Educational Deliberations on Teaching the Concept of Shevut

Introduction

An archetypal juncture perhaps even a highlight of the Yeshiva high school teaching experience is that moment when the class bond is strong enough to engage in a serious “belief in God” discussion. High school students spend much time and energy considering their identities and beliefs who they are and whom they have been trained to become. Yeshiva high school teachers have come to expect even hope for a serious discussion about the existence of God as an opening to help students in their quest for religious growth and understanding. In recent years however I have been surprised to find that my students seem to struggle less with the existence of God and more with the role of the rabbis. Once exposed to Talmudic argument and the concept of an איסור דרבנן (rabbinic prohibition) they seek legitimation of Rabbinic authority and an understanding of the scope and limits of that power; some approach this question with interest and respect while others do so with suspicion and distrust. While readily recognizing that a divine Being can make demands and have expectations our students find more difficulty in accepting “restrictions” “imposed” by other human beings. They ask from where does that right derive? Explicating the rabbinic interpretation of לא תסור מן הדבר אשר יגידו לך ימין ושמאל “you must not deviate from the verdict that they announce to you either to the right or to the left” (Deuteronomy 17:11) as the basis for that authority can prompt further challenge regarding the scope of rabbinic interpretive power. This line of questioning is mobilized not only in response to rabbinic restrictions but even when Chazal reinterpret a text more leniently or in a direction more resonant with the contemporary mindset. If we are obligated to respect the divine word why are rabbis entitled to “play” with the text as they do?

Our school’s halakha curriculum includes the case that most frequently generates this type of discussion in the classroom: איסורי שבות the shevut laws on Shabbat. The shevut laws are rabbinically determined Shabbat prohibitions. The rabbis established many such laws to ensure proper communal observance of Shabbat and these laws profoundly shape the way that we observe Shabbat today. The Modern Orthodox teacher who is tasked with explaining the concept of איסורי שבות must provide a clear and meaningful explanation for the idea one that the particular group of students in his or her class will understand and find compelling.

Joseph Schwab’s “four commonplaces” set a useful framework for the teacher to consider as he or she prepares to teach Torah in general and the shevut laws in particular. Schwab a professor of education at the University of Chicago describes the four commonplaces that constitute every educational setting: the teacher the students the subject matter and the milieu (the community and culture of the particular school). To educate properly all four commonplaces must be considered. All teachers are not the same — not in disposition educational philosophy nor temperament — and of course each student is unique as well. In the same vein each community is distinctive. To teach is to consider the subject matter in light of all of these commonplaces and to balance each in the context of the lesson. Teaching איסורי שבות in a Modern Orthodox community differs from doing so in a Haredi or a Conservative community. While the subject matter — the texts — remain the same in any of these communities the teacher the students and the context are not. Do those differences matter? Should the communal setting change our approach to a given topic? Should we teach the concept identically regardless of setting? Teachers must translate content into meaningful and useful knowledge by carefully considering all of these commonplaces when preparing a lesson.

I focus on the shevut laws as a topic in their own right and also as an example of the importance of teacher deliberation in Limudei Kodesh in general. Too often, we teach texts and content as we were taught when we were students or as we studied them in the Beit Midrash; we often do not deliberate carefully, anticipating the questions that our current students will have and the possible alternatives to explaining an idea or concept. I try to exemplify such content-deliberation through anticipating questions, exposing tensions and exploring alternative approaches to teaching the Shabbat shevut laws. Through deliberation, teachers highlight the strengths and weaknesses of the different approaches as members of the group absorb, question and reflect on the varied ways to approach the issue. When teachers gather to deliberate in this way, almost by definition, members of a group will be drawn to a range of theories and approaches, each teacher with his or her own inclinations.

In that spirit this essay seeks to bring different commonplaces into conversation in order to most meaningfully situate the teaching of אסורי שבות to Modern Orthodox high school students. To be clear I utilize both traditional sources and academic Jewish studies scholarship on the topic. However my goal is not to produce Torah or academic scholarship. Rather I aim to juxtapose Torah academic scholarship educational deliberation and a conscious focus on the milieu (our actual community). By putting these methodologies and commonplaces into conversation and by inviting the participation of educators and community members this paper aims to engender professional discourse around Modern Orthodox education that can benefit faculty and student learning and may even generate a new kind of Torah discourse.

The Educational Question

Chapter 5 Mishnah 2 of Tractate Betsah states:

כל שחייבין עליו משום שבות ומשום רשות ומשום מצוה בשבת  חייבין עליו ביום טוב.  אלו הן משום שבות לא עולין באילן ולא רוכבין על גבי בהמה ולא שטים על פני המים ולא מספקין ולא מרקדין ולא מטפחין.  אלו הם משום רשות לא דנין ולא מקדשין ולא חולצין ולא מייבמין.  ואלו הם משום מצוה לא מקדישין ולא מעריכין ולא מחרימין ולא מגביהין תרומה ומעשרות.  כל אלו ביום טוב אמרו ואין צריך לומר בשבת; ואין בין יום טוב לשבת אלא אוכל נפש בלבד.

Any [act] for which one is liable on Shabbat as a matter of shevut or as an optional matter, or as a mitzvah, one is also liable for on a holiday. And these are [the acts for which one is liable] as a matter of shevut: one may not climb a tree, and one may not ride atop an animal, and one may not swim in water, and one may not clap, nor slap [thighs], nor dance. And these are [the acts for which one is liable] as an optional matter: one may not judge, and one may not betroth, nor perform chalitzah, nor perform yibum. And these are [the acts for which one is liable] as a mitzvah: one may not consecrate [anything to the Temple], nor vow a personal valuation, nor make something cherem, nor raise terumah or tithes. All of these were said regarding holidays, so, a fortiori, on Shabbat. There is no difference between [the laws of] holidays and Shabbat except  for okhel nefesh.

The Mishna lists fourteen items that are rabbinically prohibited on Shabbat. The text does not provide an explanation or reason but the Bavli offers what have become the standard explanations for each of the prohibitions. They can all be subsumed under the category of גזירה שמא — a preventative decree to protect against inadvertent or unintended desecration of Shabbat. One may not climb a tree lest one pull off a branch; …ride on an animal lest one travel outside of the תחום; …swim lest one build a flotation device; …clap and dance lest one resort to repairing a musical instrument. Transactions are prohibited as they might lead to writing and the like (Bavli Betsah 37a).

Many students struggle with this line of reasoning. They have climbed trees and never removed branches, swum hundreds of times without building flotation devices and danced very often yet never repaired an instrument. Was life so different two thousand years ago? And if so, it was two thousand years ago! Don’t circumstances change?

