Notes on the Book of Samuel, and the Eternal Sanctity of the Temple in Maimonidean Thought

By Rabbi Avi Grossman

avrahambenyehuda.wordpress.com

Rabbi Label Dulitz, who passed away last week, was an iconic figure at YUHSB. I was privileged to first meet him when I began my studies at the school in the fall of 1996. That year, Rabbi Dulitz was teaching Talmud to part of the tenth grade, but some of us lucky freshmen got to sit in his afternoon Navi class. His photographic memory of the Bible, Talmud, and Shakespeare has already been recounted by many; what struck me more about the man who sought to mold men was his persistence, his insistence that all of his students put every ounce of their efforts into their studies. For years, I found myself more comfortable in the library than in the beis midrash, not because I was not interested in Torah study, but rather because of the atmosphere. In this, I found a model in Rabbi Dulitz, who made the third-floor gallery of our high-school library his personal study and let me spend as much time as I wanted at his table, even when I was cutting other classes. (I am also indebted to the long-time librarian, Mr. Wexler, for his support and dedication.) 

That year, Rabbi Dulitz did not teach us about the Book of Samuel; he drilled it into our minds as though using a thumbscrew (his word), and when we did not do well enough on our exams, he would wail like Achish, “do I lack crazies?”  When I was fifteen years old, I had questions about Samuel, but it took almost 25 years for me to even begin to articulate them. I regret that I had not sought the opportunity to thank Rabbi Dulitz before he was gone, but I pray that this serves as a fitting monument to him.

…

This is the story of an interesting argument over the interpretation of historical matters incidentally described in halachic works. For a few years, I made a number of assumptions regarding Maimonides’s views in this regard but recently those assumptions were challenged. 

A note on terminology: I will follow Maimonides’s precedent in this regard. That which the Israelites built in the wilderness and then established in a number of places within Israel is referred to as the mishkan, which is invariably rendered as Tabernacle, or as ohel mo’ed, Tent of Meeting, while the Temple is the translation of habayith, or some other construction, like beith adonay, and the word miqdash, Sanctuary, is the term that includes both Temple and Tabernacle alike, and which Maimonides uses to halachically define and equate all of the historical Sanctuaries:

מצות עשה לעשות בית לה’, מוכן להיות מקריבים בו הקרבנות, וחוגגין אליו שלוש פעמים בשנה–שנאמר “ועשו לי, מקדש” (שמות כה,ח); וכבר נתפרש בתורה משכן שעשה משה רבנו, והיה לפי שעה–שנאמר “כי לא באתם, עד עתה . . .” (דברים יב,ט)

 ואלו הן הדברים שהן עיקר בבניין הבית:  עושין בו קודש, וקודש הקודשים, ויהיה לפני הקודש מקום אחד והוא הנקרא אולם; ושלושתן נקראין היכל.  ועושין מחיצה אחרת סביב להיכל, רחוקה ממנו כעין קלעי החצר שהיו במדבר; וכל המוקף במחיצה זו שהוא כעין חצר אוהל מועד, הוא הנקרא עזרה. והכל נקרא מקדש

כיון שנכנסו לארץ, העמידו המשכן בגלגל ארבע עשרה שנה שכבשו ושחלקו.  ומשם באו לשילה, ובנו שם בית של אבנים; ופרסו יריעות המשכן עליו, ולא הייתה שם תקרה.  ושלוש מאות ותשע וששים שנה, עמד מקדש שילה. וכשמת עלי, חרב ובאו לנוב ובנו שם מקדש, וכשמת שמואל חרב ובאו לגבעון ובנו שם מקדש. ומגבעון באו לבית העולמים וימי נוב וגבעון, שבע וחמישים שנה

However, in many instances, the Bible uses all four and even some others as poetic synonyms. For the sake of clarity, I shall not.  

For some years now, I have  wondered about three things: Why is the destruction of the Tabernacle at Shiloh, although alluded to in the Book of Samuel and explicitly described in the Psalms and Jeremiah and the Mishna, not explicitly mentioned in Samuel? On the other hand, why does the Torah devote so much detail to the materials and construction of the Tabernacle, and why do the prophets give so much detail concerning the materials and construction of the First Temple, and then so much detail and reiteration when describing the First Temple’s destruction? Lastly, although we have no clear Talmudic or Mishnaic source for this claim, why is it that many commentators echo the claim of the Or Hahayim, that had the Temple been built by Moses, it never would have been destroyed? How did the Or Hahayim know that?

This website analyzes a number of topics which we have studied in the past, and its author, a prominent faculty member at Merkaz Harav with whom I have corresponded on this matter, offers an explanation that does not satisfy me because part of its basis is the assumption that the Tabernacle as it stood in Nov and Gibeon was not considered a full, halachic Sanctuary, whereas I feel it is clear from both the Yerushalmi and Maimonides’s commentary on the Mishna that the Tabernacles at Nov and Gibeon, despite the fact that they never housed the Ark of the Covenant, were as much complete sanctuaries as those at Shiloh and Jerusalem. While I  agree with his assertion that the main tragedy of Shiloh was the Ark of the Covenant’s falling into enemy hands, the idea that the rest of the Sanctuary’s destruction was insignificant because the Ark was already removed does not satisfy me, because by that logic, according to the major opinions that the Ark had been removed from the Temple decades before the Temple’s destruction, the Temple’s destruction would have also not been so tragic. Similarly, the Second Temple, which never housed the Ark, would also not have had a remarkably tragic destruction. These ideas are untenable.

Instead, I answered that the Torah dedicates so much detail to the construction of the Sanctuaries because they were the physical manifestations of Israel’s dedication to God’s service. The contributions of gold and silver transcended their physical value. They were the pride and joy of our people. The tragedy of the destruction of the First Temple was that due to our sins, the neglect of God’s law, the great riches that had been dedicated to the Temple fell into the hands of the heathens for their own profane use. This is a theme addressed by the prophets and sages, and part of the consolation of Zion that led to the building of the Second Temple was that they were returned. However, as history attests, the only component of the Mosaic Tabernacle that ever fell into enemy hands was the Ark, while the rest of Tabernacle, including its structural components and appointments, was evacuated from Shiloh before the Philistines got there, and eventually made its way to Nov, then Gibeon, and then was brought to be put into g’niza, permanent storage, under the Temple in Jerusalem. The Philistines merely demolished the stone walls that held up the impermanent, tent-like roof of the Shiloh Sanctuary and its stone altar, but the original altars of wood, bronze, and gold, for the burnt offerings and the incense, were saved. Thus, major tragedy was averted, although the people learned a harsh lesson. This explains why the prophets did not in any way detail the destruction of Shiloh like they did that of Jerusalem. No spoils were taken. I therefore suggest, as others have done before me, that the fact, mentioned in Sota 9b, that Moses’s major handiwork, the Tabernacle, never fell into enemy hands, is the basis for the idea that the same would have been true for the Temple. 

I recently had the honor of discussing these issues with Rabbi Shendorfi, and in response to his challenges, I collected the various sources within the writings of the Meiri, the Meshech Hochma, and the Hevel Nahalato that point to the absence of the Ark of the Covenant from the Sanctuaries at Nov and Gibeon as the reason, or perhaps the halachic mechanism that allowed, for the hetter bamoth, the permission to offer sacrifice outside of the Sanctuary. The original and complete Hebrew version of my analysis and conclusions is available here,, while an oral explanation thereof can be found in a series of Youtube videos here. God willing, their English counterparts will be made available soon.

The following is a summary of my main original arguments:

Maimonides describes two positive commandments (to offer all sacrifices in the chosen Sanctuary, and to bring all sacrificially designated things outside of Israel to the Sanctuary) and two negative commandments (not to slaughter sacrifices outside the Sanctuary courtyard, and not to burn any sacrifice outside the Sanctuary courtyard) that, as the sages point out in Z’vahim 14:4-10, did not apply when the Sanctuary stood in Nov and Gibeon. This is the state we refer to as hetter bamoth, when anyone could build his own bama, a “high place”, i.e., an altar, for private sacrifice.

The aforementioned commandments were taken very seriously early in our history; Joshua 22 describes how shortly after the Sanctuary was established at Shiloh, the Transjordanian tribes of Israel built a large, purely symbolic altar along the Jordan, and the other tribes were prepared to go to war against them for what was their seeming intention not to follow these commandments, while the book of Kings judges every single king of both Israel and Judah by how well each upheld these commandments. Every king of Israel starting from Jeroboam onward with the exception of Hosea son Elah, the last king of Israel, is faulted for maintaining places of sacrifice other than Jerusalem, while many kings of Judah are criticized for not abolishing the private altars that stood in their realms, and Hezekiah is the described as the greatest, most righteous king because he finally put an end to the practice. (I have always said that the modern political and religious establishment preventing Jews from visiting the site of the Temple, etc., is merely another manifestation of Jeroboam’s main policies, policies he and almost every one of his successors adopted in order to maintain their own grips on power. Thus, until an Israeli Prime Minister once again allows the Jewish People to worship God as per the Torah, they will all have “done evil in the eyes of God.”)

The main question before us is, therefore, on what basis did our ancestors establish altars and offer sacrifice outside of the Sanctuary during the time when it stood in Nov and Gibeon? What was the source or reason for this temporary suspension of a number of Biblical commandments?

The Meiri, noting that since the Ark of the Covenant was never present in the Sanctuaries at Nov and Gibeon, as is clear from the Book of Samuel, writes that its absence was the ostensible halachic allowance for sacrifice on private altars:

 הואיל ולא היה הארון קבוע עם המזבח – הותרו הבמות

Many similar sources can be found in Hevel Nahalato, available here. One of them is the Meshech Hochma, who claims that the Israelites were permitted, in isolated incidents, to offer sacrifice beyond the Shiloh Sanctuary when the Ark was temporarily removed from the Sanctuary. The problem is that this view of the Meshech Hochma, and the views of those who followed him, can not be resolved with Maimonides’s own commentary to the fourteenth chapter of Z’vahim, in which he explicitly writes, as per both Talmudim, that the hetter bamoth of the  Nov/Gibeon era was on the authority of an expository tradition of our sages (Z’vahim 119a):

When they came to Gibeon [and set up the Mishkan there], bamoth were [once again] permitted. How do we know that? — Because our Rabbis taught: “For you have not yet come to the m’nuha, the resting place and the nahala, the inheritance.” ‘The resting place’ alludes to Shiloh, ‘the inheritance’ alludes to Jerusalem. Why does Scripture separate them? [That is, why does scripture mention that there are two destinations?] In order to grant permission between one and the other.

