The Losing Argument

The city had been burning for weeks and the prophet went out to the graves. Jerusalem was ash behind him, the Temple a field of cooling stone, the survivors already roped together for the road east. Jeremiah walked to where the founders of the nation were buried and did the one thing a mourner never does at a grave. He rebuked the dead for lying still. Beloved bones, he said, why are you sleeping? Your children are exiled and their houses are rubble. He had not come to grieve the ancestors. He had come to wake them and put them to work.

This is the scene at the head of a kinah, a formal lament recited on the Ninth of Av, the fast that mourns the destruction of both Temples. The poem is called Az Bahaloch Yirmiyahu, “When Jeremiah Went Forth,” and it is attributed to Elazar HaKalir, the synagogue poet of Byzantine Palestine around the seventh century. Kalir’s elegy maintains the spirit of the Talmud, filled with point and counterpoint.

The dead rise and argue. Each patriarch produces a piece of covenantal evidence and quotes God’s own promise back at Him. Abraham: I was tested ten times; where is אַל תִּירָא אַבְרָם, “fear not, Abram” (Genesis 15:1)? Isaac: I was bound for the knife on Moriah; where is וְאֶת בְּרִיתִי אָקִים אֶת יִצְחָק, “My covenant I will establish with Isaac” (Genesis 17:21)? Jacob speaks of the children he raised, Moses of the flock he carried. Behind them all stands the collective claim, וְזָכַרְתִּי לָהֶם בְּרִית רִאשֹׁנִים, “I will remember for them the covenant of the ancients” (Leviticus 26:45). The refrain is a single accusing question, repeated down the poem like a gavel: וְאַיֵּה הַבְטָחַת, “and where is the promise?”

And God answers each one, refuting the patriarchs - your merit is insufficient. God answers Biblical verses with counter-sources drawn from the descendants’ own conduct, and God builds each answer out of the very material of the claim. Abraham’s ten trials are met by the Ten Commandments the children broke. Isaac offers Moriah bound; God returns Moriah defiled. Jacob invokes the children he nurtured; God invokes the blood those children spilled. This is the exact motion of Talmudic shakla vetarya, literally “taking and giving.”

What goes on trial is zekhut avot, the merit of the ancestors, the idea that the founders’ faithfulness is a standing account their heirs can draw against. The poem takes it as axiomatic, but shows its limits. Inherited merit cannot serve as an unlimited exemption from what the living do.

The patriarchs lose, just like Abraham loses his argument with God on behalf of the sinners of Sodom and Gomorrah. But their losing, minority opinion, is nonetheless retained; the chutzpah of their challenge to God is part of our liturgy.

And why do they record the opinion of a single individual among the many, when the law follows the many? So that if a court sees fit to rely on the individual, it may depend on him. (Mishnah Eduyot 1:5)

The losing vote is preserved because a later court may need it.

Rabbi Judah, in the next mishnah, gives a colder reason for the same practice: keep the rejected opinion on file so that when a man claims a tradition, you can tell him which overruled individual he heard it from (Eduyot 1:6). Two theories of why you save what you struck down. The loser may have a future, or the loser must stay identifiable. There is a mystical position that says in the World to Come, we will hold by Shammai rather than Hillel - although in their case, God says it’s a tie - “these and these are the words of the living God.” But who knows, perhaps, there is hope even in the losing argument.

A dissent, wrote Chief Justice Charles Evans Hughes, is an appeal to “the brooding spirit of the law,” to a day when a later court might see the error and reverse.

Then the matriarchs come, and the form turns.

Until this point every speaker has cited something. The mothers cite nothing. Leah weeps and beats her heart. Rachel weeps for her children. Zilpah strikes her face. Bilhah laments with both hands. No promise is quoted. No וְאַיֵּה - where are you - is raised as a challenge. Their verbs are all bodily. The poem has left the register of the ta’anah, the legal claim, and entered the register it is named for, the kinah, the lament. God refutes the intellectual arguments, now it is time to appeal, as it were, heart to heart.

In Eikhah Rabbah, the classical verse-by-verse midrash on Lamentations that Kalir is reworking here, Rachel gives the winning speech: she reminds God that she handed her sister Leah the secret signs on the wedding night and swallowed her own jealousy, and argues that He should overcome His. It is a brilliant legal argument, and it succeeds. Kalir keeps Rachel’s tears but throws her argument away. You can’t out-argue God, he implies. Then he adds the two mothers the tradition most often forgets, Zilpah and Bilhah, the handmaids, mothers of four of the tribes. In his poem the case turns only after the least-heralded women add their weeping to the rest.

The root of the whole scene is one verse in Jeremiah, and it turns on a refusal:

A cry is heard in Ramah, wailing, bitter weeping, Rachel weeping for her children. She refuses to be comforted for her children, for they are gone. (Jeremiah 31:15)

מֵאֲנָה לְהִנָּחֵם, she refuses to be comforted. The force is in the refusal. She will not let “they are gone” stand as the last sentence. God’s reply, in the very next verse, meets the refusal on its own ground and answers the tears before it asks her to dry them:

Restrain your voice from weeping and your eyes from tears, for there is reward for your labor, and they shall return from the land of the enemy. (Jeremiah 31:16)

The Temple stays burned, the exile proceeds, no one is declared innocent, and the fathers’ case remains lost. The fathers had asked whether Israel deserved to be saved, and the answer was no. The mothers never raised the question of desert or merit. They held onto the one fact no verdict could touch, past the point where the verdict had come in: that the condemned were still their children.

There is a line in the Talmud that since the day the Temple fell the gates of prayer have been locked, שַׁעֲרֵי דִמְעָה לֹא נִנְעֲלוּ, and the gates of tears are not (Berakhot 32b). God can sustain but not refute their tears.

And there is hope for your future
—declares GOD:
Your children shall return to their country.

Wishing you a somber, and ultimately redemptive Tisha B’Av,
Zohar