Pedagogical Content Knowledge (PCK)

We would do well to slow down the process and consider the implications of questions such as “how does this make sense?” or “wasn’t life different two thousand years ago?” Are such questions legitimate? It is natural for a student to probe in this way. But from the perspective of the halakhic system – of a Torah of eternal meaning – such questions are challenging. Considering the mindset of our students and their families within the educational equation destabilizes the ‘meaning-making’ of text study. If we acknowledge a gap between ‘then’ and ‘now,’ we can close that gap in a variety of ways. We can introduce cultural and historical context; by explaining what the text meant in its original context, we can make the text meaningful. Alternatively, we can make a text relevant by “translating” the text so it makes sense to the contemporary student before us. Both of these options suggest that texts’ meanings alter as their audiences alter. Or we can propose to students that, although the ideas seem foreign, we must be open to what the text says and adapt ourselves to it. These different reader-response philosophies shape both the learning and the pedagogical approach of the teacher

Some three decades have passed since Lee Shulman coined the term pedagogical content knowledge ¹Shulman, L. S. (1987). Knowledge and teaching: Foundations of the new reform. Harvard Educational Review, 57, 1-22.. In an essay delineating the elements that comprise the required knowledge base for teaching, Shulman acknowledges the distinction between content knowledge and pedagogical knowledge. The former refers to the subject matter that is the teacher’s expertise. The latter is that blend of classroom management, teaching strategies, delivery methods, and assessment tools: the many teacher skills that transcend subject matter. He articulates curriculum knowledge as yet a third category — knowledge of the extant curricular materials and programs relevant to the particular subject area ² Ibid, p. 8. — and he explains that these three are largely familiar to teachers. Pedagogical content knowledge, however, is a fourth — and new — category. In Shulman’s words, it is a “special amalgam of content and pedagogy that is uniquely the province of teachers, their own special form of professional understanding. It represents the blending of content and pedagogy into an understanding of how particular topics, problems, or issues are organized, represented and adapted to the diverse interests and abilities of learners and presented for instruction. Pedagogical content knowledge is the category most likely to distinguish the understanding of the content specialist from that of the pedagogue”. ³ Ibid.

We might articulate the distinction this way: when we learn content to strengthen our expertise in our content area, we do so in an ideal way, i.e, focused on the world of ideas. It is relatively pristine, unblemished by the challenges of communication, of sharing the ideas with others. When preparing the material for teaching, however, the audience or the students must enter the equation. And that variable might shift how we think about the material. We will select some parts and omit others. Our articulation of a concept shifts depending on the age and capacity of the students. The community from which they hail impacts how the material will be taught as well. In a sense, there is a “Heisenberg Principle” of learning (in general, and in this instance of learning Torah). The task of teaching Torah can impact the way that I study Torah in preparation for that teaching. I would go so far as to distinguish between the study of Torah in a Beit Midrash and the study of Torah in a Faculty Beit Midrash. When I study Torah with students in mind, I ask different questions of the text because I anticipate the questions that will arise in the minds of students and that shapes the learning experience itself.  Anticipating the teaching experience profoundly impacts the learning experience of the teacher.

What process should be employed to develop pedagogical content knowledge in regard to the shevut laws, which, as we articulated above, prompt particular questions? In order to deliberate meaningfully, we must 1) interrogate the text and the topic from the students’ perspective and generate a list of “problems,” anticipating their questions and their ways of understanding; 2) enumerate the possible approaches, drawing on an eclectic range of strategies; and then 3) consider the educational pros and cons of each approach. In exploring how to best teach the shevut laws, I will suggest three possible approaches and consider the educational tradeoffs of each. I classify the three options as psychological, historical and theological. ⁴ A word of clarification: while I will quote sources when describing these approaches, I am using these sources, to quote Schwab, as resources to clarify the issues rather than as sources to teach the topic. In other words, in quoting the view of R. Moshe Feinstein, I do so not solely, or even primarily, as a source cited for its halakhic decision but rather as a resource from which we can explicate an educational approach to the issue at hand. In addition to stating the position of R. Feinstein, we would then also ask, how would we explain the position to students? What is its logic, its driving orientation? It is in this sense that I refer to R. Feinstein’s approach as ‘psychological’.

Three Ways to Approach the Shevut Laws

A. Theorizing the Concept of גזירה שמא – A Psychological Approach

One approach is to tackle the anticipated question directly. Students question why the rabbis were concerned about seemingly unlikely turns of events. And, too often, we expect not to be able to explain such “difficult statements” in the Gemara; when we don’t respond to the challenge of the text, we miss an opportunity to “make good sense” out of what the Gemara is saying. ‘Making sense’ requires a focused and unwavering commitment to reasonably explain every line of Gemara to the best of our ability. Let’s take the prohibition against swimming as an example. The Gemara explains that we are concerned that a person might build a flotation device on Shabbat, thereby violating a Biblical prohibition. How will that come to pass?

We can help students imagine the possible circumstances where this could occur. It will take some time for the class to consider this. The text is likely not referring to a premeditated violator of Shabbat. Preventative measures are not relevant for such a person. On the other hand, if the swimmer is “observant,” then what circumstances might cause the person to build the device? One possibility is that the rabbis are concerned that a dangerous situation might arise, requiring action in order to save someone from drowning. If this were the concern, the rabbis would be teaching us to avoid placing ourselves in circumstances where we would need to violate the Shabbat in order to save a life. However, the commentaries do not seem to mention any potential danger in our situation, and it is not implied in the text. Rashi proposes a variation of this “observant” option: we are referring to a “rubber object that is woven together, similar to a long barrel, and one uses it to learn how to swim.” ⁵רש״י ביצה לז עמוד ב. ״חבית של שייטין. כלי של גומא שאורגין אותו ועושין כמין חבית ארוכה ולמדין בו לשוט״. “A swimmer’s barrel; an instrument of cyperus that is woven made like a barrel to learn to float.”   It appears, according to Rashi, that the rabbis were concerned that people would violate Shabbat when swimming because where there is swimming, there are some learning how to swim. That setting might result in the building of a flotation device. In this case, though, I suggest a different approach – or perhaps an elaboration of Rashi’s approach – but one that is more communal in nature.

The גזירה שמא concept is reminiscent of slippery slope arguments. Towards whom are such arguments directed? Are we concerned about the results of an individual circumstance and decision or does this prohibition reflect a more communal concern? Although slippery slope arguments have often been considered flawed a number of philosophers and legal theorists have attempted to articulate the elements that comprise a reasonable slippery slope concern. ⁶D. Walton, Slippery Slope, Encyclopedia of Global Bioethics, ed. Henk ten Have. Berlin: Springer, 2015, 2623-2632. E. Volokh, The Mechanisms of the Slippery Slope, Harvard Law Review 116:1026-1138. M.J. Rizzo and D.G. Whitman, The Camel’s Nose is in the Tent: Rules, Theories and Slippery Slopes, UCLA Law Review, 51:540-592. The slippery slope argument is related to the sorites paradox but should be distinguished from it, as the slippery slope is not paradoxical but logical when applied properly. “The slippery slope argument is closely related to the sorites (heap) paradox known to the ancient Greek philosophers, and attributed to Eubulides (Kneale and Kneale, 1962, 114). The heap paradox can be formulated as an argument with two true premises leading by an apparently valid argument to a false conclusion. Premise 1: If you take one grain away from a heap, it makes no significant difference – you still have a heap. Premise 2: Each time you repeat this step, it makes no difference, because one grain is too small to make a difference between something being a heap or not. Conclusion: Even if you only have a few grains left, after repeating this step in premise 2 many times, what you have left has to be a heap. This argument represents a paradox, because if a deductive argument is valid and the premises are all true, then the conclusion cannot be false,” Walton, p. 2. The ‘heap’ paradox is also described as ‘the argument of the beard’ or ‘the bald argument’ referring to pulling one hair at a time from one’s head. If you pull one hair from one’s head, the person is not then bald, etc. Their logic might shed light on our understanding of the shevut laws. The steps, as developed by Douglas Walton, are as follows:

A genuine slippery slope argument should have four basic characteristics. First there is a framework of discussion in which two agents, in the simplest case, are deliberating on whether to take an action or policy that they are considering, or that one of them is considering. Let us call the agent who is considering taking the action the proponent, and the other party who is raising some doubts about whether the action is prudent, the critic. Second, the critic postulates a sequence of actions that will flow progressively from the first action being considered. Third, although the first steps in the sequence may be harmless, the proponent will gradually be propelled along the sequence to actions that are progressively more serious. Fourth, at some indeterminate point that cannot be defined in advance, the so-called gray area, the agent loses control and can no longer stop the sequence of actions from moving ahead to the final catastrophic outcome. ⁷Walton, p.4.