See Maimonides’s complete commentary to Z’vahim 14, in which he also describes how the bamoth that existed before the Tabernacle was at Shiloh, when it was in Gilgal, were allowed by yet another derivation from the relevant verses, and not because the Ark was usually outside of the Tabernacle:

לפי שתלה הכתוב איסור הבמות במחנה והוא שנאמר אשר ישחט שור או כשב או עז במחנה ונתן טעם בזה למען אשר יביאו בני ישראל את זבחיהם וגו’ וזהו איסור הבמות לפי שמיום שפסקו המחנות [תרגום הרי׳׳ק: ״חיסול מחנות״] ונכנסו לארץ ר”ל ארץ כנען והוא הזמן שבאו לגלגל נסתלקה מצות לא תעשה זו ונשאר מותר 

As a matter of fact, according to the non-Maimonidean school, it would actually be quite imprecise for the sages of the Mishna to declare that there was a hetter bamoth during the Gilgal period, or any period for that matter. As a matter of fact, the entire style of the Mishna, to state whether there was a hetter bamoth or issur bamoth when the Sanctuary stood in any place, is pointless according to the Meiri and Meshech Hochma. Instead, the Mishna should have just stated a general rule at the outset that when the Ark was kept in the Tabernacle, the bamoth were prohibited, and when the Ark was taken out of the Tabernacle, the bamoth were permitted. As we will be reminded later on, the fact that the Mishna describes certain periods is exactly as the Talmud concludes: the permissibility of the bamoth depended on the time period, and not on a particular condition that could change during that period. 

One particular passage in Hevel Nahalato is particularly perplexing because he acknowledges Maimonides’s explanation for why the bamoth were permitted during the Gilgal period, but he then writes that the permission during the Nov/Gibeon period was granted because the Ark was absent.

 ישנה הסיבה בזמן נוב וגבעון שארון לא היה במקומו ואז המזבח ירד ממדרגתו להיות במה גדולה. וישנה הסיבה שהיתה בגלגל שבטלה החלוקה למחנות שכינה לויה וישראל ולכן אף המשכן כולו ירד ממדרגתו לדרגת במה גדולה\

This idea, which explicitly contradicts Maimonides’s own words, is echoed in later works, including those on the internet, such as this article by Rabbi Prof. Yoel Elitzur, son of the late Bible scholar Rabbi Yehuda Elitzur, and in it, he brings an answer that I recall hearing was also offered by Rabbi Soloveichik. He begins by citing another relevant passage from Maimonides’s laws (4:1):

When Solomon built the Temple, he was aware that it would ultimately be destroyed. [Therefore,] he constructed a chamber, in which the Ark could be entombed below [the Holy of Holies] in deep, maze-like vaults. King Josiah commanded that [the Ark] be entombed in the chamber built by Solomon, as it is said: “He said to the Levites, consecrated to the Lord, who taught all Israel, ‘Put the Holy Ark in the House that Solomon son of David, king of Israel, built…’” (II Chronicles 35:3).

This is unusual, as Rambam generally does not rule on historical questions in Mishneh Torah, including the interpretation of texts and even halakhic questions that were only relevant in the past (such as the permissibility of the bamoth), unless there is some practical halakhic implication for the present or the future, or if the question touches on a fundamental foundation of faith. In light of this, why did Rambam choose to rule with such certainty in our case, weighing in on what amounts to a Tannaitic historical dispute?

It is likely that the reason behind this ruling can be found in the Talmud Yerushalmi:

Rabbi Yassa said in the name of Rabbi Yohanan: “This is the rule – whenever the Ark is within [the Sanctuary], the bamot are forbidden; when it has left [the Sanctuary], the bamot are permitted.” Rabbi Ze’ira asked Rabbi Yassa: “Even [when the Ark has left the Sanctuary] temporarily, as in the case of Eli?” (Yerushalmi Megilla 1:12)

In the style of the Yerushalmi, Rabbi Ze’ira’s question that was seemingly left unanswered serves as its own conclusion: Indeed, even when the Ark leaves the Sanctuary temporarily, the bamot become permitted. Rabbi Meir Simcha of Dvinsk, in his Meshekh Chokhma commentary on Parashat Re’eh, expanded on this notion, using it to explain the apparent violation of the prohibition on bamot during the Shiloh period. According to him, during the time of the Mishkan in Shiloh, the Ark would be removed regularly from its place to be present at national gatherings elsewhere, and sometimes it would even remain in those other locations for extended periods of time. During those periods when the Ark was absent from the Mishkan in Shiloh, claims the Meshekh Chokhma, the bamot were permitted.

Now we can return to Rambam’s unusual ruling. In a different, well-known statement that is accepted as the normative halakha, Rambam rules that the “first consecration” performed by Solomon in Jerusalem applied “for that time and for eternity” (Hilkhot Beit Ha-bechira 6:14). This ruling has several halakhic implications, both positive – we can offer sacrifices on the Temple site even without the Temple itself; we can eat the “most holy” sacrifices even without the “hangings” of the Courtyard; we can eat sacrifices of lesser sanctity and ma’aser sheni even without the wall surrounding Jerusalem (Mishna Eduyot 8:6; Hilkhot Beit Ha-bechira 6:15) – and negative – the impure may not enter the area of the Courtyard; and bamot are prohibited outside of Jerusalem. In order to reconcile this ruling with the statement of the Yerushalmi, Rambam was forced to rule in accordance with Rabbi Judah son of Lakish – the Ark was hidden in its own place![11] If so, according to Rambam the Ark is still in its original location, waiting for us in the depths of the Holy of Holies, beneath the Foundation Stone in Jerusalem.

I wrote to Prof. Elitzur about how this is not a valid resolution to the question regarding Maimonides’s formulation because it assumes that the exchange between Rabbi Yassa and Rabbi Ze’ira is the bottom-line halacha and the conclusion of that Talmudic discussion, but in reality, the Talmud continues, and brings, at the conclusion of that section cited above, an elaboration of the mishnayoth in Z’vahim we saw above. There, at the conclusion of the first chapter of YT M’gilla, it explains why bamoth were prohibited during the Shilonic period, then permitted in the intervening period, and then permanently prohibited once the Temple was built: it was a d’rasha, an esoteric rule encoded in the unusual language of the prohibition, and it did not condition the hetter bamoth on the Ark’s constant presence in the Sanctuary, and is along the lines of the passage from Z’vahim 119a, above, and in the corresponding section from the Yerushalmi, after quoting the same verse referencing “the resting place” and “the inheritance,” and explaining that the former was Shiloh and the latter was Jerusalem, the consequences are explained:

Thus, while the Tent of Meeting [stood during the sojourn in the wilderness], the bamoth were prohibited. While [it stood] in Gilgal, the bamoth were permitted. While [it stood] in Shiloh, the bamoth were prohibited. While [it stood] in Nov and Gibeon, the bamoth were permitted. While [it stood] in Jerusalem, the bamoth were prohibited. [This can be compared] to a man who told his servant, “do not drink wine from Tiberias, nor from Caesarea, nor from Sephoris,” implying that from areas between those places, he could [drink wine].

And that is how Maimonides explains the Mishnayoth in his uncensored commentary to Z’vahim. This seems necessary, because the exposition of the verse about “the resting place” and “the inheritance” does not seem to teach anything about the Gilgal period, and it must be that the hetter bamoth of that period was due to some other factor. Be that as it may, Maimonides reiterates why there was a hetter bamoth between the Shiloh and Jerusalem eras: Moses, when he related this command, had implied that there would be a period between the two major Sanctuaries when the bamoth would once again be permitted.

It therefore turns out that Rabbi Yassa’s rule, actually a k’lal in the original Hebrew, should more accurately be translated as a “general principle,” less a declaration of halacha, and more of a mnemonic, a correlation that does not imply causation. If you will ask, how are we to remember if high places were permitted during the days of a particular sanctuary, then look for the Ark. The Ark stood in Shiloh, so the high places were then prohibited, but it did not stand in Nov and Gibeon, and therefore high places were permitted in their days. But Rabbi Ze’ira points out that this is too simplistic, because it implies that if the Ark were to have been removed from Shiloh temporarily, then the high places would have been temporarily permitted, or if the Ark were to be removed from the Temple in Jerusalem, it would also result in a hetter bamoth until it would be brought back, which is untenable, and explains why Rabbi Yassa has no rejoinder for Rabbi Ze’ira’s point, because the hetter bamoth, according to the conclusion of this Yerushalmi, and according to the plain meaning of the Bavli in Z’vahim, and according to Maimonides’s commentary, does not depend on the strict and immediate presence of the Ark of the Covenant in the Sanctuary, and that is why the Temple is still the Temple in its state of desolation according to Maimonides, even though the Ark has not been present therein since the late First Temple Period.

I also have a hard time accepting Rabbi Shendorfi’s terminology which implies that when the Ark is absent, the Sanctuary’s altar loses (lit. descends from its level of) sanctity and becomes a “bama g’dola, a great high place.” This term, bama g’dola, is actually greatly misunderstood, as we shall see. We also disagreed regarding the application of the word miqdash to the Tabernacles of Nov and Gibeon; I had written that the interpretation of what Maimonides wrote in the first source cited above meant that the Nov and Gibeon Sanctuaries were מקדשים לכל דבר, “Sanctuaries for all intents and purposes,” and this was also stated by Rabbi Bar Hayim in a series of recent lectures posted to Youtube, but Rabbi Shendorfi argued that Nov and Gibeon were not ״,מקדשים לכל דבר״ that they were somehow inferior or of lesser status, and the prophets never referred to Nov and Gibeon the way they referred to Shiloh and Jerusalem, and challenged me to prove my assertion. I think Maimonides’s opening ruling/definition is sufficient, and my challenge was instead to answer why the destruction of Shiloh became an afterthought, and why the subsequent Sanctuaries were not described with reverence.

I Kings 9:2-5, I Chronicles 22:1, and Psalms 132:14, and other relevant verses, as well as Laws of the Chosen Temple 1:3 and 6:13-16 show beyond any doubt that according to Maimonides, there is no indication that the sanctity of the Temple and the eternal prohibition against bamoth that were initiated with the Temple’s inauguration had anything to do with the absence or presence of the Ark in the Temple. Rather, they were made known to us expressly by the prophets and the Mosaic tradition.

Not only that, in those latter laws, Maimonides actually explains the nature of the Temple’s eternal sanctity and its halachic ramifications, and how their unconditional nature stands in stark contrast to the sanctity of the land of Israel, which is conditional, and therefore subject to nullification:

How was [the Second Temple] consecrated? With the first consecration initiated by Solomon, for he consecrated the Temple Courtyard and Jerusalem for that time and for eternity. Therefore, we may offer all the sacrifices [at the Temple], even though the Temple itself is not built. Similarly, the most holy sacrifices can be eaten in the entire [area of the] Courtyard, even though it is in ruin and not surrounded by a formal wall. We may also eat less holy sacrifices and the second tithe throughout Jerusalem, even though it is not [presently] surrounded by a wall, for through its original consecration, it was consecrated for that time and for eternity.

