Berakhot 063

5:
We now come to the seifa [last section] of our mishnah. A careful reading of the text will reveal a "continuity" problem: what is the logical connection between the first sentence of the seifa and its second sentence? In other words, what is the logical connection between "he should not cover himself with stagnant water or with steeping-water unless he has added to them [fresh] water" and its continuation "How far must one be distanced from them or from excrement?"

6:
The Gemara [Berakhot 25b] recognizes this problem of discontinuity and suggests emending the text. While every effort was made by the real "Tannaïm" – the 'memory men" who conned by rote large chunks of the "unwritten Torah" [see Introduction to the Mishnah for further details] – to preserve the text of the mishnayot with utmost accuracy, it was inevitable that here and there textual corruptions would occur. And memory, like the printed word, tends to perpetuate these mistakes: once you have learned something by heart it is very difficult to erase the memory and rephrase what you have learned. The Gemara, with obvious logic, emends the text of the mishnah as follows:

Quite obviously our mishnah is dealing with circumstances that today almost do not exist, but must have been very real in Talmudic times. First of all (unfortunately?) we now consider simple acts of worship such as Keri'at Shema or reciting the Amidah as being eminently associated with the public ritual of the synagogue – and our modern synagogues are not places where we expect to find in sight the waste products of the digestive system. Even in the home our sanitation techniques have virtually eliminated the possibility of seeing excrement "lying around". However, those of us with new-born babies to tend (or with fond recollections of tending them) will find it easier to appreciate the topic of the seifa of our mishnah. Let us imagine someone in Talmudic times who wishes to recite Keri'at Shema before retiring to bed for the night. Under or next to his bed are receptacles for collecting those waste-products should the need arise. And let us assume that the need has arisen, and that these receptacles are not empty. This person wants to recite the Shema. The mishnah requires him to add to the urine in the receptacle sufficient fresh water to obviate the distinctive smell, and physically to remove the other receptacle and its contents – at least a couple of metres. Only then may such a person recite the Shema before retiring for rest at night.

In Berakhot 062 Ed Frankel asked about the implications of the possibility of abrogating rabbinic takkanot for modern Conservative Judaism. I would just like to offer a couple of reminders about the parameters involved here.

Firstly, the concept only concerns rabbinic innovations. It has nothing to do with Torah law or law which rabbinic interpretation derived from the Torah. In more simple terms, it is only concerned with legislation which the rabbis admitted was on their own initiative, with no prompting from the Torah. Secondly, such existent rabbinic legislation can only be abrogated by a Bet Din that is greater than the innovating Bet Din in number and halakhic standing. Can such a Bet Din exist today?

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In Berakhot 062 the mishnah is quoted: Otherwise, the covering of the water is sufficient and he should recite [the Shema]… This prompts the following comment from Ron Kaminsky:

I am very surprised, since it strikes me that wearing Tefillin in that situation would be prohibited if only because of the danger that they would be ruined by accidental immersion. Were these two mitzvot less strongly associated when the Mishna was written?

I respond:

Apparently, yes.

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