A reasonable slippery slope argument postulates “a sequence of concerns that will flow progressively from the first action.” We are concerned with a policy or behavior that will, over the course of time and numerous instances, evolve in such a way that the original agent loses control over the initial decision. When we teach the shevut laws, we tend to think of these slippery slope arguments as concerned with individuals in single circumstances, which is difficult for students – and for many adults – to accept because the need to build a flotation device seems unlikely and easy to control. More likely, reasonable slippery slope arguments ask us to consider how a particular action might evolve over time and, as in our case regarding Shabbat, across a community of people.

How do actions or policies evolve over the course of time? Comparing two related rabbinic prohibitions will help clarify how the rules are implemented. Both bathing and swimming are prohibited on Shabbat ⁸ For our current purposes, we will not go through the distinctions between Shabbat and Yom Tov regarding the bathing prohibition. and both are prohibited as preventative measures. While they are related behaviors distinct halakhic reasoning informs each category. An extended sugya in Bavli Shabbat 38b-41a explores the roots of the prohibition on bathing. At its core the prohibition reflects a concern that the bath attendants would heat water on Shabbat to provide for their clients in the bathhouse thereby violating a Torah prohibition of boiling water on Shabbat. This rabbinic decree is commonly referred to as גזירת מרחצאות or גזירת הבלנים the decree of the bathhouses or the bath attendants which differs notably from the concern about building a flotation device while swimming. Students often have a vague sense of various prohibitions surrounding immersing in water on Shabbat without clarity as to what is prohibited and why. How do we explain the reasoning of the prohibition of swimming in comparison to the prohibition of bathing? In what ways are they similar? In what ways are they different? Our students’ appreciation for the wisdom of Chazal arguably lies in our capacity to reasonably explain the logic of such gezerot.

The Yerushalmi quotes the following explanation for the closing of the bathhouses:

חד פיליסופים שאל לבר קפרא אבלט שאל ללוי סריסא מותר לשתות ואסור לרחוץ א”ל אם תראה סריס מתחבק עם אשתך שמא אינו רע לך א”ל אין א”ל ומכי הוא לך כלום א”ל שלא תתפרץ א”ל והכא שלא יתפרצו

A philosopher asked Bar Kapparah; Ablat asked Levi Sarisa: one may drink but may not bathe? He responded: if you would see a eunuch hugging your wife, is it not evil in your eyes? He said, yes. He said, and is he anything to you? He responded, so that it does not break out (lead to something worse). Said he, here too, so that they won’t come to something worse.

It is important to note that the concern emphasizes not what will happen with that person at that time, but with another person at another time. Desensitization to a prohibition, according to this Gemara, happens slowly over the course of multiple, fairly similar — but not identical — circumstances. Applied to swimming, perhaps, here too, the concern is about the impact of swimming on Shabbat over the long term rather than the immediate effect on the individual at that moment.

Furthermore, the Yerushalmi suggests that people make decisions based on the similarity of cases. Why is drinking permitted and bathing prohibited? If I can hug this person, why can’t I hug that person? If the comparisons and distinctions are not clear or they evolve as a string of comparisons, one might end up far from where he started. To take an example from the world of bioethics: somatic gene therapy (that is not passed down to the next generation) can lead to germline therapy (which is). This, in turn, can lead to genetic enhancement that can lead to eugenics. ⁹Walton, p. 5. How does this happen? Each step is small, but the steps aggregate over time to cause shifts in policy and public understanding.

As halakhically observant Jews, the possibility of evolving comparisons requires us to think carefully about how our practices on Shabbat will shape or possibly reshape the Shabbat experience over the course of time rather than in one specific moment. Here is how the Gemara describes the evolution of גזירת מרחצאות:

ומשרבו עוברי עבירה התחילו לאסור…מאי עוברי עבירה דא”ר שמעון בן פזי אמר ריב”ל משום בר קפרא בתחילה היו רוחצין בחמין שהוחמו מע”ש התחילו הבלנים להחם בשבת ואומרים מערב שבת הוחמו אסרו את החמין והתירו את הזיעה ועדיין היו רוחצין בחמין ואומרים מזיעין אנחנו אסרו להן את הזיעה והתירו חמי טבריה ועדיין היו רוחצין בחמי האור ואומרים בחמי טבריה רחצנו אסרו להן חמי טבריה והתירו להן את הצונן ראו שאין הדבר עומד להן התירו להן חמי טבריה וזיעה במקומה עומדת

(The Tosefta states:) When the “sinners increased, they prohibited the bathhouses.” What is “when the sinners increased”? R. Shimon b. Pazi said in the name of R. Joshua b. Levi quoting Bar Kapparah: initially, they would wash in hot water heated from before Shabbat. The bath attendants began to heat the water on Shabbat and say that it was heated prior to Shabbat. They (the rabbis) prohibited bathing in hot water but permitted the sauna. They continued to bathe and would say, “we were only in the sauna.” They prohibited the sauna and permitted Tiberian hot baths. They continued to bathe in water that was heated by fire saying, we only bathed in Tiberian hot baths. They prohibited Tiberian hot baths and permitted cold water. They saw that they were not able to stand it. They permitted Tiberian hot baths but the sauna prohibition remained. ¹⁰Bavli, Shabbat 40a.

The sugya describes a process of change over time in the way that the communal bathhouse was used on Shabbat. Ultimately, the rabbis closed the bathhouses and prohibited bathing in warm water that was heated by fire.

The preventative measures taken by the rabbis can thus be explained as an effort to prevent cultural slippage over the course of time rather than an expression of concern for individual failings. We can extend the logic of cultural slippage regarding bathing and apply similar thinking to swimming on Shabbat. It is less the individual failing that the shevut comes to protect; the concern is that a culture of swimming will result in a context, a setting, that will make a violation of Shabbat more of a possibility. A slow shift in communal norms can result from small steps that individuals are prone to make from one occasion to the next. At first, a parent permits a toddler to go into the water on a hot Shabbat day. The next time, the parent goes in the water as well. Over the course of months and years, a culture develops, an environment where friends gather in the pond for fun, an environment which has the potential to result in desecration of Shabbat. As such, bathing and swimming were prohibited on Shabbat in anticipation of the way that such behaviors would change Shabbat in the community.