Why do I say that the original consecration sanctified the Temple and Jerusalem for eternity, while with regard to the consecration of the remainder of the Land of Israel, specifically regarding whether the Sabbatical year, tithes, and other related [agricultural] laws are in force, [the original consecration] did not sanctify it for eternity? Because the sanctity of the Temple and Jerusalem stems from the Divine Presence, and the Divine Presence can never be nullified. Thus, Leviticus 26:31 states: “I will lay waste to your sanctuaries.” The Sages declared: “Even though they have been devastated, their sanctity remains.”

In contrast, the [original] obligation to keep the laws of the Sabbatical year and tithes on the Land stemmed from the fact that it was conquered by the [Jewish people as a united] community. Therefore, when the land was taken from their hands [by the Babylonians,] their [original] conquest was nullified. Thus, according to Torah law, the land was freed from the obligations of the Sabbatical year and tithes because it was no longer “Land of Israel.”

That is, according to Maimonides, the sanctity of something is whether or not the relevant commandments and laws apply to it. An Aaronite priest is holy because specific commandments apply to him beyond those that apply to an ordinary Jew, whereas a halal, the offspring of a priest and a woman not fit for him, is desecrated, and the commandments and laws of the priesthood do not not apply to him. The land of Israel was promised to the Patriarchs and is eternally in the possession of the Jewish people, but its sanctity only exists under certain conditions, and it is only under those conditions that the laws and commandments actually apply therein. The idea of sanctity is a fundamental tenet of halacha, and applies in various forms to inanimate objects, vegetation, animals, people, places, and even time periods.

Most importantly, Maimonides writes explicitly how the Holy of Holies was holier than every other place:

בית קודש הקודשים מקודש ממנו שאין נכנס לשם אלא כהן גדול ביום הכיפורים, בשעת העבודה

The Holy of Holies is holier than [the rest of the Sanctuary edifice], as only the High Priest may enter there on Yom Kippur at the time of the service.

We see from this halacha that the essence of the Holy of Holies’ sanctity derived from the fact it was the place designated for more commandments than the other places, i.e., it had even stricter rules of limited entry than the rest of the Temple, and it was designated for a unique sacrificial service not performed elsewhere, and that is what made it holy, even when, for centuries perhaps, the Ark of the Covenant was absent. In the Guide to the Perplexed (3:45, based on the Friedlander translation), Maimonides explains that these defined areas of additional sanctity have a specific utility:

It is evident that the object of giving different degrees of sanctity to the different places, to the Temple Mount, the place between the two walls, to the women’s courtyard, to the Hall, and so on up to the Holy of Holies, was to raise the respect and reverence of the Temple in the minds of all who approached it.

The sixteenth-century commentator Radbaz has a classic explanation of Maimonides’s distinction between the sanctity of the Temple and the sanctity of the land, and it answers a question regarding the Mishna (Keilim 1) that Maimonides cites regarding the ten levels of sanctity within the Land of Israel:

The land of Israel is sanctified above all other lands. What is its sanctity? From it we bring the ‘omer, the bikkurim, and the two loaves of (pentecostal) bread.

Why doesn’t the Mishna just state that the land’s sanctity is that the mitzwoth hat’luyoth ba’aretz, the agricultural commandments that are contingent on the land, only apply in the land of Israel?

The answer is that the Mishna was aware that the main sanctity of the land is transient, that it was once conditional and then nullified, and therefore there were times when the land had no sanctity, i.e., the usual commandments were not in force. But, because the Temple’s sanctity is eternal and unconditional, and never lapsed, the sacrifices were always required, and the offerings mentioned in this Mishna are all public offerings of the Temple, and therefore this aspect of the land’s sanctity, which is a derivative of the Temple’s sanctity, is also eternal. That means, for example, that if during the times of the Babylonian exile, before work even began on the Second Temple and the altar was rebuilt, the Jews had an opportunity to offer sacrifice at the Temple ruins, as apparently happened at certain times even after the destruction of the Second Temple, and it was Passover or Pentecost, they would have to make sure that the grains they were using for the ‘omer and the pentecostal loaves, (also called bikkurim) had to come from the land of Israel, even though they could not and did not count the years of the Sabbatical cycle, or tithe their crops, or keep the other commandments that were contingent on the land.

Were the Temple’s sanctity conditional like that of the land’s sanctity, as the Meiri and the Meshech Hochma claim, I would have expected Maimonides to say so, just as he wrote how the land’s sanctity was once conditional and subject to nullification, and just as he wrote in the Book of Commandments regarding a similar issue:

If we were to suppose that the people of Israel were to disappear from the land of Israel – although it is sacrilege to say that God allow such a thing, as He has already promised that the remnant of this people shall neither be erased or uprooted – then our calculation [of the calendar] would not be of any utility to us whatsoever, because we are not supposed to calculate and intercalate the years and establish new moons outside of the land except for specific circumstances, and as we have explained, “for Torah shall go forth from Zion, and the word of the Lord from Jerusalem.”

According to Maimonides, the complete removal of the Jews from the land of Israel would be the destruction of the Jewish people.

This passage teaches us that the responsibility/necessity of a court to establish the Jewish calendar is, at least in theory, conditioned on the presence of that court within the land of Israel.

Thus, if the Temple’s sanctity was conditional, for example, on the presence of the Ark of the Covenant, we would have expected Maimonides to write something along the lines of:

If we were to suppose that the Ark of the Covenant were to disappear from the Temple – heaven forbid – then the entire sanctity of the Temple would be nullified, and we would not be able to offer any of the public sacrifices therein, even though the Temple would still be standing in all its grandeur, and we would not be able to eat the most holy sacrifices in the Temple Courtyard even if its walls were standing, and neither would we be able to eat less holy sacrifices and the second tithe within Jerusalem even if it had a wall, because the original sanctification of the Temple only has effect as long as the Ark remains in the Temple.

But Maimonides never wrote any such thing. It is very difficult to argue that according to Maimonides, or the sages for that matter, the sanctity of the Temple would be contingent on the presence of the Ark.

…

We will now turn to explaining what Maimonides’s intent was in seemingly ruling that the Ark of the Covenant was hidden in a secret chamber beneath the Temple Mount. The matter of the Ark’s disappearance from history is a matter of dispute both among secular researchers (at least among those who believe it ever existed) and our sages, and it seems that many of the proposed narratives are speculative and conjectural. How and why did Maimonides see fit to take sides in this argument?

As we have mentioned, the Meiri and Meshech Hochma et al. claim that the Ark must have stayed within the Temple for its sanctity to be able to persist, thus allowing for us to keep all of the positive and negative commandments of the Temple throughout history, even during the times the Temple stands in ruins, and even during Second Temple times. Although this could very well be a valid explanation for why some of the sages may have claimed that the Ark was hidden under the Temple, it certainly could not have been Maimonides’s reason.

My tentative answer is that with regards to historical and halachic disputes that have no clear resolution, it is Maimonides’s general practice to side with the position that draws the most scriptural support. In this case, there is a verse that seems to describe Josiah instructing the Priests and Levites to hide the Ark, and although Kings, Jeremiah, and Chronicles describe how the Babylonians destroyed and despoiled the Temple in great detail, no mention is made whatsoever of the Ark. This seems to indicate that the Ark was safely hidden before the destruction. This may also be the reason why the Mishna assumes that the Ark was hidden under the Temple, even though differing opinions existed among the sages. 

But why would Maimonides include his historical view at this point in the laws of the Temple?

My first answer is that just like in his introduction to the Yad, Maimonides lists all of the transmitters of the Oral Tradition in order to emphasize that the halachoth he records are solidly grounded in positive tradition, and in the first chapter of these laws he emphasizes the unbroken Jewish tradition of Sanctuary service since the revelation at Sinai until the permanent Temple in Jerusalem, and in the second chapter he brings the importance of the historical, eternal tradition of the location of the Altar, and in this fourth chapter, Maimonides emphasizes the Foundation Stone that lay prominently in the Holy of Holies, which has a long history parallel to that of the location of the Altar, and serves as its reference point. Yes, in the First Temple the Ark and the manna and Aaron’s staff rested upon the stone, but in the Second Temple, when they had already been hidden, the Foundation Stone was still there, and that was the important part. That is why Maimonides then describes how, because the location of the Holy of Holies needs to be exactly that as demanded by positive tradition, the builders of the Second Temple adjusted the plan of the partitions between the Holy and the Holy of Holies because of the doubt that had arisen. In each of these chapters, Maimonides’s purpose is to define a specific place to the exclusion of all others: The Temple Mount in Jerusalem to the exclusion of all other places in Israel, the place of the Altar as it always was to the exclusion of any other place on the Mount; the place of the Holy of Holies to the exclusion of any other place on the western part of the Mount. 

(Considering that because Maimonides already wrote in his commentary to the Mishna that the Temple’s sanctity is eternal and inalterable, and certainly not contingent on the presence of the Ark, I would have expected the Meshech Hochma and others to suggest that the sanctity of the Temple emanates from the presence of the Foundation Stone. I would not be surprised to learn that others have already suggested this.)

On the other hand, one might have thought that perhaps the location of the Holy of Holies should depend on that of the Ark, for example, if the Ark were now hidden 30 feet underground and a few hundred feet to the east of the where the foundation stone is (the Chamber of Wood was at the eastern end of the Temple’s outer courtyard), the Second Temple’s edifice should have been built directly over that new spot.

Secondly, Maimonides mentions that the Ark and the other items, Aaron’s staff, and the manna and the anointing oil, are still intact because these items serve as the tokens of the covenant (see below). A couple can not stay together alone in the house, or vacation on the opposite side of the world together, if they do not know where their k’thuba is. So too, Maimonides needed to write that the Temple is still God’s chosen place to be with His chosen people, and the marriage contract and the tokens of the covenant are still there for safekeeping.

Thirdly, Maimonides is following an idea found in the Midrash (Genesis Rabba 79:7):

“[Jacob] bought the section of the field where he had pitched his tent for one hundred qesita.” Rabbi Judah b. Simon said, “this is one of three places with which the nations of the world cannot deride Israel saying, ‘they are not lawfully yours:’ the Cave of the Patriarchs, the Holy Temple, and Joseph’s burial plot.

The verse described how all of these places were bought by Abraham, David, and Jacob respectively, for large sums. History has shown time and again that the people of Israel have endured the strange fortune of having to fight to maintain their historical connection to their eponymous land, even though the Chinese and Bulgarians and most others have not had to fight to maintain theirs.

Maimonides foresaw how one day, the nations of the world would challenge Israel’s right to the land of Israel, Jerusalem, the Temple Mount, and the places of the Altar and the Sanctuary, and that they would thus challenge the intrinsic and eternal holiness of those places. He thus brought the history and the enduring connection of those places to the Jewish tradition when explaining how their eternal sanctity affects the commandments that are meant to be performed in those places.

