the real point of passage quoted by Rav Joshua? Certainly there are other inyanim where exactly the opposite is taught, where it is taught that the av beit din's opinion, his opinion alone (and, like this poor oven, even when the Nasi is wrong), is definitive (see, for example, Maseket Rosh Hashanah 25a). No, given that the Rabbis want to take possession of and be responsible for -- with or without permission -- Torah, they have opened this door, the import of the gemarrah is in Rav Joshua's invoking "It is not in heaven...."
What is the context of "It is not in heaven?"
The full text is at Devarim 30:
|11. For this commandment which I command you this day, is not concealed from you, nor is it far away.||יא. כִּי הַמִּצְוָה הַזֹּאת אֲשֶׁר אָנֹכִי מְצַוְּךָ הַיּוֹם לֹא נִפְלֵאת הִוא מִמְּךָ וְלֹא רְחֹקָה הִוא:|
|12. It is not in heaven, that you should say, "Who will go up to heaven for us and fetch it for us, to tell [it] to us, so that we can fulfill it?"||יב. לֹא בַשָּׁמַיִם הִוא לֵאמֹר מִי יַעֲלֶה לָּנוּ הַשָּׁמַיְמָה וְיִקָּחֶהָ לָּנוּ וְיַשְׁמִעֵנוּ אֹתָהּ וְנַעֲשֶׂנָּה:|
|13. Nor is it beyond the sea, that you should say, "Who will cross to the other side of the sea for us and fetch it for us, to tell [it] to us, so that we can fulfill it?"||יג. וְלֹא מֵעֵבֶר לַיָּם הִוא לֵאמֹר מִי יַעֲבָר לָנוּ אֶל עֵבֶר הַיָּם וְיִקָּחֶהָ לָּנוּ וְיַשְׁמִעֵנוּ אֹתָהּ וְנַעֲשֶׂנָּה:|
|14. Rather, [this] thing is very close to you; it is in your mouth and in your heart, so that you can fulfill [lit. do] it.||יד. כִּי קָרוֹב אֵלֶיךָ הַדָּבָר מְאֹד בְּפִיךָ וּבִלְבָבְךָ לַעֲשֹׂתוֹ:|
|15. Behold, I have set before you today life and good, and death and evil,||טו. רְאֵה נָתַתִּי לְפָנֶיךָ הַיּוֹם אֶת הַחַיִּים וְאֶת הַטּוֹב וְאֶת הַמָּוֶת וְאֶת הָרָע:|
|16. inasmuch as I command you this day to love the Lord, your God, to walk in His ways, and to observe His commandments, His statutes, and His ordinances, so that you will live and increase, and the Lord, your God, will bless you in the land to which you are coming to take possession of it.||טז. אֲשֶׁר אָנֹכִי מְצַוְּךָ הַיּוֹם לְאַהֲבָה אֶת יְ־הֹוָ־ה אֱלֹהֶיךָ לָלֶכֶת בִּדְרָכָיו וְלִשְׁמֹר מִצְוֹתָיו וְחֻקֹּתָיו וּמִשְׁפָּטָיו וְחָיִיתָ וְרָבִיתָ וּבֵרַכְךָ יְ־הֹוָ־ה אֱלֹהֶיךָ בָּאָרֶץ אֲשֶׁר אַתָּה בָא שָׁמָּה לְרִשְׁתָּהּ:|
|Rashi comments:||It is not in heaven: for if it were in heaven, you would have to climb up after it [in order] to learn it. - [Eruvin 55a]|
What is Torah trying to tell us?
This is one of the final exhortations we get in Torah. The mitzvot may seem difficult to perform, certainly by Mishnaic times, as this gemarrah, I think, amply demonstrates. As given, they are not. Not even the hukkim (which by definition, ought to be). The message (the torah) "is not concealed from you nor is it far away. It is not in heaven." Understanding "is very close to you; it is in your mouth and in your heart, so that you can do it."
But neither do the Rabbis necessarily have it right, as we see in this decision. (I wonder: is this story included in to encourage us to learn for ourselves? Is this somehow related to the tradition of questioning devarim from the floor? And why would the Rabbis so prominently advertise their error?)
If only we take responsibility for ourselves.
That's all ha'Shem wants.