We thus have one rule prohibiting bathing and a different rule prohibiting swimming, each for its own reason. But what is the limit to the slippery slope concern? How far can one take a slippery slope argument before it feels specious?

One way to manage slippery slopes is by articulating a clear end, a point beyond which one may not go. This stopping point serves to delineate the area of concern and leave possibilities farther down the slippery slope outside the domain of the rule. We find just such a marker regarding swimming.

Our rule thus far teaches that one may bathe in cold water but not swim on Shabbat. R. Zera was uncertain regarding the behavior of R. Abbahu.

אמר רבי זירא: אנא חזיתיה לרבי אבהו דשט באמבטי ולא ידענא אי עקר אי לא עקר. פשיטא דלא עקר. דתניא: לא ישוט אדם בבריכה מלאה מים ואפילו עומדת בחצר? לא קשיא הא דלית ליה גידודי הא דאית ליה גידודי.

Rabbi Zera said: I saw Rabbi Abbahu floating in a bath and I did not know if he lifted his feet or if he did not lift his feet. It is obvious that he did not lift his feet, as it was taught in a baraita: A person may not float in a pool full of water and even in a courtyard? This is not difficult; this does not have embankments, that has embankments. ¹¹ Ibid, 40b.

R. Abbahu was floating in the bath on Shabbat, and R. Zera was unsure whether he actually lifted his feet off the ground — ostensibly, the definition of swimming as opposed to bathing. The Gemara finds it impossible to believe that R. Abbahu was swimming on Shabbat until the Stam suggests the following distinction: if the water is in a contained space with a rim, one is permitted to swim there on Shabbat. The reason: the rim around a body of water serves as a clear distinction between a lake or pond where the shevut is applied and a pool where it is not. This logic is codified in Rambam¹²רמב”ם הלכות שבת פרק כג הלכה ה – אֵין שָׁטִין עַל פְּנֵי הַמַּיִם גְּזֵרָה שֶׁמֶּא יְתַקַּן חָבִית שֶׁלְּשַׁיָּטִין. בְּרֵכָה שֶׁבְּחָצֵר מֻתָּר לָשׁוּט בָּהּ שְׁאֵינוּ בָּא לַעֲשׂוֹת בָּהּ חָבִית שֶׁלְּשַׁיָּטִין: וְהוּא שֶׁתִּהְיֶה לָהּ שָׂפָה מֻקֶּפֶת שֶׁלֹּא יֵעָקֵר מִמֶּנָּה הַמַּיִם כְּדֵי שֶׁיִּהְיֶה הֶכֵּר וְהֶפְרֵשׁ בֵּינָהּ וּבֵין הַיָּם. and Shulkhan Arukh ¹³שו״ע או״ח סימן של”ט סעיף ב’ – אין שטין על פני המים אפילו בבריכה שבחצר מפני שכשהמים נעקרים ויוצאים חוץ לבריכה דמי לנהר. ואם יש לה שפה סביב מותר דכיון דאפילו נעקרו המים השפה מחזרת אותם למקומם הוי ליה ככלי וליכא למגזר ביה שמא יעשה חבית של שייטין One may not swim in the water – even in a pool that is in a courtyard – because the water spills over outside of the pool and is thus similar to a river. If it has a lip around it it is permissible to swim since should the water become uprooted it will return to its place it is like a tub and there is no need to decree “lest one make a floating device..

R. Moshe Feinstein was asked directly about swimming in a pool on Shabbat ¹⁴אגרות משה אבן העזר חלק ב סימן יג. ולשחות בשבת במים הנה בנהר ובלייק אסור מדינא וכן אף בבריכה אם לית לו גידודי כדאיתא בשבת דף מ’ ואם הוא בבריכה שהוא הסווימינג פול שברוב יש לה שפה מותר מדינא מצד איסור שט כדפרש”י ריש דף מ”א ואיפסק בסימן של”ט סעיף ב’.. His response is essentially a restatement of what is clearly stated in Rambam and Shukhan Arukh but significant in the fact that he is addressing our contemporary swimming pool. R. Feinstein states that one is permitted to swim in a pool when it is enclosed and separated from its natural surroundings, as a standard pool is. The argument: there are two distinct rabbinic laws prohibiting a person’s entering a body of water on Shabbat. One law prohibits swimming in a natural setting because one might build a flotation device. A separate law prohibits one from bathing because one might heat up water. Cold water in a pool conforms to neither of the two circumstances and is therefore technically permissible on Shabbat.

Although not clearly stated R. Moshe’s application of the explicit halakha suggests that there is a psychology behind the rabbinic prohibition. People are creatures of habit. Particular contexts generate certain kinds of instinctive behaviors. Changing the context changes the concerns. Expanding this logic one can suggest that איסורי שבות are concerned with where an action might lead because the focus is precisely on instincts habits and contexts. We should ask students for examples where habit and context have impacted their Shabbat experience or observance – in both positive and negative ways. Students often express appreciation for the experience of Friday night in their homes – family meals sitting together in the living room after the meal playing a game together. While not all of these are halakhic categories they all contribute to the Shabbat experience one that has developed in our families and community over time. In turn in some of our neighborhoods most people remain in Shabbat clothing all day; in others a concept of “Shabbat afternoon clothing” has developed; in still others it is common to jog in shorts and a T-shirt on Shabbat. These communal habits likely evolved over time. It is with this slow evolution that the rabbis were concerned.

Why do we, today, not exhibit serious concern that our various actions might lead to inadvertent writing, building or buying on Shabbat? Perhaps the psychological focus of the rabbis worked! We have been properly trained through the shevut laws, and Shabbat has  been protected.

B. A Historical Approach

While I have found this psychological approach effective in certain ways, a teacher can also prepare for teaching the shevut laws through a second approach, one that focuses on the comparison of extant parallel texts on the topic. In doing so, we discover a dynamic history of the shevut laws, one that provides a window into the development of both the spirit of Shabbat in the mind of the rabbis as well as of rabbinic authority itself¹⁵ This section largely draws on two essays. Yitzhak D. Gilat, Studies in the Development of the Halakha (Jerusalem: Bar-Ilan University Press, 1992) (Hebrew) and Richard Hidary, “One May Come to Repair Musical Instruments”: Rabbinic Authority and the History of the Shevut Laws, JSIJ 13 (2015) 1-26. . The world of academic Jewish studies can serve as an important resource for teachers to uncover the robust history of a given text. For example in an essay on the evolution of איסורי שבות Yitzhak Gilat¹⁶Yitzhak Gilat was a professor of Talmud at Bar Ilan University. He studied in the Slobodka Yeshiva and in the Mirrer Yeshiva in Jerusalem before embarking on a career in Jewish Studies. notes that the Bavli’s approach of “גזירה שמא” the preventative decree as explanation for the prohibitions in the Mishna in Betsah above does not appear in the Jerusalem Talmud or in any of the Tannaitic Midrashic literature. In those texts these actions are prohibited because of a positive commandment that requires us to “make” the Shabbat into a day of rest. For example Mekhilta deRabbi Shimon bar Yochai (Ex. 12:16) states:

אין לי אלא מלאכה שחייבין על מינה חטאת מלאכה שאין חייבין על מינה חטאת מנ’ לא עולין באילן ולא רוכבין על גבי בהמה לא שטין על פני המים לא מספקין לא מרקדין ולא מטפחין תל’ לו’ כל מלאכה אין לי אלא ברשות במצוה מנ’ אין מקדישין אין מעריכין ואין מגביהין ואין מתרימין תרומה ומעשרות תל’ לו’ שבתון שבת קדש (שמ’ טז כג)

I know that “work” (Exod 16:12) includes acts for which one is liable to bring a sin offering. But concerning an act for which one is not liable to bring a sin offering, how do I know that one may not climb a tree, that one many not ride an animal, that one may not float on the water, that one may not clap nor slap one’s thigh, nor dance? Scripture therefore teaches, “any work”. I only know that this includes optional behaviors. How do I know regarding commandments – one may not dedicate or donate to the Temple nor separate Treumah and tithes? Scripture therefore teaches, “complete rest, the holy Sabbath” (Exod 16:12).