…

Rabbi Shendorfi used Rashi’s comments on Z’vahim 61b in an attempt to show how the Sanctuaries at Nob and Gibeon were of lesser holiness, but I disagreed with him because, in that context, Rashi was specifically addressing the construction of the altars at those two Sanctuaries, and as per the discussion on the previous folio, those altars only possessed a temporary sanctity that had long since passed, as opposed to the sanctity of the transportable, bronze altar of the Tabernacle, which maintained some of its sanctity even when it was not in usable condition, and the holiness of the Temple altars, which exists to this day at the site of the altar, even though the altar itself still awaits to be rebuilt. 

…

I will not translate the detailed disagreement regarding the interpretation of Z’vahim 119a, regarding where the second tithe was consumed in the years after the destruction of Shiloh and before the Temple was built. The Hevel Nahalato wondered why Maimonides and the Bartenura did not interpret the Mishna according to Rabbi Judah’s position if the halacha is normally in accordance with Rabbi Judah. My answer is that the Hevel Nahalato assumes that Rabbi Judah’s opinion is as explained by Rashi, but Maimonides and Bartenura understand the discussion entirely differently, and in their view, they do interpret the Mishna as being in accordance with Rabbi Judah. 

…

I suggest that it is a fallacious tendency to causally link the facts that the Ark was not present in both Nov and Gibeon and that at those times there was a hetter bamoth. However, correlation does not mean causation, as can be seen from the conclusions of both Talmudim and Maimonides’s commentary. The hetter bamoth was not due to the absence of the Ark, although it did coincide with the absence of the Ark. As I wrote earlier, this was even a rejected hawa amina in the Talmud. I am therefore not surprised that the rabbinic-literary record shows that this hawa amina appeared a few times in history. 

In the 20th century works that did assume this causal relationship, a slew of Biblical and Talmudic sources was marshaled as proof, but each time the indication was that indeed there was a correlation, but no proof of causation. For example, the Tosefta at the end of Z’vahim says “What was the great bama during the period of the hetter bama? The Tent of Meeting was pitched as normal, but the Ark was not there.” This, as the Hevel Nahalato and Rabbi Shendorfi pointed out, seems to say that the hetter bamoth may have been due to the absence of the Ark, but we should first ask what this teaching tells us beyond what is explicitly mentioned in many verses in Kings, Chronicles, and Samuel, including this one (I Kings 3:3-4):

Solomon loved the Lord, walking in the statutes of David his father; he would only slaughter and sacrifice in the [official] high places. The king went to Gibeon to sacrifice there; for that was the great bama; Solomon offered a thousand burnt-offerings upon that altar. 

The answer happens to be found in the two previous verses (ibid., 1-2):

Solomon married into Pharaoh, king of Egypt’s, family; he married Pharaoh’s daughter, and brought her to the city of David until he completed building his own house, the Temple of the Lord, and the wall of Jerusalem roundabout. Yet the people still sacrificed at the high places, because there was still no Temple built for the name of the Lord in those days. 

That is, the bamoth would become prohibited once the Temple was built. This verse is the clearest Biblical source for the Talmudic/Maimonidean position. Indeed, the Tabernacle stood in Gibeon while the Ark was first in Abinadab’s house and then in Jerusalem, and at that time Gibeon was called the “great bama” and other bamoth were permitted, but the reason for bamoth being permitted was because the permanent Temple had yet to be built.   

This is actually quite profound. One might have argued that if a “great bama” was at Gibeon, while an ordinary [minor] bama is any other private altar, then ever since David brought the Ark to Jerusalem and the prophets had endorsed his plan to build a permanent Temple in Jerusalem, and they had established an altar at what would be the site of the future, permanent Temple, there were actually two national central places of worship: the great bama in Gibeon, and the bama that already stood in Jerusalem, at the site of the future Sanctuary which God had chosen and which was accompanied by God’s messiah and His Ark. The verses therefore teach us that even though Solomon was stationed in Jerusalem, and he already had an established altar at the designated site of the Temple and the Ark of the Covenant was already waiting there in Jerusalem, the Tabernacle at Gibeon, where only Aaronite priests could serve and where the sacrificial service was done on the nation’s behalf every day “as per the the Torah of Moses” (I Chronicles 16:39-40) was still the only place true place of national, central worship, and for example, the Paschal offering could only be brought there (Laws of the Paschal Offering 1:2-3). I believe that there were perhaps thousands who were of this belief already in the last few years of David’s reign, especially after many Israelites became uncomfortable with making their pilgrimages to Gibeon, which, although a priestly city (Joshua 21:17), was also inhabited by cruel, unforgiving non-Jews (II Samuel 21:1-7), and had twice been the site of inter-Israelite, political violence (II Samuel 2:12-17 and 20:8). 

This idea is actually alluded to in Moses’s prayer when the Israelites would begin their journeys in the wilderness. “the Ark of the Lord’s Covenant would travel before them… to seek out m’nuha, rest, for them” (Numbers 10:33). “And when the Ark traveled, Moses said, Arise O Lord, and Your enemies will be dispersed, and those who hate You will flee from before You” (ibid., 35). As we saw, m’nuha is a reference to the Shiloh Sanctuary and its time period. That is, when the Israelites first came into Canaan, as Maimonides described, the land was sanctified through their conquests, when the Ark of the Covenant would lead them out to war. (As we wrote earlier, every one of the Israelite’s journeys from Sinai were acts of war and conquest). The Ark would go out to war with the people throughout their conquests, until at the end of those conquests, it, along with the rest of the Tabernacle, was brought to its first resting place in Shiloh, but after that, once God had come to His permanent resisting place, His nahala, portion, the Land would be sanctified not through war and conquest, but by the mere presence of His people. 

Another ramification of the Talmudic outlook regarding the hetter bamoth is that we are not obliged, like the Meshech Hochma and others were, to explain examples in the Books of Joshua and Judges wherein the Israelites built altars and offered sacrifice beyond the Shiloh Sanctuary as instances of when the Ark was temporarily removed from the Sanctuary. Instead, just like we find explicitly regarding Elijah at Mt. Carmel, and Gideon (Judges 6:25-26) and Manoah (ibid., 13:16), God expressly instructed them to offer sacrifice then and there, what the sages called a hora’ath sha’a, a one-time dispensation, the other instances were also similarly prophetic temporary dispensations. 

Another Biblical passage presents a challenge to the Meiri’s position. Upon witnessing the Clouds of Glory fill the Temple, Solomon declared (I Kings 8:18-21):

Now it was in the heart of my father David to build a temple for the Name of the Lord, God of Israel, but the Lord said to my father David: Because it was in your heart to build a temple for My name, you have done well with what was in your heart; However, you shall not build the Temple. Rather, your son, who shall come from out of your loins, he shall build the Temple for My Name. The Lord has kept His word that He spoke, and I have risen up in place of my father David, and I have sat on the throne of Israel, as the Lord spoke, and I have built the Temple for the Name of the Lord, God of Israel, and I have set therein a place for the Ark in which is the covenant of the Lord, which He forged with our fathers when He brought them out of the land of Egypt.’

According to the Meiri et al., why would Solomon need to say this? Isn’t the Temple’s very sanctity conditional on the presence of the Ark? Isn’t it supposed to be there? So why is it remarkable that Solomon’s magnificent Temple had a place for the Ark?

The answer is that, as Maimonides already implied, the Temple does not necessarily need the Ark. Yes, it was there during our best eras, but, as the Gibeon/Nov and Second Temple eras show, the Ark is far from necessary, and one should not assume that it would always be housed in the Sanctuary. An amazing aspect of the First Temple was that for the first time in decades, the Ark could once again be housed in the Holy of Holies.

Concerning the fact that Maimonides did not list an independent commandment to fashion the Ark, it must be noted that as he lists only one commandment to build and upkeep the Temple, and all of the service vessels within the Temple are included in the one commandment, and he does even count independent commandments to make those vessels that were actually used in the course of the service, e.g., the altars and the candelabrum, it is understandable why the Ark, which served no ritual purpose, enjoys no commandment regarding its own fabrication. This also explains why no replacement ark was created for the Second Temple: it served no practical purpose and did not and could not be replaced, because its purpose was disconnected from any Temple service. Only Solomon, and not Samuel, David, or Saul, installed the Ark in the Sanctuary when the time came. We see from this that it did not bother anyone that the Sanctuary lacked the Ark until then.

Josiah’s aforementioned removal of the Ark from the Temple did not in any way change the function or sanctity of the Temple.

Zerubbabel and Jeshua the High Priest received a mandate from Cyrus to do whatever was necessary to found and rebuild the Temple, and although they were guided by three prophets, they never sought to locate the Ark and return it, and they were never told to do so. Neither Ezra nor Nehemiah tried to do so even though they could have. Neither did any subsequent Jewish ruler: Simon the Just, the Maccabees, Simon ben Shetah, or Herod, who demolished the original structure of the Second Temple in order to build an even grander one under the guidance of the sages. All of these Second-Temple figures had just as much legal access to the entire Temple Mount as the modern Israeli government, and much less outside interference, if any at all. 

The Mishna does mention that there was a priest who believed that he may have found an indication of the Ark’s hiding place, and that he died a miraculous, sudden, and horrific death before he could share his find. This was a heavenly sign that the Ark was not supposed to be in the Second Temple. (In a nod to the teachings of R’ Avigdor Miller, I would argue that the benefit here was that the testimony contained in the Ark could not be claimed and hijacked by sectarian groups, the Sadducees, the Boethusians, and the Christians, that arose in that era and who did hijack the Temple and our scriptures when they had opportunities. At the very least, the Philistines who seized the Ark respected it as a vanquished god and learned to treat it with awe, and one could imagine that the Babylonians, who, according to some scholars both Jewish and non-Jewish, may have likewise shown some reverence to the Ark, but in the hands of the Christians it would be treated in a manner completely sacrilegious, or, God forbid as proof to their legitimacy. Until today, the Ethiopian Christians make such claims regarding the non-Ark they claim to possess.)

From a philosophical perspective, there never was and still is no reason to seek the Ark. In Hebrew, the Ark is referred to as both the Ark of the Covenant and the Ark of the Testimony because it holds the testimony, the physical relics, of the covenant enacted at Sinai: the tablets and the Torah are analogous to the Jewish institution of the marriage contract which is signed by both parties. In this case, the covenant has one document signed by God Himself, so to speak, the tablets, and the other by Israel’s legal representative, Moses, the Torah written by his hand. The Torah scroll itself was finalized by Moses on the day he died, when he contracted a second covenant with Israel, the covenant in the Plains of Moab, with the new generation that replaced the first. Nahmanides writes about how the Redemption from Egypt climaxed with the construction of the Tabernacle, while Solomon, in his speech at the Temple’s dedication, emphasized that the new edifice was to house the Ark of the covenant that began with the Exodus, which is why, of all of the events in scripture aside from the Passover observed in the wilderness a year after the Exodus, the dedication of Solomon’s Temple is dated to the year of the Exodus, as it was a continuation of that redemptive process.