 But, we also learn, as quoted in the Jewish Encyclopedia, that a bat kol was heeded:
For three years there was a dispute between Beit Shammai and Beit Hillel, the former asserting, "The law is in agreement with our views" and the latter contending, "The law is in agreement with our views." Then a bat kol (a voice from heaven) announced, "Eilu v’eilu divrei Elohim chayim" (these and those are the words of the living God), but the law is in agreement with the rulings of Beit Hillel.'
Since, however, "both are the words of the living God," what was it that entitled Beit Hillel to have the law fixed according to their rulings? Because they were kindly and modest, they studied their own rulings and those of Beit Shammai, and were even so humble as to mention the words of Beit Shammai before their own. (Eruvin, 13b)"
 Rosh Hashana 25a:
AND IN THE EVENING IN THE WEST [witness to the new moon came]. 1 R. JOHANAN B. NURI THEREUPON SAID, THEY ARE FALSE WITNESSES. 2 WHEN, HOWEVER, THEY [the same two] CAME TO JABNEH [and] RABBAN GAMALIEL ACCEPTED THEM. ON ANOTHER OCCASION TWO WITNESSES CAME AND SAID, WE SAW IT AT ITS PROPER TIME, 3 BUT ON THE NIGHT WHICH SHOULD HAVE BEEN NEW MOON 4 IT WAS NOT SEEN [hence, they were wrong], AND RABBAN GAMALIEL [had already] ACCEPTED THEIR EVIDENCE [and, once again, is wrong]. 5 RABBI DOSA B. HARKINAS SAID: THEY ARE FALSE WITNESSES. HOW CAN MEN TESTIFY THAT A WOMAN HAS BORN A CHILD WHEN ON THE NEXT DAY WE SEE HER BELLY STILL SWOLLEN? 6 SAID R. JOSHUA TO HIM: I SEE [the force of] YOUR ARGUMENT. THEREUPON RABBAN GAMALIEL SENT TO HIM TO SAY, I ENJOIN UPON YOU TO APPEAR BEFORE ME WITH YOUR STAFF AND YOUR MONEY ON THE DAY WHICH ACCORDING TO YOUR RECKONING SHOULD BE THE DAY OF ATONEMENT [both are forbidden acts on Yom Ha'Kippurim]. 7 R. AKIBA WENT [to Rabbi Joshua] AND FOUND HIM IN GREAT DISTRESS. 8 HE SAID TO HIM: I CAN BRING PROOF [from Scripture] THAT WHATEVER RABBAN GAMALIEL HAS DONE IS VALID, BECAUSE IT SAYS, THESE ARE THE APPOINTED SEASONS OF THE LORD, HOLY CONVOCATIONS, WHICH YE SHALL PROCLAIM IN THEIR APPOINTED SEASONS, 9 [which means that] WHETHER THEY ARE PROCLAIMED AT THEIR PROPER TIME OR NOT AT THEIR PROPER TIME, I HAVE NO APPOINTED SEASONS SAVE THESE. 10 HE [Rabbi Joshua] THEN WENT TO R. DOSA B. HARKINAS, WHO SAID TO HIM: IF WE CALL IN QUESTION [the decisions of] THE BETH DIN OF RABBAN GAMALIEL, WE MUST CALL IN QUESTION THE DECISIONS OF EVERY BETH DIN WHICH HAS EXISTED SINCE THE DAYS OF MOSES UP TO THE PRESENT TIME. FOR IT SAYS, THEN WENT UP MOSES AND AARON, NADAB AND ABIHU AND SEVENTY OF THE ELDERS OF ISRAEL. 11 WHY WERE NOT THE NAMES OF THE ELDERS MENTIONED? TO SHOW THAT EVERY GROUP OF THREE WHICH HAS ACTED AS A BETH DIN OVER ISRAEL IS ON A LEVEL WITH THE BETH DIN OF MOSES. 12 HE THEREUPON TOOK HIS STAFF AND HIS MONEY AND WENT TO JABNEH TO RABBAN GAMALIEL ON THE DAY ON WHICH THE DAY OF ATONEMENT FELL ACCORDING TO HIS RECKONING. RABBAN GAMALIEL ROSE AND KISSED HIM ON HIS HEAD AND SAID TO HIM: COME IN PEACE, MY TEACHER AND MY DISCIPLE — MY TEACHER IN WISDOM AND MY DISCIPLE BECAUSE YOU HAVE ACCEPTED MY DECISION.
Here, the sole opinion of the av beit din is determinative. Above, "after the majority one must incline." We have two very different views, both involving the same principal player, Gamliel II (who, I must observed, is wrong in both cases)..