שבתון teaches us that we must make sure that the day is a day of rest an experience that differs from a weekday. While the 39 Shabbat prohibitions create a framework and limitations to creative work on Shabbat we must actively restrain ourselves from other behaviors that comprise a regular day. Actions that lead to building writing and business all fall under that category. Similar interpretations are cited in other tannaitic Midrashim as well¹⁷ספרא אחרי פרשה ז:ט – אין לי אלא מלאכה שחייבים על מינה כרת מלאכה שאין חייבין על מינה כרת מנין שלא יעלה באילן ושלא ירכב על גבי בהמה ולא ישוט על המים ולא יספוק ולא יטפיחולא ירקד תלמוד לומר שבתון שבות אין לי אלא שביתת רשות שביתת מצוה מנין לא יקדיש ולא יעריך ולא ולא יחרים ולא יגביה ולא יתרום ולא יעשר ולא יקדש ולא יגרש ולא ימאן ולא יחלוץ ולא ייבם ולא יפדה נטע רביעי ומעשר שני תלמוד לומר שבתון שבות מכילתא דר״י בא פרשה ט – ושמרתם את היום הזה לדורותיכם למה נאמר והלא כבר נאמר כל מלאכה לא יעשה בהם. אין לי אלא דברים שהם משום מלאכה דברים שהם משום שבות מנין ת”לושמרתם את היום הזה להביא דברים שהן משום שבות. According to Gilat the Tannaim and the Amoraim living in Israel at the time did not use the logic of גזירה  שמא preventative decree. For them איסורי שבות the shevut laws, are not defensive measures to protect against error; they are purposive behaviors to create a Shabbat environment¹⁸This leaves us to wonder what prompted the Bavli to (re)interpret the shevut laws as it did. Gilat places this in the context of his larger argument elsewhere that the older halakha as reflected in the views of R. Eliezer ben Hyrcanus and the school of Shammai did not categorize מלאכות שבת the Shabbat prohibitions into 39 categories nor did they distinguish between prohibitions of Biblical and Rabbinic origin as later schools of thought did. As a result of this shift the rabbis needed to explain why certain rabbinic prohibitions were instituted and not others. Our sugya reflects that thinking. .

Following this line of thinking can profoundly reshape our students’ understanding of the Biblical concept of Shabbat as understood by the rabbis. We commonly divide the laws of Shabbat into positive and negative commandments זכור and שמור. While we have a long list of negative Biblical commandments the thirty-nine actions that define the word מלאכה we are conventionally trained to enumerate one positive Biblical commandment on Shabbat that of the recitation of Kiddush¹⁹Pesachim 106a.. This conception suggests otherwise. In fact according to the early Tannaim the Bible articulates two broad concepts that shape the Shabbat experience each articulated in one word. The term מלאכה denotes the types of creative work that are prohibited on Shabbat while the term שבתון denotes the actions that must cease on Shabbat in order to generate its spiritual environment the day of complete rest. The Tannaitic texts explain each of these words via lists of examples that give shape to the terms.

There is no doubt that the Bavli moved in a different direction, towards a clear separation of positive and negative commandments. There is also no doubt that subsequent halakha essentially followed the Bavli’s formulation of the shevut laws. Still, Gilat’s research enabled him to situate a well known Ramban on the shevut laws in the context of the original Tannaitic discussion of these same laws. Initially, the Ramban struggles to interpret the concept of shevut laws puzzled by their apparently confused nature. On the one hand these laws are attached to a verse in the Torah specifically the word שבתון. Yet we refer to shevut laws as rabbinic in origin. How are we to explain this? To resolve this question, the Ramban rehabilitates this more ancient logic for the shevut laws as he finds it in the Mekhilta of R. Yishmael, Mekhilta of R. Shimon b. Yokhai and the Sifra. Ramban boldly considers the sources anew and restores a classic understanding of the concept of shevut. By centering his commentary on that approach, he returns it to popular discourse.

ונראה לי שהמדרש הזה לומר שנצטוינו מן התורה להיות לנו מנוחה בי”ט אפילו מדברים שאינן מלאכה לא שיטרח כל היום למדוד התבואות ולשקול הפירות והמתנות ולמלא החביות יין ולפנות הכלים וגם האבנים מבית לבית וממקום למקום ואם היתה עיר מוקפת חומה ודלתות נעולות בלילה יהיו עומסים על החמורים ואף יין וענבים ותאנים וכל משא יביאו בי”ט ויהיה השוק מלא לכל מקח וממכר ותהיה החנות פתוחה והחנוני מקיף והשלחנים על שלחנם והזהובים לפניהם ויהיו הפועלים משכימין למלאכתן ומשכירין עצמם כחול לדברים אלו וכיוצא בהן והותרו הימים הטובים האלו ואפילו השבת עצמה שבכל זה אין בהם משום מלאכה לכך אמרה תורה “שבתון” שיהיה יום שביתה ומנוחה לא יום טורח. וזהו פירוש טוב ויפה:

ואחרי כן ראיתי במכילתא אחריתי דרבי שמעון בן יוחאי…וכענין זה היא שנויה בת”כ (אחרי פרק ז ט)