However, in the interim exile, when the Second Temple’s construction was drawn out, the Jews reaccepted the Torah and the commandments anew, and out of love, as per the sages’ teaching regarding the ninth chapter of Esther, “the Jews accepted and upheld for themselves and for their descendants” that which they had previously accepted, and thus we had a new diaspora-born covenant that ascended to Israel with the builders of the Second Temple. The signing of this New Deal took place in the rebuilt Temple, as described in the latter part of the book of Nehemiah, among the people and their representatives led by Ezra, who, as the sages tell us, was worthy of receiving the Torah on Israel’s behalf, and was the one who had the final say as to the authorized text of the Torah, and who changed its script. The new tokens of this new covenant, Ezra’s Torah scrolls, were kept safely in the Temple, while the artisans fashioned new, engraved cherubim to adorn the back wall of the Holy of Holies, as though a replacement for the Ark of the Covenant, and analogous to the replacement marriage contract that the sages ordered a man to write for his wife if the original is no longer. The Ark of the Covenant was made to contain the physical evidence of the covenant and act as a divine antenna, but during the time of the Second Temple, the people saw how the Divine Presence rests upon Israel even in the Ark’s absence, and the people themselves carried or demonstrated the tokens of the eternal covenant with their very bodies.

This was foretold in Jeremiah 31:

Behold, days are coming, says the Lord, and I will enact a new covenant with the house of Israel and with the house of Judah; not like the covenant that I made with their fathers the day that I took them by their hand to bring them out of the land of Egypt, for they abrogated My covenant, although I lorded over them, says the Lord. For this is the covenant that I will make with the house of Israel after those days, says the Lord: I will have placed My Torah within them, and I will write it upon their heart; I will be a God for them, and they shall be a nation for Me.

(See also Rashi’s commentary to Jeremiah 3:16.)

Even when the Ark’s whereabouts were known, its function was exclusively as a prophetic antenna, and even when it is was stowed away in Abinadab’s house, the prophets flourished, and when it was ultimately hidden, Josiah told the people that although the priests no longer had any responsibility to protect and transport the Ark, the people should continue to serve God as they always were supposed to have done. And even after that, new prophets arose in Israel. Thus, nothing actually changed when the Ark was lost, and we are hard-pressed to find any example of how, when the Ark’s location was known, our manner of serving God was supposed to be different from the way it is now.

The Mishna mentions that the sages approved of Hezekiah’s destruction of the brazen serpent Nehushtan that Moses had fashioned. At the time, the people had started to ascribe powers to the inanimate object, and this smacked of idolatry. I believe his great-grandson Josiah’s decision to hide the Ark was along the same lines, especially given the impending destruction which he sought to avoid. Shortly before the destruction of Shiloh, the people had looked to the Ark in an inappropriate manner, thinking that it somehow guaranteed them divine protection and victory in battle, and this was also slightly idolatrous. The Ark contains the documentation of the covenant, but the covenant still has to be kept if the Jews wish to merit divine protection. At that point, they were punished by being routed in battle, and having the Ark captured and the Sanctuary destroyed, and much of Samuel’s subsequent work was to get the people to abandon the idolatry to which they had become accustomed. The verse explicitly connects the Ark’s concealment with the people returning to the pure worship of God (I Samuel 7:2-3):

It was that from the day that the Ark abode in Kiriath-Jearim, that many years passed, it was ultimately twenty years, and the entire house of Israel was drawn to the Lord.

Samuel said to the entire house of Israel, saying: If you return to the Lord with all your heart, then get rid of the foreign gods and the ashtaroth from among yourselves, and direct your hearts to the Lord, and serve Him exclusively, and He will deliver you from the hand of the Philistines.

The first of these two verses describes the entire twenty-year period, the latter describes Samuel’s initiation of the repentance movement.

Josiah was trying to pre-empt this type of after-the-fact reaction to retribution. His generation believed that the very Temple was invincible and would afford them lasting protection (Jeremiah 7:4), and this may have been due to an overly literal understanding of the Sanctuary as God’s residence, as that is what seems to be indicated by the words in Exodus, but in actuality, in Moses’s own words in Deuteronomy and in the traditional Targumim, the Temple did not and can not possibly contain the One Whose glory fills the universe, but rather, it is a place dedicated to His name and service. Their reliance was possibly fatal, and Josiah therefore sought to show them that the Temple did not need the Ark in order to function, and that it was not some sort of talisman. In essence, he wanted to bring about the pure state of both private religious devotion and public sacrificial service that had been in Samuel’s time, but without having to suffer the destruction of the Sanctuary. The sages themselves discuss such forms of pre-emptive remedies, such as self-imposed lashes and exile for penitents, and praying outdoors and visiting cemeteries on emergency fast days.

This argument can be seen from the progression of events in II Chronicles 34 and 35. There are those who argue that the proof text for Josiah hiding the Ark, 35:3, actually describes Josiah returning the Ark to its rightful place within the Sanctuary, because either his father or grandfather had removed it, but if that were the case, we would have expected to find Josiah doing so much earlier in the narrative, when he became an adult and ordered the refurbishing of the Temple, during the course of which the priests found the ominous Torah scroll which prompted the king and his advisors to seek Hulda’s guidance. When her prophecy of impending destruction was heard, Josiah began his national campaign of repentance in an effort to stave off the impending disaster, ridding the land of idolatry and having the people enter into a new covenant to keep the Torah. In context, the hiding of the Ark can be seen as an act meant to ensure that the people’s intentions in their worship of God would be pure and exactly as the Torah had commanded.

Indeed, in the recently released Steinsaltz Tanakh in English, a similar point is made in the commentary to Jeremiah 3:16.

As for the important question, “isn’t the idea of the Sinaitic covenant being superseded dangerously close to the Christian doctrine which proposes a New Testament and a new covenant with a newly chosen people to replace Israel?” The answer is thankfully no, because what we have seen in our very own Torah (the covenant in the Plains of Moab) and in the rest of the Bible, as we mentioned, are not new covenants but merely reaffirmations of the original eternal covenant, and that which has been replaced is limited to the documentation thereof. To what is this analogous? To a lender who lost his promissory note, and has a new one issued to him by the court. The attestations are the same, that the loan was given on such a date to so-and-so and due at such time, except that it now supersedes the previous note if it were to be found. So too, the covenant since the time of the Second Temple is the same covenant of Abraham and Sinai, just attested to by different exhibits.

I certainly do not buy the argument that Josiah hid the Ark of the Covenant in order to protect it from falling into the hands of the Babylonian conquerors because there does not seem to be any scriptural support for this contention, and because unlike the other Temple appointments, which fell into the hands of both the Babylonians and Romans, and were then desecrated, we already have seen what happened to the Ark when it was captured by the uncircumcised heathens: it brought retribution upon them. Had the Babylonians or Romans been foolish enough to take the Ark, they would have learned their lesson even faster than the Philistines did.

Instead, I offer this passage from Sh’qalim (6:1):

מי גנזו יאשיהו גנזו כיון שראה שכתוב (דברים כח) יולך ה’ אותך ואת מלכך אשר תקים עליך אל גוי אשר לא ידעת אתה ואבותיך עמד וגנזו הדא הוא דכתיב (דברי הימים ב לה) ויאמר ללוים המבינים ולכל ישראל הקדושים לה’ תנו את ארון הקדש בבית אשר בנה שלמה בן דוד מלך ישראל אין לכם משא בכתף אמר להם אם גולה הוא עמכם לבבל אין אתם מחזירין אותו עוד למקומו אלא (שם) עתה עבדו את ה’ אלהיכם ואת עמו ישראל

Josiah said to the Levites, “if the Ark goes into exile with you, you will never return it to its place.”

Notice that Josiah was not afraid of the Babylonians taking the Ark; as we saw it it could take very good care of itself. Instead, he was afraid the Levites would take it to accompany the people in exile, and then once it would be there in Babylonia, the Levites would, for whatever reason, not return it to the Temple when the time came. Why not? Well, as we read in Ezra, there was little enthusiasm to leave Babylonia when the time came, and the Levites were especially lackadaisical. Nothing has changed in all these centuries. To take the Jews out of the exile, you first have to take the exile out of the Jews. Now imagine the Ark had joined the Jews in exile. They would have come up with all sorts of lofty-sounding divrei torah about how the Divine Presence is with them in Babylonia, how their synagogues are much more than miqd’shei m’at, and other such justifications, just as today we delude ourselves with excuses for not leaving the diaspora, not voting for leadership that pledges to uphold the Torah, and not pressing for the building of the Temple. W’hameivin yavin.

…

Rabbi Shendorfi then asked me incredulously, “The Ark does go in the Holy of Holies. Is that not what grants it its holiness?” and my answer was no, it has intrinsic holiness in that it has limited access, as the Mishna states. However, it is also the ideal place for storing not only the Ark, but also other major symbolic objects, like the manna and Aaron’s staff, but even so, sometimes circumstances call for some or all of those items to be removed from the Holy of Holies, but that by no means detracts from its holiness. 

Finally, returning to terminology, the sages followed the Biblical precedent of using the terms “great bama” and “minor bama” in the same way they referred to synagogues and study halls since the times of the Babylonian exile as miqd’shei m’at (based on Ezekiel 11:16), lit. “minor sanctuaries,” as opposed to THE miqdash. That is, during David’s time, because altars were called bamoth, even if they were not literally “high places,” the central, national altar was called “the great bama.” 

We should also note that even though we find the term “great bama” regarding Gibeon in the Bible, we do not find it regarding Nov, even though it is obvious that the Tabernacle stood there. Further, it is well known that the site of the Sanctuary at Shiloh was neither on top of any hill or mountain, nor was it in a particularly low spot, but rather in a level area on the side of a hill.

(The author standing in the vineyards below the site of the Tabernacle at Shiloh. The Tabernacle stood on the side of the hill in the center of the picture, above his left shoulder.)

We also have no indication that the Tabernacle, at any station in the wilderness or at Gilgal, was ever erected at a particularly high place. Thus, it seems to me that the novelty of these verses is two-fold: Gibeon was the first place that the Israelites erected the Tabernacle in a place that was noticeably elevated, and that place was called “the [great] bama” because of its appearance. That it, is in the Bible, the Sanctuary was always referred to as “the  Tabernacle” or House of the Lord, etc., while its location in Gibeon was descriptively called “the great bama,” and many years later, long after the Jerusalem Temple became established, the altar at Gibeon was then referred to as “the great bama“, and the sages eventually referred to the entire Sanctuary at Gibeon as “the great bama.” This is reminiscent of how, in the language of the Talmud and the Rishonim, there is the issue of k’nisa, entering, or biath, coming into, the miqdash (Maimonides even has a whole class of laws called “biath miqdash“), whereas today, the controversy is referred to as k’nisa l’har habayit, “entering the Temple Mount,” or even more distantly, aliya l’har habayit, “ascending the Temple Mount.” I, in the spirit of accuracy and fidelity to tradition, use the Maimonidean term in order to stress the importance of the commandment in our day; we are not just walking around the perimeter of the Temple Mount. לשכנו תדרשו, ובאת שמה. We are going to the Temple.[1]

Thus, we see that the prophets never referred to the Gibeon Sanctuary as “the great bama,” but rather to only its location as “the great bama,” and every halachic distinction between the private bamoth and “the great bama” discussed by the sages is only in the realm of the service on those altars, but with regard to every other aspect of the service that did not involve the altar, e.g., the services done with the other appointments, such as the candelabrum, the golden altar, and the table of the shewbread, and all the laws of the priesthood, there were no differences. That is, contrary to what the Hevel Nahalato argued, the public sanctuary service throughout the Nov and Gibeon periods was in no way different from that of the Shiloh and Jerusalem periods, with the only exception being the allowance to eat “the less holy sacrificial foods in any city of Israel,” as the Mishna states explicitly. Many, as can be seen, have suggested that certain sacrifices were simply not offered during the Nov and Gibeon periods, but these arguments can not be made within Maimonides’ understanding of the sources. 