And it appears to me that this Midrash comes to tell us that we are Biblically commanded to provide for ourselves rest on Yom Tov even from things that are not מלאכה so that one does not toil measuring wheat weighing fruit and priestly gifts filling barrels of wine and moving objects and stones from house to house and place to place. And if one lives in a walled city where the doors are locked at night they would load their mules and would deliver even wine grapes and figs on the holiday; and the market would be filled with business transactions stores would be open with storeowners providing credit while moneychangers are at their tables with their gold before them; and workers would rise early to hire themselves out for work just as on a weekday – these and other similar behaviors. Then these holidays – and even the Sabbath itself – would unravel since there is no מלאכה. Thus the Torah stated שבתון that it should be a day of complete pause and rest rather than a day of toil. This is a good and fine interpretation. Subsequently I saw in the Mekhilta deRabbi Shimon bar Yochai….and it is similarly stated in Torat Cohanim²⁰רמב״ן על התורה ויקרא פרק כג פסוק כד. עיין גם רמב״ן דברים פרק ובדרשה לראש השנה. Gilat notes a contradiction in the view of Ramban. Early on in his comments on Maimonides’ Sefer HaMitzvot he assumes the traditional Babylonian position that the shevut laws are rabbinic in origin. In his commentary on the Torah he adopts the position that the category is Biblical while the specific examples are articulated by the rabbis. In his דרשה לראש השנה he shifts his position yet again suggesting that some shevut laws are Biblical in nature while others are rabbinic. Gilat suggests the following evolution in Ramban’s thought: initially Ramban followed the conventional view whereby the shevut laws were rabbinic in origin. Subsequently he adopted the position of the early Tannaim that these laws represented a Biblical category. Finally he adopted a more nuanced position: constant public institutionalized practice of these shevut behaviors violate a Biblical prohibition. An isolated violation of a shevut law is a rabbinic violation. This position is later supported by R. Moshe Sofer who states that one who “goes to work” on Shabbat violates a Biblical prohibition even if he or she does not technically violate any of the thirty nine melakhot based on precisely this argument. (שו״ת חתם סופר חו״מ השמטות סימן קצה)..

From a historical perspective, Gilat’s work highlights the fact that the Ramban is rehabilitating one of two distinct approaches to understanding the prohibitions in the Mishna in Betsah.

As educators we should take note of the differences between the psychological and the historical approaches in several respects. The former approach is in disposition more protective of the law exploring human behavior as the rationale for fixed restrictions; the other is more culturally constructive a generic concept seeking to create a sanctified Shabbat environment. Each approach activates different emotions and elicits different responses thoughts and questions from the students. The first approach in my experience generates serious questioning because the reasoning is not intuitive. I find the latter approach more readily understandable to my students and I prefer to teach that approach focusing on the way that these rabbinic enactments help shape a unique Shabbat environment. However I must then carefully consider that this explanation is rooted in a historical approach to halakha and does not use the the preventative גזירה שמא language of the Bavli and the Shulkhan Arukh; the historical approach also acknowledges changes in the conceptualization of the halakha over time. That generates its own set of pedagogical questions which must be considered. To teach the approach of the Ramban and the Tannaim we must be prepared to discuss the issue of halakha and change. Deliberation around such curricular decisions is vitally important for one’s teaching and highlights the tradeoffs that exist in choosing an educational approach to the issue.

This last set of issues highlights the importance of establishing a “faculty Beit Midrash” environment where teachers can learn the texts and deliberate together about pedagogical approaches curricular considerations and the implications of those decisions: should I teach the traditional גזירה שמא approach or choose an approach which bypasses the language of the Gemara but is easier to explain? If I choose the latter should I also explain that this quite possibly makes swimming in a lake a violation of a Biblical law? Should I teach both the Bavli and the Midrashic approaches? Teaching the latter without the former is a paternalistic choice. It filters out information (גזירה שמא) simply because the Bavli’s view is more difficult to explain. Of course as teachers we make such decisions all the time. Still we must confront the ethical question that is raised: determining what to include and what to omit is a decision rooted in a blend of ideology and pragmatism. Teaching the Midrashic option raises a question about the evolving nature of halakha. If the Torah is eternal and we are eternally committed to its observance how can its categories and concepts change in this way? Finally should the way that I teach a sacred text be shaped by what students will find most accessible – or does that focus ultimately distort the meaning of the halakha? These are questions that should be raised and discussed as part of a deliberative process on the part of teachers as they prepare this material for the classroom. The balance of ideology and pragmatism is particular to each case and must be thought through carefully. In my view we must attempt to strike that balance to teach the Gemara’s explanation with clarity and to introduce the approach of the Midrash as well.

These are the considerations of the teacher, of the world of the classroom. The Modern Orthodox day school classroom is the space where the eternal texts of Torah, the sacred world of the Beit Midrash, the academic world of the university and the practical world of students — in our case, American Modern Orthodox twenty-first century kids — intersect. Educational deliberation around the teaching of Torah texts demands precisely this melding of Torah, scholarship and the practical (to use Schwab’s term). We are obligated to consider different approaches to the issue in order to make the texts ‘make sense’. We must also consider the implications of our pedagogical decisions: what does the historicizing or psychologizing of halakha teach our students? What will not historicizing or psychologizing the halakha teach our students? What are the ethical tradeoffs in making a particular pedagogical choice? In this sense, a Faculty Beit Midrash is a place to learn classical Torah texts with our students in mind. It is an environment where the range of tensions and questions can be exposed and explored. Torah study itself changes when it is done with an eye to the experiences and responses of our actual students.

C. A theological approach

Of course, there is a third option. The Mishna teaches what is prohibited. The Bavli explains the rationale. Whether that resonates with our students or not is relatively immaterial because the Torah is eternal and our obligation is to respect its teachings. The Torah has preserved us as a people for thousands of years. Rules might be relevant in ways that we cannot imagine. They might be more relevant in a certain place and time than in another. But the rules must stand in order for the Jewish people to survive and to thrive as servants of God. The Torah contains wisdom that is beyond our rational comprehension. That is why it is divine. That is why it is the Torah.

A teacher following this approach would say, “It might be true that different approaches can be uncovered, as Gilat suggested above, to explain the basis for shevut laws. But one approach has become the accepted and the normative explanation – namely, the preventative approach of the Bavli; so much so, that it is formulated that way in Shulkhan Arukh. Therefore, that is the approach that should be taught.”

If we follow this option we will focus less on making the prohibition meaningfully comprehensible to our students and more on the importance of trusting the rabbis and following their direction even when we don’t fully comprehend. This approach focuses on the importance of commitment to mitzvot and the eternal truth of Torah the importance of obedience to halakha and the concept of אמונת חכמים deep trust in rabbinic legislation and leadership. If we elect not to choose this approach we miss an opportunity to teach these values.

It is worth taking a moment to dwell on the significance of that statement. Many Modern Orthodox teachers will not choose the last option. But foregoing that approach misses an opportunity to teach concepts that are very important to us. Over time those individual pedagogical decisions aggregate. If we constantly choose to explain historicize psychologize and create ‘here and now’ meaning we are in the aggregate not teaching the values of obedience to halakha and the centrality of אמונת חכמים that strengthen individual and communal commitment to halakha.

Educational deliberation and choosing your path

We have focused on a question that requires deliberation. It is an educational deliberation, one that demands the expertise of teachers and should be developed as a unique field of Torah expertise. Roshei Yeshiva deliver shiurim on the topic, and scholars have researched the history of rabbinic decrees. But Jewish educators must develop a culture of Torah-related educational deliberation. When educators study Torah, we must achieve a deep understanding of the sugya using both traditional and academic resources. We must anticipate the assumptions our students will bring to the topic, the questions it will raise for them, how it relates to their current family practice and understanding, how to help students draw meaning from what they are learning.

Educators must develop a culture of deliberation among department staff as they prepare for teaching. In the following section, I propose some steps that can help us deliberate as we prepare a sugya for classroom learning. To do so, I borrow two concepts from Schwab’s series of essays on curriculum work, The Practical²¹Schwab, J.J., The Practical 4: Something For Curriculum Professors To Do. Curriculum Inquiry 13. (1983): 239-265; ibid, Science, Curriculum and Liberal Education, (Chicago and London: The University of Chicago Press, 1978), pp. 287-383.: 1) recognizing the partiality of theory and 2) developing an eclectic approach to curriculum.