I was then challenged by the following passage from the Guide wherein Maimonides proposes reasons for the Temple appointments (ibid.):

It is known that the heathens in those days built temples to stars, and set up in those temples the image which they agreed upon to worship; because it was in some relation to a certain star or to a portion of one of the spheres. We were, therefore, commanded to build a temple to the name of God, and to place therein the Ark with two tables of stone, on which there were written the commandments “I am the Lord,” etc., and “Thou shalt have no other God before me,” etc. Naturally the fundamental belief in prophecy precedes the belief in the Law, for without the belief in prophecy there can be no belief in the Law. But a prophet only receives divine inspiration through the agency of an angel… From the preceding remarks it is clear that the belief in the existence of angels is connected with the belief in the Existence of God; and the belief in God and angels leads to the belief in Prophecy and in the truth of the Torah. In order to firmly establish this creed, God commanded [the Israelites] to make the form of two angels on top of the Ark. The belief in the existence of angels is thus inculcated into the minds of the people, and this belief is second in importance to the belief in God’s Existence; it leads us to believe in prophecy and in the Torah, and opposes idolatry. If there had only been one figure of a cherub, the people would have been misled and would have mistaken it for God’s image which was to be worshiped, in the fashion of the heathen; or they might have assumed that the angel [represented by the figure] was also a deity, and would thus have adopted a Dualism. By making two cherubim and distinctly declaring “the Lord is our God, the Lord is One,” Moses clearly proclaimed the theory of the existence of a number of angels; he left no room for the error of considering those figures as deities, since [he declared that) God is one, and that He is the Creator of the angels, who are more than one.

Although this could be seen as Maimonides stressing that the Ark was an almost critical fixture of the Sanctuaries, when we consider that in his definition, three Sanctuaries never housed the Ark, we realize that here Maimonides is actually emphasizing the form of the Cherubim that adorned the Ark, and that, as pointed out by the sages, even when the Ark was absent from the Sanctuary, other Cherubim were still within the Holy of Holies: Solomon constructed two, larger wood and gold Cherubim that stood in the First Temple, while in the Second Temple there were Cherubim carved into the wooden interior wall of the Holy of Holies (Yoma 54), and they were overlaid with gold. Thus, the important symbolic and ideological message of the Cherubim was never missing from the Temple, even if the Ark was. 

…

This entire discussion began with an attempt to explain why the destruction of Shiloh was almost ignored in the book of Samuel, and is only invoked in passing in other prophetic books. In truth, the book of Samuel is entirely transitory in nature. It is the story of the transition between the old, egalitarian system, to a rigid, exclusive establishment.

In one of his previous videos, Rabbi Bar Hayim discussed the commandment to build the Temple, specifically the statement of the sages that the Israelites were commanded to appoint a king, destroy Amalek, and build the Temple, implying that the order described is required, and meaning that the Temple could only be built by a king, which many authorities understood to mean that in the event there is no king in Israel, as is the case, for example, now, then there is no obligation to build the Temple. Rabbi Bar Hayim disagrees with this position; Maimonides for example, in the previously cited section from the Guide explains that a king would only be required not for the construction of the Temple per se, but 

chiefly, every one of the twelve tribes would desire to have this place in its borders and under its control; this would lead to divisions and discord, such as were caused by the desire for the priesthood. Therefore it was commanded that the Temple should not be built before the election of a king who would order its erection, and thus remove the cause of discord. 

The king is necessary for us to get past the selection of a place for the Temple, but once that is no longer going to be disputed, a king would not be necessary.

Alternatively, a hereditary monarch might not be totally necessary; perhaps, as we have seen before, the role of a Jewish king can also be filled by a prophet or Judge, as Maimonides writes specifically regarding the commandment to conquer the land. This would explain how the Tabernacle and the Second Temple were built under the leadership of Moses and Zerubbabel as the undisputed leaders of Israel, respectively, even though neither held the title of king. A prime minister would be no different.

It is therefore my proposal that in the days of Joshua, who was the most faithful to Moses’s teachings and knew the Torah better than anyone else, the Israelites did fulfill these three commandments. Joshua was for all intents and purposes the king of Israel just like Moses was, the Israelites had concluded their wars for the security of the people, which is the essence of milhemeth amalek, and by building a semi-permanent Sanctuary at Shiloh, they fulfilled the commandment to build the Temple. For close to four hundred years, no one doubted that the Israelites and their chosen leader had not done exactly “as God commanded Moses.” However, as history has shown, the prophets were still among us, and even though once upon a time, certain crowns had yet to be taken, the prophets could inform us that eventually those crowns would fall into certain hands exclusively. 

Before David, they knew that the Tabernacle could be transferred to a new place, as long as God ordained it. Even Shiloh, the place that God did choose, was eventually “rejected” (Psalms 78:60, 67). The Tabernacle reverted to its original, transportable condition, until It finally found its permanent, never-to-be-replaced home. In that intervening period, the Ark was even waiting  for the Tabernacle to leave its temporary place in Gibeon and join it in Jerusalem. The Tabernacle was moving frequently, and when it reached its penultimate station, it was even rivaled by its eventual replacement. With regards to the priesthood, in the old system any of Aaron’s descendants were eligible for the high priesthood, and the sages pointed out that the high priests had been descended from both of Aarons’ surviving sons, Elazar and Ithamar. However, even though Eli’s family held the high-priesthood at the end of the Shiloh period, as we see from Saul’s massacre of that family at Nov, and the subsequent transfer of the Tabernacle to Gibeon where Zadok’s family apparently had lived since Joshua’s days, in the intervening period both Abiathar and Zadok enjoyed the privileges of the high priesthood, and many verses in Samuel, Kings, and Chronicles, as well as teachings of our sages, point to the growing tension between the two men and their families throughout David’s reign, leading to a dangerous intrigue that saw Zadok being appointed the exclusive high priest and Solomon letting Abiathar live despite his perhaps selfish involvement in insurrection. From then on, the prophets would describe how the high priesthood would be exclusively in the hands of Zadok’s house. The high priesthood was up for grabs, and when it reached its penultimate officeholder, he was rivaled by his eventual replacement. Most noticeably, in the old system leadership was open to all of the tribes of Israel, and the sages claimed that every tribe produced one of the Judges. However, Samuel, who was a Levite just like Moses, presided over the transition from his unofficial role in lieu of king, to a temporary, conditional, Benjamite dynasty, to a state of two competing kingdoms (Ishbosheth and David) to that of an eternal, Davidic dynasty, and even David’s own family suffered from instability until Solomon was a few years into his reign. Leadership was changing hands, and when it reached its penultimate office holder, he was even rivaled by his eventual replacement. These three houses, the House of God in Jerusalem, the House of David, and the House of Zadok, would form an inseparable union, and they would forever retain the crowns they had earned, even though those crowns used to change hands regularly.

These transitions were all described by Samuel and the anonymous prophet who preceded him (I Samuel 3:11-14). The destruction of Shiloh:

The Lord said to Samuel: Behold, I will do a thing in Israel, at which both ears of everyone who hears it shall tingle.

This expression is an allusion to the destruction of the Sanctuary, as can be clearly seen by its use in two later prophecies of the Sanctuary’s destruction, in II Kings 21:12 and Jeremiah 19:3. 

The House of Eli would be cursed:

On that day I will execute against Eli all that I have spoken concerning his house, from the beginning even unto the end. For I have told him that I will judge his house forever, for the iniquity, in that he knew that his sons did bring a curse upon themselves, and he did not rebuke them. Therefore, I have sworn unto the house of Eli that the iniquity of Eli’s house shall never be expiated with sacrifice nor offering. 

and replaced:

And I will raise up a faithful priest for Myself, who shall do according to that which is in My heart and in My mind; and I will build a steady house for him, and he shall walk before My anointed forever. 

And this prophecy foreshadowed the rise of the Davidians, under whose tenure the Zadokite priests officiated (I Chronicles 29:22):

They ate and drank before the Lord on that day with great gladness. They made Solomon the son of David king for a second time, and anointed him for the Lord as ruler, and Zadok as priest.

Later, in the days of the building of the Second Temple, the prophet Zechariah described how these three great houses which had suffered from so much corruption leading up to the First Temple’s destruction, would experience a period of divine renewal (Zechariah 4:9-13):

The hands of Zerubbabel laid the foundation of this house; his hands shall also finish it, and you shall know that the Lord of Hosts has sent me to you. For who has despised the day of small things? Even they shall see with joy the plummet in Zerubbabel’s hand, even these seven [candles], which are the eyes of the Lord which dart to and fro across the whole earth. I Then responded, and said to him: ‘What are these two olive-trees on the right of the candelabrum and on its left?’ I responded a second time, and said to him, ‘What are these two olive branches, which are beside the two golden spouts, that empty the golden oil out of themselves?’ He answered me and said, ‘Do you not know what these are?’ And I said, ‘No, my lord.’ Then he said, ‘These are the two b’nei yitzhar,  those anointed with oil, who stand by the Lord of the whole earth.’

The anointed ones being Zerubbabel and Jeshua, the high priest. 

This explains why the destruction of Shiloh is almost ignored in the book of Samuel, and why Nov and Gibeon were not treated as full-fledged Sanctuaries in the eyes of the prophetic authors. They are not described with the same reverence and majesty that Shiloh and Jerusalem enjoyed, and Nov is nowhere explicitly described by any of the usual Biblical terms for any of the Sanctuaries, even though from a halachic standpoint it was a Sanctuary. This explains why Saul, after being rejected, was no longer an ideal, legitimate king even if he was halachically king even after David was anointed. This explains why Abiathar (II Samuel 15:24, according to the sages) and his father (I Samuel 14:3, 18, 19, 37) received no answer from the Urim and Tummim even though they were halachic high priests.  

…

II Samuel 7:18 states that, “David came and sat before God.” This could mean that David either sat before the Ark of the Covenant in the tent that he had pitched for it in Jerusalem, or that he went to the Sanctuary at Gibeon, but the Talmud, in a number of places, declares that only Davidic kings may sit in the Temple courtyard, and uses this verse as the proof text for this important exception, meaning that David did go to Gibeon, and that the sages assumed that the laws that applied to The Temple courtyard in Jerusalem once accordingly applied to Gibeon. Similarly, just as Maimonides rules (Laws of Murderers and the Preservation of Life):

The altar in the Temple serves as a refuge for [unintentional] killers… if a person kills unintentionally and takes refuge at the altar, and the blood redeemer kills him there, [the blood redeemer] should be executed as if he had killed him in a city of refuge.

it would seem reasonable that both Joab and Adonijah fled to Gibeon, and not the Jerusalem altar, to seek refuge from Solomon, even though they were not priests.

…

A possible challenge: Midrash Tanhuma (Wayaqhel 6) states that the entire Tabernacle was made for the sake of [housing] the Ark!

Indeed, this may be a challenge, but Maimonides already wrote that the initial commandment to build the Tabernacle is the also the eternal commandment to build the Temple: 

It is a positive commandment to build a House for God, ready for sacrifices to be offered within. There, we are to make celebratory pilgrimages three times a year, as it says [Exodus 25:8] states: “And you shall make a sanctuary for Me.”

And the purpose of any sanctuary from a halachic standpoint is sacrifice and pilgrimage. The Midrash, which discusses Bezalel’s seemingly supernatural wisdom, is describing a deeper, esoteric idea. 

Secondly, the Midrash is answering a potential challenge. The sages, as we have seen, said that the Israelites were to keep three commandments when they would settle in the land of Israel, and the building of the Temple is one of them. Why then would God command Israel to construct His house even before they would arrive in the land? Indeed, the sages debated to what extent the service was even conducted in the wilderness Tabernacle (Hagiga 6. See also the commentaries to Amos 5:25). None of the seasonal offerings were ever brought, and it is a matter of Talmudic dispute as to what, if any, of the daily and holiday public offerings, including offerings of mineral, vegetable, and animal origin, were actually brought! According to Maimonides, the Tabernacle was not only temporary, it was never used as a place of pilgrimage and used for very limited sacrifice! Rather, it must be that although the main purpose of the Tabernacle/Sanctuary would only be realized once Israel settled the land, the covenant they entered at Sinai required of them to have a proper place of storage for the tokens of that covenant, the Torah and the Tablets, and that is why the Tabernacle had to at least be built decades before it could be used as completely intended.

…

In Conclusion: An Interesting Symmetry and the Nov Novelty

According to the Talmudic chronology in the last chapter of Z’vahim and quoted by Maimonides:

The Tabernacle was in the wilderness for 39 years (almost exactly, from 1 Nisan until the second week of Nisan 39 years later).

The Tabernacle stood at Gilgal for 14 years.

The Tabernacle stood at Shiloh for 369 years. 

The Tabernacle stood in Nov and Gibeon for 57 years.

We do not have strong traditions regarding the dates of all of these; for example, although the Tabernacle was brought to Gilgal in Nisan, we do not know at what time of year it was then transferred to Shiloh, nor at what times of year Shiloh and Nov were destroyed. However, I propose that because the sages said that Israel began to count toward Sabbatical years after the 14 years of conquest, which ended when the Tabernacle was brought to Shiloh, and that the count traditionally starts on Rosh Hashana, the Tabernacle was therefore officially inaugurated at Shiloh on or about Rosh Hashana, just like the Temple eventually was.  

The First Temple stood for about 410 years, and sat in ruin for 70 years.

These figures are also rounded. The Temple was inaugurated on the 8th of Tishrei, but destroyed on the 9th of Av, while construction on the Second Temple began in Iyar. 

Thus, the total years that the Tabernacle stood and there was an issur bamoth is 369 + 39 = 408, while there were 14 + 57 = 71 years of the Tabernacle’s history that there was a hetter bamoth.

The First Temple stood for 410 incomplete years of issur bamoth, and lay in ruins for 70 years. I have not seen any treatment of this strange, chronological symmetry.

Now, I find it very interesting that the Daat Mikra and other modern-day commentaries struggle to positively identify the location of Nov. Unlike other major Biblical locations, there is still no consensus as to where Nov was. People visit Shiloh everyday, and if Gibeon were not in Area A, it would probably have many visitors. Where is Nov?

Further, I Samuel 21 describes Nov as both the home of the Tabernacle and as a priestly city, yet unlike Gibeon and Anathoth and the rest of the classical priestly cities within the territory of Benjamin, Nov is not on the lists as they appear in Joshua 21:17 and I Chronicles 6:45. When did Nov become a priestly city?

Next, I Samuel 22 describes how the women and children of Nov, the priests’ families, were also massacred. That is, unlike Shiloh and Jerualem, which the on-duty priests visited without bringing their families, who were left behind in their hometowns, Nov was apparently originally a priestly town even before the Tabernacle was brought there. Abiathar was the sole survivor of Nov, yet, when Solomon expelled him from Jerusalem and the priesthood, he commanded him to go back to “his field” in Anathoth. This is strange, because I would have expected Solomon to send Abiathar back to Nov, from which he had fled, and why would a priest own a field in a priestly city? The Levites and priests were given personal possession of the houses within the city, while the limited open areas around the cities were public spaces not owned by anyone!

Lastly, where does the name Nov come from, and what does it mean?

The answer to all of these questions is mentioned in the Zohar: Nov is Anathoth! That is why Gibeon and Anathoth are listed as priestly cities within Benjamin’s territory, but Nov is not, why the priests’ wives and children were also present in Nov, and how Abiathar as the sole survivor of the family that resided in Nov would eventually return to the ancestral fields that he came to possess in Anathoth. This also adds an ominous allusion to Jeremiah’s story (1:1): the prophet of the destruction of Jerusalem and its Sanctuary hailed from a town that had once housed the Sanctuary, and that had been destroyed and had its people massacred just like what would happen to Jerusalem. As we have written before, a prophet from, say, Shiloh, would not have been so ominous, because the destruction of Shiloh was not as tragic, because its holy vessels and treasures did not fall into enemy hands, and its people were evacuated before they could be slaughtered. 

At first I did not like this answer, because, as Prof. Elitzur pointed out to me, there is ample Biblical evidence that Nov was somewhere in the area of what is now Mt. Scopus/Shuafat, while Anatot is considerably farther to the north-west, but then he also pointed out to me that the modern-day settlement of Anatot/Almon which I had in mind is not the Biblical Anathoth. Rather, the Arab neighborhood of Anata is generally identified with Anathoth. 

It seems that the western end of Anata, northeast of where Highway 60 crosses Route 1 (just to the left of the red place marker on the map) is right about where Nov stood. I wonder if any particular place around there has been offered as a possible location for the Tabernacle? Considering that all of the Tabernacle’s components were moved intact to Gibeon, that King Saul had the place destroyed in his anger, and that the Tabernacle was not there for long, there might be very little archeological evidence remaining. I would imagine that Saul would have also ordered that no one ever again refer to the place as Nov. Thus, upon his return to Anathoth/Nov, Abiathar would not have found much of a city, but instead a large city-sized scene of desolation entirely belonging to him and his children, which they would build up anew. 

(Interestingly, the Zohar also rejects this opinion that identifies Nov with Anathoth, arguing that while Nov was a city, Anathoth was just a village. As Yehuda Kyl and others have pointed out, the Bible does refer to both towns as cities, so the Zohar’s rejection is itself denied.)

So why was Anathoth called Nov during Samuel’s time, if when it was first settled it was called Anathoth and then shortly thereafter reverted to Anathoth?

I believe the answer is that when Eli’s surviving family evacuated the Tabernacle from Shiloh to Nov, they had to find a place outside of their original city large enough to accommodate the Tabernacle and its courtyard and its other attendant facilities, and the many expected pilgrims, who, like Doeg himself, would need places to stay overnight after discharging their sacrificial obligations. They would have to put this new Temple-precinct to the west of the city, closer to the ancient highway that also served Shiloh to the north, the aforementioned Route 60 of today, and where the weather was more pleasant and the views prettier (the Judean Desert basically begins just to the east of Anata), and not within the areas designated by Torah law outside of the city for the Levites’ fields and vineyards and for open space, just like the Shiloh Sanctuary was erected outside of the walls of the ancient city. By the sages’ count, for about fourteen years, including the entire tenure of Samuel as Judge, this “New Anathoth” served as our people’s religious nucleus, and its name, like a handful of other words in the Bible (alon, m’cherotheihem, hein, hadar, amor, totafoth, etc.,) is borrowed from the ancient Mediterranean Languages; in Old Latin, as in Classical Latin, “nova” means “new.”

[1] https://www.youtube.com/watch?v=v6lHPQvYX4A

Reflecting on When the Arukh haShulhan on Orach Chaim was Actually Written: Citations of the Mishnah Berurah in the Arukh haShulhan

Michael J. Broyde & Shlomo C. Pill

Rabbi Michael Broyde is a Professor of Law at Emory University School of Law and the Projects Director at the Emory University Center for the Study of Law and Religion.  Rabbi Dr. Shlomo Pill is a Visiting Assistant Professor of Jewish, Islamic, and American Law and Religion at Emory University’s Candler School of Theology and a Senior Fellow at the Emory University Center for the Study of Law and Religion.  They are writing a work titled “Setting the Table: An Introduction to the Jurisprudence of Rabbi Yechiel Mikhel Epstein’s Arukh Hashulchan” (Academic Studies Press, forthcoming 2020).

We post this now to note our celebration of the publication of תערוך לפני שלחן: חייו, זמנו ומפעלו של הרי”מ עפשטיין בעל ערוך השלחן (“Set a Table Before Me: The Life, Time, and Work of Rabbi Yehiel Mikhel Epstein, Author of the Arukh HaShulchan” (see here) (Maggid Press, 2019), by Rabbi Eitam Henkin, הי”ד.  Like many others, we were deeply saddened by his and his wife Naamah’s murder on October 1, 2015.  We draw some small comfort in seeing that the fruits of his labors still are appearing.

According to Rabbi Eitam Henkin הי”ד in his recently published book on the life and works of Rabbi Yechiel Mikhel Epstein, the first volume of the Arukh Hashulchan on Orach Chaim covering chapters 1-241 was published in 1903; the second volume addressing chapters 242-428 was published in 1907; and the third volume covering chapters 429-697 was published right after Rabbi Epstein’s death in 1909.[1] Others confirm these publication dates.[2]

The Mishnah Berurah, Rabbi Yisrael Meir Kagan’s commentary on the Orach Chaim section of the Shulchan Arukh was published in six parts, with each appearing at different times over twenty-three-year period.  Volume one was published in 1884, volume three in 1891, volume two appeared in 1895, volume four in 1898, volume five was published in 1902, and volume six in 1907.