Schwab was most interested in the intersection between theory and practice. To bridge theory and practice, one must first recognize the limitations of theories, each of which focuses on one aspect of an issue. By virtue of its singular focus, all theory includes and excludes and is therefore partial. He offers the educational example that understanding personality theory is central to being an educator, but it is only one aspect of being an educator. Further, any theory of personality is, itself, partial. Freudian theory differs from Jungian theory, which differs from behavioral theory, and so on. To put theories of personality to use, one must develop an eclectic approach. The teacher must also recognize what each theory includes and what it excludes. Behavioral theory offers what Freudian theory does not and vice versa. Knowing the range of theories strengthens the teacher’s capacity, allowing him or her to apply a range of concepts to varied circumstances.

Let’s ‘translate’ these ideas for our sugya.

The eclectic – The teacher should begin preparing to teach this topic by determining what our sources teach us about the nature of and basis for the shevut laws. Most often, when we approach such a topic, a conventional approach has already become “common sense” over decades or even centuries. Referring to something as “common sense,” however, does not suggest that it is the only known or possible option but simply the most well known. Without researching further, we are left to do the best we can in the classroom with the information that has been passed down to us. In this instance, teaching the shevut laws as גזירה שמא preventative decrees is the most common approach albeit one that presents pedagogical challenges. Digging deeper availing ourselves of recent research and older approaches allows us to approach the topic in a more eclectic fashion exposing different ways of considering the issue thereby making possible different ways to approach the topic in a classroom. Our Modern Orthodox students seek to balance commitment with understanding respect for authority with a sense of agency. They come from a wide range of observance and philosophy representing an eclectic Orthodox population. Developing an eclectic approach provides the teacher with the capacity to facilitate a rich classroom discussion that can engage different types of students give voice to what students are wondering and instill a sense of appreciation for rabbinic law.

The partiality of theory – When considering various approaches to a topic, one must acknowledge that each perspective is partial. Each approach accomplishes certain pedagogical goals at the expense of others. For example, a faith-based approach to teaching the shevut laws most effectively communicates the value of אמונת חכמים loyalty to rabbinic authority – having faith that these rules are necessary to prevent the violations that are described. This approach communicates subservience and obedience a willingness to trust the rabbis and accept the law. However some Modern Orthodox students may resist such notions finding the concept of absolute subservience contrary to their own understandings of Jewish practice and belief. While sharing this foundational approach can help to expand their thinking it may be more effective in concert with other approaches that speak to students’ current mindsets as well. Contextualizing the shevut laws so that they make good sense to the students accomplishes that, helping students “make sense” of the texts and rules. When we accept the partiality of theory, we commit ourselves to bringing different approaches, a fuller picture of the topic, to the classroom.

Teacher inquiry – Teachers must become expert in the topic that they are teaching. As stated above, this requires teachers to consider a range of approaches to teaching any given topic. In the area of Judaics, academic Jewish Studies, such as the work of Yitzhak Gilat described above, opens important possibilities for consideration in understanding a given sugya or topic²² It is clear that perspectives that are no longer “common sense” are less accessible because they are not part of the common parlance. But there is a further obstacle. Scholars publish their work in a manner that continues to limit the accessibility of their work. This is so for a number of reasons. They are often written in a style and density that make them less accessible to the average person. In Jewish Studies, the language in which they are published serves as an obstacle for many. Their method of distribution is also not geared for broad public consumption. . Their work uncovers modes of thinking that shaped Jewish life in different eras and examines how such ideas shape contemporary Jewish life as well. Exploring Jewish Studies scholarship is one means for developing an eclectic approach to a given Torah topic, as exemplified in the historical approach above. It opens the teacher/learner to alternate possibilities, to engaging the sugya or topic in different ways.

These three elements can be brought together most fruitfully in group deliberation. Almost by definition, members of a group will be drawn to a range of theories and approaches, each teacher with his or her own inclinations. A deliberative approach brings to light questions that we pose to the texts, proposed answers, the practical questions of teaching those texts, and the implications of different approaches. Through deliberation, teachers highlight the strengths and weaknesses of the different approaches as members of the group absorb, question and reflect on the varied ways to approach the issue. Deliberation fosters a shared vocabulary and overarching disposition while maintaining the freedom of the individual to make curricular decisions.

Including students in this pedagogical conversation is also worthwhile.  For example, present an example to students, such as swimming or playing ball on Shabbat, and have them consider how each approach would explain the case.  Ask students themselves to articulate the pros and cons of each and to determine which approach is the best in terms of accomplishing one’s goal. Digging deeper, you can ask yourself, informed by the ideas of your colleagues and students, what exactly is or should be your goal in teaching the halakha? Is it normative – the path that will most likely lead to observance – or is it cognitive – the path that will most accurately, in the teacher’s understanding, portray the nature of this halakhic category? In following your reasoning, what is the problem with playing ball on Shabbat, or is there a problem at all?

Most important is the method. We should dedicate ourselves to developing eclectic knowledge and practice in Judaic Studies teaching and engaging in group deliberation to determine how best to ‘translate’ our texts for practical use in the classroom. Doing so entails developing a language, professional culture, field of study and type of Talmud Torah of our own as Jewish educators. Such a project is an exciting adventure and one that can create a unique, eclectic, integrated Modern Orthodox Talmud Torah.