We suspect that while the first volume of the Arukh Hashulchan on Orach Chaim did not appear until 1903, Rabbi Epstein wrote this work some time before this, and its publication and was delayed for economic and government censorship reasons. Rabbi Eitam Henkin notes (in the above biography) that Rabbi Epstein made mention of the very difficult time he had finding the funds to publish his work. Rabbi Epstein himself wrote in an 1886 letter, “to my great distress, I am unable to publish [the next installment of the Arukh Hashulchan] due to the lack of funding . . . publishing is exceedingly expensive.”[3] The high cost of publishing and limited funding actually led to Rabbi Epstein’s initially publishing the Arukh Hashulchan in numerous short pamphlets, each covering just a few of the Shulchan Arukh’s topic headings, rather than in larger volumes.  Eventually, as funds became available, these pamphlets were combined into larger volumes, organized around the “four-pillars” framework of halakhah used by other rabbinic jurists since Rabbi Karo.[4] Likewise, Rabbi Henkin uncovered correspondence in which Rabbi Epstein bemoaned that long-before completed manuscripts of the Arukh Hashulchan were languishing in St. Petersburg awaiting review and approval by Russian government censors.[5]

Appreciating the realities of the funding- and censorship-related delays with which Rabbi Epstein had to contend helps rectify what Rabbi Meir Bar-Ilan described as Rabbi Epstein’s furiously productive writing schedule with the nearly four decade span between when he began writing the Arukh Hashulchan in 1870 and the publication of the final volume of Arukh Hashulchan: Orach Chaim in 1909 (and other volumes considerably after his death by his daughter[6]). Rabbi Meir Bar Ilan described his grandfather’s process as follows:

My grandfather sat each day in the room designated as the local rabbinic courtroom together with his two rabbinic judge colleagues from morning until night, save for two hours in the afternoons . . . He sat at his table with a chair next to him upon which he kept four books related to the topic he was currently dealing with: a volume of Maimonides’ Mishnah Torah, a volume of the Arbah Turim, the Shulchan Arukh, and a small edition of the Talmud.  And thus, looking here and there, he wrote his book, Arukh Hashulchan, page after page.  Occasionally, he would get up and take out another book to look at . . . This book, the Arukh Hashulchan, which is foremost in its genre, was printed directly from the first draft manuscripts, exactly as they were initially produced by the author . . . without edits, erasures, or rewrites.[7]

Even if somewhat hyperbolic in its recollection, the pace of work described by Rabbi Meir Bar-Ilan certainly does not suggest that the writing of the Arukh Hashulchan would have taken more than thirty years. It is likely that the text of Rabbi Epstein’s monumental restatement of halakhah was written and prepared long before it finally appeared in print.[8]

So, when was the Arukh Hashulchan on Orach Chaim actually written? We suspect it was written after 1891 and before 1895.

As noted, the first volume of the Mishnah Berurah was published in 1884, and the Arukh Hashulchan cites it thirteen times.  Mishnah Berurah volume three was published seven years’ later in 1891 and is also cited by the Arukh Hashulchan—in this case, twelve times.  The Arukh Hashulchan cites none of the other four volumes of the Mishnah Berurah, however, which indicates that Rabbi Epstein did not have them.  That would indicate that Rabbi Epstein had completed his manuscript of Arukh Hashulchan on Orach Chaim before the 1895 when the next installment of the Mishnah Berurah appeared. We see in Rabbi Eitam Henkin’s work (p. 312) that he proposes a similar observation, and we are gratified that he shares this inference. While over a decade would pass before the Arukh Hashulchan on Orach Chaim was fully published, and while by this time the Mishnah Berurah, too, was in print in its entirety, Rabbi Meir Bar-Ilan’s account of Rabbi Epstein’s writing process suggests that once written, the Arukh Hashulchan manuscripts were not significantly revisited or edited by Rabbi Epstein. It is not surprising, then, that the Arukh Hashulchan on Orach Chaim does not include references to sections of the Mishnah Berurah that appeared only after 1895.

We are aware of 36 (or 37, if one counts the double reference in number 5, below) references to the Mishnah Berurah in the Arukh Hashulchan[9] none of which are particularly important to the work, and only in one of them (319:22) does the Arukh Hashulchan seem to be actually reacting to something that the Mishnah Berurah directly cited in his own name.  The citations to the Mishnah Berurah in the Arukh Hashulchan themselves generally look like (to quote Rabbi Bar-Ilan) “another book to look at.”  Furthermore, it only looks like he did so in certain areas deeply and other areas much less.  There are six quoted in hilkhot tzitizit, one in hilkhot tefillin, two in hilkhot shema, four citations over three simanim in hilkhot tefilla, and then occasional references scattered throughout hilkhot Shabbat.  This sparse citing suggests that the Arukh Hashulchan neither studied the Mishnah Berurah, nor is responding to it systemically.  So to, the only explanation for the lack of citation to volumes two, four, five and six is that Rabbi Epstein did not have them at the time he was producing his manuscript of the Arukh Hashulchan on Orach Chaim. (We see that Rabbi Eitam Henkin, in his work makes a similar observation on pages 311-313.)

Below is a list of all the cases we are aware of in which the Arukh Hashulchan actually has and cites and quotes this Mishnah Berurah.

1. Arukh HaShulchan 10:4 contains a reference to Biur Halakhah 10 s.v. veyesh lah.
2. Arukh HaShulchan 10:7 contains a reference to Biur Halakhah 10 s.v. ela im ken.
3. Arukh HaShulchan 10:8 contains a reference to Biur Halakhah 10 s.v. veain lah kenafot.
4. Arukh HaShulchan 11:8 contains a reference to Biur Halakhah 11 s.v. vehu.
5. Arukh HaShulchan 11:22 contains a reference to both Mishnah Berurah 11:27 and 11:29 and the Biur Halakhah, which explains this.
6. Arukh HaShulchan 12:4 contains a reference to Biur Halakhah 12 s.v. im nepseku.
7. Arukh HaShulchan 14:5 contains two references to Biur Halakhah 14 s.v. hetil yisrael.
8. Arukh HaShulchan 25:23 contains a reference to Biur Halakhah 25 s.v. vehakhi nohug.
9. Arukh HaShulchan 25:26 contains a reference to Mishnah Berurah 44.
10. Arukh HaShulchan 62:3 contains a reference to Biur Halakhah 62 s.v. yachol lekrotah bekhol lashon.
11. Arukh HaShulchan 76:21 contains a reference to Biur Halakhah s.v. kara bemakom.
12. Arukh HaShulchan 76:4 contains a reference to Mishnah Berurah 77:8.
13. Arukh HaShulchan 79:11 contains a reference to Mishnah Berurah 5.
14. Arukh HaShulchan 79:17 contains a reference to Mishnah Berurah 79:29 or Biur Halakhah s.v. aval chalul.
15. Arukh HaShulchan 87:7 contains a reference to Mishnah Berurah 9.
16. Arukh HaShulchan 89:23 contains a reference to Mishnah Berurah 89:22.
17. Arukh HaShulchan 89:24 contains a reference to Mishnah Berurah 89:24 and Biur Halakhah s.v. vekhen okhlin umashkin.
18. Arukh HaShulchan 91:3 contains a reference to Biur Halakhah 91 s.v. hoyil vekhisah.
19. Arukh HaShulchan 91:4 contains a reference to Biur Halakhah 91 s.v. yatza.
20. Arukh HaShulchan 245:8 contains a reference to Mishnah Berurah 245:23.
21. Arukh HaShulchan 247:13 contains a reference to Mishnah Berurah 247:18.
22. Arukh HaShulchan 262:4 contains a reference to Mishnah Berurah 262:12.
23. Arukh HaShulchan 263:19 contains a reference to Mishnah Berurah 263:49.
24. Arukh HaShulchan 268:6 contains a reference to Biur Halakhah 268 s.v. veshelo bekavanah.
25. Arukh HaShulchan 271:30 contains a reference to Biur Halakhah s.v. vehu rubo.
26. Arukh HaShulchan 275:2 contains a reference to Biur Halakhah 275 s.v. leor haner.
27. Arukh HaShulchan 301:122 contains a reference to Mishnah Berurah 301:176–177.
28. Arukh HaShulchan 302:32 contains a reference to Mishnah Berurah 303:87-88.
29. Arukh HaShulchan 302:9 contains a reference to Mishnah Berurah 301:2, 10, 11 and Biur Halakhah s.v. shaveh aleha.
30. Arukh HaShulchan 306:22 contains a reference to Mishnah Berurah 306:16 and Biur Halakhah s.v. beketav shelahem.
31. Arukh HaShulchan 319:19 contains a reference to Biur Halakhah 319 s.v. le’ekhol meyad.
32. Arukh HaShulchan 319:22 contains a reference to Mishnah Berurah 319:21 and Biur Halakhah s.v. beshinui.
33. Arukh HaShulchan 321:10 contains a reference to Mishnah Berurah 321:37–38.
34. Arukh HaShulchan 328:39 contains a reference to Mishnah Berurah 328:145.
35. Arukh HaShulchan 330:7 contains a reference to Biur Halakhah s.v. kol sheloshah yamim.
36. Arukh HaShulchan 336:21 contains a reference to Biur Halakhah 336 s.v. mutar lelakh.

A question that can only be speculated about is whether the Arukh HaShulchan is ever responding without citation to the Mishnah Berurah (for example, in the case of married women and hair covering in the synagogue in Orach Chayim 75).  Rabbi Eitam Henkin (p. 314) quotes the famous observation of this father, Rabbi Yehuda Herzl Henkin in Shut Benai Banim 2:18 that there are countless times where the Aruch HaShulchan is responding, without citing, the Mishnah Berurah.  Rabbi Eitam Henkin then provides a list of such possible cases.

[1] See Rabbi Eitam Henkin, Ta’arokh Lifanai Shulchan: Chayo Zemano U’mepa’alo Shel Harav Yechiel Mikhel Epstein Baal Arukh Hashulchan, pp. 245-246.

[2] See as well the following article by Rabbi Eitam Henkin where he makes this claim as well:

 ‘ספרי ערוך השלחן – סדר כתיבתם והדפסתם’, חצי גבורים – פליטת סופרים, ז (תשע”ד), עמ’ תקטו-תקלו

Copies of the first editions can be found in the Hebrew University Library.

[3] Kitvei Ha-Arukh Hashulchan, no. 104.

[4] See Rabbi Eitam Henkin’s book at pages 234–235.

[5] See Kitvei Ha-Arukh Hashulchan, no. 56.

[6] See Printing of the Arukh HaShulhan: The Missing Line About Rabbi Epstein’s Daughter for more on the posthumous publication of volumes.

[7] Rabbi Meir Bar-Ilan, From Volozhin to Jerusalem 269-271 (1939-1940) [Hebrew].

[8] See Rabbi Eitam Henkin’s work תערוך לפני שלחן at pages 229–257 for a detailed discussion of the publication difficulties and schedule of the Arukh HaShulchan.

[9] Twice Arukh Hashulchan refers to the work by its formal name, Mishnah Berurah, and all the remaining times by an acronym מ”ב or המ”ב.