• 1
  Shulman, L. S. (1987). Knowledge and teaching: Foundations of the new reform. Harvard Educational Review, 57, 1-22.
• 2
  Ibid, p. 8.
• 3
  Ibid.
• 4
  A word of clarification: while I will quote sources when describing these approaches, I am using these sources, to quote Schwab, as resources to clarify the issues rather than as sources to teach the topic. In other words, in quoting the view of R. Moshe Feinstein, I do so not solely, or even primarily, as a source cited for its halakhic decision but rather as a resource from which we can explicate an educational approach to the issue at hand. In addition to stating the position of R. Feinstein, we would then also ask, how would we explain the position to students? What is its logic, its driving orientation? It is in this sense that I refer to R. Feinstein’s approach as ‘psychological’.
• 5
  רש״י ביצה לז עמוד ב. ״חבית של שייטין. כלי של גומא שאורגין אותו ועושין כמין חבית ארוכה ולמדין בו לשוט״. “A swimmer’s barrel; an instrument of cyperus that is woven made like a barrel to learn to float.”  
• 6
  D. Walton, Slippery Slope, Encyclopedia of Global Bioethics, ed. Henk ten Have. Berlin: Springer, 2015, 2623-2632. E. Volokh, The Mechanisms of the Slippery Slope, Harvard Law Review 116:1026-1138. M.J. Rizzo and D.G. Whitman, The Camel’s Nose is in the Tent: Rules, Theories and Slippery Slopes, UCLA Law Review, 51:540-592. The slippery slope argument is related to the sorites paradox but should be distinguished from it, as the slippery slope is not paradoxical but logical when applied properly. “The slippery slope argument is closely related to the sorites (heap) paradox known to the ancient Greek philosophers, and attributed to Eubulides (Kneale and Kneale, 1962, 114). The heap paradox can be formulated as an argument with two true premises leading by an apparently valid argument to a false conclusion. Premise 1: If you take one grain away from a heap, it makes no significant difference – you still have a heap. Premise 2: Each time you repeat this step, it makes no difference, because one grain is too small to make a difference between something being a heap or not. Conclusion: Even if you only have a few grains left, after repeating this step in premise 2 many times, what you have left has to be a heap. This argument represents a paradox, because if a deductive argument is valid and the premises are all true, then the conclusion cannot be false,” Walton, p. 2. The ‘heap’ paradox is also described as ‘the argument of the beard’ or ‘the bald argument’ referring to pulling one hair at a time from one’s head. If you pull one hair from one’s head, the person is not then bald, etc.
• 7
  Walton, p.4.
• 8
  For our current purposes, we will not go through the distinctions between Shabbat and Yom Tov regarding the bathing prohibition.
• 9
  Walton, p. 5.
• 10
  Bavli, Shabbat 40a.
• 11
  Ibid, 40b.
• 12
  רמב”ם הלכות שבת פרק כג הלכה ה – אֵין שָׁטִין עַל פְּנֵי הַמַּיִם גְּזֵרָה שֶׁמֶּא יְתַקַּן חָבִית שֶׁלְּשַׁיָּטִין. בְּרֵכָה שֶׁבְּחָצֵר מֻתָּר לָשׁוּט בָּהּ שְׁאֵינוּ בָּא לַעֲשׂוֹת בָּהּ חָבִית שֶׁלְּשַׁיָּטִין: וְהוּא שֶׁתִּהְיֶה לָהּ שָׂפָה מֻקֶּפֶת שֶׁלֹּא יֵעָקֵר מִמֶּנָּה הַמַּיִם כְּדֵי שֶׁיִּהְיֶה הֶכֵּר וְהֶפְרֵשׁ בֵּינָהּ וּבֵין הַיָּם.
• 13
  שו״ע או״ח סימן של”ט סעיף ב’ – אין שטין על פני המים אפילו בבריכה שבחצר מפני שכשהמים נעקרים ויוצאים חוץ לבריכה דמי לנהר. ואם יש לה שפה סביב מותר דכיון דאפילו נעקרו המים השפה מחזרת אותם למקומם הוי ליה ככלי וליכא למגזר ביה שמא יעשה חבית של שייטין One may not swim in the water – even in a pool that is in a courtyard – because the water spills over outside of the pool and is thus similar to a river. If it has a lip around it it is permissible to swim since should the water become uprooted it will return to its place it is like a tub and there is no need to decree “lest one make a floating device.
• 14
  אגרות משה אבן העזר חלק ב סימן יג. ולשחות בשבת במים הנה בנהר ובלייק אסור מדינא וכן אף בבריכה אם לית לו גידודי כדאיתא בשבת דף מ’ ואם הוא בבריכה שהוא הסווימינג פול שברוב יש לה שפה מותר מדינא מצד איסור שט כדפרש”י ריש דף מ”א ואיפסק בסימן של”ט סעיף ב’.
• 15
  This section largely draws on two essays. Yitzhak D. Gilat, Studies in the Development of the Halakha (Jerusalem: Bar-Ilan University Press, 1992) (Hebrew) and Richard Hidary, “One May Come to Repair Musical Instruments”: Rabbinic Authority and the History of the Shevut Laws, JSIJ 13 (2015) 1-26.
• 16
  Yitzhak Gilat was a professor of Talmud at Bar Ilan University. He studied in the Slobodka Yeshiva and in the Mirrer Yeshiva in Jerusalem before embarking on a career in Jewish Studies.
• 17
  ספרא אחרי פרשה ז:ט – אין לי אלא מלאכה שחייבים על מינה כרת מלאכה שאין חייבין על מינה כרת מנין שלא יעלה באילן ושלא ירכב על גבי בהמה ולא ישוט על המים ולא יספוק ולא יטפיחולא ירקד תלמוד לומר שבתון שבות אין לי אלא שביתת רשות שביתת מצוה מנין לא יקדיש ולא יעריך ולא ולא יחרים ולא יגביה ולא יתרום ולא יעשר ולא יקדש ולא יגרש ולא ימאן ולא יחלוץ ולא ייבם ולא יפדה נטע רביעי ומעשר שני תלמוד לומר שבתון שבות מכילתא דר״י בא פרשה ט – ושמרתם את היום הזה לדורותיכם למה נאמר והלא כבר נאמר כל מלאכה לא יעשה בהם. אין לי אלא דברים שהם משום מלאכה דברים שהם משום שבות מנין ת”לושמרתם את היום הזה להביא דברים שהן משום שבות
• 18
  This leaves us to wonder what prompted the Bavli to (re)interpret the shevut laws as it did. Gilat places this in the context of his larger argument elsewhere that the older halakha as reflected in the views of R. Eliezer ben Hyrcanus and the school of Shammai did not categorize מלאכות שבת the Shabbat prohibitions into 39 categories nor did they distinguish between prohibitions of Biblical and Rabbinic origin as later schools of thought did. As a result of this shift the rabbis needed to explain why certain rabbinic prohibitions were instituted and not others. Our sugya reflects that thinking.
• 19
  Pesachim 106a.
• 20
  רמב״ן על התורה ויקרא פרק כג פסוק כד. עיין גם רמב״ן דברים פרק ובדרשה לראש השנה. Gilat notes a contradiction in the view of Ramban. Early on in his comments on Maimonides’ Sefer HaMitzvot he assumes the traditional Babylonian position that the shevut laws are rabbinic in origin. In his commentary on the Torah he adopts the position that the category is Biblical while the specific examples are articulated by the rabbis. In his דרשה לראש השנה he shifts his position yet again suggesting that some shevut laws are Biblical in nature while others are rabbinic. Gilat suggests the following evolution in Ramban’s thought: initially Ramban followed the conventional view whereby the shevut laws were rabbinic in origin. Subsequently he adopted the position of the early Tannaim that these laws represented a Biblical category. Finally he adopted a more nuanced position: constant public institutionalized practice of these shevut behaviors violate a Biblical prohibition. An isolated violation of a shevut law is a rabbinic violation. This position is later supported by R. Moshe Sofer who states that one who “goes to work” on Shabbat violates a Biblical prohibition even if he or she does not technically violate any of the thirty nine melakhot based on precisely this argument. (שו״ת חתם סופר חו״מ השמטות סימן קצה).
• 21
  Schwab, J.J., The Practical 4: Something For Curriculum Professors To Do. Curriculum Inquiry 13. (1983): 239-265; ibid, Science, Curriculum and Liberal Education, (Chicago and London: The University of Chicago Press, 1978), pp. 287-383.
• 22
  It is clear that perspectives that are no longer “common sense” are less accessible because they are not part of the common parlance. But there is a further obstacle. Scholars publish their work in a manner that continues to limit the accessibility of their work. This is so for a number of reasons. They are often written in a style and density that make them less accessible to the average person. In Jewish Studies, the language in which they are published serves as an obstacle for many. Their method of distribution is also not geared for broad public consumption.